12-R-96 Interlocal Agreement for EMS Billing Services with the City of Alamo HeightsRESOLUTION NO. 12-R-96
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AN INTERLOCAL AGREEMENT
FOR EMS BILLING SERVICES WITH THE CITY OF ALAMO
HEIGHTS, AND OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City") has recommended that the
City enter into an interlocal agreement to provide EMS Billing Services for the City of Alamo
Heights, a political subdivision of the State of Texas (the "Alamo Heights"); and
WHEREAS, the City Council has determined that it is in the best interest of the City to
contract with Alamo Heights pursuant to the Interlocal Agreement for EMS Billing Services
attached hereto as Exhibit A (the "Agreement").
THAT:
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Alamo Heights in substantially the form set forth on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or puts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
50234811.1
EXHIBIT A
INTERLOCAL AGREEMENT FOR
EMS BILLING SERVICES
soz3as~ i.~ A-1
PASSED AND ADOPTED, this 16th day of October, 2012.
CITY OF S HERTZ, TEXAS
1 ~~
Mayor Pro Tem
ATTEST:
_ tt-
secretary
(CITY SEAL)
50234811.1
INTERLOCAL AGREEMENT FOR EMS BILLING
STATE OF TEXAS §
COUNTY OF BEXAR §
This Interlocal Agreement for EMS Billing (the "Agreement") is entered into as of the
date of the last signature. (the "Effective fate") by and between the CITY OF ALAMO
HEIGHTS,. TEXAS ("Alamo Heights") and the CITY OF SCHERTZ, TEXAS ("Schertz'",
and collectively wish Alamo Heights, the "Parties" and. each a "Party").
WHEREAS, Section 791.001 et seq. of the Texas Government Code authorizes
municipalities to enter Ihto Interlocal agreements for the performance of governmental
functions and services, and it is fhe desire of the named cities io enter into such an
agreement; and
WHEREAS,. Alamo Heights and Schertz each perform EMS services; and
WHEREAS, Alamo Heights desires to engage Schertz to perform EMS billing
services for Alamo Heights, and Schertz desires to accept such engagement upon the
terms and conditions contained herein.
NOW THEREFORE, forthe covenants and conditions set forth herein and forother
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties agree as follows:
I. TERM
1. Alamo Heights hereby engages Schertz to perform EMS billing services for Alamo
Heights commencing on October 1, 2012 and continuing through September 30, 2013
("Term").
2. This Agreement shall automatically renew on October 1, 2013 and each October 1s'
after that until September 30, 2017 (each a "Renewal Period") unless either Party
furnishes at least ninety (90) days written notice to the other Party of its intention to
terminate this Agreement.
II. RESPONSIBILITIES OF SCHERTZ
1. During the term of this Agreement, Schertz agrees to provide EMS billing services to
Alamo Heights for all ambulance responses that Alamo Heights has charges for.
2. Schertzagrees to process claims as soon as all necessary information fs received
__.____ .______fcom~lamo~leights~nd~rnm~he_customer~r~hesustomer'sagent-who receiued#he
50543908.2
EMS service. This information includes, but is not limited to, the completed electronic.
Patient Care Report, insurance information, hospital face sheets, and traffic accident
reports.
3. Schertz will work with Alamo Height's electronic charting vendor to make sure that
all charts are received as soon as possible after theyare completed. Schertz agrees to
use commercially reasonable efforts to work with khe charting vendor to arrange for the
completed electronic charts to be sent to Schertz no later than two (2) business days
after the chart is completed by Alamo Heights.
4. Schertzwill work with Alamo Heights to establish a dispatch. protocol system agreed
to by the Alamo Heights Fire Chief and/or his designee in conjunction with the Alamo
Heights Police Chief and/or his designee. that is necessary for properly establishing
correct billing levels..
5. Schertz agrees to utilize the services of a mutually agreed upon electronic data
exchange clearinghouse to the extent possible to electronically process all insurance
claims including those of governmental providers.
6. Schertz shall use: generally acceptable medical billing practices in the processing of
all Alamo Heights claims. This includes following the recommendations onambulance
billing from the American Ambulance Association and utilizing cerkified Ambulance
Coders on each claim.
7. Schertz will randomly audit claims to governmental payers for medical necessity and
appropriate coding based upon such necessity and the care provided. Audit Claims
Reports will be provided to the Alamo Heights Fire Chief within ten (10) days of the
audit.
8. Schertz will maintain any and all Alamo Heights patient records in electronic format
only. These records will be available to Alamo Heights at any time during normal
business hours.
9. Schertz will annually perform EMS Continuing Education Training forAlamo Heights
EMS personnel that includes medical necessity, proper documentation, HIPAA and
patient privacy, and Patient Care Report completeness. Training schedules will be
established to prohibit overtime/compensation time for Alamo Heights Fire personnel.
10. Schertz will, to the extent possible, close ouk all Alamo Heights billing activities for a
calendar month by the 10~' of each following month. Upon this closing, Schertz will
electronically deliver a set of closing reports that includes listing of charges, credits and
claims outstanding.
11.
questions or concerns arise with these policies, Schertz will consult with the Alamo
50543908.2
Heights Fire Chief, or his designee, to resolve these questions. Schertz reserves the
right to not follow any policy that Schertz believes is non-compliant with Federal or
Slate laws, regulations or guidelines.
12. Schertz agrees to rigorously protect the privacy and confidentiality of all medical
records and information contained In the billing records furnished to Schertz by Alamo
Heights for the services to be provided hereunder. Schertz shall comply with all federal
and state laws and regulations applicable to medical records and information.
13, Schertz agrees, to the extent permitted by law, to indemnify Alamo Heights for the
actions of its employees, but only to fhe extent directly related to this Agreement.
III.. RESPONSIBILITIES OF ALAMO HEIGHTS
1. Alamo Heights agrees to provide all patient care records and billing information to
Schertz as soon as possible after the service is provided, Alamo Heights will work with
Schertz to develop processes for the delivery of non-electronic records to include
hospital face sheets, insurance cards,. and law enforcement accident reports.
Alamo Heights agrees to provide a charge list to Schertz for all services and
supplies for which Alamo Heights desires billing to be provided. Alamo Heights will
provide any changes to these charges to Schertz with a minimum of shirty (30) days
notice before they become effective.
3. Alamo Heights agrees to utilize "close call rules" as defined by S,T.R.A.C, and
patient care report quality assurance processes to make their patient care reports as
complete as possible. This includes proper addresses, social security information,
insurance information, workers compensation information, patient signatures
authorizing billing of their insurance, and completion of certain interventions that affect
the level of service that can. be billed.
4. Alamo Heights agrees to notify Schertz of all funds received directly to Alamo
Heights as a result of the. billing, activities of Schertz for proper accounting of these
payments. Alamo Heights also agrees to designate a person or people at Alamo
Heights that will take payments from customers in person. Schertz will train these
individuals on how to account for these payments with Schertz.
5, Alamo Heights agrees that it maintains full and final authority on compliance in
billing practices in regards to its Centers for Medicaid and Medicare Services (CMS)
National Provider Identification Number, Medicare provider number and Medicaid
provider number. Alamo Heights will have full access to all of its records maintained by
Schertz to accomplish this compliance.
6. Alamo
a Custodian of Records for all EMS and Billing Records.
50543008.2 3
7. Alamo Heights agrees to work with Schertz to establish processes for the receipt of
law enforcement traffic accident reports.
8. On or before the last day of a month, Alamo Heights will report to Scherz the
number of EMS responses and patient care records that should have been received
that month. If patient care records are missing, Alamo Heights will work with Scherz to
locate these reports and get them completed as soon as possible.
9. Alamo Heights will receive monthly reports to include charges processed, credits
received, contractual allowables, and all outstanding accounts receivables. Alamo
Heights can request additional reports. If the requested reports are available in the
Scheriz billing system, they will be provided bythe next business day at the latest. If it
is a custom report that is not available, Alamo Heights agrees to pay the cost of having
this report built. If the report will. be beneficial to both Alamo Heights and Scherz and
Scherz approves the charge, this cost will be split between the two Parties.
10. Alamo Heights agrees, to the extent permitted by law, to indemnify Schertz for
actions taken by Schertz when following the policies, procedures and duly
communicated directives of Alamo Heights.
IV. CONSIDERATION
For its performances of such billing services, Alamo. Heights shall pay to Scheriz eight
percent (8%) of the total collections received. Said collection fee shal6 be deducted by
Schertz from its monthly payment to Alamo Heights of any funds collected by Scheriz. If
the amount collected by Scheriz for Alamo Heights does not exceed the monthly fee,
Scheriz will invoice Alamo Heights for the balance of the fee. Scheriz shall remit its
collections for Alamo Heights EMS monthly within five (5) days after the end of each
calendar month.. Alamo Heights will pay any invoices within twenty (20) days of receipt.
V. TERMINATION
If Alamo Heights or Schertz determines it no longer wants to maintain this
Agreement at the end of the initial Term or any subsequent Renewal Period, the Party
wishing to terminate this Agreement shall provide written notice of the intent to
terminate this Agreement not less than ninety (90) days from the end of the applicable
Term or Renewal Period.
2. If at any time during this Agreement, either Party determines that the other Party is
operating In anon-compliant manner, the concerned Party shall give written notice of
the issue(s) of concern. The other Party shall have up to thirty (30) days to either
correct this concern or to provide written justification and authority to be operating in the
manner that is concerning. If this resolution does not abate the concerns of the first
50543908:2
Party, that Party may termihate this Agreement by providing at least ten (10) business
days written notice.
3. If and when this Agreement is terminated for any reason, Schertz agrees to provide
all Alamo Heights billing records in its possession to Alamo Heights electronicallywithin
ten (10) business days of the termination date.
4. If this Agreement is terminated upon the end of the Term or a Renewal Period,
Schertz will complete all billing processes in progress as of the last day of this
Agreement, This work will be continued for up to thirty (30) days after this Agreement is
over. Alamo Heights agrees to compensate Schertz for this activity to accordance with
Section IV of this Agreement.
VI. BINDING EFFECT; BENEFITING PARTIES
This Agreement shall bind and benefit the respective Parties and their legal
successors, but shall not otherwise be assignable, in whole or in part, by either Party
without first obtaining the written consent of the other Party.
2. This Agreement inures to the benefit of and obligates only the Parties. No term or
provision of this Agreement shall benefit or obligate any person or entity not a Party to
the Agreement. The Parties shall cooperate fully in opposing any attempt by any third
person or entity to claim any benefit, protection, release, or other consideration under
this Agreement.
VII. GOVERNMENTAL FUNCTIONS; LIABILITY;
NO WAIVER OF IMMUNITY OR DEFENSES
1. Notwithstanding any provision to the contrary herein, this Agreement is a contract
for and with respect to the performance of governmental functions by governmental
entities.
2. The services provided for herein are governmental functions, and Schertz and
Alamo Heights shall be engaged in the conduct of a governmental function while
providing and/or performing any service pursuant to this Agreement.
3. The relationship of Alamo Heights and Schertz shall, with respect to that part of any
service or function undertaken as a result of or pursuant to this Agreement, be chat of
independent contractors.
4. Nothing contained herein shall be deemed or construed by the Parties, or by any
third party, as creating the relationship of principal and agent, partners, Joint venturers,
or any other similar such relationship between the Parties.
50543900.2
5. Each Party reserves and does not waive any defense available to it ai law or in
equity as to any claim or cause of action whatsoever that may arise or result from or in
connection with this Agreement. This Agreement shall not be interpreted nor construed
to give to any third party the right to any claim or cause of action, and neither Schertz
nor Alamo Heights shall be held legally liable for any claim or cause of action arising
pursuant to or in connection with this Agreementexcepfasspecifically provided herein
or by law.
6. Neither Party waives. or relinquishes any immunity or defense on behalf of itself, its
trustees, councilmembers, officers, employees, and agents as a result ofthe execution
of this Agreement and the performance of the covenants and agreements contained
herein.
VIII. NOTICES
All correspondence and communications concerning this Agreement shall be directed
to:
Schertz: City of Schertz
1400 Schertz Parkway
Scheriz, Texas 78154
Attehtion: Cily Manager
With a copy to: Fulbright & Jaworski L.L.P.
300 ConventStreet, Suite 2100
San Antonio, Texas 78205
Attention: Katherine A. Tapley
Alamo Heights: City of Alamo- Heights
6116 Broadway
Alamo Heights, Texas 78209
Attention: Clty Manager
Notices required hereunder shall be hand-delivered or sent by prepaid certified mail,
return receipt requested.
IX. AUTHORIZATION
Each Parly represents to the other Party that this Agreement has been duly authorized
by that Party's governing body.
50543908.2
X. SEVERABILITY
If any portion of this Agreement shall be declared illegal or held unenforceable for any
reason, the remaining portions hereof shall continue in full force and effect to the extent
that it does not destroy the benefit of the bargain.
XI. ENTIRE AGREEMENT; AMENDMENTS
This Agreement represents the complete understanding of Alamo Heights and Schertz with
respectto the matters described herein and supersedes any prior understanding orwritten
or oral agreement regarding the subject matter hereof, and this Agreement may not be
amended or altered without the written consent of both the Parties.
XII. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Texas without regard to
choice of law principles that would require the application of the law of anotherjurisdiction,
and venue for any legal proceedings hereunder shall be in the state courts of Bexar
County, Texas.
(Signatures on the following page J
50543908.2
SIGNATURE PAGE TO
LNTERLOCAL AGREEMENT FOR EMS BILLING
In witness whereof, the undersigned Parkes have executed this Agreement on the date
specified to be effective as of the Effective Date.
CITY OF SCHERTZ
By::
Name: Jo n C. Kessel
Title: City Manager
Date: I O ~ 18 ~ 12
CITY OF ALAMO HEIGHTS
By: ~ ( I (~ I)~
Name: J. Mar< Browne
Title: ity Man gger
Date: I l~l l S ~[ DI ~)
50643900.2 p
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement ("Agreement") dated October 17, 2012 (the "Effecfive
Date"), is entered into by and between the City of Alamo Heights, Texas ("City") and the City of
Schenc~, Texas (`Business Associate"), each a "Party" and collectively, the "Parties".
WHEREAS, the City and Business Associate have entered into, or are entering into, or may
subsequently enter into, agreements or other documented arrangements (wllectively, the 'Business
Arrangements") pursuant to which Business Associate may provide products and/or services for the City
that require Business Associate to access, create and use health information that is protected by state
and/or federal law; and
WHEREAS, pursuant to the Administrative Simplification provisions of the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA"), the U.S. Department of Health & Human
Services ("fIIiS") promulgated the Standazds for Privacy of Individually Identifiable Health Information
(the "Privacy Standards"), at 45 C.F.R Parts 160 and 164, requiring certain individuals and entities
subject to the Privacy Standards (each a "Covered Entit}~', or collectively, "Covered Entities") to protect
the privacy of certain individually identifiable health information (`Protected Health Information", or
"PHI"); and
WHEREAS, pursuant to HIPAA, HHS has issued the Security Standazds (the "Security
Standazds"), at 45 C.F.R. Parts 160, 162 and 164, for the protection of electronic protected health
information ("EPHP'); and
WHEREAS, in order to protect the privacy and security of PHI, including EPHI, created or
maintained by or on behalf of the Covered Entity, the Privacy Standazds and Security Standards require a
Covered Entity to enter into a "business associate agreement" with certain individuals and entities
providing services for or on behalf of the Covered Entity if such services require the use or disclosure of
PHI or EPHI; and
WHEREAS, on February 17, 2009, the federal Health Information Technology for Economic
and Clinical Health Act was signed into law (the "HTfECH Act"), and the HiTECH Act imposes certain
privacy and security obligations on Covered Entities in addition to the obligations created by the Privacy
Standards and Security Standards; and
WHEREAS, the HTTECH Act revises many of the requirements of the Privacy Standazds and
Security Standards concerning the confidentiality of PHI and EPHI, including extending certain HIPAA
and HITECH Act requirements directly to business associates; and
WHEREAS, the HITECH Act requires that certain of its provisions be included in business
associate agreements, and that certain requirements of the Privacy Standards be imposed contractually
upon Covered Entities as well as business associates; and
WHEREAS, Business Associate and City desire to enter into this Business Associate
Agreement;
NOW THEREFORE, in consideration of the mutual promises set forth in this Agreement and
the Business Arrangements, and other good and valuable consideration, the sufficiency and receipt of
which are hereby severally acknowledged, the Parties agree as follows:
1. Business Associate Oblieations. Business Associate may receive from City, or create or receive
on behalf of City, health information that is protected under applicable state and/or federal law, including
sossaso~.a Page 1 of 8
without lunitation, PHI and EPHI. All capitalized terms not othernise defined in this Agreement shall
have the meanings set forth in the Privacy Standards, Security Standards or the HITECH Act, as
applicable (collecfively referred to hereinafter as the "Confidentiality Requirements"), All references to
PHI herein shall be conshued to include EPHI. Business Associate agrees not to use or disclose (or
permit the use or disclosure of) PHI in a manner that would violate the Confidentiality Requirements if
the PHI were used or disclosed by City in the same manner.
2. Use of PHI. Except as otherwise required by law, Business Associate shall use PHI in
compliance with 45 C.F.R. § 164.504(e). Furthermore, Business Associate shall use PHI (i) solely foe the
City's benefit and only for the purpose of performing services for the City as such services are defined in
Business Arrangements, and (ii) as necessary for the proper management and administrafion of the
Business Associate or to carry out its legal responsibilifies, provided that such uses are permitted under
federal and state law. The City shall retain all rights in the PHI not granted herein.
3. Disclosure of Pffi. Subject to any limitations in this Agreement, Business Associate may
disclose PHI to any third party persons or entities as necessary to perform its obligations under the
Business Arrangement and as permitted or required by applicable federal or state law. Further, Business
Associate may disclose PHI for the proper management and administration of the Business Associate,
provided that (i) such disclosures are required by law, or (ii) Business Associate: (a) obtains reasonable
assurances from any third party to whom the information is disclosed that it will be held wnfidential and
further used and disclosed only as required by law or for the purpose for which it was disclosed to the
third party; (b) requires the third party to agree to immediately notify Business Associate of any instances
of which it is aware that PHI is being used or disclosed for a purpose that is not otherwise provided for in
this Agreement or for a purpose not expressly permitted by the Confidentiality Requirements.
Additionally, Business Associate shall ensure that all disclosures of PHI by Business Associate and the
third party comply with the principle of "minimum necessary use and disclosure," i.e., only the minimum
PHI that is necessary to accomplish the intended purpose may be disclosed; provided further, Business
Associate shall comply tivith Section 13405(6) of the HITECH Act, and any regulations or guidance
issued by HHS concerning such provision, regarding the minimum necessary standazd and the use and
disclostue (if applicable) of Limited Data Sets. If Business Associate discloses PHI received from the
City, or created or received by Business Associate on behalf of the City, to agents, including a
subcontractor (collectively, "Recipients"), Business Associate shall require Recipients to agree in writing
to the same restrictions and conditions that apply to the Business Associate under this Agreement.
Business Associate shall report to the City any use or disclosure of PHI not permitted by this Agreement,
of which it becomes aware, such report to be made within ten (10) business days of the Business
Associate becoming aware of such use oz disclosure. In addition to Business Associate's obligations
under Section 9, Business Associate agrees to mitigate, to the extent practical and unless otherwise
requested by the City in writing, any harmful effect that is known to Business Associate and is the result
of a use or disclosure of PHI by Business Associate or Recipients in violation of this Agreement.
4. Individual Rights Reearding Designated Record Sets. If Business Associate maintains a
Designated Record Set on behalf of the City, Business Associate shall (i) provide access to, and permit
inspection and copying of, PHI by the City or, as directed by the City, an individual who is the subject of
the PHI under conditions and limitations required under 45 CFR §164.524, as it may be amended from
time to time, and (ii) amend PHI maintained by Business Associate as requested by the City. Business
Associate shall respond to any request from the City for access by an individual within five (5) days of
such request and shall make any amendment requested by the City within ten (] 0) days of such request
Any information requested under this Section 4 shall be provided in the form or format requested, if it is
readily producible in such form or format. Business Associate may chazge a reasonable fee based upon
the Business's labor costs in responding to a request for electronic information (or a cost-based fee for the
production o£non-electronic media copies). The City shall determine whether a denial is appropriate or
an exception applies. Business Associate shall notify the City within five (5) days of receipt of any
sossaso9.a Page 2 of 8
request for access or amendment by an individual. The City shall determine whether to grant or deny any
access or amendment requested by the individual. Business Associate shall have a process in place for
requests for amendments and for appending such requests to the Designated Record Set, as requested by
the City.
5. Accountine of Disclosures. Business Associate shall make available to the City in response to a
request from an individual, information required for an accounting of disclosures of PHI with respect to
the individual in accordance with 45 CFR § 164.528, as amended by Section 13405(c) ofthe HITECH Act
and any related regulations or guidance issued by HHS in accordance with such provision. Business
Associate shall provide to the City such information necessary to provide an accounting within thirty (30)
days of the City's request or such shorter time as may be required by state or federal law. Such accounting
must be provided without cost to the individual or to the City if it is the first accounting requested by an
individual within any twelve (12) month period. For subsequent accountings within a twelve (12) month
period, Business Associate may charge a reasonable fee based upon the Business's labor costs in
responding to a request for electronic information (or a cost-based fee for the producfion ofnon-electronic
media copies) so long as Business Associate informs the City and the City informs the individual in
advance of the fee, and the individual is afforded an opportunity to withdraw or modify the request, Such
accounting obligations shall survive te~~nination of this Agreement and shall continue as long as Business
Associate maintains PHI.
6. Withdrawal of Authorization. If the use or disclosure of PHI in this Agreement is based upon
an individual's specific authorization for the use of his or her PHI, and (i) the individual revokes such
authorization in writing, (ii) the effective date of such authorization has expired, or (iii) the consent or
authorization is found to be defective in any manner Yhat renders it invalid, Business Associate agrees, if
it has notice of such revocation or invalidity, to cease the use and disclosure of any such individual's PHI
except to the extent it has relied on such use or disclosure, or where an exception under the
Confidentiality Requirements expressly applies.
7. Records and Audit. Business Associate shall make available to the United States Depar6ment of
Health and Human Services or its agents, its internal pracfices, books, and records relating to the use and
disclosure of PHI received from, created, or received by Business Associate on behalf of the City for the
purpose of determining the City's compliance with the Co~dentiality Requirements or any other health
oversight agency, in a time and manner designated by the Secrotary. Except to the extent prohibited by
law, Business Associate agrees to notify the City immediately upon receipt by Business Associate of any
and all requests by or on behalf of any and all federal, state and local government authorities served upon
Business Associate for PHI.
8. Implementation of Security Standards: Notice of Security Incidents. Business Associate will
use appropriate safeguards to prevent the use or disclosure of PHI other than as expressly permitted under
this Agreement. Business Associate will implement administrative, physical and technical safeguards that
reasonably and appropriately protect the confidentiality, integrity and availability of the PHI that it
creates, receives, maintains or transmits on behalf of the City. Business Associate acknowledges that the
HITECH Act requires Business Associate to comply with 45 C.F.R. §§ 164.308, ]64,310, 164.312 and
164.3 ] 6 as if Business Associate were a Covered Entity, and Business Associate agrees to comply with
these provisions of the Security Standards and all additional security provisions of the HPPECH Act.
Furthermore, to the extent feasible, Business Associate will use commercially reasonable efforts to ensure
that the technology safeguazds used by Business Associate to secure PHI will render such PHI unusable,
unreadable and indecipherable to individuals unauthorized to acquire or otherwise have access to such
PHI in accordance with HHS Guidance published at 74 Federal Register 19006 (April 17, 2009), or such
later regulations or guidance promulgated by HHS or issued by the National Institute for Standazds and
Technology ("NIST") concerning the protection of identifiable data. such as PHI. Lastly, Business
Associate will promptly report to the City any successful Security Incident of which it becomes aware.
50554809.4 Page 3 of 8
At the request of the City, Business Associate shall identify: the date of the Security Incident, the scope
of the Security Incident, the Business Associate's response to the Security Incident and the identification
of the Party responsible for causing the Security Incident, if known.
9. Data Breach Notification and Mitigation.
9.1 HIPAA Data Breach Notification and Miti,ag_tion. Business Associate agrees to
irplement reasonable systems for the discovery and p~nmpt reporting of any "breach" of
"unsecured PHP' as those terms are defined by 45 C.F.R. §164.402 (hereinafter a "IlIPAA
Breach"). The Parties acknowledge and agree that 45 C.F.R. § 164.404, as described below in this
Section 9.1, governs the determination of the date of a HIPAA Breach. Tn the event of any
conflict between this Section 9.1 and the Confidentiality Requirements, the more stringent
requirements shall govern. Business Associate will, following the discovery of a HIPAA Breach,
notify the City immediately and in no event later than seven (7) business days after Business
Associate discovers such HIPAA Breach, unless Business Associate is prevented from doing so
by 45 C.F.R §164.412 conceming law enforcement investigations. For purposes of reporting a
HIPAA Breach to the City, the discovery of a H1PAA Breach shall occur as of the first day on
which such IiIPAA Breach is known to the Business Associate or, by exercising reasonable
diligence, would have been known to the Business Associate. Business Associate will be
considered to have had knowledge of a HII'AA Breach if the HIPAA Breach is known, or by
exercising reasonable diligence would have been known, to any person (other than the person
committing the HIPAA Breach) who is an employee, officer or other agent of the Business
Associate. No later than ten (10) business days following a HIPAA Breach, Business Associate
shall provide the City with sufficient information to permit the City to comply with the HB?AA
Breach notification requirements set forth at 45 C.F.R. §164.400 et seq. Specifically, if the
following information is known to (or can be reasonably obtained by) the Business Associate,
Business Associate will provide the City with: (i) contact information for individuals who were or
who may have been impacted by the HIPAA Breach (e.g., first and last name, mailing address,
street address, phone number, email address); {ii) a brief description of the circumstances of the
H1PAA Breach, including the date of the HII'AA Breach and date of discovery; (iii) a description
of the types of unsecured PHI involved in the HIPAA Breach (e.g., names, social security
number, date of birth, address(es), account numbers of any type, disability codes, diagnostic
and/or billing codes and similar information); (iv) a brief description of what the Business
Associate has done or is doing to investigate the HII'AA Breach, mitigate harm to the individual
impacted by the HIPAA Breach, and protect against future HIPAA Breaches; and (v) appoint a
liaison and provide contact information for same so that the city may ask questions or learn
additional information conceming the HB'AA Breach. Following a HIPAA Breach, Business
Associate will have a continuing duty to inform the City of new information learned by Business
Associate regarding the HTPAA Breach, including but not limited to the information described in
items (i) through (v), above.
9.2 Data Breach Notification and Mitigation Under Other Laws In addition to the
requirements of Section 9.1, Business Associate agrees to implement reasonable systems for the
discovery and prompt reporting of any breach of individually identifiable information (including
but not limited to PHI, and referred to hereinafter as "Individually Identifiable Information") that,
if misused, disclosed, lost or stolen, the City believes would trigger an obligation under one or
more State data breach notification laws (each a "State Breach") to notify the individuals who are
the subject of the information. $usiness Associate agrees that in the event any h7dividually
Identifiable Information is lost, stolen, used or disclosed in violation of one or more State data
breach notification laws, Business Associate shall promptly: (i) cooperate and assist the City with
any investigation into any State Breach or alleged State Breach; (ii) cooperate and assist the City
with any investigation into any State Breach or alleged State Breach conducted by any State
50554809.4 Page 4 of 8
Attomey General or State Consumer Affairs Department (or their respective agents); (iii) comply
with the City's minimum determinafions regazding the City's and Business Associate's
obligations to mitigate to the extent practicable any potenfial harm to the individuals impacted by
the State Breach; and (iv) assist with the implementation of any decision by the City or any State
agency, including any State Attomey General or State Consumer Affairs Department (or their
respective agents), to notify individuals impacted or potentially impacted by a State Breach.
10. Term and Termination.
10.1 This Agreement shall commence on the Effective Date and shall remain in effect until
terminated in accordance with the terms of this Seefion 10, provided, however, that termination
shall not affect the respective obligations or rights of the Parties arising under this Agreement
prior to the effective date of termination, all of which shall continue in accordance with their
terms.
10.2 Either Party shall have the right to terminate this Agreement for any reason upon thirty
(30) days written notice to the other Parry, provided the Interlocal Agreement for EMS Billing
between the Parties also terminates or is terminated concurrently therewith.
10.3 Either Party may immediately terminate this Agreement (the "Terminating Parry") and
shall have no further obligations to the other Patty (the "Terminated Party") hereunder if any of
the following events shall have occurred and be continuing:
(i) The Terminated Party fails to observe or perform any material covenant or
obligation contained in this Agreement for ten (10) days after written notice
thereof has been given to the Terminated Party; or
(ii) A violation by the Terminated Party of any provision of the Confidentiality
Requirements or other applicable federal or state .privacy law relating to the
obligations of the Terminated Party under this Agreement.
10.4 Terminafion of this Agreement for either of the two reasons set forth in Section 10.3
above shall be cause for either Party to immediately terminate for cause any Business
Arrangement pursuant to which Business Associate is entitled to receive PHI from the City.
10.5 Upon the termination of all Business Arrangements, either Party may terminate this
Agreement by providing written nofice to the other Party.
10.6 Upon termination of this Agreement for any reason, Business Associate agrees either to
return to the City or to destroy all PHI received from the City or otherwise through the
performance of services for the City, that is in the possession or control of Business Associate or
its agents. Tn the case of PHI which is not feasible to "return or destroy," Business Associate shall
extend the protections of this Agreement to such PITT and limit further uses and disclosures of
such Pffi to those purposes that make the return or destruction infeasible, for so long as Business
Associate maintains such PHI. Business Associate further agrees to comply with other applicable
state or federal law, which may require a specific period of retention, redaction, or other treatment
of such PHI.
11. No Warranfv. PHI IS PROVIDED TO BUSINESS ASSOCLATE SOLELY ON AN "AS IS"
BASIS. THE CITY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, L'~IPLIED WARRANTIES OF MERCHAi~1TABILITY, AND
FITNESS FOR A PARTICULAR PURPOSE.
sossaeov.4 Page 5 of 8
12. IneHtrible Persons. Business Associate represents and warrants to the City that Business
Associate (i) is not currently excluded, debarred, or otherwise ineligible to participate in any federal
health caze program as deemed in 42 U.S.C. Section 1320a-7b(f) ("the Federal Healthcare Programs"); (ii)
has not been convicted of a criminal offense related to the provision of health care items or services and
not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare
Programs, and (iii) is not undee investigation or otherwise awaze of any circumstances which may result
in Business Associate being excluded from participation in the Federal Healthcare Programs. This shall
be an ongoing representation and warranty during the term of this Agreement, and Business Associate
shall immediately notify the City of any change in the status of the representations and warranty set forth
in this secfion. Any breach of this section shall give the City the right to terminate this Agreement
immediately for cause.
13. illiscellaneous.
13.1 Notice. All no$ces, requests, demands and other communications required or permitted
to be given or made under this Agreement shall be in writing, shall be effective upon receipt or
attempted delivery, and shall be sent by (i) personal delivery; (ii) certified or registered United
States mail, return receipt requested; (iii) overnight delivery service with proof of delivery; or (iv)
facsimile with return facsimile acknowledging receipt. Nofices shall be sent to the addresses
below. Neither Party shall refuse delivery of any notice hereunder.
C1TX:
City of Alamo Heights, Texas
6116 Broadway
San Antonio, Texas 78209
Attention: Chief Buddy Kuhn
Tel No.: (210) 824-1281.
FaxNo.: (210) 828-3006
13USIlVESS ASSOCIATE:
City of Scherhz, Texas
1400 Schertz Pazkway
Schertz, TX 78154
Attention: Allison Gorzell
Tel. No.: (210) 619-1400
Fax No.: (210) 619-1499
Copy to:
Michael S. Brenan, Attorney at Law
3303 Oakwell Court, #120
San Antonio, TX 78218
Copy to:
Fulbright & 7aworski L.L.P.
300 Convent Street, Suite 2100
San Antonio, TX 78205
Attention: Katherine A. Tapley
13.2 '9Vaiver. No provision of this Agreement or any breach thereof shall be deemed waived
unless such waiver is in writing and signed by the Party claimed to have waived such provision or
breach. No waiver of a breach shall constitute a waiver of or excuse any different or subsequent
breach.
13.3 Assit=nment. Neither Party may assign (whether by operation or law or otherwise) any
of its rights or delegate or subconhact any of ifs obligations under this Agreement without the
prior written consent of the other Party.
73.4 Severability. Any provision of this Agreement that is determined to be invalid or
unenforceable will be ineffective to the extent of such determination without invalidating the
remaining provisions of this Agreement or affecting the validity or enforceability of such
remaining provisions.
13.5 Entire Agreement. This Agreement constitutes the complete agreement between
Business Associate and the City relating to the matters specified %u this Agreement, and
supersedes all prior representations or agreements, whether oral or written, with respect to such
sossasov.a Page 6 of 8
matters. In the event of any conflict between the terms of this Agreement and the terms of the
Business Arrangements or any such later agreement(s), the terms of this Agreement shall control
unless the terms of such Business Arrangements are more strict with respect to PHI and comply
with the Confidenfiality Requirements, or the parties specifically otherwise agree in writing. No
oral modification or waiver of any of the provisions of this Agreement shaA be binding on either
Party; provided, however, that upon the enactment of any law, regulation, court decision or
relevant government publication and/or interpretive guidance or policy that the City believes in
good faith will adversely impact the use or disclosure of PHI under this Agreement, the City may
amend the Agreement to comply with such law, regulation, court decision or government
publication, guidance or policy by delivering a written amendment to Business Associate which
shall be effective upon written notification to the City by Business Associate of its agreement to
the written amendment. L the Paz7ies are unable to mutually agree to any amendment, either
Party shall have the right to terminate this Agreement by providing written notice to the other
Party. No obligafion on either Party to enter into any transacfiou is to be implied from the
execution or delivery of this Agreement. This Agrcement is for the benefit of, and shall be
binding upon the Parties, their affiliates and respective successors and assigns. No third party
shall be wnsidered a third-party beneficiary under this Agreement, nor shall any third party have
any rights as a result of this Agreement.
13.6 Governin¢ Law. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Texas, jurisdiction and venue For any dispute relating to this
Agreement shall exclusively rest with the state and federal courts in Bexar County.
13.7 Equitable Relief. Business Associate understands and acknowledges that any disclosure
or misappropriation of any PHI in violation of this Agreement will cause the City irreparable
Kann, the amount of which maybe difficult to ascerhain, and therefore ageas that City shall have
the right to apply to a court of competent jurisdiction for specific performance and/or an order
restraining and enjoining any such further disclosure or breach and for such other relief as City
shall deem appropriate. Such right of the City is to be in addition to the remedies otherwise
available to the City at law or in equity. Business Associate expressly waives the defense that a
remedy in damages will be adequate and further waives any requirement in an action for specific
performance or injunction for the posting of a bond by the City.
13.8 Nature of Agreement: Independent Contractor. Nothing in this Agreement shall be
construed to create (i) a partnership, joint venture or other joint business relationship between the
parties or any of their affiliates, or (ii) a relationship of employer and employee between the
parties. Business Associate is an independent contractor, and not an agent of the City. This
Agreement does not express or imply any commitment to purchase or sell goods or services.
13.9 Counternarts. This Agreement may be executed. in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
document. In making proof of this Agreement, it shall not be necessary to produce or account for
more than one such counterpart executed by the Party against whom enforcement of this
Agreement is sought.
sossaao9.a Page 7 of 8
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the Effective
Data.
CITY:
Ci o Alam He" ts, Texas
ty
J. Mark Browne
(Print or Type Name)
BUSINESS ASSOCIATE:
City of Schertz, Texas n
John C. Kessel
(Print or Type Name)
City Manager
(Title)
Date: l ~ ~7 ~ /'1
And Acknowledged By:
City of Alamo Heights, Texas
By:
Privacy Officer
City Manager
(Title)
And Acknowledged By:
City of Schertz, Texas
By:
aU.UJ®k E10rxlZQQ
Allison Gorzell, A~ivacy Officer
sossaso9.a Page 8 of 8