HomeMy WebLinkAbout20092566.tiffRESOLUTION
RE: APPROVE CONTRACT AMENDMENT#1 FOR AREA AGENCY ON AGING PROGRAMS
AND AUTHORIZE CHAIR TO SIGN
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with Contract Amendment #1 for Area Agency
on Aging Programs between the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, on behalf of the Department of Human Services, Area
Agency on Aging, and the Colorado Department of Human Services, Division of Aging and Adult
Services, commencing upon full execution of said amendment, with further terms and conditions
being as stated in said amendment, and
WHEREAS, after review, the Board deems it advisable to approve said amendment, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Contract Amendment #1 for Area Agency on Aging Programs between
the County of Weld, State of Colorado, by and through the Board of County Commissioners of
Weld County, on behalf of the Department of Human Services, Area Agency on Aging, and the
Colorado Department of Human Services, Division of Aging and Adult Services, be, and hereby
is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said amendment.
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 28th day of September, A.D., 2009.
BOARD OF COUNTY COMMISSIONERS
WELD CO , COLORADO
ATTEST:
Weld County Clerk to the B.
}
BY:
Deputy Clerk to the Bo
APPRQVS TO
ounty • torney
Date of signature
David E. Long
William F. Garcia, Chair
� 4 € - OSI vr1c clw
Douglas `Rade//macIjer, Pro-Tem
Sea P. Conway
a Kirkmeyer
Aim
F� V
Co tCSCa-0-.1O
2009-2566
/O 2_ jO,7 HR0080
MEMORANDUM
DATE: September 23, 2009
William F. Garcia, Chair, Board of County Co ssioners
WIlDTO: C� FROM: Judy A. Griego, Director, Human Services D artmen
COLORADO RE
Contract Amendment #1 between the Weld County
Department of Human Services' Area Agency on Aging
and the Colorado Department of Human Services'
Division of Aging and Adult Services
Enclosed for Board Approval is a Contract Amendment #1 between the Department's Area
Agency on Aging and the Colorado Department of Human Services' Division of Aging and
Adult Services. This Contract Amendment was presented at the Board's September 22, 2009,
Work Session.
This Amendment adds two (2) exhibits to the original contract: American Recovery and
Reinvestment Act Supplemental Provisions and Health Insurance Portability and
Accountability Act Business Associate Addendum.
If you have any questions, give me a call at extension 6510.
2009-2566
C'uu'i NO -5 P 3: 19
CONTRACT AMENDMENT #1
Department of Human
Services, Division of Aging
and Adult Services
10-IHA-4340
THIS AMENDMENT, made this 1st day of November, by and between the State of Colorado for
the use and benefit of the Department of Human Services, Division of Aging and Adult Services,
1575 Sherman Street, 10th Floor, Denver, CO 80203 hereinafter referred to as the State, and
Weld County, Weld County Division of Human Services, Area Agency on Aging, 315 C. N. 11th
Ave., PO Box 1805, Greeley, CO 80631, hereinafter referred to as the Contractor.
FACTUAL RECITALS
Authority exists in the Law and Funds have been budgeted, appropriated, and otherwise made
available and a sufficient unencumbered balance thereof remains available for payment; and
Required approval, clearance, and coordination has been accomplished from and with
appropriate agencies; and
The parties entered into a contract dated July 1, 2006, to perform the duties and responsibilities
of an Area Agency on Aging for the prescribed planning and services area. The purpose for
this amendment is described below.
The parties desire to have the attached Exhibit F, State of Colorado Supplemental Provisions for
Contracts and Grants Using Funds Provided under the American Recovery and Reinvestment Act
of 2009 As of 8-21-09 made a part of the contract, and to be retroactively effective to July 1,
2009, with the exceptions of paragraph #11 -Job Opportunity Posting Requirements and
paragraph #17 -Publication, which are to be effective upon the execution of this amendment.
This contract amendment incorporates Exhibit F and Exhibit G.
NOW THEREFORE, it is hereby agreed that
1. Consideration for this amendment to the original contract, 07-IHA-00064, dated July 1,
2006 consists of the payments which shall be made pursuant to this amendment and the
promises and agreements herein set forth.
2. It is expressly agreed by the parties that this amendment is supplemental to the original
contract, referred to as the "original contract," which is by this reference incorporated
herein, that all terms, conditions, and provisions thereof, unless specifically modified
herein, are to apply to this amendment as though they were expressly rewritten,
incorporated, and included herein.
o?OO 9- 475
3. It is agreed the original contract is and shall be modified, altered, and changed in the
following respects only:
a. The attached Exhibit F, State of Colorado Supplemental Provisions for Contracts
and Grants Using Funds Provided under the American Recovery and Reinvestment
Act of 2009 As of 8-21-09, is hereby added and made a part of the original
contract. In that regard, the parties further agree that the requirements of said
Exhibit F shall be retroactively effective to the effective date of the execution of
the existing original ARRA contract option letter, to wit: July 1, 2009, with the
exceptions of paragraph #11 -Job Opportunity Posting Requirements and
paragraph #17 -Publication, which shall be effective with the execution of this
amendment.
b. The attached Exhibit G, Health Insurance Portability & Accountability Act of 1996
("HIPAA"). Federal law and regulations governing the privacy of certain health
information requires a "Business Associate Contract" between the State and the
Contractor. 45 C.F.R. Section 164.504(e). Attached and incorporated herein by
reference and agreed to by the parties is a HIPAA Business Associate Addendum
for HIPAA compliance, and marked as Exhibit G. Terms of the Addendum shall be
considered binding upon execution of this amendment and shall remain in effect
during the term of the original contract including any extensions.
c. The Contract Price Not to Exceed shall remain at $4,131,527.00 (Fiscal Year 2007
$765,452.81; Fiscal Year 2008 $839,771.19; Fiscal Year 2009 $1,331,062.00;
*Fiscal Year 2010 includes Title III, Title VII, and State Funding for Senior
Services $1,136,292.00 plus American Recovery and Reinvestment Act (ARRA)
Funds $58,949.00).
4. The effective date of this amendment is upon approval of the State Controller.
5. Except for the "Special Provisions," in the event of any conflict, inconsistency, variance, or
contradiction between the provisions of this amendment and any of the provisions of the
original contract, the provisions of this amendment shall in all respects supersede, govern,
and control. The "Special Provisions" shall always be controlling over other provisions in
the contract or amendments. The representations in the Special Provisions concerning the
absence of bribery or corrupt influences and personal interest of State employees are
presently reaffirmed.
6. FINANCIAL OBLIGATIONS OF THE STATE PAYABLE AFTER THE CURRENT FISCAL YEAR
ARE CONTINGENT UPON FUNDS FOR THAT PURPOSE BEING APPROPRIATED, BUDGETED,
AND OTHERWISE MADE AVAILABLE.
IN WITNESS WHEREOF, the parties hereto have executed this amendment on the day first above
written.
Persons signing for Contractor hereby swear and affirm that they are authorized to act on Contractor's
behalf and acknowledge that the State is relying on their representations to that effect.
Contractor:
Weld County, Colorado
Weld County Division of Human Services
Area Agency on Aging by and through the
Weld County Board of County Commissioners
(Signature of Individual)
William F. Garcia
(Name of Individual)
Chair
Position (Title)
SEP 2 8 Zdnfi
State of Colorado
Bill Ritter, Jr. Governor
By: nlfd�JQ� /2a CN
Karep'Beye, Executive Director d
Department of Human Service
Date:
/o /07a/09
Attorney General, John W. Suthers
By:
Date:
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not
valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not
authorized to begin performance until the contract is signed and dated below. If performance begins prior
to the date below, the State of Colorado may not be obligated to pay for goods and/or services provided.
By:
State Controller
avid McDermott, CPA
Date:
�c25.9 a5 (vi
EXHIBIT F
State of Colorado
Supplemental Provisions for
Contracts, Grants, and Purchase Orders Using Funds
Provided under the
American Recovery and Reinvestment Act of 2009
As of 8-21-09
The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded, in
whole or in part, with ARRA Funds. In the event of a conflict between the provisions of these Supplemental
Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into and made a part of
the contract, the provisions of these Supplemental Provisions shall control.
1. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings
ascribed to them below.
1.1. "ARRA" means the American Recovery and Reinvestment Act of 2009, (Public Law 111-5).
1.2. "ARRA Funds" means any funds that are expended or obligated from appropriations made under
ARRA.
1.3. "ARRA Project" means a project or program funded directly by or assisted, in whole or in part, by ARRA
Funds.
1.4. "Contract" means the contract to which these Supplemental Provisions are attached and includes a
grant contract or a loan contract.
1.5. "Contracting Entity" means a Prime Recipient, a Subrecipient, or a Recipient Vendor.
1.6. "Contractor" means the party or parties to the Contract other than the Prime Recipient and includes a
grantee, subgrantee, or a borrower. For purposes of ARRA reporting, Contractor is either a Subrecipient
or a Recipient Vendor under this Contract.
1.7. "Entity" means a governmental body; legally recognized for profit or nonprofit business organization,
such as a corporation, limited liability company, or partnership; or sole proprietor and excludes individual
recipients of Federal assistance.
1.8. "FFATA" means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-
282).
1.9. "Prime Recipient" means a Colorado State Agency or Institution of Higher Education that receives
ARRA Funds directly from a Federal Agency in the form of a grant, loan, or cooperative agreement.
1.10. "Subcontractor" means an Entity engaged by Contractor to provide goods or perform services in
connection with this contract.
1.11. "Subrecipient" means a non -Federal Entity receiving ARRA Funds through a Prime Recipient to support
the performance of the ARRA Project for which the ARRA Funds were awarded. A Subrecipient is
subject to the terms and conditions of the Federal award to the Prime Recipient, including program
compliance requirements. The term "Subrecipient" includes and may be referred to as Subgrantee.
1.12. "Supplemental Provisions" means these Supplemental Provisions for Contracts and Grants Using
Funds Provided under the American Recovery and Reinvestment Act of 2009, as may be revised
pursuant to ongoing guidance from the relevant Federal or State of Colorado Agency or Institution of
Higher Education.
1.13. "Vendor" means a dealer, distributor, merchant or other seller providing goods or services required for a
project or program funded by ARRA. A Vendor is not subject to all the terms and conditions of the
Federal award, and all program compliance requirements do not pass through to a Vendor. However, a
Vendor may be subject to selected program compliance requirements. See §22 of these Supplemental
Provisions.
1.13.1 "Recipient Vendor" means a Vendor that receives ARRA Funds from a Prime Recipient.
1.13.2 "Subrecipient Vendor" means a Vendor that receives ARRA Funds from a Subrecipient.
Page I of 4
2. Compliance. Contractor shall comply with all applicable provisions of ARRA and the regulations issued
pursuant thereto, including but not limited to these Supplemental Provisions. Any revisions to such provisions
or regulations shall automatically become a part of these Supplemental Provisions, without the necessity of
either party executing any further instrument. The State of Colorado may provide written notification to
Contractor of such revisions, but such notice shall not be a condition precedent to the effectiveness of such
revisions.
3. ARRA Contracts and Subcontracts. Contractor shall include these Supplemental Provisions in all of its
contracts and subcontracts using ARRA Funds, in whole or in part, and shall provide written notification of
revisions hereto to all parties to such contracts or subcontracts in accordance with §2 above. Contractor shall
ensure that all subcontractors comply with applicable provisions of ARRA.
4. Debarred or Suspended Entities. Contractor shall not enter into any contract or subcontract in connection
with this Contract with a party that has been debarred or suspended from contracting with the Federal
Government or the State of Colorado. See Excluded Parties List System at https://www.epls.gov/.
5. Conflict of Laws. In the event of a conflict between the laws of the State of Colorado or these Supplemental
Provisions and ARRA, ARRA shall control.
6. Whistle Blower Protection. ARRA §1553. Contractor shall not discharge, demote or otherwise discriminate
against an employee as a reprisal for disclosures by the employee of information that the employee reasonably
believes is evidence of: (a) gross mismanagement of a contract or grant relating to ARRA Funds; (b) a gross
waste of ARRA Funds; (c) a substantial and specific danger to public health or safety related to the
implementation or use of ARRA Funds; (d) an abuse of authority related to implementation or use of ARRA
Funds; or (e) a violation of law, rule, or regulation related to a contract, including the competition for or
negotiation of a contract or grant, awarded or issued relating to ARRA Funds. Contractor shall post a notice of
the rights and remedies available to employees under ARRA §1553 in all workplaces where employees perform
work that is funded in whole or in part by money authorized under the ARRA. A sample notice can be found at
www.recovery.gov/?q=content/whistleblower-information. Contractor specifically acknowledges that Contractor
and its employees are aware of and shall abide by the provisions of ARRA §1553. Contractor shall include the
language and requirements of this subsection ("Whistleblower Protection under §1553 of the ARRA") in all of its
contracts and agreements with employees, subcontractors and anyone else who performs work on behalf of
Contractor.
7. False Claims Act. 31 U.S.C. §§3729-3733. Contractor shall refer promptly to an appropriate Federal Inspector
General any credible evidence that a principal, employee, agent, contractor, subgrantee, subcontractor or other
person has committed a false claim under the False Claims Act or has committed a criminal or civil violation of
laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving ARRA funds.
8. Reporting of Fraud, Waste, and Abuse. Contractor shall also refer promptly to the Colorado Office of the
State Controller (OSC) any credible evidence that a principal, employee, agent, contractor, subgrantee,
subcontractor, or other person has committed a criminal or civil violation of laws pertaining to fraud, waste, and
abuse involving ARRA Funds. The OSC shall report such incidents of misconduct to the appropriate State
Agency and appropriate Federal authority. Contact information for reporting fraud, waste, and abuse to the
OSC is located at http://www.colorado.gov/dpa/dfp/sco/contracts/ARRA/ARRA_Main_Page.htm
9. Inspection of Records. ARRA §§902, 1515. Contractor shall permit the United States Comptroller General
and his or her representatives or any representative of an appropriate Inspector General appointed under §3 or
§8G of the Inspector General Act of 1978, as amended (5 U.S.C. App.) to: (a) examine any records of the
Contractor or any of its Subcontractors that directly pertain to, and involve transactions relating to this Contract
or any contract or subcontract using ARRA Funds; and (b) interview any officer or employee of Contractor or
any of its Subcontractors regarding such transactions. Contractor shall permit the State of Colorado, the
Federal Government or any other duly authorized agent of a governmental agency with jurisdiction to audit,
inspect, examine, excerpt, copy and/or transcribe Contractor's or such Subcontractor's records during the term
of this Contract and for a period of three years following termination of this Contract or final payment hereunder,
whichever is later, to assure compliance with these terms or to evaluate Contractor's performance hereunder.
Page 2 of 4
10. Wage Rate Requirements — Davis -Bacon Wage Determinations. ARRA §1606. Contractor and its
Subcontractors shall pay all laborers and mechanics employed on ARRA Projects by Contractor or any of its
Subcontractors at wage rates not less than those prevailing on projects of a character similar in the locality, as
determined by the United States Secretary of Labor in accordance with Subchapter IV of Chapter 31 of Title 40
of the United States Code. The Secretary of Labor's determination regarding the prevailing wages applicable in
Colorado is available at http://www.gpo.gov/davisbacon/co.html.
11. Job Opportunity Posting Requirements. Governor's Executive Order D 01409. Contractor shall post notice
of job openings created by ARRA funded projects on the Colorado Department of Labor and Employment job
website, http://www.connectingcolorado.com. In the performance of this duty, Contractor and any of its
Subcontractors shall post jobs on Connecting Colorado Job Site that clearly designates the job opening as an
ARRA job in a form and manner prescribed by the Colorado Department and Labor and Employment.
12. Buy American Requirement - Construction. ARRA §1605. All iron, steel and manufactured goods used in
any ARRA Project for the construction, alteration, maintenance, or repair of a public building or public work
shall be produced in the United States in a manner consistent with United States obligations under international
agreements. This requirement can be waived only by the awarding Federal Agency in limited situations.
13. Environmental and Preservation Requirements. ARRA §1609. Contractor shall comply with all applicable
Federal, State, and Local environmental and historic preservation requirements and shall provide any
information requested by the awarding Federal Agency to ensure compliance with applicable laws, including
National Environmental Policy Act, as amended (42 U.S.C. 4321-4347) and National Historic Preservation Act
(16 U.S.C. 470 et seq.).
14. Non-discrimination. Contractor shall comply with Title VI and Title VII of the Civil Rights Act of 1964 (42
U.S.C. §2000d et seq.), Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), Title IX of the
Education Amendments of 1972 (20 U.S.C. 1681-1688), the Age Discrimination Act of 1975 (42 U.S.C.6101-
6107), and other civil rights laws applicable to recipients of Federal financial assistance.
15. Identification and Registration Information. If Contractor is a Subrecipient, Contractor shall obtain a Dun &
Bradstreet DUNS number (or update the existing DUNS record), and register with the Central Contractor
Registration (CCR), the primary registrant database for the Federal government.
16. Fixed Price — Competitively Bid. ARRA §1554. Contractor, to the maximum extent possible, shall award
subcontracts as fixed -price subcontracts under this Contract using competitive bid procedures. Contractor shall
provide to its Contracting Entity a summary of any contract or subcontract awarded using ARRA Funds that is
not fixed -price or not awarded using competitive procedures.
17. Publication. Contractor shall include the Colorado Recovery logo on all project signage, and is encouraged, to
the maximum extent possible, to use the logo on all other publications in connection with the activities funded
by the Prime Recipient that use ARRA funds.
18. Prohibition on Use of Funds. ARRA §1604. ARRA funds shall not be used for any casino or other gambling
establishment, aquarium, zoo, golf course, or swimming pool.
19. Enforceability. If Contractor fails to comply with all applicable Federal and State requirements governing the
use of ARRA funds, the State of Colorado may withhold or suspend, in whole or in part, funds awarded under
the ARRA project, or recover misspent funds following an audit pursuant to §9, above. The remedy under this
provision shall be in addition to all other remedies provided to the State of Colorado for recovery of misspent
funds available under all applicable State and Federal laws.
20. One Time Funding. Contractor acknowledges and understands that ARRA Projects will not be continued with
funds appropriated by the State of Colorado after ARRA Funds are expended or are no longer available.
21. Segregation of Costs. Contractor shall segregate obligations with respect to and expenditures of ARRA Funds
from other sources of funding. ARRA Funds shall not be comingled with any other funds or used for a purpose
other than the payment of costs allowable under ARRA.
Page 3 of 4
22. Reporting. §1512, FFATA §2. Contractor shall report to its Contracting Entity the data elements required in
§23 if Contractor is a Subrecipient or in §24 if Contractor is a Recipient Vendor. No direct payment shall be
made to Contractor for providing any reports required under these Supplemental Provisions, as the cost of
producing such reports shall be deemed included in the Contract price. The reporting requirements in §§23
and 24 are based on guidance from the US Office of Management and Budget (OMB), and as such are subject
to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and
shall become part of Contractor's obligations under this Contract. The State may provide written notice to
Contractor of any such change in accordance with §2 above, but such notice shall not be a condition precedent
to Contractor's duty to comply with revised OMB reporting requirements. The Colorado Office of the State
Controller shall provide summaries of revised OMB reporting requirements as well as reporting templates for
Subrecipients and Recipient Vendors at:
http://www. colorado. gov/d pa/dfp/sco/contracts/AR RA/AR RA_M ai n_Page. htm
23. Subrecipient Reporting. If Contractor is a Subrecipient, Contractor shall report to its Contracting Entity as set
forth below.
23.1 Initial Reporting. A Subrecipient shall report the following data elements to its Contracting Entity upon
the effective date of the contract:
23.1.1 Subrecipient DUNS Number
23.1.2 Congressional District of Subrecipient
23.1.3 Primary Place of Performance Information, including: Street Address, State, Country, City, Zip
code + 4
23.1.4 Subrecipient Officers' Names (Top 5) if all three criteria are met:1) 80% or more of Subrecipient's
annual gross revenue is from Federal contracts, 2) Subrecipient's annual gross revenue from
Federal contracts is $25 million or more, and 3) Subrecipient's officer names are not publicly
available. See page 19 of Recipient Reporting Data Model V3.0 for Quarter Ending September
30, 2009 at http://www.colorado.gov/dpa/dfp/sco/contracts/ARRA/ARRA_Main_Page.htm.
23.1.5 Subrecipient Officers' Total Compensation (Top 5) if criteria in §23.1.4 met
23.2 Monthly Reporting. A Subrecipient shall report to its Contracting Entity no later than the 25th day of
each month the following inception -to -date data elements as of the end of the prior month:
23.2.1 Job Creation Narrative for both the Subrecipient and the Subrecipient's Vendors
23.2.2 Number of Jobs Created or Retained for both the Subrecipient and the Subrecipient's Vendors
23.2.3 SubAward number or other identifying number assigned by the Subrecipient to each Subrecipient
Vendor (this number cannot be a personal identifying number such as a social security number
or federal employer identification number)
23.2.4 Vendor name and Zip code + 4 of Vendor's Headquarters for each Subrecipient Vendor; the
Subrecipient Vendor's DUNS number may also be provided if available
23.2.5 Subrecipient shall establish reporting deadlines for its Subrecipient Vendors.
24. Recipient Vendor Reporting. A Recipient Vendor shall report to its Contracting Entity no later than the 25th
day of each month the following inception -to -date data elements as of the end of the prior month:
24.1.1 Job Creation Narrative
24.1.2 Number of Jobs Created or Retained
25. Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default
under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if
the default remains uncured five calendar days following the notice period. This remedy will be in addition to
any other remedy available to the State of Colorado under the Contract, at law or in equity.
26. Reporting Framework — see chart below.
FederalAgency
Prime Recipient
Subrecipient
Subrecipient Vendor
Recipient Vendor
Page 4 of 4
EXHIBIT G
HIPAA BUSINESS ASSOCIATE ADDENDUM
This Business Associate Addendum ("Addendum") is a part of the Contract dated
July 1, 2006 between the Department of Human Services, Division of Aging and Adult
Services and Weld County, Weld County Division of Human Services, Area Agency on
Aging, contract number 07-IHA-00064. For purposes of this Addendum, the State is
referred to as "Covered Entity" or "CE" and the Contractor is referred to as "Associate").
Unless the context clearly requires a distinction between the Contract document and
this Addendum, all references herein to "the Contract" or "this Contract" include this
Addendum.
RECITALS
A. CE wishes to disclose certain information to Associate pursuant to the terms of
the Contract, some of which may constitute Protected Health Information ("PHI")
(defined below).
B. CE and Associate intend to protect the privacy and provide for the security of PHI
disclosed to Associate pursuant to this Contract in compliance with the Health
Insurance Portability and Accountability Act of 1996, Public Law 104-191
("HIPAA") and regulations promulgated thereunder by the U.S. Department of
Health and Human Services (the "HIPAA Regulations") and other applicable
laws, as amended.
C. As part of the HIPAA Regulations, the Privacy Rule (defined below) requires CE
to enter into a contract containing specific requirements with Associate prior to
the disclosure of PHI, as set forth in, but not limited to, Title 45, Sections
160.103, 164.502(e) and 164.504(e) of the Code of Federal Regulations ("CFR")
and contained in this Addendum.
The parties agree as follows:
1. Definitions.
a. Except as otherwise defined herein, capitalized terms in this Addendum
shall have the definitions set forth in the HIPAA Privacy Rule at 45 CFR Parts 160 and
164, as amended ("Privacy Rule"). In the event of any conflict between the mandatory
provisions of the Privacy Rule and the provisions of this Contract, the Privacy Rule shall
control. Where the provisions of this Contract differ from those mandated by the
Privacy Rule, but are nonetheless permitted by the Privacy Rule, the provisions of this
Contract shall control.
b. "Protected Health Information" or "PHI" means any information, whether
oral or recorded in any form or medium: (i) that relates to the past, present or future
physical or mental condition of an individual; the provision of health care to an
individual; or the past, present or future payment for the provision of health care to an
individual; and (ii) that identifies the individual or with respect to which there is a
Page 1 of 11
reasonable basis to believe the information can be used to identify the individual, and
shall have the meaning given to such term under the Privacy Rule, including, but not
limited to, 45 CFR Section 164.501.
c. "Protected Information" shall mean PHI provided by CE to Associate or
created or received by Associate on CE's behalf.
2. Obligations of Associate.
a. Permitted Uses. Associate shall not use Protected Information except for
the purpose of performing Associate's obligations under this Contract and as permitted
under this Addendum. Further, Associate shall not use Protected Information in any
manner that would constitute a violation of the Privacy Rule if so used by CE, except
that Associate may use Protected Information: (i) for the proper management and
administration of Associate; (ii) to carry out the legal responsibilities of Associate; or (iii)
for Data Aggregation purposes for the Health Care Operations of CE. Additional
provisions, if any, governing permitted uses of Protected Information are set forth in
Attachment A to this Addendum.
b. Permitted Disclosures. Associate shall not disclose Protected Information
in any manner that would constitute a violation of the Privacy Rule if disclosed by CE,
except that Associate may disclose Protected Information: (i) in a manner permitted
pursuant to this Contract; (ii) for the proper management and administration of
Associate; (iii) as required by law; (iv) for Data Aggregation purposes for the Health
Care Operations of CE; or (v) to report violations of law to appropriate federal or state
authorities, consistent with 45 CFR Section 502(j)(1). To the extent that Associate
discloses Protected Information to a third party, Associate must obtain, prior to making
any such disclosure: (i) reasonable assurances from such third party that such
Protected Information will be held confidential as provided pursuant to this Addendum
and only disclosed as required by law or for the purposes for which it was disclosed to
such third party; and (ii) an agreement from such third party to immediately notify
Associate of any breaches of confidentiality of the Protected Information, to the extent it
has obtained knowledge of such breach. Additional provisions, if any, governing
permitted disclosures of Protected Information are set forth in Attachment A.
c. Appropriate Safeguards. Associate shall implement appropriate
safeguards as are necessary to prevent the use or disclosure of Protected Information
other than as permitted by this Contract. Associate shall maintain a comprehensive
written information privacy and security program that includes administrative, technical
and physical safeguards appropriate to the size and complexity of the Associate's
operations and the nature and scope of its activities.
d. Reporting of Improper Use or Disclosure. Associate shall report to CE in
writing any use or disclosure of Protected Information other than as provided for by this
Contract within five (5) days of becoming aware of such use or disclosure.
e. Associate's Agents. If Associate uses one or more subcontractors or
agents to provide services under the Contract, and such subcontractors or agents
Page 2 of 11
receive or have access to Protected Information, each subcontractor or agent shall sign
an agreement with Associate containing substantially the same provisions as this
Addendum and further identifying CE as a third party beneficiary with rights of
enforcement and indemnification from such subcontractors or agents in the event of any
violation of such subcontractor or agent agreement. Associate shall implement and
maintain sanctions against agents and subcontractors that violate such restrictions and
conditions and shall mitigate the effects of any such violation.
f. Access to Protected Information. Associate shall make Protected
Information maintained by Associate or its agents or subcontractors in Designated
Record Sets available to CE for inspection and copying within ten (10) days of a request
by CE to enable CE to fulfill its obligations to permit individual access to PHI under the
Privacy Rule, including, but not limited to, 45 CFR Section 164.524.
g. Amendment of PHI. Within ten (10) days of receipt of a request from CE
for an amendment of Protected Information or a record about an individual contained in
a Designated Record Set, Associate or its agents or subcontractors shall make such
Protected Information available to CE for amendment and incorporate any such
amendment to enable CE to fulfill its obligations with respect to requests by individuals
to amend their PHI under the Privacy Rule, including, but not limited to, 45 CFR Section
164.526. If any individual requests an amendment of Protected Information directly
from Associate or its agents or subcontractors, Associate must notify CE in writing
within five (5) days of receipt of the request. Any denial of amendment of Protected
Information maintained by Associate or its agents or subcontractors shall be the
responsibility of CE.
h. Accounting Rights. Within ten (10) days of notice by CE of a request for
an accounting of disclosures of Protected Information, Associate and its agents or
subcontractors shall make available to CE the information required to provide an
accounting of disclosures to enable CE to fulfill its obligations under the Privacy Rule,
including, but not limited to, 45 CFR Section 164.528. As set forth in, and as limited by,
45 CFR Section 164.528, Associate shall not provide an accounting to CE of
disclosures: (i) to carry out treatment, payment or health care operations, as set forth in
45 CFR Section 164.506; (H) to individuals of Protected Information about them as set
forth in 45 CFR Section 164.502; (Hi) pursuant to an authorization as provided in 45
CFR Section 164.508; (iv) to persons involved in the individual's care or other
notification purposes as set forth in 45 CFR Section 164.510; (v) for national security or
intelligence purposes as set forth in 45 CFR Section 164.512(k)(2); or (vi) to correctional
institutions or law enforcement officials as set forth in 45 CFR Section 164.512(k)(5).
Associate agrees to implement a process that allows for an accounting to be collected
and maintained by Associate and its agents or subcontractors for at least six (6) years
prior to the request, but not before the compliance date of the Privacy Rule. At a
minimum, such information shall include: (i) the date of disclosure; (H) the name of the
entity or person who received Protected Information and, if known, the address of the
entity or person; (Hi) a brief description of Protected Information disclosed; and (iv) a
brief statement of purpose of the disclosure that reasonably informs the individual of the
basis for the disclosure, or a copy of the individual's authorization, or a copy of the
written request for disclosure. In the event that the request for an accounting is
Page 3 of 11
delivered directly to Associate or its agents or subcontractors, Associate shall within five
(5) days of the receipt of the request forward it to CE in writing. It shall be CE's
responsibility to prepare and deliver any such accounting requested. Associate shall not
disclose any Protected Information except as set forth in Section 2(b) of this Addendum.
Governmental Access to Records. Associate shall make its internal
practices, books and records relating to the use and disclosure of Protected Information
available to the Secretary of the U.S. Department of Health and Human Services (the
"Secretary"), in a time and manner designated by the Secretary, for purposes of
determining CE's compliance with the Privacy Rule. Associate shall provide to CE a
copy of any Protected Information that Associate provides to the Secretary concurrently
with providing such Protected Information to the Secretary.
j. Minimum Necessary. Associate (and its agents or subcontractors) shall
only request, use and disclose the minimum amount of Protected Information necessary
to accomplish the purpose of the request, use or disclosure, in accordance with the
Minimum Necessary requirements of the Privacy Rule including, but not limited to 45
CFR Sections 164.502(b) and 164.514(d).
k. Data Ownership. Associate acknowledges that Associate has no
ownership rights with respect to the Protected Information.
Retention of Protected Information. Notwithstanding Section 4(d) of this
Addendum, Associate and its subcontractors or agents shall retain all Protected
Information throughout the term of this Contract and shall continue to maintain the
information required under Section 2(h) of this Addendum for a period of six (6) years
after termination of the Contract.
m. Associate's Insurance. In addition to any insurance requirements in the
Contract, Associate shall maintain casualty and liability insurance to cover loss of PHI
data and claims based upon alleged violations of privacy rights through improper use or
disclosure of PHI. All such policies shall meet or exceed the minimum insurance
requirements of the Contract (e.g., occurrence basis, combined single dollar limits,
annual aggregate dollar limits, additional insured status and notice of cancellation).
n. Notification of Breach. During the term of this Contract, Associate shall
notify CE within twenty-four (24) hours of any suspected or actual breach of security,
intrusion or unauthorized use or disclosure of PHI and/or any actual or suspected use or
disclosure of data in violation of any applicable federal or state laws or regulations.
Associate shall take (i) prompt corrective action to cure any such deficiencies and (ii)
any action pertaining to such unauthorized disclosure required by applicable federal and
state laws and regulations.
o. Audits, Inspection and Enforcement. Within ten (10) days of a written
request by CE, Associate and its agents or subcontractors shall allow CE to conduct a
reasonable inspection of the facilities, systems, books, records, agreements, policies
and procedures relating to the use or disclosure of Protected Information pursuant to
this Addendum for the purpose of determining whether Associate has complied with this
Page 4of11
Addendum; provided, however, that: (i) Associate and CE shall mutually agree in
advance upon the scope, timing and location of such an inspection; (ii) CE shall protect
the confidentiality of all confidential and proprietary information of Associate to which
CE has access during the course of such inspection; and (iii) CE shall execute a
nondisclosure agreement, upon terms mutually agreed upon by the parties, if requested
by Associate. The fact that CE inspects, or fails to inspect, or has the right to inspect,
Associate's facilities, systems, books, records, agreements, policies and procedures
does not relieve Associate of its responsibility to comply with this Addendum, nor does
CE's (i) failure to detect or (ii) detection, but failure to notify Associate or require
Associate's remediation of any unsatisfactory practices, constitute acceptance of such
practice or a waiver of CE's enforcement rights under the Contract.
p. Safeguards During Transmission. Associate shall be responsible for using
appropriate safeguards to maintain and ensure the confidentiality, privacy and security
of Protected Information transmitted to CE pursuant to the Contract, in accordance with
the standards and requirements of the Privacy Rule, until such Protected Information is
received by CE, and in accordance with any specifications set forth in Attachment A.
3. Obligations of CE.
a. Safeguards During Transmission. CE shall be responsible for using
appropriate safeguards to maintain and ensure the confidentiality, privacy and security
of PHI transmitted to Associate pursuant to this Contract, in accordance with the
standards and requirements of the Privacy Rule, until such PHI is received by
Associate, and in accordance with any specifications set forth in Attachment A.
b. Notice of Changes. CE shall provide Associate with a copy of its notice of
privacy practices produced in accordance with 45 CFR Section 164.520, as well as any
subsequent changes or limitation(s) to such notice, to the extent such changes or
limitations may effect Associate's use or disclosure of Protected Information. CE shall
provide Associate with any changes in, or revocation of, permission to use or disclose
Protected Information, to the extent it may affect Associate's permitted or required uses
or disclosures. To the extent that it may affect Associate's permitted use or disclosure
of PHI, CE shall notify Associate of any restriction on the use or disclosure of Protected
Information that CE has agreed to in accordance with 45 CFR Section 164.522. CE
may effectuate any and all such notices of non -private information via posting on CE's
web site. Associate shall continually monitor CE's designated web site for notice of
changes to CE's HIPAA privacy policies and practices.
4. Termination.
a. Material Breach. In addition to any other provisions in the Contract
regarding breach, a breach by Associate of any provision of this Addendum, as
determined by CE, shall constitute a material breach of this Contract and shall provide
grounds for immediate termination of this Contract by CE pursuant to the provisions of
the Contract covering termination for cause, if any. If the Contract contains no express
provisions regarding termination for cause, the following terms and conditions shall
apply:
Page 5 of 11
(1) Default. If Associate refuses or fails to timely perform any of the
provisions of this Contract, CE may notify Associate in writing of the non-performance,
and if not promptly corrected within the time specified, CE may terminate this Contract.
Associate shall continue performance of this Contract to the extent it is not terminated
and shall be liable for excess costs incurred in procuring similar goods or services
elsewhere.
(2) Associate's Duties. Notwithstanding termination of this Contract,
and subject to any directions from CE, Associate shall take timely, reasonable and
necessary action to protect and preserve property in the possession of Associate in
which CE has an interest.
(3) Compensation. Payment for completed supplies delivered and
accepted by CE shall be at the Contract price. CE may withhold amounts due
Associate as CE deems necessary to protect CE against loss from third party claims of
improper use or disclosure and to reimburse CE for the excess costs incurred in
procuring similar goods and services elsewhere.
(4) Erroneous Termination for Default. If after such termination it is
determined, for any reason, that Associate was not in default, or that Associate's
action/inaction was excusable, such termination shall be treated as a termination for
convenience, and the rights and obligations of the parties shall be the same as if this
Contract had been terminated for convenience, as described in this Contract.
b. Reasonable Steps to Cure Breach. If CE knows of a pattern of activity or
practice of Associate that constitutes a material breach or violation of the Associate's
obligations under the provisions of this Addendum or another arrangement and does not
terminate this Contract pursuant to Section 4(a), then CE shall take reasonable steps to
cure such breach or end such violation, as applicable. If CE's efforts to cure such
breach or end such violation are unsuccessful, CE shall either (i) terminate the Contract,
if feasible or (ii) if termination of this Contract is not feasible, CE shall report Associate's
breach or violation to the Secretary of the Department of Health and Human Services.
c. Judicial or Administrative Proceedings. Either party may terminate the
Contract, effective immediately, if (i) the other party is named as a defendant in a
criminal proceeding for a violation of HIPAA, the HIPAA Regulations or other security or
privacy laws or (ii) a finding or stipulation that the other party has violated any standard
or requirement of HIPAA, the HIPAA Regulations or other security or privacy laws is
made in any administrative or civil proceeding in which the party has been joined.
d. Effect of Termination.
(1) Except as provided in paragraph (2) of this subsection, upon
termination of this Contract, for any reason, Associate shall return or destroy all
Protected Information that Associate or its agents or subcontractors still maintain in any
form, and shall retain no copies of such Protected Information. If Associate elects to
Page 6 of 11
destroy the PHI, Associate shall certify in writing to CE that such PHI has been
destroyed.
(2) If Associate believes that returning or destroying the Protected
Information is not feasible, Associate shall promptly provide CE notice of the conditions
making return or destruction infeasible. Upon mutual agreement of CE and Associate
that return or destruction of Protected Information is infeasible, Associate shall continue
to extend the protections of Sections 2(a), 2(b), 2(c), 2(d) and 2(e) of this Addendum to
such information, and shall limit further use of such PHI to those purposes that make
the return or destruction of such PHI infeasible.
5. Injunctive Relief. CE shall have the right to injunctive and other equitable and
legal relief against Associate or any of its subcontractors or agents in the event of any
use or disclosure of Protected Information in violation of this Contract or applicable law.
Associate acknowledges and agrees that in the event of such impermissible use or
disclosure of CE: (1) will suffer real, immediate, and irreparable injury which will be
prevented by injunctive relief; (2) that CE has no plain, speedy, and adequate remedy at
law; (3) that the granting of a preliminary injunction will promote the public interest in
privacy rather than disserve the public interest; (4) that the balance of equities always
favors the injunction in such cases; (5) that the injunction will preserve the status quo
pending a trial on the merits; and (6) that CE shall not be required to demonstrate a
reasonable probability of success on the merits in order to obtain injunctive relief.
6. No Waiver of Immunity. No term or condition of this Contract shall be construed
or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits,
protection, or other provisions of the Colorado Governmental Immunity Act, CRS 24-10-
101 et seq. or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. as applicable, as
now in effect or hereafter amended.
7. Limitation of Liability. Any limitation of Associate's liability in the Contract shall
be inapplicable to the terms and conditions of this Addendum.
8. Disclaimer. CE makes no warranty or representation that compliance by
Associate with this Contract, HIPAA or the HIPAA Regulations will be adequate or
satisfactory for Associate's own purposes. Associate is solely responsible for all
decisions made by Associate regarding the safeguarding of PHI.
9. Certification. To the extent that CE determines an examination is necessary in
order to comply with CE's legal obligations pursuant to HIPAA relating to certification of
its security practices, CE or its authorized agents or contractors, may, at CE's expense,
examine Associate's facilities, systems, procedures and records as may be necessary
for such agents or contractors to certify to CE the extent to which Associate's security
safeguards comply with HIPAA, the HIPAA Regulations or this Addendum.
10. Amendment.
a. Amendment to Comply with Law. The parties acknowledge that state and
federal laws relating to data security and privacy are rapidly evolving and that
Page 7 of 11
amendment of this Addendum may be required to provide for procedures to ensure
compliance with such developments. The parties specifically agree to take such action
as is necessary to implement the standards and requirements of HIPAA, the Privacy
Rule and other applicable laws relating to the security or privacy of PHI. The parties
understand and agree that CE must receive satisfactory written assurance from
Associate that Associate will adequately safeguard all Protected Information. Upon the
request of either party, the other party agrees to promptly enter into negotiations
concerning the terms of an amendment to this Addendum embodying written
assurances consistent with the standards and requirements of HIPAA, the Privacy Rule
or other applicable laws. CE may terminate this Contract upon thirty (30) days written
notice in the event (i) Associate does not promptly enter into negotiations to amend this
Contract when requested by CE pursuant to this Section or (ii) Associate does not enter
into an amendment to this Contract providing assurances regarding the safeguarding of
PHI that CE, in its sole discretion, deems sufficient to satisfy the standards and
requirements of HIPAA and the Privacy Rule.
b. Amendment of Attachment A. Attachment A may be modified or amended
by mutual agreement of the parties in writing from time to time without formal
amendment of this Addendum.
11. Assistance in Litigation or Administrative Proceedings. Associate shall make
itself, and any subcontractors, employees or agents assisting Associate in the
performance of its obligations under the Contract, available to CE, at no cost to CE, to
testify as witnesses, or otherwise, in the event of litigation or administrative proceedings
being commenced against CE, its directors, officers or employees based upon a
claimed violation of HIPAA, the Privacy Rule or other laws relating to security and
privacy or PHI, except where Associate or its subcontractor, employee or agent is a
named adverse party.
12. No Third Party Beneficiaries. Nothing express or implied in this Contract is
intended to confer, nor shall anything herein confer, upon any person other than CE,
Associate and their respective successors or assigns, any rights, remedies, obligations
or liabilities whatsoever.
13. Interpretation and Order of Precedence. The provisions of this Addendum shall
prevail over any provisions in the Contract that may conflict or appear inconsistent with
any provision in this Addendum. Together, the Contract and this Addendum shall be
interpreted as broadly as necessary to implement and comply with HIPAA and the
Privacy Rule. The parties agree that any ambiguity in this Contract shall be resolved in
favor of a meaning that complies and is consistent with HIPAA and the Privacy Rule.
This Contract supercedes and replaces any previous separately executed HIPAA
addendum between the parties.
Page 8of11
14. Survival of Certain Contract Terms. Notwithstanding anything herein to the
contrary, Associate's obligations under Section 4(d) ("Effect of Termination") and
Section 12 ("No Third Party Beneficiaries") shall survive termination of this Contract and
shall be enforceable by CE as provided herein in the event of such failure to perform or
comply by the Associate.
15. Representatives and Notice.
a. Representatives. For the purpose of the Contract, the individuals
identified elsewhere in this Contract shall be the representatives of the respective
parties. If no representatives are identified in the Contract, the individuals listed below
are hereby designated as the parties' respective representatives for purposes of this
Contract. Either party may from time to time designate in writing new or substitute
representatives.
b. Notices. All required notices shall be in writing and shall be hand
delivered or given by certified or registered mail to the representatives at the addresses
set forth below.
State/Covered Entity Representative:
Name:
Title:
Department and Division:
Address:
Jeanette Hensley
Director, Aging and Adult Services
Colorado Department of Human Services,
Aging and Adult Services
1575 Sherman Street, 10th Floor
Denver, CO 80203
Contractor/Business Associate Representative:
Name:
Title:
Department and Division:
Address:
Judy Griego
Director
Weld County,
Weld County Division of Human Services
Area Agency on Aging
315 North 11th Ave., PO Box A
Greeley, CO 80632
Page 9 of 11
ATTACHMENT A to EXHIBIT G
This Attachment sets forth additional terms to the HIPAA Business Associate
Addendum, which is part of the Contract dated July 1, 2006 between the Department of
Human Services, Division of Aging and Adult Services and Weld County, Weld County
Division of Human Services, Area Agency on Aging, contract number 07-IHA-00064,
("Contract") and is effective as of November 1, 2009 (the "Attachment Effective Date").
This Attachment may be amended from time to time as provided in Section 10(b) of the
Addendum.
1. Additional Permitted Uses. In addition to those purposes set forth in Section 2(a)
of the Addendum, Associate may use Protected Information as follows:
None except as otherwise directed in writing by the State
2. Additional Permitted Disclosures. In addition to those purposes set forth in
Section 2(b) of the Addendum, Associate may disclose Protected Information as
follows:
None except as otherwise directed in writing by the State
3. Subcontractor(s). The parties acknowledge that the following subcontractors or
agents of Associate shall receive Protected Information in the course of assisting
Associate in the performance of its obligations under this Contract:
None except as otherwise directed in writing by the State
4. Receipt. Associate's receipt of Protected Information pursuant to this Contract
shall be deemed to occur as follows, and Associate's obligations under the Addendum
shall commence with respect to such PHI upon such receipt: Upon the effective date of
the contract.
5. Additional Restrictions on Use of Data. CE is a Business Associate of certain
other Covered Entities and, pursuant to such obligations of CE, Associate shall comply
with the following restrictions on the use and disclosure of Protected Information:
As may be directed in writing by the State
Page 10 of 11
6. Additional Terms. [This section may include specifications for disclosure format,
method of transmission, use of an intermediary, use of digital signatures or PKI,
authentication, additional security of privacy specifications, de -identification or re -
identification of data and other additional terms.]
None
Contractor/Associate State/Covered En
Legal Name of Contractor Asso late STATE OF COLORADO
exactly as it appears in the Co tract BILL RITTER, JR GOVE NOR
By: By:
Print Name: For the Executive Dir ctor
Title: Department of H an Services
Date: Date:
CORPO £ IONS:
(A corporate se
required.)
or attestation is
Atte (Seal)
By
( orporate Secretary or Equivalent, or
'own/City/County Clerk)
LEGAL RE IEW
JOHN W. tUTHERS, ATTORNEY
GENER•
By
Page 11 of 11
STATE OF COLORADO
cdhs
Colorado Department of Human Services
people who help people
OFFICE OF SELF SUFFICIENCY AND INDEPENDENCE
PAULINE BURTON, DEPUTY EXECUTIVE DIRECTOR
DIVISION OF AGING AND ADULT SERVICES
1575 Sherman St., 10th Floor
Denver, Colorado 80203
Phone 303-866-2800
TDD 303-868-2850
FAX 303-866-2696
veww.cdhs.state .co. us
Jeanette Hensley
Director
November 4, 2009
Region 2-B
Judy Griego, Director
Weld County Division of Human Services
315 North 11th Ave., PO Box A
Greeley, CO 80632
Zcl, i t`. ;'; P 3: I q
Bill Ritter, Jr.
Governor
Karen L. Beye
Executive Director
Dear Ms. Griego:
Enclosed is your executed contract amendment #1 between Colorado Department of Human
Services (CDHS) and the Weld County Division of Human Services, Weld County Area Agency
on Aging.
If you have any questions, please contact the Contract Program Specialist, Peggy Spaulding, at
303-866-2867 or email peggy.spauldinq(aZstate.co.us or me at 303-866-2750 or email
todd.coffevstate.co.us.
Sincere
Todd Coffey, Manager
State Unit on Aging
Enclosures
cc via email:
Jeanette Hensley, Director, Aging and Adult Services
Eva Jewell, AAA Director, Region 2-B
Peggy Spaulding, Contract & SUA Program Specialist
Our Mission is to Design and Deliver Quality Human Services that Improve the Safety and Independence of the People of Colorado
Hello