HomeMy WebLinkAbout2021-089CDocuSign Envelope ID: FAA4141C-02DF-41B5-A6D3-14CDB4ABD65B
COBRA SERVICES AGREEMENT
This Agreement made effective as of October 1, 2021 (the "Effective Date"), by and between
INDIAN RIVER COUNTY, 1800 27th Street, Vero Beach, FL 32960 (the "Employer"), and P&A
ADMINISTRATIVE SERVICES, INC., 17 Court Street, Suite 500, Buffalo, NY 14202-3294 ("P&A").
WITNESSETH:
WHEREAS, the Employer maintains several group health plans for the benefit of its eligible
employees; and
WHEREAS, the Employer has various obligations and responsibilities under the federal
legislation commonly referred to as "COBRA" with respect to the administration of its group health
plans;
WHEREAS, the Employer desires to use P&A to assist the Employer in meeting its COBRA
compliance responsibilities, and P&A desires to provide such services upon certain terms and
conditions;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained
herein and for other good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto, with the intention of being legally bound hereby, covenant and agree as follows:
1. COBRA Administration. P&A agrees to assist the Employer in meeting its responsibilities
under the COBRA law, which requires the Employer to offer continuation coverage to certain individuals
who lose coverage under one or more group health plans of the Employer. P&A shall provide this
assistance by providing those administrative services described in Section 2 of this Agreement with
respect to those group health plans and coverage options listed on Schedule A (collectively referred to
as the "Plan").
2. Services to be Provided By P&A.
(a) Upon execution of this Agreement by the parties, P&A shall provide the following services:
(1) P&A shall make available to the Employer electronically or by another method that
is mutually agreeable to the parties (i) a COBRA procedures manual, and (ii) forms for the
Employer to use in providing information to P&A pursuant to subsections 3(b) and 3(c) of this
Agreement;
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(2) With respect to each former employee and other individual receiving COBRA
continuation coverage under the Plan (a "COBRA Continuant") on the Effective Date, P&A shall
receive by electronic download from the Employer, the information that P&A deems necessary
to discharge its responsibilities under this Agreement, including but not limited to name, address,
Social Security number, plan information, coverage information (including information for
covered dependents) and costs, and enter that information into P&A's administrative software
system to create an electronic file with respect to the subject matter of this Agreement; and
(3) P&A shall send correspondence to each such COBRA Continuant explaining
P&A's role in the COBRA administration of the Plan.
(b) Within ninety (90) days after an employee of the Employer first becomes covered by the
Plan, P&A shall send by first class mail a notice addressed to the employee and to any spouse of the
employee who also is covered by the Plan informing them of their rights and responsibilities under the
COBRA law (an "Initial COBRA Notice").
(c) P&A shall review any notice stating that a Qualifying Event for COBRA purposes has
occurred with respect to coverage under the Plan. For purposes of this Agreement, the term "Qualifying
Event" shall have the meaning ascribed to it by Section 498013(f)(3) of the Internal Revenue Code or
any successor provision of law. If such notice is determined to have been timely provided and the
occurrence of a Qualifying Event is confirmed, P&A shall provide the following services with respect to
each of those individuals who has become entitled to COBRA continuation coverage as a result of that
Qualifying Event (a "Qualified Beneficiary"):
(1) P&A shall mail to the attention of the Qualified Beneficiary a COBRA election
package consisting of a notice notifying him or her that he or she has the right to elect to continue
his or her Plan coverage on the terms described in the notice (a "COBRA Election Notice"); a
form that may be used to elect continuation coverage; and any enrollment forms that must be
completed to satisfy the requirements of any insurance company, Health Maintenance
Organization or other entity that will provide elected COBRA coverage (a "Coverage Provider").
A third -party administrator for a self-insured plan or benefit option shall be deemed the Coverage
Provider with respect thereto, and the Employer shall be deemed the coverage Provider for a
self-insured plan or benefit option that is self-administered by the Employer;
(2) If the Qualified Beneficiary elects COBRA continuation coverage by completing
and returning the aforementioned election form and any applicable enrollment forms and timely
pays his or her initial COBRA premium, P&A shall forward his or her enrollment form information
to the Coverage Providers that will be providing the elected coverage;
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(3) P&A shall send to the Qualified Beneficiary who has elected COBRA continuation
coverage (a "COBRA Continuant"), a bill with respect to each month of the elected coverage,
and shall send a second bill should the COBRA Continuant fail to timely pay the original bill by
its stated due date. The billed amount shall be 102 percent of the "applicable premium" (one
hundred and ten (110%) percent with respect to coverage extended from 18 months to 29
months due to disability, unless a different percentage is mutually agreed upon by the parties)
within the meaning of Section 4980B(f)(2)(C) of the Internal Revenue Code;
(4) P&A shall forward 100% of the applicable premium to the Employer for payment
to the Coverage Provider, accompanied by information that identifies the COBRA Continuant,
the amount of his or her premium and the coverage period to which the premium payment
relates. The amount by which a premium payment exceeds the applicable premium (typically,
two (2%) percent of the applicable premium) shall be retained by P&A as additional
compensation for its services hereunder;
(5) Should the COBRA Continuant fail to make any periodic premium payment by the
end of the applicable grace period, P&A shall notify the Coverage Provider that the COBRA
Continuant's coverage is to be canceled due to the non-payment of premiums;
(6) P&A shall receive and review any request by a COBRA Continuant to extend the
period of his or her COBRA continuation coverage on account of a determination of disability by
the Social Security Administration or the occurrence of a second Qualifying Event;
(7) If it determines that a COBRA Continuant's request to extend the period of his or
her COBRA continuation coverage should be granted, P&A shall so notify the Coverage
Providers who have been providing COBRA coverage;
(8) P&A shall notify the COBRA Continuant should a Coverage Provider modify his or
her COBRA coverage in any material respect;
(9) At the Employer's request, P&A shall coordinate with the Employer regarding open
enrollments occurring during the term of the COBRA Continuant's COBRA coverage and shall
forward to the appropriate Coverage Provider information describing any change in coverage
elected by the COBRA Continuant during open enrollment;
(10) Using information contained in its electronic file regarding the COBRA Continuant,
P&A shall determine the date as of which his or her COBRA continuation coverage is due to
cease;
(11) Should it determine that the COBRA continuation coverage of the COBRA
Continuant is to be prematurely terminated due to the non-payment of premiums, the
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commencement of coverage under another group health plan or Medicare or other
circumstances prescribed by the COBRA law, P&A shall notify him or her in writing to that effect;
(12) Prior to the termination of a COBRA Continuant's continuation coverage, P&A shall
provide him or her with a notice describing any rights that he or she may have to obtain coverage
under a "conversion health plan" within the meaning of Section 4980B(f)(2)(E) of the Internal
Revenue Code;
(d) With respect to any individual who is a COBRA Continuant on the date this Agreement
first becomes effective, P&A shall provide all of the services described in paragraphs "3" through "12"
of subsection (c) above.
(e) If, after it reviews a notification that a Qualifying Event has occurred or that a disability
determination has been received, P&A determines that there is no right to COBRA continuation
coverage or to an extension of COBRA continuation coverage based on that notification, it shall provide
written notice to the affected individuals that COBRA coverage is not available.
(f) Should the law of any State or Commonwealth require that continuation coverage be
made available for a period extending beyond the maximum coverage period specified in COBRA, P&A
agrees to provide the following additional services on written request:
(1) P&A shall customize the COBRA Election Notice provided to a COBRA Continuant
to inform him or her of the right to the extended coverage period.
(2) P&A shall program in its administrative software system data reflecting the
extended coverage period.
(3) P&A shall track in its administrative software system all dates that become relevant
to the provision of continuation coverage due to the extended coverage period.
(4) P&A shall provide to each COBRA Continuant whose federally -mandated
continuation coverage is due to expire a reminder that he or she has the right to further
continuation coverage under state law and shall identify the plan benefits to which such
extension rights apply.
(g) P&A shall provide to the Employer and to Qualified Beneficiaries reasonable access to
P&A employees who are familiar with the Plan through a toll-free telephone number and "Live Chat"
texting during the regular business hours of P&A and voicemail for after-hours calls.
(h) Once per month, P&A shall provide to the Employer a summary of information pertaining
to its administrative activities hereunder during the preceding month, including the names of each of
the Plan's COBRA Continuants during that month, the premium amounts that each paid for coverage
during that month and the types of coverage he or she received during that month.
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3. Employer Responsibilities.
(a) As soon as is practicable after this Agreement is signed, the Employer shall obtain from
each insurance company, Health Maintenance Organization or other entity that is providing coverage
under the Plan (a "Coverage Provider") authorization for P&A to communicate with it directly regarding
the subject matter of this Agreement.
(b) The Employer shall notify P&A as soon as possible, but not later than thirty (30) days,
following the occurrence of any of the following events:
(1) the commencement of coverage for any person under the Plan;
(2) the death of a covered employee;
(3) the termination (other than by reason of gross misconduct) or reduction of hours
of a covered employee's employment;
(4) a covered employee becoming entitled to Medicare benefits under title XVI I I of the
Social Security Act;
(5) a proceeding regarding the Employer's bankruptcy under title 11 of the United
States Code that affects the benefits of a retired employee or his spouse or dependents of the
Employer; or
(6) in accordance with any change in a law or regulation requiring group health plan
continuation coverage after the date of this Agreement, any other event the occurrence of which
requires notification by an Employer to a plan administrator, but only after P&A advises the
Employer of such change.
Such notification shall be made by electronic transmission via P&A's web portal or U.S.
mail, using forms provided by P&A for this purpose.
(c) The Employer shall notify P&A as soon as possible, but not later than five (5) days after
the Employer is notified by an employee, spouse or dependent of following the occurrence of any of
the following events:
(1) The divorce of the employee from the employee's spouse (or their legal separation,
but only if such event causes the spouse to lose his or her coverage under the terms of the
Plan); or
(2) A dependent child ceasing to be a dependent child under the requirements of the
Plan.
Such notification shall be made by electronic transmission, using forms provided by P&A for this
purpose.
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(d) The Employer shall review each monthly report generated by P&A pursuant to Section
2(h) and shall notify P&A within thirty (30) days after the report was sent or made available to the
Employer of any errors or omissions in the report. A set of instructions that the Employer may use to
verify the accuracy of P&A's monthly reports is available on request.
(e) Should the Employer desire to engage P&A to provide the state law continuation services
described at Section 2(f) above, not less than thirty (30) days before such services are to commence,
the Employer shall provide P&A with the identity of the state involved; the types of health plan coverage
to which the extension applies (e.g., just group health insurance); the length of the extension period;
and any other information that is germane to administering the extension period coverage.
(f) The Employer shall promptly and accurately furnish to P&A such other information as
P&A reasonably deems necessary or appropriate for the discharge of its responsibilities hereunder.
(g) Should P&A modify in any way the standard format of any of its written materials used in
connection with the provision of its professional COBRA administration services, the Employer agrees
to use exclusively the modified version of the materials as soon as P&A provides them to the Employer.
(h) Should the group health plans or coverage options listed on Schedule A include a health
flexible spending account under a cafeteria plan in accordance with Internal Revenue Code Section
125 and the regulations (proposed or final) thereunder (a "health FSA") with respect to which P&A is
not the claims administrator, the Employer (or an agent of the Employer other than P&A) shall be
responsible for determining whether any person who has sustained a loss of coverage under that health
FSA must be offered the opportunity to continue that coverage based on Income Tax Regulation
Section 54.498013-2, Q&A -8 (or any successor regulations or rules pertaining thereto) and, if so, for
advising P&A of the applicable premium for same.
(i) Should any of the group health plans or coverage options listed on Schedule A include
a "self-insured medical expense reimbursement plan" as defined in Internal Revenue Code Section
105(h) with respect to which P&A is not the claims administrator, (other than a health FSA that is part
of a cafeteria plan), the Employer (or an agent of the Employer other than P &A) shall be responsible
for advising P&A of the applicable premium for continuation coverage under that self-insured medical
expense reimbursement plan.
0) Should the Employer become a party to any collective bargaining agreement containing
any provision that refers to or impacts, either directly or indirectly, the manner in which COBRA is to be
provided to any employee who is a member of the collective bargaining unit that is a party to the
agreement or his or her spouse or dependents, the Employer shall provide P&A with a complete copy
of the pertinent contract language not less than thirty (30) days before the effective date of that
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collective bargaining agreement.
(k) The Employer warrants and represents to P&A that the list of group health plans and of
the coverage providers under each such plan is complete and accurate as of the date of this Agreement.
Should the Employer, during the term of this Agreement, establish any new group health plan or add
any coverage provider to any of its current group health plans, the Employer agrees to notify P&A in
writing of same within seven (7) days thereafter. The Employer hereby acknowledges its understanding
that P&A cannot assure the Employer's compliance with COBRA without having, at all times, complete
and accurate information as to the group health plans and coverage options of the Employer.
4. Compensation.
(a) As compensation for the services rendered hereunder, the Employer agrees to pay P&A
fees in accordance with the fee schedule set forth at Schedule B hereto, and such fees shall be
guaranteed for the first three (3) years of the Agreement. Thereafter, beginning in the fourth (4th)
Contract Year, or October 1, 2024, P&A may modify the fee schedule set forth on Schedule B. For
purposes of this Agreement, the term "Contract Year" means the period beginning on the Effective Date
and ending one year later and each subsequent one-year period beginning on an anniversary of the
Effective Date. P&A shall notify the Employer in writing of any modification to the fee schedule not less
than ninety (90) days before the beginning of the Contract Year in which the modification is to become
effective.
(b) Should the Employer fail to timely provide P&A with any notification required under
subsection 3(d) above, P&A shall be entitled to additional compensation for billing or enrollment
adjustments that must be made on account of that failure, with such additional compensation amount
equal to $10.00 per affected COBRA Continuant.
(c) Should the Employer request in writing any services or materials that are in addition to
the services described in Section 2, P&A shall be entitled to such additional compensation from the
requesting party as is mutually agreed upon in writing by the requesting party and P&A.
5. Limitation on P&A's Obligations. P&A shall have no obligation under this Agreement or
otherwise to verify the accuracy or completeness of any information furnished by the Employer to P&A.
P&A shall not provide legal counsel or tax advice to the Employer, and any advice furnished by P&A to
the Employer regarding any provision of any law providing for the continuation of group health coverage
should not be relied upon by Employer prior to consulting with its own legal advisors. P&A shall not be
responsible for any action or inaction regarding COBRA administration that occurred prior to the
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commencement of this Agreement, or that results from the Employer's failure to notify P&A on a timely
basis regarding a qualifying event, or that occurs after the termination of the Agreement.
6. Re/ease and Indemnification.
(a) P&A shall be liable for and shall protect, hold harmless and indemnify the Employer and
its employees from and against all penalties, losses, damages, costs, expenses, attorney's fees and
court costs suffered by the Employer or its employees resulting from a breach of this Agreement or
from the negligence or other tortuous conduct of P&A or any of P&A's employees arising out of the
performance of its duties under this Agreement.
(b) The Employer shall be liable for and shall protect and hold harmless P&A and its
employees from and against all penalties, losses, damages, costs, expenses, attorney's fees and court
costs suffered by P&A or its employees attributable to any breach by the Employer of its obligations,
warranties or representations, including but not limited to incorrect and or incomplete information
provided by the Employer or the unauthorized modification or misuse of forms provided to the Employer
by P&A. Such obligations of Employer shall be only to the limits set forth in section 768.28, Florida
Statutes.
P&A and Employer agree that the provisions of this Section 6 shall survive the termination of
this Agreement.
7. Term and Termination. The initial term of this Agreement shall be the Contract Year
commencing on the Effective Date. Thereafter, this Agreement automatically shall be renewed for each
additional Contract Years, unless one party to this Agreement gives the other party notice in writing of
its desire to terminate the Agreement as of the end of a specified Contract Year not less than sixty (60)
days prior to the end of that Contract Year. Notwithstanding the foregoing, this Agreement shall
terminate (a) automatically if either party is adjudicated a bankrupt or suffers appointment of a
temporary or permanent receiver, trustee or custodian for all or a substantial part of their assets, which
shall not be discharged within thirty (30) days of appointment, or makes an assignment for the benefit
of creditors, or (b) after written notice by one party of the other party's material breach of, or material
failure to perform, its obligations hereunder unless such breach or failure is cured within ten (10) days
of said notice. Any notice of breach must provide details regarding the nature of the other party's
alleged breach, the specific obligation hereunder to which the alleged material breach relates, the date
on which occurred and the identity of any personnel of the other party that were involved. Failure to
provide such detail shall render said notice null and void for purposes of this Agreement.
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Upon any termination of this Agreement, the following fees shall apply:
(a) Should the Employer request that P&A provide it with any information regarding the
services rendered under this Agreement that is not already available at P&A's web portal (e.g., the
addresses or election status of individuals who were COBRA Continuants on the date the Agreement
terminated), the Employer shall pay a fee of $500.00 to obtain such information.
(b) For each premium payment that P&A receives from a COBRA Continuant after the
termination of the Agreement and forwards to another party for processing, the Employer shall pay P&A
a fee of $5.00.
(c) For each COBRA election form that P&A receives from a Qualified Beneficiary after the
termination of the Agreement and forwards to another party for processing, the Employer shall pay P&A
a fee of $7.50.
(d) In regards to F.S. 287.135: P&A certifies that it and those related entities of P&A as defined
by Florida law are not on the Scrutinized Companies that Boycott Israel List, created pursuant to s.
215.4725 of the Florida Statutes, and are not engaged in a boycott of Israel. In addition, if this
agreement is for goods or services of one million dollars or more, P&A certifies that it and those related
entities of P&A as defined by Florida law are not on the Scrutinized Companies with Activities in Sudan
List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created
pursuant to Section 215.473 of the Florida Statutes and are not engaged in business operations in
Cuba or Syria.
(e) Employer may terminate this Agreement if P&A is found to have submitted a false certification
as provided under section 287.135(5), Florida Statutes, been placed on the Scrutinized Companies
with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy
Sector List, or been engaged in business operations in Cuba or Syria, as defined by section 287.135,
Florida Statutes.
(f) Employer may terminate this Agreement if P&A, including all wholly owned subsidiaries,
majority-owned subsidiaries, and parent companies that exist for the purpose of making profit, is found
to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in a boycott
of Israel as set forth in section 215.4725, Florida Statutes.
8. Confidentiality. Each party acknowledges that the information provided by the other hereunder
is confidential and shall not be disclosed or disseminated without written consent unless required by
law. Furthermore, the Employer acknowledges that P&A's methods of doing business, and all its
documents relating thereto, constitute trade secrets and know-how to which P&A retains exclusive
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proprietary rights.
9. HIPAA Compliance. The parties hereto acknowledge that they have entered into a separate
Business Associate Agreement of even date herewith and agree that said Business Associate
Agreement and all of the obligations and rights of the parties thereunder shall be incorporated herein
by reference.
10. E -Verify. P&A is registered with and will use the Department of Homeland Security's E -
Verify system (www.e-verify.gov) to confirm the employment eligibility of all newly hired employees for
the duration of this agreement, as required by Section 448.095, F.S. P&A is also responsible for
obtaining proof of E -Verify registration and utilization for all subcontractors.
11. Binding Effect; Assignment. This Agreement shall inure to the benefit of and be binding upon
the parties, their legal representatives, successors and assigns.
12. Integration. By their making of this Agreement, the parties hereto hereby acknowledge that this
Agreement supersedes any previous understandings between them with respect to all matters
contained herein and contains the entire understanding and agreement between them with respect to
all matters contained herein and cannot be amended, modified or supplemented except by a
subsequent written agreement entered into by both parties.
13. Enforcement. If any action at law or in equity (including arbitration) is necessary to enforce or
interpret any one or more of the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
14. Notice. Any notice hereunder by a party shall be deemed to have been duly given three (3)
business days after mailing, and, except as otherwise provided herein, shall be given by mailing in any
post office or post office box maintained by the United States Postal Service, enclosed in a postage
paid envelope, registered or certified mail, return receipt requested, addressed to the party to whom or
which notice is intended to be given at such party's address as stated above or to such other address
as each party shall specify in writing to the other.
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15. Governing Law. This Agreement is made in and shall be construed pursuant to the laws of the
State of Florida.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Effective Date.
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PBA ADMINISTRATIVE SERVICES, INC.
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Title: President
DocuSign Envelope ID: FAA4141C-02DF-41l35-A6D3-14CD64ABD658
SCHEDULE A
EMPLOYER'S GROUP HEALTH PLANS
Florida Blue - MEDICAL
Ameritas - DENTAL
EyeMed -VISION
P&A Group — FSA
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SCHEDULE B
FEES
INSTALLATION FEE. NIA
2. SUPPLEMENTAL INSTALLATION FEES -STATE CONTINUATION COVERAGE. The Employer shall pay to P&A
an installation fee of $125.00 for each state continuation law with respect to which the Employer requests (at any time while
this Agreement remains in effect) the optional services describe at Section 2(f) above. This fee shall be due and payable
within thirty (30) days after receipt by the Employer of P&A's invoice with respect to same.
3. MONTHLY ADMINISTRATION FEES. The Employer shall pay to P&A administration fees with respect to each
calendar month or portion of a calendar month during which P&A performs any of the services described herein. During the
second month of the Agreement, P&A shall begin to provide the Employer with invoices for services during the preceding
month. The fees for a given month shall equal $.50 for each individual enrolled in the Plan as of the first day of that month
(including for purposes of this Agreement any COBRA Continuant and any former employee whose COBRA election period
had not expired as of that date). Each such invoice shall be due and payable within thirty (30) days after receipt by the
Employer
4. MAILING EXPENSES. The Employer shall reimburse P&A for the cost of any mailing required under the Agreement
the rate for which exceeds the first-class rate charged by the U.S. Post Office after P&A provides the Employer with proof
of same.
5. PARTICIPANT FEES. An individual who has coverage under the Plan shall pay to P&A a fee of $25.00 should a
check tendered by him or her in payment of a premium be returned on account of insufficient funds. Further, if an individual's
COBRA coverage must be reinstated due to non-payment of premiums or other circumstances for which he or she is
responsible, he or she shall pay P&A a reinstatement fee of $30.00.
Note: Should changes in applicable federal or state law or regulations make it necessary or advisable for services other than those
enumerated in this Agreement to be rendered in connection with the administration of the Plan (e.g., a new type of notice is required to
be provided to certain covered persons) and should the Employer desire to retain P&A to provide such additional services, the addition
of such services to P&A's responsibilities shall require an amendment to this Agreement. P&A reserves the right to request an adjustment
in its fees hereunder under such circumstances.
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BUSINESS ASSOCIATE AGREEMENT
This Agreement made effective as of October 1, 2021 (the "Effective Date"), by and between
the Covered Entity identified below, and PBA ADMINISTRATIVE SERVICES, INC., 17 Court Street, Suite
500, Buffalo, NY 14202-3294 ("Business Associate").
1. Definitions.
a. Breach. "Breach" shall have the same meaning as the term "breach" in 45 CFR § 164.402.
b. Breach Notification Rule. "Breach Notification Rule" shall mean the Standards and Implementation
Specifications for Notification of Breaches of Unsecured Protected Health Information under 45 CFR Parts
160 and 164, subparts A and D.
c. Business Associate. "Business Associate" shall mean P&A Administrative Services, Inc.
d. Covered Entity. "Covered Entity" shall mean the group health plans, in the aggregate, of INDIAN
RIVER COUNTY that are identified to the Business Associate for purposes of the Services Agreement.
e. Electronic Protected Health Information. "Electronic Protected Health Information" shall have the
same meaning as the term "electronic protected health information" in 45 CFR § 160.103.
f. Electronic Transactions Rule. "Electronic Transactions Rule" shall mean the final regulations issued
by HHS concerning standard transactions and code sets under 45 CFR Parts 160 and 162.
g. Enforcement Rule. "Enforcement Rule" shall mean the Enforcement Provisions set forth in 45 CFR
Part 160.
h. Genetic Information. "Genetic Information" shall have the same meaning as the term "genetic
information" in 45 CFR § 160.103.
L HHS. "HHS" shall mean the Department of Health and Human Services.
HIPAA Rules. "HIPAA Rules" shall mean the Privacy Rule, Security Rule, Breach Notification Rule,
and Enforcement Rule.
k. HITECH Act. "HITECH Act" shall mean the Health Information Technology for Economic and Clinical
Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009.
I. Privacy Rule. "Privacy Rule" shall mean the Privacy Standards and Implementation Specifications
at 45 CFR Parts 160 and 164, subparts A and E.
m. Protected Health Information. "Protected Health Information" shall have the same meaning as the
term "protected health information" in 45 CFR § 160.103, limited to the information created, received,
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maintained, or transmitted by Business Associate from or on behalf of Covered Entity pursuant to this
Agreement.
n. Required by Law. "Required by Law" shall have the same meaning as the term "required by law" in
45 CFR § 164.103.
o. Security Incident. "Security Incident" shall have the same meaning as the term "security incident"
in 45 CFR § 164.304.
p. Security Rule. "Security Rule" shall mean the Security Standards and Implementation
Specifications at 45 CFR Parts 160 and 164, subparts A and C.
q. Services Agreement. "Services Agreement" shall mean the "COBRA Services Agreement" of
even date herewith between INDIAN RIVER COUNTY and the Business Associate including any subsequent
amendments or restatements thereto.
r. Subcontractor. "Subcontractor" shall have the same meaning as the term "subcontractor" in 45 CFR
§ 160.103.
s. Transaction. "Transaction" shall have the meaning given the term "transaction" in 45 CFR §
160.103.
t. Unsecured Protected Health Information. "Unsecured Protected Health Information" shall have the
meaning given the term "unsecured protected health information" in 45 CFR § 164.402.
2. Privacy and Security of Protected Health Information.
a. Permitted Uses and Disclosures. Business Associate is permitted to use and disclose Protected
Health Information only as set forth below:
(i) Functions and Activities on Covered Entity's Behalf. Business Associate shall provide the
services described in a certain administrative services agreement of even date herewith (the "Services
Agreement"). The Business Associate hereby is authorized to de -identify Protected Health Information
whenever, in its best judgment, it is necessary to do so to comply with the HIPAA Rules.
(ii) Business Associate's Operations. Business Associate may use Protected Health
Information for the proper management and administration of the Business Associate or to carry out
the legal responsibilities of the Business Associate. Business Associate may disclose Protected Health
Information for the proper management and administration of the Business Associate or to cant' out
Business Associate's legal responsibilities, provided that—
(A) The disclosure is Required by Law; or
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(B) Business Associate obtains reasonable assurance from any person or entity to which
Business Associate will disclose Protected Health Information that the person or entity will—
(1) Hold the Protected Health Information in confidence and use or further disclose the
Protected Health Information only for the purpose for which Business Associate disclosed
Protected Health Information to the person or entity or as Required by Law; and
(2) Promptly notify Business Associate of any instance of which the person or entity
becomes aware in which the confidentiality of Protected Health Information was breached.
(iii) Minimum Necessary. Business Associate will, in its performance of the functions, activities,
services, and operations specified above, make reasonable efforts to use, to disclose, and to request
only the minimum amount of Protected Health Information reasonably necessary to accomplish the
intended purpose of the use, disclosure, or request, except that Business Associate will not be
obligated to comply with this minimum -necessary limitation if neither Business Associate nor Covered
Entity is required to limit its use, disclosure, or request to the minimum necessary under the HIPAA
Rules. Business Associate and Covered Entity acknowledge that the phrase "minimum necessary"
shall be interpreted in accordance with the HITECH Act and the HIPAA Rules.
b. Prohibition on Unauthorized Use or Disclosure. Business Associate will neither use nor disclose
Protected Health Information, except as permitted or required by this Agreement or in writing by Covered
Entity or as Required by Law. This Agreement does not authorize Business Associate to use or disclose
Covered Entity's Protected Health Information in a manner that would violate the HIPAA Rules if done by
Covered Entity, except as permitted for Business Associate's proper management and administration, as
described above.
c. Information Safeguards.
(i) Privacy of Protected Health Information. Business Associate will develop, implement,
maintain, and use appropriate administrative, technical, and physical safeguards to protect the privacy
of Protected Health Information. The safeguards must reasonably protect Protected Health
Information from any intentional or unintentional use or disclosure in violation of the Privacy Rule and
limit incidental uses or disclosures made pursuant to a use or disclosure otherwise permitted by this
Agreement. To the extent the parties agree that the Business Associate will carry out directly one or
more of Covered Entity's obligations under the Privacy Rule, the Business Associate will comply with
the requirements of the Privacy Rule that apply to the Covered Entity in the performance of such
obligations.
(ii) Security of Covered Entity's Electronic Protected Health Information. Business Associate
will comply with the Security Rule and will use appropriate administrative, technical, and physical
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safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of
Electronic Protected Health Information that Business Associate creates, receives, maintains, or
transmits on Covered Entity's behalf.
(iii) No Transfer of PHI Outside United States. Business Associate will not transfer Protected
Health Information outside the United States without the prior written consent of the Covered Entity.
In this context, a "transfer" outside the United States occurs if Business Associate's workforce
members, agents, or subcontractors physically located outside the United States are able to access,
use, or disclose Protected Health Information.
d. Subcontractors. Business Associate will require each of its Subcontractors to agree, in a written
agreement with Business Associate, to comply with the provisions of the Security Rule; to appropriately
safeguard Protected Health Information created, received, maintained, or transmitted on behalf of the
Business Associate; and to apply the same restrictions and conditions that apply to the Business Associate
with respect to such Protected Health Information.
e. Prohibition on Sale of Protected Health Information. Effective immediately, Business Associate
shall not engage in any sale (as defined in the HIPAA rules) of Protected Health Information.
f. Prohibition on Use or Disclosure of Genetic Information. Effective immediately, Business
Associate shall not use or disclose Genetic Information for underwriting purposes in violation of the HIPAA
rules.
g. Penalties for Noncompliance. Business Associate acknowledges that it is subject to civil and
criminal enforcement for failure to comply with the HIPAA Rules, to the extent provided by the HITECH Act
and the HIPAA Rules.
3. Compliance with Electronic Transactions Rule. If Business Associate conducts in whole or part
electronic Transactions on behalf of Covered Entity for which HHS has established standards, Business
Associate will comply, and will require any Subcontractor it involves with the conduct of such Transactions to
comply, with each applicable requirement of the Electronic Transactions Rule and of any operating rules
adopted by HHS with respect to Transactions.
4. Individual Rights.
a. Access. Business Associate will, within twenty-nine calendar days following Covered Entity's
request, make available to Covered Entity (or, at Covered Entity's written direction, to an individual or the
individual's designee) for inspection and copying Protected Health Information about the individual that is in
a Designated Record Set in Business Associate's custody or control, so that Covered Entity may meet its
access obligations under 45 CFR § 164.524. Effective November 23, 2013, if Covered Entity requests an
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electronic copy of Protected Health Information that is maintained electronically in a Designated Record Set
in the Business Associate's custody or control, Business Associate will provide an electronic copy in the form
and format specified by the Covered Entity if it is readily producible in such format; if it is not readily producible
in such format, Business Associate will work with Covered Entity to determine an alternative form and format
that will enable Covered Entity to meet its electronic access obligations under 45 CFR § 164.524.
b. Amendment. Business Associate will, upon receipt of written notice from Covered Entity, promptly
amend or permit Covered Entity access to amend any portion of an individual's Protected Health Information
that is in a Designated Record Set in the custody or control of the Business Associate, so that Covered Entity
may meet its amendment obligations under 45 CFR § 164.526.
c. Disclosure Accounting. To allow Covered Entity to meet its obligations to account for disclosures
of Protected Health Information under 45 CFR § 164.528:
(i) Disclosures Subject to Accounting. Business Associate will record the information specified
below ("Disclosure Information") for each disclosure of Protected Health Information, not excepted
from disclosure accounting as specified below, that Business Associate makes to Covered Entity or to
a third party.
(ii) Disclosures Not Subject to Accounting. Business Associate will not be obligated to record
Disclosure Information or otherwise account for disclosures of Protected Health Information if Covered
Entity need not account for such disclosures under the HIPAA Rules.
(iii) Disclosure Information. With respect to any disclosure by Business Associate of Protected
Health Information that is not excepted from disclosure accounting under the HIPAA Rules, Business
Associate will record the following Disclosure Information as applicable to the type of accountable
disclosure made:
(A) Disclosure Information Generally. Except for repetitive disclosures of Protected Health
Information as specified below, the Disclosure Information that Business Associate must record
for each accountable disclosure is (i) the disclosure date, (ii) the name and (if known) address
of the entity to which Business Associate made the disclosure, (iii) a brief description of the
Protected Health Information disclosed, and (iv) a brief statement of the purpose of the
disclosure.
(B) Disclosure Information for Repetitive Disclosures. For repetitive disclosures of Protected
Health Information that Business Associate makes for a single purpose to the same person or
entity (including Covered Entity), the Disclosure Information that Business Associate must
record is either the Disclosure Information specified above for each accountable disclosure, or
(i) the Disclosure Information specified above for the first of the repetitive accountable
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disclosures; (ii) the frequency, periodicity, or number of the repetitive accountable disclosures;
and (iii) the date of the last of the repetitive accountable disclosures.
(iv) Availability of Disclosure Information. Business Associate will maintain the Disclosure
Information for at least six years following the date of the accountable disclosure to which the
Disclosure Information relates. Business Associate will make the Disclosure Information available to
Covered Entity fifty-nine calendar days following Covered Entity's request for such Disclosure
Information to comply with an individual's request for disclosure accounting.
d. Restriction Agreements and Confidential Communications. Covered Entity shall notify
Business Associate of any limitations in the notice of privacy practices of Covered Entity under 45 CFR §
164.520, to the extent that such limitation may affect Business Associate's use or disclosure of Protected
Health Information. Business Associate will comply with any notice from Covered Entity to (1) restrict use or
disclosure of Protected Health Information pursuant to 45 CFR § 164.522(a), or (2) provide for confidential
communications of Protected Health Information pursuant to 45 CFR § 164.522(b), provided that Covered
Entity notifies Business Associate in writing of the restriction or confidential communications obligations that
Business Associate must follow. Covered Entity will promptly notify Business Associate in writing of the
termination of any such restriction or confidential communications requirement and, with respect to
termination of any such restriction, instruct Business Associate whether any of the Protected Health
Information will remain subject to the terms of the restriction agreement.
5. Breaches and Security Incidents.
a. Reporting.
(i) Impermissible Use or Disclosure. Business Associate will report to Covered Entity any use
or disclosure of Protected Health Information not permitted by this Agreement not more than fifty-nine
calendar days after Business Associate discovers such non -permitted use or disclosure.
(ii) Breach of Unsecured Protected Health Information. Business Associate will report to
Covered Entity any potential Breach of Unsecured Protected Health Information not more than
fifty-nine calendar days after discovery of such potential Breach. Business Associate will treat a
potential Breach as being discovered in accordance with 45 CFR § 164.410. Business Associate will
make the report to Covered Entity's Privacy Officer. If a delay is requested by a law-enforcement
official in accordance with 45 CFR § 164.412, Business Associate may delay notifying Covered Entity
for the applicable time period. Business Associate's report will include at least the following, provided
that absence of any information will not be cause for Business Associate to delay the report:
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(A) Identify the nature of the Breach, which will include a brief description of what happened,
including the date of any Breach and the date of the discovery of any Breach;
(B) Identify the types of Protected Health Information that were involved in the Breach (such
as whether full name, Social Security number, date of birth, home address, account number,
diagnosis, or other information were involved);
(C) Identify who made the non -permitted use or disclosure and who received the non- permitted
disclosure;
(D) Identify what corrective or investigational action Business Associate took or will take to
prevent further non -permitted uses or disclosures, to mitigate harmful effects, and to protect
against any further Breaches;
(E) Identify what steps the individuals who were subject to a Breach should take to protect
themselves;
(F) Provide such other information, including a written report and risk assessment under 45
CFR § 164.402, as Covered Entity may reasonably request.
(iii) Security Incidents. Business Associate will report to Covered Entity any Security Incident
of which Business Associate becomes aware. Business Associate will make this report once
per month, except if any such Security Incident resulted in a disclosure not permitted by this Agreement
or Breach of Unsecured Protected Health Information, Business Associate will make the report in
accordance with the provisions set forth above.
b. Mitigation. Business Associate shall mitigate, to the extent practicable, any harmful effect known
to the Business Associate resulting from a use or disclosure in violation of this Agreement.
6. Term and Termination.
a. Term. This Agreement shall be effective as the Effective Date, and shall remain in effect until the
Service Agreement terminates.
b. Right to Terminate for Cause. Notwithstanding "a" above, Covered Entity may terminate this
Agreement if it determines, in its sole discretion, that Business Associate has breached any provision of this
Agreement, and after written notice to Business Associate of the breach, Business Associate has failed to
cure the breach within thirty calendar days after receipt of the notice. Any such termination will be effective
immediately or at such other date specified in Covered Entity's notice of termination.
c. Treatment of Protected Health Information on Termination.
(i) Return or Destruction of Covered Entity's Protected Health Information Is Feasible. Upon
termination of this Agreement, Business Associate will, if feasible, return to Covered Entity or destroy
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all Protected Health Information in whatever form or medium, including all copies thereof and all data,
compilations, and other works derived therefrom that allow identification of any individual who is a
subject of the Protected Health Information. This provision shall apply to Protected Health Information
that is in the possession of any Subcontractors of Business Associate. Further, Business Associate
shall require any such Subcontractor to certify to Business Associate that it has returned or destroyed
all such information which could be returned or destroyed. Business Associate will complete these
obligations as promptly as possible, but not later than thirty calendar days following the effective date
of the termination of this Agreement.
(ii) Procedure When Return or Destruction Is Not Feasible. Business Associate will identify any
Protected Health Information, including any Protected Health Information that Business Associate has
disclosed to Subcontractors, that cannot feasibly be returned to Covered Entity or destroyed and
explain why return or destruction is infeasible. Business Associate will limit its further use or disclosure
of such information to those purposes that make return or destruction of such information infeasible.
Business Associate will complete these obligations as promptly as possible, but not later than thirty
calendar days following the effective date of the termination or other conclusion of Agreement.
(iii) Continuing Privacy and Security Obligation. Business Associate's obligation to protect the
privacy and safeguard the security of Protected Health Information as specified in this Agreement will
be continuous and survive termination or other conclusion of this Agreement.
7. General Provisions.
a. Definitions. All terms that are used but not otherwise defined in this Agreement shall have the
meaning specified under HIPAA, including its statute, regulations, and other official government guidance.
b. Inspection of Internal Practices, Books, and Records. Business Associate will make its internal
practices, books, and records relating to its use and disclosure of Protected Health Information available to
Covered Entity and to HHS to determine compliance with the HIPAA Rules.
c. Amendment to Agreement. This Agreement may be amended only by a written instrument signed
by the parties. In case of a change in applicable law, the parties agree to negotiate in good faith to adopt such
amendments as are necessary to comply with the change in law.
d. No Third -Party Beneficiaries. Nothing in this Agreement shall be construed as creating any rights
or benefits to any third parties.
e. Interpretation. Any ambiguity in the Agreement shall be resolved to permit Covered Entity and
Business Associate to comply with the applicable requirements under the HIPAA Rules.
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f. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by the governing law
identified in the Services Agreement.
g. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect
the validity or enforceability of any other provision of this Agreement, which shall remain in full force and
effect.
h. Construction and Interpretation. The section headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. This
Agreement has been negotiated by the parties at arm's-length and each of them has had an opportunity to
modify the language of the Agreement. Accordingly, the Agreement shall be treated as having been drafted
equally by the parties, and the language shall be construed as a whole and according to its fair meaning. Any
presumption or principle that the language is to be construed against any party shall not apply. This
Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same agreement.
i. Notices. All notices and communications required by this Agreement shall be in writing. Such notices
and communications shall be given in one of the following forms; (i) by delivery in person, (ii) by a nationally -
recognized, next -day courier service, (iii) by first-class, registered or certified mail, postage prepaid; or (iv) by
electronic mail to the address that each party specifies in writing.
j. Entire Agreement. This Agreement constitutes the entire agreement between the parties with
respect to its subject matter and constitutes and supersedes all prior agreements, representations and
understandings of the parties, written or oral, with regard to this same subject matter.
(Remainder of page left intentionally blank)
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Effective Date.
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INDIAN RIVER COUNTY P&A ADMINISTRATIVE SERVICES, INC.
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LAN REING01-0
COUN1y--rtTOfR;•3C-';
Attest: Jeffrey R. Smith, Clerk of
Circuit Court and Comptroller
Deputy Clerk