EXHIBIT 10.1
NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION
PRISON HEALTH SERVICES, INC.
AGREEMENT
FOR THE PROVISION OF
CORRECTIONAL HEALTH SERVICES
Table of Contents
Page
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1. DEFINITIONS...............................................................................2
1.1 Assignment Schedule.................................................................2
1.2 Borough Houses......................................................................2
1.3 Chief Executive.....................................................................2
1.4 City................................................................................2
1.5 ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Memorial Hospital...................................................2
1.6 Commissioner........................................................................2
1.7 Contract Services...................................................................2
1.8 Contract Services Providers.........................................................2
1.9 Correctional Health Services ("CHS")................................................2
1.10 Corporation By-Laws.................................................................2
1.11 Dispute Resolution Procedure........................................................3
1.12 DMHMRAS.............................................................................3
1.13 DOC.................................................................................3
1.14 DOH.................................................................................3
1.15 EMS.................................................................................3
1.16 Emergency Services..................................................................3
1.17 Expedited Dispute Resolution........................................................3
1.18 Facility............................................................................3
1.19 Fee Statement.......................................................................3
1.20 Fiscal Year.........................................................................3
1.21 Health Professionals................................................................3
1.22 High-Impact Incarceration Program ("HIIP")..........................................3
1.23 HIPAA...............................................................................4
1.24 Hospital............................................................................4
1.25 Infant..............................................................................4
1.26 Infirmary...........................................................................4
1.27 Inmate..............................................................................4
1.28 Institutions........................................................................4
1.29 Master Patient Index................................................................4
1.30 Medical Director....................................................................4
1.31 Medical Record......................................................................4
1.32 Medically Necessary Services........................................................4
1.33 Mental Health Centers...............................................................5
1.34 Mental Health Professional..........................................................5
1.35 Mental Health Specialist............................................................5
1.36 Non-Physician Providers.............................................................5
1.37 Participating Hospitals.............................................................5
1.38 Patient Care Services...............................................................5
1.39 Performance Indicators..............................................................5
1.40 Physician Providers.................................................................5
1.41 Regulations.........................................................................5
1.42 Request for Proposals ("RFP").......................................................6
1.43 Research............................................................................6
1.44 Response............................................................................6
1.45 Self-Taught Empowerment and Pride Program ("STEP")..................................6
1.46 Semi-Monthly Payments...............................................................6
1.47 State...............................................................................6
1.48 Subcontractor.......................................................................7
1.49 Time Records........................................................................7
1.50 Tour................................................................................7
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1.51 Utilization Review Committee......................................................7
2. ROLE OF THE CORPORATION...................................................................7
2.1 The Corporation..................................................................7
2.2 Chief Executive..................................................................7
2.3 Medical Director.................................................................8
3. BASIC OBLIGATIONS OF THE CONTRACTOR.......................................................8
3.1 Scope, Quality and Organization of Services......................................8
3.2 Staffing and Supervision........................................................13
3.3 Program Directors...............................................................17
3.4 Provider Qualifications.........................................................19
3.5 Physician Provider Qualifications...............................................20
3.6 Non-Physician Provider Qualifications...........................................21
3.7 Assignment of Contract Services Providers.......................................21
3.8 Quality Assurance and Risk Management...........................................22
3.9 Policies and Procedures.........................................................24
3.10 Information Systems.............................................................24
3.11 HIPAA Compliance Procedures.....................................................26
4. RESPONSIBILITIES OF CONTRACT SERVICE PROVIDERS...........................................26
4.1 Organization....................................................................26
4.2 Responsibilities of Contract Services Providers.................................27
5. MEDICAL RECORDS..........................................................................28
5.1 Maintenance of Medical Records..................................................28
5.2 Confidentiality of Medical Records and Access...................................30
6. EQUIPMENT................................................................................30
6.1 Maintenance, Preventive Maintenance and Sanitation..............................30
6.2 Ownership and Purchase of Equipment.............................................30
6.3 Substandard Items...............................................................31
7. [ INTENTIONALLY LEFT BLANK ].............................................................31
8. WAREHOUSE; PROVISION OF SUPPLIES.........................................................31
9. SUPPLIES AND MEDICATION..................................................................31
9.1 Forms...........................................................................31
9.2 Review of Existing Inventory....................................................31
9.3 Inventory.......................................................................32
9.4 Purchases.......................................................................32
9.5 Documentation of Receipt of Medication..........................................32
9.6 Documentation of Disposition of Medication......................................33
9.7 Medication Distribution Plans...................................................33
9.8 Supplying Borough Houses........................................................33
9.9 Failure to Comply...............................................................33
10. HOSPITAL SERVICES........................................................................33
10.1 Transfer or Referral of Inmates.................................................33
10.2 Transfer to ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Memorial Hospital...................................34
10.3 Outpatient Specialty Services...................................................34
11. MODIFICATION OF SERVICES.................................................................34
11.1 Addition of Services............................................................34
11.2 Termination or Decrease of Services.............................................36
11.3 Reconfiguration of Services and Special Circumstances...........................36
12. PERFORMANCE INDICATORS & MONITORING......................................................37
12.1 Definition and Purpose..........................................................37
12.2 Failure to Comply...............................................................37
12.3 Corporation Performance Monitoring..............................................37
12.4 Performance Monitoring Staff....................................................37
12.5 Performance Indicator Reporting.................................................38
12.6 Performance Monitoring Oversight Meetings.......................................38
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13. COMPLIANCE WITH REGULATIONS AND STANDARDS................................................39
13.1 Required Compliance.............................................................39
13.2 Failure to Comply...............................................................39
13.3 Obligation to Cure..............................................................39
13.4 Consequence of Failure to Cure..................................................39
14. COMPENSATION FOR CONTRACT SERVICES.......................................................40
15. BILLING - THE FEE STATEMENT..............................................................40
15.1 Projected Expenses..............................................................40
15.2 Fee Statement...................................................................40
15.3 Erroneous or Incomplete Fee Statements..........................................40
16. DISPUTE RESOLUTION PROCEDURE.............................................................40
17. RETENTION OF PAYMENT.....................................................................42
18. EXPEDITED DISPUTE RESOLUTION PROCEDURE...................................................42
19. PERSONNEL, TIME-KEEPING, EQUAL EMPLOYMENT................................................43
19.1 General Responsibility..........................................................43
19.2 Corporation Employees...........................................................44
19.3 Time-keeping, Records and Notices...............................................45
19.4 Closing of an Institution and Severance Obligations.............................45
19.5 Prohibition Against Fees........................................................46
19.6 Non-Discrimination: Equal Employment............................................46
20. [ INTENTIONALLY LEFT BLANK. ]............................................................48
21. BOOKS AND RECORDS........................................................................48
22. ANNUAL AUDITS............................................................................48
22.1 Scope of the Audit..............................................................48
22.2 Due Date of the Audit...........................................................49
22.3 Contractor's Failure to Submit Annual Audit Report..............................49
22.4 Corporation's Final Audit.......................................................49
23. INSPECTION OF BOOKS AND RECORDS..........................................................50
24. REPORTING REQUIREMENTS AND RESPONSIBILITIES..............................................50
25. INDEMNIFICATION..........................................................................50
25.1 Scope of Defense and Indemnification............................................50
25.2 Limitations on Defense and Indemnification......................................51
25.3 Conditions to Defense and Indemnification.......................................51
25.4 Procedure in Connection with Defense and Indemnification........................51
26. CONTRACTOR COOPERATION...................................................................52
27. LIQUIDATED DAMAGES.......................................................................52
27.1 Additional Failures to Perform..................................................52
27.2 Overlap or Conflict.............................................................52
27.3 Payment of Liquidated Damages...................................................52
27.4 Waiver..........................................................................52
28. TERM AND TERMINATION.....................................................................53
28.1 Term of Agreement...............................................................53
28.2 Notice of Termination...........................................................53
28.3 Process of Transition...........................................................53
28.4 Consequences of Termination.....................................................53
28.5 Good Faith of Parties...........................................................54
28.6 Material Breach.................................................................54
29. [ INTENTIONALLY LEFT BLANK ].............................................................55
30. REPRESENTATIONS AND WARRANTIES...........................................................55
30.1 Representations and Warranties of the Contractor................................55
30.2 Fair Practices..................................................................56
30.3 Termination for Breach of Representations and Warranties........................57
30.4 Representation and Warranty of the Corporation..................................57
31. COVENANTS OF THE CONTRACTOR AND THE CORPORATION..........................................57
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31.1 Contract Services Providers.....................................................57
31.2 Workers' Compensation, Disability Benefits, Minimum Wage and....................57
31.3 Employment Status...............................................................58
31.4 Rights and Remedies.............................................................58
31.5 Compliance with Law.............................................................58
31.6 Federal Employment Practice.....................................................58
31.7 Non-Discrimination Against the Handicapped......................................58
31.8 Investigations..................................................................58
31.9 Assignment......................................................................61
31.10 Subcontracting..................................................................61
31.11 Publicity and Publication.......................................................62
31.12 Participation in an International Boycott.......................................63
31.13 Northern Ireland Certification..................................................63
31.14 Inventions, Patents and Copyrights..............................................65
31.15 Infringements...................................................................65
31.16 Antitrust.......................................................................65
31.17 Confidentiality.................................................................65
31.18 Insurance.......................................................................66
31.19 Liquidation of Liabilities......................................................69
32. MISCELLANEOUS............................................................................69
32.1 Proprietary Rights to Software Development......................................69
32.2 Data............................................................................69
32.3 Grants and Gifts................................................................70
32.4 Choice of Law, Consent to Jurisdiction and Venue................................70
32.5 General Release.................................................................71
32.6 Claims and Actions Thereon......................................................71
32.7 No Claim Against Officers, Accounts or Employees................................71
32.8 Waiver..........................................................................71
32.9 Notices.........................................................................72
32.10 All Legal Provisions Deemed Included............................................72
32.11 Severability....................................................................72
32.12 Political Activity..............................................................72
32.13 Modification....................................................................73
32.14 Paragraph Headings..............................................................73
32.15 Merger..........................................................................73
32.16 No Removal of Records From Premises.............................................73
32.17 Inspection of Site..............................................................73
32.18 Clean Air Act...................................................................74
32.19 Survival........................................................................74
32.20 Exclusion of Third Party Rights.................................................74
32.21 Recoupment of Disallowances, Questioned Costs and Over-Payments.................74
32.22 Limitation of Liability.........................................................74
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ATTACHMENTS
A. Providers and Salaries
B. Compensation Provisions
C. Performance Indicators
D. Response/BAFO
E. Specific Staffing at Facilities
F. CHS Performance Improvement Plan
G. Required Reports
H. Indemnification Provisions of the Operating Agreement between the New
York City Health and Hospitals Corporation and the City of New York
and Corporation Counsel's Office Letters dated November 13, 2000 and
December 15,2000.
I. Process for Transition
J. Addresses for Notices
K. List of Current CHS Grants
CORRECTIONAL HEALTH SERVICES AGREEMENT
AGREEMENT dated as of January 1,2001 between THE NEW YORK CITY HEALTH
AND HOSPITALS CORPORATION, a public benefit corporation created under the laws
of the State of New York (hereinafter referred to as the "Corporation"), having
its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
and PRISON HEALTH SERVICES, INC. (hereinafter "Contractor") having its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, for the provision of health services to inmates who reside in
the New York City jails.
WITNESSETH:
WHEREAS, the Commissioner of Correction of the City of New York is by
law the head of the Department of Correction, and is charged with all lawful
authority for the care and custody of felons, misdemeanants and violators of
law, persons held for any cause in criminal proceedings, and infants of female
inmates who are held in correctional institutions under his or her charge; and
WHEREAS, many inmates, both male and female, are held in custody in
the correctional institutions identified herein maintained and operated by the
Department of Correction; and
WHEREAS, the Department of Health of the City of New York is mandated
by New York City Charter ss.556K with the provision or promotion of health
services to inmates; and
WHEREAS, meeting the health needs of inmates not only involves the
broad spectrum of medical practice, but also involves the special public health
problems related to a confined population including, but not limited to, the
greater potential for growth and spread of contagious disease among inmates and
their contacts; and
WHEREAS, a contract was entered into between the New York City
Department of Health, the New York City Department of Mental Health, Mental
Retardation and Alcoholism Services, the New York City Department of
Correction, the City of New York and the Corporation for it to administer and
operate Correctional Health Services; and
WHEREAS, the Contractor is highly qualified to perform its obligations
hereunder, so as to ensure the provision of health services to inmates, and to
their infants housed at Rikers Island, and it is ready and willing to perform
these services; and
WHEREAS, the Contractor was awarded this contract pursuant to a
Request for Proposals, and
NOW THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto do hereby agree as follows:
1. DEFINITIONS
1.1 ASSIGNMENT SCHEDULE Time keeping records, including the
"on-call" schedules, reflecting the daily Contract Services activities of all
Physician Providers and Non-Physician Providers prepared and submitted by the
Contractor in accordance with the terms and conditions of Section 3.7 of this
Agreement.
1.2 BOROUGH HOUSES The Queens Detention Complex (also referred to
as the "Queens House of Detention"), the Bronx Detention Complex (also referred
to as the "Bronx House of Detention"), the Brooklyn Detention Complex (also
referred to as the "Brooklyn House of Detention") and the Brooklyn Correctional
Facility.
1.3 CHIEF EXECUTIVE Employee of the Corporation appointed by the
President of the Corporation who is the Executive Director of CHS and
responsible for its administration and operation.
1.4 CITY The City of New York.
1.5 ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ MEMORIAL HOSPITAL Hospital located on
Roosevelt Island which provides long-term care, and which is operated by the
Corporation.
1.6 COMMISSIONER The Commissioner of Health of the Department of
Health of the City of New York.
1.7 CONTRACT SERVICES Patient care services, supervisory
services, administrative services, technical and other services described in
Section 3 of this Agreement.
1.8 CONTRACT SERVICES PROVIDERS All Contractor personnel
providing Contract Services.
1.9 CORRECTIONAL HEALTH SERVICES ("CHS") The New York City Health
and Hospitals Corporation's Office of Correctional Health Services administered
and managed by the Corporation pursuant to a contract with DOH, DOC, DMHMRAS
and the City.
1.10 CORPORATION BY-LAWS By-laws of the Corporation as duly
adopted by its Governing Body, as the same may be amended and supplemented from
time to time in accordance with applicable law.
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1.11 DISPUTE RESOLUTION PROCEDURE Process set forth in Section 16
of this Agreement pursuant to which disputes between the Corporation and the
Contractor with respect to matters arising under this Agreement, except as
otherwise provided, are to be resolved.
1.12 DMHMRAS The New York City Department of Mental Health, Mental
Retardation and Alcoholism Services.
1.13 DOC The New York City Department of Correction.
1.14 DOH The New York City Department of Health.
1.15 EMS The Emergency Medical Services Bureau of the New York
City Fire Department.
1.16 EMERGENCY SERVICES Those medically necessary services,
including psychiatric stabilization and medical detoxification from drugs or
alcohol, provided in connection with an "emergency," which is defined as the
sudden or unexpected onset of a condition requiring medical or surgical care
which the individual secures after the onset of such conditions (or as soon
thereafter as care can be made available) and in the absence of which the
individual could reasonably be expected to suffer serious physical, mental or
emotional impairment or death, or pose a danger to others.
1.17 EXPEDITED DISPUTE RESOLUTION The process set forth in Section
18 of this Agreement pursuant to which certain disputes are to be resolved.
1.18 FACILITY Each of the jail-based health care sites within each
Institution.
1.19 FEE STATEMENT A statement prepared by the Contractor and
delivered to the Corporation on a quarterly basis describing the Contract
Services rendered by the Contractor during a preceding quarterly period and
setting forth the amount of Compensation Due for such Contract Services,
calculated in accordance with the provisions of this Agreement.
1.20 FISCAL YEAR Twelve (12) month period commencing July 1 and
ending June 30.
1.21 HEALTH PROFESSIONALS Doctors of medicine, doctors of
osteopathy, dentists, nurses, podiatrists, optometrists, physician assistants,
clinical psychologists, social workers, pharmacists, nurse practitioners and
other professionals engaged in the delivery of health care services who are
licensed, certified, or who practice under other authority consistent with the
laws of the State of New York.
1.22 HIGH-IMPACT INCARCERATION PROGRAM ("HIIP") DOC's residential
treatment program for male technical parole violators and City-sentenced adult
male
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Inmates convicted of non-violent crimes, which offers a highly disciplined
regimen based on a military model, with an emphasis on behavior modification
and community responsibility.
1.23 HIPAA Health Insurance Portability and Accountability Act of
1996.
1.24 HOSPITAL An acute care facility that is licensed in
accordance with Article 28 of the New York Public Health Law.
1.25 INFANT A child housed on Rikers Island whose mother is an
Inmate.
1.26 INFIRMARY A facility accommodating Inmates for a period of 24
hours or more, expressly equipped for subacute inpatient bed care for a
physical illness or diagnosis that requires limited observation and/or
management, but does not require admission to a Hospital. Infirmaries must have
a physician on site 24 hours a day seven days a week.
1.27 INMATE Person held in the custody of DOC who receives care
and services under the terms and conditions of this Agreement.
1.28 INSTITUTIONS (1) Each of the New York City correctional
commands situated at Rikers Island, (2) the ▇▇▇▇▇▇ ▇. ▇▇▇▇ Center and (3) The
Manhattan Detention Complex.
1.29 MASTER PATIENT INDEX The manual or computerized system of
records which identifies all patients who have ever been admitted or treated at
an Institution, and which serves as the key to locating patient records.
1.30 MEDICAL DIRECTOR The physician employed by the Corporation to
supervise the provision and quality of clinical services throughout the
Correctional Health Services system.
1.31 MEDICAL RECORD Document (paper and/or electronic) compiled by
physicians and other Health Care Professionals which includes, without
limitation, an individual's medical history, present illnesses, findings on
examination, details of treatment and notes on progress, and any other
documents required by CHS's policies concerning Medical Records.
1.32 MEDICALLY NECESSARY SERVICES Health care services that are
necessary to prevent, diagnose, correct or cure conditions in an individual
that cause acute suffering, endanger life, result in illness or infirmity,
interfere with such individual's capacity for normal activity, or threaten some
significant handicap. These services must be (i) consistent with the symptoms
or diagnosis and treatment of the individual's condition, disease, ailment or
injury; (ii) appropriate with regard to the standard of good medical
4
practice as recognized and accepted by the medical community; or (iii) not
solely for the convenience of the individual, a Contract Services Provider or
the Institution.
1.33 MENTAL HEALTH CENTERS Facilities at certain Institutions
providing a level of care and staffing designed to manage and treat Inmates in
a crisis state or exhibiting a sub-acute level of instability.
1.34 MENTAL HEALTH PROFESSIONAL A social worker or psychologist
licensed by the State of New York providing mental health-related Contract
Services pursuant to this Agreement.
1.35 MENTAL HEALTH SPECIALIST Individual with a master's level
degree in a mental health or social services field who must practice under the
supervision of a Mental Health Professional, providing Contract Services
pursuant to this Agreement.
1.36 NON-PHYSICIAN PROVIDERS Health Professionals (other than
physician providers) employed by the Contractor to provide Contract Services
hereunder, including, but not limited to, physician assistants, nurse
practitioners, registered nurses, licensed practical nurses, psychologists,
social workers, occupational therapists, physical therapists, other
rehabilitation therapists, laboratory technologists, radiology technologists,
technical supervisors, and other technical staff, and counselors and educators,
who are not clinicians and whose education and training qualify them to
practice direct patient care activities, or activities supportive of direct
patient care, in New York State, as well as all other individuals, including,
but not limited to, administrative and secretarial staff who provide Contract
Services pursuant to this Agreement.
1.37 PARTICIPATING HOSPITALS Bellevue Hospital Center, Elmhurst
Hospital Center and Kings County Hospital Center.
1.38 PATIENT CARE SERVICES All of those general patient medical
care, dental and mental health/chemical dependency services rendered directly
to Inmates and Infants by Contract Services Providers.
1.39 PERFORMANCE INDICATORS Certain standards of performance for
specific Contract Services that must be met by the Contractor as described in
Section 12 of this Agreement and set forth in Attachment C to this Agreement
1.40 PHYSICIAN PROVIDERS Attending physicians, podiatrists and
dentists providing Contract Services hereunder.
1.41 REGULATIONS All applicable laws, rules, regulations and
standards of the United States, the City, the State, and all other regulatory
bodies, as the same may be amended and supplemented from time to time
including, without limitation, the New York State Public Health Law and the
rules and regulations promulgated thereunder
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(including the New York State Sanitary Code), the New York State Correction Law
and the rules and regulations promulgated thereunder (including the New York
State Commission of Correction Standards), regulations of the New York City
Department of Health, including the New York City Health Code, the New York
City Board of Correction's Minimum Health and Mental Health Standards for New
York City Correctional Facilities, the policies of the New York State
Department of Health and the New York State Department of Mental Hygiene
including as applicable, the New York State Office of Mental Health, Office of
Alcoholism and Substance Abuse Services, the Office of Mental Retardation and
Developmental Disabilities and all regulations of the New York City Department
of Mental Health, Mental Retardation and Alcoholism Services, policies of the
New York State Department of Education, New York City Department of Correction
security guidelines, Federal and other regulations regarding the protection of
the rights and welfare of human research subjects, the Corporation's
established code of ethics, CHS policies, procedures, and medical protocols,
and with respect to the Corporation only, the Corporation By-Laws, and with
respect to the Contractor only, the established policies and procedures of the
Contractor, which relate or are in any way connected with the education of
persons to provide, and the provision of, Patient Care Services. The term
"Regulations" also includes the legal mandates with respect to health care
services to be rendered to Inmates that have been imposed upon DOC, the
Corporation and the City by certain lawsuits, including consent decrees and
court orders.
1.42 REQUEST FOR PROPOSALS ("RFP") The Corporation's Request for
Proposals dated April 6, 2000 for the provision of medical, mental health,
dental and ancillary services at the Institutions, along with all appendices
and addenda.
1.43 RESEARCH The systematic investigation or study, including,
without limitation, research development, testing and evaluation, designed to
develop or contribute to generalizable knowledge relating to physical or mental
health.
1.44 RESPONSE The proposals submitted by the Contractor in
response to the Corporation's RFP on May 31, 2000 and on August 9, 2000.
1.45 SELF-TAUGHT EMPOWERMENT AND PRIDE PROGRAM ("STEP") DOC
residential treatment program for female technical parole violators and
City-sentenced adult female Inmates convicted of non-violent crimes, based on a
military model including educational/vocational and health and life skills
training.
1.46 SEMI-MONTHLY PAYMENTS Advance Payments made, by wire
transfer, on the first and sixteenth day of each calendar month (or on the next
business day after either if it is not a business day) by the Corporation to
the Contractor as Compensation for Contract Services pursuant to the terms of
this Agreement.
1.47 STATE The State of New York.
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1.48 SUBCONTRACTOR. An individual or entity which contracts with
the Contractor to perform a portion of the Contractor's responsibilities under
its agreement with the Corporation.
1.49 TIME RECORDS. Accurate and complete records of time spent by
Contract Services Providers in the performance of Contract Services, as
referred to in Section 19.3 of this Agreement.
1.50 TOUR. One of three daily periods of duty for Contract Services
Providers, normally commencing at 12:00 a.m., 8:00 a.m. and 4:00 p.m.
1.51 UTILIZATION REVIEW COMMITTEE. Committee consisting of
representatives of the Corporation and the Contractor (including the Program
Medical Director) and chaired by the Medical Director of CHS, which will
retrospectively examine utilization decisions and administer a program
structured to assure that health care resources provided to Inmates and Infants
are both Medically Necessary and efficiently supplied.
2. ROLE OF THE CORPORATION
The role of the Corporation shall include, but not be limited to the
following:
2.1 THE CORPORATION
Subject to the terms and conditions of this Agreement, the Corporation
shall cooperate with the Contractor so as to ensure the quality of all services
provided hereunder. The President, on behalf of the Corporation, shall
cooperate with the Contractor so as to ensure the maintenance at each
Institution of health care that complies with accepted community standards, and
shall, upon receipt and consideration of the recommendations of the Chief
Executive, and in compliance with applicable laws, act to approve medical
clinician appointments, reappointments, termination of appointments, and the
granting or revision of clinical privileges. The Corporation shall facilitate
the provision by DOC at the Institutions of such office space, furniture
(excluding office equipment) and telephone service that it reasonably deems
adequate for the business administration personnel the Contractor may employ at
the Institutions in fulfillment of the obligations assumed pursuant to this
Agreement. At any time, during the term of this Agreement, the Contractor
shall, at the request and at the expense of the Corporation, move to comparable
adequate space provided at the Institutions by the Corporation, upon ten (10)
days prior notice where practicable.
2.2 CHIEF EXECUTIVE
The Chief Executive, acting on behalf of the Corporation, shall be
responsible for the administration and operation of CHS at the Institutions and
the Borough Houses; and shall carry out that responsibility in accordance with
the Regulations. The Chief
7
Executive shall also oversee the performance improvement activities of the
Contract Services Providers.
2.3 MEDICAL DIRECTOR
The President of the Corporation, or his or her designee, shall
appoint a Medical Director to provide directions to the Contractor in carrying
out its obligations pursuant to this Agreement with respect to the provision of
health care services. The duties of the Medical Director shall include, but not
be limited to, the following:
(a) oversight of the development and implementation of
appropriate and effective mechanisms for evaluating clinical appointments,
reappointments and privileges, and for maintaining Corporate clinical
standards; and for advising the Chief Executive and the Corporation on
appropriate decisions and actions in those areas;
(b) oversight of the implementation of Corporate medical
policies;
(c) enforcement of any corrective action plan required in
connection with the Performance Indicators, as described in Section 12 hereof
and set forth in Attachment C hereto;
(d) monitoring of the quality of care and medical services
provided to Inmates. The Medical Director (and in his/her absence, his/her
designee) is empowered to make final medical decisions regarding all Inmate
health care and the Contractor shall comply with such decisions; and
(e) serving as chair of the Utilization Review Committee.
3. BASIC OBLIGATIONS OF THE CONTRACTOR
3.1 SCOPE, QUALITY AND ORGANIZATION OF SERVICES
3.1.1 The Contractor shall provide to the Corporation timely and
high quality (consistent with community standards) Patient Care Services at the
Institutions ("Contract Services"). Except as set forth specifically in this
Agreement, the scope and nature of such Contract Services shall include (i) the
services identified in the Technical Proposal set forth in Section 2 of the
portion of the Response submitted on May 31, 2000, as amended by pages 7 through
17 of the introductory portion and by the Option 1 portion of the Contractor's
Best and Final Offer portion of the Response submitted on August 9, 2000 (both
of which are annexed hereto and incorporated herein as Attachment D); (ii) any
and all services required by the RFP, regardless of whether the Response
specifically addresses each such service; and (iii) any additional services
required by this Agreement. Contract Services will be provided through the
services of physicians, dentists, podiatrists, psychologists, social workers,
physician's assistants, pharmacists, nurse
8
practitioners, registered nurses, licensed practical nurses, technical,
clerical and other support and supervisory staff (collectively the "Contract
Services Providers") in accordance with the provisions of Section 3.2 hereof.
If the Contractor fails to provide a particular service within the scope of
Contract Services required hereunder, the Contractor will be subject to
liability to the Corporation in the sum of $1,000 as liquidated damages, and
not as a penalty for each day such failure remains uncured, except to the
extent otherwise provided for herein. If, within two (2) weeks of the
occurrence of such failure, the Contractor fails to cure such failure or, is if
it is not possible to cure such failure within two (2) weeks, fails implement a
corrective action plan acceptable to the Corporation, then the Corporation may
elect to treat such failure by the Contractor as a material breach of this
Agreement pursuant to the provisions of Section 28.6 hereof.
3.1.2 Contract Services shall not include the provision by the
Contractor to the Corporation of medical, surgical and/or pharmaceutical
supplies, except pursuant to Section 9.8 hereof.
3.1.3 The Contractor, at its own expense, will fingerprint all
Contract Services Providers whose fingerprints are not now on file with DOC.
All such fingerprints will be provided to DOC. All Contract Services Providers
will wear identification tags containing their names and titles at all times
they are in the Institutions. It is understood and agreed that DOC may at any
time deny access to the Institutions to any Contract Services Provider it deems
to present a threat to the safety, security or good order of the Institutions.
3.1.4 Without limitation, Contract Services require that (i) intake
examinations shall be performed and completed within four (4) hours of the time
the Inmate is presented to Contract Services Providers by DOC and shall be
performed by a Physician Provider, physician's assistant or a nurse
practitioner; (ii) routine sick calls will be performed within twenty-four
hours (24) hours of request, except for weekends and holidays (in which case
routine sick calls will be performed on the next business day) and will be
performed by a Physician Provider or under the supervision of a Physician
Provider physically present at the Institution; (iii) a Physician Provider will
be assigned to, and physically present on the premises of, each Infirmary
twenty-four (24) hours per day, seven (7) days per week; (iv) one or more
Physician Providers will be physically on the premises at each Institution
twenty-four (24) hours per day, seven (7) days per week; (v) each Facility will
be staffed, when open, with the appropriate staffing for the Contract Services
being provided; (vi) psychiatric, medical, nursing and mental health services
will all be provided in the Mental Health Centers twenty-four (24) hours per
day, seven (7) days per week; (vii) Inmates who have routine referrals for
mental health services will be seen and evaluated within seventy-two (72) hours
of referral (emergency or STAT referrals will be seen and evaluated
immediately); (viii) Contract Services Providers will conduct discharge
planning as appropriate, complete all forms deemed necessary by the
9
Corporation (including but not limited to applications for entitlements and
housing) and will cooperate in discharge planning for any Inmate; (ix) family
planning services will be provided, including referrals to Corporation
Hospitals for terminations of pregnancy; (x) Contract Services Providers will
draw blood for viral load testing, obtain the necessary consents therefor, and
pay the cost for transmittal of such blood to a laboratory chosen by the
Corporation (and the Corporation will pay the bills for such testing that are
submitted by such laboratories); (xi) Contract Services Providers will
participate in a condom distribution program pursuant to CHS and DOH
guidelines; and (xii) Contract Service Providers shall cooperate with the
appropriate Corporation Assisted Outpatient Treatment ("AOT") team so that the
AOT team can conduct investigations of inmates for AOT eligibility and possible
filing of court petitions, and shall screen appropriate inmates for such
eligibility and refer appropriate candidates to the appropriate AOT team.
3.1.5 The Contractor shall provide Contract Services to Inmates
transported to the Institutions from other facilities operated by DOC when the
required outpatient and Infirmary care is not available at such other
facilities.
3.1.6 Contract Services shall, at a minimum, meet all requirements
set forth in the Regulations. The Contractor will cooperate fully with any
effort of the Corporation to obtain and maintain any applicable accreditation.
3.1.7 Contract Services will include cooperation with DOH public
health investigations and initiatives undertaken in the Institutions.
3.1.8 As part of the Contract Services, the Contractor shall
cooperate with DOC. Such cooperation shall include (i) the completion for each
Inmate, upon admission to the Institution, a CHS form that will indicate any
contraindications connected with the use of stun ▇▇▇▇▇▇▇ or chemical agents (or
other specified security equipment) by DOC personnel and immediate notification
to DOC staff upon request that the use of a stun shield or chemical agent (or
other specified security equipment) is or is not contraindicated; (ii)
assistance in implementing a program pursuant to which certain terminally ill
Inmates are released from the custody of DOC (the "Compassionate Release
Program"); and (iii) medical screening of Inmates referred into DOC programs
including, but not limited to, HIIP and STEP, and into DOC HIV programs. Upon
any failure to comply with the requirements of this subsection 3.1.8, the
Contractor will be subject to liability to the Corporation in the sum of
$1,000, as liquidated damages and not as a penalty, for each such occurrence.
3.1.9 The Contractor shall develop and implement a comprehensive
cultural competence training program, to be approved by the Corporation, for
the Contract Services Providers. Such program shall recognize the demographics
of the Inmate population and be designed to further the goal of providing all
Inmates, regardless of national origin, language, race or religion, access to
quality health care. The Contractor shall use its best efforts to ensure that
all Contract Services Providers participate in
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training program sessions within six (6) months of the commencement of their
employment by the Contractor. By October 1, 2001, and every six months
thereafter, the Contractor shall assess the cultural competence of the Contract
Services Providers and develop a corrective action plan to address any
deficiencies in its training program. Any such plan shall be submitted to, and
approved by, the Corporation, before its implementation. Should the Corporation
determine that, notwithstanding the Contractor's best efforts, such plan is
inadequate to correct all deficiencies, the Contractor may obtain the
assistance of a Subcontractor upon the Corporation's approval and at its
expense. Such approved costs shall be in addition to Compensation Due pursuant
to Attachment B.
The Contractor will employ its best efforts to ensure that its
Contract Services Providers providing Patient Care Services are sufficiently
proficient in languages that are understood and used by the Inmates. It shall
also use its best efforts to hire such Contract Services Providers who are
bilingual in such languages, and to have at least one such Contract Service
Provider present at all times in each Institution. The Contractor shall
maintain a listing, updated and provided to the Corporation on a quarterly
basis, of all bilingual Contract Services Providers providing Patient Care
Services, including for each Provider listed, all languages spoken other than
English. It shall also ensure that screening, patient history and exams are
accomplished in such a manner as to accommodate Inmates whose hearing or sight
may be impaired, including obtaining the services of a sign language
interpreter, if necessary. In addition, the Contractor will provide the
services of a language bank (such as that provided by AT&T), which services
shall be accessible to all Contract Services Providers in all Facilities
twenty-four (24) hours per day, seven (7) days per week. If the Contractor
fails to arrange for the provision of such services promptly upon the execution
of this Agreement, then the Corporation may do so and may deduct the costs of
doing so from Compensation owed to the Contractor pursuant to the provisions of
Section 13 hereof.
3.1.10 The Contractor shall provide all Contract Services in a
timely and appropriate manner regardless of the occurrence of any unanticipated
incidents, contingencies or circumstances at the Institutions, and regardless
of fluctuations in the Inmate census, except to the extent prevented by
disasters, catastrophes or other acts of God or strikes by non-Contractor
personnel. By January 1, 2001, the Contractor shall have developed contingency
plans approved by the Corporation that ensure the availability of staffing
sufficient to provide all Contract Services in the event of an emergency (e.g.,
job action or strike by Contract Services Providers, emergency opening of a
closed housing area of Institution which necessitates additional staff beyond
the number and type of Contract Services Providers specified in Attachment A to
this Agreement.) The Contractor recognizes that certain circumstances (such as
Inmate riots or rebellions or actions by DOC) may cause a temporary disruption
in the normal volume of, or demand for, Patient Care Services. The Contractor
agrees, that upon cessation of
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any such disruption, it will meet any increased volume of such Patient Care
Services in accordance with, and within the time limits specified in, this
Agreement.
3.1.11 Contract Services will, subject to the provisions of Section
11 hereof, include the provision and maintenance by the Contractor of an
Electronic Medical Records system for the Medical Records of the Inmates and
Infants. Such system will (i) allow a real time, fully integrated Medical
Record to be available to any and all authorized users at any time, (ii) track
all components of a patient's on-going medical history, and (iii) be based on
user-defined protocols that are fully updateable. The Contractor shall not be
responsible for any repairs or maintenance of the mechanical or electrical
infrastructure necessary to accommodate such system or for the ongoing
telecommunications costs of operating the system. The parties shall negotiate
in good faith to determine a time schedule for the development and
implementation of such system. The Contractor must seek and obtain the
Corporation's approval to continue its efforts hereunder at each significant
stage in the development and implementation of such system, but at least once
each month until the implementation has been completed to the Corporation's
reasonable satisfaction.
In the event the Corporation decides, at any point during the
development and implementation of the Electronic Medical Records system by the
Contractor that it does not want the Contractor to continue its efforts
hereunder, then the Contractor will immediately cease such efforts and the
Corporation shall reimburse the Contractor for its costs up to the date of such
termination, pursuant to Attachment B. In such case, the Contractor will
cooperate fully in any subsequent endeavor by the Corporation to develop such a
system, and the Corporation shall reimburse the Contractor for its reasonable
costs in connection with such cooperation.
3.1.12 Contract Services consisting of the provision of on-site
well-baby health care services to Infants, and child care and parenting
services to their Inmate mothers on Rikers Island, as set out in CHS's Nursery
Program Policy and Procedures. Any Infant requiring health care at a level not
available pursuant to this undertaking by the Contractor will be transported by
EMS to an appropriate Corporation Hospital (or to another Hospital, if required
in an emergency). The Contractor will bear no responsibility for the costs of
such transportation, the timelines of the response by EMS to a call for
service, or the care that EMS provides or fails to provide.
3.1.13 The Contractor will provide on-site first aid services to
correctional personnel working at the Institutions and to civilian personnel
on-site. In the event of an emergency, DOC will, at the same time, call both
EMS and a Physician Provider. The Contract Services to be rendered by the
Physician Provider hereunder will consist first of triage-type evaluation.
Then, in the event of an emergency, the Contract Services will consist of
stabilization pending the arrival of EMS. If there is no emergency, the
Physician Provider will refer the correctional officer or civilian to his or
her private physician, or provide first aid to the correctional officer or
civilian at the site so that he or
12
she may return to work, whichever is indicated. The services to be rendered by
Physician Providers hereunder will not include (i) taking a complete medical
history (although it will include taking such history as is warranted under the
circumstances); (ii) providing a full physical examination, lab work, x-rays;
or (iii) dispensing or prescribing medication, except for the administration of
medication in an emergency. Such Contract Services do not include or permit the
rendering of health care services at courthouse facilities operated by DOC. The
Contractor will complete a DOC injury report for every correctional officer and
civilian for whom it provides first aid services hereunder, and will maintain
documentation of such services in a format acceptable to the Corporation and to
DOC.
3.2 STAFFING AND SUPERVISION
3.2.1 Mandated Staffing
(a) For purposes of this Agreement (i) the Average Daily Census
("ADC") shall be the 5:00 a.m. census figures compiled by DOC for each day,
aggregated across all Institutions; (ii) the "ADC Corridor" shall mean an ADC
between 13,000 and 16,000 Inmates; and (iii) a "Decrease or Increase in the
ADC" shall mean an ADC, calculated over any consecutive three (3) month period,
that is, respectively, below or above the ADC Corridor. The Corporation shall
provide to the Contractor, on a monthly basis, a report on each ADC during the
preceding month.
(b) The Contractor shall at all times during the term of the
Agreement provide Contract Services at each Institution through the number and
types of qualified Contract Service Providers specified in Attachment A hereto,
subject to any modifications effected pursuant to Sections 3.2.2 and 11
("Mandated Staffing"). The Contractor acknowledges and agrees (i) that such
Mandated Staffing specified in Attachment A is sufficient to enable it to
provide all required Contract Services within the ADC corridor, based upon the
community standards of care, treatment patterns, locations of service delivery
at the Institutions and Regulations in effect as of the date hereof, taking
into account sporadic and unanticipated daily fluctuations in service needs,
emergency conditions and vacations and absences of Contract Services Providers;
and (ii) that it shall not be entitled to additional compensation (except to
the extent approved in writing by the Chief Executive) for additional Contract
Services Providers that the Contractor may subsequently determine to be
necessary to provide such Contract Services.
(c) FTE positions identified in Attachment A shall be filled (i)
entirely by full-time Contract Services Providers as specified in subsection
3.2.4(a)(i) and (ii) hereof; and (ii) for at least 95 percent of such
positions by full-time Contract Services Providers at all other Facilities.
3.2.2 Modifications in Mandated Staffing
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(a) The Corporation may, in its sole discretion and at its cost,
elect to increase Mandated Staffing (and OTPS) at any ADC and the Contractor
shall fill such additional positions pursuant to Section 3.2.3. In the event of
such an increase, Total Compensation Due shall be increased pursuant to
Attachment B.
(b) Should DOC close an Institution, Contract Services Providers
assigned to such Institution will no longer provide Contract Services, unless
reassigned by the Provider, in accordance with Section 19.4 hereof. In the
event of such a closure, Total Compensation Due shall be reduced pursuant to
Attachment B to reflect such a reduction in Mandated Staffing.
(c) Should (i) the Corporation request the Contractor to reduce
Mandated Staffing, other than as a result of closure of an Institution, at an
ADC within the ADC Corridor or as a result of a Decrease in the ADC, or (ii)
the Contractor requests the Corporation to increase Mandated Staffing as a
result of an Increase in the ADC, the parties shall negotiate in good faith
with respect to appropriate and reasonable reductions or increases, if any, in
Mandated Staffing and Total Compensation Due. If the parties fail to reach
agreement, the Corporation shall make such determinations, which the Contractor
shall implement but may challenge in Dispute Resolution pursuant to Section 16
as inappropriate and unreasonable.
(d) The Corporation and the Contractor shall, at least every six
(6) months during the term of this Agreement, review and discuss changes in the
type of Contract Services Providers at each Institution. Total Compensation Due
will be adjusted accordingly to reflect any agreement reached with respect to
reconfiguration.
(e) Any modifications of Mandated Staffing other than as provided
in this Section 3.2.2 shall be made pursuant to Section 11.
3.2.3 Vacancies
(a) (i) The Contractor shall fill, as expeditiously as
reasonably practical, any vacancy in any Contract Services Provider position
with a replacement at an equivalent level of qualifications and skill and at
the same or lower salary as the departing Contract Services Provider. If such
equivalent Contract Services Provider cannot be hired, the Contractor shall,
without additional cost to the Corporation, hire a replacement in a title with
greater qualifications (e.g., a registered nurse in lieu of a licensed
practical nurse) at or below the average salary for such title (hereinafter an
"upgrade").
(ii) If the Chief Executive reasonably determines that
the Contractor has exercised its best efforts to fill the vacancy pursuant to
subsection (a)(i) but has been unsuccessful, the Chief Executive may authorize
the Contractor to fill, and the Contractor shall fill, the vacancy by paying a
specified salary in excess of the salary of the departing Provider.
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(iii) In the event of such authorizations, the Corporation
shall reimburse the Contractor for the amount of such increased salaries,
subject to a maximum equal to the difference between the Total Compensation Due
and paid to the Contractor in any calendar year during the term of this
Agreement and the aggregate Maximum Amounts for each Payment Component
specified in Attachment B.
(b) The Contractor shall fill all vacancies, including new
positions resulting from an authorized increase in Mandated Staffing, no later
than sixty (60) days of the occurrence of such vacancy or increase, by the
employment of Contract Services Providers that conforms to the requirements of
Section 3.2.l(c).
(c) Until a vacancy is filled pursuant to subsection 3.2.3(b)
above, the Contractor shall ensure the delivery of all Contract Services
through the use of overtime by the existing Contract Services Providers (which
may not exceed 25 percent of the FTE vacancies) and per diem or part-time
Contract Services Providers, and in accordance with Section 3.2.4.
3.2.4 Specific Staffing Requirements
The following provisions apply at all times, including the period when
a vacancy is unfilled or a Contract Service Provider is absent due to vacation,
illness or otherwise.
(a) During each Tour, the following staff must be present at the
assigned Facilities as specified in Attachment E, and, except for (iii) below,
replaced with a current full-time Provider during the period of any vacancy or
absence:
(i) Physicians, Physician Assistants, RNs, NAs and LPNs
in all Infirmaries and in the CDU.
(ii) Psychiatrists and CSW/Mental Health Professionals at
the Mental Health Centers.
(iii) All titles in all specialty clinics.
(b) (i) During each Tour at each Institution, all staff titles
not encompassed by subsection 3.2.4(a) above will be grouped into four discrete
units as follows:
Unit 1 Administrative/Clerical (Health Service
Administrator, Medical Records Administrator,
Medical Records Clerk, Administrative Assistant,
Patient Advocate, Clinic Coordinator/Scheduler)
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (▇▇, ▇▇, NP, RN, LPN)
15
Unit 3 Mental Health Practitioner (Psychiatrist, Clinical
Supervisor, Activity Therapist, Unit Chief,
Assistant Unit Chief, Mental Health Professional,
Mental Health Specialist, Substance Abuse Counselor)
▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ (Director of Nursing, QA RN, Site
Medical Director, HIV Counselor, PCA, NA, Dentist,
Dental Assistant, Radiologist, X-ray Technician,
Phlebotomist, Pharmacist, Pharmacy Technician,
Discharge Planner)
(ii) During each Tour, the staff in each Unit must be
present at the assigned Institutions as specified in
Attachment A, except that (a) 1 staff vacancy or
absence is permitted for each Unit in an Institution
comprised of between 2 and 14 staff members; and (b)
2 staff vacancies or absences are permitted for each
Unit in an Institution comprised of 15 or more staff
members. No staff vacancy or absence is permitted
when only 1 staff member in a Unit in an Institution
is scheduled on a Tour.
(c) Notwithstanding the exceptions in subsection 3.2.4(b)(ii) and
exclusive of staff covered by subsection 3.2.4(a), at least ninety percent
(90%) of the staff required in each Institution must be present during each
Tour at the assigned Facilities as specified in Attachment A.
(d) For the first six months of the term of the Agreement, the
Contractor shall ensure that an administrator is available on Rikers Island
twenty-four hours each day, seven days each week. Thereafter, the administrator
may be on-call.
3.2.5 Failure to Provide Mandated and Specific Staffing
(a) Should the Contractor fail to comply with the provisions of
Sections 3.2.3 or 3.2.4, the Contractor shall be subject to liability to the
Corporation in the following amounts, as liquidated damages and not as a
penalty:
(i) for failure to fill each vacancy (as required by
subsection 3.2.3), $1,000 per day for titles
comprised in Units 2 and 3 and $500 per day for
titles comprised in Units 1 and 4.
(ii) for failure to meet each staffing requirement of
subsection 3.2.4(a), $1,000 per absence per Tour;
(iii) the greater of the amount calculated by computing
the following:
a) for failure to meet each staffing
requirement of subsection 3.2.4(b), $1,000
per Tour for Units 2 and 3 and $500 per
Tour for Units 1 and 4; and
16
b) for failure to meet the staffing
requirement of subsection 3.2.4(c), $2,000
per Tour; and
(iv) for failure to meet the staffing requirement of
subsection 3.2.4(d), $1,000 per day.
(b) Should the Contractor fail, in any consecutive two (2) month
period, to meet the requirements set forth in subsections 3.2.3 or 3.2.4, the
Corporation may, in addition to whatever other rights it may have, deem such
failure to be a material breach of this Agreement pursuant to Section 28.6
hereof.
3.3 PROGRAM DIRECTORS
3.3.1 The Contractor shall recommend for appointment by the
Corporation (i) a full-time, Program Director who shall have responsibility for
all aspects of Contract Services and who shall be on Rikers Island as
reasonably necessary; (ii) a full-time Program Medical Director, reporting to
the Program Director, who shall have responsibility for all clinical aspects of
Contract Services; and (iii) a full-time Program Mental Health Director who
shall report directly to the Program Medical Director. The Program Medical
Director and the Program Mental Health Director shall both be on Rikers Island
during their working hours, except as reasonably necessary to discharge
administrative duties.
3.3.2 The Program Director shall have at least (10) years of
progressively responsible managerial experience in corrections, or in a
correctional health, hospital or other health care setting or a related field,
and a bachelor's degree from an accredited college, except to the extent such
requirements are waived by the Chief Executive. The duties of the Program
Director shall include, but not limited to, the following:
(a) ensuring compliance with the contractually-defined scope of
services, Performance Indicator reporting requirements and adherence to
regulatory guidelines and accepted standards of care;
(b) ensuring that the provision of Contract Services adheres to
all Corporation established policies and procedures (clinical and operational)
and that appropriate new protocols are recommended to address emerging
practices;
(c) ensuring that all facilities are appropriately staffed,
equipped and supplied;
(d) ensuring that competent staff is recruited, hired, trained,
retained, evaluated and supervised; and
(e) ensuring full development of, and appropriate representation
and cooperation with, all Contract Services activities and full cooperation
with the Corporation and its representatives.
17
3.3.3 The Program Medical Director shall be a licensed physician,
board-certified in Internal Medicine, Family Practice or Surgery. The
responsibilities and duties of the Program Medical Director shall include, but
limited to, the following:
(a) ensuring that the full scope of medical services required
hereunder is implemented, maintained and monitored;
(b) ensuring compliance with clinical service-related Performance
Indicators and adherence to Regulatory guidelines and defined clinical
standards of care;
(c) ensuring that the medical aspects of the Contract Services
provided by the Contractor adhere to all Corporation policies and procedures,
and recommending new protocols for development and implementation in all
clinical areas;
(d) supervising the clinical staff;
(e) ensuring appropriate recruitment, orientation, training,
continuing education and evaluation of the clinical staff;
(f) coordinating clinical staffing at appropriate levels at all
times;
(g) coordinating the preparation and submission of all required
clinical reports and analyses; and;
(h) ensuring clinical staff representation at meetings and full
cooperation with the Corporation and its representatives.
3.3.4 The Program Mental Health Director shall be a licensed
physician, board-certified in Psychiatry. The responsibilities and duties of
the Program Mental Health Director shall include, but not limited to, the
following:
(a) implementing, maintaining and monitoring in conjunction with
the Program Medical Director, the full scope of mental health services;
(b) ensuring compliance with mental health-related Performance
Indicators and adherence to Regulatory guidelines and defined mental health
standards of care;
(c) ensuring that the mental health aspects of the Contract
Services provided by the Contractor adhere to all Corporation mental health
policies and procedures, and recommending modification or development of mental
health protocols;
(d) supervising the mental health clinical staff;
(e) coordinating mental health staff as appropriate;
(f) supervising substance abuse/alcoholism services;
18
(g) coordinating preparation and submission of all required
mental health reports and analyses; and
(h) ensuring mental health staff representation at meetings and
full cooperation with the Corporation and its representatives.
3.3.5 Notwithstanding the provisions of Section 19.1.2, the
Corporation shall have the right at any time to direct that any Program
Director, Program Medical Director or Program Mental Health Director shall no
longer render Contract Services, if it lawfully determines that such direction
is in the best interests of the City, or of the Corporation. The Contractor
will comply immediately with any such direction. The rights of the Corporation
hereunder will be exercised only upon prior consultation with the Contractor,
but the final decision will be made solely by the Corporation, within its sole
discretion. Any action taken by the Corporation pursuant to this Section 3.3.5
will not be subject to the Dispute Resolution Procedures set out in Sections 16
or 18 hereof.
3.4 PROVIDER QUALIFICATIONS
3.4.1 The Contractor shall ensure that, except as otherwise
provided in this Agreement or by written authorization of the Corporation, each
Contract Services Provider meets the qualification standards set out in
Sections 3.5 and 3.6 hereof, as appropriate. Each Contract Services Provider
shall have a complete medical evaluation prior to assignment comparable to that
required for health care providers at hospitals by Section 405 of the New York
State Health Code. Each Contract Services Provider shall grant the Contractor
permission to release reports with respect to such examinations to the
Corporation and the Contractor shall furnish to the Corporation any reports
with respect to such medical evaluations that the Corporation may require.
3.4.2 Each Contract Services Provider shall be duly licensed in
medicine, or in his or her discipline as appropriate, and currently registered
by the State and by The United States Drug Enforcement Agency, if required.
Each Contract Services Provider shall maintain required licensure. The
Contractor shall provide to CHS with respect to each Contract Services
Provider, as appropriate, proof of current licensure and/or registration,
infection control certificates approved by the State Department of Health,
board-certification status, medical degree and certificates of internships,
residencies and fellowships and any other pertinent information concerning
credentials, medical or other clinical practice and past licensing. The
Contractor shall, upon hiring and on an biennial basis thereafter, make an
inquiry of the National Practitioner Data Bank with respect to each Physician
Provider and forward to CHS the information it receives as a result of each
such inquiry.
3.4.3 The performance of each Contract Services Provider who has
rendered Contract Services for at least one year shall be evaluated by the
Contractor at least annually, and a written copy of each such evaluation shall
be provided to the Corporation
19
within three months of the end of each Contract Services Provider's annual
anniversary date. Upon any failure to do so, the Contractor shall be subject to
liability to the Corporation in the sum of $500, as liquidated damages and not
as a penalty, for each such failure.
3.4.4 The Contractor shall use its best efforts to ensure that no
Contract Services Provider who has been found guilty of a crime shall provide
Contract Services. Such best efforts shall consist of asking each potential
Contract Services Provider in the job application whether he or she has ever
been convicted of a crime. Subject to the provisions of applicable law
(including but not limited to Section 752 of the New York Correction Law) the
Contractor shall not hire any person who the Contractor knows has been convicted
of a crime. If the Contractor discovers that a Contract Services Provider
already hired to provide Contract Services hereunder has been convicted of a
crime, the Contractor shall no longer allow such person to provide Contract
Services, unless the Chief Executive, upon consultation with the Commissioner of
DOC, waives this requirement.
3.4.5 The Contractor shall immediately notify the Chief Executive of
any criminal investigation of a Contract Services Provider that it discovers.
3.5 PHYSICIAN PROVIDER QUALIFICATIONS
3.5.1 The Contractor shall ensure that, except as otherwise provided
in this Agreement or by written authorization of the Chief Executive, all
Physician Providers (except podiatrists and dentists) shall be board-certified
or board-eligible. Notwithstanding the foregoing, all Physician Providers
(except podiatrists and dentists) providing Contract Services in the Urgi-Care
Center shall be board-certified. All Physician Providers shall be duly licensed
in the State.
3.5.2 All board-eligible Physician Providers shall become
board-certified within the time limits specified by their specialty or within
two (2) years of their hiring, whichever comes first. If any such board-eligible
Physician Provider fails to become board-certified within such required time
frame, he or she may continue to provide Contract Services only upon the written
approval of the Chief Executive.
3.5.3 In certain instances approved in writing by the Medical
Director, limited license physicians providing Contract Services at the
commencement of this Agreement (and who provided such services through a
previous contractor with the Corporation) may continue to do so. Notwithstanding
the foregoing, the employment of each such limited license physician must be
terminated on or before December 31,2001, unless the Physician Provider has
become fully licensed by such time, or unless the Chief Executive approves any
extension of such time in writing. No limited license physician shall be hired
by the Contractor to perform Contract Services during the term of this
Agreement.
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Any limited license physician performing Contract Services hereunder must be
supervised by an on-site licensed Physician Provider at all times.
3.6 NON-PHYSICIAN PROVIDER QUALIFICATIONS
In addition to the requirements set out in Section 3.4 hereof, the
Contractor shall ensure that each Non-Physician Provider:
3.6.1 shall meet such professional standards as are established in
the Regulations;
3.6.2 shall have, and shall maintain, all required credentials and
qualifications, including, but not limited to, graduation from an accredited
education or training program, and where appropriate and if available, special
certification. Records pertaining to such credentials and qualifications shall
be updated annually for each Non-Physician Provider and shall be made available
to the Corporation within ten (10) days of request; and
3.6.3 shall be board-certified or board-eligible, if practicing in a
specialty in which Board certification is available. To the extent that
qualification to sit for the boards is unlimited by time, Board certification
must be obtained within two years of hire. If any such board-eligible
Non-Physician provider fails to become board-certified within such required time
frame, he or she may continue to provide Contract Services only upon the written
approval of the Chief Executive.
3.7 ASSIGNMENT OF CONTRACT SERVICES PROVIDERS
The Contractor shall ensure that adequate and appropriate Physician
Provider and Non-Physician Provider staff are assigned and provided in
accordance with provisions of this Agreement, the Regulations and in compliance
with the applicable requirements of any grants, the funding for which is
received by the Corporation. A list of the current CHS grants is attached hereto
as Attachment K. The Corporation shall notify the Contractor of all such grant
requirements. The Contractor shall have the authority and the responsibility to
assign and reassign Physician Providers and Non-Physician Providers in order to
fulfill its obligations hereunder, subject to the provisions of Section 3.2
hereof.
3.7.1 The Contractor shall prepare and provide to the Chief
Executive at least thirty (30) days before the first calendar day of each month
during the term of this Agreement an Assignment Schedule of all Contract
Services Providers scheduled to work in each Facility during that month. The
schedule for the first month of the term of this Agreement shall be provided to
the Chief Executive on or before December 28, 2000. Any subsequent amendments to
such schedules (except for replacements necessitated by unexpected absences or
illnesses) shall be delivered promptly to the Chief Executive.
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Within seven (7) days after the end of each calendar month during the term of
this Agreement, the Contractor shall deliver to the Chief Executive a reconciled
Assignment Schedule, with an explanation for any variances from the original
schedule.
3.7.2 All Assignment Schedules required pursuant to this Section 3.7
shall specify the following and any other information the parties may agree to:
(a) the name and title of each Contract Services Provider;
(b) whether the assignment is full-time, part-time, sessional
(other than full- time or part-time) or other;
(c) the location to which the Contract Services Provider is
assigned;
(d) the hours of the assignment;
(e) the "on-call" service schedule; and
(f) the names of those Contract Services Providers taking
vacation.
3.7.3 In the event the Corporation determines that any Assignment
Schedule submitted by the Contractor contains erroneous, incomplete, or
otherwise insufficient information with respect to the Contract Services
provided by the Contractor, then the Corporation shall, within seven (7) days of
receiving the Assignment Schedule, submit a written statement to the Contractor
detailing the reasons for such determination. The Corporation's right to examine
the Assignment Schedule for completeness and accuracy shall not preclude other
audit rights that may be granted to the Corporation elsewhere in this Agreement.
Upon receipt of the written statement from the Corporation, the Contractor shall
have seven (7) days within which to correct or supplement the Assignment
Schedule in a manner acceptable to the Corporation.
3.7.4 The Contractor shall provide to the Corporation, on a regular
basis, a current and updated list of Contract Services Providers assigned to
work on Rikers Island. The list shall include names, dates of appointment,
titles and vehicle information. Such updated information shall be furnished
expeditiously whenever a new appointment, retirement or termination occurs.
3.8 QUALITY ASSURANCE AND RISK MANAGEMENT
The Contractor will establish and implement such effective mechanisms
as are necessary to ensure that the quality and appropriateness of Patient Care
Services and the clinical performance of all Contract Services Providers
providing Patient Care Services are monitored and evaluated, and that timely
efforts are made to ensure the quality and appropriateness of the care
delivered. Upon failure to comply with any material requirement of this Section
3.8, the Contractor shall be subject to liability to the
22
Corporation in the sum of $1,000, as liquidated damages and not as a penalty,
for each such occurrence. The Corporation agrees that no liability hereunder
will be imposed upon the Contractor if its failure to meet any Quality Assurance
requirement of this Section 3.8 is solely attributable to the failure of the
Corporation to provide the Contractor with notice of a pending claim or lawsuit
against the Corporation and/or the City.
3.8.1 Quality Improvement.
The Contractor shall participate fully in the activities of the CHS
Performance Improvement Plan ("PIP") (annexed to the RFP and incorporated herein
as Attachment F) and any subsequent version, including the establishment of a
committee structure as outlined in the PIP. Committees established at each
Institution served by the Contractor, as well as the Rikers Island-wide
committee shall meet as required by the PIP, and agendas, attendance sheets and
minutes shall be maintained and forwarded to the CHS Director of Quality
Management after each meeting. Contractor staff shall attend other departmental
and system-wide quality improvement meetings as described in the PIP. The
Contractor's committees shall develop quality improvement projects within and
across Institutions, and the Contractor shall provide Continuous Quality
Improvement training to all relevant personnel.
3.8.2 Mortality and Morbidity Meetings.
In addition to the Contractor's participation in the Mortality and
Morbidity ("M&M") meetings as described in the PIP and scheduled by the
Corporation, the Contractor shall conduct its own peer review of all deaths and
significant occurrences, as identified by the Medical Director or the Program
Medical Director, concerning Inmates who were in the Contractor's care. The
reviews shall include the drafting of chart summaries and findings of fact,
following a format determined by CHS, that shall be shared with the joint M&M
committee. The Contractor shall also be responsible for presenting all such
cases to the joint M&M committee and in implementing any and all corrective
actions that are developed as a result of those meetings, and/or are directed by
the Medical Director.
The Contractor's staff (senior mental health staff, including the
Program Mental Health Director, and mental health unit chiefs) shall also
participate in monthly Suicide Attempt M&M meetings with CHS staff. For each
suicide attempt in an Institution for which Contract Services are provided by
the Contractor, the Contractor shall be required to submit in advance of these
meetings a written report, following a format determined by CHS, including a
description of the incident, facts leading up to the incident and the outcome of
the incident including a corrective action plan, if necessary.
3.8.3 Risk Management.
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The Contractor shall designate a person to whom CHS may forward
complaints and other inquiries (e.g. State Commission of Corrections Medical
Review Board reports) and who will be responsible for responding thereto. Such
responses shall be handled within the time frames specified by the Corporation.
That notwithstanding, designated CHS staff members shall have direct access to
the Contractor's clinical and administrative staff at the Institutions who shall
cooperate fully with regard to any investigations undertaken by such CHS staff.
CHS staff shall also have direct access to all patient records and other patient
care-related material, such as logbooks, which shall include information
maintained by the Contractor's patient advocates. The Contractor will comply
promptly with any corrective action that may be recommended by CHS upon the
conclusion of its investigation.
The Contractor shall report all Inmate deaths and other reportable
incidents promptly upon their occurrence to the CHS Director of Risk Management.
Copies of all completed incident reports shall be forwarded to the CHS Director
of Risk Management within five (5) days of their completion.
3.8.4 DOH Access to Contract Services Information
It is understood by the parties that the disclosure to DOH of, and
access by DOH to, information concerning the Contract Services performed
hereunder shall be governed by the terms of the contract between DOH, DMHMRAS,
DOC, the Corporation and the City, and shall not be limited by any provisions of
this Agreement.
3.9 POLICIES AND PROCEDURES
In connection with its obligation to comply with all CHS policies and
procedures, no operational protocols or guidelines shall be issued or
implemented by the Contractor without CHS approval, which shall not be
unreasonably withheld or delayed. Upon any failure by the Contractor to comply
with this Section 3.9, the Contractor shall be subject to liability in the sum
of $1,000, as liquidated damages and not as a penalty, for each such occurrence.
3.10 INFORMATION SYSTEMS
During the term of this Agreement and after termination, the
Corporation will own all hardware and software purchased, developed and
maintained by the Contractor specifically to assist in the performance of
Contract Services hereunder (and not owned or leased by the Contractor prior to
the commencement of the term of this Agreement). All licenses for software and
hardware established by the Contractor hereunder will be transferred to the
Corporation upon termination, if assignable. All new licenses obtained by the
Contractor during the term of this Agreement, to assist in the performance of
Contract Services, shall be assignable to the Corporation. In the event the
Corporation decides to implement, in any of the Corporation's other facilities,
the information systems
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provided by the Contractor hereunder, the Contractor shall provide all necessary
technical assistance and support.
The information systems shall meet, at a minimum, the following
specifications:
(a) The network and servers will be set up in the following
manner:
(i) Any data network design provided by the Contractor must be
independent of the DOC network infrastructure, with the
exception of telecommunication service from DOC
Telecommunications, from the Institutions to the proposed
Institutions-based correctional health data center. Documented
costs incurred by DOC to install and maintain the Contractor's
telecommunications service (which costs would not have been
incurred but for the Contractor's actions) as well as
documented costs incurred by DOC for providing escorts to the
Contractor's installation crews will be reimbursed by the
Contractor.
(ii) Any data network design provided by the Contractor will
include connection to the Corporation's central office at
transmission speeds of 384 MBP or better. The Contractor will
ensure that the Corporation is able to utilize the data
network for both applications the Contractor installs and for
managerial applications that the Corporation develops
including, but not limited to, data collection applications
for on-site audits.
(iii) All aspects of the information systems provided by the
Contractor will operate independently of systems servicing the
Contractor's own facilities.
(b) The Contractor will continue to use and will assume
responsibility for the maintenance of, existing voice/telephone service and
networks being utilized by previous contractors. Any proposed plans to
re-engineer voice networks must be approved in writing by the Chief Executive,
who will consult with DOC.
(c) The Contractor will, to the extent possible, maintain existing
applications in ancillary service areas (e.g.. pharmacy, laboratory, radiology)
and the application supporting the mental observation units until such time as
any change may be approved by die Chief Executive.
(d) The Contractor is responsible for the accuracy and
completeness of Inmate information databases generated during the term of this
Agreement. Except as otherwise provided herein, all Inmate information,
including both electronic and manual records, shall be held confidential by the
Contractor and shall not be disclosed, unless required by law, and then only
upon notice to, and approval by, the Corporation, after consultation with DOC.
As set out in Section 5.1.2 hereof, the Corporation will respond, on behalf of
the Contractor, to all subpoenas and requests for Medical Records. Data obtained
by the
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Contractor through the information system will be used by the Contractor solely
to ensure appropriate medical care and discharge planning for Inmates. The
Contractor will keep strictly confidential Inmate identifiers, movement and
classification data. The Contractor shall indemnify and hold harmless the
Corporation and its agents and employees, and DOC and its agents and employees
from any and all claims, suits, actions, proceedings, costs, expenses, losses or
damages arising from, or in any way related to, the Contractor's wrongful
disclosure of such data.
(e) The Contractor shall provide and ensure adequate security of
the information systems to protect the confidentiality of all information with
respect to the Corporation, the Institutions and the Inmates in the course of
installing, maintaining and supporting the information systems. The Contractor
will ensure protection from inside and outside threats to security including,
but not limited to, controlling access to information systems, controlling
remote connectivity, controlling access to data, and ensuring accountability.
The Contractor shall defend and indemnify the Corporation and its agents and
employees, and DOC and its agents and employees from and against any and all
claims, losses and actions that arise from a breach of this Section 3.10
3.11 HIPAA COMPLIANCE PROCEDURES
The Contractor will comply with its own security policies, procedures
and standards in when discharging its responsibilities hereunder. It will ensure
that all confidential information concerning Infants and correctional officers
and on-site personnel will be held in the strictest confidence and will obtain
such assurances from any third party with whom it enters into subcontracts for
the performance of services required hereunder. The Contractor and its
Subcontractors will comply with all procedural activities that may be required
to achieve compliance with the HIPAA rules and regulations as they become final.
The Contractor shall be liable for any acts, failures, or omissions by any such
third party in its obligations with respect to compliance with HIPAA. This
Agreement will be deemed to include all such final rules and regulations,
including any amendments thereto.
4. RESPONSIBILITIES OF CONTRACT SERVICE PROVIDERS
4.1 ORGANIZATION
The Contractor shall provide and recommend to the Medical Director and
Chief Executive for appointment or reappointment such Physician Providers as are
necessary to provide Contract Services. Such appointments shall be subject to
approval by the Chief Executive and final approval by the President.
Such appointees shall be responsible for providing Patient Care
Services, in a manner that will ensure adequate patient care in accordance with
accepted community standards, and for fulfilling the responsibilities set forth
in the Regulations.
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4.2 RESPONSIBILITIES OF CONTRACT SERVICES PROVIDERS
Contract Services Providers shall, as a condition of their continued
assignment by the Contractor to the Institution, be responsible for performing
their duties in accordance with the Regulations and for the efficient delivery
of such Contract Services included in their job descriptions. Each Contract
Services Provider shall participate in such activities as are so identified and
assigned and shall cooperate fully with CHS personnel. Such duties shall
include, but not be limited to the following, as appropriate:
(a) Participation in in-service education and continuing
education;
(b) Attendance at meetings, as required;
(c) Monitoring and evaluating all activities supportive of Patient
Care Services for timeliness, quality and appropriateness as part of the
Institution's overall quality-of-care review process;
(d) Timely completion and maintenance of Medical Records;
(e) Delivery of Contract Services by a Non-Physician Provider
under the supervision of a designated Physician Provider, if required by
applicable law;
(f) Action in accordance with the Regulations and the Performance
Indicators, as well as any amendments which are established by the Corporation
from time to time;
(g) Delivery of Contract Services in compliance with Inmates'
rights, as set forth in Section 4.2.2 hereof;
(h) Participation in performance improvement activities;
(i) Cooperation with any Research that may be conducted at the
Institutions; and
(j) Participation in the processes pursuant to which appointment
and reappointment are made.
4.2.1 Credentials and Privileges
The parties shall jointly direct the Contract Services Providers to
adhere to the Corporation's credentialing policies and procedures.
4.2.2 Inmates' Rights
The Contractor and its Contract Services Providers shall act in
accordance with the Regulations, as applicable, and amendments thereto which,
from time to time, may be established by the Corporation, after consultation
with DOC, concerning Inmates' rights
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(i) to be treated with dignity; (ii) to non-discrimination; (iii)
to confidentiality; and (iv) to know their diagnoses, prognoses and available
modalities of care (as long as any amendments established by the Corporation
other than those required by applicable State, Federal and local laws, rules and
regulations are consistent with the terms of this Agreement).
4.2.3 Third Party Reimbursement and Reimbursement from Inmates -
Provision of Information
The Contractor and its Contract Service Providers shall act
cooperatively, consistent with the terms of this Agreement, to enable the
Corporation to recover all reimbursable costs, including related overhead,
available from all Third-Party Reimbursement Sources, or reimbursement obtained
directly from Inmates and Infants which the Corporation does not otherwise
possess.
4.2.4 Cost Reporting Data
The Contractor shall provide all data requested by the Corporation that
are reasonably necessary to enable the Corporation to meet all cost-reporting
requirements under the Regulations. The Corporation shall notify the Contractor
annually of the specific information needed. The Contractor shall provide such
information on a timely basis following the Corporation's reasonable request
therefore. This information shall be subject to revision, from time to time,
based upon Regulations then currently in effect.
5. MEDICAL RECORDS
All Medical Records maintained by the Contractor are the property of
the Corporation, and as such, appropriate CHS staff are entitled to immediate
access to them. All Medical Records shall be maintained in accordance with the
standards set out in the RFP and in compliance with the Regulations, and will be
maintained on-site for three years. Thereafter, upon being indexed, bar-coded
and boxed by the Contractor in boxes provided by the Corporation, such Medical
Records will be transported by the Corporation to its off-site storage location.
Upon any failure to comply with the requirements of this Section 5, the
Contractor will shall be subject to liability to the Corporation in the sum of
$1,000, as liquidated damages and not as a penalty, for each such occurrence. No
such liability will accrue hereunder or under any relevant Performance Indicator
if the Contractor's failure to comply, or its delay in compliance, is due solely
to removal of a Medical Record from the custody of the Contractor by the
Corporation or by DOC.
5.1 MAINTENANCE OF MEDICAL RECORDS
5.1.1 The Medical Records of an Inmate or an Infant shall be
maintained at the Institution in which he or she is housed, and, upon discharge
of an Inmate or departure of
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an Infant, where he or she was last housed. The Medical Records of a
correctional officer or on-site civilian personnel treated hereunder shall be
maintained in a location determined by CHS. There shall be a Master Patient
Index maintained on a current and up-to-date basis, which shall be available to
CHS upon request. To the extent that Medical Records are in electronic form, CHS
employees shall have instant access to them at all times (including print
capability) at each Institution. In addition, if Medical Records are in
electronic form, CHS employees must be provided access at a minimum of eight (8)
locations, both on and off Rikers Island, at sites to be determined by CHS.
5.1.2 The Contractor shall ensure that Medical Records are complete,
in order (as required by CHS policy), and contain all progress notes pertaining
to the care of Inmates and Infants within twenty-four (24) hours of the care
being provided, or sooner, if possible, in the event an Inmate is being
transferred to another Institution. In addition, Medical Records will include
complete reports of all ancillary services within twenty-four hours of their
availability to the Contractor. The Contractor must make Medical Records
available in time frames to be determined by CHS when requested for M&M reviews
and preparation of responses to subpoenas, court orders and other authorized
requests (including those of regulatory agencies). Unless otherwise directed by
CHS, all requested Medical Records must be produced directly to CHS for further
dissemination. Requested records must be provided to CHS in hard copy form
within ten (10) business days of the request unless CHS requests that the
records be provided on an expedited basis, in which case the Contractor shall
make best efforts to provide them within the requested time frame.
5.1.3 Contract Services Providers shall provide legible, clear,
accurate documentation within each Medical Record of the care rendered. Such
documentation shall be in compliance with the Regulations. The Contractor shall,
on a quarterly basis and more often as necessary, notify all Contract Services
Providers of their responsibilities to complete the Medical Record as indicated
and within the required time frame.
5.1.4 In the event the Corporation shall have notified the
Contractor of any failure by a Contract Services Provider to complete Medical
Records as required herein the Contractor shall notify such Contract Services
Provider that unless the Medical Records at issue shall have been completed
within three (3) working days following such warning, the Contractor shall not
permit such Contract Services Provider to provide Contract Services until all
Medical Records for which he or she is responsible have been completed. Upon any
Contract Services Provider's ceasing to provide Contract Services as a result of
his or her failure to comply with the provisions of this Section 5.1, the
Contractor shall ensure that the Contract Services previously provided by such
Contract Services Provider continue to be provided without additional cost to
the Corporation.
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5.2 CONFIDENTIALITY OF MEDICAL RECORDS AND ACCESS
Except as provided in the Regulations, all Inmate and Infant Medical
Records shall be treated as confidential. CHS, and/or its designated agent, and
personnel from regulatory agencies authorized to do so by CHS, shall have the
right at any time, however, to inspect any Medical Records maintained by the
Contractor belonging to CHS. Any subpoena or other request for Medical Records
will be referred promptly to CHS for direction and CHS will respond
expeditiously to such referrals.
6. EQUIPMENT
6.1 MAINTENANCE. PREVENTIVE MAINTENANCE AND SANITATION
The Contractor is responsible for maintenance and preventive
maintenance of all equipment. Preventive maintenance of any item shall be at a
level sufficient to enable the item to remain useful throughout its expected
useful life. All maintenance contracts shall include language making them
assignable to the Corporation upon termination of this Agreement. The
Corporation shall reimburse the Contractor for the reasonable costs of such
maintenance. Notwithstanding the provisions set forth below, the Corporation
shall not be obligated to pay for any repair or replacement which the
Corporation reasonably determines is required due to the Contractor's
demonstrable failure to fulfill its responsibility for maintenance and
preventive maintenance of the item requiring repair or replacement. In addition,
the Contractor shall be responsible for the sanitation of all medical equipment
and medical storage areas.
6.2 OWNERSHIP AND PURCHASE OF EQUIPMENT
6.2.1 The Corporation shall own all equipment, furnishings, supplies
and fixtures at the Institutions, whether present at the commencement or
purchased during the term of this Agreement, and shall reimburse the Contractor
for the repair, replacement, purchase or lease of any such item, pursuant to
Attachment B. The Corporation's written approval, which shall not be
unreasonably withheld or delayed, is required for the repair, replacement,
purchase or lease of any item costing $500 or more (in purchase price or in
annual lease payment amounts). In the event a request to repair, replace,
purchase or lease is not approved by the Corporation, and if in the opinion of
the Medical Director, such repair, replacement, purchase or lease would not
jeopardize patient care, then the Contractor may, at its own option and expense,
proceed with such repair, replacement, purchase or lease.
6.2.2 The Corporation may, within thirty (30) days of notification
by the Contractor (or within a reasonable shorter time frame specifically
requested by the Contractor in any instance), choose whether or not to pay for a
repair, replacement, purchase or lease. Should it choose to pay, the Corporation
may do so, at its option, by paving the vendor directly or by reimbursing the
Contractor for its payments to the
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vendor, net of any discounts, credits, rebates or other price reductions applied
by the vendor in connection therewith. All leases entered into by the Contractor
for approved items that extend beyond the term of this Agreement shall have
language making them assignable to the Corporation.
6.3 SUBSTANDARD ITEMS
6.3.1 The parties shall conduct an inventory prior to January 10,
2001, and compile a list of items deemed to be in substandard condition as of
the date of such inventory and which will be repaired or replaced. The parties
shall also include in such list the nature of the repairs or replacements that
will be required. The Corporation shall have the final authority to determine
the items on the list and the extent of any repairs or replacements.
6.3.2 The Corporation shall be responsible to promptly effect and
pay for repairs or replacements specified on such list.
7. [INTENTIONALLY LEFT BLANK]
8. WAREHOUSE; PROVISION OF SUPPLIES
CHS maintains a warehouse in Queens for the provision of medical
supplies, Pharmaceuticals and office supplies to facilities directly operated by
CHS. The Contractor may, in case of emergency, order inventoried material from
the CHS warehouse by completing designated forms and submitting them to the
Warehouse Director. The Contractor will be billed and will pay the Corporation's
cost.
9. SUPPLIES AND MEDICATION
9.1 FORMS
All forms used for medical, mental health, administrative, fiscal and
operational purposes must be in a format approved by the Corporation, and must
be provided by the Contractor at its cost.
9.2 REVIEW OF EXISTING INVENTORY
Before January 1,2001, the parties will review the existing inventory
of medical, surgical and pharmaceutical supplies ("supplies") and of the
equipment at each of the Institutions and will prepare a list of such supplies
and their cost. Possession of such supplies and equipment will be transferred to
the Contractor as of the commencement of this Agreement.
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9.3 INVENTORY
The Contractor will maintain an inventory of all medications and
supplies used at each of the Institutions so that in no event will any necessary
medication or supplies ever be unavailable at any Institution. By January 1,
2001, the parties will agree upon appropriate par levels for such medication and
supplies, including re-order points.
9.4 PURCHASES
9.4.1 Supplies (including all drugs and durable medical equipment)
required for the provision of Contract Services shall be provided to the
Contractor by the Corporation. In the event the Corporation is unable to provide
necessary supplies, the Contractor shall purchase such supplies from other
sources, upon prior notice to and consent by the Corporation, except in cases of
emergency where no such consent will be necessary. The Corporation shall
reimburse the Contractor for the cost of such purchases.
9.4.2 The Contractor shall maintain separate records documenting the
purchases of medical supplies and drugs; the bills received therefore, payments
made and the proposed use of the item.
9.4.3 The Contractor shall purchase all necessary administrative
supplies, services and equipment to operate the program from within the
Compensation paid pursuant to Section 14 hereof, provided, however, that no such
purchase or requisition of administrative supplies, services or equipment
(including all components thereof) by the Contractor at a cost which exceeds
$500 shall be made without written approval from CHS, which shall not be
unreasonably withheld or delayed. The Contractor shall maintain records
adequately documenting all purchases, including the appropriate authorization
given prior to making the actual purchase.
9.4.4 Copies of all receipts, purchase orders and requisitions must
be kept at the Institution originating the requisition or at the Contractor's
Central Rikers Island Administrative Office.
9.4.5 The Contractor shall establish an inventory control system
satisfactory to the DOC Commissioner on or before January 31, 2001, and shall
provide CHS with inventory reports at such times and in such forms, as it shall
reasonably require.
9.5 DOCUMENTATION OF RECEIPT OF MEDICATION
The Contractor will document, in the manner prescribed by CHS, the
receipt of each medication into the Institutions.
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9.6 DOCUMENTATION OF DISPOSITION OF MEDICATION
The Contractor will document, in the manner prescribed by CHS, each
disposition of all medication.
9.7 MEDICATION DISTRIBUTION PLANS
Medication distribution plans for Inmate pill-lines will be developed
in cooperation with DOC Facility management. The Contractor may not implement a
new or different medication procedure or distribute medication at a different
location without the prior written approval of DOC and the Chief Executive.
9.8 SUPPLYING BOROUGH HOUSES
If CHS has an emergency need for medical, surgical and/or
pharmaceutical supplies, it may, at its option, requisition such supplies from
the Contractor. The Contractor shall deliver to CHS any supplies requisitioned
by CHS. To the extent the Contractor purchases such supplies, the Corporation
shall reimburse the Contractor for such cost. Notwithstanding the foregoing, the
Contractor shall have no obligation pursuant to this Section 9.8 if any such
purchase and delivery would result in a failure by the Contractor to comply with
the provisions of Section 9.3 hereof.
9.9 FAILURE TO COMPLY
Upon any failure of the Contractor to comply with the requirements of
subsections 9.1,9.3,9.4.2,9.4.5 or 9.6, the Contractor shall be subject to
liability to the Corporation in the sum of $1,000, as liquidated damages and
not as a penalty, for each such occurrence.
10. HOSPITAL SERVICES
10.1 TRANSFER OR REFERRAL OF INMATES
10.1.1 An Inmate will be transferred for inpatient admission or
referred for outpatient specialty services (including ambulatory surgery) or
Emergency Services to a Hospital only in the event the Contractor cannot provide
a Medically Necessary service at the Institutions. Such transfers and referrals
will be made to Participating Hospitals unless the required services are not
available at a Participating Hospital, or emergency circumstances dictate
otherwise. In the event the required services are available at another
Corporation Hospital, the transfer or referral will be made to the Corporation
Hospital where the required services are available. An Inmate may be transferred
or referred to a Hospital not operated by the Corporation only when required
services are not available at any Corporation Hospital, or in an emergency.
Transportation to and from a Hospital will be effected by DOC or EMS, as
appropriate, and not by the Contractor. The Contractor will bear no
responsibility for the costs of such
33
transportation, the timeliness of the response by DOC or EMS to a call for
service, or the care that EMS provides or fails to provide.
10.1.2 Each Inmate transferred or referred for a Hospital service
will be accompanied by relevant medical information in summary form. All
necessary pre-admission or pre-visit tests and work-ups that can be completed
will have been completed by the Contractor. The Contractor will provide to the
Hospital relevant information on treatment procedures and diagnostic tests
performed prior to admission or referral, as well as any other relevant data.
Upon any failure of the Contractor to comply with the provisions of this
subsection 10.1.2, the Contractor shall be subject to liability to the
Corporation in the sum of $1,000, as liquidated damages and not as a penalty,
for each such occurrence.
10.2 TRANSFER TO ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ MEMORIAL HOSPITAL
The Contractor shall, upon the written approval of the Chief Executive
or his or her designee, transfer to ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Memorial Hospital any Inmate
requiring long-term care if a bed is available in its secure unit which
currently has six (6) beds.
10.3 OUTPATIENT SPECIALTY SERVICES
The Contractor will make appointments at the Participating Hospitals
for outpatient specialty services (including ambulatory surgery) that are not
available at the Institutions. The Participating Hospitals will maintain weekly
appointment hours and will maintain emergency and on-call services at all times.
11. MODIFICATION OF SERVICES
At any time during the term of this Agreement, the Corporation shall
have the unilateral right to terminate or decrease the scope of any of the
Contract Services. The Corporation also shall have the unilateral right to add,
increase the scope of, or reconfigure a service (including providing a service
at a different location within the Institutions). Until notified by the
Corporation of its election to do so, the Contractor shall not be responsible
for (i) the provision of Contract Services at the ▇▇▇▇▇▇ ▇. ▇▇▇▇ Center
("VCBC"), at the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Center ("JATC") or services other than CDU at
the West Facility ("West"); or (ii) the provision of an Electronic Medical
Records system pursuant to Section 3.1.11.
11.1 ADDITION OF SERVICES
In the event the Corporation elects to add or include services to be
provided by the Contractor pursuant to this Section 11.1, such services will be
provided upon thirty (30) days of notification of such election by the
Corporation (notwithstanding the sixty (60) day period to fill a vacancy
pursuant to Section 3.2.3(b)). Should the Contractor fail to provide Contract
Services at VCBC, JATC or West, or additional or expanded Contract
34
Services pursuant to Section 11.1 within thirty (30) days of notification of the
Corporation's election (except for the Electronic Medical Records system which
shall be provided in accordance with the time schedule established pursuant to
Section 3.1.11), the Contractor will be subject to liability to the Corporation
(i) as liquidated damages and not as a penalty, in the amount of $1,000 per day
for each unfilled position necessary to provide such Contract Services until
such time as the Corporation makes provision for such Contract Services through
alternate arrangements and (ii) for its actual damages (including any additional
costs and expense incurred) resulting from such failure from the time such
alternate arrangements are made, which the Corporation may deduct from the next
one or more Semi-Monthly Payments.
11.1.1 Should the Corporation elect to add services not encompassed
by Contract Services specified in Section 3.1, it may also, within its sole
discretion, elect to require the Contractor to provide such services and the
Contractor shall do so. The Corporation may also, within its sole discretion,
and without liability to the Contractor therefor, elect to contract with another
party, without limitation by the Contractor with respect to the Corporation's
choice of such party, to provide such additional services.
11.1.2 (a) Should the Corporation elect to include within Contract
Services those services at VCBC, JATC and/or West, as described in the RFP, and
in the Response, (i) the Mandated Staffing for such services and approved
salaries shall be those set forth in Attachments ▇-▇, ▇-▇, ▇-▇, ▇-▇ and/or A-5;
and (ii) Compensation Due shall be increased pursuant to the provisions of
Attachment B.
(b) Should the Corporation elect to include Contract
Services at VCBC which will encompass Mental Health services for approximately
400 beds, (i) Mandated Staffing and approved salaries for VCBC, and any
necessary modifications in Mandated Staffing for other Institutions, shall be as
set forth in Attachment ▇-▇, ▇-▇, ▇-▇, ▇-▇ and/or A-5; and (ii) Compensation Due
shall be increased pursuant to the provisions of Attachment B.
(c) Should the Corporation elect to include within
Contract Services the provision and maintenance of the Electronic Medical
Records system pursuant to Section 3.1.11, Compensation Due shall be increased
pursuant to the provisions of Attachment B.
11.1.3 Should the Corporation elect to include within Contract
Services (i) any other services pursuant to Section 11.1.1; (ii) services at
VCBC differently configured than as described in Section 11.1.2; or (iii)
discharge planning services, described hi Section 3.1.4(viii), expanded beyond
the scope of such services provided at the commencement of this Agreement, then
the parties shall negotiate in good faith with respect to appropriate and
reasonable increases in Mandated Staffing and Compensation Due. If the parties
fail to reach agreement, the Corporation shall make such determinations, which
the Contractor shall implement but may challenge in Dispute Resolution pursuant
to Section 16 as inappropriate and unreasonable.
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11.2 TERMINATION OR DECREASE OF SERVICES
11.2.1 The Corporation will notify the Contractor of any decision it
may make, within its sole discretion, to terminate or decrease the scope of any
Contract Services. Any such notification will be given at least thirty (30) days
before the effective date of such termination or decrease. In the event that any
such termination or decrease is effected by the Corporation as a result of the
Contractor's material breach in its performance of the Contract Services so
terminated or decreased, then the Corporation shall have the absolute right to
(i) contract with another party, without limitation by the Contractor on its
choice of such party, to provide the Contract Services so terminated or
decreased, and (ii) reduce the next one or more Semi-Monthly Payments by the
amount of the Corporation's actual damages resulting from such material breach.
The Contractor agrees that in such event, its remedies for any wrongful
termination or decrease shall be limited to a claim for monetary damages (for
any profits lost by virtue of a wrongful termination or decrease) and shall
exclude any claim for equitable relief.
11.2.2 In the event of such termination or decrease of Contract
Services, the parties shall negotiate in good faith with respect to appropriate
and reasonable decreases in Mandated Staffing and Compensation Due. If the
parties fail to reach agreement, the Corporation shall make such determinations,
which the Contractor shall implement but may challenge in Dispute Resolution
pursuant to Section 16 as inappropriate and unreasonable.
11.3 RECONFIGURATION OF SERVICES AND SPECIAL CIRCUMSTANCES
11.3.1 In the event of any significant and sustained changes in (i)
treatment or community care standards (including, but not limited to, approval
of new drug classes, new diagnostic tests or new surgical procedures); (ii) the
Regulations affecting the scope and delivery of Contract Services; or (iii) the
locations at which Contract Services are provided (excluding the closing of an
Institution by DOC pursuant to Section 3.2.2 or the inclusion of services at
VCBC, JATC and/or West pursuant to Section 11.1.2), which changes are likely to
have material impact on required staffing or the Contractor's costs, the parties
shall negotiate in good faith with respect to appropriate and reasonable
modifications in Mandated Staffing and Compensation Due. If the parties fail to
reach agreement, the Corporation shall make such determinations, which the
Contractor may challenge in Dispute Resolution pursuant to Section 16 as
inappropriate and unreasonable.
11.3.2 Any variations in the ADC are governed by Section 3.2 and
shall not constitute a Modification of Services contemplated by this Section 11.
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12. PERFORMANCE INDICATORS & MONITORING
The Contractor shall ensure the professional, timely and cooperative
response of Contract Services Providers to all requests of the Corporation for
information or assistance regarding any aspects of Performance Indicator
reporting, performance monitoring and general oversight. The Contractor will
provide to the Corporation an immediate response with regard to all available
information upon request therefor, unless a longer period for compliance with a
particular request is set out in this Section 12.
12.1 DEFINITION AND PURPOSE
The Contractor agrees to meet and to document threshold levels of the
Performance Indicators. The Performance Indicators, benchmarks, and time frames
for compliance and the schedule for reporting and evaluation are set out in
Attachment C annexed hereto and incorporated herein.
12.2 FAILURE TO COMPLY
Any failure by the Contractor to meet prescribed thresholds of a
Performance Indicator will result in the payment by the Contractor, as
liquidated damages and not as a penalty, of the amounts set out in Attachment C.
Such payment shall not diminish the Contractor's obligation to provide necessary
Contract Services as required by this Agreement. If the Contractor fails to meet
the prescribed thresholds of any Performance Indicators due to factors outside
the Contractor's control, the Contractor shall have no obligation with respect
to that same Performance Indicator to the extent that its failure is due to such
factors. Furthermore, the amount of liquidated damages, if any, will be reduced
by an amount proportionate to the extent that the Contractor's failure is due to
such factors. To the extent the liquidated damages that may be owed by the
Contractor to the Corporation pursuant to this Section 12.2 overlap or conflict
with liquidated damages that may be owed by the Contractor pursuant to any other
Section of this Agreement, this Section 12.2 shall prevail.
12.3 CORPORATION PERFORMANCE MONITORING
The Corporation shall monitor and evaluate the performance of the
Contractor under this Agreement at such times in such manner as the Corporation
deems appropriate. Such monitoring may include, but is not limited to, regular
reviews of Performance Indicator threshold compliance.
12.4 PERFORMANCE MONITORING STAFF
The Contractor will establish and maintain a staff sufficient to
monitor and report its own performance with regard to these Performance
Indicators. This staff will be supervised by a senior manager who will also act
as liaison between the Contractor and the Corporation with regard to all
Performance Indicators and other performance
37
monitoring efforts. This manager will be responsible for the coordination and
transmission of, or ensuring access to, all reports and related correspondence,
patient charts, facility logs, data and other primary sources of information
required by the Corporation for its own monitoring efforts. These materials
shall be provided to the Corporation, or access ensured, within twenty-four (24)
hours of the making of the request. This manager will also coordinate the
scheduling of any meetings or appointments required of CHS staff regarding
Performance Indicators or other performance monitoring efforts.
12.5 PERFORMANCE INDICATOR REPORTING
12.5.1 The Contractor shall report the results of its monitoring with
regard to the Performance Indicators to the Corporation no later than thirty
(30) calendar days after the close of the reporting period for which it is
compiled. The Corporation may, in order to monitor compliance with specific
Performance Indicator thresholds, request reports on a more frequent or
otherwise different schedule.
12.5.2 The Contractor shall employ methodologies that conform to
those set out in Attachment C hereto, and shall provide all back-up materials
used to support the qualitative and quantitative conclusions reported. These
materials should include, but not be limited to, memoranda, internal reports,
detailed statistical analysis and spreadsheets, and (where appropriate) the
total number of Inmate charts reviewed and listings of those charts including,
among other things, Inmate names, and book and case numbers, and Institutional
location. To the extent possible, data shall be submitted electronically (on
diskette and/or on a shared drive) as well as on paper. To the extent possible,
paper submissions shall be typed rather than hand written.
12.5.3 For all Performance Indicators for which the required
benchmark is not met, the Contractor will provide a corrective action plan,
approved by the Corporation, with a time frame for implementation, that provides
a detailed explanation of the failure if one is known and the Contractor's
approach and schedule for improving the performance in subsequent reporting
periods. Corrective action plans shall be submitted to the Corporation along
with all other Performance Indicator reports and related materials for the
reporting period in which the benchmark was not met. The Performance Indicator
report submission for the following reporting period will include a report on
the results, if any, of the implementation of the corrective action plan.
12.6 PERFORMANCE MONITORING OVERSIGHT MEETINGS
The Contractor will supply sufficient staff at the appropriate levels
and disciplines to meet routinely with Corporation staff to review the results
of the periodic Performance Indicator reporting as well as any other on-going
monitoring issues or projects. These meetings shall be scheduled to coincide
with the conclusion of a reporting period and
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submission of the corresponding response, or as otherwise deemed necessary and
appropriate by the Corporation.
13. COMPLIANCE WITH REGULATIONS AND STANDARDS
13.1 REQUIRED COMPLIANCE
The Contractor will meet the requirements of all applicable Regulations
in the performance of its obligations hereunder.
13.2 FAILURE TO COMPLY
The Contractor will reimburse the Corporation for any failure to meet
applicable Regulations, to the extent attributable to the Contractor's actions
or failures to act, that results in a financial penalty to the Corporation or to
the City (in which case the Corporation shall transmit the amount reimbursed
directly to the City). At its option, the Corporation may reduce the next
succeeding Semi-Monthly Payment to the Contractor by the amount of any such
penalty.
13.3 OBLIGATION TO CURE
Regardless of whether a penalty is imposed by a regulatory body, the
Contractor must cure any failure to meet applicable Regulations by:
(a) drafting a corrective action plan;
(b) curing such failure(s) within the time frame(s) specified in
the corrective action plan, but in no event, except as provided for in (c)
below, more than five (5) days after written notice from the Corporation; and
(c) for those failures that are of a nature that are not possible
to cure within five (5) days, commencing efforts to cure within five (5) days of
written notice from the Corporation and vigorously pursuing such efforts.
13.4 CONSEQUENCE OF FAILURE TO CURE
If the Contractor fails to cure any such failure within five (5) days
of written notice from the Corporation or, in the event it is not possible to
cure within five (5) days, does not commence efforts to cure any such failure
within such time, then the Corporation will withhold ten percent (10%) of each
succeeding Semi-Monthly Payment amount for the period beginning five (5) days
after written notice to the Contractor by the Corporation and ending when such
failure is cured or when actions have been commenced to cure. Any such retention
of funds will be subject to the Expedited Dispute Resolution Procedure set out
in Section 18 hereof.
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14. COMPENSATION FOR CONTRACT SERVICES
The Compensation Due for Contract Services shall be calculated and paid
by the Corporation to the Contractor in accordance with the provisions of
Attachment B hereto.
15. BILLING - THE FEE STATEMENT
15.1 Projected Expenses
On or before the sixtieth (60th) day of each quarterly Payment Period
during the term of this Agreement, the Contractor shall provide to the
Corporation the projected Compensation Due (as calculated pursuant to Attachment
B) for such period based upon actual expenditures through the forty-fifth (45th)
day of such Payment Period. On or before December 15 of each year during the
term of this Agreement (with the exception of the final year of such term), the
Contractor shall provide to the Corporation an estimate of its expenditures for
Contract Services during the succeeding calendar year, separately stated for
each Facility within the Personal Services Payment Component and for each OTPS
Sub-Component, as identified in Attachment B.
15.2 Fee Statement
On or before the forty-fifth (45th)day following the end of each
quarterly Payment Period during the term of this Agreement, the Contractor will
submit a Fee Statement identifying the Contractor's expenditures for Contract
Services provided in such Payment Period, and the difference between the
Compensation Due to the Contractor for its provision of such Contract Services
and the amounts received by the Contractor as advance payments therefor, as set
forth in Attachment B. The Fee Statement will be in a format approved by the
Corporation and will contain any other reports and information the Corporation
may require to verify such Compensation Due.
15.3 Erroneous or Incomplete Fee Statements
If the Corporation determines that any Fee Statement contains erroneous
or insufficient information, the Corporation will notify the contractor of such
determination within thirty (30) days of receipt of the erroneous or incomplete
Fee Statement. The Contractor will then within thirty (30) days of any such
notification correct or supplement the information in the Fee Statement in a
manner acceptable to the Corporation.
16. DISPUTE RESOLUTION PROCEDURE
This Agreement imposes on both parties a duty to negotiate in good
faith all matters relating to this Agreement and the performance of this
Agreement. During the term of this Agreement, except as otherwise expressly
provided herein, any dispute concerning this Agreement with the exception of a
dispute arising from the Corporation's retention of funds, pursuant to Section
17 hereof shall be referred for action by either
40
party to the Senior Vice President designated by the Corporation (the party
referring such action hereinafter referred to as the "Referring Party" and the
other party hereinafter referred to as the "Non-Referring Party"), whereupon
said Senior Vice President shall promptly give notice to the Non-Referring Party
of such referral for action (the "Referral Notice"). The parties must agree upon
a written statement of facts and issues to be presented to the Senior Vice
President within five (5) days of the Non-Referring Parry's receipt of the
Referral Notice. The decision of the Senior Vice President shall be rendered
within fifteen (15) days of the Non-Referring Party's receipt of the Referral
Notice and shall be delivered in writing to the Referring Party and the
Non-Referring Party. This decision shall be final and conclusive, unless the
President of the Contractor Submits a written appeal to the President of the
Corporation within fifteen (15) days of its receipt of the decision.
The President of the Contractor shall be afforded the opportunity to
resolve the dispute or controversy arising under, out of or in connection with
this Agreement with the President of the Corporation. If the President of the
Contractor and the President of the Corporation cannot agree on a determination
within thirty (30) days, such dispute may be resolved in any way mutually
agreeable to the parties including, but not limited to, arbitration, mediation
or an independent committee.
The parties shall pay their own costs and expenses payable in
connection with any dispute resolved under this Section 16, except as shall be
otherwise determined by an arbitrator, mediator, committee or court of competent
jurisdiction. The time limitation specified above may be extended upon mutual
written agreement.
Any dispute involving the performance of this Agreement not resolved by
mutual agreement or, if subject to the dispute resolution mechanism set forth
above, may be judicially adjudicated as set forth below. (Those disputes subject
to, and resolved in accordance with, the Expedited Dispute Resolution Procedure
set out in Section 18 below, however, are not subject to judicial adjudication.)
As a condition precedent to such judicial adjudication, the party that desires
to initiate such action shall first notify the other, in writing, at least
thirty (30) days prior to the initiation of such action, certifying the nature
and particulars of its claim, including damages claimed, if any, the method of
computation and the remedies sought. Upon receipt of such notice, the responding
party shall meet with the initiating party during such thirty (30) day period in
an effort to resolve the dispute amicably.
Pending final determination of any dispute under the provisions of this
Section 16 or Section 18 hereof, the parties shall continue diligently to carry
out the provisions of this Agreement, including the performance of Contract
Services that may be in dispute. If either party willfully fails to fulfill its
obligations pending dispute resolution, and it is determined pursuant to the
provisions of this Section 16 that such failure constituted a breach of such
party's obligations hereunder, that party shall be responsible for any
additional costs incurred by the other party as a result of such failure.
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The provisions of this Section 16 (except for the requirement with
respect to the continuing obligation to perform Contract Services) shall not
apply to disputes concerning the retention of funds by the Corporation pursuant
to Sections 13 or 17 hereof. Any such dispute shall be subject to the Expedited
Dispute Resolution procedure set out in Section 18 hereof. In addition, neither
the provisions of this Section 16 nor the provisions of Sections 18 hereof will
apply to (i) the termination and/or removal of Contract Services Providers; or
(ii) indemnification in accordance with Section 25 hereof.
17. RETENTION OF PAYMENT
In addition to its right to retain any Semi-Monthly Payment expressly
provided elsewhere in this Agreement, the Corporation shall have the right to
retain payment to the Contractor from one or more of the Semi-Monthly Payments
due pursuant to this Agreement, without any resulting reductions in Contract
Services, if the Corporation reasonably determines in good faith (on the basis
of an investigation or audit conducted by itself, its designee or a government
agency, or otherwise) that the Contractor has received payment for Contract
Services based on inappropriate billing of the Corporation by the Contractor.
Before exercising its right to retain funds pursuant to this Section 17
or pursuant to Section 13 hereof, the Corporation shall give notice to the
Contractor of its intention to retain funds. Such notice shall advise the
Contractor of the amount of funds to be retained, the justification for the
retention of funds, and the schedule for implementing the retention of funds
(the "Intent to Retain Notice"). Issuance of the Intent to Retain Notice shall
immediately commence the Expedited Dispute Resolution Procedure set out in
Section 18 hereof.
18. EXPEDITED DISPUTE RESOLUTION PROCEDURE
Within five (5) business days of receipt by the Contractor of the
Intent to Retain Notice, the President of the Contractor shall be afforded an
opportunity to resolve the dispute or controversy that provides the basis for
the retention, including the amount of the proposed retention, with the
President of the Corporation. At such meeting, or in place of, or in addition to
such meeting, the Contractor may, at its option, present documentary evidence or
argument in support of its position. On the basis of such meeting or evidence,
or on any other reasonable basis, the President of the Corporation may elect to
forego retention of funds in whole or in part.
Within fifteen (15) business days of receipt by the Contractor of the
Intent to Retain Notice, the Contractor shall cure the deficiencies set forth in
the Intent to Retain Notice or otherwise explain the issues to the Corporation's
satisfaction and submit a Plan of Correction including a plan for returning any
money due to the Corporation. If the Plan of Correction is not satisfactory to
the Corporation, then the Corporation may give notice of its decision to retain
funds, the amount of funds to be retained, the justification
42
for the retention of funds, and the schedule for implementation for the
retention of funds, ("Retention Notice") and may immediately retain funds from
one or more of the Semi-Monthly Payments due pursuant to this Agreement, without
any resulting reductions in Contract Services.
Money retained by the Corporation pursuant to this provision shall be
placed in a reserve account pending the resolution of the matter(s) at issue.
The Corporation shall determine the amount of funds to be retained limited to
the amount at issue, or to an estimate arrived at in accordance with generally
accepted accounting standards, or if such standards cannot be appropriately
applied, then in relation to the severity and magnitude of the matter in
controversy. The total amount of money which shall be held in reserve shall be
obtained from deductions from one or more Semi-Monthly Payments made to the
Contractor. The Corporation shall endeavor to set the amount it reasonably
believes will allow the Contractor to continue to perform its obligations under
the Agreement. In no event shall the Corporation retain more than twenty percent
(20%) of any Semi-Monthly Payment amount.
If the President of the Corporation and the President of the Contractor
cannot agree on a resolution of the dispute within thirty (30) days of receipt
by the Contractor of the Retention Notice, the dispute may be resolved in any
way mutually agreeable to the parties or, in the absence of agreement, by
pursuit of legal remedies.
If it is ultimately determined that the Corporation's retention of the
funds was unreasonable, the Corporation shall return the funds with interest for
the period of retention at the average Prime Rate published in The Wall Street
Journal during the period of retention. In such event, the Corporation shall
also pay to the Contractor the costs and expenses incurred by it in the
Expedited Dispute Resolution Procedure, exclusive of attorney's fees.
Except as provided above, the parties shall pay all of their own costs
and expenses in connection with the Expedited Dispute Resolution Procedure.
The time limits specified may be extended upon mutual written
agreement.
19. PERSONNEL, TIME-KEEPING, EQUAL EMPLOYMENT OPPORTUNITY AND
AFFIRMATIVE ACTION
19.1 GENERAL RESPONSIBILITY
19.1.1 Subject to the general supervision of the Chief Executive and
the provisions of this Agreement, the supervision and direction of the Contract
Services Providers at the Institutions shall be the responsibility of the
Contractor.
19.1.2 The Contractor shall comply, and shall direct all persons
employed by it to comply, with all applicable Regulations in the rendering of
Contract Services
43
hereunder and to fulfill all applicable responsibilities under this Agreement.
In the event the Chief Executive reasonably determines that there has been a
failure by any Contract Services Provider to comply with the Regulations or to
fulfill such responsibilities, the Chief Executive shall inform the Contractor
of such determination. Within five (5) days thereafter, the Contractor will
establish and implement an appropriate plan acceptable to the Chief Executive
for correcting such failure. In the event that such failure is not promptly
resolved to the reasonable satisfaction of the Chief Executive, the Chief
Executive may request the immediate removal of the Contract Services Provider
and the Contractor will immediately comply with such request. Notwithstanding
the foregoing, if the continued assignment of a Contract Services Provider at an
Institution shall be considered by the Chief Executive or by the Commissioner of
Correction to jeopardize patient care or security concerns, or otherwise not to
be in the best interest of the City, or of the Corporation, the Chief Executive
may direct in writing that the Contractor remove such person from the
Institutions. The Contractor shall comply immediately with such direction. This
subsection 19.1.2 is not subject to the Dispute Resolution Procedures set forth
in Sections 16 or 18 hereof.
19.1.3 The Contractor shall inform the Contract Services Providers of
the obligation on their part to comply with the provisions of the CHS Security
Guidelines throughout the term of this Agreement. Any breach of the Security
Guidelines by a Contract Services Provider may result in action taken by the
Corporation pursuant to Section 19.1.2 of this Agreement.
19.2 CORPORATION EMPLOYEES
19.2.1 Except in emergency situations, not to exceed a twenty-four
(24) hour period, a Corporation employee at any of the Institutions and Borough
Houses shall not be permitted additional employment by the Contractor to provide
Contract Services without the prior written approval of the Chief Executive, and
only provided such additional employment or approved dual employment arrangement
does not conflict with such Corporation employee's regularly prescribed duties.
Such approval shall be given only after written application by the Contractor
shall have been delivered to the Chief Executive describing the assigned work
schedule of the applicable Corporation employee(s). In the event that the Chief
Executive approves the additional employment of a Corporation employee by the
Contractor, the Time Records with respect to such Corporation employees shall be
clearly noted to reflect that such employment is in addition to the prescribed
work hours for Corporation pay. The Contractor shall pay applicable rates for
Corporation employees covered by the federal Fair Labor Standards Act. Personnel
of the Corporation who are classified in either the Managerial or Executive Pay
Plans of the Corporation and who have responsibility for administering this
Agreement shall not be paid by, or on behalf of, the Contractor for services
rendered to the Contractor.
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19.2.2 The Contractor shall make available to employees of DOC and
the Corporation including, but not limited to, professional and non-professional
staff working for CHS, continuing medical education programs and other
in-service training programs offered to the Contract Services Providers. Such
employees of the Corporation shall be permitted to attend such programs on a
space-available basis and with the approval of the Corporation or DOC, whichever
is applicable.
19.3 TIME-KEEPING, RECORDS AND NOTICES
19.3.1 The parties recognize that the maintenance of accurate Time
Records is essential to ensure accountability and, therefore, the Contractor
shall direct all Contract Services Providers to keep accurate and complete
records of their time spent in the performance of Contract Services in
accordance with this Section 19.3. The Contractor shall maintain internal
procedures to establish the reliability of such Time Records, including, but not
limited to, periodic reports verifying the accuracy of the information provided
through the Time Records.
19.3.2 Time Records shall be certified as accurate by the Program
Medical Director or the Program Mental Health Director, as appropriate. Such
certified Time Records shall be available for audit by the Corporation and must
be provided to the Corporation on a monthly basis.
19.4 CLOSING OF AN INSTITUTION AND SEVERANCE OBLIGATIONS
In the event DOC closes an Institution, or a Facility at an Institution
where Contract Services are rendered, the Contractor, shall upon such closing,
(i) terminate the services of per diem and sessional Contract Services Providers
assigned to such Institution or Facility and (ii) reassign and redeploy
full-time Contract Services Providers to fill vacancies and/or replace per diem
and sessional Contract Services .Providers at other Institutions. To the extent
that such Providers cannot be reassigned and are terminated by the Contractor,
the Corporation will reimburse the Contractor for its severance costs paid
pursuant to collective bargaining agreements applicable to such Providers,
provided (i) the Corporation shall have no liability for severance costs which
accrued on or before December 31,2000; (ii) a Provider's seniority for purposes
of determining entitlement to severance shall be measured from the later of
January 1,2001 or the date of employment by the Contractor, and (iii) the
Corporation will not be bound by any severance rights provided in any subsequent
collective bargaining agreement that may be greater than was provided in such
agreements in effect on November 1,2000. In no event shall the Corporation have
any obligation to reimburse the Contractor for any of its accrued vacation, sick
leave or unemployment insurance obligations to Contract Services Providers.
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19.5 PROHIBITION AGAINST FEES
Contract Services Providers shall not charge any fee for Contract
Services rendered to an Inmate, an Infant, a correctional officer or civilian
personnel on-site at the Institutions. As a condition precedent of employment,
the Contractor shall require that each Contract Services Provider, as
appropriate, complete an assignment of fee form, as the case may be, for
Contract Services rendered to Inmates, Infants, correctional officers and
on-site civilian personnel. In addition, each such Provider shall be required by
the Contractor to execute all other documents reasonably necessary to enable the
Corporation to ▇▇▇▇ and obtain payment for any reimbursable cost. In no event
shall any Contract Services Provider solicit payments for purposes of personal
gain.
19.6 NON-DISCRIMINATION: EQUAL EMPLOYMENT
This Agreement is subject to the requirements of the Mayor's Executive
Order No. 50 (April 25,1980) ("E.O. 50"), as amended, and the rules and
regulations promulgated thereunder. No contract shall be awarded unless and
until these requirements have been complied with in their entirety. By signing
this Agreement, the Contractor agrees that with respect to Contract Services
Providers, it:
(a) shall not unlawfully discriminate against any Contract
Services Provider or applicant for employment because of race, creed, color,
national origin, sex, age, handicap, marital status, sexual orientation or
affectional preference with respect to all employment decisions, including, but
not limited to, recruitment, hiring, upgrading, demotion, downgrading, transfer,
training, rates of pay or other forms of compensation, layoff, termination, and
all other terms and conditions of employment;
(b) shall not discriminate in the selection of subcontractors on
the basis of the owner's, partners' or shareholders' race, color, creed,
national origin, sex, age, handicap, marital status, sexual orientation or
affectional preference;
(c) shall state in all solicitations or advertisements for
Contract Services Providers placed by or on behalf of the Contractor that all
qualified applicants will receive consideration for employment without regard to
race, creed, color, national origin, sex, age, handicap, marital status, sexual
orientation or affectional preference or that it is an equal employment
opportunity employer;
(d) shall send to each labor organization or representative or
workers with which it has a collective-bargaining agreement or other contract or
memorandum of understanding, written notification of its equal employment
opportunity commitments under E.O. 50 and the rules and regulations promulgated
thereunder;
(e) shall furnish before the Contract is awarded all information
and reports, including an Employment Report, which are required by E.O. 50, the
rules and
46
regulations promulgated thereunder and the Regulations, as applicable,
concerning equal employment opportunity; and
(f) shall permit the Corporation reasonable access to all relevant
books, records and accounts for the purposes of investigation to ascertain
compliance with such rules, regulations and orders.
The Contractor understands that in the event of its substantial
noncompliance with the nondiscrimination clauses of this Agreement or with any
of the rules, regulations or orders of the Corporation (which refer to equal
employment opportunity or nondiscrimination), or of E.O. 50, such noncompliance
shall constitute a material breach of this Agreement and noncompliance with E.O.
50 and the rules and regulations promulgated thereunder. Any provision of this
section which becomes a matter of dispute between the parties shall be resolved
in a manner consistent with the relevant procedures of E.O. 50, except that for
purposes of this Agreement the Corporation shall assume the authority and
responsibilities delegated to the New York City Bureau of Labor Services,
including the authority to direct the imposition of any or all of the following
sanctions:
(i) disapproval of the Contractor;
(ii) suspension or termination of the contract;
(iii) declaration of default on the part of the Contractor, or
(iv) in lieu of any of the foregoing sanctions, the Corporation may
impose an employment program.
The Corporation may convene a board of responsibility for purposes of
declaring a contractor who has repeatedly failed to comply with E.O. 50 and the
rules and regulations promulgated thereunder (or those promulgated by the
Corporation) to be non-responsible.
The Contractor agrees to include the provisions of the foregoing
paragraphs in every subcontract or purchase order in excess of $50,000, using
funds provided hereunder, to which it becomes a party unless exempted by E.O. 50
and the rules and regulations promulgated thereunder, so that such provisions
shall be binding upon each subcontractor OF Contractor. The Contractor shall
take such action with respect to any subcontractor or vendor as may be directed
by the Corporation as a means of enforcing Such provisions including sanctions
for noncompliance.
The Contractor further agrees that it shall refrain from entering into
any contract or contract modification subject to E.O. 50, and the rules and
regulations promulgated thereunder, with a subcontractor who is not in
compliance with the requirements of E.O. 50 and the rules and regulations
promulgated thereunder.
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20. [INTENTIONALLY LEFT BLANK.]
21. BOOKS AND RECORDS
The Contractor shall maintain separate and accurate books and records
relating to this Agreement in an orderly and accessible manner for audit and
review, upon twenty-four (24) hours' notice, during normal business hours at the
Institutions or any other suitable location agreed to by the Corporation. All
such books and records shall be maintained by the Contractor separately from any
other books and records it maintains in connection with its other activities and
those of its parent entity and its affiliates, and in accordance with applicable
Regulations, and in accordance with the accounting procedures and practices that
sufficiently and properly reflect: (i) all direct and indirect costs of any
nature expended in the performance of this Agreement; and (ii) Total
Compensation received by the Contractor pursuant to Section 14 hereof. The
Corporation may make reasonable requests for additional information to be
reflected in the books and records for each of the forthcoming Fiscal Years
during the term of the Agreement and shall set forth its requirements thirty
(30) days before the beginning of each such Fiscal Year. All such books, records
and supporting records shall be retained by the Contractor for a period of seven
(7) years from the creation thereof, the termination of this Agreement, or the
Corporation's Final Audit pursuant to Section 22.4 hereof, whichever comes
latest, or for any longer period that may be required by law.
22. ANNUAL AUDITS
22.1 SCOPE OF THE AUDIT
The Contractor will engage the services of a certified public
accounting firm at the Contractor's sole expense to perform an annual audit in
accordance with generally accepted auditing standards for each Fiscal Year
during the term of the Agreement, or in the event the term of this Agreement
commences after the beginning off Fiscal Year or terminates before the end of a
Fiscal Year, for any portion of a Fiscal Year during which this Agreement is in
effect. Such annual audit shall be separate from any audit of other activities
of the Contractor, its parent entity and its affiliates.
The certified public accounting firm shall conduct an audit based on
generally accepted auditing standards of the books of account and other records
of the Contractor that detail the financial operation of the Contractor pursuant
to the terms of this Agreement during the Fiscal Year (or any portion of a
Fiscal Year). The Annual Audit Report, which shall include an opinion by the
certified public accounting firm, rendered in accordance with generally accepted
accounting principles, shall include an examination of the reports with respect
to Total Compensation paid to the Contractor pursuant to the terms of Section 14
hereof. The audit will also include separate audit
48
testing and an Attestation Statement that the Fee Statements presented by the
Contractor for payment during each audit period are presented fairly,
accurately, and free of material misstatement. Furthermore, the Annual Audit
Report shall cover an evaluation of the Contractor's internal controls and any
other matter that the Corporation shall reasonably request. Any such request
shall be made in writing to the Contractor not less than sixty (60) days prior
to the end of either the Fiscal Year or the date of termination of this
Agreement.
22.2 DUE DATE OF THE AUDIT
The Contractor's Annual Audit Report must be submitted within sixty
(60) days of the end of each Fiscal Year during the term of the Agreement, or
the termination of this Agreement if that date is earlier. The Contractor shall
be responsible for all costs incurred in connection with the Annual Audit
Report, including the fees of the certified public accounting firm of the
Contractor. In the event that the Corporation grants to the Contractor any
extension of time in which to furnish the Annual Audit Report, such extension
shall not exceed thirty (30) days from the date the Annual Audit Report is due.
Upon any failure of the Contractor to provide the Annual Audit Report by the
date it is due or by the end of any period of extension granted, the Contractor
shall pay to the Corporation, as liquidated damages and not as a penalty, the
sum of $1,000 for each business day the Annual Audit Report remains unsubmitted.
22.3 CONTRACTOR'S FAILURE TO SUBMIT ANNUAL AUDIT REPORT
In the event that the Contractor fails to furnish the Annual Audit
Report in a timely manner as required by Section 22.2 hereof, then the
Corporation shall have the right immediately to conduct its own audit of the
books of account and the records of the Contractor in order to prepare the
Annual Audit Report. The Contractor shall immediately make all its books of
account and records available to the Corporation or to its representatives and
shall bear all the expenses of the audit incurred by the Corporation. Such
expenses may be withheld from the next Semi-Monthly Payment due the Contractor.
22.4 CORPORATION'S FINAL AUDIT
The Corporation shall have the option to conduct a Final Audit of the
Contractor and, if it elects to do so, shall use its best efforts to complete
such Final Audit within one year and three months from the date of its receipt
of the Contractor's Annual Audit Report. After the Corporation's auditors
complete their review, an exit conference with said auditors will be held to
allow the Contractor the opportunity to discuss any questioned amounts and/or
internal control issues, and to provide any additional supporting documentation.
All questions of fact are to be resolved at this conference, or by the
submission of the additional documentation.
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23. INSPECTION OF BOOKS AND RECORDS
CHS staff, other representatives of the Corporation, accounting firms
retained by the Corporation, and appropriate City and State personnel and/or
their designees shall have reasonable access to all financial and administrative
books and records, upon twenty-four (24) hours' notice, including supporting
documents, of the Contractor relating to its performance under this Agreement
for purposes of inspection and audit. Representatives of the United States, City
and State governments shall have such reasonable access to any information
relating to payments for reimbursable costs.
24. REPORTING REQUIREMENTS AND RESPONSIBILITIES
The Contractor shall provide all reports required by the Corporation
pursuant to this Agreement, as set forth in Attachment G hereto, in a timely
fashion in accordance with the terms and conditions for such Reports set forth
in this Agreement. Reports, where applicable, are to be provided in formats
prescribed in this Agreement or as directed by CHS. Upon any failure to comply
with this Section 24, the Contractor shall be subject to payment of the amounts
set out in Attachment G, as liquidated damages and not as a penalty.
The Corporation may require additional information after adequate
advance notice to the Contractor. Such additional information shall be provided
within seven (7) days of the Contractor receiving notice unless a different time
period is agreed to by the parties. The Contractor shall make a good faith
effort to fully support and cooperate in achieving the timely computerization,
where applicable and feasible, of the Reports.
25. INDEMNIFICATION
25.1 SCOPE OF DEFENSE AND INDEMNIFICATION
Subject to the conditions set forth in Sections 25.2 and 25.3 hereof,
the Corporation shall defend and shall keep, save and hold harmless the
Contractor, its physicians, dentists, physician's assistants, nurse
practitioners, podiatrists, optometrists, psychiatrists, psychologists,
certified social workers, nurses and pharmacists engaged in the performance of
services to Inmates, Infants, correctional personnel and civilian personnel
on-site under this Agreement for damages for personal injuries and/or death
alleged to have been sustained by any such person, treated pursuant to this
Agreement (i) by reason of the malpractice, except in cases of intentional
misconduct or criminal act, of the Contractor, its physicians, dentists,
physician's assistants, nurse practitioners, podiatrists, optometrists,
psychiatrists, psychologists, certified social workers, nurses and pharmacists,
or (ii) based upon a claim brought pursuant to 42 U.S.C. ss.1983 that the
provision of health care by the Contractor and/or any of such persons was
deliberately indifferent.
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It is understood that the Corporation is not obligated to keep, save
and hold harmless or indemnify the Contractor, its physicians, dentists or
physician's assistants, nurse practitioners, podiatrists, optometrists,
psychiatrists, psychologists, certified social workers, nurses and pharmacists
as a result of any act committed by them, tortious or otherwise, other than the
acts covered in the previous paragraph. The extent of the Corporation's
indemnification of the Contractor is expressly limited or extended by the
relevant portion of the Operating Agreement between the Corporation and the City
and the letters dated November 13, 2000 and December 15, 2000 from ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇, Assistant Corporation Counsel of the City, all of which are attached
hereto as Attachment H.
The Corporation's liability hereunder shall continue after the
termination of this Agreement with respect to any liability, loss or damage that
occurred prior to such termination.
25.2 LIMITATIONS ON DEFENSE AND INDEMNIFICATION
The defense, indemnification and hold-harmless provisions of this
Agreement will not apply to acts or omissions by the Contractor or Contract
Service Providers when the act or omission involves conduct covered by a
Performance Indicator or Regulation, and the Contractor has failed to meet the
relevant Performance Indicator or Regulation, and the Contractor is required to
compensate the Corporation for that failure.
25.3 CONDITIONS TO DEFENSE AND INDEMNIFICATION
The defense and indemnification provisions set forth herein shall in
each case be conditioned upon the following conditions precedent:
(a) The person seeking and entitled to defense and indemnification
shall promptly deliver to the Corporation and the Corporation Counsel of New
York City the original or a copy of any summons, complaint, process, notice,
demand or pleading within ten (10) working days after he or she is served with
such document; and
(b) The person seeking and entitled to defense and indemnification
shall have cooperated fully in aiding the City to investigate, adjust, settle or
defend any claim, action or proceedings.
25.4 PROCEDURE IN CONNECTION WITH DEFENSE AND INDEMNIFICATION
The Corporation Counsel of New York City shall act as attorney in
connection with all claims, actions and proceedings within the purview of this
Section 25. No settlement of any such claim or action or dismissal of any action
or proceedings shall be
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made otherwise than in accordance with the procedures established by the City,
including the New York City Comptroller, for the settlement of claims.
26. CONTRACTOR COOPERATION
The Contractor shall cooperate fully in aiding the City to investigate,
adjust, settle or defend any claim, action or proceeding brought in connection
with the operation of the City's correctional health programs with which the
Contractor may be connected.
27. LIQUIDATED DAMAGES
27.1 ADDITIONAL FAILURES TO PERFORM
In addition to the liquidated damages that may be assessed upon the
Contractor for specific failures to meet its obligations hereunder, which are
set forth in other sections of this Agreement, the Contractor agrees that it
will be subject to liability to the Corporation in the sum of $1,000, as
liquidated damages and not a penalty, for each day it fails to cure the
following failures to perform its obligations hereunder:
(a) any failure by the Contractor to obtain any approval of the Chief
Executive or the Corporation required hereunder for any act of the Contractor or
its employees or agents; and
(b) any failure by the Contractor to provide any item it is required to
provide to the Corporation hereunder.
27.2 OVERLAP OR CONFLICT
If any Section of this Agreement, which would subject the Contractor to
liquidated damages upon a failure to meet its provisions, overlaps or conflicts
with Section 13 hereof with respect to compliance with Regulations, then the
provisions of that Section 13 shall prevail.
27.3 PAYMENT OF LIQUIDATED DAMAGES
In the event the Contractor is required to pay liquidated damages
pursuant to any provision of this Agreement, then the Corporation shall have the
right to reduce the next succeeding Semi-Monthly Payment to the Contractor by
the amount of any such liquidated damages.
27.4 WAIVER
The Chief Executive has the authority to waive the imposition of any
amount of liquidated damages upon the Contractor. No such waiver of the right of
the Corporation
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to obtain liquidated damages, at any one or more times, shall be deemed a waiver
of such right at any other time.
28. TERM AND TERMINATION
28.1 TERM OF AGREEMENT
This Agreement will become effective January 1, 2001 and will continue
in effect until December 31, 2003. The Corporation shall have the option to
extend this Agreement to December 31, 2004. The Corporation shall give the
Contractor ninety (90) days prior written notice of any intent to exercise such
option.
28.2 NOTICE OF TERMINATION
Either party may terminate the Agreement, without cause, at any time
during its term, or any extension thereof by giving the other party twelve
months' prior written notice. Should DOC, DOH or DMHMRAS terminate the contract
with the Corporation for the provision of Correctional Health Services on less
than 12 months' notice, the Corporation shall have the option to terminate this
Agreement, without cause, by giving the Contractor prior written notice of equal
duration, but not less than three months. If DOC, DOH or DMHMRAS subsequently
extends the period of any such notice of termination it may give to the
Corporation, then the Corporation shall extend, for a period of equal duration,
the notice it has given to the Contractor.
28.3 PROCESS OF TRANSITION
In the event that either party hereto elects to terminate this
Agreement, the parties shall negotiate an orderly process of transition
culminating in a written Transition Plan in accordance with the provisions of
Attachment I hereto. The parties will meet within thirty (30) days of a party's
election to terminate this Agreement and thereafter as set out in Attachment I.
The parties' obligations under this Section 28.3 shall survive the termination
or expiration of this Agreement.
28.4 CONSEQUENCES OF TERMINATION
28.4.1 Except as otherwise provided in the Agreement, on the effective
date of any termination of this Agreement, the obligations of each party hereto
shall cease to accrue. The Contractor shall turn over to the Corporation
possession and control of all records with respect to Patient Care Services, and
with respect to services rendered to correctional officers and on-site civilian
personnel, in its possession or under its control as of the date of termination
and all books and records that the Contractor is required to maintain pursuant
to the terms of this Agreement. The Contractor shall continue to have reasonable
access to all those books and records for all good-faith purposes, including
determination as to the liability of the Corporation to the Contractor
hereunder.
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28.4.2 In addition, upon termination of this Agreement, the following
requirements shall apply:
(a) The liability of the Corporation to pay for, and liability of
the Contractor to provide, further Contract Services hereunder shall cease,
except as otherwise provided in the Transition Plan.
(b) The Contractor shall receive Compensation Due in accordance
with this Agreement for Contract Services that have been performed up to the
date of such termination, subject to all audit and reporting provisions of this
Agreement.
(c) The Contractor shall refund to the Corporation, simultaneously
with the submission of its final Annual Audit Report, all amounts that the
Contractor has received for Contract Services in excess of Compensation Due
pursuant to Attachment B.
(d) The Contractor shall submit to the Corporation a Fee
Statement, as described in Section 15 hereof, before the forty-fifth (45th) day
after the last day of the term of this Agreement. The Contractor shall continue
to submit those reports required by Attachment G hereto to the extent described
therein. Each party shall pay to the other party those amounts required pursuant
to Attachment B.
28.5 GOOD FAITH OF PARTIES
The Contractor and the Corporation each recognize that a principal
purpose of this Agreement is to provide a basis for the provision of health care
services at the Institutions that comply with accepted community standards, and
a basis for the maximum use of the respective resources of the Contractor and
the Corporation in the delivery of health care services. Accordingly, the
Contractor and the Corporation, without prejudice to their respective legal
rights under this Agreement, agree to negotiate in good faith all changes in
this Agreement as they both deem necessary for implementing the purposes of this
Agreement.
28.6 MATERIAL BREACH
Either party may terminate this Agreement upon written notice if,
within ten (10) days after delivery of a notice of a material breach of this
Agreement, the breaching party has not cured the material breach to the
reasonable satisfaction of the non-breaching party, or, in the event such
material breach is not curable within ten (10) days, the breaching party shall
not have commenced and continued good faith efforts to cure within such period
and thereafter. If, however, after commencing such good faith efforts, any
material breach by the Contractor remains uncured thirty (30) days after the
delivery of such notice, and in the reasonable judgment of the Corporation, such
continuing material breach adversely affects, in a material manner, the
provision of Contract Services by the Contractor, then this Agreement may be
terminated by the Corporation
54
upon five (5) days written notice. In addition to this right to terminate this
Agreement, the Corporation shall also have the right, as set forth in Section
11.2.1 hereof, to terminate the provision of certain Contract Services by the
Contractor.
The Corporation shall also have the right to terminate this Agreement,
in whole or in part, upon written notice to the Contractor, if the Contractor
becomes insolvent, or in the event of the commencement under the Federal or
State Bankruptcy Act of any proceeding by or against the Contractor, either
voluntarily or involuntarily, or if a receiver has been appointed for the
Contractor's assets.
29. [INTENTIONALLY LEFT BLANK]
30. REPRESENTATIONS AND WARRANTIES
30.1 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR
The Contractor hereby represents and warrants as follows:
(a) Authority
The Contractor hereby represents and warrants that it is authorized by
its Board of Directors to enter into, and to perform its obligations under, this
Agreement and no provision of Federal, State or City law impairs its ability to
do so.
(b) Procurement of Agreement
The Contractor represents and warrants that no person, entity or
selling agency has been employed or retained to solicit the award of this
Agreement or secure this Agreement upon an agreement or understanding for a
commission, percentage, brokerage fee, contingency fee or any other
compensation. The Contractor further represents and warrants that no payment,
gift or thing of value has been made, given or promised to the City and
Corporation or their employees or agents to obtain this or any other agreement
between the parties. The Contractor makes such representations and warranties to
induce the Corporation to enter into this Agreement and the Corporation relies
upon such representations and warranties in the execution hereof.
(c) Conflict of Interest
The Contractor represents and warrants that neither it nor any of its
directors, officers, members, partners or Contract Services Providers has any
interest and the Contractor will not (and will use reasonable efforts to ensure
that its directors, officers, members, partners and Contract Services Providers
will not) acquire any interest, directly or indirectly, which would or may
conflict in any material manner or degree with the
55
performance or rendering of the Contract Services herein provided. The
Contractor further represents and warrants that in the performance of or the
rendering of Contract Services under this Agreement no person having such
interest or possible interest shall be employed by it.
(d) Prohibition on Gifts and Gratuities
The Contractor represents and agrees that neither it nor any of its
directors, officers, members, partners, employees or agents shall directly or
indirectly give any gift in any form including but not limited to money,
service, loan, travel, entertainment, hospitality, thing or promise to members
of the Corporation's Board of Directors, officers, employees, Community Advisory
Boards, Hospital Auxiliaries and professional and academic affiliate personnel.
In the event that the Contractor, its employees or agents do give a gift to any
said person such act will constitute a material breach of the Agreement and the
Corporation shall have a right to terminate the Agreement upon ten (10) days'
notice to the Contractor.
(e) No Defaults
The Contractor represents and warrants that it (i) is not in arrears to
the Corporation or the City upon debt or contract and is not a defaulter, as
surety or otherwise, upon any obligation to the Corporation or the City, and has
not been declared not responsible or disqualified, by any agency of the City or
State, nor is there any not response proceeding pending relating to the
responsibility or qualification of the Contractor to enter into any public
contract and (ii) has paid all applicable City income, excise and other taxes
due from all years it has conducted business activities in the City.
30.2 FAIR PRACTICES
The Contractor and each person signing on behalf of the Contractor
represents, warrants and certifies, under penalty of perjury, that to the best
of their knowledge and belief:
(a) The prices in this Agreement have been arrived at
independently without collusion, communication or agreement, with the intent of
restricting competition, as to any matter relating to such prices with any other
competitor;
(b) Unless otherwise required by law, the prices which have been
quoted in this Agreement and on the proposal submitted by the Contractor have
not been knowingly disclosed by the Contractor prior to the proposal opening,
directly or indirectly, to any other bidder or to any competitor; and
(c) No attempt has been made or will be made by the Contractor to
induce any other person, partnership, corporation or other entity to submit or
not to submit a proposal with the intent of restricting competition.
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30.3 TERMINATION FOR BREACH OF REPRESENTATIONS AND WARRANTIES
For a breach or violation of the representations or warranties set
forth above in Section 30.1 (a-d), the Corporation shall have the right to annul
this Agreement immediately without notice or liability, entitling the
Corporation to recover all monies paid hereunder and the Contractor shall not
make claim for, or be entitled to recover, any sum or sums due or paid under
this Agreement. This remedy, if effected, shall not constitute the sole remedy
afforded the Corporation for the violation or breach of said representations
and/or warranties, nor shall it constitute a waiver of the Corporation's right
to claim damages or refuse payment or to take any other action provided for by
law or pursuant to this Agreement.
30.4 REPRESENTATION AND WARRANTY OF THE CORPORATION
The Corporation hereby represents and warrants that this Agreement
constitutes a valid and binding agreement of the Corporation, enforceable in
accordance with its terms.
31. COVENANTS OF THE CONTRACTOR AND THE CORPORATION
31.1 CONTRACT SERVICES PROVIDERS
Except as otherwise expressly provided in this Agreement, the Contract
Services Providers who perform services under this Agreement are neither
employees of the Corporation, the Institution, the City, DOC, DOH or DMHMRAS,
nor under contract to the Corporation, the Institution, the City, DOC, DOH or
DMHMRAS. The Contractor alone is responsible for their work, direction,
compensation and personal conduct while performing pursuant to this Agreement.
Except under the circumstances when Contractor's employee is directed by the
Corporation or the City to perform services in a manner contrary to that which
Contractor, in its reasonable judgment deems appropriate, and who does not
otherwise act negligently, nothing in this Agreement shall impose any liability
or duty on the Corporation or the City for: (a) the acts, omissions, liabilities
or obligations of the Contractor or any person, firm, company, agency,
association, corporation or organization engaged by the Contractor as expert,
consultant, independent contractor, specialist, trainee, employee or agent,
except as required by this Agreement; or (b) taxes of any nature.
31.2 WORKERS' COMPENSATION, DISABILITY BENEFITS, MINIMUM WAGE AND
UNEMPLOYMENT BENEFITS
The Contractor shall comply with all relevant sections of the Workers'
Compensation laws and Minimum Wage laws, disability benefit and unemployment
benefit laws of the State, and all relevant State labor laws for all covered
Contract Services Providers providing Contract Services hereunder.
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31.3 EMPLOYMENT STATUS
The Contractor agrees that except as otherwise expressly provided in
this Agreement, it will not itself, and will use reasonable efforts to ensure
that Contract Services Providers, employees and agents will not, hold itself or
themselves out as, nor claim to be, officers or employees of the Corporation or
the City, or of any department, agency or unit thereof, by reason hereof, and
that they will not, by reason hereof, make any claim, demand or application to
or for any right or privilege applicable to an officer or employee of the
Corporation or the City including, but not limited to, Workers' Compensation
coverage, Unemployment Insurance Benefits, Social Security coverage or employee
retirement membership or credit.
31.4 RIGHTS AND REMEDIES
The rights and remedies of the Corporation and the Contractor provided
in this Agreement shall not be exclusive and are in addition to any other rights
and remedies provided by law.
31.5 COMPLIANCE WITH LAW
The Contractor and the Corporation shall obtain all required approvals
and licenses from appropriate Federal, State and City authorities and shall
render all services and take all actions under this Agreement in accordance with
the Regulations.
31.6 FEDERAL EMPLOYMENT PRACTICE
In the performance of its obligations under this Agreement, the
Contractor shall comply with the Civil Rights Act of 1964 and any amendments
thereto, and the rules and regulations thereunder.
31.7 NON-DISCRIMINATION AGAINST THE HANDICAPPED
In the performance of its obligations under this Agreement, the
Contractor shall comply with the provisions of the Rehabilitation of Act of
1973, as amended, and the Americans with Disabilities Act of 1994 and all
regulations, guidelines and interpretations issued pursuant thereto.
31.8 INVESTIGATIONS
31.8.1 The parties agree to cooperate fully and faithfully with any
investigation, audit or inquiry in connection with matters arising out of this
Agreement conducted by a State or City governmental agency or authority that is
empowered directly or by designation to compel the attendance of witnesses and
to examine witnesses under oath, or (in the case of the Contractor) conducted by
the Inspector General of the Corporation, or conducted by a governmental agency
that is party in interest to the transaction,
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submitted bid, submitted proposal, contract, lease, permit or license that is
the subject of the investigation, audit or inquiry.
31.8.2 If (a) any person who has been advised that his or her
statement, and any information from such statement, will not be used against him
or her in any subsequent criminal proceeding, refuses to testify before a grand
jury or other governmental agency or authority empowered directly or by
designation to compel the attendance of witnesses and to examine witnesses under
oath concerning the award of or performance under any transaction, agreement,
lease, permit, contract or license entered into with the Corporation, City,
State, Federal, or any political subdivision or public authority thereof, or the
Port Authority of New York and New Jersey, or any local development corporation
within the City, or any public benefit corporation organized under the laws of
the State; or
(b) any person refuses to testify for a reason other than the
assertion of his or her privilege against self-incrimination in an
investigation, audit or inquiry in connection with matters arising out of this
Agreement conducted by the Corporation, City or State governmental agency or
authority empowered directly or by designation to compel the attendance of
witnesses and to take testimony under oath, or by the Inspector General of the
governmental agency that is a party in interest in, and is seeking testimony
concerning the award of, or performance under, any transaction, agreement,
lease, permit, contract or license entered into with the Corporation, City, the
State, Federal or any political subdivision thereof, or the Port Authority of
New York and New Jersey, or any local development corporation within the City,
or any public benefit corporation organized under the laws of the State, THEN:
The President of the Corporation or commission or agency head whose
agency is a party in interest to the transaction, submitted bid, submitted
proposal, contract, lease, permit or license shall convene a hearing, upon not
less than five (5) days' written notice to the parties involved to determine if
sanctions should attach for the failure of a person to testify.
In the event that any non-governmental party to the hearing requests an
adjournment, the commission or agency head who convened the hearing may, upon
granting the adjournment, suspend any contract, lease, permit or license of the
party granted the extension pending the final determination, without the
Corporation or City incurring any sanction or damages for delay or otherwise.
31.8.3 The sanctions which may attach after a final determination by
the President of the Corporation or by the commissioner or agency head may
include but shall not exceed:
(a) The disqualification for a period not to exceed five (5) years
from the date of an adverse determination for any person, or any entity of which
such person was a
59
member at the time the testimony was sought, from submitting bids for, or
transacting business with, or entering into or obtaining any contract, lease,
permit or license with or from the Corporation or City; and/or
(b) The cancellation or termination of the rights or interests of
the person or entity it represents in any and all existing Corporation or City
contracts, leases, permits or licenses that the refusal to testify concerns and
that have not been assigned as permitted under this Agreement, nor the proceeds
of which pledged, to an unaffiliated and unrelated institutional lender for fair
value prior to the issuance of the notice scheduling the hearing, without the
Corporation or City incurring any penalty or damages on account of such
cancellation or termination; money lawfully due for goods delivered, work done,
rentals, or fees accrued prior to the cancellation or termination shall be paid
by the City.
31.8.4 The President of the Corporation, commissioner or agency head
shall consider and address in reaching his or her determination, and in
assessing an appropriate sanction, the factors in paragraphs (a) and (b) below.
He or she may also consider, if relevant and appropriate, the criteria
established in paragraphs (c) and (d), below, in addition to any other
information which may be relevant and appropriate:
(a) The parties' good-faith endeavors or lack thereof to cooperate
fully and faithfully with any governmental investigation or audit, including,
but not limited to, the discipline or discharge of any person failing to
testify, the production of accurate and complete books and records, and the
forthcoming testimony of all other employees, members, agents, assignees or
fiduciaries whose testimony is sought, or the forthcoming testimony of a person
who may be able to may to testify in place of any person failing to testify. In
any case, if the President of the Corporation concludes that the Contractor in
good faith has done everything in its power to compel a person employed or
controlled by the Contractor to testify, the President shall not take adverse
action against the Contractor for that reason alone.
(b) The relationship of the person who refuses to testify to any
entity that is a party to the hearing, including, but not limited to, whether
the person whose testimony is sought has an ownership interest in the entity and
the degree of authority and responsibility the person has within the entity.
(c) The nexus of the testimony sought to the subject entity and
its contracts, permits or licenses with the Corporation or City.
(d) The effect a sanction may have on an unrelated party or entity
that has a significant interest in an entity subject to sanctions under
subsection 31.8.4, above, provided the party or entity has given actual notice
to the commissioner or agency head upon the acquisition of the interest, or at
the hearing called for in subsection 31.8.3, above, gives notice and proves that
such interest was previously acquired. Under either
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circumstance, the party or entity must present evidence at the hearing
demonstrating the potential adverse impact a sanction will have on such person
or entity.
31.8.5 (a) The term "license" or "permit" as used herein shall be
defined as a license, permit, franchise or concession not granted as a matter of
right.
(b) The term "person" as used herein shall be defined as any
natural person doing business alone or associated with another person or entity
as a partner, director, officer, principal or Contract Services Provider.
(c) The term "entity" as used herein shall be defined as any firm,
partnership, corporation, association or person that receives money, benefits,
licenses, leases or permits from or through the Corporation, City, or otherwise
transacts business with the City.
(d) The term "member" as used herein shall be defined as any
person associated with another person or entity as a partner, director, officer,
principal or employee.
31.9 ASSIGNMENT
31.9.1 The Contractor shall not assign, transfer, convey, sublet or
otherwise dispose of this Agreement, or any of its rights, title, interest,
obligations or duties herein, in whole or in part, or any of its rights to
receive monies due or to become due under this Agreement, unless prior written
notice to the President of the Corporation shall be given and consent obtained
from the Corporation. Failure of the Contractor to obtain any required consent
to any assignment shall be grounds for termination for cause, at the option of
the Corporation. The Corporation shall be relieved and discharged from any
further liability and obligation to the Contractor, its assignees or
transferees, and all monies that may thereafter become due under the Contract
shall be forfeited. The provisions of this clause shall not hinder, prevent, or
affect an assignment by the Contractor for the benefit of its creditors made
pursuant to the laws of the State of New York.
31.9.2 Upon written notice to the Contractor, this Agreement may be
assigned by the Corporation to any corporation, agency or instrumentality having
authority to accept such assignment, provided, however, no such assignment shall
impair any right of the Contractor hereunder.
31.10 SUBCONTRACTING
31.10.1 The Contractor may, upon the prior written consent of the
Corporation, enter into one or more subcontracts for the provision of Contract
Services. A copy of each such proposed subcontract shall be submitted to the
Corporation with the Contractor's written request for approval.
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31.10.2 All such subcontracts shall contain provisions specifying:
(a) That the work performed by the Subcontractor must be in
accordance with the terms of this Agreement;
(b) That nothing contained in such subcontract shall impair the
rights of the Corporation;
(c) That nothing contained in such subcontract, or under the
Agreement between the Corporation and the Contractor, shall create any
contractual relationship between the Subcontractor and the Corporation; and
(d) That the Subcontractor specifically agrees to be bound by the
confidentiality provisions set forth in the Agreement between the Corporation
and the Contractor.
31.10.3 In the case of an approved subcontract, the term "Contractor"
shall, to the extent appropriate, be defined as "the Contractor or
Subcontractor" in the following provisions of this Agreement: Sixth Whereas
Clause and Sections 1.8, 1.34, 1.35, 1.36, 1.40, 2.1, 3-5, 10-13, 19, 25, and
31, provided, however, such definition shall not apply to any provision relating
to (i) Compensation Due for Contract Services; (ii) the consequences of a
failure to comply with any requirement of this Agreement; or (iii) Dispute
Resolution and Expedited Dispute Resolution.
31.10.4 The Contractor agrees that (i) it is fully responsible to the
Corporation for the acts and omissions of the Subcontractors and of persons
either directly or indirectly employed by them to provide Contract Services as
it is for the acts and omissions of persons directly employed by it; and (ii)
the Contractor shall not in any way be relieved of any responsibility under this
Agreement by any subcontract it has or will enter for the provision of Contract
Services. Such agreement shall not diminish the Corporation's obligation to the
Contractor and Subcontractors pursuant to Section 25 hereof.
31.11 PUBLICITY AND PUBLICATION
31.11.1 The Contractor shall not, at any time either during, or after
the termination or cessation of, the services required by this Agreement,
publish or issue any press release relating to the Contract Services without
first obtaining written approval from the Corporation, which approval shall not
be unreasonably withheld or delayed. At no time shall the Contractor make any
representation to the effect that it provides health care services for the City
correctional system other than as a contractor of the Corporation. With regard
to scientific papers presented to professional societies or published in
reputable journals, the Contractor will first provide a copy of such scientific
paper to the Corporation for an opportunity to review and comment, which
opportunity
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shall be of no less than ten (10) working days duration. Any publication or
announcement of any nature relating to the services provided hereunder must
include a clear statement to the effect that such services are a component of
the correctional health services of the City. Any publication with which, after
review, the Corporation disagrees, shall include a written disclaimer indicating
that said publication does not necessarily reflect the viewpoint of the
Corporation or the City.
31.11.2 If the Contractor or any of its employees publishes a work
dealing with any aspect of performance under this Agreement, or of the results
and accomplishments attained in such performance, the Corporation shall have a
royalty-free, non-exclusive and irrevocable license to reproduce, publish or
otherwise use and authorize others to use the publication
31.12 PARTICIPATION IN AN INTERNATIONAL BOYCOTT
(a) The Contractor agrees that neither the Contractor nor any
substantially owned affiliated company is participating or shall participate in
an international boycott in violation of the provisions of the Export
Administration Act of 1979, as amended, and the regulations of the United States
Department of Commerce promulgated thereunder.
(b) Upon the final determination by the Commerce Department or any
other agency of the United States as to, or conviction of, the Contractor or
substantially owned affiliated company thereof, or participation in an
international boycott in violation of the provisions of the Export
Administration Act of 1979, as amended, or the regulations promulgated
thereunder, the Corporation may at its option terminate and render forfeit and
void this Agreement.
(c) The Contractor shall comply, in all respects, with the
provisions of Section 343-10.0 of the Administrative Code of the City and the
rules and regulations issued by the Comptroller of the City thereunder.
31.13 NORTHERN IRELAND CERTIFICATION
31.13.1 The Contractor and any individual or legal entity in which the
Contractor holds a ten percent (10%) or greater ownership interest, and any
individual or legal entity that holds a ten percent (10%) or greater ownership
interest in the Contractor either (i) has no business operations in Northern
Ireland or (ii) shall take lawful steps in good faith to conduct any business
operations in Northern Ireland in accordance with the ▇▇▇▇▇▇▇▇ Principles, and
shall permit independent monitoring of their compliance with such principles.
31.13.2 For purposes of this Certification, "▇▇▇▇▇▇▇▇ Principles" shall
mean those principles relating to nondiscrimination in employment and freedom of
workplace opportunity which require employers doing business in Northern Ireland
to:
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(a) increase the representation of individuals from
under-represented religious groups in the work force, including managerial,
supervisory, administrative, clerical and technical jobs;
(b) take steps to promote adequate security for the protection of
employees from under-represented religious groups both at the workplace and
while traveling to and from work;
(c) ban provocative religious or political emblems from the
workplace,
(d) publicly advertise all job openings and make special
recruitment efforts to attract applicants from under-represented groups;
(e) establish layoff, recall and termination procedures which do
not practice flavor a particular religious group;
(f) abolish all job reservations, apprenticeship restrictions and
different employment criteria which discriminate on the basis of religion;
(g) develop training programs that will prepare substantial
numbers of current employees from under-represented groups for skilled jobs,
including the expansion of existing programs and the creation of new programs to
train, upgrade and improve the skills of workers from under-represented
religious groups;
(h) establish procedures to assess, identify and actively recruit
employees from under-represented religious groups with potential for further
advancement; and
(i) appoint a senior management staff member to oversee
affirmative action efforts and develop a timetable to ensure their full
implementation.
31.13.3 The Contractor agrees that the warranties and representations
in this Section 31.13 are material conditions of this Agreement. If the
Corporation receives information that the Contractor is in violation of this
Section 31.13, the Corporation shall review such information and give the
relevant party opportunity to respond. If the Corporation finds that such a
violation has occurred, the Corporation may declare the Contractor in default
and/or terminate this Agreement. In the event of any such termination, the
Corporation may procure the supplies, services or work from another source in
any manner the Corporation deems proper. The Contractor shall pay to the
Corporation, or the Corporation, in its sole discretion, may withhold from any
amounts otherwise payable to the Contractor, the difference between the contract
price for the uncompleted portion of this Agreement and the cost to the
Corporation of completing performance of this Agreement either by itself or by
engaging another contractor. In addition, the Contractor may be declared not to
be a responsible bidder or proposer for up to three (3) years, following written
notice to the Contractor, giving the Contractor the opportunity for a hearing at
which the Contractor may be represented by counsel. The
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rights and remedies of the Corporation hereunder shall be in addition to, and
not in lieu of, any, rights and remedies the Corporation has pursuant to this
Agreement or by operation of law or in equity.
31.14 INVENTIONS, PATENTS AND COPYRIGHTS
(a) Any discovery or invention arising out of or developed in the
course of performance of this Agreement shall be promptly and fully reported to
the Corporation, and if this work is supported by a United States grant of
funds, it shall be promptly and fully reported to the United States Government
for determination as to whether patent protection of such invention or discovery
shall be sought and how the rights in the invention or discovery, including
rights under any patent issued thereon, shall be disposed of and administered in
order to protect the public interest.
(b) No report, document or other data produced in whole or in part
with contract funds may be copyrighted by the Contractor nor shall any notice of
copyright be registered by the Contractor in connection with any report,
document or other data developed for this Agreement.
(c) In no event shall subsection (a) or (b) above be deemed to
apply to any discovery or invention of the Contractor which existed prior to or
was developed or discovered independently from its activities related to or
funded by this Agreement.
31.15 INFRINGEMENTS
The Contractor shall be liable to the Corporation and agrees to
indemnify and hold the Corporation harmless from any damage or loss or expense
sustained by the Corporation from any infringement by the Contractor of any
copyright, trademark or patent rights of design, systems, drawings, graphs,
charts, specifications or printed matter furnished or used by the Contractor in
the performance of this Agreement.
31.16 ANTITRUST
The Contractor hereby assigns, sells and transfers to the Corporation
and the City all right, title and interest in and to any claims and causes of
action arising under the antitrust laws of the State or of the United States
relating to the particular goods or services purchased or procured by the
Corporation under this Agreement.
31.17 CONFIDENTIALITY
31.17.1 The Contractor and the Corporation agree that written reports,
information, or data furnished by the other party under this Agreement
("Agreement Information") are to be considered confidential. The Contractor
agrees not to disclose any portion of such written reports, information and data
to any person without the prior written approval of the Corporation except as
required by law and shall provide
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reasonable notice to the Corporation of such disclosure except as required by
law. The Contractor and the Corporation may also disclose such written
information or material to its respective employees and agents on an "as needed"
basis in connection with the performance of the respective obligations pursuant
to this Agreement. Notwithstanding the foregoing, neither the Contractor nor the
Corporation shall be liable to the other with respect to the disclosure and/or
use of any information relating to this Agreement (except as specifically stated
herein) which such party can establish to: (i) have become publicly known
without breach of this Agreement by the disclosing party or (ii) have been known
by the disclosure party without any obligation to maintain its confidentiality
prior to disclosing of such information to the disclosing party by the other
party. The Contractor and the Corporation shall execute all documents reasonably
required by the other party to implement the confidentiality provisions of this
Agreement. The provisions of this Section shall survive the termination of this
Agreement.
31.17.2 The Contractor agrees to comply with State Regulations
regarding information from the Tuberculosis Registry. Information received from
cross-matches with DOH's Tuberculosis Registry as disclosed from confidential
records is protected by the City Health Code and the State Sanitary Code (10
N.Y.C.R.R. Part 2). State and local law prohibits further disclosure of this
information by the person to whom it is divulged, without the express written
consent of the person to whom it pertains, or as otherwise authorized by law.
31.17.3 Notwithstanding the foregoing provisions, the Corporation shall
make this Agreement and Agreement Information available to the public in
accordance with all the applicable laws and regulations of the United States
Government and the State regarding freedom of information and in accordance with
the applicable rules, regulations and procedures of the Corporation.
31.18 INSURANCE
The Contractor shall procure and maintain insurance against any and all
claims, loss or damage that may arise in connection with the performance of the
work hereunder (except for medical malpractice which is covered in Section 25 of
this Agreement) by the Contractor, its employees, officers, trustees, agents,
independent contractors, or subcontractor, as follows.
31.18.1 Minimum Scope of Insurance Coverage shall be at least as broad
as:
(a) Comprehensive General Liability and Broad Form Comprehensive
General Liability; or Commercial General Liability coverage ("Occurrence");
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(b) Automobile Liability, code 1 "any auto" and related
endorsements (required if the Contractor uses an automobile for business
purposes in connection with this Agreement); and
(c) Workers' Compensation, Unemployment and Employers' Liability
Insurance as required by the Labor Code of the State of New
York.
31.18.2 Minimum Limits of Insurance
The Contractor shall maintain limits of no less than the following.
(a) Comprehensive General Liability:
$5,000,000 combined single limit per accident for bodily
injury and property damage.
(b) Automobile Liability:
$500,000 combined single limit per accident for bodily injury
and property damage.
(c) Workers' Compensation and Employers' Liability Insurance:
Workers' Compensation insurance limits as required by the
Labor Code of the State of New York, and Employers' Liability
insurance with limits of $500,000 per accident.
31.18.3 Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared and
approved by the Corporation. At the option of the Corporation, either the
insurer shall reduce or eliminate such deductibles or self-insured retentions as
respects the Corporation, its officers, officials and employees or the
Contractor shall procure a bond guaranteeing payment of losses and related
investigations, claims administration and defense expenses.
31.18.4 Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following
provisions:
(a) General and Automobile Liability Coverages:
(i) The Corporation, the City, its officers, officials
and employees are to be covered as insureds with
respect to the following: (i) liability arising out
of activities performed by or on behalf of the
Contractor; (ii) products and completed operations of
the Contractor; (iii) premises owned, leased or used
by the Contractor; or automobiles owned, leased,
hired or borrowed by the Contractor. The coverage
shall contain no special limitations on the scope of
protection
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afforded to the Corporation, the City, its officers,
officials and employees.
(ii) The Contractor's insurance coverage shall be primary
insurance with respect to the Corporation, the City,
its officers, officials and employees. Any other
insurance or self-insurance maintained by the
Corporation, its officers, officials and employees
shall be in excess of and not contribute to the
Contractor's insurance.
(iii) Any failure to comply with reporting provisions of
the policies shall not affect coverage provided to
the Corporation, the City, its officers, officials
and employees.
(iv) The Contractor's insurance shall apply separately to
each insured against whom the claim is made or suit
is brought, except with respect to the limits of the
insurer's liability.
(b) Workers' Compensation and Employers' Liability Coverage:
The insurer shall agree to waive all rights of subrogation
against the Corporation, the City, its officers, officials and
employees for losses arising from work performed by the Contractor for
the Corporation.
(c) All Coverages:
Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be suspended, voided,
canceled by either party, reduced in coverage or in limits except after
sixty (60) days' prior written notice by certified mail, return receipt
requested, has been given to the Corporation.
31.18.5 Acceptability of Insurers
Insurance is to be placed with Insurers with a Best's rating of no less
than A:X unless specific written approval has been granted to accept a company
with a lower rating by the Corporation's Office of Legal Affairs.
31.18.6 Verification of Coverage
The Contractor shall furnish the Corporation with Certificates of
Insurance effecting coverage required by this clause. The certificates for each
insurance policy are to be signed by a person authorized by that insurer to bind
coverage on its behalf. The certificates are to be on forms provided by the
Corporation and are to be received and approved by the Corporation before work
commences. The Corporation reserves the right to review copies of the insurance
policies, at any time.
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31.18.7 Subcontractors
The Contractor shall include all Subcontractors as insured under its
policies or shall furnish separate certificates for each Subcontractor. The
coverages for Subcontractors shall be subject to all of the requirements stated
herein.
31.19 LIQUIDATION OF LIABILITIES
The Contractor shall pay, liquidate, compromise or settle all of its
liabilities and those of its Subcontractors, arising from obligations under this
Agreement, in a timely manner and shall hold the Corporation harmless from any
and all claims by a third party arising from the Contractor's failure to do so.
The Corporation shall have the option, in its own discretion, to pay on behalf
of the Contractor any such unliquidated liability (in such instances where the
Contractor and/or Subcontractor have no reasonable basis to dispute such
unliquidated liability) and shall have the option to deduct such payment from
any Semi-Monthly Payment Amount due pursuant to Section B.
32. MISCELLANEOUS
32.1 PROPRIETARY RIGHTS TO SOFTWARE DEVELOPMENT
The Corporation, on behalf of DOH, shall at all times have and retain
ownership rights to all health data generated in connection with this Agreement,
whether entered into a computerized data collection system or in original form;
all health data information systems in use at any applicable correctional
facility; and software developed for use in the delivery or oversight of
Contract Services whether funded in part or whole by the Corporation.
Any computer systems or software developed by the Contractor itself or
via subcontract shall not be licensed or copyrighted by the Contractor or its
Subcontractor or any other governmental agency party to the endeavor. This
paragraph shall be enforced and shall supersede any side or sub-agreements made
by the Contractor unless expressed in prior written agreement from the
Corporation.
32.2 DATA
The Contractor shall deliver to the Corporation in a timely manner but
not to exceed five (5) working days from receipt of a written request (or any
longer period if approved by the Chief Executive, which approval shall not be
unreasonably withheld or delayed), any and all health-related data provided in
any format that is requested by the Corporation. If data is entered into a
database it shall be made available in a manipulable format (rather than "read
only") and in the case of a spreadsheet it shall retain all equations and
calculations for examination by the Corporation. No written or computerized
correctional health related data shall be used for research purposes,
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publishing or for any other purpose than for quality improvement activities
unless approved by the Corporation.
32.3 GRANTS AND GIFTS
32.3.1 With the consent of the Corporation and subject to the
Corporation policies and procedures (including without limitation, those
policies and procedures with respect to any reimbursement of the Corporation for
payments it may make and services it may render to the Contractor), the
Contractor may apply for, receive and accept funds from any source, for the
support of professional services or Research and scientific activities to be
carried out at the Institutions (hereinafter referred to as "Sponsored Funds").
The Contractor shall furnish to the Corporation, at the time of acceptance of
Sponsored Funds, information regarding the source of such Sponsored Funds, the
amount and terms thereof and other information that the Corporation shall
reasonably request relating to the activities being performed by or under the
direction of the Contractor at the Institutions with such Sponsored Funds.
Nothing contained herein shall exempt the Contractor or its employees from any
of the rules and regulations of the Institutions or medical and administrative
standards and procedures promulgated by the Commissioner of Health which specify
the conditions under which Research may be conducted at the Institutions. No
Research, whether financed by Sponsored Funds or otherwise, may be conducted at
the Institutions (whether directly or indirectly) without the prior written
approval of the Corporation.
32.3.2 The acceptance and administration of all such grants shall be
subject to the rules, regulations and procedures of the Corporation. The
Contractor agrees that any Sponsored Funds and/or third party reimbursements
relating to Contract Services shall inure to the benefit of the Corporation. The
Chief Executive shall be advised of and made a party to any negotiations and
shall approve in advance any decision regarding any sponsored funds and/or third
party reimbursements relating to Contract Services.
32.3.3 Upon termination of this Agreement, any grant that has not
expired will be assigned to the Corporation or to its designee, to the extent
that it is assignable.
32.4 CHOICE OF LAW, CONSENT TO JURISDICTION AND VENUE
This Agreement shall be deemed to be executed in the City and State,
regardless of the domicile of the Contractor, and shall be governed by and
construed in accordance with the laws of the State.
The parties to this Agreement agree that any and all claims asserted by
or against the Corporation arising under this Agreement or related thereto shall
be heard and determined in the courts of the State located in the City ("New
York State Courts"). To effectuate this Agreement and intent, the Contractor
agrees that if the Corporation initiates any action against the Contractor in
New York State Court, service of process
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may be made on the Contractor either in person, wherever such Contractor may be
found, or by registered mail addressed to the Contractor at its address, as set
forth in this Agreement, or to such other address as the Contractor may provide
to the Corporation in writing.
32.5 GENERAL RELEASE
The acceptance by the Contractor or its assignees of the final payment
for each Fiscal Year under this Agreement shall constitute and operate as a
general release to the Corporation and the City from any liability to the
Contractor, except with respect to the Corporation's obligations pursuant to
Section 25 hereof.
32.6 CLAIMS AND ACTIONS THEREON
(a) No action at law or proceeding in equity against the
Corporation or the Contractor shall lie or be maintained upon any claim based
upon this Agreement or arising out of this Agreement or in any way connected
with this Agreement unless the Contractor or the Corporation, as the case may
be, shall have complied with all requirements relating to the giving of notice
and of information with respect to such claims, all as herein provided.
(b) No action except an action for failure to provide
indemnification under Section 25 hereof shall lie or be maintained by the
Corporation, the City or the Contractor against any of such parties upon any
claims based upon this Agreement unless such action shall be commenced within
six (6) years of the termination or conclusion of this Agreement, or within six
(6) years after the accrual of the cause of action, whichever is earlier.
(c) In the event that a claim is made or an action is brought
relating to this Agreement, each of the Contractor and the Corporation shall
render to the other (and to the City) such reasonable assistance as they may
require.
32.7 NO CLAIM AGAINST OFFICERS, ACCOUNTS OR EMPLOYEES
No claim whatsoever shall be made by the Contractor against any
individual officer, agent or employee of the Corporation or City for, or on
account of, anything done or omitted in connection with this Agreement.
32.8 WAIVER
Waiver by the Corporation or the Contractor of a breach of any
provision of this Agreement shall not be deemed to be a waiver of any other or
subsequent breach and shall not be construed to be a modification of the terms
of the Agreement unless and until the same shall be agreed to in writing by the
Corporation or the Contractor, and shall be attached to the original Agreement.
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32.9 NOTICES
The Contractor and the Corporation hereby designate the business
addresses specified in Attachment J as the places where all notices, direction
or communications from one such party to the other party shall be delivered, or
to which they shall be mailed.
Correspondence from the Corporation or the Chief Executive concerning
services provided under or issues pertaining to this Agreement shall be sent or
copied to the designated administrative representative of the Contractor. Actual
delivery of any such notice, direction or communication to a party at the
aforesaid place, or delivery by certified mail, return receipt requested, shall
be conclusive and deemed to be sufficient service thereof upon such party as of
the date such notice, direction or communication is received by the party. Such
address may be changed at any time by an instrument in writing executed and
acknowledged by the party making such change and delivered to the other party in
the manner as specified above. Nothing in this Section 32.9 shall be deemed to
serve as a waiver of any requirements for the service of notice or service of
process in the institution of an action or proceeding as provided by law.
32.10 ALL LEGAL PROVISIONS DEEMED INCLUDED
It is the intent and understanding of the parties to this Agreement
that each and every provision of law required to be inserted in this Agreement
shall be and is inserted herein. Furthermore, it is hereby stipulated that every
such provision is to be deemed to be inserted herein, and, if through mistake or
otherwise, any such provision is not inserted, or is not inserted in correct
form, then this Agreement shall forthwith upon the application of either party
be amended by such insertion so as to comply strictly with the law and without
prejudice from such omission to the rights of either party hereunder.
32.11 SEVERABILITY
If this Agreement contains any unlawful provision that is not an
essential part of this Agreement and that shall not appear to have been a
controlling or material inducement to the making thereof, the same shall be
deemed of no effect and shall, upon notice by either party, be deemed stricken
from this Agreement without affecting the binding force of the remainder of the
Agreement.
32.12 POLITICAL ACTIVITY
(a) There shall be no partisan political activity or any activity
to further the election or defeat of any candidate for public, political or
party office as part of or in connection with this Agreement, nor shall any of
the funds provided under this Agreement be used for such purposes.
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(b) No funds provided under this Agreement shall be used to pay
the salary or expenses of any person to engage in any activity designed to
influence legislation or appropriations pending before any legislative body
relating to this Contract.
32.13 MODIFICATION
This Agreement may be modified by the parties to this Agreement only in
writing. It may not be altered or modified orally.
32.14 PARAGRAPH HEADINGS
Paragraph headings are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of intent of this
Agreement and in no way affect this Agreement.
32.15 MERGER
This written Agreement, together with all of the Attachments, side
letters and other documents attached hereto and made a part hereof, contains all
the terms and conditions agreed upon by the parties hereto, and no other
agreement, oral or otherwise, regarding the subject matter of this Agreement
shall be deemed to exist or to bind any of the parties hereto, or to vary any of
the terms contained herein.
32.16 NO REMOVAL OF RECORDS FROM PREMISES
Where performance of this Agreement involves use by the Contractor of
the Corporation's papers, files, data or records at Corporation facilities or
offices, the Contractor shall not remove any such papers, files, data or records
therefrom without the prior approval of the Corporation.
32.17 INSPECTION OF SITE
The Corporation shall have the right to have representatives of the
Corporation, City, State or United States Government present at any site related
to the scope of services performed by the Contractor. The Contractor must
cooperate with such inspections, which cooperation shall include participating
in interviews and providing any documents relating to the scope of services.
Whenever practicable, reasonable prior notice shall be provided to the
Contractor as to the date and nature of such an inspection. Upon any failure of
the Contractor to comply with the provisions of this Section 32.17, the
Contractor shall pay to the Corporation, as liquidated damages and not as a
penalty, the sum of $1,000 per occurrence.
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32.18 CLEAN AIR ACT
If the amount of this Agreement is in excess of $100,000, the
Contractor shall comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act of 1970, as amended (42 U.S.C. ss. 185b, et
seq.), and the Federal Water Pollution Act (33 U.S.C. ss. 1251 et seq.)
32.19 SURVIVAL
The obligations with respect to termination of this Contract set forth
in Section 28, the covenants set forth in Sections 31.8, 31.11, 31.17 and 31.19
hereof, the indemnification obligations set forth in Section 25 (subject to
Section 32.6 hereof) and all representations and warranties shall survive the
expiration or earlier termination of this Agreement.
32.20 EXCLUSION OF THIRD PARTY RIGHTS
Except as may be specifically set out herein, the parties do not intend
that anything contained in this Agreement shall extend rights to any person or
entity who is not a party hereto. Notwithstanding the foregoing, the parties
hereby grant to DOC the right to enforce, as an intended third party
beneficiary, those sections hereof which may in any way affect its authority and
obligations with respect to the care and custody of Inmates.
32.21 RECOUPMENT OF DISALLOWANCES, QUESTIONED COSTS AND
OVER-PAYMENTS
The Corporation may, at its option, withhold for the purposes of
set-off any monies due to the Contractor under this Agreement up to the amount
of any disallowances or questioned costs resulting from any audit of the
Contractor with regard to this Agreement or any other Agreement between the
parties hereto, including any Agreement for a term commencing prior to the
commencement date of this Agreement.
32.22 LIMITATION OF LIABILITY
The Corporation's liability to the Contractor for any losses or
damages, direct or indirect, arising out of any of the provisions of this
Agreement, with the exception of any liability pursuant to Sections 11.2.1 or 25
hereof, shall not exceed the amount due the Contractor for services performed
under this Agreement that remain unpaid at the time of such loss or damage. The
Corporation shall not be liable to the Contractor for incidental or
consequential damages in any event. This clause shall supersede any other clause
of this Agreement that may be deemed inconsistent with it.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by duly authorized officers as of the date first written above.
THE NEW YORK CITY HEALTH PRISON HEALTH SERVICES, INC.
AND HOSPITAL CORPORATION
BY: /s/ BY: /s/
--------------------- -------------------------
DATE: 12/19/00 DATE: 12/19/00
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