EXHIBIT 10.1
MEDICAL SERVICES AGREEMENT
BETWEEN
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS
AND
PRISON HEALTH SERVICES, INC.
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TABLE OF CONTENTS
INTRODUCTION.............................................................................................4
WITNESSING PART..........................................................................................4
ARTICLE 1 COMMENCEMENT DATE, TERM, AND TERMINATION.....................................................4
ARTICLE 2 SERVICES.....................................................................................5
ARTICLE 3 COMPENSATION, BILLING, AND COST ADJUSTMENTS..................................................6
ARTICLE 4 NON-APPROPRIATION OF FUNDS AND TERMINATION...................................................8
ARTICLE 5 PROVIDER PERSONNEL...........................................................................8
ARTICLE 6 EVENTS OF DEFAULT...........................................................................10
ARTICLE 7 NOTICE OF DEFAULT, CURE, AND TERMINATION UPON DEFAULT.......................................10
ARTICLE 8 RISK OF LOSS AND INDEMNIFICATION............................................................11
ARTICLE 9 FORCE MAJEURE...............................................................................13
ARTICLE 10 INDEPENDENT CAPACITY OF THE PARTIES.........................................................14
ARTICLE 11 REPRESENTATIONS AND WARRANTIES..............................................................14
ARTICLE 12 FURTHER DOCUMENTS AND ASSURANCES............................................................15
ARTICLE 13 NOTICE AND CHANGES OF ADDRESS...............................................................15
ARTICLE 14 ASSIGNMENT, DELEGATION, AND SUCCESSION......................................................16
ARTICLE 15 COMPLIANCE WITH LAW AND STANDARD PRACTICES..................................................17
ARTICLE 16 NONDISCRIMINATION/SEXUAL HARASSMENT CLAUSE..................................................17
ARTICLE 17 CONTRACTOR INTEGRITY PROVISIONS.............................................................18
ARTICLE 18 CONTRACTOR RESPONSIBILITY PROVISIONS........................................................20
ARTICLE 19 AMERICANS WITH DISABILITIES ACT.............................................................22
ARTICLE 20 HAZARDOUS SUBSTANCES........................................................................22
ARTICLE 21 ENVIRONMENTAL PROVISIONS....................................................................24
ARTICLE 22 APPLICABLE LAW..............................................................................24
ARTICLE 23 SEVERABILITY...............................................................................24
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ARTICLE 24 NO WAIVER..................................................................................25
ARTICLE 25 THIRD PARTY RIGHTS..........................................................................25
ARTICLE 26 TITLES AND CAPTIONS.........................................................................25
ARTICLE 27 APPENDICES, ATTACHMENTS, EXHIBITS, & SCHEDULES..............................................25
ARTICLE 28 ORDER OF PRECEDENCE AND INTERPRETATION......................................................26
ARTICLE 29 AUDIT PROVISIONS............................................................................26
ARTICLE 30 COMPLETE AGREEMENT AND MODIFICATION.........................................................26
ARTICLE 31 SERB COMMITMENTS............................................................................27
SIGNATURE PAGE..........................................................................................29
ATTACHMENTS
ONE: REQUEST FOR PROPOSAL
TWO: PROPOSAL
THREE: COST PROPOSAL
FOUR: SUPPLEMENTAL PROVISIONS
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MEDICAL SERVICES AGREEMENT
This Medical Services Agreement ("AGREEMENT") is made and entered into
this first day of September, 2003 at Camp Hill in the County of Cumberland,
Pennsylvania, by and between Prison Health Services, Inc. ("PROVIDER"), a
Delaware corporation, duly operating under the laws of the Commonwealth of
Pennsylvania, with its principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and the Commonwealth of Pennsylvania, Department of
Corrections, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
("DEPARTMENT").
WITNESSETH:
WHEREAS, DEPARTMENT operates twenty-seven correctional facilities at
Albion, Cambridge Springs, Camp ▇▇▇▇, ▇▇▇▇▇▇▇, Coal Township, Cresson, Dallas,
Fayette, Frackville, Graterford, ▇▇▇▇▇▇, Greensburg, Houtzdale, Huntingdon,
Laurel Highlands, Mahanoy, Mercer, Muncy, Pine Grove, Pittsburgh, Quehanna,
Retreat, Rockview, Smithfield, Somerset, Waymart, and Waynesburg,
("FACILITIES"); and
WHEREAS, the DEPARTMENT may wish to add, and PROVIDER is willing to
provide services at other institutions; and
WHEREAS, DEPARTMENT has determined that it is in the best interest of
the Commonwealth of Pennsylvania to procure medical services to the FACILITIES
through a contract provider; and
WHEREAS, PROVIDER is willing to provide medical services to DEPARTMENT
and FACILITIES under the terms and conditions of this AGREEMENT;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
COMMENCEMENT DATE, TERM, AND TERMINATION
1.1. The commencement date of this AGREEMENT shall be September 1,
2003, provided that this AGREEMENT is fully executed and
approved by necessary Commonwealth of Pennsylvania officials
and a notice to proceed is provided. The term of this
AGREEMENT shall begin on the commencement date and run
continuously from such day until and including August 31, 2008
unless earlier terminated as provided for by this AGREEMENT.
1.2. DEPARTMENT may terminate this AGREEMENT for convenience and
without cause upon six (6) months advance written notice.
PROVIDER
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may terminate this AGREEMENT for convenience and without cause
anytime after the first eighteen (18) months from the
commencement of this agreement upon nine (9) months advance
written notice, provided however, that PROVIDER may state in
the termination notice that it wants the termination to take
place in six (6) months rather than nine (9). If the PROVIDER
seeks a six (6) month termination time, DEPARTMENT shall use
reasonable efforts to replace these contractual services in
accordance with its procurement rules and processes as close
to six (6) months as possible, but in no case shall this
procurement process cause this termination to be any longer
than nine (9) months. Any such termination shall be effected
by delivery to the other party of a written notice of
termination. In the event that the DEPARTMENT exercises the
option to terminate pursuant to this section, the parties
agree that, in no event, and under no circumstances, will the
PROVIDER be paid for or make claim for loss of anticipated
profit or revenue. DEPARTMENT may elect to discontinue having
the PROVIDER deliver general health care and specialized
medical services to inmates incarcerated at one or more
FACILITIES or discontinue having the PROVIDER deliver a
specific general health care or specialized medical service to
one or more FACILITIES upon six months advance written notice.
The costs of these services would be withdrawn from the
contract. and the PROVIDER's compensation would be similarly
reduced, as mutually agreed in writing.
1.3. Other provisions under which this AGREEMENT may be terminated
are set forth under Articles 4, 6, 7 and 14.
ARTICLE 2
SERVICES
2.1. The PROVIDER shall deliver general health care and specialized
medical services to inmates incarcerated at the FACILITIES.
2.2. Except to the extent modified herein, services shall be as
described in the:
1. Request for Proposal ("R.F.P.") issued by the
DEPARTMENT on February 27, 2003 and amended on March
13, 2003, March 25, 2003, April 3, 2003, April 10,
2003 and April 15, 2003 and appended hereto as
Attachment One and incorporated by reference and made
a part hereof; and
2. Proposal submitted by the PROVIDER, dated May 1,
2003, and amended on June 10, 2003 and appended
hereto as Attachment Two, and incorporated by
reference and made a part hereof; and
3. Cost Proposal submitted by the PROVIDER, dated July
25, 2003,
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which is appended hereto as Attachment Three, and
which is incorporated by reference and made a part
hereof; and
4. Supplemental Provisions, which is appended hereto as
Attachment Four, and incorporated by reference and
made a part hereof.
2.3. The PROVIDER is responsible for all general health care and
specialized medical services provided for in this AGREEMENT,
whether or not it provides such services directly or through
the use of independent contractors or subcontractors.
1. The PROVIDER shall be the sole point of contact with
the DEPARTMENT in regard to all contractual matters
arising under this AGREEMENT.
2.4. As set forth in the RFP and upon the request of the
DEPARTMENT, the PROVIDER shall serve as a consultant to the
DEPARTMENT in the development or review of the DEPARTMENT's
policies that affect the delivery of general health care and
specialized medical care.
2.5. The PROVIDER shall submit a performance guarantee to the
DEPARTMENT in the amount of $5,000,000 within ten working days
following PROVIDER's execution of this document.
ARTICLE 3
COMPENSATION, BILLING, AND COST ADJUSTMENTS
3.1. The DEPARTMENT shall compensate the PROVIDER in accordance
with the provisions of Attachment Three and Attachment Four.
3.2. This AGREEMENT does not entitle PROVIDER to compensation for
services or service hours not actually provided to or used by
DEPARTMENT.
3.3. The DEPARTMENT cannot make any advance payments for service.
3.4. The PROVIDER shall submit all invoices for service to the
DEPARTMENT at the following address: Department of
Corrections, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Accounts Payable.
3.5. Except as expressly provided for in Section 3.6 below, in the
event that any statute, governmental rule or regulation, court
order or DEPARTMENT policy is enacted, promulgated, issued or
adopted after the commencement date of this AGREEMENT which
expressly mandates the delivery of services not required under
this AGREEMENT or expressly directs the increase in frequency
or amount of services beyond that required to be rendered
under this AGREEMENT, the PROVIDER and the DEPARTMENT shall
enter into
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negotiations upon the receipt by the Director of the
Bureau of Health Care Services of the PROVIDER's
written request for contract amendment, which request
shall specify the reason(s) for the request and which
shall also set forth, in detail, the impact of the
statute, governmental rule or regulation, court
order, or DEPARTMENT policy on the PROVIDER's
performance in terms of services and costs. Upon
reaching agreement on the amount of compensation to
be paid for the increase in service, the parties
shall execute a written amendment to this AGREEMENT,
which amendment shall be effective upon its full and
final execution.
3.6. In the event that the DEPARTMENT requires that the
PROVIDER immediately provide specific services in
order to preserve the health, safety and well-being
of the DEPARTMENT's employees or the inmates, or the
property of the Commonwealth, the DEPARTMENT's
Director of the Bureau of Health Care services shall
review and approve the provision of additional
compensation for emergency services by the PROVIDER
prior to the performance of services.
3.7. Where natural disaster, other emergency, or
administrative efficiency results in the closure or a
significant reduction in use of one or more of the
FACILITIES, the DEPARTMENT may conduct a special
audit to determine the need for services under this
AGREEMENT. PROVIDER agrees to reallocate or reduce
services or service hours in accordance with the
findings of the DEPARTMENT's audit. Compensation due
PROVIDER shall be adjusted commensurate with
reduction or reallocation in services. Reallocations
that do not increase or decrease overall services
shall occur without additional compensation due to
PROVIDER.
3.8. The DEPARTMENT may transfer inmates between the
FACILITIES and to and from other prison and
pre-release facilities operated and used by the
DEPARTMENT throughout the Commonwealth of
Pennsylvania and receive inmates from other states
and the United States pursuant to the laws and
compacts governing the trans-jurisdictional custody
of foreign prisoners. The transfer of prisoners,
regardless of their medical condition or the extent
of medical care they previously received, to any of
the FACILITIES does not entitle the PROVIDER to
increased compensation under any provision of this
AGREEMENT.
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ARTICLE 4
NON-APPROPRIATION OF FUNDS AND TERMINATION
4.1. Any payment obligation or portion thereof incurred by
the DEPARTMENT as a result of this AGREEMENT is
conditioned upon the appropriation and availability
of funds which are appropriated or allocated for the
payment of any obligation, or portion thereof. The
DEPARTMENT agrees to take all reasonable steps to
secure such appropriations. In the event that the
DEPARTMENT fails to make payments due under this
AGREEMENT for reason of lack of adequate
appropriations from the General Assembly to operate
one or more of the FACILITIES, the obligation to make
future payments shall cease except for those payments
for which funds were appropriated but not paid. Said
payments constitute current expenses of the
DEPARTMENT and the DEPARTMENT's obligations under
this AGREEMENT are from year to year only and do not
constitute a mandatory payment obligation of the
DEPARTMENT in any ensuing Fiscal Year beyond the
current Fiscal Year. No provision of this AGREEMENT
shall be construed or interpreted as creating a
general obligation or other indebtedness of the
Commonwealth within the meaning of any constitutional
or statutory debt limitation. In the event that
sufficient funds are not appropriated or allocated,
either the PROVIDER or the DEPARTMENT may terminate
this AGREEMENT. No penalty shall accrue to the
DEPARTMENT in the event that either party exercises
this option to terminate and PROVIDER shall make no
claim for lost profit or revenue.
ARTICLE 5
PROVIDER PERSONNEL
5.1. The PROVIDER may engage medical professionals, either
individuals or business entities that are licensed to
conduct business in the Commonwealth, as independent
contractors or as subcontractors, to assist the
PROVIDER in rendering services.
5.2. The DEPARTMENT reserves the right to approve or
disapprove each individual or business entity whether
it be an independent contractor or subcontractor that
the PROVIDER seeks to use. PROVIDER shall not engage,
employ or retain any independent contractor or
subcontractor rejected, banned, suspended or debarred
by the DEPARTMENT or the Commonwealth of
Pennsylvania.
5.3. The PROVIDER shall not employ, nor engage any agent,
affiliate, independent contractor or subcontractor or
any person to perform services within the FACILITIES
without prior clearance by the DEPARTMENT. No less
than two (2) weeks prior to the anticipated starting
date of employment or engagement, the PROVIDER shall
submit to the FACILITY Health Care Administrator a
written request for security clearance which shall
include the full name, address, date of birth, social
security number, driver's license number and state of
license of each prospective employee or other person
engaged to perform services. Additionally, the
request shall include a
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notarized statement from the prospective employee or
other person attesting to whether he or she was ever
arrested for, or convicted of a felony, misdemeanor
or summary charge, exclusive of traffic and juvenile
violations. Such statement shall include details of
the circumstances surrounding any arrest(s) or
conviction(s).
1. In the event of an emergency which creates
an immediate need for alternative or
additional staffing, the DEPARTMENT may
waive the procedures specified in Section
5.3. Further, in such event, as soon as
practicable after the onset of the
emergency, the PROVIDER may submit a written
or oral request for expedited clearance to
the Corrections Health Care Administrator,
supplying the full name, address, date of
birth, and social security number of the
prospective employee or other person. The
notarized statement and driver's license
information described in Section 5.3 above
shall be submitted as soon as possible.
2. The PROVIDER shall establish a procedure
whereby its employees or other persons
engaged to provide services are required to
immediately notify the PROVIDER when those
employees or other persons are arrested
and/or convicted of a felony, misdemeanor or
summary offense, exclusive of traffic
violations. The PROVIDER shall immediately
notify the Corrections Health Care
Administrator at the affected FACILITY(IES).
5.4. The DEPARTMENT reserves the right to make entries and
notations in the Commonwealth's Contractor
Responsibility File and to suspend or debar pursuant
to the Commonwealth Contractor Integrity policies set
forth in Article Seventeen.
5.5. The DEPARTMENT, by and through its Superintendents,
or their designees, reserves the right to immediately
ban, either temporarily or permanently, any of the
PROVIDER's employees, agents, affiliates or
independent contractors and subcontractors from the
FACILITIES for reason of security or the good
operational order of the FACILITIES. In the event an
employee is denied entry, PROVIDER shall request that
the PROVIDER be given a reasonable time to replace
said employee without incurring any penalty or
assessment resulting from DEPARTMENT's right to
refuse entry or otherwise prohibit vendor employees
from working at the facility. During this time,
PROVIDER may use temporary staffing as appropriate.
DEPARTMENT shall only withhold approval for severe
security violations after a review by the
DEPARTMENT's Bureau of Health Care Services.
5.6. The PROVIDER shall ensure that its employees, agents,
affiliates, independent contractors and
subcontractors who have direct inmate contact must
abide by DEPARTMENT's policy on tuberculosis as it
relates to testing of employes.
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5.7. The DEPARTMENT reserves the right to require
PROVIDER's employees, agents, affiliates, independent
contractors or subcontractors who enter the
FACILITIES more than three times per week to undergo
an orientation program. Employee, agent, affiliate,
independent contractor and subcontractor costs
associated with the orientation are the
responsibility of the PROVIDER.
5.8. PROVIDER shall notify the Director of the Bureau of
Health Care Services or designee whenever an agent,
affiliate, independent contractor or subcontractor or
any person performing services under this Agreement
is asked to testify or provide an opinion or evidence
in any litigation involving the Department, its staff
or any inmate.
ARTICLE 6
EVENTS OF DEFAULT
6.1. The DEPARTMENT may (subject to the cure provisions
addressed below), in accordance with the provisions
of this Section 6.1 and Section 7.2, and in addition
to its rights under the TERMINATION and
NON-APPROPRIATION articles of this AGREEMENT, by
written Notice of Default to the PROVIDER, terminate
the whole or any part of this AGREEMENT, in any one
of the following circumstances:
1. If the PROVIDER fails to provide general
health care and/or specialized medical
services as set forth in this AGREEMENT;
2. If the PROVIDER fails to comply with
federal, state, departmental or
institutional laws, regulations or policies;
or
3. If the PROVIDER fails to perform any of the
obligations imposed by this AGREEMENT;
provided, however, that within thirty (30) days after receipt
of notice from the DEPARTMENT specifying the event of default,
or within such longer period as the DEPARTMENT may authorize
in writing, the PROVIDER shall either cure the event of
default or, if the event of default cannot be cured within 30
days, commence a cure and complete such curative action within
a reasonable time thereafter; provided further, however, that
the DEPARTMENT may terminate this AGREEMENT without providing
a cure period or a cure period of less than 30 days if the
PROVIDER's actions: (a) are part of a pattern of PROVIDER non
compliance with a material obligation, (b) demonstrate
PROVIDER's failure to make reasonable effort to cure after
prior notice, or (c) significantly threaten the health, safety
or welfare of those within the facility.
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ARTICLE 7
NOTICE OF DEFAULT, CURE, AND TERMINATION UPON DEFAULT
7.1. Written Notice of Default shall be sent via first class
registered mail in accordance with Article 13. Notice sent by
first class mail shall be received upon actual delivery.
Notice also may be provided by hand delivery or overnight mail
in which case notice shall be deemed to have been given upon
actual receipt.
7.2. In the event the DEPARTMENT terminates this AGREEMENT in whole
or in part pursuant to Article 6, the DEPARTMENT may procure,
upon such terms and in such manner as the DEPARTMENT deems
appropriate, substitute or repeat services to those so
terminated.
1. The PROVIDER shall compensate the DEPARTMENT for the
difference in cost between the substitute services
and the cost of those services that would have been
provided under this AGREEMENT but for PROVIDER's
default.
2. The PROVIDER shall compensate the DEPARTMENT for the
total cost of repeat services caused to be procured
for reason of PROVIDER's default. PROVIDER's
liability under this Subsection 7.3.2 is limited to
the services actually repeated.
7.3. In the event the DEPARTMENT terminates this AGREEMENT in part,
as provided in Article 6, the PROVIDER shall continue to
perform under this AGREEMENT to the extent not terminated,
subject to mutually agreeable compensation terms.
7.4. The rights and remedies of the DEPARTMENT provided in Articles
6 and 7 shall not be exclusive and are in addition to any
other rights and remedies provided by law.
7.5. In the event that it is later found that a determination of
default as a basis for termination was incorrect, then the
provision for termination without cause under Section 1.2
shall take effect immediately and relate back to the issuance
of the notice of default or notice of termination and PROVIDER
may seek redress for its damages arising from the incorrect
termination through the Pennsylvania Board of Claims.
ARTICLE 8
RISK OF LOSS AND INDEMNIFICATION
8.1. As between DEPARTMENT and PROVIDER only, PROVIDER and its
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successors and assigns shall bear the full risk of loss with
respect to damage to or destruction of personal property
furnished by PROVIDER except as set forth in Section 8.3 of
this Article.
8.2. As between DEPARTMENT and PROVIDER only, PROVIDER and its
successors and assigns shall be responsible for and bear the
full risk of loss with respect to damage to or destruction of
DEPARTMENT property resulting from PROVIDER's performance of
this AGREEMENT excepting reasonable wear and tear or as set
forth in Section 8.3 of this Article.
8.3. The risk of loss provisions of Sections 8.1 and 8.2 shall not
apply to loss, damage or injury caused by DEPARTMENT's failure
to act in accordance with this AGREEMENT, or negligence or
willful misconduct by DEPARTMENT, its officers, agents or
employees. In such cases, liability shall be determined by law
in a Pennsylvania court or administrative agency having
jurisdiction over the subject matter unless the dispute is
settled by agreement of the parties.
8.4. In the event of damage to or destruction of PROVIDER's
personal property through misuse or wanton act by any inmate
incarcerated at the FACILITIES, DEPARTMENT shall not bear
liability for loss of said personal property, except as set
forth in Section 8.3 of this Article unless the damage or
destruction would not have occurred but for the DEPARTMENT's
failure to act in accordance with this AGREEMENT or negligence
or willful misconduct by DEPARTMENT, its officers, agents or
employees.
8.5. The PROVIDER neither assumes nor accepts any liability for the
acts or failure to act, of the DEPARTMENT, its officers,
agents or employees, as relating to or affecting the delivery
of comprehensive medical services under this AGREEMENT.
8.6. The PROVIDER agrees to indemnify, defend and save harmless the
Commonwealth of Pennsylvania, its officers, agents and
employees, and DEPARTMENT, its officers, agents and employees,
from any and all claims, suits, actions, judgments and losses
accruing or resulting from PROVIDER'S acts or omissions to
other persons or entities furnishing or supplying work,
services, materials or supplies in connection with the
performance of this AGREEMENT. The DEPARTMENT reserves the
right to defend itself at its own expense.
8.7. The PROVIDER agrees to indemnify, defend and save harmless the
Commonwealth of Pennsylvania, its officers, agents and
employees, and DEPARTMENT, its officers, agents and employees,
from any and all claims, suits, actions, judgments and losses,
including, but not limited to reasonable attorneys fees,
arising from any act or failure to act, professionally or
otherwise, by the PROVIDER, its employees, agents, affiliates,
independent
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contractors or subcontractors with respect to the delivery of
comprehensive medical services under this AGREEMENT.
8.8. The DEPARTMENT neither assumes nor accepts any liability for
any act or failure to act, professionally or otherwise, of the
PROVIDER, its employees, agents, affiliates, independent
contractors or subcontractors.
8.9. The DEPARTMENT shall not provide insurance for the PROVIDER,
its employees, agents, affiliates, independent contractors or
subcontractors.
8.10. The PROVIDER shall purchase and maintain for the term of this
AGREEMENT, at its own expense, Comprehensive General Liability
Insurance coverage, which shall name the DEPARTMENT as an
additional insured, in an amount which shall be equal to or
greater than the amount specified in Attachment Two. Further,
the PROVIDER shall notify the DEPARTMENT in writing within ten
(10) days in advance of any change in its insurance coverage.
8.11. The PROVIDER shall maintain, for the term of this AGREEMENT,
workmen's compensation Insurance sufficient to cover all
employees of the PROVIDER whose work is applied to satisfy
PROVIDER's obligations under this AGREEMENT.
8.12. The PROVIDER shall maintain, for the term of this AGREEMENT,
malpractice insurance equal to or greater than the amount
required by law. Further, the PROVIDER shall notify the
DEPARTMENT in writing within ten (10) days in advance of any
change in its medical malpractice insurance coverage.
8.13. Upon request of the DEPARTMENT, the PROVIDER shall produce its
current certificates of insurance for the DEPARTMENT's
inspection and verification. These certificates shall contain
a provision that coverage afforded under the policies will not
be canceled or changed until the carrier has endeavored to
provide at least thirty (30) days prior written notice to the
DEPARTMENT. PROVIDER shall provide general liability coverage
of $1 million per occurrence / $2 million general aggregate.
PROVIDER shall also provide professional medical liability as
mutually agreed to.
8.14 The obligations of the parties under this Article 8 shall
survive the expiration or termination of this AGREEMENT.
8.15 PROVIDER neither assumes nor accepts any liability for any act
or omission of DEPARTMENT, its employees, agents or
affiliates.
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ARTICLE 9
FORCE MAJEURE
9.1. Except with respect to default, negligent, or willful conduct
of its independent contractors and subcontractors, the
PROVIDER shall not be in breach of this AGREEMENT if the
failure to perform arises out of causes beyond the control and
without the fault of the PROVIDER. Such causes may include,
but are not restricted to: strikes or labor disputes, inmate
disturbances, acts of God, acts of civil and military
authority, acts of public enemy, fires, explosions,
earthquakes, and floods. In the event that the failure to
perform is caused by the default of an independent contractor
or subcontractor, and if such default arises out of causes
beyond the control of both the PROVIDER and the independent
contractor or subcontractor, and without the fault of the
PROVIDER and the independent contractor or subcontractor, the
PROVIDER shall not be in breach unless the service(s) to be
furnished by the independent contractor or subcontractor were
obtainable from other sources in sufficient time to permit the
PROVIDER to meet the requirements for delivery of the service.
9.2. The PROVIDER shall immediately notify the DEPARTMENT in
writing of its inability to perform by specifying all reasons
constituting the cause or causes beyond its control and
without its fault.
9.3. In the event that the PROVIDER fails to perform its
obligations after a reasonable period of time for causes set
forth in this Article 9, the PROVIDER shall pay the
DEPARTMENT, and the DEPARTMENT is entitled to recover by
offsetting against PROVIDER's invoices if necessary, the
actual costs incurred by the DEPARTMENT to the extent that
such actual costs exceed the cost that would have been
incurred had the PROVIDER provided the services for the entire
period that such excess costs are incurred.
ARTICLE 10
INDEPENDENT CAPACITY OF THE PARTIES
10.1. PROVIDER understands that it and its agents and employees
shall act in an independent capacity and shall not act or be
deemed to act as officers, employees or agents of DEPARTMENT,
nor as a partnership or joint venture between the DEPARTMENT
and the PROVIDER.
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
11.1. Each party warrants and represents to the other that:
1. It has all requisite power, authority, licenses,
permits, and franchises corporate or otherwise, to
execute and deliver this AGREEMENT and perform its
obligations hereunder; and
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2. Its execution, delivery, and performance of this
AGREEMENT has been duly authorized by, or is in
accordance with, its organic instruments, and this
AGREEMENT had been duly executed and delivered for it
by the signatories so authorized, and when fully
executed and approved by necessary Commonwealth
officials, it constitutes its legal, valid, and
binding obligation; and
3. Its execution, delivery and performance of this
AGREEMENT will not result in a breach or violation of
or constitute a default under any agreement, lease or
instrument to which it is a party or by which it or
its properties may be bound or affected.
11.2. The PROVIDER shall certify to the DEPARTMENT that the
PROVIDER, its employees, agents, affiliates, independent
contractors and subcontractors comply with any and all
licensing and/or certification requirements, as established by
law and as they relate to the performance of the AGREEMENT by
PROVIDER. Within thirty working days after receipt of the
fully executed and approved document of this AGREEMENT, and
thereafter as changes in personnel are effected, the PROVIDER
shall provide written proof of compliance with such licensing
and/or certification requirements.
ARTICLE 12
FURTHER DOCUMENTS AND ASSURANCES
12.1. The parties shall execute and deliver all documents and
perform all further acts that may be reasonably necessary to
effectuate the provisions of this AGREEMENT.
ARTICLE 13
NOTICE AND CHANGES OF ADDRESS
13.1. All notices to be given in writing by either party to the
other shall be mailed by registered or certified mail, return
receipt requested, to the following addresses or such other
addresses as either party may hereinafter designate by a
notice to the other.
DEPARTMENT: Department of Corrections
Bureau of Health Care Services
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: Contract Compliance Monitor
PROVIDER: President
Prison Health Services, Inc.
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Cc: General Counsel
Prison Health Services, Inc.
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ARTICLE 14
ASSIGNMENT, DELEGATION AND SUCCESSION
14.1. PROVIDER understands that its performance of duties and
obligations imposed by this AGREEMENT is not assignable
without the prior written consent of DEPARTMENT. DEPARTMENT's
consent to such assignments will not be unreasonably withheld.
However, no DEPARTMENT consent or approval is required prior
to the sale or merger of PROVIDER.
14.2. In the event that the PROVIDER should change to become another
entity through sale or merger or otherwise, the DEPARTMENT
shall have the following options:
1. Continuing under the terms and conditions of this
AGREEMENT with the successor for the remaining term
of this AGREEMENT; or
2. Continuing under the terms and conditions of this
AGREEMENT with the successor for such period as is
necessary to procure a different provider; or
3. Immediately terminating this AGREEMENT.
14.3. In the event that the PROVIDER should become insolvent, or
make an assignment for the benefit of creditors, or have a
receiver appointed, or should it be declared bankrupt under
the laws of the United States or Canada, or should a petition
for reorganization or rearrangement be filed under the
bankruptcy laws of the United States or Canada, the DEPARTMENT
shall have the following options:
1. Continuing with the PROVIDER or its successors or
assigns or trustee in bankruptcy under the terms and
conditions of this AGREEMENT for the full remaining
term of this AGREEMENT; or
2. Continuing with the PROVIDER or its successor or
assigns or trustee in bankruptcy under the terms and
conditions of this AGREEMENT for
16
such period as is necessary to procure a different provider;
or
3. Immediately terminating this AGREEMENT.
ARTICLE 15
COMPLIANCE WITH LAW AND STANDARD PRACTICES
15.1. The PROVIDER shall perform its obligations hereunder in
compliance with all applicable federal, state, and local laws,
codes, and regulations, in accordance with sound medical
practices, in compliance with all applicable environmental
laws and regulations, and in compliance with all security
rules of DEPARTMENT relative to the FACILITIES.
15.2. PROVIDER shall be responsible for obtaining all governmental
permits, consents, and authorizations as may be required to
perform its obligations hereunder.
15.3. The PROVIDER shall require its employees, agents, affiliates,
independent contractors and subcontractors to comply with all
laws, codes, regulations and rules as described in this
Article 15.
15.4. No member of the General Assembly of the Commonwealth of
Pennsylvania or any individual employed by the Commonwealth of
Pennsylvania on a full-time basis shall be admitted to any
share or part of this AGREEMENT, or to any benefit that may
arise there from.
ARTICLE 16
NONDISCRIMINATION/SEXUAL HARASSMENT CLAUSE
16.1. During the term of the AGREEMENT, the PROVIDER agrees as
follows:
a. In the hiring of any employees for the manufacture of
supplies, performance of work, or any other activity
required under the AGREEMENT or any subcontract, the
PROVIDER, subcontractor or any person acting on
behalf of the PROVIDER or subcontractor shall not by
reason of gender, race, creed, or color discriminate
against any citizen of this Commonwealth who is
qualified and available to perform the work to which
the employment relates.
b. Neither the PROVIDER nor any subcontractor nor any
person on their behalf shall in any manner
discriminate against or intimidate any employee
involved in the manufacture of supplies, the
performance of work or any other activity required
under the AGREEMENT on account of gender, race,
creed, or color.
17
c. The PROVIDER and any subcontractors shall establish
and maintain a written sexual harassment policy and
shall inform their employees of the policy. The
policy must contain a notice that sexual harassment
will not be tolerated and employees who practice it
will be disciplined.
d. The PROVIDER shall not discriminate by reason of
gender, race, creed, or color against any
subcontractor or supplier who is qualified to perform
the work to which the contract relates.
e. The PROVIDER and each subcontractor shall furnish all
necessary employment documents and records to and
permit access to its books, records, and accounts by
the contracting officer and the Department of General
Services' Bureau of Contract Administration and
Business Development for purposes of investigation to
ascertain compliance with the provisions of this
Nondiscrimination/Sexual Harassment Clause. If the
PROVIDER or any subcontractor does not possess
documents or records reflecting the necessary
information requested, it shall furnish such
information on reporting forms supplied by the
contracting officer or the Bureau of Contract
Administration and Business Development.
f. The PROVIDER shall include the provisions of this
Nondiscrimination/Sexual Harassment Clause in every
subcontract so that such provisions will be binding
upon each subcontractor.
g. The Commonwealth may cancel or terminate the
AGREEMENT, and all money due or to become due under
the AGREEMENT may be forfeited for a violation of the
terms and conditions of this Nondiscrimination/Sexual
Harassment Clause. In addition, the agency may
proceed with debarment or suspension and may place
the Contractor in the Contractor Responsibility File.
ARTICLE 17
CONTRACTOR INTEGRITY PROVISIONS
17.1. For purposes of this clause only, the words "confidential
information," "consent," "PROVIDER," "financial interest," and
"gratuity" shall have the following definitions.
a. Confidential Information means information that is
not public knowledge, or available to the public on
request, disclosure of which would give an unfair,
unethical, or illegal advantage to another desiring
to contract with the Commonwealth.
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b. Consent means written permission signed by a duly
authorized officer or employee of the Commonwealth,
provided that where the material facts have been
disclosed, in writing, by prequalification, bid,
proposal, or contractual terms, the Commonwealth
shall be deemed to have consented by virtue of
execution of this agreement.
c. PROVIDER means the individual or entity that has
entered into the Contract with the Commonwealth,
including directors, officers, partners, managers,
key employees and owners of more than a five percent
interest.
d. Financial Interest means:
a) Ownership of more than a five percent
interest in any business; or
b) Holding a position as an officer, director,
trustee, partner, employee, or the like, or
holding any position of management.
e. Gratuity means any payment of more than nominal
monetary value in the form of cash, travel,
entertainment, gifts, meals, lodging, loans,
subscriptions, advances, deposits of money, services,
employment, or contracts of any kind.
17.2. The PROVIDER shall maintain the highest standards of integrity
in the performance of the AGREEMENT and shall take no action
in violation of state or federal laws, regulations, or other
requirements that govern contracting with the Commonwealth.
17.3. The PROVIDER shall not disclose to others any confidential
information gained by virtue of the AGREEMENT.
17.4. The PROVIDER shall not, in connection with this or any other
agreement with the Commonwealth, directly, or indirectly,
offer, confer, or agree to confer any pecuniary benefit on
anyone as consideration for the decision, opinion,
recommendation, vote, other exercise of discretion, or
violation of a known legal duty by any officer or employee of
the Commonwealth.
17.5. The PROVIDER shall not, in connection with this or any other
agreement with the Commonwealth, directly or indirectly,
offer, give, or agree or promise to give to anyone any
gratuity for the benefit of or at the direction or request of
any officer or employee of the Commonwealth.
17.6. Except with the consent of the Commonwealth, neither the
PROVIDER nor anyone in privity with him or her shall accept or
agree to accept from, or give or agree to give to, any person,
any gratuity from any person in connection
19
with the performance of work under the AGREEMENT except as
provided therein.
17.7. Except with the consent of the Commonwealth, the PROVIDER
shall not have a financial interest in any other contractor,
subcontractor, or supplier providing services, labor, or
material on this project.
17.8. The PROVIDER, upon being informed that any violation of these
provisions has occurred or may occur, shall immediately notify
the Commonwealth in writing.
17.9. The PROVIDER, by execution of the AGREEMENT and by the
submission of any bills or invoices for payment pursuant
thereto, certifies, and represents that he or she has not
violated any of these provisions.
17.10. The PROVIDER, upon the inquiry or request of the Inspector
General of the Commonwealth or any of that official's agents
or representatives, shall provide, or if appropriate, make
promptly available for inspection or copying, any information
of any type or form deemed relevant by the Inspector General
to the Contractor's integrity or responsibility, as those
terms are defined by the Commonwealth's statutes, regulations,
or management directives. Such information may include, but
shall not be limited to, the PROVIDER'S business or financial
records, documents or files of any type or form which refer to
or concern the AGREEMENT. Such information shall be retained
by the PROVIDER for a period of three years beyond the
termination of the AGREEMENT unless otherwise provided by law.
17.11. For intentional violation of any of the above Section 17
provisions, the Commonwealth may terminate this and any other
agreement with the PROVIDER, claim liquidated damages in an
amount equal to the value of anything received in breach of
these provisions, claim reasonable damages for all expenses
incurred in obtaining another PROVIDER to complete performance
hereunder, and debar and suspend the PROVIDER from doing
business with the Commonwealth. These rights and remedies are
cumulative, and the use or nonuse of any one shall not
preclude the use of all or any other. These rights and
remedies are in addition to those the Commonwealth may have
under law, statute, regulation, or otherwise.
ARTICLE 18
CONTRACTOR RESPONSIBILITY PROVISIONS
18.1. The PROVIDER certifies, for itself and all its subcontractors,
that as of the date of its execution of this Bid/AGREEMENT,
that neither the PROVIDER, nor any subcontractors, nor any
suppliers are under suspension or debarment by the
Commonwealth or any governmental entity, instrumentality, or
authority
20
and, if the PROVIDER cannot so certify, then it agrees to
submit, along with its proposal, a written explanation of why
such certification cannot be made.
18.2. The PROVIDER also certifies, that as of the date of its
execution of this Bid/AGREEMENT, it has no tax liabilities or
other Commonwealth obligations.
18.3. The PROVIDER obligations pursuant to these provisions are
ongoing from and after the effective date of the AGREEMENT
through the termination date thereof. Accordingly, the
PROVIDER shall have an obligation to inform the Commonwealth
if, at any time during the term of the AGREEMENT, it becomes
delinquent in the payment of taxes, or other Commonwealth
obligations, or if it or any of its subcontractors are
suspended or debarred by the Commonwealth, the federal
government, or any other state or governmental entity. Such
notification shall be made within 15 days of the date of
suspension or debarment.
18.4 The failure of the PROVIDER to notify the Commonwealth of its
suspension or debarment by the Commonwealth, any other state,
or the federal government shall constitute an event of default
of the AGREEMENT with the Commonwealth.
18.5. The PROVIDER agrees to reimburse the Commonwealth for the
reasonable costs of investigation incurred by the Office of
State Inspector General for investigations of the PROVIDER'S
compliance with the terms of this or any other agreement
between the PROVIDER and the Commonwealth, which result in the
suspension or debarment of the PROVIDER. Such costs shall
include, but shall not be limited to, salaries of
investigators, including overtime; travel and lodging
expenses; and expert witness and documentary fees. The
PROVIDER shall not be responsible for investigative costs for
investigations that do not result in the PROVIDER'S suspension
or debarment.
18.6. The PROVIDER may obtain a current list of suspended and
debarred Commonwealth contractors by either searching the
internet at http)://▇▇▇.▇▇▇.▇▇▇▇▇.▇▇.▇▇/▇▇▇▇▇▇▇▇▇.▇▇▇ or
contacting the:
Department of General Services
Office of Chief Counsel
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ '
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
FAX No. (▇▇▇) ▇▇▇-▇▇▇▇
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ARTICLE 19
AMERICANS WITH DISABILITIES ACT
19.1. Pursuant to federal regulations promulgated under the
authority of The Americans With Disabilities Act,. 28
C.F.R.ss.35.101 et seq., the PROVIDER understands and agrees
that it shall not cause any individual with a disability to be
excluded from participation in this AGREEMENT or from
activities provided for under this AGREEMENT on the basis of
the disability. As a condition of accepting this AGREEMENT,
the PROVIDER agrees to comply with the "General Prohibitions
Against Discrimination," 28 C.F.R.ss.35.130, and all other
regulations promulgated under Title II of The Americans With
Disabilities Act which are applicable to all benefits,
services, programs, and activities provided by the
Commonwealth of Pennsylvania through contracts with outside
contractors.
19.2. The PROVIDER shall be responsible for and agrees to indemnify
and hold harmless the Commonwealth of Pennsylvania from all
losses, damages, expenses, claims, demands, suits, and actions
brought by any party against the Commonwealth of Pennsylvania
as a result of the PROVIDER'S failure to comply with the
provisions of subparagraph a above.
ARTICLE 20
HAZARDOUS SUBSTANCES
20.1. The PROVIDER shall provide information to the Commonwealth
about the identity and hazards of hazardous substances
supplied or used by the PROVIDER in the performance of the
AGREEMENT. The PROVIDER must comply with Act 159 of October 5,
1984, known as the "Worker and Community Right to Know Act"
(the "Act") and the regulations promulgated pursuant thereto
at 4 Pa. Code Section 301.1 et seq.
a. Labeling. The PROVIDER shall insure that each
individual product (as well as the carton, container
or package in which the product is shipped) of any of
the following substances (as defined by the Act and
the regulations) supplied by the PROVIDER is clearly
labeled, tagged or marked with the information listed
in Paragraph (1) through (4):
1) Hazardous substances:
a) The chemical name or common name,
b) A hazard warning, and
c) The name, address, and telephone
number of the manufacturer.
22
2) Hazardous mixtures:
a) The common name, but if none
exists, then the trade name,
b) The chemical or common name of
special hazardous substances
comprising .01 % or more of the
mixture,
c) The chemical or common name of
hazardous substances consisting of
1.0% or more of the mixture,
d) A hazard warning, and
e) The name, address, and telephone
number of the manufacturer.
3) Single chemicals:
a) The chemical name or the common
name,
b) A hazard warning, if appropriate,
and
c) The name, address, and telephone
number of the manufacture.
4) Chemical Mixtures:
a) The common name, but if none
exists, then the trade name,
b) A hazard warning, if appropriate,
c) The name, address, and telephone
number of the manufacturer, and
d) the chemical name or common name of
either the top five substances by
volume or those substances
consisting of 5.0% or more of the
mixture.
A common name or trade name may be used only if the
use of the name more easily or readily identifies the
true nature of the hazardous substance, hazardous
mixture, single chemical, or mixture involved.
Container labels shall provide a warning as to the
specific nature of the hazard arising from the
substance in the container.
The hazard warning shall be given in conformity with
one of the nationally recognized and accepted systems
of providing warnings, and hazard warnings shall be
consistent with one or more of the recognized systems
throughout the workplace. Examples are:
- NFPA 704, identification of the Fire Hazards
of Materials.
- National Paint and Coatings Association:
Hazardous Materials Identification System.
23
- American Society for testing and materials,
Safety Alert Pictorial Chart.
Labels must be legible and prominently affixed to and
displayed on the product and the carton, container,
or package so that employees can easily identify the
substance or mixture present therein.
20.2. Material Safety Data Sheet. The PROVIDER shall provide
Material Safety Data Sheets (MSDS) with the information
required by the Act and the regulations for each hazardous
substance or hazardous mixture. The Commonwealth must be
provided an appropriate MSDS with the initial shipment and
with the first shipment after an MSDS is updated or product
changed. For any other chemical, the contractor shall provide
an appropriate MSDS, if the manufacturer, importer, or
supplier produces or possesses the MSDS. The PROVIDER shall
also notify the Commonwealth when a substance or mixture is
subject to the provisions of the Act. Material Safety Data
Sheets may be attached to the carton, container, or package
mailed to the Commonwealth at the time of shipment.
ARTICLE 21
ENVIRONMENTAL PROVISIONS
21.1 In the performance of the AGREEMENT, the PROVIDER shall
minimize pollution and shall strictly comply with all
applicable environmental laws and regulations.
ARTICLE 22
APPLICABLE LAW
22.1. This AGREEMENT and the construction and enforceability thereof
shall be interpreted under the law of the Commonwealth of
Pennsylvania.
ARTICLE 23
SEVERABILITY
23.1. In the event that any clause or provision of this AGREEMENT or
any part thereof shall be declared invalid, void or
unenforceable by an administrative agency of the United States
or the Commonwealth of Pennsylvania or any court having
jurisdiction, such invalidity shall not affect the validity or
enforceability of the remaining portions of this AGREEMENT
unless the result would be manifestly inequitable or
unconscionable.
ARTICLE 24
NO WAIVER
24.1. Both parties reserve any and all rights not expressly and
directly waived in this AGREEMENT.
24
24.2. The failure of either party to insist upon the strict
performance of the terms and conditions hereof shall not
constitute or be construed as a waiver or relinquishment of
either party's right to thereafter enforce the same in
accordance with this AGREEMENT in the event of a continuing or
subsequent default on the part of PROVIDER or DEPARTMENT.
24.3. Neither this AGREEMENT, nor any provision herein, is or shall
be deemed a waiver of any sovereign immunity of DEPARTMENT or
the Commonwealth of Pennsylvania.
ARTICLE 25
THIRD PARTY RIGHTS
25.1. The only parties to this AGREEMENT are the DEPARTMENT and
PROVIDER. The parties understand that this AGREEMENT does not
create or intend to confer any rights in or on persons or
entities not a party to this AGREEMENT.
ARTICLE 26
TITLES AND CAPTIONS
26.1. The table of contents and all article titles or captions to
this AGREEMENT are for convenience only and shall not be
deemed part of this AGREEMENT and in no way define, limit,
augment, extend or describe the scope, content or intent of
any part or parts of this AGREEMENT.
ARTICLE 27
APPENDICES, ATTACHMENTS, EXHIBITS, AND SCHEDULES
27.1. All appendices, attachments, exhibits and schedules annexed to
this AGREEMENT or referred to herein are expressly made a part
of this AGREEMENT as fully as though completely set forth in
it. All references to this AGREEMENT, either in this document
itself or in any of such writings, shall be deemed to refer to
and include this AGREEMENT and all such appendices,
attachments, exhibits, and schedules.
ARTICLE 28
ORDER OF PRECEDENCE AND INTERPRETATION
28.1. In the event of conflict or discrepancy arising within the
terms and condition of this AGREEMENT, or in the
interpretation thereof, the order or precedence for resolution
shall be:
25
1. The AGREEMENT.
2. Supplemental Provisions (Attachment Four)
3. Cost Proposal (Attachment Three).
4. The DEPARTMENT's R.F.P. (Attachment One).
5. The PROVIDER's Proposal (Attachment Two).
28.2. Because this AGREEMENT is based on fairness, any ambiguity
shall be based on actual facts.
ARTICLE 29
AUDIT PROVISIONS
29.1. The Commonwealth shall have the right, at reasonable times and
at a site designated by the Commonwealth, to audit the books,
documents and records of the PROVIDER to the extent that the
books, documents and records relate to costs or pricing data
for the AGREEMENT. The PROVIDER is required to maintain
records which will support the prices charged and costs
incurred for the AGREEMENT.
29.2. The PROVIDER shall preserve books, documents, and records that
relate to costs or pricing data of the AGREEMENT for a period
of three (3) years from date of final payment. The PROVIDER
shall give full and free access to all records to the
Commonwealth and/or their authorized representatives.
ARTICLE 30
COMPLETE AGREEMENT AND MODIFICATION
30.1. This AGREEMENT, together with all attachments which are
appended hereto and incorporated by reference herein, shall,
upon execution, approval, and delivery, constitute the final,
complete and exclusive AGREEMENT between the parties
containing all the terms and conditions agreed to by the
parties. All representations, understandings, promises and
agreements pertaining to the subject matter of this AGREEMENT
made prior to or at the time this AGREEMENT is executed are
superseded by this AGREEMENT. There are no conditions
precedent to the performance of this AGREEMENT except as
expressly set forth herein.
30.2. This AGREEMENT may not be amended or modified except by a
written agreement signed by the parties hereto.
26
30.3. Alterations, variations or amendments to this AGREEMENT shall
not be valid unless made in writing and signed by the Parties
hereto. Future oral understandings shall not be binding unless
subsequently reduced to writing and signed by both parties.
30.4 The Parties recognize that medical science continues to
advance and that the commonly accepted standard of medical
care is likely to evolve during the term of this AGREEMENT.
Any medical advance which: (1) becomes the commonly accepted
standard of medical care; and (2) was not known or could not
reasonably have been anticipated at the time the PROVIDER
submitted its proposal or which was not otherwise noted prior
to the awarding of this AGREEMENT; and (3) which results in a
material per patient cost increase, may be submitted by the
PROVIDER and shall be reviewed by the DEPARTMENT in good faith
for consideration of additional compensation. (All three
elements of the preceding standard must be satisfied for a
medical advance to support a request for additional
compensation. A material per patient cost increase is defined,
for this purpose, as a cost increase of three percent per
year.) If the PROVIDER believes that a medical advance
satisfies all three elements of the preceding standard, the
PROVIDER may request in writing that the DEPARTMENT increase
its compensation in an amount equal to the actual, direct
increased cost incurred by the PROVIDER in meeting the new
commonly accepted standard of medical care as compared to the
cost incurred by the PROVIDER in meeting the previously
existing commonly accepted standard of medical care. The
PROVIDER shall submit detailed documentation to support its
claim in its request. All other cost increases are the
responsibility of the PROVIDER.
ARTICLE 31
SERB COMMITMENTS
31.1 The PROVIDER has made a SERB commitment of $1,440,000
annually. If this subcontracting commitment listed in the
contract is terminated, the PROVIDER must continue in good
faith to meet this commitment with other appropriately
qualified SERB providers by entering into contractual
agreement with other SERB(s) who have demonstrated ability to
perform on this AGREEMENT. The Department must submit all
changes to the Bureau of Contract Administration and Business
Development for approval.
31.2 The PROVIDER must provide the DEPARTMENT with a report of SERB
activity on a quarterly basis. This report shall reflect the
names of and total dollar amounts paid to all SERBs used.
27
IN WITNESS WHEREOF, and intending to be legally bound, the parties
hereto subscribe their names to this instrument.
PRISON HEALTH SERVICES, INC. COMMONWEALTH OF PA.
DEPARTMENT OF CORRECTIONS
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
------------------------------------ ---------------------------------
By: By:
President/Vice President Secretary/Designee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
By:
Secretary/Treasurer
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Comptroller
N/A
---------------------------------
Office of the Budget
Approved for Form and Legality:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- ---------------------------------
Office of Chief Counsel Office of General Counsel
/s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Office of Attorney General
I hereby certify funds in the amount of
(see attached breakdown of coding).
28
ATTACHMENT FOUR
SUPPLEMENTAL PROVISIONS
1. Exclusion of pharmacy and mental health services. This
Agreement for general health care and specialized medical
services does not include the provision of pharmacy and mental
health services.
2. New Staffing Classifications. Should it become necessary to
add new staffing classifications to the Agreement, the new
classifications can be added on the appropriate quarterly
adjustment if approved in writing by both parties. The hourly
cost per position for these services will be negotiated by the
parties and added to the contract.
3. Clarification of Non-Hourly Penalties. In the event of default
pursuant to the terms of Section 6.1 of the Agreement, the
DEPARTMENT, if it does not elect to terminate the Agreement
pursuant to the terms thereof, may require PROVIDER to
compensate the Department by payment or credit if the
Department, at its discretion, determines to impose a
non-hourly penalty as provided in Section II-39 (B) 2 of
Attachment One (Request for Proposal). Prior to the assessment
of any such non-hourly penalties, DEPARTMENT will submit a
notice of pending penalty assessment to PROVIDER that sets
forth in reasonable detail the contracting issue, the nature
of the default, the amount of penalty and a cure period for
the contractor to avoid the penalty. The cure period will be
30 days or, if the event of default cannot be cured within 30
days, a cure period sufficient to complete such curative
action. DEPARTMENT may issue penalties without providing a
cure period or a cure period of less than 30 days if the
PROVIDER's actions: (a) are part of a pattern of PROVIDER non
compliance with a material obligation, (b) demonstrate
PROVIDER's failure to make reasonable effort to cure after
prior notice, or (c) significantly threaten the health, safety
or welfare of those within the facility.
4. Hourly Penalty Grace Period. No hourly penalties will be
assessed to the PROVIDER for the period of September 1, 2003
to October 25, 2003 provided that the PROVIDER provides at
least ninety percent (90%) of the entire staffing hours for
the total of all classifications for the month that is being
reconciled.
5. Bonding. The PROVIDER shall provide a $5 million performance
guarantee from American Services Group, Inc. PROVIDER is not
required to obtain and maintain a performance or payment bond.
6. Payment. PROVIDER shall submit semi-monthly invoices (which
shall include all costs of services including 1/24th of the
outside medical services cap, except for malpractice insurance
costs discussed in Section 8, below) to DEPARTMENT thirty (30)
days in advance of payment. The DEPARTMENT shall provide
payment to the PROVIDER electronically on the fifteen and
thirtieth days (twenty-eighth day for February) of the month.
The final semi-monthly payment of the contract shall be
withheld by DEPARTMENT until all invoice reconciliations are
completed unless expenditure trends show that the last outside
medical services cap payment will exceed $200,000. The
PROVIDER invoices shall be developed on the basis of the
latest inmate population approved by all parties on an invoice
reconciliation. The PROVIDER shall use the same monthly
population number for both semi-monthly invoices submitted to
be paid in the same month. Until the first reconciliation is
completed, the PROVIDER shall use the population number
provide by the DEPARTMENT, which will be based on the July
2003 inmate population numbers.
7. Invoice Reconciliation. A monthly reconciliation of inmate
population totals and PROVIDER staffing hours will be
completed after the completion of the month. Should the
PROVIDER owe the DEPARTMENT monies after the reconciliation,
this amount will be deducted from the next semi-monthly
payment to the PROVIDER. Should the PROVIDER be owed monies
after the reconciliation, the DEPARTMENT has the option to
include this payment on the next semi-monthly payment or
process a separate payment due with the next semi-monthly
payment.
8. Malpractice Insurance Payment. The PROVIDER shall submit an
invoice in the beginning of the contract year and as incurred
for actual malpractice insurance costs. The PROVIDER agrees to
discuss the type of policy with the DEPARTMENT in advance and
provide a policy only after checking the insurance market for
insurance rates. The DEPARTMENT agrees to provide payment of
the annual premium cost of such policy for the initial year of
this AGREEMENT that the next payment is due from the
DEPARTMENT on the semi-monthly invoice provided to the
DEPARTMENT pursuant to Paragraph 6 of the Attachment Four. For
insurance coverage that renews during subsequent years of this
Agreement, or catastrophic fund charges that are additionally
incurred, such insurance invoice shall be billed and paid on
the next semi-monthly invoice date closest to the placement or
change date.
9. Optional Services. DEPARTMENT shall have the right, in its
sole discretion, to negotiate with PROVIDER concerning the
optional services, and costs thereof, contained in PROVIDER'S
proposal and to require PROVIDER to provide such services
under mutually agreeable terms. This includes mental health
and pharmacy services.
10. Outside Medical Services Cap. The PARTIES will work to develop
information requirements for monthly reporting to the
DEPARTMENT by the PROVIDER to be used for quarterly outside
medical services cap settlements.
11. Cost Savings. The PROVIDER shall work toward a common goal of
cost savings with DEPARTMENT and its other health care
providers.
12. Performance-Based Standards. The PROVIDER shall work
cooperatively with DEPARTMENT and its other health care
providers in developing performance-based standards through
the collection of data, tracking of information and the
improvement of outcomes.
13. Committee Participation. The PROVIDER shall participate in
committee meetings with DEPARTMENT and its other health care
providers. Written minutes from these meetings as agreed to by
the PROVIDER and obligations of PROVIDER therein shall be
binding on the PROVIDER.
14. Special Needs. The PROVIDER shall work cooperatively with the
DEPARTMENT and its other health care providers to address the
special needs and programs of the inmate population.
15. Hourly Penalties for Staff. Penalties for staffing may be
assessed as follows:
-Staffing 100-95% of staffing plan - no penalties
-Staffing less than 95% to 90% of staffing plan - 100%
-Clinical staffing at less than 90% of staffing plan - 150%
16. Vendor Indemnification. The parties providing healthcare
services to PA DOC hereby agree to indemnify each other as
follows: MHM Correctional Services, Inc. (MHM) agrees to
indemnify, defend and hold harmless Prison Health Services,
Inc. (PHS) and Diamond Pharmacy Services (Diamond) from and
against any
claims (including attorney fees and costs) against Diamond
and/or PHS, their employees, agents, officers and
subcontractors arising out of acts or omissions of MHM; and
Diamond agrees to indemnify, defend and hold harmless PHS and
MHM from and against any claims (including attorney fees and
costs) against MHM and/or PHS, their employees, agents,
officers and subcontractors arising out of acts or omissions
of Diamond; and
PHS agrees to indemnify, defend and hold harmless Diamond and
MHM from and against any claims (including attorney fees and
costs) against MHM and/or Diamond, their employees, agents,
officers and subcontractors arising out of acts or omissions
of PHS.
17. RFP Changes. The DEPARTMENT accepts all of the changes to the
RFP proposed by the PROVIDER on pages 10.1 to 10.5 of its
technical proposal except where language of this Attachment
Four and the contract provide alternate or clarifying language
to those changes.