HomeMy Public PortalAbout029-2019 - Finance - Horan Associates -...nsurance & Planning and EvaluationS� +
PROFESSIONAL CONSULTING SERVICES AGREEMENT
THIS AGREEMENT made and entered into this 0 day of /� , 2019, and referred to as
Contract No. 29-2019, by and between the City of Richmond, Indiana, a municipal corporation acting by
and through its Board of Public Works and Safety (hereinafter referred to as the "City") and Horan
Associates, Inc., 4990 E Galbraith Road, Cincinnati, Ohio, 45236 (hereinafter referred to as the
"Contractor").
SECTION I. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to provide professional data analysis and benefit program development and
consultation advisory services for the City of Richmond Finance Department for the 2019 calendar year.
The proposal of Contractor, received January 31, 2019, is attached hereto as Exhibit "A", which Exhibit
consists of fourteen (14) pages, and is hereby incorporated by reference and made a part of this
Agreement. Contractor shall perform all work and provide all services described on Exhibit "A." The
City has selected "Option B" as further described on "Schedule A" (Scope of Services) and on "Schedule
B" (Compensation Schedule) of Contractor's proposal attached as Exhibit A to this Agreement. City and
Contractor shall also enter into a separate Business Associate Agreement in connection with the Protected
Health Information (PHI) as shown in "Schedule C" of Contractor's proposal attached as Exhibit A to this
Agreement.
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions,
terms, or conditions of this Agreement, this Agreement shall be controlling.
Contractor shall perform all work herein in a timely manner, conforming to all applicable professional
standards.
The Contractor shall furnish all labor, material, equipment, and services necessary for the proper
completion of all work specified.
No performance of services shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance;
2. The City is in receipt of any required affidavit signed by Contractor in accordance
with Indiana Code 22-5-1.7-11(a)(2); and
3. A purchase order has been issued by the Purchasing Department.
SECTION II. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of
Richmond. The Contractor shall provide, at its own expense, competent supervision of the work.
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Contract No. 29-2019
SECTION III. COMPENSATION
City shall pay Contractor a sum in accordance with the services selected for "Option B" and as set forth in
"Schedule B" (Compensation Schedule) of Contractor's proposal attached as Exhibit A to this
Agreement, which sum shall not exceed Thirty-six Thousand Dollars and Zero Cents ($36,000.00) for
the performance all work described herein in a complete, satisfactory, and proper manner, and which
amount is payable upon receipt of quarterly invoices as selected in said "Option B" described above.
SECTION IV. TERM OF AGREEMENT
This Agreement shall be effective from February 27, 2019, and shall continue in effect until February 27,
2020. This agreement shall not automatically renew.
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for
cause, at any time by giving at least five (5) working days written notice specifying the effective date and
the reasons for termination which shall include but not be limited to the following:
a. failure, for any reason of the Contractor to fulfill in a timely manner
its obligations under this Agreement;
b. submission of a report, other work product, or advice, whether oral or written, by the
Contractor to the City that is incorrect, incomplete, or does not meet reasonable
professional standards in any material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made; or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make payment for all work performed prior
to the date this Agreement is terminated, but shall be relieved of any other responsibility herein.
This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties by
setting forth the reasons for such termination, the effective date, and in the case of partial termination, the
portion to be terminated.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or
property or any other claims which may arise from the Contractor's conduct or performance of this
Agreement, either intentionally or negligently; provided, however, that nothing contained in this
Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or
employees. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such
insurance as will protect it from the claims set forth below which may arise out of or result from the
Contractor's operations under this Agreement, whether such operations by the Contractor or by any sub-
contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the
Contractor may be held responsible.
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;'4
Coverage
Limits
A. Worker's Compensation & Disability Requirements Statutory
B. Employer's Liability $100,000
C. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence
$2,000,000 each aggregate
SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before
commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from
the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-
5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's
worker's compensation law, Contractor may choose to comply with all provisions of its home state's
worker's compensation law and provide the City proof of such compliance in lieu of complying with the
provisions of the Indiana Worker's Compensation Law.
SECTION VII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS
Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status
of all newly hired employees of the contractor through the Indiana E-Verify program. Contractor is not
required to verify the work eligibility status of all newly hired employees of the contractor through the
Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of
this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does
not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-1.1 (a) (2). In the event
Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than
thirty (30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy the
violation within the thirty (30) day period provided above, the City shall consider the Contractor to be in
breach of this Agreement and this Agreement will be terminated. If the City determines that terminating
this Agreement would be detrimental to the public interest or public property, the City may allow this
Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated
under this section, then pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for
actual damages.
SECTION VIII. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in investment
activities in Iran. In the event City determines during the course of this Agreement that this certification
is no longer valid, City shall notify Contractor in writing of said determination and shall give contractor
ninety (90) days within which to respond to the written notice. In the event Contractor fails to
demonstrate to the City that the Contractor has ceased investment activities in Iran within ninety (90) days
after the written notice is given to the Contractor, the City may proceed with any remedies it may have
pursuant to IC 5-22-16.5. In the event the City determines during the course of this Agreement that this
certification is no longer valid and said determination is not refuted by Contractor in the manner set forth
in IC 5-22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement
and terminate the agreement upon the expiration of the ninety (90) day period set forth above.
Page 3 of 5
SECTION IX. PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on
behalf of Contractor or any sub -contractor shall not discriminate against any employee or
applicant for employment to be employed in the performance of this Agreement, with respect to
hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly
related to employment, because of race, religion, color, sex, disability, national origin, or ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
That in the hiring of employees for the performance of work under this Agreement of any
subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of
Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color,
sex, national origin or ancestry against any citizen of the State of Indiana who is qualified
and available to perform the work to which the employment relates;
2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or any
sub -contractor shall in no manner discriminate against or intimidate any employee hired
for the performance of work under this Agreement on account of race, religion, color, sex,
national origin or ancestry;
3. That there may be deducted from the amount payable to Contractor by the City under this
Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during
which such person was discriminated against or intimidated in violation of the provisions
of the Agreement; and
4. That this Agreement may be canceled or terminated by the City and all money due or to
become due hereunder may be forfeited, for a second or any subsequent violation of the
terms or conditions of this section of the Agreement.
C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation
shall be considered a material breach of this Agreement.
SECTION X. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights
or obligations hereunder without the prior written consent of the other party. Any such delegation or
assignment, without the prior written consent of the other party, shall be null and void. This Agreement
shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their
successors and assigns. This document constitutes the entire Agreement between the parties, although it
may be altered or amended in whole or in part at any time by filing with the Agreement a written
instrument setting forth such changes signed by both parties. By executing this Agreement the parties
agree that this document supersedes any previous discussion, negotiation, or conversation relating to the
subject matter contained herein.
This Agreement may be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument,.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising out
of this Contract must be filed in said courts. The parties specifically agree that no arbitration or mediation
Page 4 of 5
shall be required prior to the commencement of legal proceedings in said Courts. By executing this
Agreement, Contractor is estopped from bringing suit or any other action in any alternative forum, venue,
or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of
Wayne County, Indiana, regardless of any right Contractor may have to bring such suit in front of other
tribunals or in other venues.
Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly
authorized by his or her principal to execute this Contract.
In the event of any breach of this Agreement by Contractor, and in addition to any other damages or
remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this Agreement,
including but not limited to, City's reasonable attorney's fees.
In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises,
this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day
and year first written above, although signatures may be affixed on different dates.
"CITY"
THE CITY OF RICHMOND,
INDIANA by and through its
Board of Public Works and Safety
By:
Vicki Robinson, President
LI-M
Richard Foore, Member
BY:/
Emily Pater, Member
APPROVE1
Date:
Page 5 of 5
"CONTRACTOR"
HORAN ASSOCIATES, INC.
4990 E Galbraith Road
Cincinnati, OH 45236
By: 4� _?w
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Title--?
Date: 4 - w3-tq
HORAN Consulting Agreement
This Consulting Agreement, hereinafter referred to as "Agreement" is between City of Richmond, Indiana,
hereinafter referred to as "Client" and HORAN Associates, Inc., hereinafter referred to as "HORAN" and is
effective during the Tenn set forth below;
WHEREAS, Client wishes to obtain the assistance of HORAN with strategic benefit planning, design, funding,
administration, and communication with respect to its employee benefit programs;
WHEREAS, HORAN has superior knowledge and expertise in assisting employers with designing and
servicing employee benefit plans; and
WHEREAS, the parties wish to set forth their respective expectations;
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, the parties hereby agree as follows:
1. Scope of Services to be Provided by HORAN
HORAN will provide Client with consulting, actuarial, and brokerage services as outlined in Schedule
A for the compensation and benefit programs listed in Schedule A.
2. Term & Termination
A. This initial term of this Agreement shall be one year, commencing on February 28, 2019 and
ending February 27, 2020 ("Initial Term"). Thereafter, this Agreement will automatically
renew for successive one year terms, unless terminated as set forth below.
B. This Agreement may be terminated by either party only as follows:
a) Effective upon 90 days advance written notice to the other party stating that such other
party is in breach of any of the provisions of this Agreement, provided such breach (if
able to be cured) is not cured within 15 days after the notice is received;
b) Effective upon 90 days advance written notice to the other party given with or without
reason; provided such notice is given after the Initial Term; or
C) By mutual written agreement of the parties.
C. Upon termination of this Agreement, HORAN shall be entitled to retain all payments remitted
to HORAN under this Agreement. Termination of this Agreement shall not terminate any
payment obligation of Client under this Agreement for services provided prior to such
termination. HORAN may be entitled to retain client materials until after Client pays all fees
due and owing under this Agreement.
3. Cost of Services
A. Client agrees to pay HORAN professional fees as outlined in Schedule B and deemed
necessary by this Agreement. Professional fees are based upon time expended by specific
individuals to perform work laid out in Schedule A.
These annual fees are payable in quarterly installments and HORAN agrees to submit invoices
to Client on a quarterly basis. Client shall pay each invoice within 30 days of receiving such
invoice. All amounts payable by Client which remain unpaid after the due date shall accrue
interest at a rate equal to the lesser of 2.0% per month from the due date or the maximum
amount permitted by usury law, if less, until such amounts are paid. In addition, Client shall
be liable to HORAN for all costs incurred by HORAN in its collection of any amounts owing
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JEXHIBIT; �L- PAGE OF""
by Client which are not paid when due, including reasonable attorneys' and collection agency's
fees and expenses.
B. Additional programs and services will be provided on a project basis for an additional fee to
be disclosed in writing and shall be undertaken upon mutual agreement between HORAN and
Client. Such programs and services may include, but not be limited to, additional lines of
insurance, special projects, outsourced wellness services, additional Request For Proposal
(RFP) work, etc.
C. Client shall reimburse HORAN for all reasonable expenses incurred by HORAN in the
performance of its services, including, but not limited to, travel and lodging expenses, printing,
postage, and communication charges.
D. If Client in good faith disputes any amount in an invoice, Client should provide written notice
of such dispute to HORAN as soon as reasonably possible, but in any event within 30 days
after issuance of the invoice. Client and HORAN shall negotiate promptly and in good faith
to resolve any dispute. Failure to pay an amount equal to or greater than 50% of the invoiced
amount, including a disputed amount, within 30 days of the date of invoice will entitle
HORAN, in addition to any other rights or remedies it may have, to suspend performance of
the services under this Agreement. HORAN shall provide written notice of suspension to
Client at least 5 business days prior to suspension, providing in such notice a right to cure the
suspension within the 5 business days.
4. Personnel
HORAN will assign its personnel according to the needs of Client and according to the disciplines
required to complete the appointed task in a professional manner. HORAN retains the right to substitute
personnel with reasonable cause. The Account Management Team consists of the following roles:
Primary Service Team: Account Executive
Account Manager
Client Specialist
Additional Key Resources: Director — Financial Analysts
Director — Individual Health and Medicare
Director — Compliance
Director — Health Management
5. Disclosure and Record Keeping
A. HORAN may engage subcontractors to assist Client in the performance of its obligations under
this Agreement. Client has the right to be informed of any arrangements and/or the utilization
of any intermediaries in connection with, or arising out of, or in any way related to Client's
insurance and risk management program. HORAN must notify Client prior to the use of any
subcontractor in connection with the Client's insurance and risk management program.
B. HORAN will maintain accurate and current files including, but not limited to, insurance
policies and correspondence with insurers or brokers in accordance with industry standard
record retention practice, the Health Insurance Portability & Accountability Act of 1996 or as
otherwise directed by Client.
6. Client's Responsibilities
A. Client shall make available such reasonable information as required for HORAN to conduct
its services. Such data will be made available as promptly as possible. It is understood by
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EXHIBIT PAGE `
HORAN that the time of Client's personnel is limited, and judicious use of that time is a
requirement of this Agreement.
B. Client agrees to notify HORAN as soon as possible of any proposed amendments to the plans'
legal documents to the extent that the amendments would affect HORAN in the performance
of its obligations under this Agreement. Client agrees to submit (or cause its agent, consultants,
or vendors to submit) all information in its (or their) control reasonably necessary for HORAN
to perform the services covered by this Agreement.
C. HORAN shall be entitled to rely upon any information and materials provided by Client. Client
shall be solely responsible for the accuracy, adequacy, and integrity of materials and
information provided to HORAN. HORAN shall not be responsible for verification of the
accuracy, adequacy or integrity of any materials or information provided by Client nor shall
HORAN be responsible for any errors due to reliance upon information provided by Client.
D. Client shall at all times be responsible for any tax consequences in the establishment and
operation of the plans.
7. Independent Contractor
It is understood and agreed that HORAN is engaged by Client to perform services under this Agreement
as an independent contractor. Nothing in this Agreement shall be construed to create an employment,
partnership or agency relationship between HORAN and Client. HORAN shall use its best efforts to
follow written, oral, or electronically transmitted (i.e., sent via facsimile or e-mail) instructions from
Client as to policy and procedure.
S. Limited Responsibilities
A. HORAN's sole responsibilities shall be as described in this Agreement, including the
obligations listed in Schedule A. Client acknowledges that: (i) HORAN shall have no
discretionary authority or discretionary control respecting the management of any of the
employee benefit plans; (ii) HORAN shall exercise no authority or control with respect to
management or disposition of the assets of Client's employee benefit plans; and (iii) HORAN
shall perform services pursuant to this Agreement in an administrative non -fiduciary capacity.
Client further acknowledges that HORAN neither insures nor- underwrites any liability for the
Client under any of its plans.
B. Nothing contained, expressed or implied in this Agreement, nor any service performed by
HORAN or communication by HORAN to Client in the process of performing services, is
intended as, or is to be construed or understood as, legal advice, guidance or interpretation. No
attorney -client relationship is established between HORAN and Client or any other person by
reason of or arising from this Agreement or under any circumstances whatsoever. Client
acknowledges that to the extent it desires or needs legal advice, guidance, or interpretation, it
must secure appropriate legal counsel of its own choosing and at its own expense.
9. Proprietary Rights
A. Client and HORAN each acknowledge that in entering into this Agreement, each party has
revealed and disclosed, and shall continue to reveal and disclose to the other, information
which is proprietary and/or confidential information of such party. Client and HORAN agree
that each party shall: (i) keep such proprietary and/or confidential information of the other
party in strict confidence; (iii) not disclose confidential information of the other party to any
third parties or to any of its employees not having a legitimate need to know such information;
and (iii) shall not use confidential information of the other party for any purpose not directly
related to and necessary for the performance of its obligations under this Agreement (unless
EXHIBIT _i6 PAGE OF LL
required to do so by a court of competent jurisdiction or a regulatory body having authority to
'require such disclosure).
B. Client owns and shall own all rights to Client's data provided to or accessed by HORAN,
including such Client data as processed or manipulated by HORAN in connection with the
Services. HORAN products will at all times remain the exclusive, sole and absolute property
of HORAN or the third parties from whom HORAN has obtained the right to use the HORAN
products. All rights, title and interest in or to any copyright, trademark, service mark, trade
secret, and other proprietary right relating to any HORAN products and the related logos,
product names, etc. are reserved and all rights not expressly granted are reserved by HORAN
and such third parties. Client may not obscure, alter or remove any copyright, trademark,
service mark or proprietary rights notices on any HORAN products, and Client will not, and
will require that its vendors and subcontractors will not, copy, recompile, disassemble, reverse
engineer, or make or distribute any other form of or any derivative work from, the HORAN
products.
10. Limitation of Liability
A. HORAN shall indemnify and hold Client and its employees harmless from any and all loss,
damage, liability, cost or expense (including reasonable attorneys' fees and expenses) which
Client may suffer or incur in connection with the defense of any action, suit or proceeding
(including settlement of same) in which it is made or threatened to be made a party by reason
of any acts or conduct arising out of the performance of its duties under this Agreement, except
in relation to matters as to which Client is grossly negligent or engages in willful misconduct
in the performance of its duties. The aggregate and cumulative liability of HORAN for
damages relating to or arising from this Agreement shall in no event exceed the portion of the
fees paid by Client to HORAN under this Agreement for the 12-month period prior to the date
in which the event giving rise to the claim first occurred.
11. Miscellaneous Provisions
A. This, along with the attached Schedules, constitutes the entire Agreement between the parties,
and any other warranties or agreements are hereby superseded. Subsequent amendments to
this Agreement or the Schedules to this Agreement shall only be valid if in writing and signed
by both parties.
B. This Agreement shall be construed, enforced, and governed by the laws of the State of Ohio,
except to the extent federal law supersedes such law.
C. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, successors, survivors, and assigns.
D. Nothing express or implied in this Agreement is intended to confer, and nothing shall confer,
upon any person other than the parties hereto any rights, remedies, obligations or liabilities
whatsoever.
E. A waiver by either party of any of the terms and conditions of this Agreement in any instance
will not be deemed or construed to be a waiver of such terms or conditions for the future, or of
any subsequent breach thereof.
F. If any one or more of the provisions of this Agreement shall, for any reason, be invalid or
illegal, such invalidity or illegality shall not affect any other provisions of this Agreement and
this Agreement shall be enforced as if such invalid or illegal provision had not been contained
herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement (including the attached Schedules)
to be executed by their duly authorized officers.
HORAN Associates, Inc. City of Richmond, Indiana
LXHIBITPAGE_A_
x±-- I -B, T
SCHEDULE A
SCOPE OF SERVICES
Option A ($1,500 per month)
0 Kickoff meeting in Richmond with Horan and the City to strategically plan for the year based on
needs and delivery
0 2 on site meetings throughout the course of the year in Richmond with Horan (TBD with Horan and
the City)
0 Monthly calls with Horan to walk through that particular months reports (30 minutes)
0 Horan gaining access to the UMR data feed
0 4 ad hoe reports based on need throughout the year
o 2 Renewal Projections for 2020 — May and August
Option B ($3,000 per month)
0 Kickoff meeting in Richmond with Horan and the City to strategically plan for the year based on
needs and delivery
0 4 on site meetings throughout the course of the year in Richmond with Horan (TBD with Horan and
the City)
0 Monthly calls with Horan to walk through that particular months reports (30 minutes)
0 Horan gaining access to the UMR data feed and adding to our data warehouse
• Determine plan risk, identify cost drivers and utilization patterns
2 Plan Performance Reviews — May/June and October/November
• Develop predictive models to guide future improvements in benefits strategy
" 2 Renewal Projections for 2020 — May and August
• Develop standard and customized reporting to meet business needs
Monthly dashboard
• Use data an;analysis to help meet short and long term financial goals to improve bottom line
a Ad hoc reports based on need throughout the year
o Tailored reporting to support internal client deliverables such as Committee meeting updates,
HR initiatives and Leadership updates
Annual Benchmarking Report
Access to HORANs benefits podcast
HORAN Associates, Inc. City of Richmond, Indiana
1EXHIBIT PAG
'�_1_1 _ J
COMPENSATION SCHEDULE
Health Benefits Consulting
HORAN will provide the agreed upon services according to the Schedule A
Option A
$_1 500 per month for one (1) year or $18,000 annually to be billed and collected in quarterly installments of
$4,500 on: March 1, 2019 (March, April & May 2019)
June 1, 2019 (June, July & August 2019)
September 1, 2019 (September, October & November 2019)
December 1, 2019 (December 2019, January & February 2020)
Option B
$3,000 per month for one (1) year or $36,000 annually to be billed and collected in quarterly installments of
$9,000 on: March 1, 2019 (March, April & May 2019)
June 1, 2019 (June, July & August 2019)
September 1, 2019 (September, October & November 2019)
December 1, 2019 (December 2019, January & February 2020)
HORAN Associates, Inc. City of Richmond, Indiana
EXHIBIT --f\- PAGE - kj-L-OF�j -
SCHEDULE C
BUSINESS ASSOCIATE AGREEMENT
WHEREAS, pursuant to the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-
19 1, 110 Stat. 2024 (Aug. 21, 1996) ("HIPAA"), the Office of the Secretary of the Department of Health and
Human Services has issued: (1) regulations providing Standards for Privacy of Individually Identifiable Health
Information at 45 CFR Part 160 and Subparts A and E of Part 164 ("Privacy Rule"); (2) regulations providing
Security Standards for the Protection of Electronic Protected Health Information at 45 CFR Part 160 and
Subpart C of Part 164 (the "Security Rule"); and (3) regulations modifying the Privacy Rule, Security Rule,
Enforcement and Breach Notification Rules; and
WHEREAS, the privacy and security provisions of HIPAA have been amended by the Health
Information Technology for Economic and Clinical Health Act (HITECH) provisions of the American
Recovery and Reinvestment Act of 2009, and any and all references in this Agreement to the "HIPAA Rules"
shall be deemed to include the Privacy Rule, the Security Rule, HITECH, the Enforcement and Breach
Notification Rules, and all existing and future implementing regulations, as they become effective; and
WHEREAS, the HIPAA Rules provide, among other things, that a Covered Entity is permitted to
disclose Protected Health Information ("PHI") to a Business Associate and allow the Business Associate to
obtain, receive, and create PHI on the Covered Entity's behalf, only if the Covered Entity obtains satisfactory
assurances in the form of a written contract, that the Business Associate will appropriately safeguard the PHI;
and
WHEREAS, City of Richmond, Indiana (the "Plan Sponsor") maintains one or more Health Plans
("Plans") and has engaged HORAN Associates, Inc. ("Business Associate") to perform services, which may
be described in a separate contract (the "Services Arrangement") and Business Associate may receive PHI, or
create and receive such information in the performance of services on behalf of such Plans. Plan Sponsor and
Business Associate desire to determine the terms under which they shall comply with the HIPAA Rules;
NOW THEREFORE, the Plans, Plan Sponsor, and Business Associate agree as follows:
1. GENERAL HIPAA COMPLIANCE PROVISIONS
1.1. HIPAA Definitions. Except as otherwise provided in this Agreement, all capitalized terms
contained in this Agreement shall have the meanings set forth in the HIPAA Rules.
1.2. HIPAA Readiness. Business Associate agrees that it will be fully compliant with the
requirements of the HIPAA Rules that apply to Business Associates by the compliance dates established under
such rules to the extent necessary to enable the Plans to comply with their obligations under the HIPAA Rules.
13. Changes in Law. Business Associate agrees that it will comply with any changes in the
HIPAA Rules by the compliance date established for any such changes. If, due to such a change, either or all
of the parties are no longer required to treat PHI in the manner provided for in this Agreement, the parties shall
renegotiate this Agreement, subject to the requirements of Section 5. Any such renegotiation shall occur as
soon as practicable following the occurrence of the change.
1.4. Nature of Relationship. The parties acknowledge that:
1.4.1. Each Plan is a Group Health Plan and a Covered Entity;
1.4.2. Business Associate is a Business Associate of one of more of the Plans; and
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1.4.3. City of Richmond Indiana is the Plan Sponsor (as defined in section 3(16)(b) of
Employee Retirement Income Security Act of 1974 29 USC § 1001 et seq., as amended ("ERISA")) of each
Plan, is not a Covered Entity, and acts in the capacity of a plan sponsor as defined in the HIPAA Rules.
1.4.4. Whenever reference is made in this Agreement to actions or under -takings of a Plan,
to reports or information provided by the Business Associate to a Plan, or to instructions to the Business
Associate from a Plan, the reference to the Plan shall be to the person or entity designated in such Plan's
documents as having responsibility for Plan administration or, if no designation is made therein, the Plan
Sponsor.
1.4.5. The relationship of the Business Associate to any Plan (or the Plan Sponsor) is solely
a contractual relationship and nothing in the Services Arrangement or this Agreement shall be interpreted as
creating an agency relationship with the Business Associate under Federal common law.
2. TREATMENT OF PHI
2.1. Permitted Uses and Disclosures of PHI.
2.1.1. Uses and Disclosures on Behalf of the Plan. The Business Associate shall be
permitted to use and disclose PHI for the services Business Associate is providing to the Plan or Plan Sponsor
pursuant to the Services Arrangement, which may include but not be limited to Treatment, Payment activities
and/or Health Care Operations, and as otherwise required to perform its obligations under this Agreement and
the Services Arrangement.
2.1.2. Other Permitted Uses and Disclosures. In addition to the uses and disclosures set
forth in Section 2- * 1. 1, Business Associate may use or disclose PHI received from, or created or received on
behalf of, the Plan under the following circumstances:
2.1.2.1. Disclosures to the Plan Sponsor. Business Associate may provide:
i. Summary Health Information to the Plan Sponsor upon Plan Sponsor's
written request which specifies that the purpose of the request is either: (a) to obtain premium bids for providing
health insurance coverage to a Plan; and/or (b) to modify, amend or terminate a Plan;
ii. Information to the Plan Sponsor on whether an individual is participating
in a Plan or is enrolled or has disenrolled from any insurance coverage offered by the Plan; and
iii. PHI to the Plan Sponsor for purposes of Plan Administration Functions,
provided that the Plan Sponsor has provided to Business Associate: (a) a copy of Plan Sponsor's certification
to the applicable Plan under 45 CFR 164.504(f)(2) relating to the required amendment of such Plan's plan
documents (the "Certification"), and (b) a list of employees of or descriptions of positions with Plan Sponsor
who are authorized in accordance with the applicable plan documents to receive PHI from the Business
Associate in connection with Plan Administration Functions of such Plan.
2.1.2.2. Use of PHI for Management, Administration, and Legal
Responsibilities. Business Associate is permitted to use PHI if necessary for the proper management and
administration of Business Associate or to carry out its legal responsibilities.
2.1.2.3. Disclosure of PHI For Management, Administration, and Legal
Responsibilities. Business Associate is permitted to disclose PHI if necessary for the proper management and
administration of Business Associate, or to carry out its legal responsibilities, provided that the disclosure is
required by law, or Business Associate obtains reasonable assurances from the person to whom the PHI is
disclosed that it will be held confidentially and used or further disclosed only as required by law or for the
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purposes for which it was disclosed to the person, the person will use appropriate safeguards to prevent use or
disclosure of the information, and the person will notify Business Associate immediately of any instance of
which it is aware in which the confidentiality of the PHI has been breached.
2.1.2.4. Data Aggregation Services. Business Associate is permitted to use or
disclose PHI to provide data aggregation services, as that term is defined by 45 CFR § 164.501, relating to the
health care operations of a Plan.
2.1.2.5. De -identification. Business Associate is permitted to use PHI to de -
identify the information in accordance with 45 CFR § 164.514. Once de -identified, the information is no longer
PHI or subject to the terms of this Agreement and may be used or disclosed by the Business Associate as long
as the information does not include a key or other mechanism that would enable the information to be identified.
2.1.3. Further Uses Prohibited. Except as provided in Sections 2.1.1 and Section 2.1.2,
Business Associate is prohibited from further using or disclosing any information received from the Plan, or
from any other Business Associate of the Plan, for any commercial purposes of Business Associate. Business
Associate shall not use or disclose Genetic Information for underwriting purposes in violation of the HIPAA
Rules.
2.2. Minimum Necessary. Business Associate shall only request, use, and disclose the minimum
amount of PHI necessary to accomplish the purposes of the request, use, or disclosure. Business Associate and
Plan Sponsor acknowledge that the phrase "minimum necessary" shall be interpreted in accordance with the
HIPAA Rules.
2.3. Prohibited, Unlawful, or Unauthorized Use and Disclosure of PHI. Business Associate
shall not use or further disclose any PHI received from, or created or received on behalf of, a Plan, in a manner
that would violate the requirements of the Privacy Rule if done by the Plan.
2.4. Required Safeguards. Business Associate will develop, implement, maintain, and use
appropriate safeguards to prevent use or disclosure of PHI received from, or created or received on behalf of,
a Plan or other than as provided for in this Agreement or as required by law, including adopting policies and
procedures regarding the safeguarding of PHI; and providing training to relevant employees on such policies
and procedures to prevent the improper use or disclosure of PHI. To the extent Business Associate will carry
out one or more of Plan Sponsor's obligations under the Privacy Rule, the Business Associate will comply with
the requirements of the Privacy Rules that apply to the Plan Sponsor in the performance of such obligations.
2.5. Mitigation of Improper Uses or Disclosures. Business Associate shall mitigate, to the extent
practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business
Associate in violation of the requirements of this Agreement.
2,6. Reporting of Unauthorized Uses and Disclosures. Business Associate shall promptly
report in writing to the applicable Plan any use or disclosure of PHI not provided for under this Agreement, of
which Business Associate becomes aware.
2.7. Security Rule.
2.7.1. Security Safeguards. Business Associate agrees to implement administrative,
physical, and technical safeguards set forth in the Security Rule that reasonably and appropriately protect the
confidentiality, integrity, and availability of the Electronic PHI that Business Associate creates, receives,
maintains, or transmits on behalf of any Plan or Plan Sponsor.
2.7.2. Security Incidents. Business Associate agrees to report to the Plans and Plan
Sponsor any unauthorized access, use, disclosure, modification, or destruction of information or interference
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1EXHIBIT -6 _PAGE �OF
with information system operations which affect Electronic PHI created, received, maintained, or transmitted
on behalf of any Plan of which Business Associate becomes aware. Business Associate agrees to also report
to the Plan and Plan Sponsor any attempted unauthorized access affecting Electronic PHI created, received,
maintained, or transmitted on behalf of any Plan of which Business Associate becomes aware; provided that
Business Associate detennines that the attempted access was material and credible.
2.8. Breach Notifications. Business Associate agrees to notify the applicable Plan and the Plan
Sponsor of any Breach of Unsecured PHI within 10 days from the date of discovery.
2.8.1. Information About Breach. Business Associate shall provide a report to the Plan
within 15 days of discovery of a Breach except when despite all reasonable efforts by Business Associate to
obtain the information required, circumstances beyond the control of the Business Associate necessitate
additional time. Under such circumstances Business Associate shall provide to the Plan the required
information as soon as possible and without unreasonable delay, but in no event later than 30 calendar days
from the date of discovery of a Breach. A Breach will be treated as discovered in accordance with 45 CFR
§ 164.4 10. The Business Associate's report shall include: (i) the date of the Breach; (ii) the date of discovery
of the Breach; (iii) a list of each individual whose Unsecured PHI has been or is reasonably believed to have
been used, accessed, acquired, or disclosed during the Breach; (iv) a description of the type of Unsecured PHI
involved; (v) the identity of who made the non -permitted use or disclosure and who received the non -permitted
disclosure (if known); and (vi) any other details necessary to complete an assessment of whether the PHI has
been compromised.
2.8.2. Notification to Individual and Others. Unless otherwise agreed between the
Plan Sponsor and Business Associate, the Plan shall be responsible to provide notification to individuals whose
Unsecured PHI has been disclosed, as well as the Secretary of Health and Human Services and the media, as
required by the HIPAA Rules.
2.8.3. Investigation and New Procedures. Business Associate agrees to investigate the
Breach and to establish procedures to mitigate losses and protect against future Breaches, and to provide a
description of these procedures and the specific findings of the investigation to the Plan in the time and manner
reasonably requested by the Plan.
2.9. Plan Participant Requests. The Plans, Plan Sponsor and Business Associate acknowledge
that Plan participants have certain rights under the Privacy Rule to access, amend and receive an accounting of
certain disclosures of their PHI. Business Associate further understands that the Plans have developed specific
policies and procedures to be followed for Plan participants who make such requests as an exercise of their
rights under the Privacy Rule. A request by a Plan participant or such participant's personal representative
made in accordance with such policies and procedures to access, amend or receive an accounting of disclosures
of the participant's PHI is referred to herein as a "Formal HIPAA Request."
2.9.1. Access to PHI. Within 30 days of a Plan's request on behalf of an individual,
Business Associate agrees to make available to the Plan any relevant PHI in a Designated Record Set received
from, or created or received on behalf of the Plan in accordance with the Privacy Rule. If Business Associate
receives, directly or indirectly, a request from an individual requesting PHI, Business Associate shall notify the
Plan in writing promptly of such request no later than 10 business days of receiving such request. If a Plan
requests an electronic copy of PHI that is maintained electronically in a Designated Record Set in the Business
Associate's custody or control, Business Associate will provide an electronic copy in the form and format
specified by the Plan if it is readily producible in such format; if it is not readily producible in such format,
Business Associate will work with the Plan to determine an alternative form and format that enables the Plan
to meet its electronic access obligations under 45 CFR § 164.524.
2.9.2. Amendment of PHI. Within 30 days of a Plan's request, Business Associate
agrees to make available to the Plan any relevant PHI in a Designated Record Set received from, or created or
13
EXHIBIT �_ PAGE __\�_0F_\tj_j
received on behalf of, the Plan so the Plan may fulfill its obligations to amend such PHI pursuant to the Privacy
Rule. Business Associate shall incorporate any amendments to PHI into any and all PHI Business Associate
maintains. If Business Associate receives, directly or indirectly, a request from an individual for an amendment
to PHI, Business Associate shall notify the Plan in writing promptly of such request no later than 10 business
days of receiving such request. Each Plan shall have full discretion to determine whether the requested
amendment shall occur.
2.9.3. Accounting of Disclosures. Business Associate shall maintain, beginning as of
the date Business Associate first receives PHI from a Plan or the Plan Sponsor, an accounting of those
disclosures of PHI it receives from, or creates or receives on behalf of the Plans which are not excepted from
disclosure accounting under the Privacy Rule. Within 30 days of a Plan's request, Business Associate shall
make available to such Plan, the information required to provide an accounting of disclosures in accordance
with 45 CFR § 164.528. If Business Associate receives, directly or indirectly, a request from an individual
requesting an accounting of disclosures of PHI, Business Associate shall notify the applicable Plan in writing
promptly of such request no later than 10 business days of receiving such a request. Business Associate shall
provide such an accounting based on an individual's Formal HIPAA Request to the Plan and the Plan shall
have full discretion to determine whether the requested accounting shall be provided to the requesting
individual. Business Associate will maintain the disclosure information for at least 6 years following the date
of the accountable disclosure to which the disclosure information relates.
2.10. Restrictions and Confidential Communications. Business Associate shall, upon notice
from a Plan in accordance with Section 3.3, accommodate any restriction to the use or disclosure of PHI and
any request for confidential communications to which such Plan has agreed in accordance with the Privacy
Rule.
2.11. Subcontractors. Business Associate will require each of its agents, including any
subcontractor (if permitted under the applicable Services Arrangement), to whom it provides PHI received
a from, or created or received on behalf of, Plan to agree, in a written agreement with Business Associate, to
comply with the Security Rule, and to agree to all of the same restrictions and conditions contained in this
Agreement or the HIPAA Rules that apply to Business Associate with respect to such information.
2.12. Audit. Business Associate shall make its internal practices, books, and records relating to
the use and disclosure of PHI received from, or created or received on behalf of, the Plans available to the
Secretary of Health and Human Services upon request for purposes of determining compliance by the Plans
with the HIPAA Rules.
2,13. Enforcement. Business Associate acknowledges that it is subject to civil and criminal
enforcement for failure to comply with the HIPAA Rules.
3. OBLIGATIONS OF COVERED ENTITY
3.1. Notice of Privacy Practices. The Plans shall notify Business Associate of any limitations in
its notice of privacy practices, to the extent such limitations may affect the Business Associate's use or
disclosure of PHI in accordance with 45 CFR 164.520, as well as any changes to such notice.
3.2. Revocation of Permission. Each Plan shall provide Business Associate with any changes in,
or revocation of, permission by any individual to use or disclose PHI, if such changes affect Business
Associate's permitted or required uses and disclosures with respect to such Plan.
3.3. Notice of Restrictions and Confidential Communications. Each Plan shall notify Business
Associate of any restriction on the use or disclosure of PHI that such Plan has agreed to in accordance with
45 CFR § 164.522. The applicable Plan shall notify Business Associate of any restriction on the use or
14
IEXHIBIT -8_ PAGE �OF L LJ_J
disclosure of PHI and any request for confidential communications to which, in accordance with the Privacy
Rule, such Plan has agreed.
3.4. Permissible Requests By the Plan. Except as provided in Section 2.1, the Plans shall not
request that Business Associate use or disclose PHI in any manner that would not be permissible under the
Privacy Rule if done by the Covered Entity.
4. AMENDMENT AND TERMINATION
4. L Term and Termination. The Term of this Agreement shall be effective as of the date this
Agreement is signed, and shall terminate when all of the PHI provided by the Plan to Business Associate, or
created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered
Entity, or, if it is infeasible to return or destroy PHI, protections are extended to such infonnation, in accordance
with Section 4.3.
4.2. Termination for Violation of Agreement. Without limiting the rights of the parties under
the Services Arrangement, the applicable Plan(s) will have the right to terminate this Agreement and the
Services Arrangement if Business Associate has engaged in an activity or practice that constitutes a material
breach or violation of Business Associate's obligations regarding PHI under this Agreement and, on notice of
such material breach or violation from such Plan(s) or Plan Sponsor, fails to take reasonable and diligent steps
to cure the breach or end the violation. The applicable Plan(s) will follow the notice of termination procedures
(if any) applicable to the Services Arrangement. Notwithstanding the termination of this Agreement, Business
Associate shall continue to comply with Section 4.3 hereof after termination of this Agreement.
4.3. Return of PHI. At termination of this Agreement or the Services Arrangement, whichever
shall be first to occur, Business Associate shall return to the Plans all PHI received from, or created or received
on behalf of, such Plans that Business Associate maintains in any form and shall retain no copies of such
information. This provision shall also apply to PHI that is in the possession of any Subcontractor of Business
Associate. Further, Business Associate shall require any such Subcontractor to certify to Business Associate
that it has returned or destroyed all such information. If such return is not feasible, Business Associate shall
notify the applicable Plan(s) thereof and Business Associate shall destroy such PHI and/or extend the
protections of this Agreement to such PHI retained by Business Associate and limit further uses and disclosures
to those purposes that make the return or destruction of the information infeasible.
5. MISCELLANEOUS PROVISIONS
5.1. Third -Party Beneficiary. No individual or entity is intended to be a third -party beneficiary
to this Agreement.
5.2. Severability. If any provisions of this Agreement shall be held by a court of competent
jurisdiction to be no longer required by the HIPAA Rules, the parties shall exercise their best efforts to detennine
whether such provision shall be retained, replaced, or modified.
5.3. Procedures. The parties shall comply with procedures mutually agreed upon by the parties to
facilitate the Plans' compliance with the HIPAA Rules, including procedures for employee sanctions and
procedures designed to mitigate the harmful effects of any improper use or disclosure of the PHI of any Plans.
5.4. Choice of Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the state of Ohio, except to the extent federal law applies.
5.5. Headings. The headings and subheadings of the Agreement have been inserted for
convenience of reference only and shall not affect the construction of the provisions of the Agreement.
IS _
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5.6. Cooperation. The parties shall agree to cooperate and to comply with procedures mutually
agreed upon to facilitate compliance by the Plans with the HIPAA Rules, including procedures designed to
mitigate the harmful effects of any improper use or disclosure of the Plans' PHI.
5.7. Notice. All notices, requests, demands, approvals, and other communications required or
permitted by this Agreement shall be in writing and sent by certified mail or by personal delivery. Such notice
shall be deemed given on any date of delivery by the United States Postal Service. Any notice shall be sent to
the following address (or such subsequent address provided by the applicable party):
5.7.1. If to a Plan or the Plan Sponsor:
5.7.2. If to Business Associate:
HORAN Associates, Inc.
Privacy Officer
4990 E Galbraith Rd
Cincinnati OH 45236
5.8. Conflict. In the event of any conflict between the provisions of the Services Arrangement and
this Agreement, the terms of this Agreement shall govern to the extent necessary to assure the Plans'
compliance with the HIPAA Rules.
IN WITNESS WHEREOF, the undersigned, having full authority to bind their respective principals,
have executed this Agreement as of this _ day of , 201_.
City of Richmond, Indiana, on behalf of the plan City of Richmond, Indiana, on behalf of the
group
HORAN Associates, Inc.
By:—
Title: —
Name:
Date:
1�
O
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