HomeMy WebLinkAboutBILLING SERVICES AGREEMENT BETWEEN EMS MANAGEMENT & CONSULTANTS, INC. AND AUGUSTA, GEORGIA BILLING SERVICES AGREEMENT
THIS BILLING SERVICES AGREEMENT (hereinafter "Agreement"), is entered into this
IrI day of July, 2018 between EMS MANAGEMENT & CONSULTANTS, INC.
(hereinafter "EMSIMC") and AUGUSTA, GEORGIA, a political subdivision of the State of
Georgia (hereinafter "Client").
WITNESSETH:
WHEREAS, EMSIMC is an ambulance billing service company with experience in
providing medical billing and collection services to medical transport providers, including
fire and rescue and emergency medical service (EMS) providers; and
WHEREAS, Client is normally engaged in the business of providing emergency
medical services, and billable medical transportation services; and
WHEREAS, Client desires to engage a qualified and experienced coding, billing,
and collections firm to furnish professional services in coding, billing, and collections for
Client pursuant to Client's RFP #18-149; and
WHEREAS, EMSIMC responded to RFP#18-149 and has represented to Augusta
that it is willing, experienced, and qualified to provide the services contained here; and
WHEREAS, Client wishes to retain EMSIMC to provide medical billing, collection
and related services as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements described below
and other good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties agree as follows:
1. ENGAGEMENT.
a. During the term of this Agreement, EMSIMC shall provide routine billing, bill
processing and fee collection services reasonably required and customary for service
providers of similar size and situation to Client (the "Revenue Cycle Management
Services" or "RCM Services"). The RCM Services shall include: (1) preparing and
submitting initial and secondary claims and bills for Client to insurers and others
responsible for payment; (2) performing reasonable and diligent routine collection efforts
to secure payments from primary and secondary payers and patients or other entities,
(as EMSIMC, in its sole discretion deems appropriate); (3) issuing up to three patient
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statements for all unpaid balances; and (4) referring accounts which have not been
collected during EMSIMC normal billing cycle to an outside collection agency if so directed
by Client.
b. Collectively, the RCM Services, any applicable Software and Hardware and
any other services that EMSIMC provides to Client shall be referred to as the "Services".
2. EMSIMC Responsibilities.
a. EMSIMC will provide the RCM Services in material compliance with all
applicable state and federal laws and regulations.
b. EMSIMC will provide assistance and guidance to Client to complete the
Medicare and Medicaid provider application process. This will include completing and
submitting the applications to Medicare and Medicaid. Client will assist and provide all
necessary information needed to ensure an accurate and timely application as well as
having the applications signed by an authorized representative of the City of Augusta.
c. EMSIMC will submit all "Completed Claims" to the applicable third-party
payer. A "Completed Claim" is a claim for emergency medical services and billable
medical transportation services that(i) is received by EMSIMC and supported by an ePCR
record that contains all necessary and accurate information; (ii) has been reviewed and
any identified issues sent to Client for remediation have been rectified; (iii) is for a patient
encounter that has been electronically signed off by Client in the ePCR; (iv) has been
reviewed by Client and deemed ready for billing; and (v) is not subject to a billing hold.
EMSIMC will not have any responsibility for any adverse impact to Client that may result
from any delay of Client in completing claims.
d. Accounts with outstanding balances after the insurance and/or third-party
payer has determined benefits due will be billed by EMSIMC to the patient. EMSIMC will
send up to three patient statements to the patient or responsible party, except as to those
accounts on which an insurance carrier or third-party payer has accepted responsibility
to pay. Once Client has submitted all necessary information, EMSIMC will bill all
uninsured patients directly.
e. Within ten (10) business days of the last business day of the month,
EMSIMC will provide to Client a month end report, which shall include an account analysis
report, aging report and accounts receivables reconciliation report for the previous month.
Deposit reports will be provided daily.
f. During the term of this Agreement, EMSIMC shall maintain, provide
appropriate storage and data back-up for all billing records pertaining to the RCM
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Services provided by EMSIMC hereunder. Upon at least five (5) business days' prior
written notice, EMSIMC shall make such records accessible to Client during EMSIMC
business hours. Upon termination of this Agreement, trip data pertaining to the RCM
Services shall be returned to Client. Notwithstanding anything to the contrary herein,
Client acknowledges and agrees that EMSIMC is not a custodian of clinical records nor a
clinical records repository. Client is responsible for maintaining all clinical records in
accordance with Section 3(d).
g. EMSIMC shall notify Client of(i)all patient complaints about clinical services
within two (2) business days of receipt; (ii) all patient complaints about billing within ten
(10) business days of receipt; and (iii) all notices of audit, requests for medical records or
other contacts or inquiries out of the normal course of business from representatives of
Medicare, Medicaid or private payers with which Client contracts or any law enforcement
or government agency ("Payer Inquiries")within ten (10) business days of receipt, unless
such agency prohibits EMSIMC from disclosing its inquiry to Client.
h. EMSIMC will reasonably assist Client in responding to Payer Inquiries which
occur in the normal course of Client's business and arise from EMSIMC's provision of the
Services. If EMSIMC, in its sole discretion, determines that (i) Client is excessively
utilizing EMSIMC's assistance in responding to Payer Inquiries, (ii) a Payer Inquiry is
outside the normal course of Client's business; or(iii) a Payer Inquiry does not arise from
the Services provided by EMSIMC, EMSIMC may charge Client, and Client shall pay, for
any assistance provided by EMSIMC at EMSIMC's then current hourly rates. Billing will
not begin until EMSIMC has provided Client with five (5) business days written notice of
the issue described in (i)-(iii) above and an opportunity to correct.
i. EMSIMC is appointed as the agent of Client under this Agreement solely for
the express purposes of this Agreement relating to billing and receiving payments and
mail, receiving and storing documents, and communicating with hospitals and other
entities to facilitate its duties. EMSIMC will have no authority to pledge credit, contract,
or otherwise act on behalf of Client except as expressly set forth herein.
j. As to all payments received from Medicare, Medicaid and other government
funded programs, the parties specifically acknowledge that EMSIMC will only prepare
claims for Client and will not negotiate checks payable or divert electronic fund transfers
to Client from Medicare, Medicaid or any other government funded program.All Medicare,
Medicaid and any other government funded program payments, including all electronic
fund transfers, will be deposited directly into a bank account designated by Client to
receive such payments and as to such account only Client, through its officers and
directors, shall have access.
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k. The Services provided by EMSIMC to Client under this Agreement are
conditioned on Client's fulfillment of the responsibilities set forth in this Agreement.
I. EMSIMC shall have no responsibility to provide any of the following
services:
i. Determining the accuracy or truthfulness of documentation and
information provided by Client;
ii. Providing services outside the EMSIMC billing system;
iii. Submitting any claim that EMSIMC believes to be inaccurate or
fraudulent; or
iv. Providing any service not expressly required of EMSIMC by this
Agreement.
m. For Client's service dates that occurred prior to the mutually agreed go live
date for the Services, Client agrees and understands that EMSIMC is not responsible for
any services including, but not limited to, submitting claims or managing any denials,
refunds or patient calls. As between Client and EMSIMC, Client is fully responsible for
the proper billing and accounting of any remaining balances related to service dates that
occurred prior to such go live date.
3. RESPONSIBILITIES OF CLIENT. The following responsibilities of Client
are a condition of EMSIMC's services under this Agreement, and EMSIMC shall have no
obligation to provide the Services to the extent that Client has not fulfilled these
responsibilities:
a. Client will pay all amounts owed to EMSIMC under this Agreement.
b. Client will implement standard commercially reasonable actions and
processes as may be requested by EMSIMC from time-to-time to allow EMSIMC to
properly and efficiently provide the RCM Services. These actions and processes include,
but are not limited to, the following:
i. Providing EMSIMC with complete and accurate demographic and
charge information necessary for the processing of professional and/or
technical component billing to third parties and/or patients including,
without limitation, the following: patient identification (name, address,
phone number, birth date, gender); guarantor identification and address;
insurance information; report of services; special claim forms; pre-
authorization numbers; and such additional information as is requested
by EMSIMC;
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ii. Providing EMSIMC with complete and accurate medical record
documentation for each incident or patient service rendered for
reimbursement, which is necessary to ensure proper billing and secure
claim payment;
iii. Providing EMSIMC, in a timely manner, with Patient Care Reports
(PCRs) that thoroughly detail the patient's full medical condition at the
time of service and include a chronological narrative of all services and
treatment rendered;
iv. Obtaining authorizations and signatures on all required forms, including
consent to treat, assignment of benefits, release of information and
claims;
v. Obtaining physician certification statements (PCS) forms for all non-
emergency transports and other similar medical necessity forms or prior
authorization statements as deemed necessary by the payer;
vi. Obtaining or executing all forms or documentation required by Medicare,
Medicaid, CHAMPUS, and any other payer or insurance carriers to allow
EMSIMC to carry out its billing and other duties under this Agreement;
and
vii. Implementing reasonable and customary charges for complete,
compliant billing.
c. Client represents and warrants that the PCR and any and all associated
medical records, forms and certification statements provided to EMSIMC are true and
accurate and contain only factual information observed and documented by the attending
field technician during the course of the treatment and transport.
d. Client shall maintain Client's own files with all original or source documents,
as required by law, and only provide to EMSIMC copies of such documents. Client
acknowledges that EMSIMC is not the agent of Client for storage of source
documentation.
e. Client will provide EMSIMC with a copy of any existing billing policy manuals
or guidelines, Medicare or Medicaid reports, or any other record or document related to
services or billing of Client's accounts.
f. Client will report to EMSIMC within ten (10) business days of payments
received directly by Client, and promptly notify EMSIMC of any cases requiring special
handling or billing. Client shall advise EMSIMC of any Payer Inquiries within ten (10)
business days of receipt.
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g. Client shall ensure that any refunds posted by EMSIMC are actually issued
and paid to the patient, insurer, or other payer as appropriate.
h. Client agrees to provide EMSIMC with administrative access to the ePCR
system or similar access in order to run reports and review documents and attachments
to better service Client's account.
i. Client shall provide EMSIMC with access to its facilities and personnel for
the purpose of providing on-site and/or online training to such personnel. Client shall
cooperate with EMSIMC and facilitate any training that EMSIMC wishes to provide.
j. Client shall complete EMSIMC's online training course within 90 days of the
contract start date and all new hires will complete EMSIMC's online documentation
training within 90 days of hire date. Newly developed training materials by EMSIMC
should be mutually agreed upon by the parties to be required training.
k. Client shall comply with all applicable federal, state, and local laws, rules,
regulations, and other legal requirements that in any way affect this Agreement or the
duties and responsibilities of the parties hereunder.
4. EMSIMC WEB PORTALS.
a. EMSIMC shall provide Client and those individuals appointed by Client
("Users") with access to EMSIMC Web Portals (the "Portals"), which shall be subject to
the applicable Terms of Use found on the Portals. To be appointed as a User, the
individual must be an employee of Client or otherwise approved by Client and EMSIMC.
Client is responsible for all activity of Users and others accessing or using the Portals
through or on behalf of Client including, but not limited to, ensuring that Users do not
share credentials for accessing the Portals. Client is also responsible for (i) identifying
individuals who Client determines should be Users; (ii)determining and notifying EMSIMC
of each User's rights; (iii) monitoring Users' access to and use of the Portals; (iv) acting
upon any suspected or unauthorized access of information through the Portals; (v)
ensuring each User's compliance with this Agreement and the Terms of Use governing
the use of the Portals; and (vi) notifying EMSIMC to deactivate a User account whenever
a User's employment, contract or affiliation with Client is terminated or Client otherwise
desires to suspend or curtail a User's access to and use of the Portals. Client agrees to
follow best practices to ensure compliance with this provision.
b. Client acknowledges that EMSIMC may suspend or terminate any User's
access to the Portals (i) for noncompliance with this Agreement or the applicable Terms
of Use; (ii) if such User poses a threat to the security or integrity of the Portals or
information available therein; (iii) upon termination of Client; or (iv) upon notice of
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suspension or termination of such Userby Client. Client may suspend or terminate a
User's access to the Portals at any time.
5. COMPENSATION OF EMSJMC.
a. Client shall pay a fee for the Services of EMSIMC hereunder, on a monthly
basis, in an amount equal to 5.75% percent of "Net Collections" as defined below (the
"RCM Fee"). Net Collections shall mean all cash and check amounts including electronic
fund transfers (EFTs) received by EMSIMC from payers, patients, attorney's offices, court
settlements, collection agencies, government institutions, debt set-off programs, group
health insurance plans, private payments, credit cards, healthcare facilities or any person
or entity submitting funds on a patient's account, or any amounts paid directly to Client
with or without the knowledge of EMSIMC that are paid, tendered, received or collected
each month for Client's transports, less refunds processed or any other necessary
adjustments to those amounts. Price adjustments for such services shall be allowed at
the completion of each contract year. Price adjustments shall not exceed the change in
the average of the Consumer Price Index (CPI) for Southeast Urban Consumers, Not
Seasonally Adjusted, Area: U.S. city average, Item: All item, Base Period: 1982-84=100
over the twelve months prior.
b. Client shall also pay any fees associated with the Hardware or Software as
set forth in the applicable Exhibit (the "Hardware Fee" and "Software Fee", respectively).
Together, the RCM Fee, the Hardware Fee and the Software Fee are referred to as the
"Compensation".
c. EMSIMC shall submit an invoice to Client by the tenth (10th) day of each
month for the Compensation due to EMSIMC for the previous calendar month. The
Compensation amount reflected on the invoice shall be paid in full by the 20th day of the
month in which the invoice is first presented to Client (the "Payment Date"). Such amount
shall be paid without offset unless the calculation of the amount is disputed in good faith,
in which case Client shall pay the undisputed amount and shall provide EMSIMC with
detailed written notice of the basis for the disputed portion no later than the Payment
Date. Any invoices not disputed in writing by the Payment Date shall be deemed
"undisputed" for all purposes of the Agreement. All invoices are to be paid directly from
Client's banking institution to EMSIMC via paper check, direct deposit or ACH draft
initiated by EMSIMC into EMSIMC's bank account.
d. In the event of a material change to applicable law, the billing process
and/or scope of Services provided in this Agreement or a material difference in any of the
patient demographics provided by the Client and set forth in Exhibit A, EMSIMC reserves
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the right to negotiate a fee change with Client and amend this Agreement accordingly or
terminate this Agreement.
e. EMSIMC may, in its sole discretion, immediately cease to provide Services
for Client should the outstanding balance owed to EMSIMC become in arrears. Claims
processing will not resume until all outstanding balances are paid in full or arrangements
approved by EMSIMC have been made to wholly resolve any outstanding balances.
6. TERM OF AGREEMENT.
a. This Agreement shall be effective commencing on July 1, 2018 and shall
thereafter continue through June 30, 2020 ("Initial Term"). This Agreement shall be
binding upon the parties hereto and their respective successors, assigns, and
transferees. The Agreement shall have the option to automatically renew on the same
terms and conditions as stated herein, for three (3) successive one (1) year terms (each
a "Renewal Term"), unless either party gives written notice of intent not to renew at least
90 days before expiration of any term. Notwithstanding anything herein to the contrary,
this Agreement may be terminated under the provisions provided below. (The Initial Term
and any Renewal Terms are referred to as the "Term")
b. Termination for Cause. Notwithstanding Section 6(a), either party may
terminate this Agreement if the other party materially breaches this Agreement, unless (i)
the breaching party cures the breach within 10 days following receipt of notice describing
the breach in reasonable detail, or (ii) with respect to a breach which may not reasonably
be cured within a 10-day period, the breaching party commences, is diligently pursuing
cure of, and cures the breach as soon as practical following receipt of notice describing
the breach in reasonable detail.
c. Immediate Termination. Either party may terminate this Agreement
immediately as a result of the following:
i. Failure of Client to make timely payments due under this Agreement;
ii. Injury to any customer, independent contractor, employee or agent of
the other party hereto arising from the gross negligence or willful
misconduct of a party;
iii. Harassment of any employee or contractor of a party or commitment of
any act by a party which creates an offensive work environment; or
iv. Commitment of any unethical or immoral act which harms the other party
or could have the effect of harming the other party.
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d. Termination for Convenience. Either party may terminate this Agreement
for convenience without further obligation upon giving the other party ninety (90) days
written notice before the effective date of the termination.
7. RESPONSIBILITIES UPON TERMINATION.
a. Subject to Client's payment of all amounts due hereunder, upon any
termination of this Agreement, and during the period of any notice of termination, EMSIMC
will make available to Client or its authorized representatives data from the billing system
regarding open accounts in an electronic format, and will otherwise reasonably cooperate
and assist in any transition of the Services to Client, or its successor billing agent. Upon
request, EMSIMC will provide to Client trip data associated with the claims submitted by
EMSIMC on behalf of Client pursuant to this Agreement. EMSIMC shall retain financial
and billing records not tendered or returned to Client on termination hereof for at least ten
(10) years following the date of service.
b. Following termination of this Agreement, for a period of ninety(90)days (the
"Wind Down"), EMSIMC will continue its billing and collection efforts as to those accounts
with dates of services prior to termination, subject to the terms and conditions of this
Agreement including, but not limited to, Section 5. Client will continue to provide EMSIMC
with copies of checks and payments on those accounts which were filed by EMSIMC
under this Agreement. EMSIMC shall have no further responsibilities as to such accounts
after the Wind Down; however, EMSIMC shall be entitled to compensation as provided in
Section 5(a)for such amounts filed by EMSIMC, regardless of whether such amounts are
collected by Client during or after the Wind Down period. During the Wind Down and for
up to twelve months following termination of this Agreement, EMSIMC shall continue to
make the Portals available to Client, subject the applicable Terms of Use.
Notwithstanding the foregoing, in the event EMSIMC terminated this Agreement pursuant
to Sections 6(b) or 6(c), EMSIMC shall have no obligation to provide any Services after
the date of termination.
8. EXCLUSIVITY AND MISCELLANEOUS BILLING POLICIES.
a. During the term of this Agreement, EMSIMC shall be Client's exclusive
provider of the RCM Services. Client may not directly file, submit or invoice for any
medical or medical transportation services rendered while this Agreement is in effect.
b. In addition, Client agrees not to collect or accept payment for services from
any patient unless the service requested does not meet coverage requirements under
any insurance program in which the patient is enrolled or the patient is uninsured.
Payments received directly by Client for these services must be reported to EMSIMC as
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provided in Section 3(f) hereof and shall be treated as Net Collections for purposes of
Section 5(a) hereof.
c. In compliance with CMS regulations, Medicare patients will not be charged
by Client a higher rate or amount for identical covered services charged to other insurers
or patients. Accordingly, only one fee schedule shall exist and be used in determining
charges for all patients regardless of insurance coverage.
d. EMSIMC reserves the right not to submit a claim for reimbursement on any
patient in which the PCR and/or associated medical records are incomplete or appear to
be inaccurate or do not contain enough information to substantiate or justify
reimbursement. This includes missing patient demographic information, insurance
information, Physician Certification Statements (PCS)or any required crew and/or patient
signatures, or otherwise contradictory medical information.
e. Client shall implement and maintain a working compliance plan
("Compliance Plan") in accordance with the most current guidelines of the U.S.
Department of Health and Human Services ("HHS"). The Compliance Plan must include,
but not be limited to, formal written policies and procedures and standards of conduct,
designation of a compliance officer, quality assurance policy and effective training and
education programs.
f. In accordance with the HHS Office of Inspector General ("OIG")Compliance
Program Guidance for Third-Party Medical Billing Companies, EMSIMC is
obligated to report misconduct to the government, if EMSIMC discovers credible evidence
of Client's continued misconduct or flagrant, fraudulent or abusive conduct. In the event
of such evidence, EMSIMC has the right to (a) refrain from submitting any false or
inappropriate claims, (b) terminate this Agreement and/or(c) report the misconduct to the
appropriate authorities.
9. NON-INTERFERENCE/NON-SOLICITATION OF EMSIMC EMPLOYEES.
Client understands and agrees that the relationship between EMSIMC and each of its
employees constitutes a valuable asset of EMSIMC. Accordingly, Client agrees that both
during the term of this Agreement and for a period beginning on the date of termination
of this Agreement, whatever the reason, and ending three (3) years after the date of
termination of this Agreement (the "Restricted Period"), Client shall not, without
EMSIMC's prior written consent, directly or indirectly, solicit or recruit for employment or
attempt to solicit or recruit for employment EMSIMC's current employees with whom
Client had material contact during the term of this Agreement, in any position where Client
would receive from such employees the same or similar services that EMSIMC performed
for Client during the term of this Agreement. Client also agrees during the Restricted
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Period not to unlawfully urge, encourage, induce, or attempt to urge, encourage, or induce
any employee of EMSIMC to terminate his or her employment with EMSIMC. Client has
carefully read and considered the provisions of Section 9 hereof, and having done so,
agrees that the restrictions set forth in such section (including, but not limited to, the time
period) are fair and reasonable and are reasonably required for the protection of the
legitimate interests of EMSIMC, its officers, directors, shareholders, and employees.
10.PRIVACY.
a. Confidentiality. The Parties acknowledge that they will each provide to the
other Confidential Information as part of carrying out the terms of this Agreement.
EMSIMC and Client will be both a Receiving Party and a Disclosing Party at different
times. The Receiving Party agrees that it will not(i) use any such Confidential Information
in any way, except for the exercise of its rights and performance of its obligations under
this Agreement, or (ii) disclose any such Confidential Information to any third party, other
than furnishing such Confidential Information to its employees, consultants, and
subcontractors, who are subject to the safeguards and confidentiality obligations
contained in this Agreement and who require access to the Confidential Information in the
performance of the obligations under this Agreement. In the event that the Receiving
Party is required by applicable law to make any disclosure of any of the Disclosing Party's
Confidential Information, by subpoena, judicial or administrative order or otherwise, the
Receiving Party will first give written notice of such requirement to the Disclosing Party,
and will permit the Disclosing Party to intervene in any relevant proceedings to protect its
interests in the Confidential Information, and provide full cooperation and assistance to
the Disclosing Party in seeking to obtain such protection, at the Disclosing Party's sole
expense. "Confidential Information" means the provisions of the Agreement (including,
but not limited to, the financial terms herein)and any information disclosed by a Party(the
"Disclosing Party") to the other Party (the "Receiving Party"). Information will not be
deemed Confidential Information hereunder if the Receiving Party can prove by
documentary evidence that such information: (a) was known to the Receiving Party prior
to receipt from the Disclosing Party directly or indirectly from a source other than one
having an obligation of confidentiality to the Disclosing Party; (b) becomes known
(independently of disclosure by the Disclosing Party) to the Receiving Party directly or
indirectly from a source other than one having an obligation of confidentiality to the
Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or
confidential, except through a breach of this Agreement by the Receiving Party; or (d) is
independently developed by the Receiving Party without the use of any Confidential
Information of the Disclosing Party.
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b. HIPAA Compliance. The parties agree to comply with the Business
Associate Addendum, attached hereto and incorporated by reference herein as
Attachment 1, documenting the assurances and other requirements respecting the use
and disclosure of Protected Health Information. It is Client's responsibility to ensure that
it obtains all appropriate and necessary authorizations and consents to use or disclose
any individually identifiable health information in compliance with all federal and state
privacy laws, rules and regulations, including but not limited to the Health Insurance
Portability and Accountability Act. In the event that this Agreement is, or activities
permitted or required by this Agreement are, inconsistent with or do not satisfy the
requirements of any applicable privacy or security law, rule or regulation, the parties shall
take any reasonably necessary action to remedy such inconsistency.
11.DISCLAIMERS, LIMITATIONS OF LIABILITY AND DISPUTE RESOLUTION
a. Each Party acknowledges that the liability limitations and warranty
disclaimers in the Agreement are independent of any remedies hereunder and shall apply
regardless of whether any remedy fails of its essential purpose. Client acknowledges that
the limitations of liability set forth in this Agreement are integral to the amount of
consideration offered and charged in connection with the Services and that, were
EMSIMC to assume any further liability other than as provided in the Agreement, such
consideration would of necessity be set substantially higher.
b. EMSIMC and Client acknowledge and agree that despite their best efforts,
billing errors may occur from time to time. Each party will promptly notify the other party
of the discovery of a billing error. EMSIMC's obligation in the event of a billing error will
be to correct the error by making appropriate changes to the information in its system,
posting a refund if appropriate, and re-billing the underlying claim if permissible.
c. A "Claim" is defined as any claim or other matter in dispute between
EMSIMC and Client that arises from or relates in any way to this Agreement or to the
Services, hardware, software, or data provided by EMSIMC hereunder, regardless of
whether such claim or matter is denominated as a contract claim, tort claim, warranty
claim, indemnity claim, statutory claim, arbitration demand, or otherwise.
d. To the fullest extent allowed by law, the total liability of EMSIMC to Client
regarding any and all Claims shall be capped at, and shall in no event exceed, the total
fees paid by Client to EMSIMC under this Agreement in the twelve (12) months prior to
the event giving rise to the Claim (the "Liability Cap"). All amounts that may be potentially
awarded against EMSIMC in connection with a Claim are included in and subject to the
Liability Cap, and shall not cause the Liability Cap to be exceeded, including, without
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limitation, all direct compensatory damages, interest, costs, expenses, and attorneys'
fees. Provided, however, that nothing in the foregoing shall be construed as an admission
of liability by EMSIMC in any amount or as a waiver or compromise of any other defense
that may be available to EMSIMC regarding any Claim.
e. To the fullest extent allowed by law, and notwithstanding any statute of
limitations, statute of repose, or other legal time limit to the contrary, no Claim shall be
brought by Client against EMSIMC after the earlier of the following to occur (the "Claim
Time Limit"): (i)the time period for bringing an action under any applicable state or federal
statute of limitations or (ii) one (1) year after the date upon which Client discovered, or
should have discovered, the facts giving rise to an alleged claim. Any Claim not brought
within the Claim Time Limit is waived. The Claim Time Limit applies, without limitation,
to any Claim brought in arbitration under the arbitration clause below, and shall be
deemed to have been satisfied if an arbitration demand asserting such Claim is received
by the American Arbitration Association (or other arbitration administrator as may be
mutually agreed on by EMSIMC and Client)within the Claim Time Limit. Notwithstanding
the foregoing, if a Claim has been asserted in arbitration within the Claim Time Limit, a
proceeding in court to confirm, enforce, vacate, modify, correct, or amend an arbitration
award resulting from such arbitration may be brought outside the Claim Time Limit as
long as it is brought within the time period required by applicable law.
f. TO THE FULLEST EXTENT ALLOWED BY LAW, EMSIMC AND CLIENT
WAIVE CLAIMS AGAINST EACH OTHER FOR CONSEQUENTIAL, INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, AND TREBLE DAMAGES, AND
FOR ANY OTHER DAMAGES IN EXCESS OF DIRECT, COMPENSATORY DAMAGES
INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, OR LOSS
OF BUSINESS, REGARDLESS OF WHETHER SUCH CLAIM OR MATTER IS
DENOMINATED AS A CONTRACT CLAIM, TORT CLAIM, WARRANTY CLAIM,
INDEMNITY CLAIM, STATUTORY CLAIM, ARBITRATION DEMAND, OR
OTHERWISE, EVEN IF A PARTY HAS BEEN APPRISED OF THE POSSIBILITY OR
LIKELIHOOD OF SUCH DAMAGES OCCURRING (the "Non-Direct Damages Waiver").
g. Subject to the Liability Cap, the Claim Time Limit and the Non-Direct
Damages Waiver, EMSIMC agrees to indemnify, hold harmless, and defend Client, with
reasonably acceptable counsel, from and against any fines, penalties, damages, and
judgments that Client becomes legally obligated to pay to a third party proximately caused
by EMSIMC's negligence or misconduct. Provided, however, that this indemnity is subject
to the following further conditions and limitations: (i) Client must provide prompt written
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notice to EMSIMC of the matter for which indemnity is or may be sought, within such time
that no right of EMSIMC is prejudiced, and in no event no later than thirty (30) days after
Client first becomes aware of the facts that give rise or may give rise to a right of
indemnity; (ii) Client must allow EMSIMC the opportunity to direct and control the defense
and handling of the matter for which indemnity is or may be sought; (iii) Client must not
agree to any settlement or other voluntary resolution of a matter for which indemnity is or
may be sought without EMSIMC's express consent; and (iv) Client shall not seek or be
entitled to indemnify for amounts that Client reimburses or refunds to Medicaid, Medicare,
any governmental entity, any insurer, or any other payer as a result of medical services
or medical transportation services for which Client should not have received payment in
the first place under applicable rules, regulations, standards and policies. Client waives
all rights of indemnity against EMSIMC not in accordance with this subsection.
h. The Liability Cap and the Claim Time Limit do not apply to claims alleging
gross negligence or willful misconduct.
i. All Claims between EMSIMC and Client shall be resolved by binding
arbitration under the Commercial Arbitration Rules of the American Arbitration
Association then in effect, except that either party may, at that party's option, seek
appropriate equitable relief in any court having jurisdiction. The hearing in such arbitration
proceeding shall take place in Augusta, Georgia, or in such other location as may be
mutually agreed on by EMSIMC and Client. The arbitrator in such proceeding, or if more
than one arbitrator, each arbitrator, shall be an attorney with at least fifteen (15) years of
experience in commercial litigation or in health care law. The arbitrator(s) shall have no
authority to enter an award against EMSIMC that: (i) exceeds the Liability Cap; (ii) is
based on a Claim brought after the Claim Time Limit; (iii) includes any damages waived
by the Non-Direct Damages Waiver; or (iv) is otherwise in contravention of this
Agreement. An award entered by the arbitrator(s) shall be enforceable in the United
States District Court for the Southern District of Georgia or in any other court having
jurisdiction.
12.GENERAL.
a. Status of Parties. Nothing contained in this Agreement shall be construed
as establishing a partnership or joint venture relationship between EMSIMC and Client,
or as establishing an agency relationship beyond EMSIMC's service as a billing and
collection agent of Client under the express terms of this Agreement. EMSIMC and its
employees and representatives shall have no legal authority to bind Client.
b. Assignment. Neither this Agreement nor any rights or obligations hereunder
shall be assigned by either party without prior written consent of the other party, except
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31822782v9
that this Agreement may be assigned without consent to the survivor in any merger or
other business combination including either party, or to the purchaser of all or
substantially all of the assets of either party.
c. Binding Effect. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors, assigns (where permitted), and
transferees.
d. Notices. All notices required or permitted by this Agreement shall be in
writing and shall be deemed to have been given: (i) on the day received, if personally
delivered; (ii) on the day received if sent by a recognized overnight delivery service,
according to the courier's record of delivery; and (iii) on the 5th (fifth) calendar day after
the date mailed by certified or registered mail. Such notices shall be addressed as
follows:
Client:
Augusta, Georgia Fire Department
Fire Chief
3117 Deans Bridge Road
Augusta, GA 30906
With copy to:
Augusta, Georgia Law Department
General Counsel
535 Telfair Street, Building 3000
Augusta, Georgia 30901
EMSIMC:
EMS Management & Consultants, Inc.
Chief Executive Officer
2540 Empire Drive
Suite 100
Winston-Salem, NC 27103
Either party may change its address for notices under this Agreement by giving
written notice of such change to the other party in accordance with the terms of this
section.
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31822782v9
e. Governing Law and Venue. This Agreement and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by the laws
of the State of Georgia, notwithstanding any conflicts of law rules to the contrary. All
claims, disputes, and other matters in question between Client and EMSIMC arising out
of or relating to the Agreement, or the breach thereof, that are not otherwise decided by
the dispute resolution methods contained herein, shall be decided in the Superior Court
of Richmond County, Georgia or the United States District Court for the Southern District
of Georgia, Augusta Division. EMSJMC, by executing this Agreement, specifically
consents to jurisdiction and venue in Richmond County and waives any right to contest
the jurisdiction and venue in Richmond County, Georgia.
f. Integration of Terms. This instrument together with all attachments, exhibits
and schedules constitutes the entire agreement between the parties, and supersedes all
prior negotiations, commitments, representations and undertakings of the parties with
respect to its subject matter. RFP #18-149 and EMSIMC's response thereto are hereby
incorporated as though fully stated herein and are part of this instrument. Priority of
documents shall be: (1) this Agreement, (2) RFP #18-149, and (3) EMSIMC's response
to RFP #18-149.
g. Amendment and Waiver. This Agreement may be amended or modified only
by an instrument signed by all of the parties. A waiver of any provision of this Agreement
must be in writing, designated as such, and signed by the party against whom
enforcement of the waiver is sought. The waiver of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent or other
breach thereof.
h. Severability. If any provision of this Agreement shall not be valid for any
reason, such provision shall be entirely severable from, and shall have no effect upon,
the remainder of this Agreement. Any such invalid provision shall be subject to partial
enforcement to the extent necessary to protect the interest of the parties hereto.
i. Force Majeure. With the exception of Client's payment obligation, a Party
will not be in breach or liable for any delay of its performance of this Agreement caused
by natural disasters or other unexpected or unusual circumstances reasonably beyond
its control.
j. Third Party Beneficiaries. There are no third-party beneficiaries to this
Agreement.
k. Counterparts. This Agreement may be executed in multiple counterparts
by a duly authorized representative of each party.
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31822782v9
I. Survival. All terms which by their nature survive termination shall survive
termination or expiration of the Agreement including, but not limited to, Sections 3(c), 3(f)
— (h), 5(a), 5(c), 7, 9 — 12.
m. Prohibition Against Contingent Fees. EMSIMC warrants that no person or
selling agency has been employed or retained to solicit or secure this Agreement upon
an agreement or understanding for a commission, percentage, brokerage, or contingent
fee, excepting bona fide employees or bona fide established commercial or selling
agencies maintained by EMSIMC for the purpose of securing business and that EMSIMC
has not received any non-Client fee related to this Agreement without prior written
consent of Client. For breach or violation of this warranty, Client shall have the right to
annul this Agreement without liability or at its discretion deduct from the Compensation
the full amount of such commission, percentage, brokerage, or contingent fee.
n. Temporary Suspension or Delay of Performance of Contract. To the extent
that it does not alter the scope of this Agreement, Client may unilaterally order a
temporary stopping of the work or delay of the work to be performed by EMSIMC under
this Agreement.
o. EMSIMC Insurance. EMSIMC shall at all times that this Agreement is in
effect, caused to be maintained in force and effect an insurance policy(s) that will ensure
and indemnify Augusta against liability or financial loss resulting from injuries occurring
to persons or property or occurring as a result of any negligent error, act, or omission of
EMSIMC in performance of the work during the term of this Agreement. EMSIMC shall
provide, at all times that this Agreement is in effect, insurance with limits of not less than:
i. Workmen's Compensation Insurance: in accordance with the State of
North Carolina;
ii. Professional Liability Insurance: in an amount of not less than One Million
($1,000,000) Dollars or an amount that correlates to the aggregate fee on
the project should it exceed $1,000,000.
All policies of insurance required under this Paragraph will provide that they may not be
canceled nor the coverage materially changed without thirty (30) days prior written notice
to Client.
p. Modification or amendment. EMSIMC acknowledges that this contract and
any changes to it by amendment, modification, change order or other similar document
may have required or may require the legislative authorization of the Board of
Commissioners and signature of the Mayor. Under Georgia law, EMSIMC is deemed to
possess knowledge concerning Augusta, Georgia's ability to assume contractual
17
31822782v9
obligations and the consequences of EMSIMC's provision of goods or services to
Augusta, Georgia under an unauthorized contract, amendment, modification, change
order or other similar document, including the possibility that the EMSIMC may be
precluded from recovering payment for such unauthorized goods or services.
Accordingly, EMSIMC agrees that if it provides goods or services to Augusta, Georgia
under a contract that has not received proper legislative authorization or if the EMSIMC
provides goods or services to Augusta, Georgia in excess of the any contractually
authorized goods or services, as required by Augusta, Georgia's Charter and Code,
Augusta, Georgia may withhold payment for any unauthorized goods or services provided
by EMSIMC. EMSIMC assumes all risk of non-payment for the provision of any
unauthorizedgoods or services to Augusta, Georgia, and it waives all claims to payment
or to other remedies for the provision of any unauthorized goods or services to Augusta,
Georgia, however characterized, including, without limitation, all remedies at law or
equity.
q. Local Small Business Program. In accordance with Chapter 10B of the
Augusta, GA. Code, EMSIMC agree to collect and maintain all records necessary to for
Augusta, Georgia to evaluate the effectiveness of its Local Small Business Opportunity
Program and to make such records available to Augusta, Georgia upon request. The
requirements of the Local Small Business Opportunity Program can be found at
www.auqustaga.gov. In accordance with AUGUSTA, GA. CODE, EMSIMC shall report
to Augusta, Georgia the total dollars paid to each subcontractor, vendor, or other business
on each contract, and shall provide such payment affidavits, regarding payment to
subcontractors, if any, as required by Augusta, Georgia. Such utilization reports shall be
in the format specified by the Director of Minority and Small Business Opportunities, and
shall be submitted at such times as required by Augusta, Georgia. Required forms can
be found at www.auqustaqa.gov. If you need assistance completing a form or filing
information, please contact the Local Small Business Opportunity Program Office at
(706)821-2406. Failure to provide such reports within the time period specified by
Augusta, Georgia shall entitle Augusta, Georgia to exercise any of the remedies set forth,
including but not limited to, withholding payment from the contractor and/or collecting
liquidated damages.
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31822782v9
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed on the later of the dates set forth below.
Each person whose signature appears hereon represents, warrants and guarantees that
he/she has been duly authorized and has full authority to execute this Agreement on
behalf of the party on whose behalf this Agreement is executed.
EMSIMC: CLIENT:
EMS Management & Consultants, Inc. Augusta, Georgia
By
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Print Name: Hardie Davis, Jr.
Title: CI`U Title: Mayor
Date: 7 I )(f Date:
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31822782v9
Exhibit A
Patient Demographics Provided by Client
1. Projected annual billable trip volume: 3,000
2. Payor mix:
Medicare —44.05%
Medicaid — 13.18%
Insurance — 19.72%
Self-Pay— 23.03%
3. Run mix:
ALS-E — 59.90%
BLS-E — 39.0%
ALS2 — 1.10%
4. Loaded mileage: 6.0
20
31822782v9
Attachment 1
Business Associate Addendum
This Business Associate Addendum(the "Addendum") is made effective the day of April 2018, by
and between City of Augusta hereinafter referred to as "Covered Entity," and EMS Management &
Consultants, Inc.,hereinafter referred to as "Business Associate"(individually, a"Party"and collectively,
the"Parties").
WITNESSETH:
WHEREAS, the Parties wish to enter into a Business Associate Addendum to ensure compliance
with the Privacy and Security Rules of the Health Insurance Portability and Accountability Act of 1996
("HIPAA Privacy and Security Rules") (45 C.F.R. Parts 160 and 164); and
WHEREAS, the Health Information Technology for Economic and Clinical Health ("HITECH")
Act of the American Recovery and Reinvestment Act of 2009,Pub.L. 111-5,modified the HIPAA Privacy
and Security Rules (hereinafter, all references to the "HIPAA Privacy and Security Rules" include all
amendments thereto set forth in the HITECH Act and any accompanying regulations); and
WHEREAS, the Parties have entered into a Billing Services Agreement (the "Agreement")
whereby Business Associate will provide certain services to Covered Entity and, pursuant to such
Agreement, Business Associate may be considered a"business associate"of Covered Entity as defined in
the HIPAA Privacy and Security Rules; and
WHEREAS, Business Associate may have access to Protected Health Information or Electronic
Protected Health Information(as defined below)in fulfilling its responsibilities under the Agreement; and
WHEREAS, Covered Entity wishes to comply with the HIPAA Privacy and Security Rules, and
Business Associate wishes to honor its obligations as a Business Associate to Covered Entity.
THEREFORE, in consideration of the Parties' continuing obligations under the Agreement, and for other
good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, the Parties
agree to the provisions of this Addendum.
L DEFINITIONS
Except as otherwise defined herein, any and all capitalized terms in this Addendum shall have the
definitions set forth in the HIPAA Privacy and Security Rules. In the event of an inconsistency between the
provisions of this Addendum and mandatory provisions of the HIPAA Privacy and Security Rules, as
amended, the HIPAA Privacy and Security Rules in effect at the time shall control. Where provisions of
this Addendum are different than those mandated by the HIPAA Privacy and Security Rules, but are
nonetheless permitted by the HIPAA Privacy and Security Rules, the provisions of this Addendum shall
control.
The term "Breach" means the unauthorized acquisition, access, use, or disclosure of protected health
information which compromises the security or privacy of such information,except where an unauthorized
person to whom such information is disclosed would not reasonably have been able to retain such
information. The term "Breach" does not include: (1) any unintentional acquisition, access, or use of
protected health information by any employee or individual acting under the authority of a covered entity
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31822782v9
or business associate if(a) such acquisition, access, or use was made in good faith and within the course
and scope of the employment or other professional relationship of such employee or individual,
respectively,with the covered entity or business associate,and(b)such information is not further acquired,
accessed, used, or disclosed by any person; or (2) any inadvertent disclosure from an individual who is
otherwise authorized to access protected health information at a facility operated by a covered entity or
business associate to another similarly situated individual at same facility; and (3) any such information
received as a result of such disclosure is not further acquired, accessed, used, or disclosed without
authorization by any person.
The term "Electronic Health Record" means an electronic record of health-related information on an
individual that is created,gathered,managed,and consulted by authorized health care clinicians and staff.
The term"HIPAA Privacy and Security Rules"refers to 45 C.F.R. Parts 160 and 164 as currently in effect
or hereafter amended.
The term"Protected Health Information"means individually identifiable health information as defined in
45 C.F.R § 160.103, limited to the information Business Associate receives from, or creates, maintains,
transmits, or receives on behalf of, Covered Entity.
The term "Electronic Protected Health Information" means Protected Health Information which is
transmitted by or maintained in Electronic Media(as now or hereafter defined in the HIPAA Privacy and
Security Rules).
The term"Secretary"means the Secretary of the Department of Health and Human Services.
The term "Unsecured Protected Health Information" means Protected Health Information that is not
rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a
technology or methodology specified by the Secretary in guidance published in the Federal Register at 74
Fed. Reg. 19006 on April 27, 2009 and in annual guidance published thereafter.
II. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE
a. Business Associate may use or disclose Protected Health Information to perform functions,
activities,or services for,or on behalf of,Covered Entity as specified in the Agreement or this Addendum,
provided that such use or disclosure would not violate the HIPAA Privacy and Security Rules if done by
Covered Entity.Until such time as the Secretary issues regulations pursuant to the HITECH Act specifying
what constitutes "minimum necessary" for purposes of the HIPAA Privacy and Security Rules, Business
Associate shall, to the extent practicable, disclose only Protected Health Information that is contained in a
limited data set(as defined in Section 164.514(e)(2)of the HIPAA Privacy and Security Rules),unless the
person or entity to whom Business Associate is making the disclosure requires certain direct identifiers in
order to accomplish the intended purpose of the disclosure,in which event Business Associate may disclose
only the minimum necessary amount of Protected Health Information to accomplish the intended purpose
of the disclosure.
b. Business Associate may use Protected Health Information in its possession for its proper
management and administration and to fulfill any present or future legal responsibilities of Business
Associate,provided that such uses are permitted under state and federal confidentiality laws.
c. Business Associate may disclose Protected Health Information in its possession to third parties
for the purposes of its proper management and administration or to fulfill any present or future legal
responsibilities of Business Associate,provided that:
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1. the disclosures are required by law; or
2. Business Associate obtains reasonable assurances from the third parties to whom the
Protected Health Information is disclosed that the information will remain confidential and be used or
further disclosed only as required by law or for the purpose for which it was disclosed to the third party,
and that such third parties will notify Business Associate of any instances of which they are aware in which
the confidentiality of the information has been breached.
d.Until such time as the Secretary issues regulations pursuant to the HITECH Act specifying what
constitutes "minimum necessary" for purposes of the HIPAA Privacy and Security Rules, Business
Associate shall,to the extent practicable, access,use,and request only Protected Health Information that is
contained in a limited data set (as defined in Section 164.514(e)(2) of the HIPAA Privacy and Security
Rules), unless Business Associate requires certain direct identifiers in order to accomplish the intended
purpose of the access,use, or request, in which event Business Associate may access,use, or request only
the minimum necessary amount of Protected Health Information to accomplish the intended purpose of the
access, use, or request. Covered Entity shall determine what quantum of information constitutes the
"minimum necessary"amount for Business Associate to accomplish its intended purposes.
e. Business Associate may use Protected Health Information to de-identify such information in
accordance with 45 C.F.R. § 164.514(b)for Business Associate's own business purposes or in connection
with the services provided pursuant to the Agreement or to provide Data Aggregation services to Customer
as permitted by 45 C.F.R. 164.504(e)(2)(i)(b). Once the Protected Health Information has been de-
identified or aggregated, it is no longer considered Protected Health Information governed by this
Addendum.
III. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE
a.Business Associate acknowledges and agrees that all Protected Health Information that is created
or received by Covered Entity and disclosed or made available in any form, including paper record, oral
communication,audio recording,and electronic display by Covered Entity or its operating units to Business
Associate or is created or received by Business Associate on Covered Entity's behalf shall be subject to this
Addendum.
b. Business Associate agrees to not use or further disclose Protected Health Information other than
as permitted or required by the Agreement,this Addendum or as required by law.
c.Business Associate agrees to use appropriate safeguards to prevent use or disclosure of Protected
Health Information other than as provided for by this Addendum. Specifically,Business Associate will:
1. implement the administrative, physical, and technical safeguards set forth in Sections
164.308, 164.310,and 164.312 of the HIPAA Privacy and Security Rules that reasonably and appropriately
protect the confidentiality, integrity, and availability of any Protected Health Information that it creates,
receives, maintains, or transmits on behalf of Covered Entity, and, in accordance with Section 164.316 of
the HIPAA Privacy and Security Rules, implement and maintain reasonable and appropriate policies and
procedures to enable it to comply with the requirements outlined in Sections 164.308, 164.310, and
164.312; and
2. report to Covered Entity any use or disclosure of Protected Health Information not
provided for by this Addendum of which Business Associate becomes aware. Business Associate shall
report to Covered Entity any Security Incident of which it becomes aware.Notice is deemed to have been
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31822782v9
given for unsuccessful Security Incidents, such as (i) "pings" on an information system firewall; (ii)port
scans; (iii)attempts to log on to an information system or enter a database with an invalid password or user
name; (iv) denial-of-service attacks that do not result in a server being taken offline; or(v) malware(e.g.,
a worms or a virus)that does not result in unauthorized access,use,disclosure,modification or destruction
of Protected Health Information.
d. Business Associate agrees to ensure that any agent, including a subcontractor, to whom it
provides Protected Health Information received from, or created or received by Business Associate on
behalf of Covered Entity, agrees to the same restrictions and conditions that apply through this Addendum
to Business Associate with respect to such information.
e. Business Associate agrees to comply with any requests for restrictions on certain disclosures of
Protected Health Information to which Covered Entity has agreed in accordance with Section 164.522 of
the HIPAA Privacy and Security Rules and of which Business Associate has been notified by Covered
Entity. In addition, and notwithstanding the provisions of Section 164.522 (a)(1)(ii), Business Associate
agrees to comply with an individual's request to restrict disclosure of Protected Health Information to a
health plan for purposes of carrying out payment or health care operations if the Protected Health
Information pertains solely to a health care item or service for which Covered Entity has been paid by in
full by the individual or the individual's representative.
f. At the request of the Covered Entity and in a reasonable time and manner,not to extend ten(10)
business days, Business Associate agrees to make available Protected Health Information required for
Covered Entity to respond to an individual's request for access to his or her Protected Health Information
in accordance with Section 164.524 of the HIPAA Privacy and Security Rules. If Business Associate
maintains Protected Health Information electronically,it agrees to make such Protected Health Information
available electronically to the applicable individual or to a person or entity specifically designated by such
individual,upon such individual's request.
g.At the request of Covered Entity and in a reasonable time and manner,Business Associate agrees
to make available Protected Health Information required for amendment by Covered Entity in accordance
with the requirements of Section 164.526 of the HIPAA Privacy and Security Rules.
h. Business Associate agrees to document any disclosures of and make Protected Health
Information available for purposes of accounting of disclosures, as required by Section 164.528 of the
HIPAA Privacy and Security Rules.
i. Business Associate agrees that it will make its internal practices, books, and records relating to
the use and disclosure of Protected Health Information received from, or created or received by Business
Associate on behalf of, Covered Entity, available to the Secretary for the purpose of determining Covered
Entity's compliance with the HIPAA Privacy and Security Rules, in a time and manner designated by the
Secretary, subject to attorney-client and other applicable privileges.
j. Business Associate agrees that, while present at any Covered Entity facility and/or when
accessing Covered Entity's computer network(s), it and all of its employees, agents, representatives and
subcontractors will at all times comply with any network access and other security practices, procedures
and/or policies established by Covered Entity including, without limitation, those established pursuant to
the HIPAA Privacy and Security Rules.
k.Business Associate agrees that it will not directly or indirectly receive remuneration in exchange
for any Protected Health Information of an individual without the written authorization of the individual or
the individual's representative, except where the purpose of the exchange is:
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31822782v9
1.for public health activities as described in Section 164.512(b)of the Privacy and Security
Rules;
2. for research as described in Sections 164.501 and 164.512(i)of the Privacy and Security
Rules,and the price charged reflects the costs of preparation and transmittal of the data for such purpose;
3. for treatment of the individual, subject to any further regulation promulgated by the
Secretary to prevent inappropriate access,use,or disclosure of Protected Health Information;
4. for the sale, transfer, merger, or consolidation of all or part of Business Associate and
due diligence related to that activity;
5.for an activity that Business Associate undertakes on behalf of and at the specific request
of Covered Entity;
6. to provide an individual with a copy of the individual's Protected Health Information
pursuant to Section 164.524 of the Privacy and Security Rules; or
7. other exchanges that the Secretary determines in regulations to be similarly necessary
and appropriate as those described in this Section III.k.
1. Business Associate agrees that it will not directly or indirectly receive remuneration for any
written communication that encourages an individual to purchase or use a product or service without first
obtaining the written authorization of the individual or the individual's representative,unless:
1. such payment is for a communication regarding a drug or biologic currently prescribed
for the individual and is reasonable in amount(as defined by the Secretary); or
2.the communication is made on behalf of Covered Entity and is consistent with the terms
of this Addendum.
m. Business Associate agrees that if it uses or discloses patients' Protected Health Information for
marketing purposes, it will obtain such patients' authorization before making any such use or disclosure.
n. Business Associate agrees to implement a reasonable system for discovery of breaches and
method of risk analysis of breaches to meet the requirements of HIPAA,The HITECH Act,and the HIPAA
Regulations,and shall be solely responsible for the methodology,policies,and procedures implemented by
Business Associate.
o. State Privacy Laws. Business Associate shall understand and comply with state privacy laws to
the extent that state privacy laws are not preempted by HIPAA or The HITECH Act.
IV. BUSINESS ASSOCIATE'S MITIGATION AND BREACH NOTIFICATION
OBLIGATIONS
a.Business Associate agrees to mitigate,to the extent practicable,any harmful effect that is known
to Business Associate of a use or disclosure of Protected Health Information by Business Associate in
violation of the requirements of this Addendum.
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31822782v9
b. Following the discovery of a Breach of Unsecured Protected Health Information, Business
Associate shall notify Covered Entity of such Breach without unreasonable delay and in no case later than
forty-five (45) calendar days after discovery of the Breach. A Breach shall be treated as discovered by
Business Associate as of the first day on which such Breach is known to Business Associate or,through the
exercise of reasonable diligence,would have been known to Business Associate.
c. Notwithstanding the provisions of Section IV.b., above, if a law enforcement official states to
Business Associate that notification of a Breach would impede a criminal investigation or cause damage to
national security,then:
1.if the statement is in writing and specifies the time for which a delay is required,Business
Associate shall delay such notification for the time period specified by the official; or
2. if the statement is made orally, Business Associate shall document the statement,
including the identity of the official making it, and delay such notification for no longer than thirty (30)
days from the date of the oral statement unless the official submits a written statement during that time.
Following the period of time specified by the official, Business Associate shall promptly deliver a copy of
the official's statement to Covered Entity.
d. The Breach notification provided shall include,to the extent possible:
1. the identification of each individual whose Unsecured Protected Health Information has
been, or is reasonably believed by Business Associate to have been,accessed,acquired,used, or disclosed
during the Breach;
2. a brief description of what happened, including the date of the Breach and the date of
discovery of the Breach,if known;
3. a description of the types of Unsecured Protected Health Information that were involved
in the Breach, if known(such as whether full name,social security number, date of birth,home
address,account number,diagnosis, disability code,or other types of information were involved);
4. any steps individuals should take to protect themselves from potential harm resulting
from the Breach; and
5. a brief description of what Business Associate is doing to investigate the Breach, to
mitigate harm to individuals, and to protect against any further Breaches.
e. Business Associate shall provide the information specified in Section IV.d., above, to Covered
Entity at the time of the Breach notification if possible or promptly thereafter as information becomes
available. Business Associate shall not delay notification to Covered Entity that a Breach has occurred in
order to collect the information described in Section IV.d. and shall provide such information to Covered
Entity even if the information becomes available after the forty-five (45)-day period provided for initial
Breach notification.
V. OBLIGATIONS OF COVERED ENTITY
a. Upon request of Business Associate, Covered Entity shall provide Business Associate with the
notice of privacy practices that Covered Entity produces in accordance with Section 164.520 of the HIPAA
Privacy and Security Rules.
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31822782v9
b. Covered Entity shall provide Business Associate with any changes in, or revocation of,
permission by an individual to use or disclose Protected Health Information,if such changes affect Business
Associate's permitted or required uses and disclosures.
c. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of
Protected Health Information to which Covered Entity has agreed in accordance with Section 164.522 of
the HIPAA Privacy and Security Rules, and Covered Entity shall inform Business Associate of the
termination of any such restriction, and the effect that such termination shall have, if any, upon Business
Associate's use and disclosure of such Protected Health Information.
VI. TERM AND TERMINATION
a. Term. The Term of this Addendum shall be effective as of the date first written above, and shall
terminate upon the later of the following events: (i) in accordance with Section VII.c., when all of the
Protected Health Information provided by Covered Entity to Business Associate or created or received by
Business Associate on behalf of Covered Entity is destroyed or returned to Covered Entity or,if such return
or destruction is infeasible,when protections are extended to such information; or(ii)upon the expiration
or termination of the Agreement.
b. Termination for Cause. Upon Covered Entity's knowledge of a material breach of this
Addendum by Business Associate and Business Associate's failure to cure such breach within thirty(30)
days of receiving notice of same from Covered Entity,Covered Entity shall have the right to terminate this
Addendum and the Agreement.
c. Effect of Termination.
1. Except as provided in paragraph 2. of this subsection, upon termination of this
Addendum, the Agreement or upon request of Covered Entity, whichever occurs first,Business Associate
shall return or destroy all Protected Health Information received from Covered Entity,or created or received
by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health
Information that is in the possession of subcontractors or agents of Business Associate. Neither Business
Associate nor its subcontractors or agents shall retain copies of the Protected Health Information.
2.In the event that Business Associate determines that returning or destroying the Protected
Health Information is infeasible, Business Associate shall provide to Covered Entity notification of the
conditions that make return or destruction infeasible and shall extend the protections of this Addendum to
such Protected Health Information and limit further uses and disclosures of such Protected Health
Information to those purposes that make the return or destruction infeasible, for so long as Business
Associate maintains such Protected Health Information.
VII. MISCELLANEOUS
a. No Rights in Third Parties. Except as expressly stated herein,the Parties to this Addendum do
not intend to create any rights in any third parties.
b. Survival. The obligations of Business Associate under Section VII(c) of this Addendum shall
survive the expiration, termination, or cancellation of this Addendum, the Agreement, and/or the business
relationship of the parties,and shall continue to bind Business Associate,its agents,employees,contractors,
successors, and assigns as set forth herein.
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c. Amendment. This Addendum may be amended or modified only in a writing signed by the
Parties.The Parties agree that they will negotiate amendments to this Addendum to conform to any changes
in the HIPAA Privacy and Security Rules as are necessary for Covered Entity to comply with the current
requirements of the HIPAA Privacy and Security Rules. In addition, in the event that either Party believes
in good faith that any provision of this Addendum fails to comply with the then-current requirements of the
HIPAA Privacy and Security Rules or any other applicable legislation,then such Party shall notify the other
Party of its belief in writing. For a period of up to thirty (30) days, the Parties shall address in good faith
such concern and amend the terms of this Addendum,if necessary to bring it into compliance.If,after such
thirty(30)-day period, the Addendum fails to comply with the HIPAA Privacy and Security Rules or any
other applicable legislation,then either Party has the right to terminate this Addendum and the Agreement
upon written notice to the other party.
d. Independent Contractor.None of the provisions of this Addendum are intended to create,nor
will they be deemed to create, any relationship between the Parties other than that of independent parties
contracting with each other solely for the purposes of effecting the provisions of this Addendum and any
other agreements between the Parties evidencing their business relationship.
e. Interpretation. Any ambiguity in this Addendum shall be resolved in favor of a meaning that
permits Covered Entity to comply with the HIPAA Privacy and Security Rules.
f.Certain Provisions Not Effective in Certain Circumstances.The provisions of this Addendum
relating to the HIPAA Security Rule shall not apply to Business Associate if Business Associate does not
receive any Electronic Protected Health Information from or on behalf of Covered Entity.
g. Ownership of Information. Covered Entity holds all right,title, and interest in and to the PHI
and Business Associate does not hold and will not acquire by virtue of this Addendum or by virtue of
providing goods or services to Covered Entity, any right, title, or interest in or to the PHI or any portion
thereof.
h. Entire Agreement. This Addendum is incorporated into,modifies and amends the Agreement,
inclusive of all other prior amendments or modifications to such Agreement. The terms and provisions of
this Addendum shall control to the extent they are contrary, contradictory or inconsistent with the terms of
the Agreement. Otherwise,the terms and provisions of the Agreement shall remain in full force and effect
and apply to this Addendum.
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31822782v9
IN WITNESS WHEREOF,the Parties have executed this Addendum as of the day and year written above.
Each person whose signature appears hereon represents, warrants and guarantees that he/she has
been duly authorized and has full authority to execute this Agreement on behalf of the party on
whose behalf this Agreement is executed.
Business Associate: Covered Entity:
EMS Managemen Consultants,Inc. City of Au usta
By' B : ,�L Gam- ,
/i�✓�� y
Print: !/1/ 6 yofig Print: tokgy e- Dfi►;1 t
1 .
Title: 020 Title:
1'1'1)3 (L)1 -
Date:
7/ iS/ /k Date: \k . Vv6
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31822782x9