HomeMy WebLinkAbout08 - Approval of a PSA to provide Emergency Medical and Ambulance Billing ServicesCITY OF
NEWPORT BEACH
City Council Staff Report
TO:
FROM:
PREPARED BY:
PHONE:
September 27, 2016
Agenda Item No. 8
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Scott L. Poster, Fire Chief - 949-644-3101, sposter@nbfd.net
Angela Velazquez, Administrative Manager, acrespi nbfd.net
949-644-3352
TITLE: Approval of a Professional Services Agreement with Wittman
Enterprises, Inc. to provide Emergency Medical and Ambulance
Billing Services
ABSTRACT:
The City of Newport Beach Fire Department receives over 8,000 calls for Emergency
Medical Services on an annual basis. The cost of providing these services is supported
by City Council adopted user fees included in the Master Fee Schedule. Collection of
these fees is unlike other city fees and involves medical insurance billing. The City of
Newport Beach has conducted a request for proposals (RFP) seeking a consultant to
perform these specialized billing services. As a result, staff's recommendation is to
award a contract to the most qualified company.
RECOMMENDATION:
a) Determine that the action is exempt from the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines
because it will not result in a physical change to the environment, directly or
indirectly; and
b) Approve a five (5) year Professional Services Agreement with Wittman Enterprises,
Inc. to provide Emergency Medical and Ambulance Billing Services at a not to
exceed amount of $175,000 per contract year, and authorize the Mayor and City
Clerk to execute the Agreement.
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding for this purchase. It will be
expensed to the Ambulance Fees account in the Fire Department, 01040404-891038.
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Approval of a Professional Services Agreement with Wittman Enterprises, Inc. to
provide Emergency Medical and Ambulance Billing Services
September 27, 2016
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DISCUSSION:
Emergency Medical Services (EMS) fees are the single largest revenue source in the
Fire Department. Based on call volume and billing trends, the FY 2016-17 projected
revenue is $3,345,000. Selection of the most qualified contractor will enable collection
of the maximum allowable reimbursement from various insurance payors and therefore
maximum cost recovery.
Proposal Evaluation and Selection:
RFP No. 16- 56 was published on May 23, 2016 and closed on June 21, 2016. The City
received five (5) proposals from the following proposers:
Amerik Medical Billing;
Health Services Integration;
Advanced Data Processing Inc. (Intermedix Corporation);
Novato Fire Protection District; and
Wittman Enterprises, LLC.
The proposals were forwarded to an evaluation panel consisting of staff from the Fire
Department. Two of the five proposers, Amerik Medical Billing and Health Services
Integration, were disqualified by the panel for failing to demonstrate the minimum
qualifications in the RFP. The evaluation panel rated the remaining three proposals
based on technical factors such as experience, qualifications, understanding of the
project, proposed methodology, and references. The RFP solicitation emphasized the
ability of the contractor to minimize City costs, maximize the use of data and
technology, provide excellent client and customer service, and to successfully perform
thorough and complete billing services.
The RFP solicitation also provided billing activity projections according to fee type and
insurance payor mix so that bidders could provide accurate pricing. The combination of
the technical factors rated by the evaluation panel and the cost analysis completed by
Purchasing staff are combined in the evaluation score (shown below).
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WITTMAN
NOVATO FIRE
ENTERPRISES, INC.
INTERMEDIX
PROTECTION DISTRCT
EVALUATION SCORE
(OUT OF 100)
84.33
84.82
92.26
CHARGE TO CITY
3.39% OF NET
$18 PER CALL
4.25% OF NET
COLLECTIONS
COLLECTIONS
ANNUAL RATE
INCREASE TO $19.80
INCREASE(S)
N/A
PER CALL AFTER YEAR 3
N/A
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Approval of a Professional Services Agreement with Wittman Enterprises, Inc. to
provide Emergency Medical and Ambulance Billing Services
September 27, 2016
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While Intermedix Corporation offered the lowest charge to the City, they also received
the lowest evaluation score. A major factor in their scoring was the performance data
provided, which indicated a potential 22% reduction in net collections. In 2015, that
amount would equal to a revenue loss of $594,000 in one year. Novato Fire Protection
District was competitive in terms of technical scoring, but is also potentially more
expensive in terms of cost. A comparison between Novato and Wittman's total costs is
challenging due to differing cost structures. One proposer offers a per call fee with the
other being percentage based. Under the per call fee structure, the resulting cost to the
City may be higher for smaller fee calls. To illustrate, our average collection rate for a
non -transport call is $176. Under the Novato rate, billing this call would cost $18 and
under the Wittman rate the billing would cost $7.48.
Based on the total RFP evaluation process, staff recommends Wittman Enterprises as
the most qualified company. Wittman Enterprises surpassed the other proposers in
terms of their experience from their extensive California and Orange County client base.
Their diligence in seeking full reimbursement, industry knowledge, outstanding
performance history, a large staff well trained staff, history and providing both the
department and our residents and visitors with excellent customer services were other
notable areas of strength. In addition, their willingness to reduce the billing rate from
6.1 % to 4.25 % at a 5 -year savings of $250,000 demonstrated their commitment to the
business relationship and continued incentive to seek the highest levels of
reimbursement for the City.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A - Professional Services Agreement with Wittman Enterprises, Inc. for
Emergency Medical and Ambulance Billing Services
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Professional Services Agreement with Wittman Enterprises, Inc.
for Emergency Medical and Ambulance Billing Services
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PROFESSIONAL SERVICES AGREEMENT
WITH WITTMAN ENTERPRISES, LLC FOR
EMERGENCY MEDICAL AND AMBULANCE BILLING SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 1st day of October, 2016 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and WITTMAN ENTERPRISES, LLC, a California limited liability company
("Consultant"), whose address is 11093 Sub Center Drive, Rancho Cordova, California
95670, and is made with reference to the following:
RECITALS
X City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide emergency medical and ambulance
billing services ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2021, unless terminated earlier as set forth herein.
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
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performed to completion in a diligent and timely manner. The failure by Consultant to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all Work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed Eight
Hundred Seventy Five Thousand Dollars and 00/100 ($875,000.00), without prior
written authorization from City. No billing rate changes shall be made during the term of
this Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) calendar days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically identified in Exhibit B to this Agreement or specifically approved in writing in
advance by City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
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Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated the Administrative
Manager to be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval shall
not be unreasonably withheld with respect to -the removal or assignment of non -key
personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to City.
This Agreement will be administered by the Fire Department. City's
Administrative Manager or designee shall be the Project Administrator and shall have
the authority to act for City under this Agreement. The Project Administrator shall
represent City in all matters pertaining to the Services to be rendered pursuant to this
Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Consultant's Work schedule.
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All
Services shall be performed by qualified and experienced personnel who are not
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employed by City. By delivery of completed Work, Consultant certifies that the Work
conforms to the requirements of this Agreement, all applicable federal, state and local
laws, and legally recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services contemplated
by this Agreement (collectively, the "Indemnified Parties") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Consultant's presence or
activities conducted on the Project (including the negligent, reckless, and/or willful acts,
errors and/or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly
by any of them or for whose acts they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by
Consultant.
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10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No
civil service status or other right of employment shall accrue to Consultant or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees
of City. Consultant shall have the responsibility for and control over the means of
performing the Work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Consultant as to the details of the performance of the Work or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of City
with respect to the results of the Services.
cej 11:11 101 -All I NIT
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
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be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint -venture or syndicate or co -tenancy, which shall result in changing
the control of Consultant. Control means fifty percent (50%) or more of the voting
power or twenty-five percent (25%) or more of the assets of the corporation, partnership
or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. City is an intended beneficiary
of any Work performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and City. Except as specifically authorized herein, the
Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced, including but not limited to, websites, blogs, social media accounts
and applications (hereinafter "Documents"), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Additionally, all material posted in
cyberspace by Consultant, its officers, employees, agents and subcontractors, in the
course of implementing this Agreement, shall become the exclusive property of City,
and City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents, including all logins and password information to City
upon prior written request.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant, and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
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17.3 All written documents shall be transmitted to City in formats compatible
with Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including
costs, contained in Consultant's Documents provided under this Agreement.
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and/or restoration expense shall be
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borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold harmless
City for any and all claims for damages resulting from Consultant's violation of this
Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Angela Crespi
Fire Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Corinne Wittman -Wong
Wittman Enterprises, LLC
11093 Sub Center Drive
Rancho Cordova, CA 95670
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26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non -defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
28.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
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28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the ,parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORI EY' OFFICE
Date: 1(0
By: r
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Diane Dixon
Mayor
CONSULTANT: Wittman Enterprises,
LLC, a California limited liability company
Date:
By:
Corinne Wittman -Wong
Chief Executive Officer
Date:
By:
Walter Imboden
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A -- Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Exhibit D — HIPAA Business Associate Agreement
Wittman Enterprises, LLC -- - Page 11
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EXHIBIT A
SCOPE OF SERVICES
A. GENERAL PERFORMANCE REQUIREMENTS
Contractor shall provide the City of Newport Beach with all functions of the billing
process (including preparing, invoicing, categorizing, recording, monitoring,
supervising and managing the emergency medical and ambulance transportation
billing) for Emergency Medical and Ambulance Billing Services as described herein.
Contractor shall provide excellent customer service to residents and visitors of
Newport Beach who have billing questions or problems, by providing a toll-free
phone number and an email address so individuals with questions or requiring
assistance with invoices, may contact the company directly.
Contractor shall provide customer service representatives that are available at a
minimum from 8:00 am to 4:30 pm, Pacific Time, Monday through Friday, excluding
major holidays. Language translation service for other language needs of patients
or their representatives shall be available. Contractor shall make outgoing contacts
with City accounts identifying themselves as "Ambulance Billing Services for the City
of Newport Beach Paramedic Services" and shall identify themselves when receiving
incoming calls as "Ambulance Billing Services." Contractor shall provide the flexibility
and care needed for the City's accounts by providing an adequate amount of
personnel.
Contractor shall provide a liaison to the City. This individual will be a full—time
employee of the Contractor, have an extensive knowledge of EMS billing practices,
as well as an understanding of EMS industry standard practices, and decision
making authority for problem resolution. This liaison shall be available during regular
business hours and have an alternate contact available in his/her absence. The
liaison shall provide overall management and coordination of the contract on the
Contractor's behalf and have access to technical assistance at all times.
Contractor shall prepare all invoices and follow-up mailings to receivers of Newport
Beach Emergency Medical Services. Initial invoicing with both English and Spanish
instructions shall be on 8.5" by 11" paper and shall be placed in envelopes, sealed
and mailed, postage prepaid. An initial telephone call shall also be made to elicit
any insurance information from the patient or patient's representative. If there is no
answer on the initial call, Contractor shall send an inquiry letter in addition to the
initial invoice. The agreed upon bill schedule is as follows:
Initial Invoice: Immediately
Call to Patient: 20 Days
Statement: 30 Days
Past Due Notice: 45 Days
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E.M.
Call to Patient: 55 Days
Final Request Notice: 65 Days
Account Review for Collections: 75 Days
Contractor shall forward all unresolved complaints and billing disputes to the City
for review and determination. Contractor shall adhere to the City's policy for
handling account hardship issues, liens and attorney settlement requests,
including but not limited to minimal monthly payment plans, credit card
transactions, write-downs and write-offs.
1. Medicare, Medi -Cal
Contractor shall electronically convey all Medicare and Medi -Cal claims to the
appropriate payor. All secondary insurance, coinsurance, and co -payments for
Medicare and Medi -Cal, shall be transferred to the appropriate pay source and
promptly billed to that source.
Contractor shall be responsible for program updates if the requirements of
Medicare and Medi -Cal fiscal intermediaries change during the contract period.
Contractor shall comply with all federal and state regulations and applicable
State Medi -Cal regulations regarding claim submittal and processing in its
entirety. Contractor shall remain current in the regulations and inform the City if
its current practices need to be modified to adhere to all regulatory matters.
2. Workers' Compensation and Private Insurance
Contractor shall bill private insurance, supplemental insurance, secondary
insurance, and workers compensation in accordance with applicable
requirements. Electronic billing of insurance companies shall be performed
where appropriate. Any correspondence for additional information or follow-up
necessary to secure insurance payment shall be performed by Contractor.
3. Paramedic Subscription Members
In the event that services are rendered to a covered member of the City's
Paramedic Subscription Program (Fire Medics) who has insurance, a diligent and
timely effort shall be made by Contractor to identify, bill, and pursue payment
from these resources.
C. DELINQUENT CLAIM HANDLING
An account is only deemed as uncollectable after all efforts to collect the balance
due has been exhausted including:
Bill Schedule has been completed
Utilization of all appropriate follow-up letters
Alternate contacts have been used
Attempts to locate correct address and telephone number with the Haines
Directory, White Pages.com and Accurint.com
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Hospital contacted for better information
Medicaid eligibility re -verified
At this point, delinquent accounts will be sent to the City for review or, if directed
by City, sent directly to the City's contracted collection agency. Transfer will be
made via computer printout (paper), secured email, or secured FTP site.
D. RECEIPTS HANDLING
Contractor shall receive direct payment, posting, and depositing cash receipts within
one (1) day of receipt. Bank deposit receipt will be sent via secured email or
secured FTP site to Newport Beach Fire Department. Contractor shall have no
access to the proceeds of the receipts. All funds are under the exclusive control of
the City.
Contractor, on a monthly basis, shall perform accurate month end close procedures
and produce the following reports. Reports shall be broken down by payor mix
where possible.
Monthly Ticket Survey
Monthly Sales Journal
Monthly Cash Receipts Journal
Monthly Receivables Aging
Management A/R Analysis
Monthly Customer Satisfaction Survey Results
City may periodically request modification of reports to address specific issues or
needs that arise. Contractor shall provide data and reports as needed for fees
studies, cost reimbursement programs, pilot studies, or other programs or initiatives.
F. RECORDS
For all accounts assigned to the Contractor, all customer contact, including notices,
mailing, itemizations, small claims, bankruptcy filings and miscellaneous requests
and inquiries, is the sole responsibility of the Contractor. Contractor shall ensure that
records are not missing, minimum content criteria is present, fee schedules are
accurate and applied correctly, billing codes are appropriate and itemized charges
are captured.
Records shall be maintained in accordance with generally accepted accounting
principles (GAAP). Contractor shall have the ability to cross reference patient files in
various methods (i.e. last name, social security number, service or residence
address, date of birth, date of service, etc.).
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Page A-3
Contractor shall provide the City with electronic access to the billing records. All
other records shall be made available to the City upon request. Contractor agrees
that all account records remain the property of the City and will be returned to the
City upon termination of this agreement.
Contractor shall guarantee the confidentiality, security and safety of all files,
documents and information provided by the City, except as to disclosure required by
federal and state laws and regulations. Contract will comply with all federal, state
and local statutes and regulations regarding protected health information, including
the Health Insurance and Portability and Accountability Act of 1996 (HIPAA), and
shall enter into a HIPAA Business Associate Agreement with the City. Contractor
shall maintain HIPAA compliance throughout the term of the contract.
Contractor will be fully responsible for maintaining accurate records of all
correspondence, documents, accounting records, transactions and other relative
evidence for a period of seven (7) years. The software and hardware of the billing
system shall ensure complete and uninterrupted back-up with a data recovery
system should a disaster occur.
Contractor shall provide all software and hardware associated with the billing and
receivables process. The Agency must be able to accurately transfer all necessary
information from the Image Trend database, based on the information provided by
the electronic Prehospital Care Report (ePCR) and obtain any additional information
needed that is not included in the ePCR, for proper and correct invoicing. Contractor
shall also be responsible for securely obtaining demographic and insurance
information from receiving hospitals.
Contractor shall maintain a secure FTP platform to send and receive account data
and information when necessary. Contractor shall maintain the FTP platform during
the entire term of the contract.
Contractor shall provide a monthly invoice to the City based upon the revenue
collected and reported by the City to the Contractor.
Contractor shall be responsible for mailing the City's Customer Satisfaction Survey,
provided by the City, in the manner prescribed by the City. The survey contents may
be modified at any time during the contract at the discretion of the City.
The Contractor shall have the ability to handle third party payor submission inquiries
regarding insurance claims. Contractor shall have the ability to effect collections in
all 50 states. Contractor will process all customer payments in accordance with
applicable Payment Card Industry (PCI) security requirements.
Contractor will provide updates to the City on changes in federal and state laws and
regulations, and shall liaise with State and Federal agencies on behalf of the City.
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Contractor will remain current in insurance regulations and inform the City if its
current practices need to be modified to adhere to maximize reimbursement.
The City will work cooperatively with the Contractor to collect signatures at the time
of the patient contact but the final responsibility to obtain signatures will rest with the
Contractor.
Contractor shall exercise its best ethical, prudent, lawful and professional efforts to
secure payments on all accounts referred by the City. Collection activities shall
comply with all federal, state and local laws, including but not limited to the Federal
Fair Debt Collection Practices Act.
Contractor shall not assign or subcontract any portion of this agreement or transfer,
assign or outsource any claim, pursuant to this contract, without the written consent
of the City. Contractor shall not enter into any third party agreements with
clearinghouses, insurance companies or any other arrangement that results in a
reduction of reimbursement without the written approval of the City.
Agency shall meet with City staff on an annual basis (or as -needed if issues arise) to
discuss all services and how the Agency and City can work together to further
collections.
Provide Consultant with the proper documentation necessary to prepare claims and
reach final adjudication.
Provide Consultant with any correspondence from the fiscal intermediaries,
insurance, attorneys, patients in order for Consultant to perform proper follow up of
outstanding billings and proper posting and tracking of accounts receivable.
Obtain patient signature or patient representative signature on trip ticket, or indicate
why unable to obtain signature.
Notify Consultant of any accounts requiring special attention or handling.
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EXHIBIT B
SCHEDULE OF BILLING RATES
For the term of this contract, the fee shall remain at 4.25% of net collected
dollars.
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INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
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Page C-1
D. Cyber Coverage. Consultant shall maintain Cyber liability that includes
Security and Privacy liability, Media liability, Business interruption and
extra expense and Cyber extortion, in the amount of at least One Million
Dollars ($1,000,000) for the duration of this agreement.
E. Commercial Crime Coverage. Consultant shall maintain commercial crime
policy insurance including Employee Dishonesty naming the City as a loss
payee with respect to any loss(es) concerning this Agreement, in the
minimum amount of at least One Million Dollars ($1,000,000) limit per
claim.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its City Council, boards and commissions, officers, agents,
volunteers and employees or shall specifically allow Consultant or others
providing insurance evidence in compliance with these requirements to
waive their right of recovery prior to a loss. Consultant hereby waives its
own right of recovery against City, and shall require similar written express
waivers from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City, its City Council, boards and commissions, officers, agents,
volunteers and employees shall be included as insureds under such
policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
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Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type. If the
Consultant maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for higher limits maintained
by the Consultant. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to
the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Consultant's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
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H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
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Imo..
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S s
BUSINESS ASSOCIATE AGREEMENT
(OUTSIDE BILLING COMPANY)
BETWEEN WITTMAN ENTERPRISES, LLC AND
CITY OF NEWPORT BEACH
THIS BUSINESS ASSOCIATE AGREEMENT ("Agreement") is entered this 1St
day of October, 2016 ("Effective Date") between THE CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("City") and WITTMAN ENTERPRISES,
LLC, a California limited liability ("Wittman") whose address is 11093 Sub Center Drive,
Rancho Cordova, California 95670, and is made with reference to the following:
l
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. Wittman is the City's contracted outside billing company, contracted with to
provide statements to and collect payments from patients who have received
paramedic field services and emergency ambulance transportation services from
the City.
C. This Agreement is executed to ensure that Wittman will appropriately safeguard
protected health information ("PHI") that is created, received, maintained, or
transmitted on behalf of the City in compliance with the applicable provisions of
Public Law 104-191 of August 21, 1996, known as the Health Insurance
Portability and Accountability Act of 1996, Subtitle F — Administrative
Simplification, Sections 261, et seq., as amended ("HIPAA"), the regulations
codified at 45 C.F.R. Parts 160 and 164 ("HIPAA Regulations"), and with Public
Law 111-5 of February 17, 2009, known as the American Recovery and
Reinvestment Act of 2009, Title XI I, Subtitle D — Privacy, Sections 13400, et seq.,
the Health Information Technology and Clinical Health Act, as amended (the
"HITECH Act").
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
A. General Provisions
Meaning of Terms. The terms used in this Agreement shall have the same
meaning as those terms defined in the HIPAA, the HIPAA Regulations, and
the HITECH Act.
2. Regulatory References. Any reference in this Agreement to a regulatory
section means the section currently in effect or as amended.
3. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit
compliance with the HIPAA, the HIPAA Regulations, and the HITECH Act.
B. Obligations of Business Associate
Wittman shall not use or further disclose protected health information ("PHI")
other than as permitted or required by this Agreement or as required by law.
2. Wittman shall use appropriate safeguards and comply, where applicable, with
the HIPAA Security Rule with respect to electronic protected health
information ("e -PHI") and implement appropriate physical, technical and
administrative safeguards to prevent use or disclosure of PHI other than as
provided for by this Agreement.
3. Wittman shall report in writing to City each security incident (as defined in the
HIPAA Security Rule) or any use or disclosure of PHI not provided for by this
Agreement no later than three (3) business days after becoming aware of
such security incident or non -permitted use or disclosure. If such security
incident or non -permitted use or disclosure constitutes a breach of unsecured
PHI, then Wittman shall comply with the requirements of Section B.4. below.
4. Wittman shall investigate each unauthorized access, acquisition, use or
disclosure of PHI that it discovers to determine whether such unauthorized
access, acquisition, use or disclosure constitutes a reportable breach of
unsecured PHI. If Wittman determines that a reportable breach of unsecured
PHI has occurred, Wittman shall notify City of such breach in writing without
unreasonable delay but no later than sixty (60) calendar days after discovery
of the breach, in accordance with 45 C.F.R. §164.410(c). City shall have sole
control over the timing and method of providing notification of such breach to
the affected individual(s), the Secretary and, if applicable, the media, as
required by the HITECH Act. Wittman shall reimburse City for its reasonable
costs and expenses in providing the notification, including, but not limited to,
any administrative costs associated with providing notice, printing and mailing
costs, and costs of mitigating the harm (which may include the costs of
obtaining credit monitoring services and identity theft insurance) for affected
individuals whose PHI has or may have been compromised as a result of the
breach.
5. In accordance with 45 CFR 164.502(e)(1) and 164.308(b), ensure that any
subcontractors that create, receive, maintain, or transmit PHI on behalf of
Wittman agree to the same restrictions, conditions, and requirements that
apply to Wittman with respect to such information;
6. Make PHI in a designated record set available to City and to an individual
who has a right of access in a manner that satisfies the City's obligations to
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provide access to PHI in accordance with 45 CFR §164.524 within thirty (30)
days of a request;
7. Make any amendment(s) to PHI in a designated record set as directed by the
City, or take other measures necessary to satisfy the City's obligations under
45 CFR §164.526;
8. Maintain and make available information required to provide an accounting of
disclosures to the City or an individual who has a right to an accounting within
sixty (60) days and as necessary to satisfy the City's obligations under 45
CFR §164.528;
9. To the extent that Wittman is to carry out any of the City's obligations under
-the HIPAA Privacy Rule, Wittman shall comply with the requirements of the
Privacy Rule that apply to the City when it carries out that obligation;
10. Make its internal practices, books, and records relating to the use and disclosure
of PHI received from, or created or received by Wittman on behalf of the City,
available to the Secretary of the Department of Health and Human Services for
purposes of determining Wittman and the City's compliance with HIPAA, the
HIPAA Regulations, and the HITECH Act;
11. Restrict the use or disclosure of PHI if the City notifies Wittman of any
restriction on the use or disclosure of PHI that the City has agreed to or is
required to abide by under 45 CFR §164.522; and
12. If the City is subject to the Red Flags Rule (found at 16 CFR §681.1 et seq.),
Wittman agrees to assist the City in complying with its Red Flags Rule
obligations by: (a) implementing policies and procedures to detect relevant
Red Flags (as defined under 16 C.F.R. §681.2); (b) taking all steps necessary
to comply with the policies and procedures of the City's Identity Theft
Prevention Program; (c) ensuring that any agent or third party who performs
services on its behalf in connection with covered accounts of the City agrees
to implement reasonable policies and procedures designed to detect, prevent,
and mitigate the risk of identity theft; and (d) alerting the City of any Red Flag
incident (as defined by the Red Flag Rules) of which it becomes aware, the
steps it has taken to mitigate any potential harm that may have occurred, and
provide a report to the City of any threat of identity theft as a result of the
incident.
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C. Permitted Uses and Disclosures by Business Associate
The specific uses and disclosures of PHI that may be made by Wittman on behalf
of the City include:
The preparation of invoices to patients, carriers, insurers and others
responsible for payment or reimbursement of the services provided by the
City to its patients;
2. Preparation of reminder notices and documents pertaining to collections of
overdue accounts;
3. The submission of supporting documentation to carriers, insurers and other
payers to substantiate the healthcare services provided by the City to its
patients or to appeal denials of payment for the same; and
4. Other uses or disclosures of PHI as permitted by HIPAA necessary to perform
the services that Wittman has been engaged to perform on behalf of the City.
D. Relationship of Parties
1. Wittman is an independent contractor and not an agent of City under this
Agreement. Wittman has the sole right and obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed all of Wittman's
obligations under this Agreement.
E. Indemnification
Notwithstanding anything to the contrary in the underlying services agreement
between the City and Wittman, at Wittman's expense, Wittman agrees to
indemnify, defend and hold harmless City, its City Council, boards and
commissions, officers, agents, volunteers, and employees (the "Indemnities")
from and against any and all fines, penalties, damages, losses, claims or
causes of action and expenses (including, without limitation, court costs and
reasonable attorneys' fees) arising from any violation of the HIPAA, the
HIPAA Regulations, or the HITECH Act or from any negligence or wrongful
acts or omissions, including but not limited to failure to perform its obligations
that results in a violation of the HIPAA, the HIPAA Regulations, or the
HITECH Act, by Wittman or its employees, directors, officers, subcontractors,
agents or other members of Wittman workforce. Wittman's obligation to
indemnify the Indemnities shall survive the expiration or termination of this
Agreement for any reason.
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F. Term and Termination
1. The term of this Agreement shall be effective as of the Effective Date and
shall terminate as of the date that all of the PHI provided by City to Wittman,
or created or received by Wittman on behalf of City, is destroyed or returned
to City, or, if it is infeasible to return or destroy the PHI, protections are
extended to such information, in accordance with Section F.3 below.
2. Upon City's knowledge of a material breach or violation of this Agreement by
Wittman, City shall either:
a. Notify Wittman of the breach in writing, and provide an opportunity for
Wittman to cure the breach or end the violation within ten (10)
business days of such notification; provided that if Wittman fails to cure
the breach or end the violation within such time period to the
satisfaction of City, City shall have the right to immediately terminate
this Agreement and the underlying services agreement between City
and Wittman upon written notice to Wittman;
b. Upon written notice to Wittman, immediately terminate this Agreement
and the underlying services agreement between City and Wittman if
City determines that such breach cannot be cured; or
C. If City determines that neither termination nor cure is feasible, City
shall report the violation to the Secretary.
3. Upon termination of this Agreement for any reason, Wittman shall return to
the City or destroy all PHI received from the City, or created, maintained, or
received by Wittman on behalf of the City that Wittman still maintains in any
form. Wittman shall retain no copies of the PHI. However, if Wittman
determines that neither return nor destruction of PHI is feasible, Wittman
shall notify City of the conditions that make return or destruction infeasible,
and may retain PHI provided that Wittman: (a) continues to comply with the
provisions of this Agreement for as long as it retains PHI, and (b) further
limits uses and disclosures of such PHI to those purposes that make the
return or destruction of PHI infeasible.
G. Notices
1. All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, and conclusively shall be deemed
served when delivered personally, or on the third business day after the
deposit thereof in the United States mail, postage prepaid, first-class mail,
addressed as hereinafter provided. All notices, demands, requests or
approvals from Wittman to City shall be addressed to City at:
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Attn: Angela Velazquez, Administrative Manager
Fire Department
City of Newport Beach
100 Civic Center Dr.
PO Box 1768
Newport Beach, CA 92658
2. All notices, demands, requests or approvals from City to Wittman shall be
addressed to Wittman at:
Attention: Corrine Wittman -Wong
Wittman Enterprises, LLC
11093 Sub Center Drive
Rancho Cordova, CA 95670
H. Amendment to Comply with Law
This Agreement shall be deemed amended to incorporate any mandatory
obligations of City or Wittman under the HITECH Act and its implementing
HIPAA Regulations. Additionally, City and Wittman agree to take such action
as is necessary to amend this Agreement from time to time as necessary for
City to implement its obligations pursuant to the HIPAA, the HIPAA
Regulations, or the HITECH Act.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California (without regards to conflict of laws principles).
City and Wittman 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 if a party elects to file an action in federal
court) courts located in Orange County, California.
J. Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and the same
instrument.
K. No Attorneys' Fees
In the event of any dispute or legal action arising under this Agreement, the
prevailing party shall not be entitled to attorneys' fees.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Date:
By:
Aaron C. Harp 94,1
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Diane B. Dixon
Mayor
CONSULTANT: Wittman Enterprises,
LLC, a California limited liability company
Date:
By:
Corinne Wittman -Wong
Chief Executive Officer
Date:
By:
Walter Imboden
Chief Financial Officer
Wittman Enterprises, LLC Page 7
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