CalOptima
Bid 15-004
5
Solicitation 15-004
Compliant, Grievance and Appeals Investigation and Resolution Software Solution
Bid designation: Public
CalOptima
6 7/30/2014 10:53 AM
p. 1
CalOptima
Bid 15-004
5
Bid 15-004 Compliant, Grievance and Appeals Investigation and Resolution Software Solution Bid Number
15-004
Bid Title
Compliant, Grievance and Appeals Investigation and Resolution Software Solution
Bid Start Date
Jul 10, 2014 8:31:10 AM PDT
Bid End Date
Aug 7, 2014 5:00:00 PM PDT
Question & Answer End Date
Jul 24, 2014 12:00:00 PM PDT
Bid Contact
Kathy Hoppe 714-246-8762
[email protected]
Contract Duration 2 years Contract Renewal 3 annual renewals Prices Good for
90 days
Bid Comments
RFP 15-004 Added on Jul 30, 2014: Addendum No. 1 Item Response Form
Item
15-004-- 01-01 - Grievance & Appeals Medical Management Module
Quantity
1 each
Unit Price Delivery Location CalOptima City Parkway 505 City Parkway West Orange CA 92868 Qty 1
Description 15-004
6 7/30/2014 10:53 AM
p. 2
CalOptima
Bid 15-004
July 10, 2014 NOTICE OF REQUEST FOR PROPOSALS (RFP) 15-004
GENERAL CONDITIONS AND INSTRUCTIONS TO OFFERORS for COMPLIANT, GRIEVANCE AND APPEALS INVESTIGATION AND RESOLUTION SOFTWARE SOLUTION
Key RFP Dates
Written Questions Due: July 24, 2014 Closing Date: 5:00 p.m., PDT, August 7, 2014
7/30/2014 10:53 AM
p. 3
CalOptima
Bid 15-004
July 10, 2014
SUBJECT:
NOTICE OF REQUEST FOR PROPOSALS
Gentlemen/Ladies: CalOptima invites proposals from qualified Offerors to provide a COMPLIANT, GRIEVANCE AND APPEALS INVESTIGATION AND RESOLUTION SOFTWARE SOLUTION. Proposals shall be prepared and submitted in accordance with the requirements set forth in RFP 15-004. The proposals must be submitted via BidSync no later than 5:00 p.m., PDT, August 7, 2014. Proposals received after the date and time specified above will be rejected by the BidSync program and will not be delivered to CalOptima. As required under Ordinance No. 3896 of the County of Orange, State of California, Offeror hereby acknowledges and agrees that the obligations of CalOptima under any resulting contract are solely the obligation of CalOptima, and the County of Orange, State of California, shall have no obligation or liability therefor. The successful Offeror will be required to comply with all applicable equal opportunity laws and regulations. Sincerely,
Kathy Hoppe, CPPB Contract Administrator
7/30/2014 10:53 AM
p. 4
CalOptima
TABLE OF CONTENTS
Bid 15-004
Page No.
CalOptima’s Mission Statement and CalOptima Overview ............................................................................... i SECTION I: INSTRUCTIONS TO OFFERORS A. B. C. D.
E.
F. G. H. I. J. K. L. M. N. O. P. Q. R. S. T. U. V. W.
Examination of Proposal Documents ..................................................................................................... 1 Addenda ..... ...... ...................................................................................................................................... 1 General Information ............................................................................................................................... 1 Clarifications..... ...................................................................................................................................... 2 1. Examination of Documents ................................................................................................................ 2 2. Submitting Requests........................................................................................................................... 2 3. CalOptima Responses ........................................................................................................................ 2 Submission of Proposals ......................................................................................................................... 2 1. Date and Time .................................................................................................................................... 2 2. Acceptance of Proposals .................................................................................................................... 2 Pre-Contractual Expenses ...................................................................................................................... 2 Joint Offers ...... ...................................................................................................................................... 3 Non-Collusion Affidavit .......................................................................................................................... 3 Taxes .... ...... ...... ...................................................................................................................................... 3 Contract Type and Term ........................................................................................................................ 3 Prohibited Interest .................................................................................................................................. 3 Nondiscrimination Compliance .............................................................................................................. 4 Federal, State, and Local Laws .............................................................................................................. 4 Contract Award ...................................................................................................................................... 4 Assignment and Subcontractors ............................................................................................................ 4 Notice of Labor Dispute .......................................................................................................................... 4 Disputes ...... ...... ...................................................................................................................................... 5 Withdrawal of Offers .............................................................................................................................. 5 Strategic and Contract Elements ........................................................................................................... 5 Use of Offeror Response and Accompanying Material ........................................................................ 6 Excess Re-Procurement Liability ........................................................................................................... 6 Price Adjustments for Regulatory Changes .......................................................................................... 6 Bonding ...................................................................................................................................... 6
SECTION II: PROPOSAL CONTENT AND FORMS A. Proposal Format and Content ................................................................................................................ 7 1. Presentation ...................................................................................................................................... 7 2. Letter of Transmittal .......................................................................................................................... 7 3. Technical Proposal ............................................................................................................................. 7 4. Appendices ...................................................................................................................................... 9 B. Cost and Pricing ...................................................................................................................................... 9 C. Payment Terms ...................................................................................................................................... 9 SECTION III: EVALUATION AND AWARD .................................................................................................11 SECTION IV: SAMPLE CONTRACT ..............................................................................................................12 SECTION V: REQUIREMENTS/QUESTIONNAIRE ....................................................................................70 Acknowledgement .... ...... .....................................................................................................................................73 Attachment A: CalOptima Board Members and Executive Team...................................................................74 Attachment B: Non-Collusion Affidavit ............................................................................................................75
i 7/30/2014 10:53 AM
p. 5
CalOptima
Bid 15-004
CALOPTIMA’s MISSION STATEMENT To provide members with access to quality health care services delivered in a cost-effective and compassionate manner.
CALOPTIMA OVERVIEW 1.
CalOptima is a public agency serving approximately 470,000 members, the majority of which are Medi-Cal (California’s Medicaid program). Operating under a 1915(b) waiver from the federal government, CalOptima is the sole Medi-Cal managed care authority for Orange County. As a county organized health system (COHS), CalOptima is responsible for providing medical services to members in the majority of aid categories or codes in Orange County. Approximately 107,000 of CalOptima’s Medi-Cal members are in aged, blind and disabled aid codes. These members have physical and/or developmental disabilities that require considerations for service beyond those of the general population. The Board of Supervisors created CalOptima in September 293 and began hiring staff in January 1994. CalOptima began delivering services to Medi-Cal beneficiaries in October 1995. It is a public agency and the largest of six COHS in the United States. It manages programs that are funded by the state and federal governments, but operate independently, under the leadership of a Board of Directors made up of members, providers, business leaders and local government representatives.
2.
OneCare, CalOptima’s Medicare Advantage (HMO SNP) -Prescription Drug (MA-PD) and Special Needs Plan launched in October 2005, is designed to serve dually eligible members living in Orange County. OneCare offers a coordinated solution to its 16,000 members for their full array of health care benefits.
3.
For Medi-Cal, CalOptima contracts on a full or partially capitated basis with Health Maintenance Organizations (HMOs), provider-sponsored organizations, known as Physician Hospital Consortia (PHCs) and Shared Risks Groups (SRGs), to provide care to 72% of CalOptima members. CalOptima serves the remaining members through a fee-for-service program known as “CalOptima Direct” which consists of an estimated 110,000 members.
4.
Today, CalOptima is the second largest health insurer in Orange County, providing coverage to one in eight residents and more than a quarter of our community’s children. CalOptima is the fourth largest Medi-Cal managed care plan in California, and it is larger than the entire Medicaid programs of 16 other states. It represents 1% of the U.S. population.
i 7/30/2014 10:53 AM
p. 6
CalOptima
Bid 15-004
SECTION I. INSTRUCTIONS TO OFFERORS
7/30/2014 10:53 AM
p. 7
CalOptima
Bid 15-004
RFP 15-004
I. INSTRUCTIONS TO OFFERORS
A.
B.
EXAMINATION OF PROPOSAL DOCUMENTS 1.
By submitting a proposal, the Offeror represents that it has thoroughly examined and become familiar with the work required under this RFP and that it is capable of performing quality work to achieve CalOptima’s objectives.
2.
CalOptima reserves the right to remove from its mailing list for future RFPs, for an undetermined period of time, the name of any Offeror for failure to accept a contract, failure to respond to two (2) consecutive RFPs and/or unsatisfactory performance. Please note that a “No Bid” is considered a response.
ADDENDA CalOptima may make changes to the requirements of this RFP. Any CalOptima changes to the requirements will be made by written addendum to this RFP. Any written addenda issued pertaining to this RFP shall be incorporated into the terms and conditions of any resulting contract. CalOptima will not be bound to any modifications to or deviations from the requirements set forth in this RFP as the result of oral instruction. All addenda will be issued through BidSync to all Offerors.
C.
GENERAL INFORMATION 1.
Scope CalOptima seeks a competent supplier to provide COMPLIANT, GRIEVANCE AND APPEALS INVESTIGATION AND RESOLUTION SOFTWARE in accordance with the specifications contained within this Request for Proposal.
2.
CalOptima Point of Contact The sole point of contact for inquiries concerning this RFP is: Kathy Hoppe, CPPB Contract Administrator CalOptima Vendor Management Department 505 City Parkway West Orange, CA 92868 (714) 246-8762
[email protected] All communications relating to this RFP must be directed to the CalOptima contact person named above. All communications between respondents and other CalOptima staff members concerning this RFP are strictly prohibited. Failure to comply with these requirements may result in proposal disqualification.
3.
Procurement Schedule The following table documents the critical pre-award events for the procurement. All dates are subject to change at CalOptima’s discretion.
Section I – Instructions to Offerors
7/30/2014 10:53 AM
Page 1
p. 8
CalOptima
Bid 15-004
RFP 15-004
Procurement Schedule
D.
RFP Issue Date
July 10, 2014
Written Questions Due from Offerors
July 24, 2014
Date Responses Due from CalOptima
July 28, 2014
Proposal Due Date
August 7, 2014
Interviews/Site Visits/Reference Checks
August 18 – August 29, 2014
Vendor Selection
September 3, 2014
CLARIFICATIONS 1.
Examination of Documents Should an Offeror require clarification of this RFP, the Offeror shall notify CalOptima in writing in accordance with Section D.2 below. Should it be found that the point in question is not clearly and fully set forth, CalOptima will issue a written addendum clarifying the matter and will be issued through BidSync to all Offerors.
2.
3.
Submitting Requests a.
All questions, clarifications or comments must be submitted through BidSync.
b.
Inquiries received after 12:00 p.m., July 24, 2014, will not be responded to.
CalOptima Responses Responses from CalOptima will be communicated via a RFP addendum through BidSync to all recipients of this RFP, and will be sent no later than 4:00 p.m., July 28, 2014.
E.
SUBMISSION OF PROPOSALS 1.
Date and Time All proposals are to be submitted to CalOptima via BidSync. Proposals received after 5:00 p.m., PDT, August 7, 2014 will not be delivered to CalOptima by the BidSync program and will be considered non-responsive. Instructions for using BidSync are to be found on CalOptima’s website – www.caloptima.org.
2.
F.
Acceptance of Proposals a.
CalOptima reserves the right to accept or reject any and all proposals, or any item or part thereof, or to waive any informalities or irregularities in proposals.
b.
CalOptima reserves the right to withdraw this RFP at any time without prior notice and CalOptima makes no representations that any contract will be awarded to any Offeror responding to this RFP.
c.
CalOptima reserves the right to postpone proposal opening for its own convenience.
PRE-CONTRACTUAL EXPENSES Pre-contractual expenses are defined as expenses incurred by the Offeror in:
Section I – Instructions to Offerors
7/30/2014 10:53 AM
Page 2
p. 9
CalOptima
Bid 15-004
RFP 15-004
1.
preparing its proposal in response to this RFP;
2.
submitting its proposal to CalOptima;
3.
negotiating with CalOptima any matter related to its proposal; or
4.
any other expenses incurred by the Offeror prior to date of award, if any, of the contract.
CalOptima shall not, in any event, be liable for any pre-contractual expenses incurred by Offeror in the preparation of its proposal. Offeror shall not include any such expenses as part of its proposal. G.
JOINT OFFERS Where two or more Offerors desire to submit a single proposal in response to this RFP, they should do so on a prime-subcontractor basis rather than as a joint venture. CalOptima intends to contract with a single firm and not with multiple firms doing business as a joint venture.
H.
NON-COLLUSION AFFIDAVIT As part of their Bid Proposal, Offerors are required to complete and sign the Non-Collusion Affidavit provided as Attachment B to this RFP. Proposals that are submitted to CalOptima without a fully executed copy of the Non-Collusion Affidavit will be considered non-responsive.
I.
TAXES Offeror’s proposals are subject to sales taxes.
J.
K.
CONTRACT TYPE AND TERM 1.
It is anticipated that the contract resulting from this solicitation, if awarded, will be a firm-fixed price contract specifying firm-fixed prices for individual tasks specified in the Requirements section, included in this RFP as Section V. While firm-fixed price is the preferred method of pricing, CalOptima will also consider offers quoted on a cost-plus-fixed-fee or time-and-expense basis, although the latter, in particular, may be subject to a significant deduction of points in CalOptima’s evaluation of the proposals received.
2.
The initial term of any resulting agreement shall be for a period of two (2) years, with an anticipated effective date of October 1, 2014 through September 30, 2016, with three, one year renewal options. a.
Option year one, if exercised, shall be effective of October 1, 2016 through September 30, 2017.
b.
Option year two, if exercised, shall be effective of October 1, 2017 through September 30, 2018.
c.
Option year three, if exercised, shall be effective of October 1, 2018 through September 30, 2019.
PROHIBITED INTEREST CalOptima and the Offeror covenant that to their knowledge no board member, officer or employee of CalOptima, during his or her tenure or for one (1) year thereafter, has any interest, whether contractual, non-contractual, financial or otherwise, in this transaction, or in the business of the contracting party other than CalOptima, and that if any such interest comes to the knowledge of either party at any time, a full and complete disclosure of all such information will be made in writing to the other parties, even if such interest
Section I – Instructions to Offerors
7/30/2014 10:53 AM
Page 3
p. 10
CalOptima
Bid 15-004
RFP 15-004
would not be considered a conflict of interest under Article 4 of Chapter 1 of Division 4 of Title 1 (commencing with Section 1090) or Title 9 (commencing with Section 81000) of the Government code of the State of California. (See Attachment A for a listing of CalOptima’s current Board members and executive staff.) L.
NONDISCRIMINATION COMPLIANCE During the performance of any contract resulting from this RFP, Offeror and its subcontractor(s) shall not unlawfully discriminate, harass, or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability, including Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS), AIDS-Related Complex (ARC), mental disability, medical condition (including cancer), age (over 40) marital status, and the use of family and medical care leave and pregnancy disability leave. Offeror and its subcontractor(s) shall insure that the evaluation and treatment of their employees and applicants for employment are free from discrimination and harassment. Offeror and its subcontractor(s) shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq. and the applicable regulations promulgated thereunder Title 2, CCR, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12990 (a-f), set forth in Chapter 5 of Division 4, Title 2, CCR shall be incorporated into any contract(s) resulting from this RFP by reference and made a part thereof as if set forth in full. Offeror and its subcontractor(s) shall give notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. Offeror shall include the nondiscrimination and compliance provisions of this section L to the RFP in all subcontracts relating to any contract awarded by CalOptima.
M.
FEDERAL, STATE, AND LOCAL LAWS Offeror warrants that in the performance of a contract with CalOptima, it shall comply with all applicable federal, state, and local laws and ordinances and all lawful orders, rules and regulations thereunder.
N.
CONTRACT AWARD Issuance of this RFP and receipt of proposals does not commit CalOptima to award a contract. CalOptima reserves the right to postpone proposal opening for its own convenience, to accept or reject any or all proposals received in response to this RFP, to negotiate with other than the selected Offeror should negotiations with the selected Offeror be terminated, to negotiate with more than one Offeror simultaneously, or to cancel all or part of this RFP. CalOptima also reserves the right to apportion the award among two or more Offerors.
O.
ASSIGNMENT AND SUBCONTRACTORS Any contract awarded by CalOptima or any interest therein or claim thereunder may not be assigned by the successful Offeror either voluntarily or by operation of law, nor may all or substantially all of any contract be further subcontracted by the successful Offeror without the prior written consent of CalOptima. No consent shall be deemed to relieve the successful Offeror of its obligations to comply fully with the requirements thereof.
P.
NOTICE OF LABOR DISPUTE Whenever Offeror has knowledge that any actual or potential labor dispute may delay a contract, Offeror shall immediately notify and submit all relevant information to CalOptima. Offeror shall insert the substance of this entire clause in any subcontract hereunder as to which a labor dispute may delay the contract.
Section I – Instructions to Offerors
7/30/2014 10:53 AM
Page 4
p. 11
CalOptima
Bid 15-004
RFP 15-004
Q.
DISPUTES Any contract awarded shall be construed and all disputes thereunder shall be settled in accordance with the laws of the State of California. Pending final resolution of a dispute, Offeror shall proceed diligently with the performance of the contract.
R.
WITHDRAWAL OF OFFERS Offers may be withdrawn only by signature of Offeror, provided the request is received by the person whose duty it is to open proposals prior to the time fixed for proposal opening. Each proposal opened will be considered to be a valid offer, and may not be withdrawn for a period of 90 calendar days following the opening of proposals.
S.
STRATEGIC AND CONTRACT ELEMENTS 1.
CalOptima’s Basic Philosophy: Contracting for Results CalOptima’s fundamental commitment is to contract for results. CalOptima defines a successful result as a generation of defined, measurable, and beneficial outcomes that satisfy the contract requirements and support CalOptima’s mission and objectives. This RFP describes what is required of the successful Offeror in terms of services, deliverables, performance measures and outcomes, and unless otherwise noted in the RFP, places the responsibility for how they are accomplished on the successful Offeror.
2.
Contract Elements The term “contract” means the contract awarded as a result of this RFP and all exhibits thereto. See Section IV Sample Contract. At a minimum, the following documents will be incorporated into the contract: this RFP and all attachments and exhibits; any modifications, addendum or amendments issued in conjunction with this RFP; and the successful Offeror’s proposal. The successful Offeror/s will be required to accept a written contract in accordance with and included as a part thereof the published notice of Request for Proposals, including all requirements, conditions and specifications contained therein. The Sample Contract is the only contract that will be used by CalOptima and contains certain requirements which are specific to public agency (or sector) contracting and may not be customary in commercial business dealings. Each Offeror must review the Sample Contract and must set forth all exceptions thereto, if any, in the form of proposed alternative language, and must disclose any impact on the proposed price if CalOptima does not accept the exceptions. In the event an Offeror’s changes to CalOptima’s Sample Contract are substantial, it shall be expected that the Offeror will provide a red-lined version of the Sample Contract that specifically shows the comments, requested inclusions, changes, and/or deletions. It should be noted that if the exceptions differ too greatly from the Sample Contract, CalOptima will exclude the Offeror from further consideration. If a red-lined version is not submitted with the proposal, the terms submitted in the Sample Contract will be in force. CalOptima may disqualify and terminate negotiations with any Offeror that did not take exception to a given Sample Contract provision in its proposal and subsequently attempts to do so during negotiations. As such, it is in Offeror’s best interest to have the Sample Contract reviewed by counsel prior to submitting a proposal.
Section I – Instructions to Offerors
7/30/2014 10:53 AM
Page 5
p. 12
CalOptima
Bid 15-004
RFP 15-004
T.
USE OF OFFEROR RESPONSE AND ACCOMPANYING MATERIAL All materials submitted become the property of CalOptima and will not be returned. If the Offeror intends to submit confidential or proprietary information as part of the proposal, any limits on the use or distribution of that material should be clearly delineated in writing. However, CalOptima is a public agency and therefore subject to the Public Records Act. CalOptima will use reasonable precautions allowed by law to avoid disclosure of the Offeror proposal. CalOptima reserves the unrestricted right to copy and disseminate the Offeror proposals for internal review and for review by external advisors, at CalOptima’s sole discretion.
U.
EXCESS RE-PROCURMENT LIABILITY Offeror shall be liable to CalOptima for all expenses incurred by CalOptima in reprocuring elsewhere the same or similar services offered by Offeror hereunder, should Offeror fail to perform or be disqualified for failure to meet terms and conditions set forth in any awarded contract. Such reprocurement expense obligation by Offeror shall be limited to the excess over the price specified in any contract awarded for such services.
V.
PRICE ADJUSTMENTS FOR REGULATORY CHANGES If price adjustment is indicated, either upward or downward, for changes that are mandatory as a result of any legislation promulgated which become effective between the date of proposal opening and the date of service termination, said adjustment shall be negotiated between CalOptima and Offeror. Such price adjustments shall be audited, where required.
W.
BONDING CalOptima reserves the right to require the respondent to procure one or more performance, fidelity, payment or other bond, if, during the term of any resulting contract, CalOptima in its sole discretion determines that there is a business need for such requirement.
Section I – Instructions to Offerors
7/30/2014 10:53 AM
Page 6
p. 13
CalOptima
Bid 15-004
SECTION II. PROPOSAL CONTENT AND FORMS
7/30/2014 10:53 AM
p. 14
CalOptima
Bid 15-004
RFP 15-004
II - PROPOSAL CONTENT AND FORMS
A.
PROPOSAL FORMAT AND CONTENT 1.
Presentation Proposals shall be typed and submitted in a Word/Excel/PDF format via BidSync. Offers should not include any unnecessarily elaborate or promotional material. Information should be presented in the order in which it is requested. Please prepare the RFP document with a minimum font size of ten (10), limit the length of the proposal to 50 pages, and submit a maximum of two documents in the BidSync system.
2.
Letter of Transmittal A Letter of Transmittal shall be included with the proposal, addressed to Kathy Hoppe, and must, at a minimum, contain the following:
3.
a.
identification of Offeror, including name, address, e-mail address and telephone number;
b.
proposed working relationship between Offeror and subcontractors, and if not applicable, indicate so;
c.
acknowledgment of receipt of all RFP addenda, if any;
d.
name, title, e-mail address and telephone number of contact person during the period of proposal evaluation;
e.
a statement to the effect that the proposal shall remain valid for a period of not less than 90 days from the date of submittal; and
f.
signature of a person authorized to bind Offeror to the terms of the proposal.
Technical Proposal a.
Qualifications, Related Experience and References of Offeror This section of the proposal should establish the ability of Offeror to satisfactorily perform the required work by reasons of: experience in performing work of a similar nature; demonstrated competence in the services to be provided; strength and stability of the firm; staffing capability; work load; record of meeting schedules on similar projects; and supportive client reference. Offeror shall: 1) provide a brief profile of the firm, including the types of services offered; the year founded; form of the organization (corporation, partnership, sole proprietorship); number, size and location of offices; number of employees; 2) provide evidence of financial stability sufficient to demonstrate reasonable stability and solvency appropriate to the requirements of this procurement. Respondents must submit a current financial statement plus two (2) years of audited financial reports including all supplements, management discussion and analysis, and actuarial options. At a minimum, such financial statements and reports shall include: balance sheet; statement of income and expense; statement of changes in financial position; cash flows; and capital expenditures. If the respondent is a corporation that is
Section II – Proposal Content and Forms
7/30/2014 10:53 AM
Page 7
p. 15
CalOptima
Bid 15-004
RFP 15-004
required to report to the Securities and Exchange Commission, it must submit its two most recent SEC Forms 10K, Annual Reports. If any change in ownership is anticipated during the twelve (12) months following the proposal due date, the respondent must describe the circumstances of such change and indicate when the change is likely to occur; identify any conditions (e.g., bankruptcy, pending litigation, planned office closures, impending merger) that may impede Offeror’s ability to complete the project; 3) describe the firm’s experience in performing work of a similar nature to that solicited in this RFP, specifically addressing any experience working with Medi-Cal/Medicaid programs; and highlight the participation in such work by the key personnel proposed for assignment to this project. The respondent must explain whether it performed the work as a prime contractor or subcontractor. If the respondent performed the work as a subcontractor, the respondent must describe the scope of subcontracted activities, and include the prime contractor as one of the required references; 4) if the respondent proposes to use subcontractor(s), it must describe any existing or ongoing relationships with the subcontractor(s); including project descriptions and the portions(s) of this RFP intended to be subcontracted; 5) identify subcontractors by company name, address, contact person, telephone number and project function and describe Offeror’s experience working with each subcontractor; and 6) provide, at a minimum, three (3) references for the projects cited as related experience; references shall include the name, title, email address, address and telephone number of the person(s) at the client organization who is most knowledgeable about the work performed. Offeror may also supply references for other work not cited in this section as related experience. b.
Proposed Staffing and Project Organization This section of the proposal should establish the qualifications of the proposed project staff. Offeror shall: 1) provide education, experience and applicable professional credentials of project staff; 2) furnish brief resumes (not more than two [2] pages each) for the proposed Project Manager and other key personnel; 3) indicate adequacy of labor resources utilizing a table projecting the labor-hour allocation to the project by individual task; 4) identify key personnel proposed to perform the work in the specified tasks and include major areas of subcontract work; 5) include a project organization chart which clearly delineates communication/reporting relationships among the project staff; and 6) include a statement that key personnel will be available to the extent proposed for the duration of the project, acknowledging that no person designated as “key” to the
Section II – Proposal Content and Forms
7/30/2014 10:53 AM
Page 8
p. 16
CalOptima
Bid 15-004
RFP 15-004
project shall be removed or replaced without the prior written concurrence of CalOptima. c.
Work Plan and Price Schedule Offeror shall provide a narrative which addresses the Requirements and shows Offeror’s understanding of CalOptima’s needs and requirements. Offeror shall: 1) describe the approach to completing the tasks specified in Section V, Requirements/Questionnaire; and 2) outline sequentially the activities that would be undertaken in completing the tasks; specify by name and job description, the person your firm would assign to perform said task; the hourly rate of each person identified; and include a schedule for completing the tasks in terms of elapsed weeks from the commencement date. Offeror may also propose enhancement or procedural or technical innovations to the Requirements which do not materially deviate from the objectives or required content of the project.
d.
Exceptions/Deviations CalOptima requires each Offeror to state any exceptions to or deviations from the requirements of this RFP, segregating “technical” exceptions from “contractual” exceptions. Where Offeror wishes to propose alternative approaches to meeting CalOptima’s technical requirements, these should be thoroughly explained. It is in Offeror’s best interest to have the sample agreement reviewed by counsel prior to submitting a proposal.
4.
Appendices Information considered by Offeror to be pertinent to this project and which has not been specifically solicited in any of the aforementioned sections may be placed in a separate appendix section. Offerors are cautioned, however, that this does not constitute an invitation to submit large amounts of extraneous materials; appendices should be relevant and brief.
B.
COST AND PRICING CalOptima’s intention is to award a firm-fixed price contract. Utilizing the format and information requested in the 2nd bullet of paragraph A.3.c of this Section II, Offeror shall create a Price Schedule and provide any narrative necessary to explain or qualify the prices quoted. Prices quoted shall include direct costs, indirect costs, and profits. If the pricing method differs from firm-fixed price, attach an explanation as to why an alternate pricing method is proposed. Identify and list any other additional or incidental costs which will be required by your firm in order to meet the requirements and Price Schedule. Successful Offeror shall not be allowed to invoice CalOptima for any pricing not listed within the Price Schedule throughout the duration of any resulting contract.
C.
PAYMENT TERMS CalOptima encourages early payment discount terms. Unless discount payment terms are offered, payment terms shall be “Net 30 Days.” Discount payment terms of less than 10 days will not be considered in
Section II – Proposal Content and Forms
7/30/2014 10:53 AM
Page 9
p. 17
CalOptima
Bid 15-004
RFP 15-004
making award. Payment due dates, including discount period, will be computed from the date of CalOptima acceptance of the required goods and/or services or of a correct and complete invoice, whichever is later, to the date CalOptima’s check is mailed. Any discounts taken will be taken on full amount of invoice, unless other charges are itemized and discount thereon is disallowed.
Section II – Proposal Content and Forms
7/30/2014 10:53 AM
Page 10
p. 18
CalOptima
Bid 15-004
RFP 15-004
SECTION III. EVALUATION AND AWARD
7/30/2014 10:53 AM
p. 19
CalOptima
Bid 15-004
RFP 15-004
III.
EVALUATION AND AWARD
Evaluation of the proposals shall be generally based upon the reasonableness of price; experience in the market and capabilities of the Offeror to effectively complete the project requirements; financial stability; and completeness of the proposal response and the requested data. All proposals received as specified will be evaluated by CalOptima staff in accordance with the above criteria and additional sub-criteria that may be considered as relevant or pertinent by the evaluators. During the evaluation period, CalOptima may require interviews and an on-site visit and/or tour of the Offeror’s place of business. Offerors should be aware however, that award may be made without Offeror visits, interviews, or further discussions. In accordance with CalOptima’s Purchasing Policy, CalOptima staff will select the Offeror best meeting the evaluation criteria or submit a recommendation to CalOptima’s Board of Directors, for consideration and selection. CalOptima reserves the right to withdraw this RFP at any time without prior notice and, furthermore, makes no representations that any contract will be awarded to any Offerors responding to this RFP. CalOptima expressly reserves the right to postpone proposal opening for its own convenience, to waive any informality or irregularity in the proposals received, and to reject any and all proposals responding to this RFP without indicating any reasons for such rejection. CalOptima also reserves the right to award its total requirement among two or more Offerors as CalOptima may deem to be in its best interests. In addition, negotiations may or may not be conducted with Offerors; therefore, the proposal submitted should contain the Offerors most favorable terms and conditions, since the selection and award may be made without discussion with any Offeror. Offerors who submit a proposal in response to this RFP shall be notified in writing regarding whether their firm was awarded the contract. Such notification shall be made within a reasonable time after the date the contract is awarded.
Section III - Evaluation
7/30/2014 10:53 AM
Page 11
p. 20
CalOptima
Bid 15-004
RFP 15-004
SECTION IV. SAMPLE CONTRACT
7/30/2014 10:53 AM
p. 21
CalOptima
RFP 15-004 Bid 15-004
GRIEVANCE AND APPEALS SOFTWARE SOLUTION AGREEMENT BETWEEN _____________________________________ AND ______________________________________
7/30/2014 10:53 AM
p. 22
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
TABLE OF CONTENTS Page RECITALS ..........................................................................................................................................................................................................12 AGREEMENT ...................................................................................................................................................................................................12 1.
Definitions.......................................................................................................................................................................................12 1.1 “Acceptance” ................................................................................................................................................................12 1.2 “Adaptation” .................................................................................................................................................................12 1.3 “Agreement” .................................................................................................................................................................12 1.4 “CalOptima” ..................................................................................................................................................................12 1.5 “Concurrent User[s]” ................................................................................................................................................13 1.6 “Correction” or “Update” ........................................................................................................................................13 1.7 “CPI Adjustment” ........................................................................................................................................................13 1.8 “Custom Programming” ..........................................................................................................................................13 1.9 “Defect” ...........................................................................................................................................................................13 1.10 “Documentation” ........................................................................................................................................................13 1.11 “Enhancement” or “Improvement” ....................................................................................................................13 1.12 “Equipment” .................................................................................................................................................................13 1.13 “Existing System(s)” .................................................................................................................................................13 1.14 “First Productive Use” ..............................................................................................................................................13 1.15 “Implementation” and “Implement” ..................................................................................................................14 1.16 “Interface” .....................................................................................................................................................................14 1.17 “Joint Commission”....................................................................................................................................................14 1.18 “Licensed Software” ..................................................................................................................................................14 1.19 “Milestones”..................................................................................................................................................................14 1.20 “Module”.........................................................................................................................................................................14 1.21 “Proprietary or Confidential Information” .....................................................................................................14 1.22 “Release” ........................................................................................................................................................................14 1.23 "Scope of Work"……………………………………………………………………………………………………………. 3 1.24 “Source Material(s)” .................................................................................................................................................14 1.25 “System” .........................................................................................................................................................................15 1.26 “System Component(s)” ..........................................................................................................................................15 1.27 “System Specifications” ...........................................................................................................................................15 1.28 “Users” ............................................................................................................................................................................15 1.29 “Version” ........................................................................................................................................................................15 1.30 “Work plan” ..................................................................................................................................................................15 Scope of Work……………………………………………………………………………………………………………………………….4
2.
Term of Support. ..........................................................................................................................................................................15 2.1 2.2
3.
Initial Support Term .................................................................................................................................................15 Options to Extend. .....................................................................................................................................................15
Licensed Software License. .....................................................................................................................................................16 3.1 3.2 3.3 3.4 3.5 3.6 3.7
License Grant ...............................................................................................................................................................16 Commencement of License ....................................................................................................................................16 No Disassembly ...........................................................................................................................................................16 No Service Bureau .....................................................................................................................................................16 Subsequent Releases/Versions/New Product ..............................................................................................16 Interfaces .......................................................................................................................................................................16 Audit ................................................................................................................................................................................17
i 7/30/2014 10:53 AM
p. 23
CalOptima
SAMPLE CONTRACT 4.
Authority to License and Non-Infringement..................................................................................................17 Quiet Enjoyment .........................................................................................................................................................17 Proprietary Rights Indemnity ..............................................................................................................................17
Escrow of Source Materials. ....................................................................................................................................................18 5.1 5.2 5.3 5.4 5.5 5.6
6.
RFP 15-004
Authority to License, Quiet Enjoyment, Proprietary Rights and Indemnity. ....................................................17 4.1 4.2 4.3
5.
Bid 15-004
Escrow Agent and Release Conditions .............................................................................................................18 Use of Source Material .............................................................................................................................................19 Proprietary Rights .....................................................................................................................................................19 CalOptima’s Right to Verify Source Code.........................................................................................................19 Amendment of Escrow Agreement ....................................................................................................................20 No Fee..............................................................................................................................................................................20
Work plan, Implementation, and First Production Use. .............................................................................................20 6.1 6.2 6.3 6.4
Work plan Schedule ..................................................................................................................................................20 Milestones and Failure to Achieve Milestones ..............................................................................................20 Failure to Comply With the Work plan ............................................................................................................20 Delivery and Risk of Loss .......................................................................................................................................20
7.
Training. ...........................................................................................................................................................................................21
8.
Installation and Acceptance Tests. .......................................................................................................................................21 8.1 8.2 8.3 8.4 8.5
9.
Installation Tests ........................................................................................................................................................21 Additional Tests ..........................................................................................................................................................21 Failed Acceptance Testing......................................................................................................................................21 Certification of Completion ...................................................................................................................................22 Acceptance of New Releases, Versions, and Enhancements ...................................................................22
Equipment. .....................................................................................................................................................................................23 9.1 9.2 9.3
Option to Purchase From Other Vendors ........................................................................................................23 Latest Equipment .......................................................................................................................................................23 Delivery and Risk of Loss; Title ...........................................................................................................................23
10.
Documentation. ............................................................................................................................................................................23
11.
Payment ...........................................................................................................................................................................................24 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 11.10 11.11
License Fees..................................................................................................................................................................24 Maintenance and Support ......................................................................................................................................24 Custom Programming ..............................................................................................................................................24 Licensor Interfaces ....................................................................................................................................................24 Third Party Interfaces ..............................................................................................................................................24 Training ..........................................................................................................................................................................24 Implementation ..........................................................................................................................................................24 Travel and Living Expenses ...................................................................................................................................24 Payment Does Not Imply Acceptance ...............................................................................................................24 All Fees Stated .............................................................................................................................................................24 Method of Payment ...................................................................................................................................................24
12.
System Configuration.................................................................................................................................................................25
13.
Project Staffing and Reporting Requirements. ...............................................................................................................25 13.1 13.2 13.3
Licensor’s Manager and Other Key Personnel ..............................................................................................25 Project Staff Approval ..............................................................................................................................................25 Reports ...........................................................................................................................................................................26
ii 7/30/2014 10:53 AM
p. 24
CalOptima
SAMPLE CONTRACT 13.4 14.
Custom Programming ..............................................................................................................................................26 Custom Programming Cost ....................................................................................................................................27 Remarketing of Custom Programming .............................................................................................................27 System Support Responsibilities ........................................................................................................................27 Updates ...........................................................................................................................................................................28 Maintenance and Support Fees............................................................................................................................28 Termination of Support by Licensor .................................................................................................................28 Support Not to be Withheld ..................................................................................................................................28 Transitional Service Access and Rights ............................................................................................................28
Licensor’s Representations, Warranties and Covenants. ..........................................................................................29 16.1 16.2 16.3 16.4 16.5 16.6 16.7 16.8 16.9 16.10 16.11 16.12 16.13 16.14 16.15 16.16 16.17 16.18 16.19 16.20
17.
CalOptima’s Project Manager ...............................................................................................................................26
Maintenance and Support. .......................................................................................................................................................27 15.1 15.2 15.3 15.4 15.5 15.6
16.
RFP 15-004
Custom Programming and Remarketing...........................................................................................................................26 14.1 14.2 14.3
15.
Bid 15-004
System and System Component Performance Warranty .........................................................................29 Integration Warranty ...............................................................................................................................................29 Performance Criteria ................................................................................................................................................29 Legal and Accreditation Requirements ............................................................................................................29 Correction, Repair, or Replacement...................................................................................................................29 Embedded and Remarketed Software ..............................................................................................................30 Licensed Software and Functionality ................................................................................................................30 Service .............................................................................................................................................................................30 Assignment of Warranties .....................................................................................................................................30 Litigation Warranty ..................................................................................................................................................30 Virus Warranty ...........................................................................................................................................................30 Insurance Premiums ................................................................................................................................................31 Continuous Product Support ................................................................................................................................31 Communication Standards ....................................................................................................................................31 Product Lifecycle Warranty...................................................................................................................................32 Coordination With Interface Engine Vendor .................................................................................................32 Representations and Warranties Throughout Agreement ......................................................................32 Compliance With Applicable Law .......................................................................................................................32 Compatibility Between Licensor Applications ..............................................................................................32 Compatibility With Third Party Programs .....................................................................................................32
Internal Dispute Resolution. ...................................................................................................................................................33 17.1 17.2 17.3 17.4
Intent ...............................................................................................................................................................................33 Informal Resolution ..................................................................................................................................................33 Informal Dispute Resolution Mandatory .........................................................................................................33 Applicability To Disputes With Vendors Other Than Licensor .............................................................33
18.
Termination. ..................................................................................................................................................................................33
19.
Termination for Unavailability of Funds. ..........................................................................................................................34
20.
Withhold Remedy and Liquidated Damages. ..................................................................................................................35
21.
Insurance And Indemnity. .......................................................................................................................................................35 21.1 21.2 21.3 21.4
Required Insurance Coverages ............................................................................................................................35 Claims Made Coverages ...........................................................................................................................................36 Certificates Of Insurance ........................................................................................................................................36 Subcontractors To Be Insured..............................................................................................................................36
iii 7/30/2014 10:53 AM
p. 25
CalOptima
SAMPLE CONTRACT 21.5 21.6 21.7 21.8 21.9 22.
Bid 15-004
RFP 15-004
Cancellation Or Lapse Of Insurance ...................................................................................................................36 Other Insurance Requirements ...........................................................................................................................36 Indemnity For Injury To Persons And Tangible And Intangible Property .......................................37 Damage to CalOptima Facilities, Buildings, or Grounds ...........................................................................37 Indemnities Throughout Agreement ................................................................................................................37
Ownership And Non-Disclosure Of Proprietary Or Confidential Information. ................................................37 22.1 22.2 22.3 22.4 22.5 22.6 22.7 22.8 22.9
Non-disclosure and Non-use.................................................................................................................................37 Ownership .....................................................................................................................................................................38 Employees .....................................................................................................................................................................38 Equitable Relief ...........................................................................................................................................................38 Proprietary or Confidential Markings ..............................................................................................................38 Compliance With Federal And State Confidentiality Requirements ...................................................39 CalOptima’s Data ........................................................................................................................................................39 Access Control .............................................................................................................................................................39 Ownership of Reports and Documents………………………………………………………………………….....28
23.
Verification Of CalOptima Costs By Government. .........................................................................................................40
24.
Bankruptcy And Liquidation. .................................................................................................................................................40
25.
Assignment and Subcontracting. ..........................................................................................................................................41
26.
Nondiscrimination Compliance. ............................................................................................................................................41
27.
No Liability of County of Orange or State of California. ..............................................................................................42
28.
Prohibited Interest. .....................................................................................................................................................................42
29.
Modification Of Agreement. ....................................................................................................................................................42
30.
Waiver. .............................................................................................................................................................................................42
31.
Independent Contractor. ..........................................................................................................................................................42
32.
Communications Systems and Access to Information. ...............................................................................................43
33.
Interpretation Of Agreement. .................................................................................................................................................43 33.1 33.2 33.3 33.4 33.5 33.6 33.7
Conflict Between Agreement And Exhibits ....................................................................................................43 Choice Of Law ..............................................................................................................................................................43 Venue ...............................................................................................................................................................................43 Agreement Drafted By All Parties .......................................................................................................................44 Terminology .................................................................................................................................................................44 Section Headings ........................................................................................................................................................44 Counterparts ................................................................................................................................................................44
34.
Notices. .............................................................................................................................................................................................44
35.
Entire Agreement. .......................................................................................................................................................................44
36.
Severability.....................................................................................................................................................................................45
37.
Survival. ...........................................................................................................................................................................................45
38.
Electronic Transfer of Licensed Software.........................................................................................................................45
39.
Attorney’s Fees. ............................................................................................................................................................................45
40.
Contractor Performance During Civil Unrest or Disaster. .........................................................................................45
42.
State Medi-Cal Agreement Requirements.........................................................................................................................45
43.
Audit Disclosure…………………………………………………………………………………………………………………………..34
44.
Non-Exclusion Relationship…………………………………………………………………………………………………………34
iv 7/30/2014 10:53 AM
p. 26
CalOptima
SAMPLE CONTRACT 45
Bid 15-004
RFP 15-004
Time is of the Essence………………………………………………………………………………………………………………34
v 7/30/2014 10:53 AM
p. 27
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
EXHIBIT INDEX EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I EXHIBIT J EXHIBIT K EXHIBIT L EXHIBIT M EXHIBIT N EXHIBIT O EXHIBIT P EXHIBIT Q EXHIBIT R
System Requirements Statement Licensed Software Equipment Work plan Escrow Agreement Training Performance Representations System Downtime Warranty Response Time Warranty CalOptima’s Request For Proposal Licensor’s Response to CalOptima’s Request For Proposal Documentation Travel Policy State Medi-Cal Agreement Requirements Medi-Cal Data Access Agreement Attestation Concerning Use of Offshore Subcontractors Business Associate Agreement FDR Compliance Attestation
vi 7/30/2014 10:53 AM
p. 28
CalOptima
Bid 15-004
SAMPLE CONTRACT
RFP 15-004
GRIEVANCE AND APPEALS SOLUTION AGREEMENT This Grievance and Appeals Solution Agreement (“Agreement”) dated for reference purposes as of _________________, 2014 (“Reference Date”) is entered into between the Orange County Health Authority, a Public Agency, dba Orange Prevention and Treatment Integrated Medical Assistance, dba CalOptima (“CalOptima”), and _________________________________ (“Licensor”). RECITALS A. CalOptima is a county organized health system that provides and/or arranges for medical services for Orange County beneficiaries of the Medi-Cal Program and Healthy Families Program. As part of its operations, CalOptima is acquiring a grievance and appeals solution (“GAS”) that CalOptima intends to use to support key activities of its Health Services department, as described in the Scope of Work. B. CalOptima intends its GAS to support the following key activities of the Grievance and Appeals department: (1) utilization of standardized processes for case identification; (2) application of standardized protocols; (3) identification of trends for improvement opportunities; and (4) tracking and trending of compliance, grievances and appeals. C. Licensor has represented that it has the systems architecture, software, professional skills, and technological capabilities required to effectively Implement the System (defined below) as required under this Agreement. D. Both parties acknowledge that a principal objective of CalOptima in entering into this Agreement is to insure that its GAS in general and the System in particular, delivers the functionality to enable CalOptima to achieve the objectives stated above. AGREEMENT In consideration of the foregoing Recitals (which are incorporated herein) and the mutual covenants and agreements contained herein, the parties hereto agree as follows: 1.
Definitions. The following terms, when used in this Agreement, shall have the following meanings: 1.1
“Acceptance”. “Acceptance” shall mean the date on which CalOptima issues a certificate of completion pursuant to Section 8 (Installation and Acceptance Tests) hereof.
1.2
“Adaptation”. “Adaptation” shall mean the non-programming alteration of the Licensed Software utilizing on-line architectural support software, and other user-controlled features provided by Licensor (e.g., the creation, deletion, and alteration of screens, pathways, reports, profiles, documents, and data dictionary elements).
1.3
“Agreement”. “Agreement” shall mean this Grievance and Appeals Solution Agreement, inclusive of its Exhibits and attachments, and any amendments thereto; CalOptima’s RFP 15004 dated July 10, 2014, Licensor’s proposal dated ________ __, 2014, Licensor’s best and final offer dated ________ __, 2014, and all documentation cited herein or incorporated herein by reference. Any new terms and conditions attached to Licensor’s response, invoices, or request for payment shall not be incorporated into the Agreement or binding upon CalOptima unless expressly accepted by CalOptima in writing.
1.4
“CalOptima”. “CalOptima” shall include CalOptima and any person or entity to which this Agreement is assigned in accordance with Section Q (Assignment and Subcontractors).
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 12
p. 29
CalOptima
SAMPLE CONTRACT
RFP 15-004
1.5
“Concurrent User[s]”. “Concurrent User[s]” shall equal the number of unique user identification codes logged on to the System at any point in time. Reports in progress initiated by a User not currently logged on the System shall not constitute a Concurrent User.
1.6
“Correction” or “Update”. “Correction” or “Update” shall mean electronic media containing a Licensed Software correction or “bug fix” or a newly programmed feature intended to either rectify Licensed Software errors or cause the System to perform in a manner which conforms to the System Specifications.
1.7
“CPI Adjustment”. “CPI Adjustment” shall mean a percentage adjustment to a price, fee, or payment specified in this Agreement in an amount equal to the percentage change in the Consumer Price Index for All Urban Consumers, for the United States area, “All Items” (19821984=100), published by the United States Department of Labor, Bureau of Statistics (“Index”), based on the percentage difference between the Index published immediately preceding the date on which the adjustment is to be effective. All adjustments shall be made retroactively to the appropriate date as necessary to account for delays in reporting of the Index. If the Index is changed so that the base year of the Index differs from that specified above, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during the term, such other governmental index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised.
1.8
“Custom Programming”. “Custom Programming” shall mean development of and alteration of existing Licensor Source Materials or the writing of new Source Materials by Licensor at CalOptima’s request, excluding all interfaces identified in Exhibit “B” (Licensed Software). Custom Programming does not include Updates, Enhancements, Releases, Versions, Corrections, remedial or warranty programming, or Adaptations.
1.9
“Defect”. “Defect” shall mean the failure of the System or a System Component to function in accordance with the System Specifications.
1.10
“Documentation”. “Documentation” shall mean all Licensor’s training course materials, system specifications and technical manuals, and all other user instructions regarding the capabilities, operation, installation and use of the System, including but not limited to manuals, handbooks, flow charts, technical information, and other reference materials relating to a System Component, identified on Exhibit “L”.
1.11
“Enhancement” or “Improvement”. “Enhancement” or “Improvement” shall mean electronic media containing any functional or operational improvement made to the Licensed Software.
1.12
“Equipment”. “Equipment” shall mean the computer hardware listed in Exhibit “C” (Equipment) attached hereto.
1.13
“Existing System(s)”. “Existing System(s)” shall have the meaning set forth in Section 1.1.12 (System Configuration).
1.14
“First Productive Use”. “First Productive Use” means the first use of the System to process data of CalOptima’s patients in day-to-day operations. First Productive Use of the System
Section IV – Sample Contract
7/30/2014 10:53 AM
Bid 15-004
Page 13
p. 30
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
shall not occur prior to the Final Integrated Component Test, as described in Section 1.1.8 (Installation and Acceptance Tests). 1.15
“Implementation” and “Implement”. “Implementation” and “Implement” mean the process by which the Licensed Software is installed, implemented, and adapted for use by CalOptima as provided in this Agreement.
1.16
“Interface”. “Interface” shall mean a program including protocols and connections necessary for data processing communications between one software product and another.
1.17
“Joint Commission”. “Joint Commission” shall mean the non-profit entity named “The Joint Commission,” which accredits and certifies health care organizations in the United States.
1.18
“Licensed Software”. “Licensed Software” shall mean individually each, and collectively all, of the computer programs or Modules provided by Licensor under this Agreement, including third party software, as identified in Exhibit “B” (Licensed Software), including as to each program or Module: the processes and routines used in the processing of data, the Source Materials, object code, tapes, disks, Documentation, Corrections, Updates, Enhancements, Improvements, Interfaces, Releases, and Versions to such programs or Modules as may generally be made available by Licensor, and any and all programs or Modules provided by Licensor in the future under this Agreement pursuant to the mutual written agreement of the parties.
1.19
“Milestones”. “Milestones” shall mean the specific milestones and tasks associated therewith described in the Work plan.
1.20
“Module”. “Module” shall mean a self contained unit of the Licensed Software that has its own discrete function and may be separately compiled.
1.21
“Proprietary or Confidential Information”. “Proprietary or Confidential Information” shall mean, with respect to a party hereto, all information or material which (i) gives that party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of that party; or (ii) which is either (A) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (B) known by the parties to be considered confidential and proprietary or (C) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. Proprietary or Confidential Information includes, but is not limited to, the System and any trade secrets related thereto, and CalOptima’s patient data. Neither party shall have any obligation with respect to Proprietary or Confidential Information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party without reference to information derived from the other party; (iv) is ascertainable based on the operation of the object code version of the Licensed Software or use of end user training materials or information; or (v) subject to disclosure under court order or other lawful process.
1.22
“Release”. “Release” shall mean electronic media containing an aggregation of Licensed Software Corrections or Enhancements made to the Licensed Software.
1.23
“Scope of Work.” “Scope of Work” shall mean the work specified in Exhibit A to this Agreement, attached hereto.
1.24
“Source Material(s)”. “Source Material(s)” shall mean the source code of the Licensed Software, including all new Releases, Updates, modifications, Enhancements, Corrections,
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 14
p. 31
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
patches, Improvements, and Interfaces, and all related compiler command files, build scripts, scripts relating to the operation and maintenance of such application, application programming interface (API), graphical user interface (GUI), object libraries, all relevant instructions on building the object code of such application, and all documentation relating to the foregoing, including programmers’ notes, such that collectively the foregoing will be sufficient to enable a person possessing reasonable skill and expertise in computer software and information technology to build, load and operate the machine-executable object code of such application, to maintain and support such application and to effectively use all functions and features of such software. 1.25
“System”. “System” shall mean the operation of all System Components in a functionally integrated manner, with each System Component interfacing with the others, enabling Users to communicate among and between one another and to access and input information to, from, or between, any System Component as provided under this Agreement.
1.26
“System Component(s)”. “System Component(s)” shall mean individually each, and collectively all, of the Licensed Software (including all Custom Programming identified in Exhibit “B” (Licensed Software)), Interfaces, and the Equipment.
1.27
“System Specifications”. “System Specifications” shall mean the System Requirements Statement (Exhibit “A”), CalOptima’s request for proposal, and any amendments thereto, and Licensor’s response thereto (attached respectively as Exhibits “J” (CalOptima’s Request For Proposal) and “K” (Licensor’s Response to CalOptima’s Request For Proposal)); all other system performance requirements included or incorporated by reference into this Agreement including, but not limited to Exhibits “G” (Performance Representations), “H” (System Downtime Warranty), and “I” (Response Time Warranty); and, to the extent it is not inconsistent with the above, the Documentation.
1.28
“Users”. “Users” shall mean any individual or entity authorized by CalOptima to use the System or a System Component under this Agreement.
1.29
“Version”. “Version” shall mean electronic media containing major new Licensed Software features packaged and delivered as a significant revision to Licensed Software.
1.30
“Work plan”. “Work plan” shall mean the tasks and events leading to implementation of the System, attached hereto as Exhibit D (Work plan).
Scope of Work. Licensor shall perform the work necessary to complete, in a manner satisfactory to CalOptima, and if applicable, the Centers for Medicare and Medicaid Services (“CMS”), the California Department of Health Care Services (“DHCS”), and/or the California Department of Managed Health Care (“DHMC”), as applicable, the work set forth under this Agreement and in Exhibit A, entitled “Scope of Work,” which is attached hereto and incorporated herein by this reference. Licensor shall also perform in accordance with its Proposal dated [INSERT DATE, 2014], and supplemental other information submitted to CalOptima on [INSERT DATE, 2014]. 2.
Term of Support. 2.1
Initial Support Term. This Agreement shall be effective as of the Reference Date and, as to the support obligations of the parties as set forth in Section 1.1.15 (Maintenance and Support), shall continue in effect for a 1 year 8 months term thereafter (the “Initial Support Term”), unless earlier terminated as provided herein.
2.2
Options to Extend.
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 15
p. 32
CalOptima
SAMPLE CONTRACT
3.
RFP 15-004
A.
Exercise of Option. At the end of the Initial Support Term of this Agreement, CalOptima may, at its option, extend this Agreement for up to five (5) additional consecutive one (1) year terms (“Extended Support Terms”); provided that if CalOptima does not exercise its option to extend at the end of the Initial Support Term, or any Extended Support Term, the remaining option(s) shall automatically lapse. As used throughout this Agreement, the words “Support Term” shall include the Initial Support Term, and any and all Extended Support Term(s), to the extent CalOptima exercises its options pursuant to this Section.
B.
Fees During Extended Support Terms. The fees to be paid by CalOptima during the Extended Support Term(s) of this Agreement shall be the lower of: (1) the then current Licensor list price for any applicable item or service, less twenty percent (20%), or (2) the fees being paid by CalOptima one day prior to commencement of an Extended Support Term (“Base Fee”) with a CPI Adjustment.
Licensed Software License. 3.1
License Grant. Licensor grants to CalOptima a perpetual and non-exclusive license to use the Licensed Software and Documentation for its and its Users business activities subject to the Concurrent User requirements, if any, of this Agreement. Licensor also grants CalOptima use of the Licensed Software to be uploaded on a server located at CalOptima’s Disaster Recovery vendor location.
3.2
Commencement of License. The License granted herein shall commence upon the earlier of the delivery of the Licensed Software to Licensor or the Reference Date and, provided payment for such license is made as provided herein, shall continue in perpetuity and without regard to the Support Term of this Agreement.
3.3
No Disassembly. The Licensed Software shall not in any way be disassembled, decompiled or reverse engineered, nor shall any attempt to do same be undertaken or permitted.
3.4
No Service Bureau. CalOptima shall not be authorized to make the Licensed Software available for use to any person or entity that has no substantive affiliation or relationship with CalOptima’s business in addition to use of the Licensed Software.
3.5
Subsequent Releases/Versions/New Product. In the event that during the Term of this Agreement, Licensor shall sell, license, or otherwise market any future Release or Version of the Licensed Software after delivery to CalOptima of the System, CalOptima shall receive such Release or Version from Licensor at no charge within thirty (30) days of its general availability. Further, during the Initial Support Term, if Licensed Software functions not included in the Licensed Software marketed by Licensor as of the Reference Date of this Agreement, and not otherwise provided to CalOptima under this Agreement, are subsequently made generally available to any of Licensor’s clients, CalOptima shall have the option to obtain such functions at a price equal to the lowest price charged by Licensor for such Module or program to any then present Licensor client. If within five (5) years of the Reference Date of this Agreement, the Licensed Software is displaced (or another renamed product is distributed), CalOptima shall receive the new product at no additional charge as an Update under this Agreement.
3.6
Interfaces. The license fees and Implementation costs for all Interfaces installed during the Support Term of this Agreement shall be included in the license fees for the Licensed Software. In the event a third party requires payment of a license fee in order for Licensor to create an Interface to the System or instrument of said third party, then CalOptima shall be responsible for paying such license fees.
Section IV – Sample Contract
7/30/2014 10:53 AM
Bid 15-004
Page 16
p. 33
CalOptima
SAMPLE CONTRACT 3.7
4.
RFP 15-004
Audit. CalOptima may, at its own cost and expense, upon written notice to Licensor and during mutually agreed upon times, no more than once per year during the term of this Agreement, by itself or through an independent accounting firm, audit Licensor’s facilities and operations to ensure that Licensor is in compliance with the terms of this Agreement, including, but not limited to its obligations to timely provide Corrections, Updates, Documentation, Enhancements, Improvements, Interfaces, Releases, or other matters and obligations contained in this Agreement. Licensor shall provide all reasonable assistance to CalOptima during the audit. In the event CalOptima elects to use an independent accounting firm then such firm shall agree to be bound by the confidentiality provisions contained in this Agreement and shall abide by Licensor’s reasonable security procedures while on Licensor’s premises. If an audit reveals that Licensor has not complied with its obligations in this Agreement then CalOptima shall be provided and Licensor shall immediately so provide CalOptima with: (i) the performance of the obligation that was not performed, without charge of any type, including without the charge that would have been payable by CalOptima had the obligation been timely performed by Licensor, (ii) any and all additional services and/or products, software, or other items that are necessary for CalOptima to fully receive the benefits of that which was not timely provided, (iii) liquidated damages of $1,000 per day, in addition to any other liquidated damages that are payable as a result of the failure to perform, for the period that the obligation remained unperformed, including both the period of time prior to the audit that revealed the failure to perform and the period of time during which Licensor takes to remedy the failure to perform, and (iv) CalOptima’s reasonable third party costs of conducting the audit. Licensor acknowledges and agrees that the liquidated damages assessed pursuant to this Section shall be payable to CalOptima upon demand and may, at CalOptima’s option, be set off against any monies due to Licensor under this Agreement and are reasonable under the circumstances existing as of the date this Agreement is entered into; however, this provision shall not limit CalOptima’s right to receive reimbursement for attorneys’ fees, nor waive or affect CalOptima’s rights and Licensor’s indemnity obligations under other sections of this Agreement. The parties acknowledge that the payment of such liquidated damages is not intended as a forfeiture or penalty within the meaning of California Civil Code Section 3275 or 3369, but is intended to constitute liquidated damages to CalOptima pursuant to California Civil Code Section 1671.
Authority to License, Quiet Enjoyment, Proprietary Rights and Indemnity. 4.1
Authority to License and Non-Infringement. Licensor warrants that it has full power and authority to grant the rights granted by this Agreement to CalOptima, that no consent of any other person or entity is required by Licensor to grant such rights other than consents that have been obtained and are in effect, and that neither the performance of this Agreement by Licensor, nor the license to, and use by, CalOptima and its Users of the System or System Components will in any way violate any non-disclosure agreement, nor constitute an infringement or other violation of any copyright, trade secret, trademark, service mark, patent, invention, proprietary information, or other rights of any third party.
4.2
Quiet Enjoyment. CalOptima shall be entitled to use the System and all System Components without disturbance, subject only to CalOptima’s obligation to make the required payments under this Agreement. Licensor represents and warrants that this Agreement is neither subject nor subordinate to any right or claim of any third party, including without limitation Licensor’s creditors. Further, Licensor represents and warrants that during the Support Term of this Agreement, it will not subordinate this Agreement or any of its rights hereunder to any third party without the prior written consent of CalOptima, and without providing in such subordination instrument for non-disturbance of CalOptima’s use of the System and System Components in accordance with this Agreement.
4.3
Proprietary Rights Indemnity. At Licensor’s expense as described herein, Licensor agrees to defend, indemnify, and hold harmless CalOptima, its Users, directors, officers, agents,
Section IV – Sample Contract
7/30/2014 10:53 AM
Bid 15-004
Page 17
p. 34
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
employees, members, subsidiaries, joint venture partners, and predecessors and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees as provided herein, arising out of any claim (1) that the System or System Components or any part of them, infringes upon or otherwise violates any copyright, trade secret, trademark, service mark, patent, invention, proprietary information, or other rights of any third party, or (2) that CalOptima’s use of the System otherwise violates this Section (collectively referred to for purposes of this Section as “Infringement Claim(s)”) by paying all amounts that a court finally awards or that Licensor agrees to in settlement of such Infringement Claim(s) as well as any and all expenses or charges arising from such Infringement Claim(s) (including attorneys fees) as they are incurred by CalOptima or any other party indemnified under this Section. CalOptima also agrees that, if the operation of the System or System Components, or any part of them, becomes, or in Licensor’s opinion is likely to become, the subject of an Infringement Claim(s), CalOptima will permit Licensor, at Licensor’s option and expense for all associated costs, either to procure the right for CalOptima to continue to use the System or affected System Component, or part thereof, or to replace or modify the System or System Component with another item of comparable quality and performance capabilities to become non-infringing, provided such replacement or modification does not cause the System or System Components, or any part thereof, to fail to comply with any of the requirements of this Agreement, including, but not limited to all functionality, technical specifications, performance warranties, and System Specifications. In the event CalOptima’s ongoing use of the System or System Components, or any part of them, is the subject of any act by a third party arising from an Infringement Claim that would preclude or impair CalOptima’s use of the System or System Component (e.g. injunctive relief), or if CalOptima’s continued use of the System or System Component may subject it to punitive damages or statutory penalties, CalOptima shall give written notice to Licensor of such fact(s). Upon notice of such facts, Licensor shall procure the right for CalOptima to continue to use the System or affected System Component, or part thereof, or replace or modify the System or System Component with another system or components of comparable quality and performance capabilities to become non-infringing, all at Licensor’s sole cost and expense. If Licensor fails to complete the remedial acts set forth above within forty five (45) days of the date of the written notice from CalOptima, CalOptima shall have the right to take such remedial acts it determines to be reasonable to mitigate any impairment of its use of the System or System Components or damages, including, but not limited to the right to replace or modify the entire System or System Components with another system or components of comparable quality and performance capabilities, all at Licensor’s sole cost and expense (hereafter referred to as “CalOptima’s Remedial Acts”). In the event CalOptima is compelled to cease use of the System, or Licensor fails to complete the remedial acts set forth above within forty five (45) days of the date of the written notice from CalOptima, CalOptima shall be entitled, in addition to any and all other remedies available to it under this Agreement, to a refund of all of the fees and expenses it has paid to Licensor and shall have no further obligation to pay anything more to Licensor. In addition, Licensor shall indemnify CalOptima for all amounts paid and direct and indirect costs associated with CalOptima’s Remedial Acts. Failure by Licensor to pay such amounts within ten (10) days of invoice by CalOptima shall, in addition to, and cumulative to all other remedies (and in the event CalOptima is not entitled to a refund of all fees paid and a cancellation of any amounts still due), entitle CalOptima to immediately withhold payments due to Licensor under this Agreement up to the amount paid in connection with CalOptima’s Remedial Acts. 5.
Escrow of Source Materials. 5.1
Escrow Agent and Release Conditions. Licensor has deposited a copy of the Source Material of the Licensed Software with _________________________________, a software escrow agent (the “Escrow Agent”), located at _______________________________________________, ____________ (the “Escrow”). Licensor shall continually update the Source Material by depositing in the
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 18
p. 35
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
escrow each new Release, Update, Version, Enhancement, Correction, patch, and improvement of the Licensed Software (e.g., by depositing such materials within ten days of their general availability). Licensor’s duty to update the Source Material shall continue through the Support Term of this Agreement or until CalOptima ceases obtaining support from Licensor, whichever is later. The Source Material will be held in the Escrow and the events upon which CalOptima shall have access to the Source Material shall include (collectively the “Release Conditions”): (1) the insolvency of Licensor; (2) the making of a general assignment by Licensor for the benefit of its creditors or a filing of a voluntary or involuntary petition in bankruptcy by or against Licensor that is not dismissed within thirty (30) days of the filing thereof; (3) as set forth in Section 24 (Bankruptcy And Liquidation); (4) in the event Licensor ceases to maintain and support the Licensed Software for reasons other than CalOptima’s failure to pay for, or election not to receive, Licensor’s maintenance and support services, and no other qualified entity has assumed the obligation to maintain and support the Licensed Software; (5) a significant decrease in the capacity or quality of support, as indicated by a failure to hit service levels five times in any six month period; (6) a failure to provide New Releases that add significant new functionality or significantly improve existing functionality within twenty-four (24) months from the previous New Release; (7) a different hardware platform is established for the product, without maintenance of the Licensed Software on the originally agreed equipment platform for a period of five years from the Reference Date of this Agreement; and (8) Licensor’s failure to complete the Remedial Acts referred to in Section 4.3 (“Proprietary Rights Indemnity”) within forty five (45) days of written notice from CalOptima. 5.2
Use of Source Material. Upon the occurrence of a Release Condition (or any other release conditions that may be specified under this Agreement), CalOptima will, upon payment of the duplication cost and other handling charges of the Escrow Agent, be entitled to obtain a copy of such Source Material from the Escrow Agent. CalOptima shall be entitled to use the Source Material as needed to remedy the event of release and mitigate any damages arising from such event. Such use will include, but is not limited to, CalOptima’s right to perform its own support and maintenance and alter or modify the Source Material. The Escrow Agent’s only responsibility will be to use its good faith efforts to cause a copy of the Source Material, in the form as delivered by Licensor, to be delivered to CalOptima at the appropriate time. Nothing herein relieves Licensor of its obligation to provide and support as provided in Section 15 of this Agreement.
5.3
Proprietary Rights. CalOptima acknowledges that any possession of the Source Material referred to herein is subject to the confidentiality and proprietary provisions of access to any third party except to service, maintain, repair, operate, or otherwise facilitate and continue the use and operation of the installed Licensed Software as provided herein. Should use of the Source Material as provided in this Section involve the use or practice of any patent, copyright, trade secret, trademark or other proprietary information in which Licensor has an interest, Licensor, its assignee, or successors, agree not to assert a claim for patent, copyright, trade secret, trademark or other proprietary information infringement against CalOptima or any User provided use of Licensed Software and Source Material is in accordance with this Agreement.
5.4
CalOptima’s Right to Verify Source Code. Regardless of whether one of the Release Conditions occurs, CalOptima shall have the right, at CalOptima’s sole expense, to require the Escrow Agent to verify the relevance, completeness, currency, accuracy, and functionality of the Source Material by, among other things, compiling the Source Material and performing test runs for comparison with the capabilities of the Licensed Software. In the event such testing demonstrates the Source Material does not correspond to the Licensed Software, Licensor shall reimburse CalOptima for all costs and fees incurred in the testing and immediately deposit the correct Source Material with the Escrow Agent.
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 19
p. 36
CalOptima
SAMPLE CONTRACT
6.
RFP 15-004
5.5
Amendment of Escrow Agreement. Section ___ of the Escrow Agreement (Exhibit “E”) is hereby amended by adding to it the conditions of release set forth in this Section. This Section shall also constitute an amendment to the Escrow Agreement delivered to Escrow Agent.
5.6
No Fee. There shall be no charge to CalOptima for the creation or the maintenance of the Escrow under this Agreement.
Work plan, Implementation, and First Production Use. 6.1
Work plan Schedule. Licensor’s responsibilities for the delivery, installation, and First Productive Use, as applicable, as to each System Component and as to the System, and the training of CalOptima Users in the use of each System Component and the System, shall be accomplished by Licensor on or before the dates set forth in the Work plan attached hereto as Exhibit “D” (Work plan). Licensor shall provide to CalOptima the Implementation services described in the Work plan without causing a material disruption of CalOptima’s operations. The Implementation services shall not defer any obligations or liabilities of Licensor under this Agreement.
6.2
Milestones and Failure to Achieve Milestones. Implementation shall proceed according to the Milestones described in the attached Work plan, Exhibit “D” (Work plan). In the event a Milestone is not completed by the date identified for its completion, and thereafter the Milestone is not completed within one (1) week of the date identified for its completion, and the failure to complete the Milestone by the required date is primarily caused by any action or inaction of Licensor, CalOptima shall, in addition to, and cumulative to all other remedies be entitled to immediately withhold the entire payment associated with completion of the Milestone until the time schedule default is cured. In the event a Milestone is not completed within two (2) weeks of the date identified for its completion, and the failure to complete the Milestone by the required date is primarily caused by any action or inaction of Licensor, such failure shall entitle CalOptima to the payment by Licensor of liquidated damages in the amount of one thousand dollars ($1,000) per day for each day after the foregoing two (2) week period that the Milestone remains uncompleted. Licensor acknowledges and agrees that the liquidated damages assessed pursuant to this Section shall be payable to CalOptima upon demand and may, at CalOptima’s option, be set off against any monies due to Licensor under this Agreement and are reasonable under the circumstances existing as of the date this Agreement is entered into; however, this provision shall not limit CalOptima’s right to receive reimbursement for attorneys’ fees, nor waive or affect CalOptima’s rights and Licensor’s indemnity obligations under other sections of this Agreement. The parties acknowledge that the payment of such liquidated damages is not intended as a forfeiture or penalty within the meaning of California Civil Code Section 3275 or 3369, but is intended to constitute liquidated damages to CalOptima pursuant to California Civil Code Section 1671.
6.3
Failure to Comply With the Work plan. The failure of Licensor to meet its responsibilities as set forth in the Work plan as to any System Component or as to the System, unless extended or modified by the written agreement of the parties, shall be a material breach by Licensor of this Agreement, entitling CalOptima, in addition to and cumulative of all remedies available to it at law, in equity or under this Agreement, to immediately commence withholding payments to Licensor under this Agreement until Licensor cures the Work plan time schedule default. The amount of any payment(s) withheld by CalOptima shall be in an amount that is in proportion to the magnitude of the default, as determined in CalOptima’s reasonable discretion.
6.4
Delivery and Risk of Loss. Licensor shall bear the full risk of loss due to total or partial destruction of the Licensed Software or other System Components provided by Licensor under this Agreement to the CalOptima designated facility. Licensor shall also obtain and
Section IV – Sample Contract
7/30/2014 10:53 AM
Bid 15-004
Page 20
p. 37
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
pay for insurance covering the loss or destruction of the Licensed Software or other System Components prior to their delivery to CalOptima in amounts sufficient to fully cover the identical replacement of the Licensed Software and all System Components. 7.
Training. Licensor will provide training to CalOptima and Users as described in Exhibit “F” (Training), attached hereto, and in accordance with the time schedule set forth in the Work plan.
8.
Installation and Acceptance Tests. 8.1
Installation Tests. Licensor shall conduct an installation test in order to confirm that the System satisfies the System Specifications in all material respects. Licensor shall give CalOptima notice of the installation test at least ten (10) days before it is scheduled to commence, and a designated representative of CalOptima may observe the installation test and verify the results as CalOptima deems necessary or appropriate. Upon satisfactory completion of the installation test, Licensor shall deliver to CalOptima a written certification of completion of the installation test detailing the tests that were conducted, the degree of performance of each component of the System, and any issues that could conceivably affect the System’s performance in the future.
8.2
Additional Tests. After Licensor delivers the certification of completion of the installation test, CalOptima shall begin its testing and perform such tests as are reasonable and appropriate, including, without limitation, the following tests (individually, an “Acceptance Test” and collectively, the “Acceptance Tests”):
8.3
A.
“Initial Component Testing” to determine whether each System Component of the System has been properly installed and is operating in accordance with applicable System Specifications;
B.
“Integrated Component Test” to determine whether each System Component of the System interfaces and integrates with other System Components of the System already installed and whether each such System Component operates in the approved operating configuration and in accordance with applicable System Specifications;
C.
“Final Integrated Component Test” to test the same functionality as the Integrated Component Test using actual data from CalOptima’s day-to-day operations; and
D.
“Final System Test” to ensure that all System Components provided under this Agreement interface and integrate with CalOptima’s Existing System in the approved operating configuration and operate in accordance with applicable System Specifications.
Failed Acceptance Testing. If CalOptima makes a good faith determination that the System as a whole, or a System Component has not successfully completed an Acceptance Test, CalOptima shall promptly notify Licensor in writing of such failure (hereinafter “Notice of Failure”), specifying with as much detail as possible the manner in which the System Component or System failed to pass the applicable Acceptance Test. Licensor shall immediately commence all reasonable efforts to complete, as quickly as possible, such necessary corrections, repairs and modifications to the System Component or the System as will permit the System Component and the System to be ready for retesting. Licensor shall notify CalOptima when such corrections have been completed, and the Acceptance Tests shall begin again. If, after CalOptima completes the applicable Acceptance Test for a third time, it makes a good faith determination that the System Component or System again fails
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 21
p. 38
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
to pass the applicable Acceptance Test, CalOptima shall promptly notify Licensor in writing, specifying in the notice CalOptima’s election either to (1) afford Licensor the opportunity to repeat the correction and modification process as set forth above, or (2) depending on the nature and extent of the failure, and the parts of the System Component or System affected, in CalOptima’s sole judgment, terminate this Agreement in accordance with Section 18 (Termination) as a non-curable default with respect to (i) one or more particular Module(s) that is (are) not performing as required herein, (ii) the entire System Component, or (iii) if the failure materially affects the function or desirability of the System to CalOptima as a whole, the entire System. The foregoing correct and modify procedure shall be repeated until the System Component or System, based on CalOptima’s good faith determination, passes the applicable Acceptance Test, or CalOptima elects one of the termination options described above. In the event of a termination under this Section, Licensor shall pay to CalOptima, within ten (10) business days of written notice of termination: (1) all sums paid to Licensor by CalOptima under this Agreement for the Module or System Component as to which the termination applies, or for the entire System if the entire Agreement is terminated, and (2) the sum equal to all of the out-of-pocket expenses incurred by CalOptima in connection with such failed Module, System Component or System, including, but not limited to, CalOptima labor and outside consulting costs. If the termination applies only to a Module or System Component, at CalOptima’s option, any reimbursement due to it may be credited against other sums due and payable by CalOptima to Licensor under this Agreement. If Licensor fully performs by making complete reimbursement to CalOptima as provided herein for the Module, System Component or System, as applicable, the reimbursement remedy under this Section shall be CalOptima’s sole remedy and shall preclude any other remedy available under this Agreement or at law or in equity for failure of the applicable Acceptance Test. 8.4
Certification of Completion. After CalOptima has determined that the System has passed the Final System Test, CalOptima shall issue a written certificate of completion, which shall not unreasonably be withheld.
8.5
Acceptance of New Releases, Versions, and Enhancements. CalOptima may, in its discretion, subject any and all Releases, Versions, and Enhancements provided hereunder by Licensor to the Acceptance Tests described above. If CalOptima makes a good faith determination that a Release, Version, or Enhancement has not successfully completed an Acceptance Test, CalOptima shall promptly notify Licensor in writing of such failure (hereinafter “Notice of Failure”), specifying with as much detail as possible the manner in which the Release, Version, or Enhancement failed to pass the applicable Acceptance Test. Licensor shall immediately commence all reasonable efforts to complete, as quickly as possible, such necessary corrections, repairs and modifications to the Release, Version, or Enhancement as will permit them to be ready for retesting. Licensor shall notify CalOptima when such corrections have been completed, and the Acceptance Tests shall begin again. If, after CalOptima completes the applicable Acceptance Test for a third time, it makes a good faith determination that the Release, Version, or Enhancement again fails to pass the applicable Acceptance Test, CalOptima shall promptly notify Licensor in writing, specifying in the notice CalOptima’s election either to (1) afford Licensor the opportunity to repeat the correction and modification process as set forth above, or (2) reject the Release, Version, or Enhancement and remain on the current release/version of the Licensed Software, receive a refund of any fees paid for such Release, Version, or Enhancement, and Licensor shall continue to support such release/version for the remainder of the Term. The foregoing correct and modify procedure shall be repeated until the Release, Version, or Enhancement, based on CalOptima’s good faith determination, passes the applicable Acceptance Test, or CalOptima elects to reject the Release, Version, or Enhancement. Rejection of the Release, Version, or Enhancement pursuant to this Section shall be in addition to and cumulative of all other remedies CalOptima may have under this Agreement, at law, or in equity.
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 22
p. 39
CalOptima
SAMPLE CONTRACT 9.
10.
Bid 15-004
RFP 15-004
Equipment. 9.1
Option to Purchase From Other Vendors. CalOptima shall have the option, in its sole discretion, to purchase any or all Equipment from vendors other than Licensor or the vendors proposed by Licensor. Licensor may not and shall not order any Equipment without first obtaining written approval from CalOptima. Exhibit “C” shall contain the price for each element of the Equipment proposed to be acquired and used for the System by Licensor. Licensor shall update Exhibit “C” from time to time as it becomes aware of better or more cost-effective Equipment.
9.2
Latest Equipment. Notwithstanding the Equipment proposed to be used for the System, in the event CalOptima directs Licensor in writing to order a piece or pieces of Equipment identified on Exhibit “C”, as amended, prior to ordering each item of Equipment under this Agreement, Licensor shall first use commercially reasonable efforts to identify alternate equipment with greater processing power, additional features, and/or at a lower cost with the same or better functionality. Licensor shall advise CalOptima of the availability of any such equipment and, if agreed to by the parties in writing, shall substitute such equipment for the Equipment initially selected by CalOptima to be ordered in its written order direction to Licensor. Any cost savings realized by such a substitution shall be passed on to CalOptima.
9.3
Delivery and Risk of Loss; Title. Licensor and its third party vendors shall bear the full risk of loss due to total or partial destruction of the Equipment prior to its delivery to CalOptima. Licensor and its third party vendors shall also obtain and pay for insurance covering the loss or destruction of the Equipment prior to its delivery to CalOptima. Title to each piece of Equipment purchased by CalOptima from Licensor under this Agreement shall pass to CalOptima on delivery of the Equipment to the facility designated by CalOptima. Passing of title upon such delivery shall not constitute acceptance of the Equipment by CalOptima.
Documentation. At no additional charge to CalOptima, Licensor shall provide CalOptima with all Documentation relating to the System. Initially, Documentation relating to the first delivery of each System Component shall be provided to CalOptima at least thirty (30) days prior to each System Component’s delivery. If the Documentation for the System or any System Component is revised or supplemented at any time, Licensor shall deliver a copy of such revised or supplemental Documentation to CalOptima on or before ten (10) business days prior to its general availability, at no cost to CalOptima. If the Documentation is revised or supplemented because the System or any System Component has been or will be altered such that the Documentation is necessary to efficiently use the revised System or any System Component, then Licensor shall deliver a copy of such revised or supplemental Documentation to CalOptima on or before ten (10) business days prior to the release of the altered System or System Component, at no cost to CalOptima. In the event the Documentation is not timely delivered, CalOptima shall, in addition to, and cumulative to all other remedies available to it under this Agreement, be entitled to the payment by Licensor of liquidated damages in the amount of One Thousand Dollars ($1,000) per day for each day after the deadline for the delivery of the Documentation until the delivery is completed. Licensor acknowledges and agrees that the liquidated damages assessed pursuant to this Section shall be payable to CalOptima upon demand and may, at CalOptima’s option, be set off against any monies due to Licensor under this Agreement and are reasonable under the circumstances existing as of the date this Agreement is entered into; however, this provision shall not limit CalOptima’s right to receive reimbursement for attorneys’ fees, nor waive or affect CalOptima’s rights and Licensor’s indemnity obligations under other sections of this Agreement. The parties acknowledge that the payment of such liquidated damages is not intended as a forfeiture or penalty within the meaning of California Civil Code Section 3275 or 3369, but is intended to constitute liquidated damages to CalOptima pursuant to California
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 23
p. 40
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
Civil Code Section 1671. CalOptima may, at any time, reproduce copies of all Documentation and other materials provided by Licensor, distribute such copies to its Users, and incorporate such copies into its own technical manuals, provided that such reproduction relates to CalOptima’s use of the System or any System Component(s), and copyright notices, if any, are reproduced thereon. 11.
Payment. [TERMS TO BE NEGOTIATED] 11.1
License Fees.
11.2
Maintenance and Support.
11.3
Custom Programming.
11.4
Licensor Interfaces.
11.5
Third Party Interfaces.
11.6
Training.
11.7
Implementation.
11.8
Travel and Living Expenses. Travel and living expenses charged to CalOptima under this Agreement shall be consistent with CalOptima’s Travel Policy, attached as Exhibit "M” (Travel Policy). Receipts or reasonable evidence thereof are required for commercial travel, car rental, parking, and lodging. When Licensor employees visit more than one client on the same trip, the expenses incurred are apportioned in relation to time spent with each client. Licensor shall obtain CalOptima’s prior written approval, which shall not be unreasonably withheld or delayed, before incurring any expenses exceeding, in the aggregate, One Thousand Dollars ($1,000.00). Such approval, however, shall not be required for travel identified in the Work plan. Licensor shall use commercially reasonable efforts to make airline reservations for travel identified in the Work plan sufficiently in advance of the travel date so as to obtain the lowest airfare.
11.9
Payment Does Not Imply Acceptance. The making of any payment or payments by CalOptima, or the receipt thereof by Licensor, shall in no way affect the responsibility of Licensor to furnish the System and all System Components in accordance with this Agreement, and shall not imply acceptance by CalOptima of the System or any System Component or the waiver of any warranties or requirements of this Agreement.
11.10
All Fees Stated. Except as set forth in this Section, or as otherwise agreed pursuant to Section 29 (Modification Of Agreement), there are no other fees or costs to be paid by CalOptima under this Agreement.
11.11
Method of Payment. A.
Implementation Fees: Licensor shall invoice CalOptima electronically on a monthly basis for implementation fees to CalOptima’s Accounts Payable Office at
[email protected]. Each invoice shall cite Agreement No. ___; specify the number of hours worked; the description of work performed; the time period covered by the invoice and the amount of payment requested; and be accompanied by a progress report. If Licensor is submitting travel related expenses, it must provide support documentation as listed within CalOptima’s Travel Policy with its invoices. CalOptima shall remit payment within thirty (30) days of receipt and approval of each invoice.
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 24
p. 41
CalOptima
Bid 15-004
SAMPLE CONTRACT B.
12.
RFP 15-004
License and Maintenance Fees: Licensor shall invoice CalOptima electronically on an annual basis for license and maintenance fees to CalOptima’s Accounts Payable Office at
[email protected]. Each invoice shall cite Agreement No. ___; specify a description of products/services provided; the time period covered by the invoice and the amount of payment requested. If Licensor is submitting travel related expenses, it must provide support documentation as listed within CalOptima’s Travel Policy with its invoices. CalOptima shall remit payment within thirty (30) days of receipt and approval of each invoice.
System Configuration. Licensor acknowledges that it has had the opportunity to assess CalOptima’s existing information systems, including, but not limited to, its computer platform(s), operating system(s), applications, interface engines, connectivity, and workstation configurations (hereinafter collectively referred to as the “Existing System”). Licensor has also had the opportunity to inquire of CalOptima’s staff regarding the operation of the Existing System and its components and has had the opportunity to review documentation regarding the Existing System. Licensor represents and warrants that the Existing System, together with the System, are sufficient in size, capacity, and processing capability to operate the System for the use of CalOptima and its Users as set forth in this Agreement. If equipment, applications, interfaces, or operating systems, in addition to those in the Existing System as of the Reference Date or included in the System, are required to support or operate the System as required by this Agreement, or to effect CalOptima’s seamless transition from the Existing System to the System (including, but not limited to mapping, logistics, and related matters), then Licensor shall pay all costs associated with the acquisition and installation of such additional equipment, applications, interfaces or operating system.
13.
Project Staffing and Reporting Requirements. 13.1
Licensor’s Manager and Other Key Personnel. Licensor shall assign a Project Manager for managing the implementation as agreed to by CalOptima and Licensor. The initial “Licensor Project Manager” for the System shall be _______________________________. The Licensor Project Manager shall be responsible for Licensor’s day-to-day activities under this Agreement and for providing CalOptima reports as provided in this Section. The Licensor Project Manager shall also serve as Licensor’s liaison with CalOptima, assign and schedule Licensor personnel to perform all of the services required by Licensor under this Agreement, and act as Licensor’s initial representative for dispute resolution. In addition to the Licensor Project Manager, Licensor shall provide the personnel listed below for the specified function: Name __________________ ___________________
Function/Title ____________________ ____________________
No person named in this Section 13.1 shall be removed or replaced by Licensor, nor shall his/her agreed upon function or level of commitment hereunder be changed, without the prior written consent of CalOptima. 13.2
Project Staff Approval. CalOptima shall have the right to approve or to disapprove of any member of Licensor’s project staff assigned to perform under this Agreement. Should the CalOptima Project Manager (as hereinafter defined) be dissatisfied with the performance, competence, responsiveness, capabilities, cooperativeness, or fitness for a particular task of any person assigned by Licensor to perform services under this Agreement, including the Licensor Project Manager, the CalOptima Project Manager may request the replacement of that person. The replacement request shall be in writing and upon receipt of the request, Licensor shall furnish a qualified replacement within fifteen (15) business days which person shall also be subject to CalOptima’s approval. In the event Licensor should ever need
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 25
p. 42
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
to remove any staff from performing services under this Agreement, Licensor shall provide CalOptima with adequate notice, except in circumstances in which such notice is not possible, and shall work with CalOptima on a mutually agreeable transition plan so as to provide an acceptable replacement and ensure project continuity. Licensor agrees that all project staff assigned to performing this Agreement must have experience with installations in which they were responsible for performing the tasks to which they will be assigned under this Agreement. In the event that, as a result of the actions or inaction of Licensor project staff, additional work is required to perform this Agreement, Licensor shall perform all such work at no additional charge to CalOptima. In addition, Licensor represents and warrants that it will, to the maximum extent possible, take all necessary steps to assure continuity over time of the membership of the group constituting Licensor’s project staff. Licensor shall promptly fill any staff vacancy with personnel having qualifications at least equivalent to those of the project staff member(s) being replaced. 13.3
Reports. The Licensor Project Manager and CalOptima Project Manager shall communicate as required by the work in progress. The communications shall include a report from Licensor’s Project Manager regarding: Overview of activities occurring during the reporting period; Issues to be resolved; Issues resolved; Summary of project status as of the reporting date; Updates on implementation of the work plan, and Any other information that CalOptima may, from time to time, reasonably request or Licensor may deem appropriate.
13.4
14.
CalOptima’s Project Manager. CalOptima shall assign a Project Manager for managing the implementation as agreed to by CalOptima and Licensor. The initial “CalOptima Project Manager” of the System shall be __________________________________. The CalOptima Project Manager shall be responsible for CalOptima’s day-to-day activities under this Agreement and for providing reports as provided in this Section. The CalOptima Project Manager shall also serve as CalOptima’s liaison with Licensor for day-to-day management of the implementation of the System, including, assigning and scheduling CalOptima personnel to perform all of the services required by CalOptima under this Agreement, and acting as CalOptima’s initial representative for dispute resolution. The CalOptima Project Manager shall respond to the Licensor Project Manager’s reports to the extent that a response is appropriate as determined by the CalOptima Project Manager.
Custom Programming and Remarketing. 14.1
Custom Programming. Licensor shall develop specifications for Custom Programming with CalOptima’s input and submit to CalOptima the specifications, and develop, install, and make operational the Custom Programming in accordance with a mutually agreed upon work plan. As new or additional Custom Programming in CalOptima’s sole opinion becomes necessary or desirable after the certificate of completion of the Final System Test has been delivered, Licensor shall provide such Custom Programming within a commercially reasonable time frame but in no less than two (2) weeks’ after the request has been made by CalOptima. Licensor represents and warrants that all Custom Programming furnished hereunder shall be free from programming errors affecting the operation of the Custom Programming, and from defects in workmanship and materials, and that the Custom Programming shall operate
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 26
p. 43
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
in conformity with the performance capabilities, specifications, functions, and other standards applicable thereto as set forth in the specifications or this Agreement for a period of one (1) year from the date of installation of such Custom Programming. Licensor further represents and warrants that all Custom Programming services shall be performed in a timely and professional manner by qualified professional personnel and that the services and Custom Programming shall conform to the standards generally observed in the industry for similar services and custom programming.
15.
14.2
Custom Programming Cost. At no additional charge to CalOptima, all such Custom Programming shall be subject to Licensor’s support obligations hereunder.
14.3
Remarketing of Custom Programming. If Licensor determines that Custom Programming performed by Licensor under this Agreement would be useful to other Licensor clients, Licensor may, upon CalOptima’s prior written consent, license that Custom Programming to, or otherwise utilize it in developing programs for, or make it available to, Licensor’s other clients (other than by incorporating the Custom Programming into a Licensor standard application), provided that Licensor shall credit to CalOptima twenty percent (20%) of any license, service, use or other fees received by Licensor in connection therewith. Moreover, if the Custom Programming is incorporated into a Licensor standard Licensed Software Licensor shall credit to CalOptima twenty-five percent (25%) of the license or other fees received by Licensor. The credits shall be applied first against any current amounts owed by CalOptima to Licensor under this Agreement, and, in the event no amounts are then currently owed by CalOptima to Licensor, the credits will be converted to cash payments to CalOptima to be paid within thirty (30) days of the date Licensor receives any license or other fees for which payment to CalOptima is required under this Section.
Maintenance and Support. 15.1
System Support Responsibilities. In addition to any warranty obligations of Licensor hereunder, Licensor shall: A.
Perform in accordance with the Performance Standards and Measures as set forth in the Scope of Work to this Agreement, attached hereto as Exhibit A, and CalOptima’s RFP 15-004, dated July 10, 2014, inclusive of any and all amendments and addenda thereto.
B.
Correct any failure of the System or any System Component, to perform in accordance with the System Specifications, including without limitation, defect repair, programming corrections, and remedial programming, and provide such services and repairs required to maintain the System so that it operates properly and in accordance with the System Specifications.
C.
Provide unlimited telephone support twenty-four (24) hours a day, seven (7) days a week.
D.
Initiate work on urgent issues within one (1) hour of CalOptima’s call for assistance to Licensor, regardless of time of day or day of week. Urgent issues include issues involving substantial System failure or those which, in CalOptima’s reasonable judgment, are critical to the operation of CalOptima’s System. Licensor shall initiate work on non-urgent issues, within four (4) hours from receipt of a telephonic service request.
E.
Insure that any System Component(s) can be replaced, whether by Licensor or by the appropriate third party supplier, within twenty-four (24) hours from the time
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 27
p. 44
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
Licensor receives telephonic notice from CalOptima of a System Component(s) failure. F.
In the event Licensor fails to meet its support responsibilities under Section C and E, Licensor shall pay to CalOptima liquidated damages in the amount of Five Hundred Dollars ($500) per hour commencing after a one (1) hour grace period. Licensor acknowledges and agrees that the liquidated damages assessed pursuant to this Section shall be payable to CalOptima upon demand and may, at CalOptima’s option, be set off against any monies due to Licensor under this Agreement and are reasonable under the circumstances existing as of the date this Agreement is entered into; however, this provision shall not limit CalOptima’s right to receive reimbursement for attorneys’ fees, nor waive or affect CalOptima’s rights and Licensor’s indemnity obligations under other sections of this Agreement. The parties acknowledge that the payment of such liquidated damages is not intended as a forfeiture or penalty within the meaning of California Civil Code Section 3275 or 3369, but is intended to constitute liquidated damages to CalOptima pursuant to California Civil Code Section 1671.
15.2
Updates. During the Support Term of this Agreement, Licensor shall provide to CalOptima at no additional cost to CalOptima all Corrections, Updates, Enhancements, Improvements, and Releases to the Licensed Software, as they are made generally available to other Licensor clients.
15.3
Maintenance and Support Fees. There shall be no charge to CalOptima for maintenance and support for the first year of the Initial Support Term. Thereafter, the maintenance and support fees shall be as set forth in Section 11 (Payment).
15.4
Termination of Support by Licensor. Notwithstanding the provisions of 15.5 (Support Not to be Withheld), Licensor may terminate support with regard to the Licensed Software with ninety (90) days written notice if (i) CalOptima fails to remain within at least three new Releases of Licensor’s most then-current production release of the Licensed Software (e.g., no further back than Release 501, if Licensor’s most current New Release is 504) and the failure to remain within three new Releases is not disputed by CalOptima, or (ii) CalOptima fails to pay undisputed invoices for support. Such notice of termination shall be effective only if CalOptima has not cured the condition that caused Licensor to give the notice of termination within the ninety (90) day notice period.
15.5
Support Not to be Withheld. So long as CalOptima continues to make support payments as provided in this Agreement, Licensor agrees that support will not be denied to CalOptima. Support under this Agreement will not be withheld due to any dispute arising under this Agreement, any litigation commenced by either party, and pending litigation between the parties, another agreement between the parties, or any other unrelated dispute between the parties.
15.6
Transitional Service Access and Rights. If through a merger, sale, acquisition, or disposition of all or substantially all of CalOptima’s assets to a third party entity or entities, or other organizational restructuring at CalOptima, whether such restructuring results in a single entity or multiple entities, including an unwinding of the system, a circumstance arises in which CalOptima, its constituent members, and/or a third party entity or entities require access to the System or any services provided by Licensor hereunder during a transitional period, CalOptima, its constituent members, and/or a third party entity or entities shall be entitled to utilize the System and services during such transition in accordance with all terms and conditions of this Agreement at no additional cost or fee,
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 28
p. 45
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
unless the scope of services are materially increased. Any transitional period under this (Transitional Service Access and Rights) shall not exceed eleven (11) months. 16.
Licensor’s Representations, Warranties and Covenants. 16.1
System and System Component Performance Warranty. Licensor represents, warrants and agrees that during the Support Term of this Agreement, the System and all System Components shall perform in accordance with the System Specifications.
16.2
Integration Warranty. Licensor represents, warrants and agrees that the System Components are capable of interconnecting and/or interfacing with each other and CalOptima’s Existing System and that the System Components and Existing System, when taken together, will be capable of delivering the functionality needed by CalOptima to meet its information systems requirements as set forth in the System Specifications (including, without limitation, the Recitals and Exhibit “A” (System Requirements Statement)).
16.3
Performance Criteria. Licensor represents, warrants and agrees as being true and correct its representations and warranties made in this Agreement, the Documentation and Licensor’s response and responses to clarification requested to CalOptima’s request for proposal (attached collectively as Exhibit “K” (Licensor’s Response to CalOptima’s Request For Proposal)). Licensor further represents and warrants as being true and correct Licensor’s representations and warranties made in Exhibits “H” (System Downtime Warranty) and “I” (Response Time Warranty).
16.4
Legal and Accreditation Requirements. Licensor represents, warrants and agrees that functionality necessary to comply with all applicable federal and California laws, including requirements by (i) the Food and Drug Administration (“FDA”) that any System Component obtain approval or certification from that agency, (ii) rules and regulations and accreditation standards or requirements of the Joint Commission and National Committee for Quality Assurance, (iii) applicable provisions (Sections 261-264) of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and all implementing regulations from the Department of Health and Human Services, whether such regulations are proposed or finally adopted, and updates to incorporate any changes to such laws, rules, regulations, requirements and standards shall be made available to CalOptima. Licensor shall incorporate required functionality either as an Update or Enhancement to the Licensed Software or otherwise make such functionality available to CalOptima at no additional charge, as soon as practicable. In the event the FDA requires approval or certification of any System Component(s) and Licensor does not obtain such approval or certification, CalOptima shall be entitled to reimbursement of all sums spent by it in connection with the acquisition, and installation of such System Component(s).
16.5
Correction, Repair, or Replacement. A.
Licensor represents, warrants and agrees that during the Support Term of this Agreement it shall make all corrections, adjustments, or modifications, whether by repair, replacement, or otherwise (collectively referred to for purposes of this Section (Correction, Repair, or Replacement) as “Corrective Action(s)”), necessary to comply with the warranties set forth in Sections 16.1 (System and System Component Performance Warranty), 16.2 (Integration Warranty), 16.3 (Performance Criteria), and 16.4 (Legal and Accreditation Requirements) at no additional charge to CalOptima.
B.
If any Corrective Action to the System or any System Component is required to make the System or any System Component conform to the warranty requirements of this Agreement, CalOptima shall promptly inform Licensor in writing of its
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 29
p. 46
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
request for such Corrective Action. Licensor shall promptly, and without additional cost to CalOptima, take all reasonable steps to initiate Corrective Action for the System or System Components as soon as practicable, but in no event shall Licensor take longer than three (3) days from receipt of a notice to take Corrective Action to complete such work unless mutually agreed in writing by the parties. Failure by Licensor to comply with its obligations under this Section shall entitle CalOptima, in addition to and cumulative of all other remedies available to it, to withhold payments due Licensor under this Agreement until such time as Licensor cures its default hereunder. The amount of any withholding by CalOptima under this Section shall be determined in good faith by CalOptima upon considering the nature of the warranty at issue and the other circumstances arising from Licensor’s failure to comply with the applicable warranty requirement. 16.6
Embedded and Remarketed Software. Certain software embedded into the Licensed Software may be owned by third parties. All third party license fees for such software shall be at no additional cost to CalOptima. To the extent that a third party license imposes a limit or restriction on CalOptima’s right to use the embedded and remarketed software as permitted in this Agreement and such limit or restriction has not been identified in this Agreement, Licensor shall take all necessary action and pay all sums required to provide CalOptima with all the rights to use the software afforded by this Agreement to the extent permitted. Licensor warrants that whether or not such third party license agreements are required for use of the embedded and remarketed software by CalOptima, CalOptima shall be able to use licenses for such embedded and remarketed software as required for use of the System and services in accordance with all of the terms of this Agreement.
16.7
Licensed Software and Functionality. During the Support Term, Licensor represents, warrants, and agrees that the overall functionality of the Licensed Software and the System shall not be substantially decreased from the functionality existing as of the date of successful completion of the Final System Test, unless such change in functionality (i) results from governmental regulation, (ii) results from requested changes by CalOptima, (iii) is replaced with comparable functionality or (iv) the changes are otherwise agreed upon in writing by the parties. In the event of a substantial decrease in the functionality of the Licensed Software, CalOptima may elect as its sole remedy to remain on an earlier Release or Version without breaching its obligations hereunder.
16.8
Service. Licensor represents, warrants and agrees that all services to be provided under this Agreement shall be performed in a professional, competent, and timely manner by appropriately qualified personnel in accordance with the Work plan and as otherwise provided in this Agreement.
16.9
Assignment of Warranties. Licensor hereby assigns and agrees to deliver to CalOptima all representations and warranties received by Licensor from Third Party Suppliers.
16.10
Litigation Warranty. Licensor represents, warrants and agrees that there are no existing or threatened legal proceedings against Licensor that would have an adverse affect upon its ability to perform its obligations under this Agreement or its financial condition or operations.
16.11
Virus Warranty. Licensor represents, warrants and agrees that Licensor will not cause any unplanned interruption of the operations of, or accessibility to the System or any System Component through any device, method or means including, without limitation, the use of any “virus,” “lockup,” “time bomb,” or “key lock” device or program, or disabling code, which has the potential or capability of causing any unplanned interruption of the operations of, or accessibility of the System or any System Component to CalOptima or any User or which could alter, destroy, or inhibit the use of the System, any System Component, or the data
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 30
p. 47
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
contained therein (collectively referred to for purposes of this Section as “Disabling Device(s)”) which could block access to or prevent the use of the System or any System Component by CalOptima or Users. Licensor represents, warrants and agrees that it has not purposely placed, nor is it aware of, any Disabling Device on any System Component provided to CalOptima under this Agreement, nor shall Licensor knowingly permit any subsequently delivered System Component to contain any Disabling Device. 16.12
Insurance Premiums. Licensor represents, warrants and agrees that it will pay all premiums, deductible amounts, and other costs required to maintain all insurance policies in accordance with 21 (Insurance and Indemnity) herein.
16.13
Continuous Product Support. If Licensor assigns this Agreement with the written consent of CalOptima as set forth in this Agreement, is acquired, or is otherwise controlled by another individual or entity (collectively referred to as a “Successor Event”) and subsequent to the Successor Event, the Licensed Software is not supported to at least the same level that Licensor supported the Licensed Software because, for example, Licensor’s assignee chooses to support other products with similar functions, CalOptima, at its sole option, may elect to transfer the License, without cost or penalty, to another similar product (“Replacement Product”) within Licensor’s assignee’s or successor’s product offering. The assignee or successor, by taking benefit (including acceptance of any payment under this Agreement) ratifies this Agreement. All terms and conditions of this Agreement shall continue in full force and effect for the Replacement Product. In addition, the following terms and conditions shall apply if CalOptima elects to transfer this License to a Replacement Product: A. Any prepaid maintenance and support shall transfer in full force and effect for the balance of the Replacement Product’s maintenance and support term (or equivalent service) at no additional cost. If the prepaid moneys are greater than the Replacement’s Product’s maintenance and support fee for the same term, the credit balance will be applied to future maintenance and support fees or returned to CalOptima, at its option; B. Any and all Modules offered separately, and needed to match the original Licensed Software’s level of functionality, shall be supplied by Licensor’s assignee or successor without additional cost or penalty, and shall not affect the calculation of any maintenance and support fees; C.
CalOptima shall receive reasonable training for Users, for purposes of learning the Replacement Product. Training shall be provided at no cost to Users;
D. If Licensor elects to assign the Agreement (with consent) or takes any other action that results in CalOptima transferring the license to a replacement product, Licensor shall pay for any and all necessary implementation fees. E.
All License terms and conditions shall remain as granted herein with no additional fees imposed on CalOptima; and
F.
The definition of Licensed Software shall then mean the Replacement Product.
For purposes of this Section, the term “controlled” shall mean the legal right to elect a majority of the directors of a corporation or similar officers of any other entity or to determine an entity’s general management policies through contract or otherwise. 16.14
Communication Standards. Licensor represents and warrants that the Licensed Software is currently compliant with the latest releases and versions of HL7 and TCP/IP. In addition, Licensor shall cause the Licensed Software to become compliant with any and all new versions or releases of HL7 and TCP/IP that become available after the Reference Date.
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 31
p. 48
CalOptima
SAMPLE CONTRACT
RFP 15-004
16.15
Product Lifecycle Warranty. Licensor warrants that there is no new Version or Release of the Licensed Software currently being developed. Licensor will support the Licensed Software in its existing architecture and provide Updates, Releases, and Versions for seven (7) years from the Reference Date of this Agreement, and will provide support for an additional (5) five years beyond the first seven (7) years but will not be obligated to provide Updates, Releases, and Versions during the additional five (5) year support period if such Updates, Releases, and Versions are not otherwise available through Licensor.
16.16
Coordination With Interface Engine Vendor. In the event CalOptima acquires or licenses an interface engine, Licensor agrees to provide to CalOptima such information, including but not limited to its application program interface (“API”), and otherwise cooperate with the interface engine vendor as required to minimize the costs of installation, and maximize the utility, of the interface engine to CalOptima. There shall be no charge to CalOptima for the API or cooperation by Licensor under this Section.
16.17
Representations and Warranties Throughout Agreement. It is understood and agreed by the parties that Licensor’s representations and warranties are set forth throughout this Agreement and are not confined to this Section 16.
16.18
Compliance With Applicable Law. Licensor warrants that, in the performance of this Agreement, it shall observe and comply with federal, state, and local laws in effect when this Agreement is signed or which may come into effect during the Support Term of this Agreement, as well as those contracts governing the government programs administered by CalOptima, and any CalOptima policies applicable to the services provided by Licensor.
16.19
Compatibility Between Licensor Applications. Licensor warrants that it will provide CalOptima with backwards compatibility between all Releases and Versions of all Licensed Software elements and components (in each instance, whether such Licensed Software elements or components consist of computer programs or Modules that are owned by Licensor or are licensed by Licensor from a third party) that are interdependent or interrelated in any way, for at least two (2) standard Releases or Versions. In the event an incompatibility arises Licensor shall immediately take all steps and actions necessary to cause incompatible Releases or Versions to become compatible. In the event Licensor cannot resolve the incompatibility within five (5) business days of its becoming aware of the incompatibility (either by virtue of notice of the incompatibility from CalOptima or because it learns of the incompatibility itself), then Licensor shall provide CalOptima with the new Release or Version of the Licensed Software that is no longer compatible with the other, new Release or Version of the other element or component of the Licensed Software, within five (5) business days, at no cost or expense to CalOptima. Licensor shall provide to CalOptima, on or before the Reference Date, a compatibility matrix showing all dependencies and interrelatedness between and among all Licensed Software that currently exists, and the effects on the compatibility and dependencies between elements of the Licensed Software that could conceivably result from likely, anticipated, potential, or possible new Releases or Versions of each element of the Licensed Software that is dependent or interrelated to another element or component of the Licensed Software
16.20
Compatibility With Third Party Programs. Licensor warrants that it will maintain and certify all System Components’ compatibility with CalOptima’s Existing System (as defined in Section 12 – System Configuration), including all of CalOptima’s third party elements and platforms (including, but not limited to Microsoft SQL versions for servers and for versions of its Office products), operating systems, interface engines, and workstation configurations, within one (1) year of the release date of new versions or releases of such third party elements of CalOptima’s Existing System as such Existing System is modified or updated from time to time. Licensor shall align its certification, support, and retirement plans to satisfy this ongoing warranty. In the event Licensor fails to satisfy the foregoing warranty
Section IV – Sample Contract
7/30/2014 10:53 AM
Bid 15-004
Page 32
p. 49
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
Licensor shall bear all costs and expenses incurred by CalOptima, including but not limited to maintenance and support costs and loss of income due to productivity impairment. The additional remedy set forth herein shall not affect in any way, and shall be in addition to, any other remedies available to CalOptima under this Agreement. 17.
18.
Internal Dispute Resolution. 17.1
Intent. The parties shall resolve their disputes informally to the maximum extent possible. The parties shall negotiate all matters of joint concern in good faith, with the intention of resolving issues between them in a mutually satisfactory manner. Only disputes within the scope of this Agreement are subject to this Section. However, nothing in this Section shall preclude the parties from exercising their termination rights pursuant to Section 18 (Termination). Each party shall bear its own costs incurred as a result of the internal dispute resolution, whether formal or informal. Except as otherwise provided herein, each party shall also bear its own attorney’s fees. The parties agree all statements made in connection with internal dispute resolution efforts shall not be considered admissions or statements against interest by either party. The parties further agree that they will not attempt to introduce such statements at any later trial, arbitration, or mediation between the parties.
17.2
Informal Resolution. If a dispute arises under this Agreement, then within three (3) business days after a written request by either party, CalOptima’s Project Manager and Licensor’s Project Manager shall promptly confer to resolve the dispute. If these representatives cannot resolve the dispute or either of them determines they are not making progress toward the resolution of the dispute within three (3) business days after their initial conference, then the dispute may be submitted to the individual designated by CalOptima and the individual designated by Licensor, who shall promptly confer to resolve the dispute. If the individual designated by CalOptima and the individual designated by Licensor cannot resolve the dispute, or either one of them determines that they are not making reasonable progress toward resolution of the dispute within three (3) business days after the dispute is first submitted to either the individual designated by CalOptima or the individual designated by Licensor, then the parties shall have no further obligation to attempt to resolve their dispute pursuant to this Section 17.
17.3
Informal Dispute Resolution Mandatory. The informal dispute resolution process provided in this Section 17 is a prerequisite to the exercise of any judicial remedies available to the parties, except in cases where a party is seeking injunctive or other equitable relief. Pending final resolution of any dispute under this Agreement, Licensor shall proceed diligently with the performance of this Agreement and its obligations hereunder. The use of the informal dispute mechanisms set forth herein shall in no way minimize or reduce the liquidated damages CalOptima is entitled to during the period of the informal dispute resolution process.
17.4
Applicability To Disputes With Vendors Other Than Licensor. Licensor agrees that, on CalOptima’s written request, it will participate in dispute resolution in accordance with this Section with CalOptima and CalOptima’s third party information system vendors to resolve any disputes between and/or among such vendors, including Licensor and CalOptima, as to responsibility by any particular vendor for issues arising from warranty and other information system performance obligations.
Termination. CalOptima may terminate this Agreement at any time by giving Licensor thirty (30) days written notice hereof. Upon termination, CalOptima may pay Licensor its allowable cost incurred for services
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 33
p. 50
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
satisfactorily performed and accepted by CalOptima as of the date of termination. Thereafter, Licensor shall have no further claims against CalOptima under this Agreement. In addition to any other provision in this Agreement allowing a party to terminate this Agreement in whole or in part, and without limiting any other remedies available at law, in equity, or under this Agreement, if either party materially or repeatedly defaults in the performance of any of its duties or obligations under this Agreement, and within ten (10) days after written notice is given to the defaulting party specifying the default, it is not cured to the reasonable satisfaction of the party giving the notice of default, then the party not in default may terminate this Agreement by giving written notice of termination to the defaulting party, which termination shall be effective immediately upon receipt of the notice of termination. If the default is incapable of being cured, then the ten (10) day cure period shall not apply, and written notice of termination may be given directly by the party not in default. If the default relates to a particular System Component, the party not in default may, in its sole discretion, elect to terminate this Agreement only with respect to such System Component rather than as a whole, by specifying in the notice of termination that the termination is so limited, and in such case, the payments under this Agreement relating to such System Component shall cease as of the date of termination. Licensor understands and agrees that CalOptima’s business operations are dependent on the use of the System or an equivalent system, and that the inability to use the System or an equivalent system could result in irreparable damage to CalOptima. Therefore, Licensor agrees that in the event of any termination of this Agreement, as a result of the breach hereof by either party, or for any other reason, Licensor shall fully cooperate with CalOptima in the transition to a new system. Such cooperation shall include, but not be limited to, data conversion/migration, converting demographic data, providing parallel services until CalOptima’s system transition is completed, providing on-site technical support at Licensor’s then current rates, and providing AR balances on line item detail forward. In the event the termination results from a breach of this Agreement by CalOptima, Licensor shall be paid at its then current Implementation rates for such services. Otherwise, such services shall be provided by Licensor at no additional cost to CalOptima, and Licensor shall be liable for the reprocurement costs of the same or similar products, software, and services that were, and were yet to be, provided by Licensor under this Agreement (including the costs and fees payable for such replacement products, software, and services). CalOptima may seek specific performance of Licensor’s obligations under this Section, and Licensor agrees not to raise the defense that damages are an adequate remedy. 19.
Termination for Unavailability of Funds. In recognition that CalOptima is a governmental entity and its operations and budgets are determined on an annual basis, CalOptima shall have the right to terminate this Agreement as follows: 1.
CalOptima may terminate this Agreement if it does not receive funding from the State of California or the federal government, as applicable, for any fiscal year.
2.
In the event of Termination for Unavailability of Funds, as provided in this Article, CalOptima agrees to promptly pay Licensor all fees and other charges due and payable as of the termination date.
3.
In the event of Termination for Unavailability of Funds, as provided in this Article, and funds are received by CalOptima from the State of California within one-hundred twenty (120) days of the date of termination, then CalOptima shall promptly notify Licensor in writing and CalOptima shall have the right to reinstate this Agreement for that period for which funds are received by CalOptima or the unexpired term of this Agreement as of the date of
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 34
p. 51
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
termination, whichever period is shorter in duration. Notwithstanding the foregoing, CalOptima may only reinstate this Agreement two (2) times during the Term of this Agreement. 20.
Withhold Remedy and Liquidated Damages. In addition to, and cumulative to all other remedies in law, at equity and provided under this Agreement, in the event Licensor is in default of its duties or obligations under this Agreement and it fails to cure the default within fifteen (15) days after receipt of written notice of default from CalOptima, CalOptima may, without waiving any other rights under this Agreement, elect to withhold from the payments due to Licensor under this Agreement during the period beginning with the 16th day after Licensor’s receipt of notice of default, and ending on the date that the default has been cured to the reasonable satisfaction of CalOptima, an amount that is in proportion to the magnitude of the default or the service that Licensor is not providing, as determined in CalOptima’s reasonable discretion. Upon curing of the default by Licensor, CalOptima will cause the withheld payments to be paid to Licensor, without interest, and less any amounts to be set off as liquidated damages as provided in this Section. Failure to cure a default within fifteen (15) days after receipt of written notice of default from CalOptima shall entitle CalOptima to the payment by Licensor of liquidated damages in the amount of five hundred dollars ($500) per day. Other provisions contained in this Agreement that provide for liquidated damages in an amount greater than five hundred dollars ($500) per day, or that contain more precise terms for the liquidated damages, shall take precedence over the liquidated damages provision contained in this Section (but shall not alter CalOptima’s withhold remedy described above in this Section, nor the attorneys’ fees and no waiver matters described below in this Section). Licensor acknowledges and agrees that the liquidated damages assessed pursuant to this Section shall be payable to CalOptima upon demand and may, at CalOptima’s option, be set off against any monies due to Licensor under this Agreement and are reasonable under the circumstances existing as of the date this Agreement is entered into; however, this provision shall not limit CalOptima’s right to receive reimbursement for attorneys’ fees, nor waive or affect CalOptima’s rights and Licensor’s indemnity obligations under other sections of this Agreement. The parties acknowledge that the payment of such liquidated damages is not intended as a forfeiture or penalty within the meaning of California Civil Code Section 3275 or 3369, but is intended to constitute liquidated damages to CalOptima pursuant to California Civil Code Section 1671.
21.
Insurance And Indemnity. 21.1
Required Insurance Coverages. Licensor shall obtain, pay for, and maintain in full force and effect at Licensor’s sole expense during the Support Term of this Agreement insurance, which shall be full-coverage insurance not subject to self-insurance provisions and which amounts shown below shall not be changed during the Support Term of this Agreement, as follows: A. Workers’ compensation and employers’ liability insurance with limits to conform to the greater of the amount required by California law or one million dollars ($1,000,000) each accident, including occupational disease coverage, with a limit of one million dollars ($1,000,000) per person subject to an aggregate limit of one million dollars ($1,000,000) per annum; B. Commercial general liability insurance with limits not less than one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) combined single limit for bodily injury, death, and property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and products and completed operations coverage;
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 35
p. 52
CalOptima
SAMPLE CONTRACT C.
Bid 15-004
RFP 15-004
Commercial automobile liability insurance with limits not less than one million dollars ($1,000,000) each occurrence and three million dollars ($3,000,000) combined single limit of liability for bodily injury, death, and property damage, including owned and non-owned and hired automobile coverages, as applicable; and
D. Professional liability insurance (Errors and Omissions) with limits not less than one million dollars ($1,000,000) annual aggregate for all claims each policy year for computer programming and electronic data processing services. E.
Electronic and Computer Crimes Insurance and Employee Fidelity Insurance, with limits of at least $1,000,000, if Licensor will be paying claims or receiving funds on behalf of CalOptima, or will be storing, transmitting and/or receiving Personally Identifiable Health Information on a regular basis in carrying out its obligations under this Agreement.
21.2
Claims Made Coverages. To the extent any insurance coverage required under this Section is purchased on a “claims-made” basis, such insurance shall cover all prior acts of Licensor during the Support Term of this Agreement, and such insurance shall be continuously maintained until at least three (3) years beyond the expiration or termination of this Agreement, or Licensor shall purchase “tail” coverage, effective upon termination of any such policy or upon termination or expiration of this Agreement, to provide coverage for at least one (1) year from the occurrence of either such event.
21.3
Certificates Of Insurance. Broker-issued Certificates of Insurance evidencing all coverages described in this Section shall be furnished to CalOptima’s Project Manager prior to the Reference Date. The Certificates of Insurance shall state the amount of all deductibles and will be endorsed: A. In the name of CalOptima, its officers, agents, and employees as additional insured’s , excepting Workers’ Compensation coverage; covering claims made against CalOptima arising out of Licensor’s actions; and be reasonably acceptable to CalOptima; B. To provide that each of the policies is primary and noncontributory insurance with respect to any other insurance available to CalOptima as to any claim for which coverage is afforded under the policy; and C.
To provide that the policy shall apply separately to each insured against whom a claim is made or suit is brought (required for Comprehensive General Liability and Automobile Liability only).
21.4
Subcontractors To Be Insured. Licensor shall require all of its subcontractors to carry insurance coverages and limits as agreed to and approved in writing by CalOptima.
21.5
Cancellation Or Lapse Of Insurance. Licensor shall give thirty (30) days’ prior written notice to CalOptima of cancellation, non-renewal, or material change in coverage, scope, or amount of any policy. Should Licensor fail to keep in effect at all times the insurance coverages required under this Section 21, CalOptima may, in addition to and cumulative with any other remedies available at law, equity, or hereunder withhold payments to Licensor required under this Agreement in an amount sufficient to procure the insurance required herein.
21.6
Other Insurance Requirements. Whenever commercially reasonable or possible, insurance policies required hereunder shall be issued by insurance companies (i) authorized to do business in the State of California, (ii) with a financial rating of at least an A10 status as rated in the most recent edition of Best’s Insurance Reports. Upon written request by
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 36
p. 53
CalOptima
Bid 15-004
SAMPLE CONTRACT
RFP 15-004
CalOptima, Licensor will provide to CalOptima policy extracts and policy form numbers to clarify an insurance certificate or as otherwise needed in the course of CalOptima’s business activities. 21.7
Indemnity For Injury To Persons And Tangible And Intangible Property. A. Licensor’s Indemnity. At Licensor’s expense as provided herein, Licensor agrees to defend, indemnify, and hold harmless CalOptima, its Users, directors, officers, agents, employees, members, subsidiaries, joint venture partners, and predecessors and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees as provided herein (collectively referred to for purposes of this Section 21 as “Claim(s)”) arising out of any alleged act or failure to act by Licensor or its directors, officers, agents or employees, including, without limitation, negligent or willful misconduct, alleged to (1) cause any injury to any person or persons or damage to tangible or intangible property, or (2) breach the provisions of Section 22 (Ownership And Non-Disclosure Of Proprietary Or Confidential Information) relating to Licensor’s use of confidential information owned or controlled by CalOptima (collectively referred to for purposes of this Section 21 as “Claim(s)”) by paying all amounts that a court finally awards or that Licensor agrees to in settlement of any Claim(s) as well as any and all reasonable expenses or charges as they are incurred by CalOptima or any other party indemnified under this Section 21 in cooperating in the defense of any Claim(s). To qualify for such defense and payment, CalOptima must: (i) give Licensor prompt written notice of such Claim; and (ii) allow Licensor to control, and fully cooperate with Licensor in, the defense and all related negotiations.
22.
21.8
Damage to CalOptima Facilities, Buildings, or Grounds. Licensor shall repair, or cause to be repaired, at its own cost, any and all damage to CalOptima’s facilities, buildings or grounds caused by Licensor or employees or agents of Licensor. Such repairs shall be made immediately after Licensor has become aware of such damage, but in no event later than thirty (30) days after the occurrence. If Licensor fails to make timely repairs, CalOptima may make any necessary repairs. All costs incurred by CalOptima, as determined by CalOptima, for such repairs shall be repaid by Licensor by cash payment upon demand, or without limitation of all CalOptima’s other rights and remedies provided by law or under this Agreement, CalOptima may deduct such costs from any amounts due to Licensor from CalOptima under this Agreement.
21.9
Indemnities Throughout Agreement. It is understood and agreed by the parties that Licensor’s indemnification obligations are set forth throughout this Agreement and are not confined to this Section 21.
Ownership And Non-Disclosure Of Proprietary Or Confidential Information. 22.1
Non-disclosure and Non-use. The parties agree, both during the Support Term of this Agreement and after termination of this Agreement to hold each other’s Proprietary or Confidential Information in strict confidence. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than the implementation of and as specified in this Agreement. Without limitation on Section 22.4 (Equitable Relief), each party agrees to take all reasonable steps to ensure that Proprietary or Confidential Information of either party is not disclosed or distributed by its employees, agents or consultants in violation of the provisions of this Agreement, and CalOptima also agrees to take all such steps with respect to any Users of the System. Notwithstanding the foregoing, any obligations under the California Public Records Act (California Government Code Sections 6250-6270) (the “Public Records Act”), to which CalOptima is subject, shall
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 37
p. 54
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
take precedence over any CalOptima obligation contained in this Section or in this Agreement and CalOptima’s compliance with the California Public Records Act shall prevent a determination that CalOptima has breached any of its obligations with respect to Licensor’s Proprietary or Confidential Information. In addition, because CalOptima may be required to reveal certain of Licensor’s Proprietary or Confidential Information to the public pursuant to its obligations under the Public Records Act, notwithstanding that Proprietary or Confidential Information can include material that is not marked “Confidential,” “Proprietary,” or “Restricted” or other similar marking, unless Licensor marks its materials as “Confidential,” “Proprietary,” or “Restricted,” and also notifies CalOptima in writing that Licensor has so marked each piece of material, then CalOptima will not be responsible to take any actions to protect any Licensor materials under the Public Records Act that are not so marked. In the event CalOptima receives a request or demand under the Public Records Act that potentially encompasses Licensor materials that have been properly marked, CalOptima will provide Licensor with notice thereof to allow Licensor to take actions it deems necessary or appropriate to attempt to prevent the public disclosure of the marked material. Licensor agrees to defend, indemnify, and hold harmless CalOptima, its officers, agents, employees, members, subsidiaries, joint venture partners, and predecessors and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees as provided herein, and any costs awarded to the person or entity that sought the Licensor marked material, arising out of or related to CalOptima’s failure to produce or provide the Licensor marked material (collectively referred to for purposes of this Section as “Public Records Act Claim(s)”). Licensor shall pay to CalOptima any expenses or charges relating to or arising from any such Public Record Act Claim(s) as they are incurred by CalOptima. This obligation shall survive termination of this Agreement. 22.2
Ownership. Licensor’ Proprietary or Confidential Information shall remain the sole and exclusive property of Licensor. CalOptima’s Proprietary or Confidential Information shall remain the sole and exclusive property of CalOptima. CalOptima shall have no interest in, and no right to use, including, without limitation, any use resulting in disclosure to any third party any Licensor Proprietary or Confidential Information except as specifically provided for by this Agreement or as otherwise permitted and specified by separate written license agreement executed by both parties hereto.
22.3
Employees. Each party shall ensure that its employees, agents and consultants, and in the case of CalOptima’s granting access to the System, its Users, shall be permitted access to the other party’s Proprietary or Confidential Information only on a need-to-know basis and are instructed regarding, and agree to act in accordance with, the obligations of non-disclosure and non-use imposed by this Agreement. Neither CalOptima nor Licensor shall solicit or hire any personnel of the other during the Support Term of this project, or for a period of one (1) year following the completion of the implementation, as identified in the Work plan, without the written consent of the other party.
22.4
Equitable Relief. Each party acknowledges that any use or disclosure of the other party’s Proprietary or Confidential Information other than as specifically provided for in this Agreement and other written agreements between Licensor and CalOptima may result in irreparable injury and damage to the non-using or non-disclosing party. Accordingly, each party hereby agrees that, in the event of use or disclosure by the other party other than as specifically provided for in this Agreement and in other written agreements between the parties, the non-using or non-disclosing party may be entitled to equitable relief as granted by any appropriate judicial body.
22.5
Proprietary or Confidential Markings. Each party expressly agrees to include, maintain, reproduce and perpetuate all notices or markings on all copies of all tangible media comprising each party’s Proprietary or Confidential Information in the manner in which
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 38
p. 55
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
such notices or markings appear on such tangible media or in the manner in which either party may reasonably request. Neither party shall use the name, logo or other proprietary mark of the other in any press release, advertising, promotional, marketing or similar publicly disseminated material without first submitting such material to the other Party and obtaining the other Party’s express written approval of the material and consent to such use. 22.6
Compliance With Federal And State Confidentiality Requirements; Business Associate Agreement. Licensor acknowledges and agrees that all patient records shall be subject to the confidentiality and disclosure provisions of federal and state law and agrees to maintain the confidentiality of all such records in accordance with such laws. In particular, Licensor agrees to and shall execute a Business Associate Agreement with CalOptima, which agreement is attached as Exhibit Q and incorporated herein by this reference. Licensor acknowledges and agrees that CalOptima reserves the right to modify the Business Associate Agreement at any time should such modification be required by applicable law or regulation.
22.7
CalOptima’s Data. All of the CalOptima data, records, and information processed by or input onto the System to which Licensor has access, or otherwise provided to Licensor under this Agreement, including but not limited to benchmarking data, abstracted derivative data, transactional data, performance data, and metadata shall be and remain the property of CalOptima and CalOptima shall retain exclusive rights and ownership thereto. The data of CalOptima shall not be used by Licensor for any purpose other than as required under this Agreement, nor shall such data or any part of such data be disclosed, sold, assigned, leased or otherwise disposed of to third parties by Licensor or commercially exploited or otherwise used by or on behalf of Licensor, its officers, directors, employees, or agents.
22.8
Access Control. Licensor shall provide, at no charge to CalOptima, sufficient access control applications to enable CalOptima to identify and authenticate Users, control access to System resources, and to record and investigate security related events and data, including but not limited to establishing User audit trails. Licensor agrees to provide to CalOptima, at no additional charge, all additional security protections it develops or acquires during the Initial Support Term of this Agreement, to assist CalOptima in investigating any security breach of the System resulting in access to or loss of patient data, and to provide additional security protections to correct any security deficiencies confirmed by Licensor.
22.9
Ownership of Reports and Documents. The originals of all letters, documents, reports, software programs and any other products and data produced for the purposes of this Agreement shall be delivered to, and become the property of, CalOptima. Copies may be made for Licensor’s records, but shall not be furnished to others without written authorization from CalOptima. Such deliverables shall become the sole property of CalOptima and all rights in copyright therein shall be retained by CalOptima.
22.10
RDR Compliance. CalOptima is committed to complying with all applicable Centers for Medicare & Medicaid Services (CMS) regulations, while upholding the highest ethical business laws, rules, and regulations. CalOptima’s commitment to compliance includes ensuring all First Tier, Downstream, and Related Entities (FDRs) are responsible for understanding and operating in compliance with applicable law and regulatory guidance. As a FDR of CalOptima, Licensor shall have processes in place to prevent, detect, and correct non‐compliance with CMS program requirements as outlined in Sections 42 CFR 422.503 and 42 CFR 423.504, Chapter 21 of the Medicare Managed Care Manual, and Chapter 9 of the Prescription Drug Benefit Manual. Licensor agrees to and shall execute a FDR Compliance Attestation with CalOptima, which agreement is attached as Exhibit R and incorporated herein by this reference.
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 39
p. 56
CalOptima
SAMPLE CONTRACT
23.
Bid 15-004
RFP 15-004
Verification Of CalOptima Costs By Government. Until the expiration of ten (10) years after the later of furnishing of any service pursuant to this Agreement or completion of any audit, or longer as required by applicable regulations, Licensor will make available, upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States or any of their duly authorized representatives, or the California Department of Health Care Services, or the California Department of Managed Health Care, or the Department of Justice, or the Bureau of Medical Fraud, copies of this Agreement and any financial statements, books, documents, records, patient care documentation, and other records or data of Licensor that pertain to any aspect of services performed, reconciliation of benefit liabilities, and determination of amounts payable under this Agreement, or as are otherwise necessary to certify the nature and extent of costs incurred by CalOptima for such services. This provision shall also apply to any agreement between a subcontractor and an organization related to the subcontractor by control or common ownership. Licensor further agrees that regulating entities have the right to inspect, evaluate and audit any pertinent information and to facilitate the review of the items referenced herein, to make available its premises, physical facilities and equipment, records related to Medicare enrollees, and any additional relevant information that regulating entities may require. Licensor further agrees and acknowledges that this provision will be included in any and all agreements with Licensor’s subcontractors.
24.
Bankruptcy And Liquidation. In the event Licensor shall: (1) make an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver, or trustee for all or a substantial part of its assets; (2) commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction whether now or hereafter in effect; (3) have had any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made, and which remains un-dismissed for a period of sixty (60) days or more; (4) take any corporate action indicating its consent to, approval of, or acquiescence in any such petition, application, proceeding, or order for relief or the appointment of a custodian, receiver, or trustee for all or substantial part of its assets; or (5) permit any such custodianship, receivership, or trusteeship to continue un-discharged for a period of sixty (60) days or more causing Licensor or any third party, including, without limitation, a trustee in bankruptcy, to be empowered under state or federal law to reject this Agreement or any agreement supplementary hereto, CalOptima shall have the following rights: A.
In the event of a rejection of this Agreement or any agreement supplementary hereto, CalOptima shall be permitted to retain and use any back-up or archival copies of the Licensed Software under this Agreement for the purpose of enabling it to mitigate damages caused to CalOptima because of the rejection of this Agreement. CalOptima shall exert reasonable efforts to mitigate such damages by use of such back-up or archival copies;
B.
In the event of a rejection of this Agreement or any agreement supplementary hereto, CalOptima may elect to retain its rights under this Agreement or any agreement supplementary hereto as provided in Section 365(n) of the Bankruptcy Code. Upon written request of CalOptima to, as applicable, Licensor or the bankruptcy trustee or receiver, Licensor or such bankruptcy trustee or receiver shall not interfere with the rights of CalOptima as CalOptima as provided in this Agreement or in any agreement supplementary hereto to obtain the Source Material(s) from the bankruptcy trustee or from a third-party escrow agent and shall, if requested, cause a copy of such Source Material(s) to be available to CalOptima.
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 40
p. 57
CalOptima
SAMPLE CONTRACT
25.
Bid 15-004
RFP 15-004
C.
In the event of a rejection of this Agreement or any agreement supplementary hereto, CalOptima may elect to retain its rights under this Agreement or any agreement supplementary hereto as provided in section 365(n) of the Bankruptcy Code without prejudice to any of its rights of setoff with respect to this Agreement under the Bankruptcy Code or applicable non-bankruptcy law; or
D.
In the event of a rejection of this Agreement or any agreement supplementary hereto, CalOptima may retain its rights under this Agreement or any agreement supplementary hereto as provided in section 365(n) of the Bankruptcy Code without prejudice to any of its rights under section 503(b) of the Bankruptcy Code.
Assignment and Subcontracting. Except as specifically permitted hereunder, this Agreement is not assignable by Licensor, either in whole or in part, without the prior written consent of: (i) CalOptima, which consent may be withheld in its sole and absolute discretion, and (ii) the Department of Health Care Services (DHCS). For purposes of this Section and this Agreement, assignment is: (1) the change of more than twenty-five percent (25%) of the ownership or equity interest in Licensor (whether in a single transaction or in a series of transactions), (2) the change of more than twenty-five percent (25%) of the directors or trustees of Licensor (whether in a single transaction or in a series of transactions), (3) the merger, reorganization, or consolidation of Licensor with another entity with respect to which Licensor is not the surviving entity, and/or (4) a change in the management of Licensor from management by persons appointed, elected or otherwise selected by the governing body of Licensor (e.g. the Board of Directors) to a third-party management person, company, group, team or other entity. Licensor represents and warrants that any individual or entity acting as a subcontractor to this Agreement has the appropriate skill and expertise to perform the subcontracted work.
26.
Nondiscrimination Compliance. During the performance of this Agreement, Licensor and its subcontractor(s) shall not unlawfully discriminate, harass, or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability, including Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS), AIDSRelated Complex (ARC), mental disability, medical condition (including cancer), age (over 40) marital status, and the use of family and medical care leave and pregnancy disability leave. Licensor and subcontractor(s) shall insure that the evaluation and treatment of their employees and applicants for employment are free from discrimination and harassment. Licensor and subcontractor(s) shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq. and the applicable regulations promulgated thereunder Title 2, CCR, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12990 (a-f), set forth in Chapter 5 of Division 4, Title 2, CCR are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Licensor and its subcontractor(s) shall give notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. Licensor shall also full comply with the following, to the extent applicable to the services provided by Licensor under this Agreement: Title VI of the Civil Rights Act of 1964, 42 USC Section 2000d (race, color, national origin); Section 504 of the Rehabilitation Act of 1973 (29 USC §794) (nondiscrimination under Federal grants and programs); Title 45 CFR Part 84 (nondiscrimination on the basis of handicap in programs or activities receiving Federal financial assistance); Title 28 CFR Part 36 (nondiscrimination on the basis of disability by public accommodations and in commercial facilities); Title IX of the Education Amendments of 1973 (regarding education programs and activities); Title 45 CFR Part 91 and the Age Discrimination Act of 1975 (nondiscrimination based on age); as well as California Government Code Section 11135 (ethnic group identification, religion, age, sex, color, physical or mental
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 41
p. 58
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
handicap); California Civil Code Section 51 (all types of arbitrary discrimination); and all rules and regulations promulgated pursuant thereto. Licensor shall include the nondiscrimination and compliance provisions of this Section 26 in all subcontracts under this Agreement. 27.
No Liability of County of Orange or State of California. As required under Ordinance No. 3896 of the County of Orange, State of California, as amended, and under CalOptima’s contract with the State of California, Licensor and CalOptima acknowledge and agree that the obligations of CalOptima under this Agreement are solely the obligations of CalOptima, and neither the County of Orange nor the State of California, shall have any obligation or liability therefore.
28.
Prohibited Interest. Licensor agrees that to its knowledge no board member, officer or employee of CalOptima, during his or her tenure with CalOptima or for one (1) year thereafter, has any interest, whether contractual, non-contractual, financial or otherwise, in this transaction, or in the business of the Licensor, and that if any such interest comes to the knowledge of Licensor at any time, a full and complete disclosure of all such information will be made in writing to CalOptima, even if such interest would not be considered a conflict of interest under Article 4 of Chapter 1 of Division 4 of Title 1 (commencing with Section 1090) or Title 9 (commencing with Section 81000) of the Government Code of the State of California. Licensor further covenants that, for the term of this Agreement, and consistent with the provisions of Title 22 California Code of Regulations (CCR) Section 53600 (f), no state officer or state employee shall be employed in a management or Licensor position by Licensor within one year after the state office or state employee has terminated state employment.
29.
Modification Of Agreement. CalOptima reserves the right to modify the Agreement at any time should such modification be required by CMS or applicable law or regulation. No alteration, amendment, or modification of the terms of this Agreement shall be valid or effective unless in writing and signed by authorized representatives of Licensor and CalOptima.
30.
Waiver. All waivers under this Agreement shall be in writing in order to be effective. No waiver by a party of any breach of this Agreement or waiver of any warranty, representation, or other provision hereunder shall be deemed to be a waiver of any other breach, warranty, representation, or provision (whether preceding or succeeding, and whether or not of the same or similar nature), and no acceptance of performance by a party after any breach by the other party shall be deemed to be a waiver of any breach of this Agreement or of any representation, warranty, or other provision, whether or not the party accepting performance knows of such breach at the time of acceptance. No failure or delay by a party to exercise any right it may have by reason of the default of the other party shall operate as a waiver of default or modification of this Agreement or shall prevent the exercise of any right of the non-defaulting party under this Agreement.
31.
Independent Contractor. Licensor acknowledges that it is at all times acting as an independent contractor under this Agreement and except as specifically provided herein, not as an agent, employee, or partner of CalOptima. Licensor agrees to be solely responsible for all matters relating to compensation of its
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 42
p. 59
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
employees, including but not limited to compliance with laws governing workers’ compensation, Social Security, withholding and payment of any and all federal, state and local personal income taxes, disability insurance, unemployment, and any other taxes for such persons, including any related employer assessment or contributions required by law, and all other regulations governing such matters, and the payment of all salary, vacation and other employee benefits. At Licensor’s expense as described herein, Licensor agrees to defend, indemnify, and hold harmless CalOptima, its officers, agents, employees, members, subsidiaries, joint venture partners, and predecessors and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees as provided herein arising out of Licensor’s alleged failure to pay, when due, all such taxes and obligations (collectively referred to for purposes of this Section as “Employment Claim(s)”). Licensor shall pay to CalOptima any expenses or charges relating to or arising from any such Employment Claim(s) as they are incurred by CalOptima. 32.
Communications Systems and Access to Information. Licensor understands that Licensor may receive access to CalOptima’s computers and electronic communications systems (“systems”), including but not limited to voicemail, email, customer databases, and internet and intranet systems. Such systems are intended for legitimate business use related to CalOptima’s business. Licensor acknowledges that Licensor does not have any expectation of privacy as between Licensor and CalOptima in the use of or access to CalOptima’s systems and that all communications made with such systems or equipment by or on behalf of Licensor are subject to CalOptima’s scrutiny, use and disclosure, in CalOptima’s sole discretion. CalOptima reserves the right, for business purposes, to monitor, review, audit, interpret, access, archive and/or disclose materials sent over, received by or from, or stored in any of its electronic systems. This includes, without limitation, email communications sent by users across the internet and intranet from and to any all domain names maintained by CalOptima. This also includes, without limitation, any electronic communication system that has been used to access any of CalOptima’s systems. Licensor further agrees that Licensor will use all appropriate security, such as, for example, encryption and passwords, to protect CalOptima’s Proprietary or Confidential Information from unauthorized disclosure (internally or externally) and that the use of such security does not give rise to any privacy rights in the communication as between Licensor and CalOptima. CalOptima reserves the right to override any security passwords to obtain access to voicemail, email, computer (and software or other applications) and/or computer disks. Licensor also acknowledges that CalOptima reserves the right, for legitimate business purposes, to search all work areas (for example, offices, cubicles, desks, drawers, cabinets, computers, computer disks and files) and all personal items brought onto CalOptima property or used to access CalOptima information or systems.
33.
Interpretation Of Agreement. 33.1
Conflict Between Agreement And Exhibits. In the event of any conflict or inconsistency in the interpretation of this Agreement (including its Exhibits), such conflict or inconsistency shall be resolved by giving precedence in descending order (i) the body of this Agreement, inclusive of any amendment thereto; (ii) this Agreement’s Exhibits and attachments and all documentation cited herein or incorporated herein by reference (excluding Licensor’s Proposal and CalOptima’s RFP, or any other document specifically referenced in this paragraph); (iii) CalOptima’s RFP 15-004 dated July 10, 2014; (iv) Licensor’s best and final offer dated ________ __, 2014; (v), Licensor’s proposal dated ________ __, 2014.
33.2
Choice Of Law. This Agreement shall be construed in accordance with the laws of the State of California.
33.3
Venue. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal (if permitted by law and a party elects to file an action in federal court) courts located in Orange County, California. This choice of venue is intended by the parties to be mandatory and not
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 43
p. 60
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section.
34.
33.4
Agreement Drafted By All Parties. This Agreement is the result of arm’s length negotiations between the parties and shall be construed to have been drafted by all parties such that any ambiguities in this Agreement shall not be construed against either party.
33.5
Terminology. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa.
33.6
Section Headings. The section headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement.
33.7
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the parties as of the Reference Date at such time as all the signatories hereto have signed a counterpart of this Agreement.
Notices. Any notices required or permitted to be given hereunder by either party to the other shall be given in writing: (1) by personal delivery; (2) by electronic facsimile with confirmation sent by United States first class registered or certified mail, postage prepaid, return receipt requested; (3) by bonded courier or by a nationally recognized overnight delivery company; or (4) by United States first class registered or certified mail, postage prepaid, return receipt requested, in each case, addressed to the parties as follows (or to such other addresses as the parties may request in writing by notice given pursuant to this section): TO: CALOPTIMA ________________________________________ 505 City Parkway West Orange, California 92868-4220 and TO: LICENSOR ________________________________________ ________________________________________ ________________________________________ ________________________________________ Notices shall be deemed received on the earliest of personal delivery, upon delivery by electronic facsimile with confirmation from the transmitting machine that the transmission was completed, twenty-four (24) hours following deposit with a bonded courier or overnight delivery company; or seventy-two (72) hours following deposit in the U.S. Mail as required herein.
35.
Entire Agreement. This Agreement contains the entire agreement between Licensor and CalOptima with respect to the subject matter of this Agreement, and it supersedes all other prior and contemporary agreements,
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 44
p. 61
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
understandings, and commitments between Licensor and CalOptima with respect to the subject matter of this Agreement. 36.
Severability. If any provision of this Agreement is found to be invalid or unenforceable by any court, such provision shall be ineffective only to the extent that it is in contravention of applicable laws without invalidating the remaining provisions hereof.
37.
Survival. The following Sections shall survive any termination or expiration of this Agreement: 3.1 (License Grant) (except in the event of termination for breach by CalOptima), 3.3 (No Disassembly), 3.4 (No Service Bureau), 4 (Authority to License, Quiet Enjoyment, Proprietary Rights and Indemnity), 5 (Escrow of Source Materials) (to the extent necessary for release on the occurrence of a Release Condition), 16 (Licensor’s Representations, Warranties, and Covenants), 17 (Internal Dispute Resolution), 21 (Insurance and Indemnity), 22 (Ownership and Non Disclosure of Proprietary or Confidential Information), 23 (Verification of CalOptima Costs by Government), 25 (Assignment and Subcontracting), 27 (No Liability of County of Orange or State of California), 33 (Interpretation of Agreement), 34 (Notices), 35 (Entire Agreement), 39 (Attorney’s Fees), and 41 (State Medi-Cal Agreement Requirements).
38.
Electronic Transfer of Licensed Software. The Licensed Software shall be delivered to CalOptima by electronic transmission.
39.
Attorney’s Fees. Should either party to this Agreement institute any action or proceeding, other than pursuant to Section 17 (Internal Dispute Resolution), to enforce this Agreement or any provision hereof, or for damages by reason of any alleged breach of this Agreement, otherwise arising under this Agreement, or for a declaration of rights hereunder, the prevailing party in any such action or proceeding shall be entitled to receive from the other party all costs and expenses, including without limitation reasonable attorney’s fees, incurred by the prevailing party in such arbitration, action or proceeding, including all such costs and expenses incurred to enforce any award, judgment, or declaration of rights
40.
Contractor Performance During Civil Unrest or Disaster. Licensor recognizes that CalOptima provides services essential to the residents of the communities it serves, and that these services are of particular importance at the time of a riot, insurrection, civil unrest, natural disaster, terrorism occurrence, or similar event. Notwithstanding any other provision of this Agreement, full performance by Licensor during any riot, insurrection, civil unrest, natural disaster, terrorism occurrence, or similar event is not excused if such performance remains physically possible. During any such event in which the health or safety of any of Licensor’s staff members would be endangered by performing their services on-site, such staff members may perform any or all of their services remotely.
41.
State Medi-Cal Agreement Requirements. Licensor shall comply with all of the requirements set forth in Exhibit N attached hereto and incorporated herein by reference.
42.
Audit Disclosure.
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 45
p. 62
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
Pursuant to California Government Code Section 8546.7, if this Agreement is over ten thousand dollars ($10,000), it is subject to examination and audit of the State Auditor, at the request of CalOptima, or as part of any audit of CalOptima, for a period of three (3) years after final payment under this Agreement. In addition to and notwithstanding any other right of access or inspection that may be otherwise set forth in this Agreement or its attachments, Licensor agrees that, during the term of this Agreement and for a period of [__] years after its termination, CalOptima shall have access to and the right to examine any directly pertinent books, documents, invoices, and records of Licensor relating to services provided under this Agreement. 43.
Non-Exclusive Relationship. It is understood by the parties that this is a non-exclusive relationship between CalOptima and Licensor. CalOptima shall have the right to enter into contractual arrangements with one or more vendors who can provide CalOptima with similar or like services.
45.
Time is of the Essence. Time is of the essence in performance of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement to become effective as of the Reference Date. By: Its: By: Its:
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 46
p. 63
CalOptima
SAMPLE CONTRACT
Bid 15-004
RFP 15-004
EXHIBIT INDEX EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I EXHIBIT J EXHIBIT K EXHIBIT L EXHIBIT M EXHIBIT N EXHIBIT O EXHIBIT P EXHIBIT Q EXHIBIT R
System Requirements Statement and Scope of Work Licensed Software Equipment Work plan Escrow Agreement Training Performance Representations System Downtime Warranty Response Time Warranty CalOptima’s Request For Proposal Licensor’s Response to CalOptima’s Request For Proposal Documentation Travel Policy State Medi-Cal Agreement Requirements Medi-Cal Data Access Agreement Attestation Concerning Use of Offshore Subcontractors Business Associate Agreement FDR Compliance Attestation
Section IV – Sample Contract
7/30/2014 10:53 AM
Page 47
p. 64
CalOptima
Bid 15-004
Exhibit A System Requirements Statement and Scope of Work
Section IV – Sample Contract – Exhibit A
7/30/2014 10:53 AM
Page 48
p. 65
CalOptima
Bid 15-004
EXHIBIT B Licensed Software
Section IV – Sample Contract – Exhibit B
7/30/2014 10:53 AM
Page 49
p. 66
CalOptima
Bid 15-004
EXHIBIT C Equipment
Section IV – Sample Contract – Exhibit C
7/30/2014 10:53 AM
Page 50
p. 67
CalOptima
Bid 15-004
EXHIBIT D Work Plan
Section IV – Sample Contract – Exhibit D
7/30/2014 10:53 AM
Page 51
p. 68
CalOptima
Bid 15-004
EXHIBIT E Escrow Agreement
Section IV – Sample Contract – Exhibit E
7/30/2014 10:53 AM
Page 52
p. 69
CalOptima
Bid 15-004
EXHIBIT F Training
Section IV – Sample Contract – Exhibit F
7/30/2014 10:53 AM
Page 53
p. 70
CalOptima
Bid 15-004
EXHIBIT G Performance Representations
Section IV – Sample Contract – Exhibit G
7/30/2014 10:53 AM
Page 54
p. 71
CalOptima
Bid 15-004
EXHIBIT H System Downtime Warranty This System Down Time Warranty shall commence as of the date of completion of the Final Integrated Component Test and continue for the Support Term. [To be provided]
Section IV – Sample Contract – Exhibit H
7/30/2014 10:53 AM
Page 55
p. 72
CalOptima
Bid 15-004
EXHIBIT I Response Time Warranty
Section IV – Sample Contract – Exhibit I
7/30/2014 10:53 AM
Page 56
p. 73
CalOptima
Bid 15-004
EXHIBIT J CalOptima’s Request for Proposal (RFP 15-004)
Section IV – Sample Contract – Exhibit J
7/30/2014 10:53 AM
Page 58
p. 74
CalOptima
Bid 15-004
EXHIBIT K Licensor’s Response to CalOptima’s Request for Proposal (RFP) 15-004
Section IV – Sample Contract – Exhibit K
7/30/2014 10:53 AM
Page 59
p. 75
CalOptima
Bid 15-004
EXHIBIT L Documentation
Section IV – Sample Contract – Exhibit L
7/30/2014 10:53 AM
Page 60
p. 76
CalOptima
Bid 15-004
EXHIBIT M CALOPTIMA’S TRAVEL POLICY Refer to PDF Document Attached
Section IV – Sample Contract – Exhibit M
7/30/2014 10:53 AM
Page 61
p. 77
CalOptima
Bid 15-004
RFP 15-004 Exhibit N EXHIBIT N State Medi-Cal Agreement Requirements A.
EQUAL OPPORTUNITY
1. Licensor and its Subcontractors will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, physical or mental handicap, disability, age or status as a disabled veteran or veteran of the Vietnam era. Licensor and its Subcontractors will take affirmative action to ensure that qualified applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, national origin, physical or mental handicap, disability, age or status as a disabled veteran or veteran of the Vietnam era. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and career development opportunities and selection for training, including apprenticeship. Licensor and its Subcontractors agree to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Federal Government or Department of Health Care Service (DHCS), setting forth the provisions of the Equal Opportunity clause, Section 503 of the Rehabilitation Act of 1973, and the affirmative action clause required by the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (38 U.S.C. 4212). Such notices shall state Licensor and its Subcontractors' obligation under the law to take affirmative action to employ and advance in employment qualified applicants without discrimination based on their race, color, religion, sex, national origin physical or mental handicap, disability, age or status as a disabled veteran or veteran of the Vietnam era and the rights of applicants and employees. 2. Licensor and its Subcontractors will, in all solicitations or advancements for employees placed by or on behalf of Licensor and its Subcontractors, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin physical or mental handicap, disability, age or status as a disabled veteran or veteran of the Vietnam era. 3. Licensor and its Subcontractors will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding a notice, to be provided by the Federal Government or the State, advising the labor union or workers' representative of Licensor and its Subcontractors' commitments under the provisions herein and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. Licensor and its Subcontractors will comply with all provisions of and furnish all information and reports required by Section 503 of the Rehabilitation Act of 1973, as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (38 U.S.C. 4212) and of the Federal Executive Order No. 11246 as amended, including by Executive Order 11375, ‘Amending Executive Order 11246 Relating to Equal Employment Opportunity,‘ and as supplemented by regulation at 41 CFR part 60, “Office of the Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” and of the rules, regulations, and relevant orders of the Secretary of Labor. 5. Licensor and its Subcontractors will furnish all information and reports required by Federal Executive Order No. 11246 as amended, including by Executive Order 11375, ‘Amending Executive Order 11246 Relating to Equal Employment Opportunity,‘ and as supplemented by regulation at 41 CFR part 60, “Office of the Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” and the Rehabilitation Act of 1973, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by the State and its designated representatives and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
Section IV – Sample Contract – Exhibit N
7/30/2014 10:53 AM
Page 62
p. 78
CalOptima
Bid 15-004
RFP 15-004 Exhibit N 6. In the event of Licensor and its Subcontractors' noncompliance with the requirements of the provisions herein or with any federal rules, regulations, or orders which are referenced herein, this Agreement may be cancelled, terminated, or suspended in whole or in part, and Licensor and its Subcontractors may be declared ineligible for further federal and state contracts, in accordance with procedures authorized in Federal Executive Order No. 11246 as amended, and such other sanctions may be imposed and remedies invoked as provided in Federal Executive Order No. 11246 as amended, including by Executive Order 11375, ‘Amending Executive Order 11246 Relating to Equal Employment Opportunity,‘ and as supplemented by regulation at 41 CFR part 60, “Office of the Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 7. Licensor and its Subcontractors will include the provisions of this section in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor, issued pursuant to Federal Executive Order No. 11246 as amended, including by Executive Order 11375, ‘Amending Executive Order 11246 Relating to Equal Employment Opportunity,‘ and as supplemented by regulation at 41 CFR part 60, “Office of the Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” or Section 503 of the Rehabilitation Act of 1973 or (38 U.S.C. 4212) of the Vietnam Era Veteran's Readjustment Assistance Act, so that such provisions will be binding upon each subcontractor or Licensor. Licensor and its Subcontractors will take such action with respect to any subcontract or purchase order as the Director of the Office of Federal Contract Compliance Programs or DHCS may direct as a means of enforcing such provisions, including sanctions for noncompliance, provided, however, that in the event Licensor and its Subcontractors become involved in, or are threatened with litigation by a subcontractor or Licensor as a result of such direction by DHCS, Licensor and its Subcontractors may request in writing to DHCS, who, in turn, may request the United States to enter into such litigation to protect the interests of the State and of the United States. B.
PROVISION OF SUBCONTRACTS.
Subcontracting under this Agreement shall be limited to those subcontractors disclosed to, and approved by CalOptima. In the event that Licensor is allowed to subcontract for services under this Agreement, and does so subcontract, then Licensor shall, upon request, provide copies of such subcontracts to CalOptima or DHCS. C.
CONFIDENTIALITY OF MEMBER INFORMATION.
1. Licensor and its employees, agents, or subcontractors shall protect from unauthorized disclosure, the names and other identifying information concerning persons either receiving services pursuant to this Agreement, or persons whose names or identifying information become available or are disclosed to Licensor, its employees, agents, or subcontractors as a result of services performed under this Agreement, except for statistical information not identifying any such person. Licensor and its employees, agents, or subcontractors shall not use such identifying information for any purpose other than carrying out Licensor’s obligations under this Agreement. Licensor and its employees, agents, or subcontractors shall promptly transmit to CalOptima all requests for disclosure of such identifying information not emanating from the Member. Licensor shall not disclose, except as otherwise specifically permitted by this Agreement or authorized by the Member, any such identifying information to anyone other than DHCS or CalOptima without prior written authorization from CalOptima. For purposes of this provision, identity shall include, but not be limited to, name, identifying number, symbol, or other identifying particular assigned to the individual, such as finger or voice print or a photograph. 2. Names of persons receiving public social services are confidential and are to be protected from unauthorized disclosure in accordance with Title 42 CFR Section 431.300 et seq., Welfare and Institutions Code Section 14100.2, and regulations adopted thereunder. For the purpose Section IV – Sample Contract – Exhibit N
7/30/2014 10:53 AM
Page 63
p. 79
CalOptima
Bid 15-004
RFP 15-004 Exhibit N of this Agreement, all information, records, data, and data elements collected and maintained for the operation of the Agreement and pertaining to Members shall be protected by Licensor from unauthorized disclosure. Licensor may release Medical Records in accordance with applicable law pertaining to the release of this type of information. Licensor is not required to report requests for Medical Records made in accordance with applicable law. With respect to any identifiable information concerning a Member under this Agreement that is obtained by Licensor or its Subcontractors, Licensor: a.
Limits on Use of Member Information i.
will not use any such information for any purpose other than carrying out the express terms of this Agreement;
ii.
will promptly transmit to CalOptima all requests for disclosure of such information, except requests for Medical Records in accordance with applicable law;
iii.
will not disclose, except as otherwise specifically permitted by this Agreement, any such information to any party other than DHCS or CalOptima without CalOptima’s prior written authorization specifying that the information is releasable under Title 42 CFR Section 431.300 et seq., Section 14100.2, Welfare and Institutions Code, and regulations adopted there under; and
iv.
will, at the termination of this Agreement, return all such information to CalOptima or maintain such information according to written procedures sent to the Licensor by CalOptima for this purpose.
3. VENDOR agrees to complete a CalOptima Medi-Cal Data Access Agreement, which is attached hereto as Exhibit O and incorporated herein by this reference. All materials covered under this Medi-Cal Data Access Agreement shall be designated confidential, to the extent permitted by California law. D.
DEBARMENT CERTIFICATION. By signing this Agreement, the Licensor agrees to comply with any and all applicable Federal suspension and debarment regulations including. 1. By signing this Agreement, the Licensor certifies to the best of its knowledge and belief, that it and its principals:
a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency; b. Have not within a three-year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses referenced in Subsection 1(b) of this Section; and Section IV – Sample Contract – Exhibit N
7/30/2014 10:53 AM
Page 64
p. 80
CalOptima
Bid 15-004
RFP 15-004 Exhibit N d. Have not within a three-year period preceding this Agreement had one or more public transactions (Federal, State or local) terminated for cause or default. e. Shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under Federal regulations (e.g., 48 CFR 9, subpart 9.4), debarred, suspended, declared ineligible, or voluntarily excluded from participation in such transaction, unless authorized by the State. f. Will include a clause entitled, “Debarment and Suspension Certification’’ that essentially sets forth the provisions herein, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 2. If the Licensor is unable to certify to any of the statements in this certification, the Contractor shall submit an explanation to CalOptima. 3. The terms and definitions herein have the meanings set out in the Definitions and Coverage sections of the rules implementing Federal Executive Order 12549. 4 If the Licensor knowingly violates this certification, in addition to other remedies available to the Federal Government, CalOptima may terminate this Agreement for cause or default. E.
NOTICE TO AND APPROVAL OF DHCS.
This Agreement is subject to the approval of the Department of Health Care Services (DHCS). CalOptima and Licensor agreed to notify DHCS in the event this Agreement is amended or terminated. Notice is considered given when properly addressed to the Contracting Officer and deposited in the United States Postal Service as first-class registered mail, postage attached.
Section IV – Sample Contract – Exhibit N
7/30/2014 10:53 AM
Page 65
p. 81
CalOptima
Bid 15-004
RFP 15-004 Exhibit O
MEDI-CAL DATA ACCESS AGREEMENT As a condition of obtaining access to information concerning procedures or other data records utilized/maintained by the Department of Health Care Services and CalOptima, Licensor, including any and all individual employees and agents, agrees not to divulge any information obtained in the course of completion of this Contract to any unauthorized persons. Licensor: a.
further agrees not to publish or otherwise make public any information regarding persons receiving Medi-Cal services such that the persons who receive such services are identifiable.
b.
further recognizes that unauthorized release of confidential information may be subject to civil and criminal sanctions pursuant to the provisions of the Welfare and Institutions Code Section 14100.2.
c.
further agrees that this Medi-Cal Data Access Agreement shall remain in full force and effect after the termination of this Contract.
By: ____________________________
Dated: ________________
Section IV – Sample Contract – Exhibit O
7/30/2014 10:53 AM
Page 66
p. 82
CalOptima
Bid 15-004
RFP 15-004 Exhibit P EXHIBIT P ATTESTATION CONCERNING USE OF OFFSHORE SUBCONTRACTORS REFER TO ATTACHED PDF DOCUMENT
Section IV – Sample Contract – Exhibit P
7/30/2014 10:53 AM
Page 67
p. 83
CalOptima
Bid 15-004
RFP 15-004 Exhibit Q EXHIBIT Q BUSINESS ASSOCIATE AGREEMENT REFER TO ATTACHED PDF DOCUMENT
Section IV – Sample Contract – Exhibit Q
7/30/2014 10:53 AM
Page 68
p. 84
CalOptima
Bid 15-004
RFP 15-004 Exhibit R EXHIBIT R FDR COMPLIANCE ATTESTATION REFER TO ATTACHED PDF DOCUMENT
Section IV – Sample Contract – Exhibit R
7/30/2014 10:53 AM
Page 69
p. 85
CalOptima
Bid 15-004
SECTION V. REQUIREMENTS
7/30/2014 10:53 AM
p. 86
CalOptima
Bid 15-004
RFP 15-004
V. REQUIREMENTS/QUESTIONNAIRE A.
OVERALL OBJECTIVE The Grievance, Appeals and Resolution Service (GARS) department is requiring a new healthcare accredited Appeals and Grievance software solution with automated processes to streamline current operations with the ability to interface with other core health plan applications.
B.
REQUIREMENTS/QUESTIONNAIRE 1.
Please provide detailed responses to the requested information and questions posed below. a.
Functional 1) The solution must be able to customize letters and email templates for internal and external communication. The letters and emails can be auto-populated and can be edited as needed. 2) Describe your solutions’ workflow capabilities, including queues and routing functions. 3) Describe how your solution handles “smart” auto-population based on entered information. Describe spell check and medical terminology features. 4) Does the solution have the ability to generate correspondence in different languages and if so, what languages? 5) Provide detailed explanation on solution capability to build letters based on the use of templates. 6) Does the solution allow the attachment of external documents for each case and if so, is there a limit to the size of the documents? Also, is the solution able to save letters generated from solution as attachments? 7) Describe how your solution allows for tracking of due dates and specific times as needed and if it provides reminders, past due indicators and escalation notices. 8) Describe your user systematic auditing process based on user activity, for example; Is there a Date/Time stamp on user history? 9) Can a record in historical data be setup to not allow deletion? In other words, do you permanently delete records from your solution or database? 10) Describe Offeror’s solution to handle fax and emails. 11) Does Offeror’s solution allow for workflow customization? 12) Describe how your solution handles “Urgent” or “Routine” issues. 13) Describe how your solution handles reminders on tasks with specific due dates. 14) Does Offeror’s solution auto assign cases based on skill level of the staff and current case volume? 15) Is the use of a decision tree utilized to determine if a case is a grievance or an appeal?
Section V - Requirements 7/30/2014 10:53 AM
Page 70 p. 87
CalOptima
Bid 15-004
RFP 15-004 16) How many levels of escalation does the system allow? Some cases can go up to 5 levels of escalation depending on the issue. 17) Does the Offeror’s solution comply with regulatory requirements/guidelines for complaints and appeals based on CMS and DHCS guidelines? 18) Does the Offeror’s solution allow easy configuration of the types of concern/complaints or are there standard types that are used? 19) Does the Offeror’s solution allow user to pre-define workflows or add actions as needed? Please provide detailed explanation. 20) Does the Offeror’s solution allow user to assign an action to an individual, or a group of individuals at the same time? 21) Does the Offeror’s solution allow the user to track due dates and schedule reminders, past dues and escalation e-mails? 22) Does the Offeror’s solution allow the user to print or email an action report? 23) Describe if your solution is able to incorporate insertion of hyperlinks so users can simply click and respond. 24) Is the Offeror’s solution able to e-mail reports directly from the system? Please explain. 25) Does the Offeror’s solution allow internal staff to easily submit an issue on behalf of member or provider? Please explain. 26) Does the Offeror’s solution allow outside entities/suppliers to respond directly to requests? Please explain. 27) Is the Offeror’s solution easily configured to allow customized views, fields and pick lists? Please explain. 28) Is the Offeror’s solution easily configured to establish security rules and access privileges? Please explain. b.
Technical 1) Please describe your licensing options for your application. 2) Please describe your hardware and software architecture including redundancy and disaster recovery. 3) Describe and list any third-party products that are required for the proposed architecture solution. 4) Please describe the client desktop requirements for your solution and other optional client access devices such as smart phones. 5) Describe any benchmarks you have completed. Please provide the information as it relates to online and batch processing (average response time and concurrent users).
Section V - Requirements 7/30/2014 10:53 AM
Page 71 p. 88
CalOptima
Bid 15-004
RFP 15-004 6) Please describe your applications ability to allow for user customization including database connection for custom queries. 7) Please describe your release management process as it relates to upgrades and patches. Are updates achievable without downtime of the application? 8) Please describe your support service level agreements. 9) Please describe your security controls and policies as it relates to HIPAA requirements and other industry standards. c.
Training 1) Please explain the training provided with your firm’s product.
d.
Access to information and electronic support services 1) Does your firm’s solution support paperless document storage? If so, is the document non-editable?
e.
Reports 1) Describe solution reporting tool. 2) Please describe how reports and queries can be customized. 3) Please describe the solutions ability to export data in formats such as excel, pdf, etc. 4) Are there trending reports? 5) Define types of canned reports; example pending, completed, and turn-around reports. 6) Please describe your dashboard and drill down capabilities.
C.
D.
PERFORMANCE MEASURES 1.
Clearly state the performance measures or outcome measures which your firm will guarantee.
2.
Incorporate a schedule of performance to include milestones and completion dates.
3.
Licensor shall provide CalOptima with Measurement/Metric Reporting on a monthly basis which shall provide CalOptima with the information necessary to determine if Licensor is meeting its Performance Guarantee levels. The Measurement/Metric Reporting shall include System and Uptime only as it relates to CalOptima. List all reporting capabilities, such as type of reporting availability and frequency and provide examples.
PROFESSIONAL LICENSING, CREDENTIALING, AND CERTIFICATION REQUIREMENTS 1.
Has your firm been sanctioned by Federal/State regulatory Agency within the last 5 years?
2.
Provide customer references.
Section V - Requirements 7/30/2014 10:53 AM
Page 72 p. 89
CalOptima
Bid 15-004
RFP 15-004
ACKNOWLEDGEMENT In signing this proposal, Offeror acknowledges receipt of 15-004 and the following addenda, if any:
Addendum no.
,
Received on:
Addendum no.
,
Received on:
Addendum no.
,
Received on:
I acknowledge receipt of 15-004 and addenda No.(s) _________________________ I hereby certify on behalf of ___________________________ that the contents of this proposal are, to the best of my ability, completely in compliance with all requirements of the RFP, and the terms and conditions of the Sample Contract, without exceptions, other than those expressly listed and explained in this proposal. This proposal is an irrevocable offer, which shall remain in full force and effect for 90 days after the proposal due date. Company Name: Address: Telephone Number: Signature Of Person Authorized To Bind Offeror: Signatory’s Name And Title: Date Signed:
Acknowledgement
7/30/2014 10:53 AM
Page 73
p. 90
CalOptima
Bid 15-004
RFP 15-004 Attachment A CalOptima Board Members 2014 Board Member Mark Refowitz Lee Penrose Ellen Ahn Samara Cardenas, M.D. Viet Van Dang, M.D. Peter Agarwal Steven Knoblock Janet Nguyen Michael Ryan Theresa Boyd Tricia Nguyen Todd Spitzer
Title Chair Vice Chair Board Member Board Member Board Member Board Member Board Member Board Member Board Member Board Member Board Member Board Member
CalOptima Executive Team 2014 Name Michael Schrader Bill Jones Chet Uma Len Rosignoli Dr. Richard Helmer Gary Crockett Javier Sanchez Michael Ruane Ladan Khamseh Candice Gomez Barbara Saak Ron Santos Theresa Stanley
Title Chief Executive Officer Chief Operating Officer Chief Financial Officer Chief Information Officer Chief Medical Officer Chief Counsel Chief Network Officer Chief of Strategy and Public Affairs Executive Director, Operations Executive Director, Program Implementation Executive Director, Compliance Executive Director, Human Resources Executive Director, Clinical Operations
Attachment A - CalOptima Board Members & Executive Team
7/30/2014 10:53 AM
Page 74
p. 91
CalOptima
Bid 15-004
RFP 15-004 Attachment B NON-COLLUSION AFFIDAVIT STATE OF CALIFORNIA COUNTY OF The undersigned, being first duly sworn, deposes and says as follows:
1.
This Affidavit is executed by the undersigned
, Typed or Printed Name)
whose title is
, on behalf of (Title)
, the party (Bidder Name)
submitting the foregoing proposal (the “Bidder”) in response to 15-004 (“Proposal”).
2.
The Proposal is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation.
3.
The Proposal is genuine and not collusive or sham.
4.
The Bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any other bidder or anyone else to put in a sham bid, or to refrain from bidding.
5.
The Bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price, or that of any other bidder, or to fix any overhead, profit or cost element of the bid price or that of any other bidder, or to secure any advantage against the public body awarding the contract or of anyone interested in the proposed contract.
6.
All statements contained in the Proposal and related documents are true.
7.
The Bidder has not, directly or indirectly, submitted the bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any person, corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Executed this
day of
, 2014 at
. (City, County and State)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
(Signature)
(Address)
(Name Printed or Typed)
(City, County and State) (Area Code and Telephone Number)
Attachment B – Non-Collusion Affidavit
7/30/2014 10:53 AM
Page 75
p. 92
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 93
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 94
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 95
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 96
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 97
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 98
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 99
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 100
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 101
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 102
RFP 15-004 Sample Contract Exhibit M
7/30/2014 10:53 AM
CalOptima
Bid 15-004
p. 103
RFP 15-004 Sample Contract Exhibit M
RFP 15-004 Sample Contract Exhibit P
CalOptima
Bid 15-004
Attestation Concerning the Use of Offshore Subcontractors Please complete and execute this attestation and return it to CalOptima’s Office of Compliance via fax (714) 481‐6457, email
[email protected], or mail: 505 City Parkway West, Orange, CA 92868, within fifteen (15) calendar days of the notice accompanying this form.
OneCare HMO SNP Medi-Cal PACE
Check which CalOptima program(s) this form pertains to:
Are any administrative or other functions conducted on behalf of your organization by entities located offshore? This shall include employees of your firm, subcontractors and any 3rd party subcontractors. (“X” where appropriate) No
If NO, please complete Part I:
Yes
If YES, please complete Parts II–VI of this form:
Part I — Our Firm is Not Using Offshore Subcontractors and/or Employees Offshore Subcontractors
Offshore Employees
Our Organization is NOT using Offshore Subcontractors Firm is NOT using Offshore Subcontr
Our Organization does NOT employ workers who are located Offshore
Name of Organization: Name of Authorized Person: Title: Signature: Date:
Part II — Offshore Subcontractor Information Offshore Subcontractors Our Organization IS using Offshore Subcontractors Firm is NOT using Offshore Subcontractors
Offshore Employees Our Organization DOES employ workers who are located Offshore
Subcontractor Name: Subcontractor Country: Subcontractor Address: Describe Offshore Subcontractor Functions:
Rev. 2012 7/30/2014 10:53 AM
Page 1 of 3 p. 104
RFP 15-004 Sample Contract Exhibit P
CalOptima
Bid 15-004
State Proposed or Actual Effective Date for Offshore Subcontractor: ___________________________
Part III — Precautions for Protected Health Information (PHI) 1. Describe the PHI that will be provided to the Offshore Subcontractor and/or Employee:
2. Explain why providing PHI is necessary to accomplish the Offshore Subcontractor’s/Employee’s objectives:
3. Describe alternatives considered to avoid providing PHI, and why each alternative was rejected:
Part IV — Attestation of Safeguards to Protect Beneficiary Information in the Offshore Subcontract Item
Attestation
A.
Offshore Subcontractor/Employee arrangement has policies and procedures in place to ensure that Medi-Cal, Medicare and Healthy Families beneficiary protected health information (PHI) and other personal information remains secure. Offshore Subcontractor/Employee arrangement prohibits Subcontractor/Employee access to Medi-Cal, Medicare, and Healthy Families data not associated with CalOptima’s contract with the Offshore Subcontractor/Employee. Offshore Subcontractor/Employee arrangement has policies and procedures in place that allow for immediate termination of the subcontractor/employee upon discovery of a significant security breach. Offshore subcontractor/employee arrangement includes all required DHCS and/or CMS language as stipulated within your contract with CalOptima.
B.
C.
D.
Response Yes / No
Part V — Attestation of Audit Requirements to Ensure Protection of PHI Item A. B.
Attestation Your organization will conduct an annual audit of the Offshore Subcontractor/Employee. Audit results will be used by your organization to evaluate the continuation of its relationship with the Offshore Subcontractor/Employee.
Rev. 2012 7/30/2014 10:53 AM
Response Yes / No
Page 2 of 3 p. 105
CalOptima
C.
RFP 15-004 Sample Contract Exhibit P
Bid 15-004
Your organization agrees to share Offshore Subcontractor’s/Employee’s audit results with CalOptima upon request.
Part VI — Organization Information Name of Organization: Name of Authorized Person: Title: Signature: Date:
Rev. 2012 7/30/2014 10:53 AM
Page 3 of 3 p. 106
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
1 Business Associate Agreement This Business Associate Agreement (“Agreement”) is entered into by and between the Orange County Health Authority, a California local public agency, doing business as CalOptima (“Plan”), and _________________________, a _________________ (“Business Associate”), on this ____________ day of __________, 20__. RECITALS WHEREAS, the parties have executed an agreement(s) whereby Business Associate provides services to Plan, and Business Associate creates, receives, maintains, uses or transmits Protected Health Information in order to provide those services (“Services Agreement(s)”); WHEREAS, as a Covered Entity, Plan is subject to the Administrative Simplification requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) of 1996, Public Law 104-191, and regulations promulgated thereunder, including the Standards for Privacy of Individually Identifiable Health Information at 45 Code of Federal Regulations Parts 160 and Subparts A and E of 45 C.F.R. Part 164 (“Privacy Regulations”) and the Security Standards for Electronic Protected Health Information (“Security Regulations”) at 45 Code of Federal Regulations Parts 160 and Subparts A and C of 45 C.F.R. Part 164, as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) of 2009, Public Law 111-0005, and promulgated thereunder including the Breach Notification Regulations at 45 Code of Federal Regulations Subpart D of 45 C.F.R. Part 164 , and is subject to certain State privacy laws; WHEREAS, as a Business Associate, VENDOR is subject to certain provisions of HIPAA, and regulations promulgated thereunder, as required by the HITECH Act and regulations promulgated thereunder; WHEREAS, the Plan and Business Associate are required to enter into a contract in order to mandate certain protections for the privacy and security of Protected Health Information; WHEREAS, the Plan’s regulator(s) have adopted certain administrative, technical and physical safeguards deemed necessary and appropriate by it/them to safeguard regulators’ Protected Health Information and have required that Plan incorporate such requirements in its business associate agreements with subcontractors that require access to the regulators’ Protected Health Information; NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: I.
DEFINITIONS
1.1 “Breach” means, unless expressly excluded under 45 C.F.R. § 164.402, the acquisition, access, use , or disclosure of PHI in a manner not permitted under Subpart E of 45 C.F.R. Part 164 of the Code of Federal Regulations which compromises the security or privacy of the PHI and as more particularly defined under 45 C.F.R. § 164,402., 1.2 “Disclose” and “Disclosure” mean, with respect to PHI, the release, transfer, provision of access to, or divulging in any other manner of PHI outside the entity holding the information.
November 2013 7/30/2014 10:53 AM
p. 107
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
2 1.3
“Electronic Media” means: (a)
Electronic storage material on which data is or may be recorded electronically including, memory devices in computers (hard drives) and any removable/transportable digital memory medium, such as magnetic tape or disk, optical disk, or digital memory card; or
(b)
Transmission media used to exchange information already in electronic storage media. Transmission media include, for example, the internet (wide-open), extranet (using internet technology to link a business with information accessible only to collaborating parties), leased lines, dial-up lines, private networks, and the physical movement of removable /transportable electronic storage media. Certain transmissions, including of paper, via facsimile, and of voice, via telephone, are not considered to be transmissions via electronic media, because the information being exchanged did not exist in electronic form before the transmission.
1.4 “Electronic Health Record” shall have the meaning set forth in the HITECH Act, including but not limited to 42 U.S.C. § 17921 and implementing regulations. 1.5 “Electronic Protected Health Information” or “ePHI” means Individually Identifiable Health Information that is transmitted or maintained in electronic media including, but not limited to, electronic media as set forth in 45 C.F.R. § 160.103. 1.6
“HHS” means the federal Department of Health and Human Services.
1.7 “Information System” means an interconnected set of information resources under the same direct management control that shares common functionality. A system normally includes hardware, software, information, data, applications, communications, and people. 1.8 “Individual” means the person who is the subject of PHI and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. § 164.502(g). 1.9 “Individually Identifiable Health Information” means health information, including demographic information collected from an individual, that is created or received by a health care provider, health plan, employer or health care clearinghouse, and relates to the past, present or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, that identifies the individual or where there is a reasonable basis to believe the information can be used to identify the individual, as set forth under 45 CFR section 160.103. 1.10
“Personal Information” or “PI” has the meaning set forth in California Civil Code § 1798.29.
1.11 “Protected Health Information” or “PHI” means individually identifiable health information that is transmitted by electronic media, maintained in electronic media, or is transmitted or maintained in any other form or medium, as set forth under 45 CFR section 160.103. 1.12 “Required By Law” means a mandate contained in law that compels an entity to make a Use or Disclosure of PHI and that is enforceable in a court of law. Required by law includes, but is not limited to, court orders and court-ordered warrants; subpoenas or summons issued by a court, grand jury, a governmental or tribal inspector general, or an administrative body authorized to require the production of information; a civil or an authorized investigative demand; Medicare conditions of participation with respect to health care providers participating in the program; and statutes or regulations that require the production of information, including statutes or regulations that require such information if payment is sought under a government program providing benefits. November 2013 7/30/2014 10:53 AM
p. 108
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
3 1.13
“Secretary” means the Secretary of HHS or the Secretary’s designee.
1.14 “Security Incident” means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of PHI, PI or confidential data or interference with system operations in an Information System which contains Electronic Protected Health Information. 1.15
“Services” has the same meaning as in the Services Agreement(s).
1.16 “Use” or “Uses” mean, with respect to PHI, the sharing, employment, application, utilization, examination or analysis of such information within the entity that maintains such information. 1.17 “Unsecured Protected Health Information” or “Unsecured PHI” means PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of technology or methodology specified by the Secretary. 1.18 Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in HIPAA, the HITECH Act and regulations promulgated thereunder. II.
OBLIGATIONS OF BUSINESS ASSOCIATE
2.1 HITECH Compliance. Business Associate will comply with the requirements of Title XIII, Subtitle D, of the HITECH Act, which are applicable to business associates, and will comply with all regulations issued by HHS to implement these referenced statutes, as of the date by which business associates are required to comply with such referenced statutes and HHS regulations. 2.2
Permitted Uses and Disclosures of Protected Health Information. (a)
Use and Disclosure for Services. Business Associate may Use and Disclose PHI as necessary to perform the Services under the Services Agreement(s). Business Associate may not Use or further Disclose PHI in a manner that would violate the Privacy Regulations if done by the Plan, except as provided in (c) and (d) below.
(b)
Disclosure to Plan. Business Associate shall Disclose PHI to Plan upon request.
(c)
Use for Management and Administration of Business Associate: Business Associate may Use and Disclose PHI for the proper management and administration of the Business Associate provided that such disclosures are required by law, or the Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and will be used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware that the confidentiality of the information has been breached.
(d)
Data Aggregation: If authorized as part of the Services, Business Associate may Use PHI to provide data aggregation services to Plan. Data aggregation means the combining of PHI created or received by the Business Associate on behalf of Plan with PHI received by the Business Associate in its capacity as the Business Associate of another covered entity, to permit data analyses that relate to the health care operations of Plan.
(e)
Performance of Covered Entity Obligations. To the extent that Business Associate is to carry out the Plan’s obligations under Subpart E of 45 C.F.R. Part 164, it shall comply with the requirements of such Subpart that apply to the Plan in the performance of such obligations. Business Associate shall not Use or Disclose PHI for any other purpose.
November 2013 7/30/2014 10:53 AM
p. 109
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
4 2.3
2.4
Prohibited Uses and Disclosures of Protected Health Information. (a)
Restrictions on Certain Disclosures to Health Plans. Business Associate shall not Disclose PHI about an Individual to a health plan for payment or health care operations purposes if the PHI pertains solely to a health care item or service for which the health care provider involved has been paid out of pocket in full and the Individual requests such restriction in accordance with HIPAA and the HITECH Act, including 45 CFR § 164.522(a).
(b)
Prohibition on Sale of PHI; No Remuneration. Business Associate shall not directly or indirectly receive remuneration in exchange for PHI, except with the prior written authorization of Plan and Plan’s regulators and then, only as permitted by HIPAA and the HITECH Act.
Adequate Safeguards for Protected Health Information. (a)
Business Associate warrants that it shall implement and maintain appropriate safeguards to prevent the Use or Disclosure of PHI in any manner other than as permitted by this Agreement.
(b)
Business Associate shall implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the PHI, including ePHI, that it creates, receives, maintains, uses or transmits on behalf of Plan and to prevent Use or Disclosure of PHI other than as provided for by this Agreement. Business Associate shall implement reasonable and appropriate policies and procedures to comply with the standards, implementation specifications and other requirements of Subpart C of 45 C.F.R. Part 164. Business Associate shall maintain a written information privacy and security program that includes administrative, technical and physical safeguards appropriate to the size of Business Associate’s operations and the nature and scope of its activities.
(c)
Business Associate is required to take any and all steps necessary to ensure the continuous security of all computerized data systems containing PHI and/or PI, and to protect paper documents containing PHI and/or PI. These steps shall include, at a minimum: (i) complying with all of the data system security precautions listed in Attachment A to this Agreement; (ii) achieving and maintaining compliance with the HIPAA Security Rule (45 CFR Parts 160 and 164), as necessary in conducting operations on behalf of DHCS under this Agreement; (iii) providing a level and scope of security that is at least comparable to the level and scope of security established by the Office of Management and Budget in OMB Circular No. A-130, Appendix III - Security of Federal Automated Information Systems, which sets forth guidelines for automated information systems in Federal agencies. In case of a conflict between any of the security standards contained in any of these enumerated sources of security standards, the most stringent shall apply. The most stringent means that safeguard which provides the highest level of protection to PHI from unauthorized disclosure. Further, Business Associate must comply with changes to these standards that occur after the effective date of this Agreement.
2.5 Limited Data Set and Minimum Necessary. Permitted Uses and Disclosures should, to the extent practicable be limited to the limited data set as defined in 45 CFR § 164.514(e)(2), or, if needed, to the minimum necessary to accomplish the intended purpose of such Use or Disclosure as specified in 45 C.F.R. § 164.502(b). November 2013 7/30/2014 10:53 AM
p. 110
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
5 2.6 Social Security Data. If Business Associate receives data from Plan that was provided by the Social Security Administration to the Department of Health Services (“SSA Data”), Business Associate shall provide a list of all employees, contractors and agents who have access to such data, including employees, contractors and agents of any subcontractors upon the Plan’s or its regulator’s request for SSA Data. 2.7
2.8
Notification of Breach. During the term of this Agreement: (a)
Immediate Notice: Discovery of Breach of Unsecured PHI and Certain Security Incidents. Business Associate agrees to notify Plan immediately by telephone call plus e-mail upon the discovery of a Breach of unsecured PHI or PI in electronic media form, if the PHI or PI was, or is reasonably believed to have been, accessed or acquired by an unauthorized person, or upon discovery of a suspected Security Incident that involves SSA Data.
(b)
24-Hour Notice: Discovery of Suspect Security Incident, Intrusion or Unauthorized Access, Use or Disclosure or Loss of Data. Business Associate agrees to notify Plan within 24 hours by e-mail or fax of the discovery of any suspected Security Incident, intrusion, or unauthorized access, Use or Disclosure of PHI or PI in violation of this Agreement or potential loss of confidential data, A Breach shall be treated as discovered by Business Associate as of the first day on which the Breach is known, or by exercising reasonable diligence would have been known to any person who is an employee, officer or other agent of Business Associate (excepting the person committing the Breach). Business Associate shall comply with Plan’s form and content requirements for reporting such privacy incident.
(c)
Contact Information for Notices under (a) and (b) above. Notification shall be provided to the Plan’s Privacy Officer (Plan’s Executive Director of Compliance) as provided in (a) and (b) above at the following: telephone number (714) 246-8751; facsimile number: (714) – 852-1562; e-mail address:
[email protected].
Investigations, Corrective Actions and Reports. (a)
(b)
Corrective Actions. Business Associate shall take: (i)
Prompt corrective action to mitigate any risks or damages involved with the Breach, Security Incident, intrusion or unauthorized Use or Disclosure of PHI or potential or actual loss of confidential data and to protect the operating environment. Notwithstanding the foregoing, all corrective actions are subject to the approval of Plan and the Plan’s regulator(s).
(ii)
Any action pertaining to such Breach, Security Incident, intrusion or unauthorized Use or Disclosure of PHI or potential or actual loss of confidential data required by applicable Federal and State laws and regulations.
(iii)
Any additional corrective actions required by Plan or Plan’s regulator(s).
Investigation of Suspected or Actual Breach, Security Incident, Intrusion or Unauthorized Use or Disclosure of PHI or Loss of Confidential Data: Business Associate agrees to immediately investigate such Security Incident, Breach, or unauthorized Use or Disclosure of PHI or potential or actual loss of confidential data and within forty-eight (48) hours of the discovery to notify Plan of the matters described below. Business
November 2013 7/30/2014 10:53 AM
p. 111
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
6 Associate shall comply with Plan’s additional form and content requirements for reporting such privacy incident.
(c)
(i)
The identification of each individual whose unsecured PHI has been, or is reasonably believed by Business Associate to have been accessed, acquired, used or disclosed during the Breach;
(ii)
The nature of the data elements involved and the extent of the data involved in the breach;
(iii)
A description of the unauthorized persons known or reasonably believed to have improperly Used or Disclosed PHI or confidential data;
(iv)
A description of where the PHI or confidential data is believed to have been improperly transmitted, sent, or utilized;
(v)
A description of the probable causes of the improper Use or Disclosure;
(vi)
Any other available information that the Business Associate is required to include in notification to the Individual under 45 C.F.R. § 164.404(c);
(vii)
Whether the PHI or confidential data that is the subject of the Security Incident, Breach, or unauthorized Use or Disclosure of PHI or confidential data included Unsecured Protected Health Information;
(viii)
Whether a law enforcement official has requested a delay in notification of individuals of the Security Incident, Breach, or unauthorized Use or Disclosure of PHI or confidential data because such notification would impede a criminal investigation or damage national security and whether such notice is in writing; and
(ix)
Whether Section 13402 of the HITECH Act (codified at 42 U.S.C. § 17932), Civil Code sections 1798.29 or 1798.82 or any other Federal or State laws requiring individual notifications of breaches are triggered.
Written Report. Business Associate shall provide a comprehensive written report to Plan no later than seven (7) working days after discovery of the Security Incident, breach, or other unauthorized Use or Disclosure of PHI or confidential data, providing a comprehensive discussion of the above matters identified in section above and the matters below. Business Associate shall comply with Plan’s additional form and content requirements for reporting such privacy incident. (i)
The potential impacts of the incident, e.g. potential misuse of date, identity theft, etc;
(ii)
The steps taken in mitigation to reduce the harmful effects of the breach; and
(iii)
A corrective action plan describing how Business Associate will prevent reoccurrence of the incident in the future. Notwithstanding the foregoing, all corrective actions are subject to the approval of Plan and the Plan’s regulator(s).
November 2013 7/30/2014 10:53 AM
p. 112
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
7 2.9 Mitigation of Harmful Effects. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of PHI by Business Associate in violation of the requirements of this Agreement. 2.10 Notification of Breach to Individuals. Business Associate shall comply with Federal and State laws requiring notice to Individuals of breaches of PHI, PI or confidential data including, without limitation, Section 13402 of the HITECH Act, codified at 42 U.S.C. § 17932 and applicable State privacy laws. All such notifications shall be coordinated with Plan and Plan shall approve the time, manner, content and method for notice including, without limitation, requiring Business Associate to directly send and pay for such notices at Plan’s discretion. Business Associate acknowledges that Plan’s regulators must approve the time, manner and content of such notices before the notifications are made. 2.11 Media Notification and Reporting of Breaches. If the cause of a Breach of PHI or PI is attributable to Business Associate or its agents, subcontractors or vendors, Plan shall make all required reports, if any, of the Breach as specified in 42 U.S.C. § 17932 and its implementing regulations, including notification to media outlets and to the Secretary. 2.12 Indemnification. Business Associate will immediately indemnify and pay Plan for and hold it harmless from (i) any and all fees and expenses Plan incurs in investigating, responding to, and/or mitigating a breach of PHI, PI or confidential data caused by Business Associate or its subcontractors or agents; (ii) any damages, attorneys’ fees, costs, liabilities or other sums actually incurred by Plan due to a claim, lawsuit, or demand by a third party arising out of a breach of PHI, PI or confidential data caused by Business Associate or its subcontractors or agents; and/or (iii) for fines, assessments and/or civil penalties assessed or imposed against Plan by any government agency/regulator based on a breach of PHI, PI or confidential data caused by Business Associate or its subcontractors or agents. Such fees and expenses may include, without limitation, attorneys’ fees and costs and costs for computer security consultants, credit reporting agency services, postal or other delivery charges. Acceptance by Plan of any insurance certificates and endorsements required under the Service Agreement(s) does not relieve Business Associate from liability under this indemnification provision. This provision shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. III.
AVAILABILITY OF INFORMATION TO GOVERNMENT AGENCIES AND PLAN
3.1 Availability of Internal Practices, Books and Records to Government Agencies. Business Associate agrees to make its internal practices, books and records relating to the Use and Disclosure of PHI available to the California Department of Health Care Services (“DHCS”) and the Secretary for purposes of determining Plan’s compliance with HIPAA, the HITECH Act and implementing regulations. Business Associate also agrees to make its internal practices, books and records relating to the Use and Disclosure of Protected Health Information available to DHCS, the Plan and the Secretary of HHS for purposes of determining Business Associate’s compliance with applicable HIPAA, the HITECH Act and implementing regulations. Business Associate shall immediately notify Plan of any requests made by DHCS or the Secretary and provide Plan with copies of any documents produced in response to such request. 3.2 Plan Audits, Inspection and Enforcement. From time to time, Plan or its regulators may inspect the facilities, systems, books and records of Business Associate to monitor compliance with this Agreement. Business Associate shall promptly remedy any violation of any provision of this Agreement and shall certify the same to the Plan in writing. The fact that Plan or its regulators inspects, or fails to inspect, or has the right to inspect, Business Associate’s facilities, systems and procedures does not relieve Business Associate of its responsibility to comply with this Agreement, nor does the Plan’s or its regulators’: (i) failure to detect or (ii) detection, but failure to notify Business Associate or require Business Associate’s remediation of any unsatisfactory practices constitute acceptance of such practice or a waiver of Plan’s enforcement rights under the Service Agreement(s) and this Agreement. November 2013 7/30/2014 10:53 AM
p. 113
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
8 3.3
Government Audits and Proceedings. (a)
Government Audits. If Business Associate is the subject of an audit, compliance review, or complaint investigation by HHS that is related to the performance of its obligations pursuant to this Agreement, Business Associate shall notify Plan immediately upon notice of such review. Business Associate is responsible for civil penalties and damages, if any, assessed due to an audit or investigation of Business Associate.
(b)
Criminal Proceedings. Business Associate shall notify plan immediately if Business Associate is named as a defendant in a criminal proceeding for an alleged violation of HIPAA, Plan may immediately terminate this Agreement if Business Associate is found guilty of a criminal violation of HIPAA.
(c)
Other Proceedings. Business Associate shall notify Plan immediately if Business Associate is named as a defendant in any administrative or civil proceeding, including any action brought by a third party or class of third parties. Plan may immediately terminate this Agreement if a judgment, finding, or stipulation that Business Associate has violated any standard or requirement of HIPAA or other security or privacy laws is entered or made in any administrative or civil proceeding in which Business Associate is a party or has been joined. IV.
AVAILABILITY OF INFORMATION TO INDIVIDUALS
4.1 Access to Protected Health Information. Business Associate shall, to the extent Plan determines that any PHI constitutes a “designated record set” as defined by 45 C.F.R. § 164.501, make the PHI specified by Plan available to the Individual(s) identified by Plan as being entitled to access and copy that PHI. Business Associate shall provide such access for inspection of that PHI within thirty (30) calendar days after receipt of request from Plan. Business Associate shall also provide copies of that PHI ten (10) calendar days after receipt of request from Plan. If Business Associate maintains an Electronic Health Record with PHI, and an Individual requests a copy of such information in electronic format, Business Associate shall make such information available in that format as required under the HITECH Act and 45 C.F.R. § 164.524(c)(2)(ii). 4.2 Amendment of Protected Health Information. Business Associate shall, to the extent Plan determines that any PHI constitutes a “designated record set” as defined by 45 C.F.R. § 164.501, make any amendments to PHI that are requested by Plan in the time and manner designated by Plan. 4.3 Accounting of Disclosures. Business Associate shall document and make available to Plan or (at the direction of Plan) to an Individual, such Disclosures of PHI and information related to such Disclosures, necessary to respond to a proper request by the subject individual for an accounting of Disclosures of PHI in accordance with HIPAA, the HITECH Act and implementing regulations. Unless directed by Plan to make available to an Individual, Business Associate shall provide to Plan, within thirty (30) calendar days after receipt of request from Plan, information collected in accordance with this Section to permit Plan to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. Any accounting provided by Business Associate under this Section shall include: (a)
The date of the Disclosure;
(b)
The name, and address if known, of the entity or person who received the Protected Health Information;
(c)
A brief description of the Protected Health Information disclosed; and
November 2013 7/30/2014 10:53 AM
p. 114
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
9 (d)
A brief statement of the purpose of the Disclosure.
For each Disclosure that could require an accounting under this Section, Business Associate shall document the information specified in (a) through (d), above, and shall securely maintain the information for six (6) years from the date of the Disclosure (but beginning no earlier than April 14, 2003). V.
TERM AND TERMINATION
5.1 Term. This Agreement shall remain in effect as long as any Service Agreement(s) is in effect and shall extend beyond the termination of any Service Agreement(s) and shall terminate when all the PHI provided by Plan to Business Associate, or created or received by Business Associate on behalf of Plan is destroyed or returned to Plan, in accordance with Section 5.3 of this Agreement. 5.2 Termination for Cause. In addition to and notwithstanding the termination provisions set forth in the Services Agreement(s), upon Plan’s knowledge of a material breach by Business Associate, Plan shall either:
5.3
(a)
Provide an opportunity for Business Associate to cure the breach or end the violation and terminate this Agreement if Business Associate does not cure the breach or end the violation within the time specified by Plan; or
(b)
Immediately terminate this Agreement if Business Associate has breached a material term of this Agreement and cure is not possible.
Disposition of Protected Health Information upon Termination or Expiration. (a)
Return or Destruction. Except as provided in paragraph (b) of this section, upon termination for any reason of this Agreement and the Services Agreement(s), Business Associate shall return or destroy all PHI received from Plan, or created or received by Business Associate on behalf of Plan in accordance with data destruction methods specified in Attachment A to this Agreement. This provision shall apply to PHI, in any form, that is in the possession of Business Associate and subcontractors or agents of Business Associate. Business Associate shall retain no copies of the PHI.
(b)
Return or Destruction Infeasible. In the event that Business Associate determines that returning or destroying the PHI is infeasible, Business Associate shall provide to Plan notification of the conditions that make it infeasible. Subject to the approval of Plan’s regulator(s) if necessary, if return or destruction is infeasible, Business Associate shall extend the protections of this Agreement to such PHI and limit further Uses and Disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information. VI.
OBLIGATIONS OF PLAN
6.1 Notice of Privacy Practices. Plan shall provide Business Associate with Notice of Privacy Practices, including changes thereto, relevant to this Agreement. To view the most current DHCS Notice of Privacy Practices see: http://www.dhcs.ca.gov/formsandpubs/laws/priv/Pages/default.aspx or the DHCS website at www.dhcs.ca.gov (select “Privacy” in the left column and “Notice of Privacy Practices” on the right side of the page). To view the most current Plan Notice of Privacy Practices see: https://www.caloptima.org/en/Members/MediCal/YourRightsAndResponsibilities/~/media/Files/CalOptimaOrg/Members/Medical/YourRightsandResp onsibilities/NoticeofPrivacyPractices_English_508.ashx or the Plan website at www.CalOptima.org (select “Updated Notice of Privacy Practices” at the bottom of the right column under “Quick Links”). November 2013 7/30/2014 10:53 AM
p. 115
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
10 6.2 Permission by Individuals for Use and Disclosure of PHI. Plan shall provide Business Associate with any changes in, or revocation of, permission by an Individual to Use or Disclose PHI, if such changes affect the Business Associate’s permitted or required Uses and Disclosures. 6.3 Notification of Restrictions. Plan shall notify Business Associate of any restriction to the Use or Disclosure of PHI that has been agreed to in accordance with 45 C.F.R. § 164.522, to the extent that such restriction may affect the Business Associate’s Use or Disclosure of PHI. 6.4 Notification of SSA Data. Plan shall notify Business Associate if Business Associate receives data that is SSA Data. VII.
MISCELLANEOUS
7.1 Use of Subcontractors and Agents. Business Associate shall require each of its agents and subcontractors that create, receive, maintain, use or transmit PHI from Business Associate, or create PHI for Business Associate, on behalf of Plan, to execute a written agreement obligating the agent or subcontractor to comply with all the terms of this Agreement including, implementation of reasonable and appropriate administrative, physical and technical safeguards to protect such PHI and PI and requirements that Security Incidents and Breaches of Unsecured PHI or PI be reported to the Plan. Business Associate shall implement and maintain sanctions against any agents and subcontractors that violate such restrictions and conditions and shall mitigate the effects of any such violation. Business Associate shall notify Plan of any subcontractors or agents who are working on Plan’s behalf and which have access to Plan PHI or PI. 7.2 Regulatory References. A reference in this Agreement to a section in the Privacy, Security and Breach Regulations means the section as in effect or as amended. 7.3 Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Plan to comply with HIPAA, the HITECH Act and implementing regulations. 7.4 Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Plan to comply with the requirements of HIPAA, the HITECH Act and implementing regulations. 7.5 Disclaimer. Plan makes no warranty or representation that compliance by Business Associate with this Agreement or HIPAA will be adequate or satisfactory for Business Associate’s own purposes or that any information in Business Associate’s possession or control, or transmitted or received by Business Associate is or will be secure from unauthorized Use or Disclosure. Business Associate is solely responsible for all decisions made by Business Associate regarding the safekeeping of PHI. 7.6 Assistance in Litigation or Administrative Proceeding. Business Associate shall make itself any subcontractors, employees or agents assisting Business Associate in the performance of its obligations under the Services Agreement, available to Plan at no cost to Plan to testify as witnesses, or otherwise in the event of litigation or administrative proceedings being commenced against Plan, its directors, officers or employees based upon claimed violation of HIPAA, the HITECH Act and/or implementing regulations and/or State privacy laws, which involve actions or inactions by the Business Associate, except where Business Associate or its subcontractor, employee or agent is named as an adverse party. 7.7 No Third-Party Beneficiaries. Nothing express or implied in the terms and conditions of this Agreement is intended to confer, nor shall anything herein confer, upon any person or entity other than Plan or Business Associate and their approved respective successors or assignees, any rights, remedies, obligations or liabilities whatsoever. November 2013 7/30/2014 10:53 AM
p. 116
RFP 15-004 Sample Contract Exhibit Q
CalOptima
Bid 15-004
11 7.8 No Waiver of Obligations. No change, waiver or discharge of any liability or obligations hereunder on any one or more occasions shall be deemed a waiver of performance of any continuing or other obligation, or shall prohibit enforcement of any obligation, on any other occasion. 7.9 Injunctive Relief. Notwithstanding any rights or remedies provided in this Agreement, Plan retains all rights to seek injunctive relief to prevent or stop the unauthorized Use or Disclosure of PHI or PI by Business Associate or any agent, subcontractor, employee or third party that received PHI or PI. VIII.
EXECUTION
Subject to the execution of the State Contract or amendments thereto by CalOptima and the State, this Agreement shall become effective as of the last date signed below. In witness thereof, the parties have executed this Agreement: Business Associate
CalOptima
Print Name
Print Name
Signature
Signature
Title
Title
Date
Date
November 2013 7/30/2014 10:53 AM
p. 117
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
12 Attachment A Business Associate Data Security Requirements Subcontractors with Access to DHCS Data and PHI/PI DEFINITIONS A. “DHCS Data” means for purposes of this Attachment A, all information provided by DHCS to the Plan which is accessed by Business Associate under the Services Agreement. B. “DHCS PHI or PI” means for purposes of this Attachment A, Protected Health Information and Personal Information and a subset of DHCS Data. I.
GENERAL SECURITY CONTROLS
1.1 Employee Training and Discipline. Business Associate agrees, at its expense, to train all workforce members who assist in the performance of functions or activities on behalf of Plan, or access or disclose DHCS PHI or PI on privacy and security requirements at least annually. Each workforce member who receives information privacy and security training must sign a certification, indicating that the person’s name and date on which the training was completed. These certifications must be retained for a period of six (6) years following Agreement termination. Business Associate agrees to discipline such employees, volunteers and subcontractors who fail to comply with privacy policies and procedures or any provisions of this Agreement, including by termination of employment where appropriate. 1.2 Confidentiality Statement. All persons that will be working with DHCS PHI or PI must sign a confidentiality statement that includes, at a minimum, general use, security and privacy safeguards, unacceptable use and enforcement policies. The statement must be signed by the workforce member prior to access to DHCS PHI or PI. Business Associate shall retain each person’s written confidentiality statement for inspection by Plan or Plan regulators for a period of six (6) years following Agreement termination. 1.3 Background Check. Before a member of the Business Associate’s workforce may access DHCS PHI or PI, Business Associate must conduct a thorough background check of that worker and evaluate the results to assure that there is no indication that the worker may present a risk for theft of confidential data. The Business Associate shall retain each workforce member’s background check documentation for inspection by Plan or Plan regulators for a period of three (3) years following Agreement termination. 1.4 Workstation/Laptop encryption. All workstations and laptops that process and/or store DHCS PHI or PI must be encrypted using aFIPS 140-2 certified algorithm which is a 128 bit or higher such as Advanced Encryption Standard. The encryption solution must be full disk unless approved by the DHCS Information Security Office (ISO). 1.5 Server Security. Servers containing unencrypted DHCS PHI or PI must have sufficient administrative, physical, and technical controls in place to protect the data, based upon a risk assessment/system security review. 1.6 Minimum Necessary. Only the minimum necessary amount of DHCS PHI or PI may be downloaded to a laptop or hard drive when absolutely necessary for current business purposes. 1.7 Removable Media Devices. All electronic files that contain DHCS PHI or PI must be encrypted when stored on any removable media type device (i.e. USB thumb drives, floppies, CD/DVD, etc.). Encryption must be a FIPS 140-2 certified algorithm which is 128 bit or higher, such as AES. November 2013 7/30/2014 10:53 AM
p. 118
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
13 1.8 Email Security. All emails that include DHCS PHI must be sent in an encrypted method, Encryption must be a FIPS 140-2 certified algorithm which is 128 bit or higher, such as AES. 1.9 Antivirus Software. All workstations, laptops and other systems that process and/or store DHCS PHI must have a commercial third-party anti-virus software solution with a minimum daily automatic update. 1.10 Patch Management. All workstations, laptops and other systems that process and/or store DHCS PHI or PI must have critical security patches applied, with system reboot if necessary. There must be a documented patch management process which determines installation timeframe based on risk assessment and vendor recommendations. At a maximum, all applicable patches must be installed within thirty (30) days of vendor release. 1.11 User IDs and Password Controls. All users must be issued a unique user name for accessing DHCS PHI or PI. Username must be promptly disabled, deleted, or the password changed upon the transfer or termination of an employee with knowledge of the password, at maximum within 24 hours. Passwords are not to be shared, must be at least eight characters, be a non-dictionary word, stored in readable format on the computer, changed every ninety (90) days, but preferably every sixty (60) days. Passwords must be changed if revealed or compromised. Passwords must be composed of characters from at least three of the following four groups from the standard keyboard: • • • •
Upper case letters (A-Z) Lower case letters (a-z) Arabic numerals (0-9) Non-alphanumeric characters (punctuation symbols)
1.12 Data Destruction. All DHCS PHI or PI must be wiped from systems when the data is no longer necessary. The wipe method must conform to Department of Defense standards for data destruction DoD 5220.22-M (7 Pass) standard or by degaussing. Media may also be physically destroyed in accordance with NIST Special Publication 800-88. Other methods require prior written permission of Plan’s regulators. 1.13 Remote Access. Any remote access to DHCS PHI must be executed over an Approved Technical Encryption Solution. All remote access must be limited to minimum necessary and least privilege principles. II.
SYSTEM SECURITY CONTROLS
2.1 System Timeout. The system providing access to DHCS PHI or PI must provide an automatic timeout, requiring re-authentication of the user session after no more than 20 minutes of inactivity. 2.2 Warning Banners. All systems containing DHCS PHI or PI must display a warning banner stating that data is confidential, systems are logged, and system use is for business purposes only. Users must be directed to log off the system if they do not agree with these requirements. 2.3 System Logging. The system must maintain an automated audit trail which can identify the user or system process which initiates a request for DHCS PHI or PI, or which alters DHCS PHI or PI. The audit trail must be date and time stamped, must log both successful and failed accesses, must be read only, and must be restricted to authorized users. If DHCS PHI or PI is stored in a database, database logging functionality must be enabled. Audit trail data must be archived for at least three (3) years after occurrence.
November 2013 7/30/2014 10:53 AM
p. 119
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
14 2.4 Access Controls. The system providing access to DHCS PHI or PI must use role based access controls for all user authentications, enforcing the principle of least privilege. 2.5 Transmission Encryption. All data transmissions of DHCS PHI or PI outside the secured network must be encrypted using a FIPS 140-2 certified algorithm which is 128 bit or higher, such as AES. Encryption can be end to end at the network level, or the data files containing PHI can be encrypted. This requirement pertains to any type of PHI or PI in motion such as website access, file transfer and e-mail. 2.6 Intrusion Detection. All systems involved in accessing, holding, transporting and protecting DHCS PHI or PI that are accessible via the Internet must be protected by a comprehensive intrusion detection and prevention solution. III.
AUDIT CONTROLS
3.1 System Security Review. All systems processing and/or storing DHCS PHI or PI must have at least an annual system risk assessment/security review which provides assurance that administrative, physical and technical controls are functioning effectively and providing adequate levels of protection. Reviews should include vulnerability scanning tools. 3.2 Log Reviews. All systems processing and/or storing DHCS PHI or PI must have a routine procedure in place to review system logs for unauthorized access. 3.3 Change Control. All systems processing and/or storing DHCS PHI or PI must have a documented change control procedure that ensures separation of duties and protects the confidentiality, integrity and availability of data. IV.
BUSINESS CONTINUITY / DISASTER RECOVERY CONTROLS
4.1 Emergency Mode Operation Plan. Business Associate must establish a documented plan to enable continuation of critical business processes and protection of the security of electronic DHCS PHI or PI in the event of an emergency. Emergency means any circumstance or situation that causes normal computer operations to become unavailable for use in performing the work required under the Services Agreement(s) for more than 24 hours. 4.2 Data Backup Plan. Business Associate must have established documented procedures to backup DHCS PHI or PI to maintain retrievable exact copies of DHCS PHI or PI. The plan must include a regular schedule for making backups, storing backups offsite, an inventory of backup media, and the amount of time to restore DHCS PHI or PI should it be lost. At a minimum, the schedule must be a weekly full backup and monthly offsite storage of data. V.
PAPER DOCUMENT CONTROLS
5.1 Supervision of Data. DHCS PHI or PI in paper form shall not be left unattended at any time, unless it is locked in a file cabinet, file room, desk or office. Unattended means that information is not being observed by an employee authorized to access the information. DHCS PHI in paper form shall not be left unattended at any time in vehicles or planes and shall not be checked in baggage on commercial airplanes. 5.2 Escorting Visitors. Visitors to areas where DHCS PHI or PI is contained shall be escorted and DHCS PHI or PI shall be kept out of sight while visitors are in the area. 5.3 Confidential Destruction. DHCS PHI or PI must be disposed of through confidential means, such as cross cut shredding and pulverizing. Once DHCS PHI or PI is destroyed, Plan shall be notified. November 2013 7/30/2014 10:53 AM
p. 120
CalOptima
RFP 15-004 Sample Contract Exhibit Q
Bid 15-004
15 5.4 Removal of Data. If Plan provides Business Associate with access to DHCS PHI or PI to perform services off-site (i.e., not at Plan’s business premises), Business Associate shall not remove DHCS PHI to any overseas or offshore location. In the event that Business Associate is permitted to deliver DHCS PHI or PI to any party as part of its obligations under the Services Agreement(s), then Business Associate shall comply with all safeguard requirements related to the transmission and/or delivery of DHCS PHI or PI set forth in this Attachment. 5.5 Faxing. Faxes containing DHCS PHI or PI shall not be left unattended and fax machines shall be in secure areas. Faxes shall contain a confidentiality statement notifying persons receiving faxes in error to destroy them. Fax numbers shall be verified with the intended recipient before sending. 5.6 Mailing. Mailings of DHCS PHI or PI shall be sealed and secured from damage or inappropriate viewing of PHI or PI to the extent possible. Mailings which include 500 or more individually identifiable records of DHCS PHI or PI in a single package shall be sent using a tracked mailing method which ensures verification of delivery and receipt, unless prior written permission of Plan’s regulator to use another method is obtained.
November 2013 7/30/2014 10:53 AM
p. 121
15-004 Sample Contract Exhibit R
CalOptima
Bid 15-004
FDR COMPLIANCE ATTESTATION
Please complete and execute this attestation and return it to CalOptima’s Office of Compliance via fax (714) 481‐6457, email
[email protected], or mail: 505 City Parkway West, Orange, CA 92868, within fifteen (15) calendar days of the notice accompanying this form. Check which CalOptima program(s) this form pertains to: OneCare Medi‐Cal PACE I hereby attest that [________________________________(the “Organization”)], and all its downstream entities, if any, that are involved in the provision of health or administrative services for any of the CalOptima programs identified above: I. Provide effective Fraud, Waste and Abuse Training and Compliance Training to all Organization and downstream entity Board members, officers, employees, temporary employees, and volunteers, within 90 days of appointment, hire or contracting, as applicable, and at least annually thereafter as a condition of appointment, employment or contracting. The Organization and its downstream entities currently use (Select all that apply): CMS’s Fraud, Waste, and Abuse Training and Compliance Training Module. An Internal training program that meets CMS’s Fraud, Waste, and Abuse and Compliance Training Module requirements.
Deemed to have met the Fraud, Waste and Abuse certification requirements through enrollment into the Medicare program or accreditation as a Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS).
II.
Administer specialized compliance training to Organization and downstream entity Board members, employees, temporary employees, and volunteers: (i) based on their job function within the first 90 days of hire and at least annually thereafter as a condition of appointment, employment or contracting, (ii) when requirements change; (iii) when such persons work in an area previously found to be non‐ compliant with program requirements or implicated in past misconduct.
III.
Rev. 03/2014 7/30/2014 10:53 AM
Have established and publicized compliance policies and procedures, standards of conduct, and compliance reference material that meet the requirements outlined in 42 CFR § 422.503(b)(4)(vi)(A) and 42 CFR § 423.504(b)(4)(vi)(A) which information, and any updates thereto, are distributed to all Organization and downstream entity Board members, officers, employees, temporary employees, and volunteers within 90 days of appointment, hire or contracting, as applicable, and at least annually thereafter. Evidence of receipt of such compliance by such persons is obtained and retained by the Organization. The Organization and its downstream entities currently use (Select all that apply):
Page 1 of 2 p. 122
15-004 Sample Contract Exhibit R
CalOptima
Bid 15-004
IV.
V. VI. VII.
VIII
IX.
Our own compliance policies and procedures, standards of conduct, and compliance reference material. (Please provide to CalOptima for review). CalOptima’s compliance policies and procedures, Code of Conduct, and compliance reference material. Review all Organization and downstream entity Board members, officers, potential and actual employees, temporary employees, and volunteers against the HHS OIG List of Excluded Individuals & Entities list and GSA Debarment list upon appointment, hire or contracting, as applicable,and monthly thereafter. Further, in the event that the Organization or downstream entity becomes aware that any of the foregoing persons or entities are included on these Lists, the Organization will notify CalOptima within 5 calendar days, the relationship with the listed person/entity will be terminated as it relates to CalOptima, and appropriate corrective action will be taken. Screen its and its subcontractors’ governing bodies for conflicts of interest as defined in state and federal law and CalOptima Policies upon hire and annually thereafter. Will report suspected fraud, waste, and abuse, as well as all other forms of non‐ compliance, as it relates to CalOptima. Understand that any violation of any laws, regulations, or CalOptima Policies is grounds for disciplinary action, up to and including termination of Organization’s contractual status. Are aware that persons reporting suspected fraud, waste, and abuse, and other non‐ compliance are protected from retaliation under the False Claims Act and other applicable laws prohibiting retaliation. Will retain documented evidence of compliance with the above, including training and exclusion screening (i.e. sign‐in sheets, certificates, attestations, OIG and GSA search results, etc.) for at least ten (10) years, and provide such documentation to CalOptima upon request. That the individual signing below is knowledgeable about and authorized to attest to the foregoing matters on behalf of the Organization.
_______________________________________ ___________________________________ Signature Date _______________________________________ ___________________________________ Name Organization Rev. 04/2014 7/30/2014 10:53 AM
Page 2 of 2 p. 123
CalOptima
Bid 15-004
July 30, 2014 Subject:
Addendum No. 1 to Request for Proposal (RFP) 15-004 For Compliant, Grievance and Appeals Investigation and Resolution Software Solution
Ladies/Gentlemen:
This letter is being issued as Addendum No. 1 to Request for Proposal (RFP) 15-004 Compliant, Grievance and Appeals Investigation and Resolution Software Solution. The purpose of this addendum is to inform all interested parties that CalOptima has been delayed in providing its responses to all questions posed. As such, a one day extension for each day delayed will be provided. The final proposal due date will be posted in the upcoming Addendum No. 2. Sincerely,
Kathy Hoppe, CPPB Contract Administrator
7/30/2014 10:53 AM
p. 124
CalOptima
Question and Answers for Bid #15-004 - Compliant, Grievance and Appeals Investigation and Resolution Software Solution
Bid 15-004
5
OVERALL BID QUESTIONS Question 1 Regarding the Fax requirement: ? Send fax, receive fax or both? ? Do faxes sent or received need to be stored within the system? (Submitted: Jul 23, 2014 3:00:05 PM PDT) Question 2 On what skill basis would cases be assigned? At what case volume would auto assignments start? (Submitted: Jul 23, 2014 3:01:14 PM PDT) Question 3 Where are hyperlinks required? In generated emails? (Submitted: Jul 23, 2014 3:03:49 PM PDT) Question 4 To what kind of requests would outside entities respond? When they respond, does the response have to be captured within the system? (Submitted: Jul 23, 2014 3:04:57 PM PDT) Question 5 Reports and Reporting: 1. Do reports need customized views, or do the detail screens need customized views? 2. Would reports customization be required in order to add/ remove report columns? (Submitted: Jul 23, 2014 3:07:15 PM PDT)
Question 6 1. Would Customization of letter and email templates needed on-demand or can they be customized offline and used during letter/email generation? 2. Is editing required for templates or generated auto-populated letters/emails ? (Submitted: Jul 23, 2014 3:08:19 PM PDT) Question 7 In what scenarios would external email communication be used? (Submitted: Jul 23, 2014 3:08:46 PM PDT) Question 8 Other than English, what languages may be required for correspondence? (Submitted: Jul 23, 2014 3:09:15 PM PDT) Question 9 When does an escalation email have to be sent, and to whom? Are reminders also to be sent to the supervisor? (Submitted: Jul 23, 2014 3:10:15 PM PDT)
Question 10 When a case is assigned to group of individuals, who would be responsible for handling the case to its closure? Who would ?own the case? (Submitted: Jul 23, 2014 3:11:09 PM PDT) Question 11 What types of reports would be sent through email? (Submitted: Jul 23, 2014 3:14:53 PM PDT) Question 12 ?Attestation Concerning the Use of Offshore Subcontractors? and "FDR COMPLIANCE ATTESTATION" ? Are these documents supposed to be submitted along with the RFP response or later? Please specify the exact date. (Submitted: Jul 24, 2014 9:01:53 AM PDT)
Question 13 Does CalOptima have any policy towards application execution and support outside of the United States? If so, please specify (Submitted: Jul 24, 2014 9:02:40 AM PDT) Question 14 Please confirm if implementation, configuration, training and support can be offered from remote U.S. locations (Submitted: Jul 24, 2014 9:02:59 AM PDT)
Question 15 Do documents, Exhibit A to Exhibit O, need to be submitted as a part of the Response to RFP or will they be a part of the final contract? Is the vendor expected to just provide comments for these exhibits as part of RFP response ? (Submitted: Jul 24, 2014 9:03:29 AM PDT)
Question 16 Please confirm if the Cost and Pricing is to be provided in a particular template format? If so, please share the template (Submitted: Jul 24, 2014 9:03:46 AM PDT)
Question 17 Please provide details on the Hosting of the solution. Will the system be hosted by CalOptima, or is the vendor expected to host the solution? If, by vendor, please specify if CalOptima is looking for an in-house or a Cloud based solution? (Submitted: Jul 24, 2014 9:04:08 AM PDT)
Question 18 Please confirm if the following services are in scope. If so, please provide further details: - Automation testing - Browser compatibility testing (please provide the list of browser combinations) - UAT (what is the duration expected?) - Performance Testing (what is the duration expected?) - Warranty Support (what is the duration expected?) (Submitted: Jul 24, 2014 9:04:44 AM PDT) 7/30/2014 10:53 AM Question 19
p. 125
-
Please confirm if the following services are in scope. If so, please provide further details: Automation testing CalOptima Browser compatibility testing (please provide the list of browser combinations) UAT (what is the duration expected?) Performance Testing (what is the duration expected?) Warranty Support (what is the duration expected?) (Submitted: Jul 24, 2014 9:04:44 AM PDT)
Bid 15-004
Question 19 Does CalOptima have a preferred SDLC model to be followed for the proposed engagement? (Submitted: Jul 24, 2014 9:05:23 AM PDT)
Question 20 How many LOBs needs be considered as part of the implementation? Does the workflow differ for different LOBs? (Submitted: Jul 24, 2014 9:05:46 AM PDT)
Question 21 Per RFP, "Is the Offeror?s solution easily configured to establish security rules and access privileges?" Please provide details on the different types of user roles to be considered for implementation (Submitted: Jul 24, 2014 9:06:03 AM PDT)
Question 22 Will the proposed application be used for on call support (i.e. customer online through Phone or chat or mail) or Offline (back office) support? (Submitted: Jul 24, 2014 9:06:21 AM PDT) Question 23 As part of the scope, are we expected to integrate with the Existing Member/Provider Repository, authorization and Claims System. Can you please provide details on these systems (count and tech specs)? (Submitted: Jul 24, 2014 9:07:15 AM PDT) Question 24 Does the overall scope of this engagement include implementation of Appeals & Grievance process for Members covered under all the programs Medi-Cal, OneCare HMO SNP and PACE? (Submitted: Jul 24, 2014 9:09:36 AM PDT) Question 25 "Please describe your licensing options for your application." 1. If a third party Product is being considered to build the proposed application, please let us know if licensing options are to be considered from vendor/ Offeror?s end. 2. Number of Transactions per day / month 3. Number of Users 4. Enterprise Licensing or is for specific Line of Business? (Submitted: Jul 24, 2014 9:10:26 AM PDT) Question 26 Per RFP, "Please explain the training provided with your firm?s product." 1. Please let us know if User Training to be considered within the scope 2. If yes, let us know the number of users to be trained. (Submitted: Jul 24, 2014 9:10:47 AM PDT) Question 27 Per RFP, "Does your firm?s solution support paperless document storage? If so, is the document non-editable?" Currently, does CalOptima have a common shared location or any third party document repository like Alfresco being used where the Complaint forms, correspondences are stored. If yes, please provide the details and confirm if scope of the project will be limited to integration to the exiting document storage system from document storage point of view ? (Submitted: Jul 24, 2014 9:11:13 AM PDT)
Question 28 Does CalOptima have any preferred Defect management tool, such as QC ,HP ALM, etc.? (Submitted: Jul 24, 2014 9:11:27 AM PDT)
Question 29 Please clarify if the existing system has hierarchical or flat relationship structure if it uses a relational database please specify the DB used (Submitted: Jul 24, 2014 9:12:25 AM PDT) Question 30 Will the new application be an internet application or intranet application? (Submitted: Jul 24, 2014 9:12:47 AM PDT) Question 31 Please provide details of how Appeals and Grievances are processed currently. What are the systems used, and what is the extent of automation? Please provide the high level architecture diagram of the existing Appeals & Grievance application (Submitted: Jul 24, 2014 9:13:18 AM PDT)
Question 32 Currently, are there separate identified groups of users handling the processing of Appeals & Grievance cases for the different programs such as Medi-Cal, OneCare HMO SNP and PACE? If so, please provide details of the User Groups involved (such as Triager, Case Coordinator, Registered Nurse, Medical Director, Admin Director, etc.) (Submitted: Jul 24, 2014 9:13:35 AM PDT) Question 33 Does the current Appeal & Grievance process differ at the program level (i.e. Medi-Cal, HMO SNP, PACE) or by the plan types (i.e. Medi-Cal, Medicare) ? (Submitted: Jul 24, 2014 9:14:11 AM PDT) Question 34 Please provide details on the activities / processes involved during the life cycle of an Appeal/ Grievance case (such as Initial Triaging, Compilation, Determination/ Resolution, Closure) Please provide details on the business complexity of the key processes involved (Submitted: Jul 24, 2014 9:15:02 AM PDT) Question 35 Currently does the CalOptima GARS department handle complaints, appeals and grievance cases for Members as well as Providers ? If so, is the processing of Member A&G cases different from Provider A&G cases ? Please highlight key differences (Submitted: Jul 24, 2014 9:15:17 AM PDT)
7/30/2014 10:53 AM Question 36
p. 126
Please provide details on the business complexity of the key processes involved (Submitted: Jul 24, 2014 9:15:02 AM PDT) Question 35 Currently does the CalOptima GARS department handle CalOptima complaints, appeals and grievance cases for Members as well as Providers ? If so, is the processing of Member A&G cases different from Provider A&G cases ? Please highlight key differences
Bid 15-004
(Submitted: Jul 24, 2014 9:15:17 AM PDT)
Question 36 What are the different input Channels (like Fax, Mail, Web/online, Email, Call Centre, Walk-in etc.) for getting Appeal & Grievance requests? Please briefly describe the methods for each of these channels. Is there a standard form of filing a Complaint case for all the channels and programs ? If so, please provide further details. (Submitted: Jul 24, 2014 9:15:57 AM PDT)
Question 37 Per RFP, "Describe how your solution allows for tracking of due dates and specific times as needed and if it provides reminders, past due indicators and escalation notices." Please provide the existing business logic and complexity involved to track the due dates, specific times, reminders, past due indicators and escalation notices? (Submitted: Jul 24, 2014 9:16:33 AM PDT) Question 38 Per RFP, "Is the use of a decision tree utilized to determine if a case is a grievance or an appeal?" In the existing application / process, please let us know if the classification of a complaint case being Appeal or Grievance is done manually or is there an existing determination logic for segregating Appeal & Grievance cases. (Submitted: Jul 24, 2014 9:16:49 AM PDT)
Question 39 Per the RFP, " The solution must be able to customize letters and email templates for internal and external communication. The letters and emails can be auto-populated and can be edited as needed." 1. Are the correspondence letters currently prepared/handled and sent manually or is there an application for doing the same ? 2. Is the outbound correspondence being handled by any third party application/Product or it's being handled within the scope of existing application 3. Please provide the total no of letter & email templates to be considered? 4.Is letter correspondence same as mail correspondence. Please confirm 5. In case of mail correspondence, necessary printing and mailing to be considered outside the scope of implementation. Please confirm (Submitted: Jul 24, 2014 9:17:27 AM PDT) Question 40 Per RFP, "Describe spell check and medical terminology features" 1. Does it refer to the "Microsoft word" built in spell check functionality or custom spell check functionality needs to be developed in the proposed application? 2. Does it refer to the "smart" auto-population of medical terminology features? If yes, please confirm that the business will provide a medical terminology dictionary and the proposed system would use this dictionary as a lookup. 3. Please let us know how many as such "smart" auto-population to be considered (Submitted: Jul 24, 2014 9:18:22 AM PDT)
Question 41 Per RFP, "Does the solution have the ability to generate correspondence in different languages and if so, what languages" 1. In the existing application, how is the generation of correspondences in different language handled? 2. Is there any existing third party application which is currently handling the letter generation process in the existing application? If yes, please provide details 3. How many different languages is the application expected to support 4. What kind of data field / format expected by the third party application? (Submitted: Jul 24, 2014 9:18:55 AM PDT) Question 42 Per RFP, "Provide detailed explanation on solution capability to build letters based on the use of templates." Assuming third party application will build the letters, the proposed system will provide all the necessary inputs. Please confirm (Submitted: Jul 24, 2014 9:19:23 AM PDT) Question 43 Per RFP, "Does the solution allow the attachment of external documents for each case and if so, is there a limit to the size of the documents? Also, is the solution able to save letters generated from solution as attachments?" 1. What is the size limit of the attached external document. 2. Does system need to encrypt the outgoing email and attachments. (Submitted: Jul 24, 2014 9:19:42 AM PDT) Question 44 Per RFP, "Can a record in historical data be setup to not allow deletion? In other words, do you permanently delete records from your solution or database?" Please provide details of the data retention policy and the tentative case volume. (Submitted: Jul 24, 2014 9:20:03 AM PDT) Question 45 Per RFP, "Describe Offeror?s solution to handle fax and emails" Please let us know if both Inbound as well as Outbound Fax and emails to be considered. For Fax, is there any Fax Server Product (E.g. RightFax) used in existing application? (Submitted: Jul 24, 2014 9:20:26 AM PDT) Question 46 Per RFP, "Describe how your solution handles ?Urgent? or ?Routine? issues." Does 'Urgent' and 'Routine' mentioned here refer to TAT/SLAs (viz. 72 hrs. TAT for 'Urgent' issues and 30 Days TAT for 'Routine' issues)? Please confirm (Submitted: Jul 24, 2014 9:20:49 AM PDT) Question 47 Per RFP, "Describe how your solution handles ?Urgent? or ?Routine? issues." Does 'Urgent' and 'Routine' mentioned here refer to TAT/SLAs (viz. 72 hrs. TAT for 'Urgent' issues and 30 Days TAT for 'Routine' issues)? Please confirm (Submitted: Jul 24, 2014 9:21:25 AM PDT) Question 48 RFP, 7/30/2014Per 10:53 AM"Does the Offeror?s solution allow easy configuration of the types of concern/complaints or are there standard types that are used?"
p. 127
Question 47 Per RFP, "Describe how your solution handles ?Urgent? or ?Routine? issues." Does 'Urgent' and 'Routine' mentioned here refer to TAT/SLAs (viz. 72 hrs. TAT for 'Urgent' issues and 30 Days TAT for CalOptima 'Routine' issues)? Please confirm (Submitted: Jul 24, 2014 9:21:25 AM PDT)
Bid 15-004
Question 48 Per RFP, "Does the Offeror?s solution allow easy configuration of the types of concern/complaints or are there standard types that are used?" 1. We assume that above requirement refers to the Appeals and Grievance complaint case Classifications. Please confirm. 2. Please let us know the different types of complaints/concerns in the existing application or to be considered in new proposed solution (Submitted: Jul 24, 2014 9:21:56 AM PDT) Question 49 Per RFP, "Does the Offeror?s solution allow user to pre-define workflows or add actions as needed?" 1. Please elaborate "add action" 2. Please let us know the pre-defined workflows available in existing application or to be considered in new proposed solution (Submitted: Jul 24, 2014 9:22:39 AM PDT) Question 50 Per RFP, "Does the Offeror?s solution allow outside entities/suppliers to respond directly to requests?" 1. Please confirm if the proposed application is expected to be used online 2. Are "Outside entities / suppliers" located outside CalOptima's Network? (Submitted: Jul 24, 2014 9:22:56 AM PDT) Question 51 Per RFP, "Please describe the client desktop requirements for your solution and other optional client access devices such as smart phones" 1. Please provide details on the browser types and versions to be considered 2. Will the proposed application to be accessed/supported via smart phones? (Submitted: Jul 24, 2014 9:23:15 AM PDT) Question 52 Per RFP, "Describe any benchmarks you have completed. Please provide the information as it relates to online and batch processing (average response time and concurrent users)." 1. Please provide the list of batch process that are currently used in the existing Application. 2. Please provide the Average response time and number of concurrent users available in the existing application? 3. Also, please provide details of the overall User Base (Submitted: Jul 24, 2014 9:23:33 AM PDT) Question 53 Per RFP, " Please describe the solutions ability to export data in formats such as excel, pdf, etc." 1.What will be the frequency for Report generation. 2. Will these reports be generated on-demand basis or system needs to trigger these reports periodically. 3. Please let us know apart from excel and pdf do system need to send out any report to other exiting system? 4. Please provide details on the total number of reports to be considered as part of proposed solution (Submitted: Jul 24, 2014 9:23:50 AM PDT)
Question 54 Does CalOptima have any NFR's defined for the new application? (Submitted: Jul 24, 2014 9:24:38 AM PDT) Question Deadline: Jul 24, 2014 12:00:00 PM PDT
6
7/30/2014 10:53 AM
p. 128
