HomeMy WebLinkAboutPrairie States 2004-2005
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APPENDIX A
FEE SCHEDULE AND
FINANCIAL ARRANGEMENT
FOR
City of Oshkosh
Fee Schedule For Period:
January 1, 2004 through December 31, 2005 (Two Plan Years)
The Employer and the TPA hereby agree to the compensation schedules set forth below as being the sole
compensation to the TPA for any of its services that relate to the Plan. Fees shall be invoiced and funds
transferred electronically as a debit upon the first of the month or previous Friday should the first of the
month fall within a weekend or other federally recognized holiday.
Services
Fees
Fee Basis and Schedule
Medical Claims Administration
$16.00
per covered eligible employee or
COBRA recipient
Provider Data Maintenance
$1.00
per covered eligible employee or
COBRA recipient
Utilization Management
$4.25
per covered eligible employee or
COBRA recipient
Large Case Management
$125.00
per hour
Hospital Bill Audit/Negotiation
15%
of savings
Subrogation
25%
of recoveries
Plan Document
$2,500 plus Printing and Shipping
Two Month's Fee for processing incurred but not reported claims after termination of contract.
Check customization, bank fees, special statistical reports other than those enumerqted in this contract,
medical underwriting, new taxes assessed against the Plan, legal services, specifically installed phone lines,
dedicated data processing systems, Employer specific data programming, fees for obtaining medical
, records, plan documents, printed materials (including but not limited to ID cards) bearing the name of and/or
logo of the Employer, materials or other services mutually agreed upon, will be billed separately.
Accepted this ~ day of ~;j(J.J('tf-' 2004. '
~~TY o~/ ~~
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Print Name:
Richard A. Wollangk
City Manaqer
G~----------
Title:
212/04
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for
Prairie States Enterprises, Inc.
Administrative Services Agreement
City of Oshko'sh
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS ..... ..........., ....... ....................................... ....... """""""""""""""" ................. ......2
ARTICLE II. RELATIONSHIP OF P ARTtES ...... ..............................,...................... ..... ..................................3
ARTICLE III. THE CLAIMS ADMINISTRATOR'S RESPONSIBILITIES ........................................................5
ARTICLE IV. THE EMPLOYER'S RESPONSIBILITIES ................................................................................8
ARTICLE V. DURATION OF AGREEMENT ..................... ...........................................................,....... .......1 0 '
ARTICLE VI. MISCELLANEOUS.................................:...............................................................................11
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ADMINISTRATIVE SERVICES AGREEMENT
THIS Service Agreement is made and entered into this 1st day of January, 2004, by and between City of
Oshkosh, a corporation duly organized and existing under the laws of the State of Wisconsin with its
principal place of business at 215 Church Avenue, Oshkosh, Wisconsin, 54903 (hereinafter referred to
as the "Employer") and Prairie States Enterprises, Inc., a corporation duly organized and existing under
the laws of the State of Illinois with its principal place of business at 101 West Grand Ave., Suite 404,
Chicago, Illinois 60610 (hereinafter referred to as the "Claims Administrator"). '
WHEREAS, the Employer is a corporation that sponsors a self-funded employee welfare benefit plan (the
"Plan") within the meaning of the Employee Retirement Income Security Act of 1974 (ERISA), as
amended; and
WHEREAS, the Employer desires to make available a program of health care benefits under the Plan;
and '
WHEREAS, the Employer wishes to contract with an independent third party to perform certain services
with respect to the Plan as enumerated below; and
WHEREAS, the Claims Administrator desires to contract with the Employer to perform certain services
with respect to the Plan as enumerated below; and
THEREFORE, in consideration of the premises and mutual covenants contained herein, the Employer and
the Claims Administrator enter into this Agreement for administrative services for the Plan.
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ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following words and phrases have the meanings set forth below,
unless the context clearly indicates otherwise and wherever appropriate, the singular shall include the
plural and the plural shall inclùde the singular.
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
Calendar Year means January 1st through December 31st of the same year.
Claim means a request by a Claimant for payment or reimbursement for Covered Services from
the Plan.
Claimant means any person or entity submitting expenses for payment or reimbursement from
the Plan. ' ,
Claims Payment Account means an account established by and owned by the Employer for
payment or reimbursement for Covered Services; which Account shall be an asset of the
Employer and not the Plan.
COBRA means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
Covered Services means the care, treatments, services, or supplies described in the Plan
Document as eligible for payment or reimbursement from the Plan.
Employer means the City of Oshkosh and any successor organization or affiliate of such
Employer which assumes the obligations of the Plan and this Agreement.
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
Health Care Providers means physicians, dentists, hospitals, or other medical practitioners or
medical care facilities that are duly licensed and authorized to receive payment or reimbursement
for Covered Services provided under the terms of the Plan.
Plan means the self-funded employee welfare benefit plan, which is the subject of this Agreement
and which the Employer has established pursuant to the Plan Document.
Plan Document means the instrument or instruments that set forth and govern the duties of the
Plan Sponsor and eligibility and benefit provisions of the Plan which provide for the payment or
reimbursement of Covered Services.
Plan Participant is any person who is properly enrolled and entitled to benefits from the Plan.
Plan Year means the period of time specified as such in the Plan Document.
Summary Plan Description means the document required to be provided under Sec. 102 of
ERISA that describes the terms and conditions under which the Plan operates.
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2.4
2.5
2.6
2.7
2.8
2.9
2.10
ARTICLE II
RELATIONSHIP OF PARTIES
2.1
The Employer delegates to the Claims Administrator only those powers and responsibilities with
respect to development, maintenance, and administration of the Plan which are specifically
enumerated in this Agreement. Any function not specifically delegated to and assumed by the
Claims Administrator pursuant to this Agreement shall remain the sole responsibility of the
Employer.
2.2
The parties enter into this Agreement as independent contractors and not as agents of each
other. Neither party shall have any authority to act in any way as the representative of the other, or
to bind the other to any third party, except as specifically set forth herein.
2.3
The parties acknowledge that
(a) this is a contract for administrative services only as specifically set forth herein;
(b) the Claims Administrator shall not be obligated to disburse more in payment for Claims or
other obligations arising under the Plan than the Employer shall have made available in
the Claims Payment Account; and
this Agreement shall not be deemed a contract of insurance under any laws or
regulations. The Claims Administrator does not insure, guarantee, or' underwrite the
liability of the Employer under the Plan. The Employer has total responsibility for payment
of Claims under the Plan and all expenses incidental to the Plan.
(c)
Except as specifically set forth herein, this Agreement shall insure to the benefit of and be binding
upon the parties hereto and their respective legal representatives and successors; provided,
however, neither party may assign this Agreement or any or ail of its rights or obligations
hereunder (except by operation of law) without the prior written consent of the other, which
consent may not be unreasonably withheld.
The Claims Administrator will consult with the Employer at least monthly and more often if
circumstances dictate through the term of this Agreement.
The work to be performed by the Claims Administrator under this Agreement may, at its discretion
and with the prior approval of the Employer, be performed directly by it or wholly or in part through
a subsidiary or affiliate of the Claims Administrator or under an agreement with an organization,
agent, advisor, or other person of its choosing.
The Claims Administrator agrees to be duly licensed as a Third Party Administrator to the extent
required under applicable law and agrees to maintain such licensure throughout the term of this
Agreement. The Claims Administrator will possess throughout the term of this Agreement, an
in-force fidelity bond or other insurance as may be required by state and federal laws for the
protection of its clients. Additionally, the Claims Administrator agrees to comply with any state or
federal statutes or regulations regarding its operations and to obtain any additional licenses or
registrations which may apply in the future. .
The Claims Administrator will indemnify, defend, save, and hold the Employer harmless from and
against any and all claims, suits, actions, liabilities, losses, fines, penalties, damages,and
expenses of any kind including, but not limited to, direct, indirect, consequential, or punitive
expenses or fees, including court costs and attorney's fees, with respect to the Plan which directly
result from or arise out of the dishonest, fraudulent, grossly negligent, or criminal acts of the
Claims Administrator or its employees, except for acts taken at the specific direction of the
Employer.
The Claims Administrator shall be entitled to rely, without investigation or inquiry, upon any written
or oral information or communication of the Employer or agents of the Employer.
The Employer will indemnify, defend, save, and hold the Claims Administrator harmless from and
against any and all claims, suits, actions, liabilities, losses, fines, penalties, damages, and
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expenses of any kind including, but not limited to, direct, indirect, consequential, or punitive
expenses or fees, including court costs and attorney's fees, to the extent that such claims, losses,
liabilities, damages, and expenses arise out of or are based upon the Employer's negligence in
the performance of its duties under this Agreement, a release of Claims data by the Clàims
Administrator to the Employer, an interpretation of the Plan or this Agreement, or any other written
or oral communication by the Employer or any of its authorized representatives upon which the
Claims Administrator relies or any breach of this Agreement by the Employer, including, but not
limited to, failure to fund the Claims Payment Account.
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ARTICLE III
THE CLAIMS ADMINISTRATOR'S RESPONSIBILITIES
The Claims Administrator will provide the following Plan administrative services for the Employer:
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.1
Maintain Plan records' based on eligibility information submitted by the Employer as to the dates
on which a Plan Participant's coverage commences and terminates.
Maintain Plan records of Plan coverage applicable to each Plan Participant based on information
submitted by the Employer.
Maintain Plan records regarding payments of Claims, denials of Claims, and Claims pended.
Verify Plan Participant eligibility and coverage upon request by a Plan Participant, an authorized
member of a Plan Participant's family unit, or an authorized Health Care Provider treating a Plan
Participant.
Adjudicate Claims incurred by Plan Participants according to the terms of the Plan Document as
construed by the Employer. These Claims will be adjudicated in accordance with industry
practices and the Claims Administrator will use an industry-recognized method of determining
usual, customary, and reasonable charges.
Process with due diligence and according to the terms of the Plan Document as construed by the,
Employer, evidence of good health statements, pre-existing conditions requirements, disability
determinations, subrogation, and coordination of benefits'situations. Unless otherwise agreed by
the parties, the Claims Administrator's duties with respect to subrogation situations shall be limited
to informing the Employer that subrogation rights may exist.
Decide as to the validity of a Claim or the need for additional information within 10 working days of
the date the Claim is received by the Claims Administrator.
If additional information is needed, send through the U;S. Mail to the appropriate persons (with a
copy to the Plan Participant) at least two follow-up requests for the required information at 5
working days intervals. The third request will indicate that no additional requests for information
will be sent and the file will be closed if the requested information is not remitted.
When all necessary documents and Claim form information have been received and the Claim
has been approved, a Claim check or draft will be remitted on the next dispersal date.
Refer any doubtful or disputed Claims to Employer for a final decision in accordance with Section
4.2.
Process, issue, and distribute Claims checks or drafts as instructed by the Employer to Plan
Participants, Health Care Providers, or others as may be applicable.
Claims paid in good faith but in error by the Claims Administrator shall be - chargeabl.e to the
Claims Payment Account as any other Claim, but the Claims Administrator shall make good faith
attempts to recover any overpayments. -
Every week, the Claims Administrator will notify the Employer of the amount required to be
prospectively deposited to the Claims Payment Account to pay the Claims liability as these Claims
occur. '
Notify Plan Participants in writing through the U. S. Mail of ineligible Claims received, indicating-
the specific Plan provisions attributable to the declination of the Claims pursuant to the written
Claims review and appeal procedure in the Plan. This notification will be made within 10 working
days of the date the Claims Administrator receives the complete Claim, including any information
received in accordance with Section 3.3 and any Plan interpretations by the Employer.
Respond to Claims inquiries by a Plan Participant, the estate of a Plan Participant, an authorized
member of a Plan Participant's family unit, or an authorized Health Care Provider.
Maintain information that identifies a Plan Participant in a confidential manner. The Claims
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3.9
3.10
3.11
3.12
3.13
3.14
3.15
3.16
Administrator agrees to take all reasonable precautions to prevent disclosure or the use of Claims
information for a purpose unrelated to the administration of the Plan.
The Claims Administrator will only release this information for certificate of need reviews; for
medical necessity determinations; to set uniform data standards; to update relative values scales;
to use in Claims analysis; to further cost containment programs; to verify eligibility; to comply with
federal, state or local laws; for coordination of benefits; for subrogation; in response to a civil or
criminal action upon issuance of a subpoena;.or with the written consent of the Plan Participant or
his or her legal representative.
Prepare a draft Plan Document and Summary Plan Description for review and final approval by
Employer and the Employer's legal counsel. A separate fee will be charged for this service.
Maintain a Claim file on every Claim reported to it by the Plan Participants. Such files and all
Plan-related information shall be made available to the Employer for consultation, review, and
audit upon reasonable notice and request, during the business day and at the office of the Claims
Administrator. Any such audit will be at the sole expense of the Employer.
This audit shall be conducted by an auditor mutually acceptable to the Employer and the Claims
Administrator and will include, but not necessarily be limited to, a review of procedural controls, a
review of system controls, a review of Plan provisions, a review of the sampled Claims, and
comparison of results to performance standards and statistical models previously agreed to by the
Employer and the Claims Administrator.
Capture data for IRS form 5500 filings.
Provide the following reports:
(a) monthly Claims analysis by type of Claim and total dollar amounts;
(b) monthly check register; and
(c) any other reports as agreed to between the Employer and the Claims Administrator.
The following reports are available at no additional charge:
a) Monthly Check Register Summary
b) Paid Claims Summary by Coverage/Plan/Department
c) Paid Claims Summary by Month/Age
d) Paid Claims by Benefit Code
e) Paid Claims by Diagnosis (semi-annually)
f) Specific Stop Loss Report '
g) Loss Analysis (24 months incurred /12 months paid)
h) Length of Stay Report by Provider with Diagnosis
i) PPO vs. Non-PPO Claims Report
j) Summary of Non-Covered ChaŒ~s
k) Flex Monthly Check Register
Procure excess loss or stop loss (specific and aggregate) insurance proposals and policies for the
Employer's consideration and selection, which excess loss or stop loss insurance will be an asset
of the Employer and not of the Plan.
Notify the excess loss insurance company of any potèntial large Claims which may become a
Claim under the excess loss coverage.
On behalf of the Plan, the Claims Administrator will file in a timely manner any Claims for benefits
under the excess loss policies. '
Promptly forward to the Employer any premium and other notices received from the excess loss
insurance company concerning the policy. '
Upon termination of this Agreement, all Claim files, reports, magnetic tapes, filings with
governmental entities, and plan documentation will be remitted to the Employer. Until that time,
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3.16
these records will be maintained at the Claims Administrator's principal administrative office or
secure storage facilities for at least seven (7) years following the termination of a Plan Year. At the
end of the seven (7) year period or termination of this Agreement, if earlier, the Claims
Administrator shall notify the Employer that these records will be destroyed unless the Employer
requests, in writing, that all or some of the records be forwarded to the Employer.
Within four (4) weeks of termination of this Agreement, the following reports will be provided at no
additional charge:
(a) Paid Claims Detail Report
(b) Specific Stop Loss Report (including pre-certifications)
(c) Loss Analysis Report
(d) Accumulator Reports
(e) Subrogation records
3.17
Upon termination of this Agreement, any claims received by the Claims Administrator will be
forwarded to the new TPA for a period of twelve (12) months.
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4.3
4.4
4.5
4.6
4.7
4.8
ARTICLE IV
THE EMPLOYER'S RESPONSIBILITIES
The Employer will:
4.1
Maintain current and accurate Plan eligibility and coverage records and submit this information as
enrollment changes to the Claims Administrator.
This information shall be provided in a format reasonably acceptable to the Claims Administrator
and include the following for each Plan Participant: name and address, Social Security number,
date of birth, type of coverage, sex, relationship to employee, changes in coverage, date coverage
begins or ends, and any other information necessary to determine eligibility and coverage levels
under the Plan.
The Employer assumes the responsibility for the erroneous disbursement of benefits by the
Claims Administrator in the event of error or neglect on the Employer's part of providing eligibility
and coverage information to the Claims Administrator, including but not limited to, failure to give
timely notification of ineligibility of a former Plan Participant.
4.2
Resolve all Plan ambiguities and disputes relating to the Plan eligibility of a Plan 'Participant, Plan
coverage, denial of Claims or decisions regarding appeal or denial of Claims, or any other Plan
interpretation questions.
The Claims Administrator will administer and adjudicate Claims in accordance with Article III if the
Plan Document and Summary Plan DesCription are clear and unambiguous as to the validity of
the Claims and the Plan Participants' eligibility for coverage under the Plan, but will have no
,discretionary authority to interpret the Plan or adjudicate Claims. If adjudication of a Claim
requires interpretation of ambiguous Plan language, and the Employer has not previously
indicated, to the Claims Administrator the proper interpretation of the language, then the Employer
will be responsible for resolving the ambiguity or any other dispute.
In any event, the Employer's decision as to any Claim (whether or not it involves a Plan ambiguity
or other dispute) shall be final and binding. '
Conduct and control all enrollment meetings, maintenance of enrollment records, and distribution
of enrollment materials. Pertinent enrollment information will be sent to the Claims Administrator
as enrollment changes.
Provide required COBRA notice to Plan Participants upon initial eligibility to participate in the Plan,
maintain COBRA eligibility records, notify COBRA eligibles of their rights under the Act and when
they so elect, inform the Claims Administrator either to continue coverage or to cease coverage.
Prospectively fund the Claims Payment Account every week and grant the Claims Administrator
drafting authority.
The Claims Payment Account shall be set up by the Employer who shall execute and deliver to
the Claims Administrator and a depository selected by the Employer, any and all documents
necessary to empower the Claims Administrator to act as signatory on such account.
Not require the Claims Administrator, under any circumstances, to issue payment(s) for Claims,
excess loss premiums, or any other costs arising out of the subject matter of this Agreement,
unless the Employer has so authorized and has previously deposited sufficient funds to cover
such payment(s).
Provide the Claims Administrator with copies of any and all revisions or changes to the Plan within
30 working days of the effective date of the changes.
Provide and timely distribute, all notices and information required to be given to Plan Participants,
maintain and operate the Plan in accordance with applicable law, maintain all recordkeeping, and
file all forms relative thereto pursuant to any federal, state, or local law, unless this Agreement
specifically assigns such duties to the Claims Administrator.
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4.9
4.10
4.11
4.12
4.13
4.14
.4.15
4.16
Acknowledge that it is the Plan Sponsor, Plan Administrator, and Named Fiduciary, as these
terms are defined in ERISA. As such, Employer retains full discretionary control and authority and
, discretionary responsibility in the operation and administration of the Plan.
Pay any and all taxes, licenses, and fees levied, if any, by any local, state, or federal authority in
connection with the Plan.
Hold confidential information obtained that is proprietary to the Claims Administrator or
information or material not generally known by personnel other than management employees of
the Claims Administrator. Such information includes, but is not limited to, reasonable and
customary Claims levels, and Claims administration guidelines.
Warrant and represent that the only entities that participate, or will participate, in the Plan are in
the Employer's "controlled group of corporations" as that term is used in ERISA.
Pay, in accordance with the Fee Schedule, the Claims Administrator's fees for services rendered
under this Agreement. Unless otherwise agreed, the Claims Administrator may withdraw from the
Claims Payment Account any fees then due to the Claims Administrator prior to application of the
funds in the Claims Payment Account to payment of Claims or any other costs arising out of the
Plan or the subject matter of this Agreement. Late charges may be added if payments are not
made on a timely basis. .
Maintain excess loss insurance with a carrier rated "A" or better by AM Best or Standard & Poor's
in the minimum amount set forth on the Fee Schedule. Such excess loss carrier will be selected
by the Employer but only with the prior approval of the carrier by the Claims Administrator.
Unless otherwise agreed, the carrier will be selected from among a number of alternatives
provided by the Claims Administrator. '
Promptly notify the Claims Administrator of any termination, expiration, lapse, or modification of
this insurance.
Maintain any fidelity bond or other insurance as may be required by state or federal law for the
protection of the Plan and Plan Participants.
Provide; execute and maintain a Business Associate Agreement with the Claims Administrator to
ensure the appropriate safeguards for "Protected Health Information" of Plan Participants as
required by the Health Insurance Portability Act ("HIPAA") of 1996.
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5.1
5.2
5.3
5.4
5.5
ARTICLE V
DURATION OF AGREEMENT
This Agreement shall commence on January 1, 2004 and end on December 31, 2004. This Agreement shall
automatically renew each year for a one-year period unless modified or terminated as described below.
At any time during the term of this Agreemen~ either the Employer or the Claims Administrator may amend or
change the provisions of this Agreement. These amendments or changes must be agreed upon in advance in
writing by both the Employer and the Claims Administrator. If any such amendment increases the anticipated
Claims experience under the Plan, or the Claims' Administrator's cost of administering the Plan, the Employer
agrees to pay any increase in Claims expenses, as well as increases in administrative fees or other costs which
the Claims Administrator reasonably expects to incur as a result of such modification.
This Agreement may be terminated by either the Employer or the Claims Administrator at any time, either upon
gMng 90 days advance written notice to the other party unless both parties agree to waive such advance notice,
or With no notice, as stated below. At the option of the party initiating the termination, the other party may be
permitted a cure period (of a length determined by the party initiating the termination) to cure any default.
The Claims Adi11inistratormay, at its option, terminate this Agreement effective immecflatelyupon the occurrence
of anyone or more of the following events on written notice to the Employer.
(a) The Employer ~ils to prospectively fund the Claims Payment Account;
(b) The Employer is adjudicated as bankrup~ becomes insolven~ a temporary or permanent receiver is
appointed by any court for all or substantially all of the Employer's assèts, the Employer makes a
general assignment for the benefit of its creditors, or a voluntary or involuntary petition under any
bankruptcy law is filed with respect to the Employer and it is not dismissed within forty-five (45) days of
such filing; ,
The Employer fails to pay administration fees or other fees for the Claims Administrator's services upon
presentation for payment and in accordance with the Fee Schedule;
The Employer engages in any unethical business practice or conducts itself in a manner which in the
reasonable judgment of the' Claims Administrator is in violation of any federal, state, or other
government statute, rule, or regulation; ,
The Employer, through its acts, practices, or operations, exposes the Claims Administrator to any
existing or potential investigation or litigation; or
The Employer permits its excess loss insurance to lapse, whether by failure to pay premiums or
otherwise.
(c)
(d)
(e)
(t)
The Employer may, at its option, terminate this Agreement effective immediately upon the occurrence of anyone
or more of the following events on written notice to the Claims Administrator: .
(a) The Claims Administrator is adjudicated as bankrup~ becomes insolVen~ a temporary or permanent
receiver is appointed by any court for all or substantially all of the Claims Administrator's assets, the
Claims Administrator makes a general assignment for the benefit of its creditors, or a voluntary or
involuntary petition under any bankruptcy law is filed with respect to the Claims Administrator and it is not
dismissed within forty-five (45) days of such filing;
The Claims Administrator engages in any unethical business practice or conducts itself in a manner
which in the reasonable judgment of the Employer is in violation of any federal, state, or other
government statute, rule, or regulation; or
The Claims Administrator, through its acts, practices or operations, exposes the Employer to any
existing or potential investigation or litigation.
(c)
(b)
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6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
ARTICLE VI
MISCELLANEOUS
This Agreement, together with all addenda and appendices supersedes any and all prior
representations, conditions, warranties, understandings, proposals, or other agreements between
the Employer and the Claims Administrator hereto, oral or written, in relation to the services and
systems of the Claims Administrator, which are rendered or are to be rendered in connection with
its assistance to the Employer in the administration of the Plan.
This Agreement, together with the aforesaid addenda and appendices constitutes the entire
Administrative Services Agreement of whatsoever kind or nature existing between or among the
parties.
The parties hereto, having read and understood this entire Agreement, acknowledge and agree
that there are no other representations, conditions, promises, agreements, understandings, or
warranties that exist outside this Agreement which have been made by either of the parties
hereto, which have induced either party or has led to the execution of this Agreement by either
party. Any statements, proposals, representations, conditions, warranties, understandings, or
agreements which may have been heretofore made by either of the parties hereto, and which are
not expressly contained or incorporated by reference herein, are void and of no effect.
This Agreement may be executed in two or more counterparts, each and all of which shall be
deemed an original and all of which together shall constitute but one and the same instrument.
Except as provided in Article V. (regarding termination without advance notice), no changes in or
additions to this Agreement shall be recognized unless and until made in writing and signed by all
parties hereto.
In the event any provision of this Agreement is held to be invalid, illegal, or unenforceable for any
reason and in any respect, such invalidity, illegality, or unenforceability shall in no event affect,
prejudice, or disturb the validity of the remainder of this Agreement, which shall be in full force and
effect, enforceable in accordance with its terms.
In the event that either party is unable to perform any of its obligations under this Agreement
because of natural dis'aster, labor unrest, civil disobedience, acts of war (declared or undeclared),
or actions or decrees of governmental bodies (anyone of these events which is referred to as a
"Force Majeure Event"), the party who has been so affected shall immediately notify the other
party and shall do everything possible to resume performance.
Upon receipt of such notice, all obligations underthis Agreement shall be immediately suspended.
If the period of non-performance exceeds ten (10) working days from the receipt of notice of the
Force Majeure çyent, the party whose ability to perform has not been so affected may, by giving
written notice,' terminate this Agreement.' ' ,
All notices required to be given to either party by this Agreement shall, unless otherwise specified
in writing, be deemed to have been given three (3) days after deposit in the U.S. Mail, first class
postage prepaid, certified mail, return receipt requested.
This Agreement shall be ,interpreted and construed in accordance with the laws of the state òf
Wisconsin except to the extent superseded by federal law.
No forbearance or neglect on the part of either party to enforce or insist upon any of the provisions
of this Agreement shall be construed as a waiver, alteration, or modification of the Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on their behalf by their
duly authorized representatives' signatures, effective this 1 st day of January, 2004.
EMPLOYER -CITY OF OSHKOSH
By: ~ /~
By:
Printed Name: Richard A. Wollangk
Title: Ci ty Manager
Printed Name:
Felicia S. Wilhelm
Date:
January 2, 2004
Title: President
Date: C~ Ð ~ Z. DDY
I '
FULL LEGAL NAME OF EMPLOYER: ,
t'l ~U oÇ 0 sh.~Os ~
\ ,
AFFILIATES ANDIOR SUBSIDIARIES OF EMPLOYER SUBJECT TO THIS AGREEMENT:
'"
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on their behalf by their
duly authorized representatives' signatures, effective this 1 st day of January, 2004.
EMPLOYER
CLAIMS ADMINISTRATOR
By:
By:
Printed Name:
Printed Name:
Felicia S. Wilhelm
Title:
Title:
President
Date:
Date:
FULL LEGAL NAME OF EMPLOYER:
C_\~ ~ D~~h
AFFILIATES AND/OR SUBSIDIARIES OF EMPLOYER SUBJECT TO THIS AGREEMENT:
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BUSINESS ASSOCIATE AGREEMENT
I.
PREAMBLE
Pursuant to the Health Insurance Portability and Accountability Act ("HIP AA ") of 1996, and its implementing
regulations, the Standards for Privacy ofIndividually Identifiable Health Information, 42 c.F.R. parts 160 and 164
(hereinafter the "HIP AA Privacy Ruk"), City of Oshkosh ("Covered Entity") and Prairie States Enterprises, Inc.
("Business Associate") (jointly "the Parties") wish to enter into an Agreement that addresses the requirements of the
HIP AA Privacy Rule with respect to "business associates," as that term is defined in the HIP AA Privacy Rule.
Specifically, this Agreement is intended to ensure that the Business Associate will establish and implement
appropriate safeguards (including certain adnúnistrative requirements) for "Protected Health Information" the
Business Associate may create, receive, use or disclose in connection with certain functions, activities, or services
(collectively "services") to be provided by Business Associate to Covered Entity. The services to be provided by
Business Associate are identified in a se~te agreement be" tween the Parties entitled Adnúnistrative Services
Agreement for City of Oshkosh and dated ~LUî'KJ-r 1 '21>04.
The Parties acknowledge and agree that, in connection with the services to be provided, Business Associate will
create, receive, use or disclose Protected Health Information relating to individuals covered by the group health plan
which is the Covered Entity (the "PHI"). As set forth in the HIPAA Privacy Rule and as used herein, such PHI is
derIDed to include individually identifiable health information maintained or transmitted in any form or medium,
including, without limitation, all information (including demographic, medical, and financial information), data,
documentation, and materials that relate to: (i) the past, present:, or future physical or mental health or condition of
an individual; (ii) the provision of health care to an individual; or (iii) the past, present, or future payment for the
provision of health care to an individual, subject to the exclusions set forth in the HIP AA Privacy Rule. PHI does
not include health information that has been de-identified in accordance with the standards for de-identification
provided for in the HIP AA Privacy Rule. '
In connection with Business Associate's creation, receipt, use or disclosure of PHI, Business Associate and Covered
Entity agree as follows:
II. GENERAL TERMS
a.
All capitalized term of this Agreement shall have the meanings set forth in the HIP AA Privacy Rule, unless
otherwise defined herein.
b.
In the event of an inconsistency between the provisions of this Agreement and the mandatory terms of the
HIP AA Privacy Rule, as may be expressly amended from time to time by the Department of Health and
Human Services (HHS) or as a result of formal interpretations by HHS, a court, or another regulatory
agency with authority over the Parties, the interpretation of HHS, such court or regulatory agency shall
prevail. In the event of a conflict among the interpretations of these entities, the conflict shall be resolved in
accordance with rules of precedence. The parties shall endeavor to amend this Agreement as needed to
reflect any material changes, additions or deletions to HIP AA or the HIP AA Privacy Rule, and to conform
to binding court or agency interpretations thereof.
c.
Where provisions of this Agreement are different from those mandated by the HIP AA Privacy Rule, but are
nonetheless pennitted by that Rule, the provisions of the Agreement shall control.
d.
Except as expressly provided in the HIP AA Privacy Rule or this Agreement, this Agreement does not
create any rights in third parties.
e.
The purpose of this Agreement is to satisfy compliance with the HIP AA Privacy Rule by obligating
Business Associate to facilitate Covered Entity's compliance with that Rule. The Parties recognize that the
statutory and regulatory burden of compliance, and related liability for noncompliance, falls solely on
Covered Entity. Business Associate's obligation arises and is enforceable solely under this Agreement.
Ill.
a.
b.
c.
d.
IV.
a.
b.
c.
OBLIGATIONS OF COVERED ENTITY
Covered Entity shall provide to Business Associate, or give Business Associate access to, such PHI as is
reasonably necessary for Business Associate to perform its contractual services for Covered Entity.
Covered Entity shall promptly give Business Associate a copy of Covered Entity's notice of privacy
practices, developed in accordance with 45 C.F.R. § 164.520, and any subsequent changes thereto, or any
portions of such notice as may relate to Business Associate's services for Covered Entity or as may affect
Business Associates' use or disclosure of PHI.
Covered Entity shall promptly notify Business Associate of any consents, permissions (including agreed
upon restrictions), authorizations or directives regarding PHI which Covered Entity has received from or on
behalf of. (or entered into by agreement with) any individual or any law enforcement, HHS or other
governmental representative or other person authorized by the HIP AA Privacy Rule to give such consent,
permission, authorization or directive, to the extent such notice may affect Business Associate's use or
disclosure of PHI. Covered Entity shall also promptly notify Business Associate of any changes in,
expiration or revocation of, any such prior consent, permission, authorization or directive.
Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be
permissible under the HIP AA Privacy Rule. Covered Entity shall give Business Entity reasonable advance
notice of requests for production of or access to PHI or other information necessary for Covered Entity to
fulfill its accounting and other obligations under the HIP AA Privacy Rule.
OBLIGATIONS OF BUSINESS ASSOCIATE
Business Associate agrees to create, receive, use or disclose PHI only in a manner that is consistent with
this Agreement and the HIP AA Privacy Rule and only in connection with providing the services to
Covered Entity identified in the agreement dated January 1, 2004, as same may be amended. Accordingly,
in providing services to or for the Covered Entity, Business Associate, for example, will be permitted to use
and disclose PHI for "treatment, payment and health care operations" in accordance with the HIP AA
Privacy Rule. Additionally, under the HIP AA Privacy Rule, Business Associate also may use or disclose
PHI received by Business Associate in its capacity as a Business Associate of Covered Entity if:
(i)
the use relates to either: (I) the proper management and administration of Business Associate, or
(2) data aggregation services relating to the health care operations of Covered Entity; or to
(ii)
Carry out legal responsibilities of Business Associate;
( iii)
the disclosure of information received in such capacity will be made in connection with a function,
responsibility, or service identified in (i) (I) and either such disclosure is required by law or
Business Associate obtains reasonable assurances from the person to whom the information is
disclosed that it will be held confidential and the person agrees to notify Business Associate of any
breach of confidentiality; or
(iv)
the disclosure would be permissible if done by Covered Entity under the permitted or required
disclosures referred to in 45 c.F.R. § 1 64.502(a).
Business Associate shall include in all contracts with its agents or subcontractors, if such contracts involve
the disclosure of PHI to the agents or subcontractors, the same restrictions and conditions on the use and
disclosure of PHI that are set forth in this Agreement.
Business Associate shall maintain appropriate safeguards to reasonably ensure the PHI is not used or
disclosed except as provided for by this Agreement.
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d.
In accordance with 45 C.F.R. § 164.524 of the HIPAA Privacy Rule, Business Associate will make
available to those who are subjects of HI, their PHI in Designated Record Sets by providing the PHI to
Covered Entity (who then will share the PHI with the individual), by forwarding the PHI directly to the
individual, or by making the PHI available to such individual at a reasonable time and location, as directed
by Covered Entity. Unless directed by Covered Entity in each particular instance, Business Associate will
not be responsible for determining an individual's entitlement to their requested access to their PHI and
shall merely report to the Covered Entity whether the Business Associate is aware of grounds under the
HIP AA Privacy Rule for denying the individual's request. Business Associate shall not handle the review
of a denial of access except as requested by Covered Entity and agreed upon by Business Associate in a
particular case.
e.
Business Associate shall maintain, and make available upon request, the information necessary for Covered
Entity to provide an accounting of disclosures by Business Associate of PHI as provided for in 45 C.F.R. §
164.528 of the HIPAA Privacy Rule.
f.
Business Associate shall, at the direction of Covered Entity, make (and inform appropriate other persons
of) any amendment to PHI that Covered Entity has agreed or is obligated to make in accordance with
c.F.R. § 164.526 of the HIP AA Privacy Rule.
g.
Upon the termination or expiration of this Agreement, Business Associate agrees to return the PHI to
Covered Entity, destroy the PHI (and retain no copies) or, ifreturn or destruction is not feasible, continue to
protect the PHI to the extent required by the HIP AA Privacy Rule and limit its further uses and disclosures
of such remaining PHI to those purposes that make such return or destruction infeasible. The cost of such
return, destruction or protection shall be borne by Covered Entity.
h.
Business Associate agrees to report to Covered Entity any use or disclosure of PHI not provided for by this
Agreement of which Business Associate because aware. Business Associate will consult with Covered
Entity with respect to such impermissible use or disclosure of PHI which it reports to Covered Entity, or
any other impermissible use or disclosure which Covered Entity reports to Business Associate, and will
cooperate with Covered Entity to the extent practicable to assist in mitigating any harmful effect that is
known to Business Associate of any such impermissible use or disclosure of PHI.
1.
Business Associate agrees to make its internal practice, books and records, including policies and
procedures and PHI, relating to the use and disclosure of PHI received from (or created or received by
Business Associate on behalf of ) Covered Entity available to the Secretary of HHS upon reasonable
request, in a time and manner to be agreed upon with the Secretary, for purposes of the Secretary
determining Covered Entity's compliance with the HIPAA Privacy Rule.
J.
Business Associate shall retain (even beyond the term of this Agreement) such documentation of its efforts
to comply with this Agreement as may be reasonably directed by Covered Entity to enable it to satisfy, in
part, its documentation obligations under the HIP AA Privacy Rule.
v.
AMENDMENT AND TERMINATION
a.
The Parties may amend this Agreement at any time and in any respect only by a written instrument duly
adopted and executed on behalf of each Party.
The term of this Agreement shall begin on '" ~NL q \ , 2004 and continue, unless sooner
terminated hereunder, until the January I, 2004 service agreement (as amended, extended or superseded)
between the Parties shall cease to be in effect. Specific obligations under this Agreement may continue in
effect beyond its termination date to the extent so specified herein.
b.
c.
Upon Covered Entity's knowledge of a material breach of this Agreement by Business Associate, Covered
Entity shall provide a reasonable opportunity, with notice, for Business Associate to cure the breach or end
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the violation of this Agreement. Covered Entity shall terminate this Agreement if Business Associate does
not cure the breach or end the violation within the time provided. If it is not possible to cure the breach or
end the violation, then Covered Entity shall promptly terminate this Agreement by written notice to
Business Associate.
VI.
MUTUAL PROTECTION
a.
Covered Entity shall indemnify Business Associate ftom and against any and all liabilities, losses and
expenses of any nature arising from (i) any breach of the HIP AA Privacy Rule by Covered Entity or any of
its other Business Associates, or (ii) any material breach of this Agreement by Covered Entity.
b.
Business Associate shall indemnify Covered Entity from and against any and all liabilities, losses and
expenses of any nature arising from any material breach of this Agreement by Business Associate;
provided, however, suc~ indemnification shall be capped at two times the Business Associates' fee payable
by Covered Entity under their January 1, 2004 service agreement for the calendar year preceding the
calendar year in which the breach occurred.
VII.
MISCELLANEOUS
a.
This Agreement, as amended from time to time, constitutes the complete agreement of the Parties with
respect to the subject of their Covered Entity - Business Associate relationship under HIP AA and shall not
be amended, modified, or supplemented by parol evidence or any prior oral understanding.
b.
This Agreement shall be governed by the laws of the State of Indiana to the extent not preempted by
applicable federal law.
IN WITNESS WHEREOF, the parties have caused thi~ Agreement to be executed on their behalf by their duly
authorized representatives' signatures, effective this \ day of \):ui\;V\ßJCí.\/""' ,2004.
~
Covered Entity: Business Associate:
Richard A.Wollangk
Printed Name
Title:
City of Oshkosh
BY~~
Attest:
APPROVED:
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