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HomeMy WebLinkAbout2010-151B A TRUE COPY It D. I 1 . CERTIFICATION ON LAST PAGE EXHIBIT " D " J . K . BARTON , CLERK to the 1Qn ADMINISTRATIVE SERVICES AGREEMENT between BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC . and INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS CONFIDENTIALITY AND INDEMNITY AGREEMENT This Agreement, effective. July 1 , 2010 is entered into between Blue Cross and Blue Shield of Florida, Inc . (hereinafter " Administrator ") , and Indian River County Board of County Commissioners (hereinafter " Employer " ) , Symetra (hereinafter " Stop Loss Carrier " ) and The Gehring Group (hereinafter " Broker" ) . WHEREAS , Employer has established and maintains a self-insured Employee Welfare Benefit Plan pursuant to the Employee Retirement Income Security Act of 1974 to provide certain benefits as its Group Health Plan ( hereinafter " Plan ") for covered group members and their covered dependents : and WHEREAS , Administrator and Employer have entered into an agreement for the administration of the Group Health Plan (hereinafter " Administrative Services Agreement " ) ,. and WHEREAS , Employer has directed Administrator to provide Stop Loss Carrier and/or Broker access to certain Confidential Information (hereinafter defined) for cases which meet the criteria set forth in attached Exhibit 1 , which Employer has determined is necessary for Stop Loss Carrier and/or Broker to perform the certain services for the Employer ; and WHEREAS , Administrator desires to safeguard the confidentiality of the medical claims and other information acquired with regard to the covered group members and their covered dependents and to safeguard information regarding Administrator' s policies and procedures which are regarded as confidential and proprietary ; and WHEREAS , Employer, Stop Loss Carrier. and Broker recognize the legitimate interests of Administrator and the individuals whose health benefits are administered by Administrator in the proprietary , confidential , and private nature of such Confidential Information , and Administrator is willing to provide the Confidential Information only if its use is restricted to the purpose for which it is released and its confidentiality is maintained ; NOW . THEREFORE , for good and valuable consideration , the parties hereby agree as follows : 1 . For the purposes of this Agreement , " Confidential Information " means the information listed below in this Paragraph 1 , any information that Stop Loss Carrier and/or Broker learns or becomes aware of, directly or indirectly , through the disclosure of Confidential - Dl - A TRUE COPY CERTIFICATION ON LAST PAGE 1K BARTON , CLERK Information .. and any and all summaries , distillations , excerpts , work product or other documents utilizing or incorporating same , whether in whole or in part . Medical claim record information concerning individuals covered under the Plan , Administrator ' s provider contract information , e . g . , allowances , fee schedules . etc . , and any other information designated in writing by Administrator as confidential , trade secret , or proprietary . 2 . Stop Loss Carrier and/or Broker shall only request, use and disclose the minimum amount of Confidential Information necessary for Stop Loss Carrier and/or Broker to perform the services for Employer . 3 . Confidential Information shall not include information that ( i ) is already known to Stop Loss Carrier and/or Broker on effective date of this Agreement ; ( ii ) is or becomes known to the general public other than as a direct or indirect result of any act or omission of Employer, Stop Loss Carrier, Broker, or the affiliates , officers , directors , partners , employees , or agents (collectively , the "Related Parties ") of Employer, Stop Loss Carrier or Broker ; ( iii ) is lawfully received by Stop Loss Carrier and/or Broker from a third parry that Stop Loss Carrier and/or Broker has verified is free to disclose the information without restriction on disclosure ; or ( iv) is independently developed by Stop Loss Carrier and/or Broker without use of Confidential Information . 4 . Subject to applicable laws , Administrator will release to Stop Loss Carrier and/or Broker certain Confidential Information for purposes of: 1 ) monitoring designated cases for which reinsurance coverage may be available to Employer ; and/or 2 ) auditing claims payments made by Administrator : provided that Employer is in compliance with all other terms and conditions of this Agreement and the Administrative Services Agreement, and Stop Loss Carrier and Broker are in compliance with all other terms and conditions of this Agreement . 5 . Stop Loss Carrier and Broker each acknowledge that Administrator will provide Confidential Information to Stop Loss Carrier and/or Broker in confidence and solely for Stop Loss Carrier ' s and/or Broker ' s use in performing the services for Employer . Accordingly , Stop Loss Carrier and Broker each agree ( i ) to protect any and all Confidential Information Stop Loss Carrier or Broker receives from unauthorized access , use and disclosure ; ( ii ) not to use the Confidential Information for any purpose other than performing the services for Employer ; ( iii ) not to record , copy, or reproduce any Confidential Information in any form , except to the extent necessary to perform the services for Employer; ( iv ) not to disclose the Confidential Information to , or otherwise permit to access the Confidential Information , any third party , including without limitation Stop Loss Carrier ' s or Broker ' s Related Parties , except as expressly provided herein or with Administrator ' s prior written consent ; (v) to limit access to and use of the Confidential Information to those of Stop Loss Carrier ' s or Broker ' s employees who have a need to know such information for the purpose of performing the services and have acknowledged, in a writing which will be made available to Administrator upon request, their individual agreement to the terms hereof, and (vi ) to take any and all other steps necessary to safeguard Confidential Information against unauthorized access , use , and - D2 - A TRuE � Ur k r RTIFIGATION ON LAST PAGE: J . K . BARTON , CLERK disclosure to at least the extent Stop Loss Carrier or Broker maintains the confidentiality of its most proprietary and confidential information . 6 . Stop Loss Carrier and/or Broker shall ensure that its agents , contractors and vendors to whom it discloses Confidential Information agree to abide by those provisions within this Agreement that govern the use , disclosure, and protection of all Confidential Information obtained from Administrator . This provision shall not be construed to permit any delegation or assignment of Stop Loss C' arrier ' s or Broker ' s obligations otherwise prohibited by this Agreement . 7 . Stop Loss Carrier and/or Broker shall promptly report in writing to Administrator any use or disclosure of Confidential Information not provided for under this Agreement, of which Stop Loss Carrier and /or Broker becomes aware , but in no event later than within five business days of first learning of any such use or disclosure . Stop Loss Carrier and/or Broker shall mitigate , to the extent practicable , any harmful effect that is known to Stop Loss Carrier and/or Broker of a use or disclosure of Confidential Information by Stop Loss Carrier and /or Broker in violation of this Agreement . 8 . Stop Loss Carrier and/or Broker may disclose Confidential Information if required to do so under any federal , state , or local law , statute , rule or regulation ; provided , however, that ( i ) Stop Loss Carrier and/or Broker will provide Administrator with immediate written notice of any request that Stop Loss Carrier and/or Broker disclose Confidential Information , so that Administrator may object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law , Stop Loss Carrier and/or Broker shall disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate ; and (ii ) in no event shall Stop Loss Carrier and/or Broker disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure . 9 . By disclosing Confidential Information to Stop Loss Carrier and/or Broker under this Agreement ( including but not limited to information incorporated in computer software or held in electronic storage media) , Administrator grants Stop Loss Carrier and/or Broker no ownership right or interest in the Confidential Information . When Stop Loss Carrier and/or Broker no longer needs Confidential Information for the purpose for which it was disclosed but no later than the expiration or termination of this Agreement, Stop Loss Carrier and /or Broker shall collect and return to Administrator or destroy all Confidential Information received from or on behalf of Administrator that Stop Loss Carrier and/or Broker has in its control or custody in any form and shall retain no copies of such information . Stop Loss Carrier and/or Broker shall complete these obligations as promptly as possible . Upon request , an authorized officer of Stop Loss Carrier and/or Broker shall certify on oath to Administrator that all Confidential Information has been returned or destroyed and deliver such certification to Administrator within ten ( 10 ) business days of its request . if return or destruction of any Confidential Information is not feasible , Stop Loss Carrier and/or Broker shall limit further uses and disclosures of such Confidential Information to those purposes making return or destruction infeasible and continue to apply the protections of this Agreement to such Confidential Information for so long as Stop Loss Carrier and/or Broker retains such Confidential Information . Stop Loss Carrier and/or Broker may , subject to its continued adherence to its obligations of confidentiality as defined in this Agreement , retain one copy of documents containing Confidential - D3 - A I RITE COPY CERTIFICATION 014 LAST PAGE J . K . BARTON , CLERK Information to defend its work product and to comply with applicable insurance record - keeping laws and regulations . 10 . In the event that Stop Loss Carrier and/or Broker performs any of the services on Administrator ' s premises , Stop Loss Carrier and/or Broker agree not to remove from Administrator ' s premises any Confidential Information that is provided to or obtained by the Stop Loss Carrier and/or Broker on such premises , without the prior written consent of Administrator . 11 . In any report or transmittal to Employer by Stop Loss Carrier and/or Broker that contains or pertains to oral or written Confidential Information , no medical information or dates of service will be identifiably attributed to any particular employee , dependent, or provider . Furthermore , any such report or transmittal shall not contain any information designated by Administrator as confidential , trade secret, or proprietary . 12 . As the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996 ( HIPAA -AS ) and certain of its implementing regulations (HIPAA -AS Regulations) are now effective , Employer, Stop Loss Carrier, and Broker agree to institute any additional procedures and/or agreements required to ensure the parties ' compliance with that law and those regulations . Employer represents and warrants that Employer (i ) has amended each Plan ' s plan document to permit Employer to perform plan administration for the Plans ( including the activity( ies) described in the recital clauses above) in accordance with 45 C . F . R . § 164 . 504 (f) and 45 C . F . R . § 164 . 314 (b) of the HIPAA -AS Regulations (" HIPAA Amendment" ) ; (ii) has delivered to each Plan and Administrator a written statement , certifying its amendment of the Plan ' s plan document as required by the HIPAA -AS Regulations and its agreement to comply with that amendment ; and (iii ) has obtained each Plan ' s permission to receive individually identifiable health information from Administrator for the purposes and subject to the restrictions and protections described in the HIPAA Amendment . Stop Loss Carrier and Broker each agree to be bound , and to cause any agent or subcontractor to be bound , by the same restrictions and protections agreed to by Employer in the HIPAA Amendment with respect to any individually identifiable health information encompassed within the Confidential Information Stop Loss Carrier and/or Broker receives . 13 . No health insurance records or information , or claims information , shall be disclosed without the prior written authorization of the individual whose records or information would be disclosed ; provided , however, that Stop Loss Carrier and Broker may release information provided pursuant to this Agreement to subsidiaries of Stop Loss Carrier and Broker so long as any and all such subsidiaries agree to abide by all terms and conditions of this Agreement . 14 . Employer , Stop Loss Carrier and Broker shall comply with all applicable federal , state or local laws , rules , or regulations or any other order of any authorized court, agency , or regulatory commission , and all applicable professional standards and practices , concerning the handling and/or safekeeping of information and/or other records of the nature disclosed by Administrator hereunder and shall use such information only for proper and lawful purposes . 15 . Employer, Stop Loss Carrier and Broker shall comply with all state and federal laws regulating the disclosure of patient records or private and medically sensitive information - D4 - A TRUE COPY CERTIFICATION ON LAS F PAGE J . K . BARTON , CLERK released pursuant to this Agreement, including without limitation , alcohol and drug abuse patient records , information relating to treatment of alcohol or drug dependency . HIV testing results , and psychological or psychiatric evaluation . 16 , To the extent permitted by law now or hereinafter enacted , Employer agrees to indemnify , defend , and hold Administrator and each of its officers , directors , employees , agents , and other representatives ( collectively, "Administrator ' s Related Parties" harmless from any actual or threatened legal or administrative action , claim , liability , penalty , fine , assessment , lawsuit , litigation , or other loss , expense , or damage , including without limitation reasonable attorneys ' fees and costs ( collectively , "Liability") , that Administrator or Administrator ' s Related Parties may incur arising out of or relating to the disclosure of Confidential Information to Employer, Stop Loss Carrier, or Broker , including without limitation any Liability incurred as a result of any actual or alleged breach by Employer or any Related Parties of Employer of any applicable law , regulation , or other legal mandate or any provision of this Agreement . 17 . Stop Loss Carrier agrees to indemnify , defend , and hold Administrator and Administrator ' s Related Parties harmless from any actual or threatened legal or administrative action , claim , liability, penalty , fine , assessment, lawsuit, litigation , or other loss , expense , or damage , including without limitation reasonable attorneys ' fees and costs (collectively , " Liability" ) , that Administrator or Administrator ' s Related Parties may incur arising out of or in connection with any actual or alleged breach by Stop Loss Carrier or any of Stop Loss Carrier ' s Related Parties of any applicable law, regulation , or other legal mandate or any provision of this Agreement . 18 . Broker agrees to indemnify , defend , and hold Administrator and Administrator ' s Related Parties harmless from any actual or threatened legal or administrative action , claim . liability , penalty , fine , assessment, lawsuit , litigation , or other loss , expense , or damage , including without limitation reasonable attorneys ' fees and costs (collectively, " Liability") . that Administrator or Administrator ' s Related Parties may incur arising out of or in connection with any actual breach by Broker or any of Broker ' s Related Parties of any applicable law , regulation , or other legal mandate or any provision of this Agreement . 19 . Administrator shall have the option to either provide its own legal counsel or arrange for outside counsel for the defense of such matters referenced above , and the costs of either shall be borne by the indemnifying party in the event of indemnification . 20 . Employer, Stop Loss Carrier, and Broker acknowledge and agree that Administrator operates in a highly regulated and competitive environment and that the unauthorized use or disclosure of Confidential Information will cause irreparable harm and significant injury to Administrator, which will be difficult to measure with certainty or to compensate through money damages . Accordingly , Administrator shall be entitled to seek injunctive or other equitable relief, without bond , and/or specific performance as a remedy for any breach of this Agreement . Such remedy shall not be deemed to be the exclusive remedy for a breach of this Agreement, but shall be in addition to all other remedies available at law or in equity . 21 . It is understood and agreed that no failure or delay by Administrator in exercising any right , power or privilege hereunder shall operate as a waiver thereof, nor shall any single - DS - A TRUE COPY CERTIFICATION ON LAST PAGE J . K . BARTON , CLERK or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder . 22 . Upon occurrence of any of the following , this Agreement shall terminate without notice , unless notice is specifically required : a . Termination of the Administrative Services Agreement . b . if Administrator determines at its own discretion that the Confidential Information released pursuant to this Agreement is not being adequately protected by either Employer, Stop Loss Carrier or Broker for confidentiality purposes . c . Upon fifteen ( 15 ) days notice to Employer, Stop Loss Carrier or Broker, as appropriate . Such notice shall be given without need for cause . d . Upon any attempt by Employer, Stop Loss Carrier or Broker (which attempts shall be null and void) to assign this Agreement or the right to receive information, without the prior express consent of Administrator . e . Upon enactment of or the effective date of, whichever first occurs , any applicable state or federal law or any rule or regulation of any agency having applicable jurisdiction , which law , rule or regulation shall prohibit ( in part or in full) Administrator from fulfilling its obligations hereunder . No penalty , liability or damage shall be applicable or claimed by Employer, Stop Loss Carrier or Broker against Administrator in such event . 23 . The relationship between the parties is that of independent contractors . Nothing in this Agreement shall be construed to create a partnership or joint venture between the parties and neither party shall have the right to bind the other to any contracts , agreements , or other obligations without the express , written consent of an authorized representative of the other . 24 . This Agreement shall be governed and construed by the laws of the State of Florida ( irrespective of its choice of law principles) . It constitutes the entire Agreement between the parties in reference to all matters expressed in the Agreement . All previous discussions , promises , representations , and understandings between the parties pertaining thereto , if any , being merged herein . 25 . This Agreement may not be assigned , nor any obligations delegated , by Employer, Stop Loss Carrier, and/or Broker. without the prior written consent of Administrator, and any such non -permitted assignment or delegation shall be void . 26 . In the event any provision of this Agreement is rendered invalid or unenforceable by any valid act of Congress or the Florida Legislature or by any regulation duly promulgated by the officers of the United States or the State of Florida acting in accordance with law , or if declared null and void by any court of competent jurisdiction , the remainder of this Agreement shall remain in full force and effect . 27 . Waiver of breach of any provision of this Agreement shall not be deemed a waiver of any other breach of the same or a different provision . - D6 - A TRUE COPY CERTIFICATION ON f_ AST PAGE ,i . K . BARTON , C (_ ERK 28 . The obligation of Employer, Stop Loss Carrier and/or Broker to protect the privacy of Confidential Information as specified in this Agreement shall be continuous and survive the expiration or termination of this Agreement . In addition , the rights and obligations of the parties set forth in Sections 9 , 11 , 16 - 20 and of this paragraph 28 of this Agreement shall survive its expiration or termination . 29 . This Agreement may be amended by mutual agreement of the parties , but no such amendment shall become effective until it is reduced to writing and signed by duly authorized representatives of each party . IN WITNESS WHEREOF , the parties have caused this Agreement to be executed by their duly authorized representative as set forth below . EdVIPLOYER ADMINISTRATOR INDIAN RIVER COUNTY BOARD BLUE CROSS AND BLUE SHIELD OF COUNTY COhulKISSIONERS OF FLORIDA , INC . 71 By ' . Title Chai rfffan ' Title : ' ' : 1j Date : August 25 , 2010 Date : Approved by BCC : June 15 , 2010 STOP LOSS CARRIER BROKER SYMETRA FINANCIAL THE GEHRING GROUP By : By : Title : Title : Date : Date : c:A '' r r . pp t7hTr f"st^�. rs i'M S . tPOB.ACKlMCHT lPPROVEDO , - C my Adr inistrator - D7 - EXHIBIT 1 Administrator shall release confidential information to Stop Loss Carrier and /or Broker for cases which meet the following criteria . STATE OF FLORIDA i INDIAN RIVER COUNTY THIS IS TO CERTIFY THAT THIS IS ! \SSIONERS A TRUE AND CORRECT COPY OF THE ORIGI ON FILE IN T .� OFFICE F YK . BARTO of t DATE - D8 -