HomeMy WebLinkAboutRES 18-111RESOLUTION NO. 18-111
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager, or his designee, be and they are hereby authorized to execute
a five (5) year Contract between the City of Beaumont and the Texas Department of
State Health Services for the Beaumont Public Health Department Vital Statistics
Division to continue to purchase services and/or goods that will allow the search of
databases to issue Certifications of Vital Records. The Contract is substantially in the
form attached hereto as Exhibit "A" and made a part hereof for all purposes.
The meeting at which this resolution was approved was in all things conducted in
strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter
551.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 15th day of
May, 2018.
a�a
�or Becky Ames
Contract Number: HHSREV100001078
DEPARTMENT OF STATE HEALTH SERVICES
Contract number HHSREV100001078 (the "Contract'), is entered into by Department of State
Health Services ("DSHS") Vital Statistics Section and City of Beaumont ("Contractor"). DSHS
and Contractor are collectively referred to herein as the "Parties."
I. Puruose of the Contract. DSHS agrees to provide access to the DSHS Vital Event
Electronic Registration System for the purpose of issuing individual birth certificates.
II. Term of the Contract. This Contract will begin on September 1, 2018 and end on August
31, 2023.
M. Authority. The Parties enter into this Contract under the authority of Texas Health and
Safety Code Chapter 191 and Texas Government Code Chapter 791.
IV. Statement of Work.
A. DSHS agrees to provide on-line computer services in support of Contractor from 7:00
a.m. to 6:00 p.m. (CST) Monday through Friday, except holidays. In the event of an
emergency or computer application error, DSHS may temporarily suspend services
without advance notice.
B. Contractor may search DSHS databases, locate data, and issue Certifications of Birth to
authorized individuals requesting such data. The certifications will be in a format
formally approved by.DSHS. Contractor will -take reasonable efforts to ensure use of the
DSHS Vital Event Electronic Registration System is not abused by its staff. Abuse of
the access to confidential information in the DSHS Vital Event Electronic Registration
System may be cause for termination of this Contract in accordance with Section IX.K.
C. Contractor will acquire the necessary data processing equipment, communications,
hardware or software, and purchase "bank note" paper, as specified by DSHS. DSHS
will assist in connection of the equipment, furnish software program and provide
technical assistance, if necessary.
D. Contractor will complete the DSHS Vital Event Electronic Registration System
registration forms as specified by DSHS. Contractor will remain incompliance with any
requirements specified by DSHS for accessing the DSHS Vital Event Electronic
Registration System. Contractor will not be required to pay an additional fee pursuant to
this Subsection.
E. Contractor acknowledges that records may not be located in the searching process
instituted by Contractor, or records which are located may have errors due to:
VSS Remote Birth Access
Page 1
EXHIBIT "A"
Contract Number: HHSREV 100001078
1. Normal key -entry errors in spellings;
2. Accidental failure on the part of the DSHS to update a file for an amendment
or paternity determination; and ,
3. The event year does not exist on the system.
F. Contractor will notify DSHS in writing, at least monthly of errors or suspected errors that
exist on the database information.
G. Contractor is to maintain an inventory control and account for each document produced
on "bank note" paper, including voided documents.
H. Contractor will issue Certificates of Birth utilizing remote access to the DSHS system in
conformance with Health and Safety Code Chapters 191,192 and 195, as well as 25 Tex.
Admin. Code Chapter 181.
I. The Parties are required to comply with all applicable state and federal laws relating to
the privacy -and confidentiality of this data and records, which includes Texas
Government Code Section 552.115.
J. The Parties will use confidential records. and information obtained under this Contract
only for purposes as described in this Contract and as otherwise allowed by law.
V. Fees.
Contractor agrees to pay DSHS ONE DOLLAR AND EIGHTY THREE CENTS ($1.83) for each
Certification of Vital Record printed as a result of searches of the database. Contractor
agrees to charge the same base search fee for a birth certificate as DSHS. Additional fees
may only be charged as authorized by Texas Health and Safety Code Chapter 191 and 25
Tex. Admin. Code Chapter 181.
VI. BiMmit.
A. DSHS will send an itemized billing to Contractor on a monthly basis for each
Certification of Birth printed. This billing will be sent through the U.S. Postal
Service to the Contractor at:
Name: City of Beaumont
Address: P.O. Box 3827
Beaumont, TX 77704
B. Contractor will direct any billing inquiries either by phone to 512-776-7206 or email
to vsubusinessservices ,dshs.texas.aov.
V55 Remote Birth Access
Page 2
Contract Number. HHSREV 100001078
VII. Payment Method.
A: Contractor will remit payment to DSHS withimthirty days after a billing is received
by them. Payment by the Contractor will be considered made on the date
postmarked. '
B. Contractor will send payments to DSHS at:
Texas Department of State Health Services
Cash Receipts Branch MC. 2096
P.O. Box 149347
Austin, TX 78714-9347
C. Contractor will make payment to DSHS out of its current revenues.
VIII. Representatives. The following will act as the Representative authorized to administer
activities under this Contract on behalf of their respective Party.
City of Beaumont I DSHS
City of Beaumont
Health Services Department
-Attn: Melissa Sias
P.O. Box 3827
Beaumont, TX 77704
Phone: (409) 880-3789
Email:
Texas Department of State Health Services
Contract Management Section
Attn: Tina Walker
Mail Code 1990
P.O. Box 149347
Austin, TX 78714-9347
Phone: (512) 776-2732
Email: Tina.
IX. General Terms and Conditions.
A., Governing Law. Regarding all issues related to this Contract's formation, performance,
interpretation, and any issues that may arise in any dispute between the parties, the
Contract will be governed by and construed in accordance with the laws of the State of
Texas.
B. Amendment. This Contract may be modified by written amendment signed by the
Parties.
C. Confidentiality.
The Parties are required to comply with all applicable state and federal laws relating to
the privacy and confidentiality of records that contain Personal Identifying Information
(PII) or Personally Sensitive Information (PSI) or other information or records made
confidential by law, including Tex. Bus. & Comm. Code Section 521.002. The attached
Data Use Agreement (Attachment A) applies to this Contract.
VSS Remote Birth Aceess
PaV 3
Contract Number: HHSREV100001078
D. Exchange of Personal Identifying Information. This Contract concerns personal
identifying information. Except as prohibited by other law, Contractor and DSHS may
exchange PII without consent, in accordance with Chapter 191 of the Health and Safety
Code.
E. Records Retention. DSHS will retain records in accordance with DSHS State of Texas
Records Retention Schedule at hio://www.dshs.texas.gov/records/schedules.shtm,
Department Rules and other applicable state and federal statutes and regulations
governing medical, mental health, and substance abuse information.
F. Severability. If any provision of this Contract is construed to be illegal or invalid, the
illegal or invalid provision will be deemed stricken and deleted to the same extent and
effect as if never incorporated, but all other provisions will continue.
G. Notice. Any notice required or permitted to be given under this Contract will be in
writing and sent to the respective Party's Representative in Section VIII. Notice will be
deemed to have been received by a Party on the third business day after the date on which
it was mailed to the Party at the address specified in writing by the Party to the other
Party, or, if sent by certified mail, on the date of receipt.
H. Waiver. Acceptance by either Party of partial performance or failure to complain of any
action, non -action or default under this Contract will not constitute a waiver of either
Party's rights under the Contract.
I. Assignment. Neither DSHS nor Contractor will transfer, assign, or sell its interest, in
whole or in part, in this Contract without prior written consent by both Parties.
J. Suspension of Services Under This Contract. In the event of an emergency or
information technology system failure, DSHS' may temporarily suspend services without
advance notice. Use of services for purposes inconsistent with applicable law may also
result in a suspension of services.
K Termination.
1. Convenience. This Contract may be terminated by mutual agreement of the Parties.
Either Party may terminate this Contract without cause by giving 30 days written
notice of its intent to terminate to the non -terminating Party.
2. Cause. This Contract may be terminated for cause by either Party for breach or
failure to perform an essential requirement of the Contract. Use of services for
purposes inconsistent with applicable law may be cause for Contract termination.
3. Notice of Termination. Written notice maybe, sent by any method that provides
verification of receipt, which will be calculated from the date of receipt by the non -
terminating Party's Representative provided in Section VIII.
VSS Remote Birth Access
Page 4
Contract Number: HHSREV100001078
4. Equitable Settlement. At the end of the Term of this Contract or termination as
provided for in this Section, the Parties will equitably settle their respective accrued
interests or obligations incurred prior to termination.
By signing below, the Parties agree that this Contract constitutes the entire legal and binding
agreement between them. The Parties acknowledge that they have read the Contract and agree to
its terms, and that the persons whose signatures appear below have the authority to execute this
Contract on behalf of their respective Party.
DEPARTMENT OF STATE HEALTH SERVICES
AN
Maeda Hall, M.D.
Associate Commissioner
Department of State Health Services
r
Date
CITY OF BEAUMONT
Todd A. Simoneaux
Chief Financial Officer
City of Beaumont
Date
THE FOLLOWING ATTACHMENTS ARE ATTACHED AND INCORPORATED AS PART OF)THE
CONTRACT BHSREV100001078:
ATTACHMENT A— DATA USE AGREEMENT
VSS Remote Birth Access
Page 5 .
ATTACHMENT A—DATA USE AGREEMENT
DATA USE AGREEMENT
BETWEEN THE
TEXAS HEALTH AND HUMAN SERVICES ENTERPRISE
AND
CITY OF BEAUMONT ("CONTRACTOR")
This Data Use Agreement ("DUX') is incorporated into System Agency Contract No.
HHSREV 100001078 (the "Base Contract') between the Texas Department of State Health Services
("System Agency') and City of Beaumont ("Contractoel.
ARTICLE 1. PURPOSE; APPLICABILITY; ORDER OF PRECEDENCE
ATTACHMENT 1. The purpose of this DUA is to facilitate creation, receipt, maintenance,
use, disclosure or access to Confidential Information with Contractor, and describe
Contractor's rights and obligations with respect to the Confidential Information and
the limited purposes for which the Contractor may create, receive, maintain, use, disclose or
have access to Confidential Information. 45 CFR 164.504(e)(1)-(3). This DUA also
describes System Agency's remedies in the event of Contractor's noncompliance with
its obligations under this DUA. This DUA applies to both Business Associates and contractors who
are not Business Associates who create, receive, maintain, use, disclose or have access to Confidential
Information on behalf of System Agency, its programs or clients as described in the Base Contract.
As of the Effective Date of the Contract, if any provision of the Base Contract, including any General
Provisions or Uniform Terms and Conditions, conflicts with this DUA, this DUA controls.
ARTICLE 2. DEFINITIONS
For the purposes of this DUA, capitalized, underlined terms have the meanings set forth in the
following: Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (42 U.S.C.
§ I320d, et seq.) and regulations thereunder in 45 CFR Parts 160 and 164, including all amendments,
regulations and guidance issued thereafter; The Social Security Act, including Section 1137 (42 U.S.C.
§§ 1320b-7), Title XVI of the Act; The Privacy Act of 1974; . as. amended by the 'Computer Matching and
Privacy Protection Act of 1988, 5 U.S.C. § 552a and regulations and guidance thereunder, Internal Revenue
Code, Title 26 of the United States Code and regulations and publications adopted under that code, including
IRS Publication 1075; OMB Memorandum 07-18; Texas Business and Commerce Code Ch. 521; Texas
Government Code, Ch. 552, and Texas Government Code §2054.1125. In addition, the following terms in
this DUA are defined as follows:
"Authorized Purpose" means the specific purpose or purposes described in the Scope of Work of
the Base Contract for Contractor to fulfill its obligations under the Base Contract, or any other purpose
expressly authorized by System Agency in writing in advance.
"Authorized User" means a Person:
(1) Who is authorized to create, receive, maintain, have access to, process, view, handle,
examine, interpret, or analyze Confidential Information pursuant to this DUA;
(2) For whom Contractor warrants and represents has a demonstrable need to create, receive,
maintain, use, disclose or have access to the Confidential Info ion• and
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
GOVERNMENTAL ENTITY VERSION
System Agency Contract No.HHSREV 100001078
(3) Who has agreed'in writing to be bound by the disclosure and use limitations pertaining to
the Confidential Information as required by this DUA.
"Confidential Information' means any communication or record (whether oral, written,
electronically stored or transmitted, or in any other form) provided to or made available to Contractor or that
Contractor may create, receive, maintain, use, disclose or have access to on behalf of System Agency that
consists of or includes any or all of the following:
(1) Client Information;
(2) Protected Health Information in any form including without limitation, Electronic
Protected Health Information or Unsecured Protected Health Information:
(3) Sensitive Personal Information defined by Texas Business and Commerce Code Ch. 521;
(4) Federal Tax Information:
(5) PersonallyIdentifiable Information:
(6) Social Security Administration Data, including, without limitation, Medicaid
information;
(7) All privileged work product;
(8) All information designated as confidential under the constitution and laws of the State of
Texas and of the United States, including the Texas Health & Safety Code and the Texas Public
Information Act, Texas Government Code, Chapter 552.
"Lesally Authorized Representative" of the Individual, as defined by Texas law, including as
provided in 45 CFR 435.923 (Medicaid); 45 CFR 164.502(8)(1) (HIPAA); Tex. Occ. Code § 1.51.002(6);
Tex. H. & S. Code § 166.164; Estates Code Ch. 752 and Texas Prob. Code § 3.
ARTICLE 3.CONTRACTOR'S DUTIES REGARDING CONFIDENTIAL INFORMATION
Section 3.01 Obligations of Contractor
Contractor agrees that:
(A) Contractor will exercise reasonable care and no less than the same degree of care
.Contractor uses to protect its own confidential, proprietary and trade secret information to prevent any
portion of the Confidential Information from being used in a manner that is not expressly an Authorized
EnEpose under this DUA or as Required by Law. 45 CFR 164.502(b) (1); 4S CFR 164.514(d)
(B) Contractor will not, without System Agency's prior written consent, disclose or allow
access to any portion of the Confider i l Information to any Person or other entity, other than Authorized
User's -Workforce or Subcontractors of Contractor who have completed training in confidentiality,
privacy, security and the importance of promptly reporting any Event or Breach to Contractor's
management, to carryout the Authorized Purpose or as Required by Law.
System Agency, at its election, may assist Contractor in training and education on specific or
unique System Agency processes, systems or requirements. Contractor will produce evidence 'of
completed training to System Agency upon request. 45 C.F.R. 164308(a)(5)(i); Texas Health & Safety
Code §181.101
(C) Contractor will establish, implement and maintain appropriate sanctions against any
member of its Workforce or Subcontractor who fails to comply with this DUA, the Base Contract or
applicable law. Contractor will maintain evidence of sanctions and produce it to System Agency upon
request.45 C.F.R 164.308(a)(1)(ii)(C);164.530(e);164.410(b); 164530(b)(1)
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Page 2 of l l
System Agency Contract No.HHSREV 100001078
(D) Contractor will not, without prior written approval of System Agency, disclose or provide
access to any Confidential Information on the basis that such act is Required by Law without notifying
System Agency so that System Agency may have the opportunity to object to the disclosure or access and
seek appropriate relief. If System Agency objects to such disclosure or access, Contractor will refrain
from disclosing or providing access to the Confidenliyl Information until System Agency has exhausted
all alternatives for relief. 45 CFR 164.504(e)(2)(H)(A)
(E) Contractor will not attempt to re -identify or further identify Confidential Information or
De -identified Information, or attempt to contact any Individuals whose records are contained in the
Confidential Information, except for an Authorized Purpose, without express written authorization from
System Agency or as expressly permitted by the Base Contract. 45 CFR 164.502(d)(2)(1) and ri)
Contractor will not engage in prohibited marketing or sale of Confidential Information. 4S CFR 164.501,
164.508(a)(3) and (4); Texas Realth & Safety Code Ch.181.002
(F) Contractor will not permit, or enter into any agreement with a Subcontractor to, create,
receive, maintain, use, disclose, have access to or transmit Confidential Information, on behalf of
Contractor without requiring that Subcontractor first execute the Form Subcontractor Agreement,
Attachment 11 which ensures that the Subcontractor will comply with the identical terms, conditions,
safeguards and restrictions as contained in this DUA for PHI and any other relevant Confidential
Information and which permits more strict limitations; and 45 CFR 164.502(e)(7)(7)rl); 164 504(e)(1)rr)
and (2)
(G) . Contractor is directly responsible for compliance with, and enforcement og all conditions for
creation, maintenance, use, disclosure, transmission and Destruction of Confidential Information and the acts
or omissions of Subcontractors as may be reasonably necessary to prevent unauthorized use. 45 CFR
164504(e)(5); 42 CFR 431.300, et seq.
(H) If Contractor maintains PHI in a Designated Record Set, Contractor will make, PHI
available to System Agency in a Designated Record Set or, as directed by System Agency, provide PHI
to the Individual, or Legally Authorized Representative of the Individual who is requesting PHI in
compliance with the requirements of the HIPAA Privacy Regglations. Contractor will make other
Confidential Information in Contractor's possession available pursuant to the requirements of HIPAA or
other applicable law upon a determination of a Breach of Unsecured PHI as defined in HIP ►_A_. 45 CFR
164.524and 164.5 04(e) (2) (11) (E)
(I) Contractor will make PHI as required by HIPAA available to System Agency for
amendment and incorporate any amendments to this information that System Agency directs or agrees to
pursuant to the HIPAA. 45 CFR 164.504(e)(2)(ti)(E) and M
(J) Contractor will document and make available to System Agency the PHI required to
provide access, an accounting of disclosures or amendment in compliance with the requirements of the
HIPAA Privacy ReWations. 45 CFR 164.504(e)(2)ri)(G) and 164.528
(K) If Contractor receives a request for access, amendment or accounting of EHI by any
Individual subject to this DUA, it will promptly forward the request to System Agency; however, if it
would violate HIPAA to forward the request, Contractor will promptly notify of the request and of
Contractor's response. Unless Contractor is prohibited by law from forwarding a request, System Agency
will respond to all such requests, unless System Agency has given prior written consent for Contractor to
respond to and account for all such requests. 45 CFR 164.504(e)(2)
(L) Contractor will provide, and will cause its Subcontractors and agents to provide, to
System Agency periodic written certifications of compliance with controls and provisions relating to
information privacy, security and breach notification, including without limitation information related to
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Page 3 of 1 I
System Agency Contract No.HHSREV100001078
data transfers and the handling and disposal of Confidential Information. 45 CFR 164.308; 164.530(c); I
TAC 202
(M) Except as otherwise limited by this DUA, the Base Contract, or law applicable to the
Confidential Information. Contractor may use or disclose PHI for the proper management and administration
of Contractor or to carry out Contractor's legal responsibilities if 45 CFR 164.504(e)ri)(1)(A)
(1) Disclosure is Required by Law, provided that Contractor complies with Section 3.01(D);
(2) Contractor obtains reasonable assurances from the Person to whom the information is
disclosed that the Person will:
(a) Maintain the confidentiality of the Confidential Information in accordance with this DUA;
(b) Use or further disclose the information only as Required by Law or for the Au orized
Purpose for which it was disclosed to the Person; and
(c) Notify Contractor in accordance with Section 4.01 of any Event or Breach of Confidential
Information of which the Person discovers or should have discovered with the exercise of
reasonable diligence. 45 CFR 164.504(e)(4)(if)(B)
(N) Except as otherwise limited by this DUA, Contractor will, if requested by System
Agency, use PHI to provide data aggregation services to System Agency, as that term is defined in the
HII'A 45 C.F.R. §164.501 and permitted by HIPAA. 45 CFR 164.504(c)(2)(1B)
(0) Contractor will, on the termination or expiration of this DUA or the Base Contract, at its
expense, return to System Agency or Destroy. at System Agency's election, and to the extent reasonably
feasible and permissible by law, all (Confidential Information received from System Agency or created or
maintained by Contractor or any of Contractor's agents or Subcontractors on System Agency's behalf if
that data contains Confidential Information. Contractor will certify in writing to System Agency that all
the Confidential' Information that has been created, received, maintained, used by or disclosed to
Contractor, has been Destroyed or returned to System Agency, and that Contractor and its agents and
Subcontractors have retained no copies thereof. Notwithstanding the foregoing, Contractor acknowledges
and agrees that it may not Destroy any Confidential Information if federal or state law, or System Agency
record retention policy or a litigation hold notice prohibits such Destruction. If such return or Destruction
is not reasonably feasible, or. is impermissible by law, Contractor will immediately notify System Agency
of the reasons such return or Destruction is not feasible, and agree to extend indefinitely the protections of
this DUA to the Confidential Information and limit its further uses and disclosures to the purposes that
make the return of the Confidential Information not feasible for as long as Contractor maintains such
Confidential information. 45 CFR 164.504(e)(2)(ii)(.0
(P) Contractor will create, maintain, use, disclose, transmit or Destroy Confidential
Information in a secure fashion that protects against any reasonably anticipated threats or hazards to the
security or integrity of such information or unauthorized uses. 45 CFR 164.306; 164.530(c)
(Q) If Contractor accesses, transmits, stores, or maintains Confidential Information,
Contractor will complete and return to System Agency at infosecurity 1. hsc.state.tx.us the System
Agency information security and privacy initial inquiry (SPI) at Attachment 2 . The SPI identifies basic
privacy and security controls with which Contractor must comply to protect System Agency Confidential
Information. Contractor will comply with periodic security controls compliance assessment and
monitoring by System Agency as required by state and federal law, based on the type of Confidential
Information Contractor creates, receives, maintains, uses, discloses or has access to and the Authorized
Purpose and level of risk. Contractor's security controls will be based on the National Institute of
Standards and Technology (MIST) Special Publication 800-53. Contractor will update its security
controls assessment whenever there are significant changes in security controls for System Agency
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Page 4 of 11
System Agency Contract No.HHSREV 100001078
Confidential Information and will provide the updated document to System Agency. System Agency also
reserves the right to request updates as needed to satisfy state and federal monitoring requirements. 45
CFR 164.306
(R) Contractor will establish, implement and maintain any and all appropriate procedural,
administrative, physical and technical safeguards to preserve and maintain the confidentiality, integrity,
and availability of the Confidential Information, and with respect to PHI, as described in the HIPAA
Privacy and Security Regulationsor other applicable laws or regulations relating to Confidential
Information, to prevent any unauthorized use or disclosure of Confidential Information as long as
Contractor has such Confidential Information in its actual or constructive possession. 45 CFR 164.308
(adudnktrative safeguards); 164.310 (physical safeguards); 164.312 (technical safeguards);
164 530(c)(privacy safeguards)
(S) Contractor will designate and identify, subject to System Agency approval, a Person or
Persons, as Privacy Official 45 CFRI64.530(a)(1) and Information Security Official, each of whom is
authorized to act on behalf of Contractor and is responsible for the development and implementation of
the privacy and security requirements in this DUA. Contractor will provide name and current address,
phone number and e-mail address for such designated officials to System Agency upon execution of this
DUA and prior to any change. 45 CFR 164.308(a)(2)
(T) Contractor represents and warrants that its Authorized Users each have a demonstrated
need to know and have access to Confidential Information solely to the minimum extent necessary to
accomplish the Authorized Purpose pursuant to this DUA and the Base Contract, and further, that each
has agreed in writing to be bound by the disclosure and use Iimitations pertaining to the Confidential
Information contained in this DUA. 4S CFR 164.502;164.514(d)
(U) Contractor and its Subcontractors will maintain an updated, complete, accurate and
numbered list of Authorized Users, their signatures, titles and the date they agreed to be bound by the
terms of this DUA, at all times and supply it to System Agency, as directed, upon request.
(V) Contractor will implement, update as necessary, and document reasonable and
appropriate policies and procedures for privacy, security and Breach of Confidential Information and an
incident response plan for an Event or Breac to comply with the privacy, security and breach notice
requirements of this DUA prior to conducting work under the DUA. 45 CFR 164.308; 164316;
164.514(4); 164.530(1)(1)
(V) Contractor will produce copies of its information security and privacy policies and
procedures and records relating to the use or disclosure of Confidential Information received from,
created by, or received, used or disclosed by Contractor on behalf of System Agency for System
Agency's review and approval within 30 days of execution of this DUA and upon request by System
Agency the following business day or other agreed upon time frame. 45 CFR 164.308; 164.514(d)
(J) Contractor will make available to System Agency any information System Agency requires
to fulfill System Agency's obligations to provide access to, or copies o> PHI in accordance with and
other applicable laws and regulations relating to Confidential Information. Contractor will provide such
information in a time and manner reasonably agreed upon or as designated by the Sec r or other federal
or state law. 45 CFR I64504(e)(2)r)(I)
(S) , Contractor will only conduct secure transmissions of Confidential Information whether in
paper, oral or electronic form. A secure transmission of electronic Confidential Information in motion
includes secure File Transfer Protocol (SFI'P) or EnMMtion at an appropriate Ievel or otherwise protected
as required by rule, regulation or law. System Agency Confidential Information at rest requires.
Enc tion unless there is adequate administrative, technical, and physical security, or as otherwise
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015.
Page 5 of 11
System Agency Contract No.HHSREV I00001078
protected as required by rule, regulation or law. All electronic data transfer and communications of
ConfidentiaL Information will be through secure systems. Proof of system, media or device security or
Encryption must be produced to System Agency no later than 48 hours after System Agency's written
request in response to a compliance investigation, audit or the Discovery of an Event or Breach.
Otherwise, requested production of such proof will be made as agreed upon by the parties. De -
identification of System Agency Confidential Infarmation is a means of security. With respect to de -
identification of PHI, "secure" means de -identified according to HIPAA Privacy standards and regulatory
guidance. 45 CFR 1"312,164.530(d)
(Z) Contractor will comply with the following taws and standards if applicable to the type of
ConRdentiallnforniation and Contractor's _Arithorized Purpose:
• Title 1, Earl 1 QChapter 202, Subchapter B. Texas Administrative Code;
• The Privacy Act of 1974;
• OMB Memorandum 07-16;
• The Federal Information Security Management Act of 2002 (FISMA);
• The Health Insurance Portability and Accountability Act of 1996 (>IPAA) as defined in the
DUA;
• Internal Revenue Publication 1075 — Tax Information Security Guidelines for Federal, State
and Local Agencies;
• National Institute of Standards and Technology (NIST) Special Publication 800-66 Revision
1 — An Introductory Resource .Guide for Implementing the Health Insurance Portability and
Accountability Act (HIPAA) Security Rule;
• NIST SRwial Publications 800-53 and 00-53A 9- Recommended Security Controls for
Federal Information Systems and Organizations, as currently revised;
• NIST Special Publication 800-47 -- Security Guide for Interconnecting Information
Technology Systems;
• NIST Special Publication 800-88, Guidelines for Media Sanitization:
• NIST Special Publication 800-111, Guide to Storage of Encryption Technologies for End
User Devices containing PHI; and
• Any other State or Federal law, regulation, or administrative Wile relating to the specific System
Agency program area that Contractor supports on behalf of System Agency.
ARTICLE 4. BREACH NOTICE, REPORTING AND CORRECTION REQUIREMENTS
Section 4.01. Breach or Event Notlficatiun to System Agency. 45 CFR 164.400-414
(A) Contractor will cooperate fully with System Agency in investigating, mitigating to the
extent practicable and issuing notifications directed by System Agency, for any Event or Breach
of Confidential Information to the extent and in the manner determined by System Agency.
(B) Contractor'S obligation begins at the Discovery of an Event or Breach and continues as
long as related activity continues, until all effects of the Event are mitigated to System Agency's
satisfaction (the "incident response period"). 45 CFR 164.404
(C) Breach Notice:
1. Initial Notice.
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Page 6 of 11
System Agency Contract No.HHSREV 100001078
a. For federal information, including without limitation, Federal Tax Information. Social Security
Administration Data, and Medicaid Client Information, within the first, consecutive clock hour
of Discovery, and for all other types of Confidential Information not more than 24 hours after
Discovery, or in a timeframe otherwise approved by System Agency in writing, initially report to
System Agency's Privacy and Security Officers via email at: privacy@SMtem,
AuencyC.state.tx.us and to the System Agency division responsible for this DUA• and IRS
Publication 1075; Privacy Act of 1974, as amended by the Computer Matching and Privacy
Protection Act of 1988,'S U.S.C. § 552a, OMB Memorandum 07-16 as cited in System
AgencyC-CMS Contracts for information exchange.
b. Report all information reasonably available to Contractor about the Event or Breach of the
privacy or security of Confidential Information, 45 CFR 164.410
c. Name, and provide contact information to System Agency for, Contractor's single point of
contact who will communicate with System Agency both on and off business hours during the
incident response period.
2. . 48 -Hour Formal Notice. No later than 48 consecutive clock hours after Discovery, or a
time within which Discovery reasonably should have been made by Contractor of an Event or
Breach of Confidential Information. provide formal notification to the State, including all
reasonably available information about the Event or Breac and Contractor's investigation,
including without limitation and to the extent available. For (a) - (m) below. 45 CFR 164.400-
414-
a.
64.400-
414 -
a. The date the Event or Breach occurred;
b. The date of Contractor's and, if applicable, Subcontractor's Discovery;
c. A brief description of the Event or Breach,• including how it occurred and who is responsible
(or hypotheses, if not yet determined);
d. A brief description of Contractor's investigation and the status of the investigation;
e. A description of the types and amount of Confidential Information involved;
f. Identification of and number of all Individuals reasonably believed to be affected, including
first and last name of the individual and if applicable the, Legally authorized representative, last
known address, age, telephone number, and email address if it is a preferred contact method, to
the extent known or can be reasonably determined by Contractor at that time;
g. Contractor's initial risk assessment of the Event or Breach demonstrating whether individual
or other notices are required by applicable law or this DUA for System Agency approval,
including an analysis of whether there is a low probability of compromise of the Confidential
Information or whether any legal exceptions to notification apply;
h. Contractor's recommendation for System Agency's approval as to the ' steps Individuals or
Contractor on behalf of Individuals, should take to protect the Individuals from potential harm,
including .without limitation Contractor's provision of notifications, credit protection, claims
monitoring, and any specific protections for a Legally Authorized Representative to take on
behalf of an Individual with special capacity or circumstances;
i. The steps Contractor has taken to mitigate the harm or potential harm caused (including without
Iimitation the provision of sufficient resources to mitigate);
j. The steps Contractor has taken, or will take, to prevent or reduce the likelihood of recurrence of
a similar Event or Breach:
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Page 7 of 11
System Agency Contract No.HHSREV 100001078
k. Identify, describe or estimate of the Persons, Workforce, Subcontractor, or Individuals -and any
law enforcement that may be involved in the Event or 11reac
1. A reasonable schedule for Contractor to provide regular updates to the foregoing in the future
for response to the Event or Breach. but no less than every three (3) business days or as otherwise
directed by System Agency, including information about risk estimations, reporting, notification,
if any, mitigation, corrective action, root cause analysis and when such activities are expected to
be completed; and
in. Any reasonably available, pertinent infonnation, documents or reports related to an Event or
Breach that System Agency requests following Discovery.
Section 4.02 Invesdgadon, Response and Mitigation. For A F below: 45 CFR 164.308, 310
and 312; 164.530
(A) Contractor will immediately conduct a full and complete investigation, respond to the
Event or Breach, commit necessary and appropriate staff and resources to expeditiously respond,
and report as required to and by System Agency for incident response purposes and for purposes
of System Agency's compliance with report and notification requirements, to the satisfaction of
System Agency.
(B) Contractor will complete or participate in a risk assessment as directed by System
Agency following an Event or Breac and provide the final assessment, corrective actions and
mitigations to System Agency for review and approval.
(C) Contractor will fully cooperate with System Agency to respond to inquiries and
proceedings by state and federal authorities, Persons and Individuals about the Event or Breach.
(D) Contractor will fully cooperate with System Agency's efforts to seek appropriate
injunctive relief or otherwise prevent or curtail such Event or Breach, or to recover or protect any
Confidential Information, including complying with reasonable corrective action or measures, as
specified by System Agency in a Corrective Action Plan if directed by System Agency under the
Base Contract.
Section 4.03 Breach Nodfhcadon to Individuals and Reporting to Authorities. Tex. Bus &
Comm. Code §521.053; 45 CFR 164.404 (Individuals),164.406 (Media); 164.408 (Authorities)
(A) System Agency may direct Contractor to provide Breach notification to Individuals,
regulators or third -parties, as specified by System Agency following a Breach.
(B) Contractor must obtain System Agency's prior written approval of the time, manner and
content of any notification to Individuals regulators or third -parties, or any notice required by
other state or federal authorities. Notice letters will be in Contractor's name and on Contractor's
letterhead, unless otherwise directed by System Agency, and will contain contact information,
including the name and title of Contractor's representative, an email address and a toll-free
telephone number, for the Individual to obtain additional information.
(C) Contractor will provide System Agency with copies of distributed and approved
communications.
(D) Contractor will have the burden of demonstrating to the satisfaction of System Agency
that any notification required by System Agency was timely made. If there are delays outside of
Contractor's control, Contractor will provide written documentation of the reasons for the delay.
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Page 8 of 11
System Agency Contract No.HHSREV100001078
(E) If System Agency delegates notice requirements to Contractor, System Agency shall, in the
time and manner reasonably requested by Contractor, cooperate and assist with Contractor's
information requests in order to make such notifications and reports.
ARTICLE 5. SCOPE OF WORK
Scope of Work means the services and deliverables to be performed or provided by Contractor, or on
behalf of Contractor by its Subcontractors or agents for System Agency that are described in detail in the
Base Contract. The Scope of Work, including any future amendments thereto, is incorporated by reference in
this DUA as if set out word-for-word herein.
ARTICLE 6. GENERAL PROVISIONS
Section 6.01 Ownership of Coufrdeutiallttformatiou
Contractor acknowledges and agrees that the Confidential Information is and will remain the
property of System Agency. Contractor agrees it acquires no title or rights to the Confidential Information.
Section 6.02 System Agency Comarianent and Obligations
System Agency will not request that Contractor create, maintain, transmit, use or disclose PHI in any
manner that would not be permissible under applicable law if done by System Agency.
Section 6.03 System Agency Riglrt to Inspectioir
At any time upon reasonable notice to Contractor, or if System Agency determines that Contractor
has violated this DUA, System Agency, directly or through its agent, will have the right to inspect the
facilities, systems, books and records of Contractor to monitor compliance with this DUA. For purposes of
this subsection, System Agency's agent(s) include, without limitation, the System Agency Office of the
Inspector General or the Office of the Attorney General of Texas, outside consultants or legal counsel or
other designee.
Section 6.01 Term; Termination of DUA; Survival
This DUA will take effect with the Base Contract, and will terminate upon termination of the Base
Contract and as set forth herein. If the Base Contract is extended or amended, this DUA is updated
automatically concurrent with such extension or amendment.
(A) System Agency may immediately terminate this DUA and Base Contract upon a material
violation of this DUA.
(B) Termination or Expiration of this DUA will not relieve Contractor of its obligation to
return or Destroy the Confidential Information as set forth in this DUA and to continue to safeguard the
Confidential Information until such time as determined by System Agency.
(D) If System Agency determines that Contractor has violated a material term of this DUA;
System Agency may in its sole discretion:
1. Exercise any of its rights including but not limited to reports, access and inspection under
this DUA or the Base Contract; or
2. Require Contractor to submit to a corrective action plan, including a plan for monitoring
and plan for reporting, as System Agency may determine necessary to maintain compliance with
this DUA; or
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Page 9 of I 1
System Agency Contract No.HHSREV100001078
3. Provide Contractor with a reasonable period to cure the violation as determined by
System Agency, or
4. Terminate the DUA and Base Contract immediately, and seek relief in a court of
competent jurisdiction in Travis County, Texas.
Before exercising any of these options, System Agency will provide written notice to Contractor
describing the violation and the action it intends to take.
(E) If neither termination nor cure is feasible, System Agency shall report the violation to the
Secretary.
(F) The duties of Contractor or its Subcontractor under this DUA survive the expiration or
termination of this DUA until all the Confidential Information is Destroyed or returned to System
Agency, as required by this DUA.
Section 6.05 Governing Law, Venue and Litigation:
(A) The validity, construction and performance of this DUA and the legal relations among the
Parties to this DUA will be governed by and construed in accordance with the laws of the State of Texas.
(B) The Parties agree that the courts of Travis County, Texas, will be the exclusive venue for
any litigation, special proceeding or other proceeding as between the parties that may be brought, or arise
out ofi or in connection with, or by reason of this DUA.
Section 6.06 li jnnctive Relief
(A) Contractor acknowledges and agrees that System Agency may suffer irreparable injury if
Contractor or its Subcontractor fails to comply with any of the terms of this DUA with respect to the
Confidential information or a provision of HEP or other laws or regulations applicable to Confidential
Information.
(B) Contractor further agrees that monetary damages may be inadequate to compensate
System Agency for Contractor's or its Subcontractor's failure to comply. Accordingly, Contractor agrees
that System Agency will, in addition to any other remedies available to it at law or in equity, be entitled to
seek injunctive relief without posting a bond and without the necessity of demonstrating actual damages,
to enforce the terms of this DUA.
Section 6.07 Indemnification
To the extent permitted by law, Contractor will indemnify, defend and hold harmless System Agency and
its respective Executive Commissioner, employees, Subcontractors,, agents (including other state agencies
acting on behalf of System Agency) or other members of its Workforce (each of the foregoing hereinafter
referred to as "Indemnified Party") against all actual and direct losses suffered by the Indemnified Party and
all liability to third parties arising from or in connection with any breach of this DUA or from any acts or
omissions related to this DUA by Contractor or its employees, directors, officers, Subcontractors, or agents or
other members of its Workforce. The duty to indemnify, defend and hold harmless is independent of the duty
to insure and continues to apply even in the event insurance coverage required, if any, in the DUA or Base
Contract is denied, or coverage rights are reserved by any insurance carrier. Upon demand, Contractor will
reimburse System Agency for any and all losses, liabilities, lost profits, fines, penalties, costs or expenses
(including reasonable attorneys' fees) which may for any reason be imposed upon any Indemnified Party by
reason of any suit, claim, action, proceeding or demand by any third party to the extent caused by and which
results from the Contractor's failure to meet any of its obligations under this DUA. To the extent permitted
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Page 10 of 11
System Agency Contract No.HHSREV100001078
by law, Contractor's obligation to defend, indemnify and hold harmless any Indemnified Party will survive
the expiration or termination of this DUA.
Section 6.08 Insurance
(A) Contractor represents and warrants that it maintains either self-insurance or commercial
insurancewith policy limits sufficient to cover any liability arising from any acts or omissions by
Contractor or its employees, directors, officers, Subcontractors, or agents or other members of its Workforce
under this DUA. Contractor warrants that System Agency will be a loss payee and beneficiary for any such
claims. .
(B) Contractor will provide System Agency with written proof that required insurance
coverage is in effect, at the request of System Agency.
Section 6.09 Fees and Costs
Except as otherwise specified in this DUA or the Base Contract, including but not limited to
requirements to insure or indemnify System Agency, if any legal action or other proceeding is brought for the
enforcement of this DUA, or because of an alleged dispute, contract violation, Ey—ent, Breach, default,
misrepresentation, or injunctive action, in connection with any of the provisions -of this DUA, each party will
bear their own Iegal expenses and the other cost incurred in that action or proceeding.
Section 6.10 Entirety of the Contract
This Data Use Agreement is incorporated by reference into the Base Contract and, together with the
Base Contract, constitutes the entire agreement between the parties. No change, waiver, or discharge of
obligations arising under those documents will be valid unless in writing and executed by the party against
whom such change, waiver, or discharge is sought to be enforced.
Section 6.11 Automatic Amendment and Interpretation
Upon the effective date of any amendment or issuance of additional regulations to HIP" or any
other law applicable to Confidential Information, this DUA will automatically be amended so that the
obligations imposed on System Agency or Contractor remain in compliance with such requirements. Any
ambiguity in this DUA will be resolved in favor of a meaning that permits System Agency and Contractor to
comply with HIPAA or any other law applicable to Confidential Information.
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Page 11 of 11
System Agency Contract No.HHSREV 100001078
ATTACHMENT 1. SUBCONTRACTOR AGREEMENT FORM
System Agency CONTRACT NUMBER HHSREV100001078
The DUA between System Agency and Contractor establishes the permitted and required uses and
disclosures of Confidential Information by Contractor.
Contractor has subcontracted with (SUBContractor) for
performance of duties on behalf of CONTACTOR which are subject to the DUA. SUBContractor
acknowledges, understands and agrees to be bound by the identical terms and conditions applicable to
Contractor under the DUA, incorporated by reference in this Agreement, with respect to System Agency
Confidential information. Contractor and SUBContractor agree that System Agency is a third -party
beneficiary to applicable provisions of the subcontract.
System Agency has the right but not the obligation to review or approve the terms and conditions of the
subcontract by virtue of this Subcontractor Agreement Form.
Contractor and SUBContractor assure System Agency that any Breach or Event as defined by the DUA
that SUBContractor Discovers will be reported to System Agency by Contractor in the time, manner and
content required by the DUA.
If Contractor knows or should have known in the exercise of reasonable diligence of a pattern of activity
or practice by SUBContractor that constitutes a material breach or violation of the DUA or the
SUBContractor's obligations Contractor will:
1. Take reasonable steps to cure the violation or end the violation, as applicable;
2. If the steps are unsuccessful, terminate the contract or arrangement with SUBContractor, if
feasible;
3. Notify System Agency immediately upon reasonably discovery of the pattern of activity or
practice of SUBContractor that constitutes a material breach or violation of the DUA and keep
System Agency reasonably and regularly informed about steps Contractor is taking to cure or
end the violation or terminate SUBCONTACTOR's contract or arrangement.
This Subcontractor Agreement Form 1s executed by the parties in their capacities indicated below.
CONTRACTOR
BY:
NAME:
TITLE:
DATE 1201 .
SUBCONTRACTOR
BY:
NAME:
TITLE:
DATE:
System Agency Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1, 2015
Attachment I
page 1 of 1