HomeMy WebLinkAboutPR 19259: FY 2016 CONTRACT WITH THE DEPARTMENT OF STATE HEALTH SERVICES WIC DIVISION City of A
I"l 1-t r
Texas
DATE: December 29, 2015
To: Brian McDougal, City Manager
From: Judith A. Smith,RN, BSN
RE: Approval of the FY 2016 Contract between the City of Port Arthur and the Department of
State Health Services for the WIC Program
Nature of the Request: The WIC program provides supplemental food vouchers and nutrition
education to enhance good health care at no cost to low-income pregnant and postpartum
women, infants, and children identified to be at nutritional risk. A set reimbursement rate is
established for each WIC program participant; therefore, the total amount of reimbursement
varies from month to month based on the level of participation. The total amount for this contract
from October 1, 2015 to September 30, 2016 is $627,070.00.
Staff Analysis, Considerations: This grant covers 9 full time employees, 1 part-time, and 1
contractor (Registered Dietician)
Recommendations: It is recommended that the City Council approve P.R. No.19259, which is
the FY 2016 contract between the City of Port Arthur and Texas Department of State Health
Services in the amount of$627,070.00 to continue WIC services in Port Arthur.
Budget Considerations: Reimbursements for WIC services covers the costs of personnel,
fringe, travel, equipment, and supplies to operate the program for 12 month.
"REMEMBER WE ARE HERE TO SERVE THE CITIZENS OF PORT ARTHURP.O.BOX 1089•PORT ARTHUR,TX 77641-1089•
409/983-8101•FAX 409/982-6743
P.R. NO. 19259
12/29/15 js
RESOLUTION NO.
A RESOLUTION TO APPROVE THE FY 2016 CONTRACT BETWEEN
THE CITY OF PORT ARTHUR AND THE DEPARTMENT OF STATE
HEALTH SERVICES,WIC DIVISION IN THE AMOUNT OF $627,070.00.
WHEREAS, the contract between the City of Port Arthur and the Department of State
Health Services, will provide financial assistance to the Port Arthur City Health Department to
supplement the delivery of public health services; and,
WHEREAS, WIC Card Participation provides for supplemental food instruments,
nutrition education and counseling to enhance good health care at no cost to low-income
pregnant and postpartum women, infants and children identified to be at nutritional risk of which
the grant award is based on monthly client participation.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR:
Section 1. That,the facts and opinions in the preamble are true and correct.
Section 2. That, the City Council of the City of Port Arthur hereby approves the
contract renewal between the City of Port Arthur and the Department of State Health Services
for the period October 1, 2015 through September 30, 2016.
Section 3. That, the City Council deems it is in the best interest of the City to approve
and authorize the City Manager and the Director of the City's Health Department to execute the
contract between the Department of State Health Services and the City of Port Arthur, Texas, to
continue the Women, Infants and Children(WIC)program as delineated in Exhibit"A".
P.R. NO. 19259
12/29/15 js
Section 4. That, a copy of the caption of this Resolution be spread upon the Minutes of
the City Council.
READ, ADOPTED,AND APPROVED,this day of
2016 at a Regular Meeting of the City Council of the City of Port Arthur, Texas by the following
Vote: AYES:
Mayor:
Councilmembers:
NOES:
Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVE AS TO FORM:
\cos
Valecia Tizeno, C' y Attorney
APPROVED FOR ADMINISTRATION: ditt<VJUGC
Brian McDougal, City Manager Uudith Smith, R.N., Director of Health
EXHIBIT "A"
SIGNATURE DOCUMENT FOR
DEPARTMENT OF STATE HEALTH SERVICES
CONTRACT No. 2016-048774-001
UNDER THE
WOMEN,INFANT AND CHILDREN'S NUTRITION GRANT PROGRAM
I.LEGAL AUTHORITY
The Department of State Health Services ("Enterprise Agency") and CITY OF PORT
ARTHUR ("Grantee") (each a "Party" and collectively the "Parties") enter into the
following grant contract (the "Contract"). This Contract is authorized by and in
compliance with the provisions of 42 U.S.C. § 1786, 7 CFR Part 246, and Chapter 32 of
the Texas Health& Safety Code.
II.DURATION
The Contract is effective on October 1, 2015 and terminates on September 30, 2016
unless renewed, extended, or terminated pursuant to the terms and conditions of the
Contract. The Enterprise Agency, at its own discretion, may extend this Contract subject
to terms and conditions mutually agreeable to both Parties.
III.BUDGET
The total amount of this Contract will not exceed$627,070.00. All payment requests and
reimbursements will be made in accordance with the conditions specified in
ATTACHMENT A — STATEMENT OF WORK, SECTION IV. BILLING
INSTRUCTION AND PAYMENT of this Contract.
Grantee DUNS#: 137134909
CFDA: 10.557.001; 10.557.013
Purchase Order Number: 0000419905
IV. NOTICES
Unless otherwise noted in the Attachments to this Contract, any notices required under this
Contract shall be deemed delivered when deposited by the Enterprise Agency either in the
United States mail, postage paid, certified, return receipt requested; or with a common
carrier, overnight, signature required,to the appropriate address below:
DSHS Contract No. 2016-048774-001
Page 1 of 3
Enterprise Agency
Department of State Health Services
Division for Family and Community Health Services
Mail Code 1914
PO Box 149347
Austin,TX 78714-9347
Grantee
CITY OF PORT ARTHUR
449 AUSTIN AVENUE
PORT ARTHUR,TX 77640-5802
Attn: Brian McDougal,City Manager
Notice given by Grantee will be deemed effective when received by the Enterprise
Agency. Either Party may change its address for notice by written notice to the
other Party as herein provided without amending the Contract.
V.DISPUTE RESOLUTION
If a contract dispute arises that cannot be resolved to the satisfaction of the
Parties, either Party may notify the other Party in writing of the dispute. If the
Parties are unable to satisfactorily resolve the dispute within fourteen (14) days of
the written notification, the Parties must use the dispute resolution process
provided for in Chapter 2260 of the Texas Government Code to attempt to resolve
the dispute. This provision will not apply to any matter with respect to which
either Party may make a decision within its respective sole discretion.
SIGNATURE PAGE FOLLOWS
DSHS Contract No. 2016-048774-001
Page 2 of 3
SIGNATURE PAGE FOR ENTERPRISE AGENCY CONTRACT NO. 2016-048774-001
ENTERPRISE AGENCY GRANTEE
Kirk Cole Name:
Interim Commissioner Title:
Date of execution: Date of execution:
THE FOLLOWING ATTACHMENTS TO ENTERPRISE AGENCY CONTRACT
No.2016-048774-001 ARE HEREBY INCORPORATED BY REFERENCE:
ATTACHMENT A—STATEMENT OF WORK
ATTACHMENT B-UNIFORM TERMS AND CONDITIONS
ATTACHMENT C-SPECIAL CONDITIONS
ATTACHMENT D-DATA USE AGREEMENT
ATTACHMENT E-NON-EXCLUSIVE LIST OF APPLICABLE LAWS
DSHS Contract No. 2016-048774-001
Page 3 of 3
ATTACHMENT A
STATEMENT OF WORK
I. PURPOSE
For the Enterprise Agency's Special Supplemental Nutrition Program for Women, Infant, and
Children (WIC), Grantee shall administer the DSHS WIC to provide supplemental food benefits,
nutrition education, and counseling to enhance good health care at no cost to low-income
pregnant and postpartum women, infants and children identified to be at nutritional risk.
II. GRANTEE RESPONSIBILITIES
Grantee will:
A. Perform professional, administrative and clerical services necessary to determine
eligibility, provide food benefits, and provide appropriate nutrition education and
counseling to qualified women, infants and children in a specified geographic area.
Grantee shall ensure adequate staff coverage and uninterrupted delivery of services.
Services shall be performed according to the statutes, rules, policies, and directives of
DSHS Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
and/or as directed by the United States Department of Agriculture (USDA) as referenced
in this Statement of Work During the term of this Statement of Work, USDA may issue
regulations, instructions, policies and/or directives, which may be incorporated into the
current DSHS WIC Program Policy and Procedures Manual and program rules.
B. Provide services within the state boundaries of Texas and in the approved clinic locations
described in Grantee's application.
C. Assist DSHS or USDA in the collection of data that will identify benefits of this nutrition
intervention program and furnish financial, health, nutrition education and any other
special reports in a timely manner as required by DSHS WIC Program's written rules and
policies for the compilation of such data.
D. Determine eligibility of applicants through assessment of their categorical income,
residence and nutritional status, and provide nutrition education and counseling to
eligible participants.
E. Become and maintain designation as a DSHS Mother-Friendly Worksite in accordance
with 25 Tex. Admin. Code § 31.1.
F. Appoint a Grantee WIC Director/Supervisor.
G. Train Local Agency staff. The term "Local Agency" is defined at 7 CFR§ 246.2.
H. Conduct outreach to potential participants.
I. Complete surveys as requested.
DSHS Contract No. 2016-048774-001
Attachment A- Page 1
ATTACHMENT A
STATEMENT OF WORK
J. Complete part one,part two, or both of the following:
a. Part One: Coordinate with DSHS to visit the physical address of a proposed
grocery store outlet and determine if a store exists. Grantee shall send DSHS an
email correspondence indicating findings.
b. Part Two: Coordinate with DSHS to schedule and conduct an on-site evaluation
(refer to WIC policy WV 10.0) of the WIC authorized vendor upon request by
DSHS and complete the On-site Evaluation within 30 days and submit the form
electronically to DSHS within one business day.
K. Determine participants' access to health care, medical care and other human services, and
make appropriate referrals. Grantee shall have a system in place to provide participants
with appropriate health services or make appropriate referrals to health care providers
under written agreements that ensure confidentiality of participants' personal
information.
L. Issue pre-numbered WIC Electronic Benefit Transfer (EBT) cards furnished by DSHS to
qualified participants who shall use such EBT cards to obtain specified food items from
participating vendors; maintain complete accountability and security of all WIC EBT
cards received from DSHS. Grantee shall be held financially responsible for all
unaccounted WIC EBT cards and/or for the redeemed value of those issued to ineligible
participants. In addition, Grantee shall be held financially liable for issuance of infant
formula instruments that are not authorized or prescribed according to the WIC Policy
and Procedures Manual.
M. Permit DSHS or its agent to install telecommunications equipment at all Grantee WIC
clinics and administrative offices using Texas-WIN software on a network or stand alone
personal computer. Grantee is required to permit installation at all its permanent WIC
sites. Grantee will notify DSHS not less than forty-five (45) days prior to the relocation
of a site or the deployment of a new site to allow DSHS or its agent to install
telecommunications equipment.
N. Connect portable computers (e.g. notebook or laptop) that use Texas-WIN software daily
to a DSHS-provided telecommunications access point to transfer data to and receive
updates from DSHS. Data transfer and update connection must be made on each day that
Grantee provides WIC.
O. Review the immunization records of WIC Program applicants/participants to ensure that
immunizations are current. Make appropriate referrals to health care providers for
necessary immunizations.
P. Offer services during extended hours of operation outside the traditional times of 8:00
a.m. to 5:00 p.m., Monday through Friday, according to the Grantee's Annual Plan of
Operations as approved by DSHS and incorporated by reference in this Statement of
Work.
DSHS Contract No. 2016-048774-001
Attachment A -Page 2
ATTACHMENT A
STATEMENT OF WORK
Q. Implement or expand Grantee's Breastfeeding Peer Counseling program to provide
training and salary of peer counselors who assist pregnant and breastfeeding WIC
participants in normal breastfeeding situations. Provide clients with after-hours peer
counseling services. Funding for this activity will be contingent on availability and
written approval by DSHS.
R. Implement special projects according to DSHS-approved plan related to nutrition
education, outreach or breastfeeding if project is requested by Grantee and approved by
DSHS. Funding for special projects is contingent upon availability and approval in
writing by DSHS of the Grantee's plan for the special project.
S. Implement lactation services for WIC participants who have breastfeeding problems that
are beyond the expertise of Grantee's local WIC staff and/or peer counselors using
International Board Certified Lactation Consultants or the most qualified equivalent.
Lactation services may also include Local Agency staff training and the provision of
lactation equipment. DSHS will provide written approval of Grantee's plan to use
lactation funding. Grantee's plan shall include qualifications of any non-board certified
lactation consultant, which is included in the proposal.
T. Ensure adequate staff coverage and uninterrupted delivery of WIC services if any
member of Grantee's staff is approved in writing by DSHS to participate in the DSHS
Dietetic Internship program. This internship will consist of no less than 1200 hours of
supervised learning experiences in a variety of nutrition-related facilities. Grantee is
responsible for: (1) Designating a WIC Nutritionist (preferably a Registered Dietitian) to
be the Community Nutrition (CN)-WIC Preceptor and oversee and evaluate intern's
performance for the Community Nutrition/WIC portion of the Texas WIC Dietetic
Internship. (2) Community Nutrition Preceptor will ensure that interns meet all
requirements, standards and required supervised practice hours for the Community
Nutrition CN Supervised Practice. (3) Ensuring that intern is not used for regular WIC
duties during the internship period. (4) Collecting pay-back monies from intern in the
event that the intern does not fulfill dietetic internship local agency contract
requirements. Monies must be returned to State Agency.
U. Stock DSHS-provided manual pumps, single-user electric breast pumps and multi-user
electric breast pumps, collection kits, and purchase additional sized flanges. Distribute
the appropriate pumps, kits, and/or additional sized flanges to eligible WIC participants.
During the term of this Statement of Work, DSHS reserves the right to withhold payment
if Grantee fails to accurately complete and submit online breast pump receiving reports
within three (3) business days of receiving a DSHS breast pump delivery as documented
in the current WIC Local Agency policy and procedure manual.
V. Implement or expand Grantee's use of a Registered Dietitian (RD) who is registered with
the Commission on Dietetic Registration to provide for Grantee that includes, but not
limited to: assistance with quality assurance, staff training, assistance with the Annual
DSHS Contract No. 2016-048774-001
Attachment A-Page 3
ATTACHMENT A
STATEMENT OF WORK
Nutrition Education and Breastfeeding plan, individual counseling for high-risk
participants, and facilitated discussion classes.
W. Grantee shall resolve all possible dual participation records each month. During the term
of this Statement of Work, DSHS reserves the right to withhold payment if Grantee fails
to accurately resolve all possible dual participation records within three (3) months from
the month of the automated alert within the Texas WIN system.
Within thirty(30)days of receipt of an amended standard(s) or guideline(s) listed above, Grantee
shall inform DSHS, in writing, if it shall not continue performance under this Statement of Work
in compliance with the amended standard(s) or guideline(s). DSHS may terminate the Statement
of Work immediately or within a reasonable period of time as determined by DSHS.
All activities related to WIC, including timeframes, budget, and any revisions shall be approved
by DSHS.
III. PERFORMANCE MEASURES
The following performance measures will be used to assess, in part, Grantee's effectiveness in
providing the services described in this Statement of Work,without waiving the enforceability of
any of the other terms of the contract.
A. Grantee shall ensure:
1) An average of 95% of families each quarter who participate in DSHS WIC Program
by receiving food benefits shall also receive nutrition education classes or individual
counseling services to coincide with food instrument issuance;
2) An average of 20% of all pregnant women who enter DSHS WIC Program each
quarter shall be certified as eligible during the period of the first trimester of their
pregnancy;
3) An average of 80%of clients a quarter who are enrolled in the DSHS WIC Program,
excluding dual participants, transfer locked and/or migrant clients, shall participate as
food benefit recipients each month (breast-feeding infants are also included in the
client count); and
4) 98%of participants who indicate during the enrollment process for the DSHS WIC
Program that they have no source of health care shall be referred to at least one (1)
source of health care at certification of eligibility.
B. Grantee shall submit:
1. WIC Local Agency Performance Measure Report which describes Grantee's
efforts towards meeting performance measures. The report shall be in an approved
DSHS Contract No. 2016-048774-001
Attachment A-Page 4
ATTACHMENT A
STATEMENT OF WORK
format as provided by DSHS, and shall be completed and submitted to DSHS
within fifteen (15)calendar days after the end of each month; and
2. Monthly Incentive Funding Summary Report by the 15th day of the following
month.
3. Grantee shall submit quarterly FSRs to DSHS Contract Development and Support
Branch at WicVouchers.'it':dshs.state.tx.us by the last business day of the month
following the end of each quarter of the Contract Statement of Work term for
Department review and financial assessment.
IV. BILLING INSTRUCTIONS AND PAYMENT
Grantee shall request payment using the State of Texas Purchase Voucher (Form B-13) and
Financial Status Reports (FSR) and submit by electronic mail to DSHS Contract Development
and Support Branch at WicVouchersid,dshs.state.tx.us. Grantee shall indicate separately on the
face of the claim for reimbursement (State of Texas Purchase Voucher, Form B-13) the costs
associated with nutrition education, breast-feeding, and other administrative costs.
All payments made by DSHS to Grantee under this Contract will be reimbursements subject to
the following requirements, conditions and stipulations:
All categories of costs billed to DSHS WIC Program, and allocation of such costs, shall be in
accordance with the "Plan to Allocate Direct Costs" (PADC) submitted by Grantee and
approved by the DSHS WIC Program. This document is incorporated by reference and
detailed in ATTACHMENT E—NON-EXCLUSIVE LIST OF APPLICABLE LAWS.
DSHS will reimburse Grantee for administrative costs incurred when determining eligibility,
providing appropriate nutrition education and counseling, issuing WIC EBT cards, making
participant referrals, vendor evaluation, outreach, start-up costs and general administrative
support.
Administrative costs will be reimbursed based on actual costs, but not to exceed the
"maximum reimbursement" based upon the sum of the participants who actually receive
WIC EBT cards each month plus infants who do not receive any WIC EBT cards whose
breastfeeding mothers were participants to the extent that the total so derived does not exceed
Grantee's total assigned caseload within any given month. Surplus funds (the amount by
which maximum reimbursements exceed actual costs) can be accumulated and carried
forward within the Statement of Work term.
The participant caseload will be assigned by DSHS by giving written notice to Grantee. The
participant caseload is subject to change upon written notice to Grantee from DSHS with
Grantee's concurrence. Grantee assumes liability for all food costs resulting from Grantee
exceeding its assigned caseload. The number of individuals served in excess of assigned
caseload are not to be included in the calculation of earned administrative funds as described
below.
DSHS Contract No. 2016-048774-001
Attachment A- Page 5
ATTACHMENT A
STATEMENT OF WORK
PARTICIPANTS SERVED PER MONTH MAXIMUM REIMBURSEMENT:
During the term of the Statement of Work, Grantee shall earn administrative funds at the rate
of$13.97 for each participant served as defined above.
Grantee agrees that:
A. Grantee shall identify and document separately not less than 19% of total administrative
costs as expenditures directly related to nutrition education and counseling. Nutrition
education and counseling expenditures shall be supported by documentation of
participant attendance or non-attendance within the DSHS WIC Program.
B. DSHS will reimburse Grantee for administrative expenses at a rate not greater than 5.26
times the amount of properly documented expenditures for nutrition education and
counseling, but not more than is earned based on actual participation not to exceed
Grantee's assigned participant caseload, plus any incentive funds allocated to Grantee by
DSHS.
C. DSHS will reimburse Grantee's indirect costs by one of the following: (1) amount
calculated in accordance with Grantee's current valid federally negotiated indirect cost
rate (IDCR), (2) amount calculated in accordance with Grantee's accepted DSHS Cost
Allocation Plan. DSHS will limit (cap) Cost Allocation Plan reimbursement at twenty
(20) percent applied to Grantee's total direct salaries plus benefits reimbursed by DSHS,
or(3) a Grantee that has never negotiated an IDCR may elect to charge a de minimis rate
of 10%of modified total direct costs.
D. DSHS will identify annually to Grantee an amount of funds that shall be spent for
breastfeeding promotion. The allocation of breastfeeding funds to Grantee will be based
on Grantee's proportional share of the statewide combined total of pregnant and
breastfeeding participants as reported to DSHS WIC Program.
E. DSHS WIC Program also reserves the right to withhold a proportionate amount of earned
administrative funds when evidence exists that nutrition education and/or breastfeeding
promotion is not being provided by Grantee, or Grantee is not complying with the
provisions of USDA and/or DSHS directives.
F. DSHS may amend or terminate this Statement of Work if available funds become
reduced, depleted,or unavailable during the term of the Statement of Work to the extent
that the WIC Program is unable to provide administrative funding at the rate(s) stated in
this Statement of Work. DSHS will provide written notification to Grantee of such fact.
G. DSHS may, at its sole discretion, pay for additional goods or services as specified in this
Statement of Work if provided by Local Agency during the term of this Statement of
Work (but not otherwise paid during the term of this Statement of Work) if it is in the
best interest of DSHS and DSHS WIC Program to do so. If Grantee exceeds the amount
DSHS Contract No. 2016-048774-001
Attachment A -Page 6
ATTACHMENT A
STATEMENT OF WORK
of earned administrative funds as stated above, Grantee shall continue to bill DSHS for
the services provided. If additional funds become available at a later date for the
provision of these services, DSHS WIC Program may pay Grantee a share of these funds.
H. DSHS may provide incentives to Grantee for participants who are provided WIC services
outside the normal traditional hours to the extent that federal funding is available.
I. During the term of this Statement of Work, DSHS may, at its sole discretion, unilaterally
adjust the base reimbursement rate as defined in this Statement of Work if it is in the best
interest of DSHS and the DSHS WIC Program and if administrative WIC Grant funds
change.
DSHS Contract No. 2016-048774-001
Attachment A- Page 7
HHSC Uniform Terms and Conditions Version 2.0
Published and Effective: September 1, 2015
Responsible Office: Chief Counsel
111* IT EXAS
Health and Human
Services commission
Health and Human Services Commission
HHSC Uniform Terms and Conditions - Grant
Version 2.0
Attachment B-DSHS Contract No.2016-048774-001
Page 1 of 19
TABLE OF" CONTENTS
ARTICLE I. DEFINITIONS AND INTERPRETIVE PROVISIONS 4
1.01 Definitions 4
1.02 Interpretive Provisions
ARTICLE II Payment Methods and Restrictions 6
2.01 Payment Methods 6
2.02 Final Billing Submission 6
2.03 Financial Status Reports (FSRs) 7
2.04 Debt to State and Corporate Status 7
2.05 Application of Payment Due 7
2.06 Use of Funds 7
2.07 Use for Match Prohibited 7
2.08 Program Income 7
2.09 Nonsupplanting 8
ARTICLE III. STATE AND FEDERAL FUNDING 8
3.01 Funding 8
3.02 No debt Against the State 8
3.03 Debt to State 8
3.04 Recapture of Funds 8
ARTICLE IV Allowable Costs and Audit Requirements 9
4.01 Allowable Costs. 9
4.02 Independent Single or Program-Specific Audit 10
4.03 Submission of Audit 10
Article V AFFIRMATIONS,ASSURANCES AND CERTIFICATIONS 11
5.01 General Affirmations 11
5.02 Federal Assurances 11
5.03 Federal Certifications 11
ARTICLE VI OWNERSHIP AND INTELLECTUAL PROPERTY 11
6.01 Ownership 11
6.02 Intellectual Property 11
ARTICLE VII RECORDS,AUDIT,AND DISCLOSURE 12
7.01 Books and Records 12
7.02 Access to records,books, and documents 12
7.03 Response/compliance with audit or inspection findings 12
Attachment B-DSHS Contract No.2016-048774-001
Page 2 of 19
7.04 SAO Audit 13
7.05 Confidentiality 13
7.06 Public Information Act 13
ARTICLE VIII CONTRACT MANAGEMENT AND EARLY TERMINATION 13
8.01 Contract Management 13
8.02 Termination for Convenience 13
8.03 Termination for Cause 14
8.04 Equitable Settlement 14
ARTICLE IX MISCELLANEOUS PROVISIONS 14
9.01 Amendment 14
9.02 Insurance 14
9.03 Legal Obligations 15
9.04 Permitting and Licensure 15
9.05 Indemnity 15
9.06 Assignments 16
9.07 Relationship of the Parties 16
9.08 Technical Guidance Letters 16
9.09 Governing Law and Venue 16
9.10 Survivability 17
9.11 Force Majeure 17
9.12 No Waiver of Provisions 17
9.13 Publicity 17
9.14 Prohibition on Non-compete Restrictions 17
9.15 No Waiver of Sovereign Immunity 18
9.16 Entire Contract and Modification 18
9.17 Counterparts 18
9.18 Proper Authority 18
9.19 Employment Verification 18
9.20 Civil Rights 18
Attachment B-DSHS Contract No.2016-048774-001
Page 3 of 19
ARTICLE I. DEFINITIONS AND INTERPRETIVE PROVISIONS
1.01 Definitions
As used in this Contract, unless the context clearly indicates otherwise, the following terms and
conditions have the meanings assigned below:
"Amendment- means a written agreement, signed by the parties hereto, which documents
changes to the Contract other than those permitted by Work Orders or Technical Guidance
Letters, as herein defined.
"Attachment" means documents, terms, conditions, or additional information physically added to
this Contract following the Signature Document or included by reference, as if physically,within
the body of this Contract.
"Contract" means the Signature Document,these Uniform Terms and Conditions, along with any
Attachments, and any Amendments, or Technical Guidance Letters that may be issued by the
Enterprise Agency,to be incorporated by reference herein for all purposes if issued.
"Deliverable" means a work product prepared, developed, or procured by Grantee as part of the
Services under the Contract for the use or benefit of the Enterprise Agency or the State of Texas.
"Effective Date" means the date agreed to by the Parties as the date on which the Contract takes
effect.
"Enterprise Agency" means HHSC or any of the agencies of the State of Texas that are overseen
by HHSC under authority granted under State law and the officers, employees, and designees of
those agencies. These agencies include: the Department of Aging and Disability Services, the
Department of Assistive and Rehabilitative Services, the Department of Family and Protective
Services, and the Department of State Health Services.
"Federal Fiscal Year" means the period beginning October 1 and ending September 30 each
year,which is the annual accounting period for the United States government.
"GAAP"means Generally Accepted Accounting Principles.
"GASB"means the Governmental Accounting Standards Board.
"Grantee"means the Party receiving funds under this Contract, if any.
"Health and Human Services Commission" or "HHSC" means the administrative agency
established under Chapter 531,Texas Government Code or its designee.
"HUB" means Historically Underutilized Business, as defined by Chapter 2161 of the Texas
Government Code.
"Intellectual Property" means patents, rights to apply for patents, trademarks, trade names,
service marks, domain names, copyrights and all applications and worldwide registration of
Attachment B-DSHS Contract No.2016-048774-001
Page 4 of 19
such, schematics, industrial models, inventions, know-how, trade secrets, computer software
programs, and other intangible proprietary information.
"Mentor Protege" means the Comptroller of Public Accounts' leadership program found at:
http:-:'NI,\A,.window.state.tx.us/procurement`prog'hub/mentorprote2e:
"Parties"means the Enterprise Agency and Grantee, collectively.
"Part," means either the Enterprise Agency or Grantee, individually.
"Program" means the statutorily authorized activities of the Enterprise Agency under which this
Contract has been awarded.
"Project"means specific activities of the Grantee that are supported by funds provided under this
Contract.
"Public Information Act" or"PIA" means Chapter 552 of the Texas Government Code.
"Scope of Work" means the description of activities performed in completing the Project, as
specified in the Contract and as may be amended.
"Signature Document" means the document executed by both Parties that specifically sets forth
all of the documents that constitute the Contract.
"Solicitation" means the document issued by the Enterprise Agency under which applications for
Program funds were requested, which is incorporated herein by reference for all purposes in its
entirety, including all Amendments and Attachments.
"Solicitation Response" means Grantee's full and complete response to the Solicitation, which is
incorporated herein by reference for all purposes in its entirety, including any Attachments and
addenda.
"State Fiscal Year" means the period beginning September 1 and ending August 31 each year,
which is the annual accounting period for the State of Texas.
"State of Texas Textravel" means Texas Administrative Code, Title 34, Part 1, Chapter 5,
Subchapter C, Section 5.22,relative to travel reimbursements under this Contract, if any.
"Technical Guidance Letter" or "TGL" means an instruction, clarification, or interpretation of
the requirements of the Contract, issued by the Enterprise Agency to the Grantee.
1.02 Interpretive Provisions
a. The meanings of defined terms are equally applicable to the singular and plural forms of the
defined terms.
b. The words "hereof," "herein," "hereunder," and similar words refer to this Contract as a
whole and not to any particular provision, section, Attachment, or schedule of this Contract
unless otherwise specified.
c. The term "including" is not limiting and means "including without limitation" and, unless
otherwise expressly provided in this Contract, (i) references to contracts (including this
Contract) and other contractual instruments shall be deemed to include all subsequent
Attachment B-DSHS Contract No.2016-048774-001
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Amendments and other modifications thereto, but only to the extent that such Amendments
and other modifications are not prohibited by the terms of this Contract, and(ii)references to
any statute or regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing, or interpreting the statute or
regulation.
d. Any references to "sections," "appendices," or "attachments" are references to sections,
appendices, or attachments of the Contract.
e. Any references to agreements, contracts, statutes, or administrative rules or regulations in the
Contract are references to these documents as amended, modified, or supplemented from
time to time during the term of the Contract.
f. The captions and headings of this Contract are for convenience of reference only and do not
affect the interpretation of this Contract.
g. All Attachments within this Contract, including those incorporated by reference, and any
Amendments are considered part of the terms of this Contract.
h. This Contract may use several different limitations, regulations, or policies to regulate the
same or similar matters. All such limitations, regulations, and policies are cumulative and
each will be performed in accordance with its terms.
i. Unless otherwise expressly provided, reference to any action of the Enterprise Agency or by
the Enterprise Agency by way of consent, approval, or waiver will be deemed modified by
the phrase "in its sole discretion."
j. Time is of the essence in this Contract.
ARTICLE II PAYMENT METHODS AND RESTRICTIONS
2.01 Payment Methods
Except as otherwise provided by the provisions of the Contract,the payment method will be one
or more of the following:
a. cost reimbursement. This payment method is based on an approved budget and submission
of a request for reimbursement of expenses Grantee has incurred at the time of the request;
b. unit rate/fee-for-service. This payment method is based on a fixed price or a specified rate(s)
or fee(s) for delivery of a specified unit(s) of service and acceptable submission of all
required documentation, forms and/or reports; or
c. advance payment. This payment method is based on disbursal of the minimum necessary
funds to carry out the Program or Project where the Grantee has implemented appropriate
safeguards. This payment method will only be utilized in accordance with governing law
and at the sole discretion of the Enterprise Agency.
Grantees shall bill the Enterprise Agency in accordance with the Contract. Unless otherwise
specified in the Contract, Grantee shall submit requests for reimbursement or payment monthly
by the last business day of the month following the month in which expenses were incurred or
services provided. Grantee shall maintain all documentation that substantiates invoices and make
the documentation available to the Enterprise Agency upon request.
2.02 Final Billing Submission
Unless otherwise provided by the Enterprise Agency, Grantee shall submit a reimbursement or
payment request as a final close-out invoice not later than forty-five (45) calendar days following
Attachment B-DSHS Contract No.2016-048774-001
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the end of the term of the Contract. Reimbursement or payment requests received in the
Enterprise Agency's offices more than forty-five (45) calendar days following the termination of
the Contract may not be paid.
2.03 Financial Status Reports (FSRs)
Except as otherwise provided in these General Provisions or in the terms of any Program
Attachment(s) that is incorporated into the Contract, for contracts with categorical budgets,
Grantee shall submit quarterly FSRs to Accounts Payable by the last business day of the month
following the end of each quarter of the Program Attachment term for Enterprise Agency review
and financial assessment. Grantee shall submit the final FSR no later than forty-five (45)
calendar days following the end of the applicable term.
2.04 Debt to State and Corporate Status
Pursuant to Tex. Gov. Code § 403.055, the Department will not approve and the State
Comptroller will not issue payment to Grantee if Grantee is indebted to the State for any reason,
including a tax delinquency. Grantee, if a corporation, certifies by execution of this Contract that
it is current and will remain current in its payment of franchise taxes to the State of Texas or that
it is exempt from payment of franchise taxes under Texas law (Tex. Tax Code §§ 171.001 et
seq.). If tax payments become delinquent during the Contract term, all or part of the payments
under this Contract may be withheld until Grantee's delinquent tax is paid in full.
2.05 Application of Payment Due
Grantee agrees that any payments due under this Contract will be applied towards any debt of
Grantee, including but not limited to delinquent taxes and child support that is owed to the State
of Texas.
2.06 Use of Funds
Grantee shall expend funds provided under this Contract only for the provision of approved
services and for reasonable and allowable expenses directly related to those services.
2.07 Use for Match Prohibited
Grantee shall not use funds provided under this Contract for matching purposes in securing other
funding without the written approval of the Enterprise Agency.
2.08 Program Income
Income directly generated from funds provided under this Contract or earned only as a result of
such funds is Program Income. Unless otherwise required under the Program, Grantee shall use
the addition alternative, as provided in UGMS § _.25(g)(2), for the use of Project income to
further the Program, and Grantee shall spend the Program Income on the Project. Grantee shall
identify and report this income in accordance with the Contract, applicable law, and the
Contractor's Financial Procedures Manual located at
http:i i» .dshs.state.tx.usicontractS/cfpm.shtm. Grantee shall expend Program Income during
the Program Attachment term and may not carry forward to any succeeding term. Grantee shall
refund program income not expended in the term in which it is earned to the Enterprise Agency.
The Enterprise Agency may base future funding levels, in part, upon Grantee's proficiency in
identifying, billing, collecting, and reporting Program Income, and in using it for the purposes
and under the conditions specified in this Contract.
Attachment B-DSHS Contract No.2016-048774-001
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2.09 Nonsupplanting
Grantee shall not use funds from this Contract to replace or substitute for existing funding from
other but shall use funds from this Contract to supplement existing state or local funds currently
available. Grantee shall make a good faith effort to maintain its current level of support.
Grantee may be required to submit documentation substantiating that a reduction in state or local
funding, if any, resulted for reasons other than receipt or expected receipt of funding under this
Contract.
ARTICLE III. STATE AND FEDERAL FUNDING
3.01 Funding
This Contract is contingent upon the availability of sufficient and adequate funds. If funds
become unavailable through lack of appropriations, budget cuts, transfer of funds between
programs or agencies, amendment of the Texas General Appropriations Act, agency
consolidation, or any other disruptions of current funding for this Contract, the Enterprise
Agency may restrict, reduce, or terminate funding under this Contract. This Contract is also
subject to immediate cancellation or termination, without penalty to the Enterprise Agency, if
sufficient and adequate funds are not available. Grantee will have no right of action against the
Enterprise Agency if the Enterprise Agency cannot perform its obligations under this Contract as
a result of lack of funding for any activities or functions contained within the scope of this
Contract. In the event of cancellation or termination under this Section, the Enterprise Agency
will not be required to give notice and will not be liable for any damages or losses caused or
associated with such termination or cancellation.
3.02 No debt Against the State
The Contract will not be construed as creating any debt by or on behalf of the State of Texas.
3.03 Debt to State
If a payment law prohibits the Texas Comptroller of Public Accounts from making a payment,
the Grantee acknowledges the Enterprise Agency's payments under the Contract will be applied
toward eliminating the debt or delinquency. This requirement specifically applies to any debt or
delinquency,regardless of when it arises.
3.04 Recapture of Funds
The Enterprise Agency may withhold all or part of any payments to Grantee to offset
overpayments made to the Grantee. Overpayments as used in this Section include payments (i)
made by the Enterprise Agency that exceed the maximum allowable rates;(ii)that are not allowed
under applicable laws, rules, or regulations; or (iii) that are otherwise inconsistent with this
Contract, including any unapproved expenditures. Grantee understands and agrees that it will be
liable'to the Enterprise Agency for any costs disallowed pursuant to financial and compliance
audit(s) of funds received under this Contract. Grantee further understands and agrees that
reimbursement of such disallowed costs will be paid by Grantee from funds which were not
provided or otherwise made available to Grantee under this Contract.
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ARTICLE IV ALLOWABLE COSTS AND AUDIT REQUIREMENTS
4.01 Allowable Costs.
Enterprise Agency will reimburse the allowable costs incurred in performing the Project that are
sufficiently documented. Grantee must have incurred a cost prior to claiming reimbursement and
within the applicable term to be eligible for reimbursement under this Contract. The Enterprise
Agency will determine whether costs submitted by Grantee are allowable and eligible for
reimbursement. If the Enterprise Agency has paid funds to Grantee for unallowable or ineligible
costs, the Enterprise Agency will notify Grantee in writing, and Grantee shall return the funds to
the Enterprise Agency within thirty (30) calendar days of the date of this written notice. The
Enterprise Agency may withhold all or part of any payments to Grantee to offset reimbursement
for any unallowable or ineligible expenditure that Grantee has not refunded to the Enterprise
Agency, or if financial status report(s) required under the Financial Status Reports section are not
submitted by the due date(s). The Enterprise Agency may take repayment (recoup) from funds
available under this Contract in amounts necessary to fulfill Grantee's repayment obligations.
Applicable cost principles, audit requirements, and administrative requirements include-
Applicable Entity Applicable Cost Audit Administrative
Principles Requirements Requirements
State, Local and 2 CFR,Part 225 2 CFR Part 200, 2 CFR Part 200 and
Tribal Governments Subpart F and UGMS
UGMS
Educational 2 CFR, Part 220 2 CFR Part 200, 2 CFR Part 200 and
Institutions Subpart F and UGMS
UGMS
Non-Profit 2 CFR, Part 230 2 CFR Part 200, 2 CFR Part 200 and
Organizations Subpart F and UGMS
UGMS
For-profit 48 CFR Part 31, 2 CFR Part 200, 2 CFR Part 200 and
Organization other Contract Cost Subpart F and UGMS
than a hospital and an Principles UGMS
organization named in Procedures, or
OMB Circular A-122 uniform cost
(2 CFR Part, 230) as accounting
not subject to that standards that
circular. comply with cost
principles
acceptable to the
federal or state
awarding agency
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A chart of applicable Federal awarding agency common rules is located through a web link on
the Enterprise Agency website at http:!/ww .dshs.state.tx.us/contracts/links.shtm. OMB
Circulars will be applied with the modifications prescribed by UGMS with effect given to
whichever provision imposes the more stringent requirement in the event of a conflict.
4.02 Independent Single or Program-Specific Audit
If Grantee, within Grantee's fiscal year, expends a total amount of at least SEVEN HUNDRED
FIFTY THOUSAND DOLLARS ($750,000) in federal funds awarded, Grantee shall have a single
audit or program-specific audit in accordance with the 2 CFR 200. The $750,000 federal
threshold amount includes federal funds passed through by way of state agency awards. If
Grantee, within Grantee's fiscal year, expends a total amount of at least $500,000 in state funds
awarded, Grantee must have a single audit or program-specific audit in accordance with UGMS,
State of Texas Single Audit Circular. For-profit Grantees whose expenditures meet or exceed
the federal or state expenditure thresholds stated above shall follow the guidelines in 2 CFR 200
or UGMS, as applicable, for their program-specific audits. The HHSC Office of Inspector
General (OIG) will notify Grantee to complete the Single Audit Status Registration Form. If
Grantee fails to complete the Single Audit Status Form within thirty (30) calendar days after
notification by OIG to do so, Grantee shall be subject to the Enterprise Agency sanctions and
remedies for non-compliance with this Contract. The audit must be conducted by an independent
certified public accountant and in accordance with applicable OMB Circulars, Government
Auditing Standards, and UGMS, which is accessible through a web link on the Enterprise
Agency website at http://www.dshs.state.tx.us/contracts/links.shtm. Grantee shall procure audit
services in compliance with this section, state procurement procedures, as well as with the
provisions of UGMS
4.03 Submission of Audit
Within thirty (30) calendar days of receipt of the audit reports required by the Independent
Single or Program-Specific Audit section, Grantee shall submit one copy to the Department's
Contract Oversight and Support Section, and one copy to the OIG, at the following addresses:
Department of State Health Services
Contract Oversight and Support, Mail Code 1326
P.O. Box 149347
Austin, Texas 78714-9347
Health and Human Services Commission
Office of Inspector General
Compliance/Audit, Mail Code 1326
P.O. Box 85200
Austin,Texas 78708-5200
Electronic submission to the Enterprise Agency should be addressed as follows:
COSContractAdministration@dshs.state.tx.us
Electronic submission to HHSC should be addressed as follows:
Dani.fielding@hhsc.state.tx.us
hhsc.state.tx.us
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If Grantee fails to submit the audit report as required by the Independent Single or Program-
Specific Audit section within thirty (30) calendar days of receipt by Grantee of an audit report,
Grantee shall be subject to the Enterprise Agency sanctions and remedies for non-compliance
with this Contract.
ARTICLE V AFFIRMATIONS,ASSURANCES AND CERTIFICATIONS
5.01 General Affirmations
Grantee certifies that, to the extent General Affirmations are incorporated into the Contract under
the Signature Document, the General Affirmations have been reviewed and that Grantee is in
compliance with each of the requirements reflected therein.
5.02 Federal Assurances
Grantee further certifies that, to the extent Federal Assurances are incorporated into the Contract
under the Signature Document, the Federal Assurances have been reviewed and that Grantee is
in compliance with each of the requirements reflected therein.
5.03 Federal Certifications
Grantee further certifies, to the extent Federal Certifications are incorporated into the Contract
under the Signature Document, that the Federal Certifications have been reviewed, and that
Grantee is in compliance with each of the requirements reflected therein. In addition, Grantee
certifies that it is in compliance with all applicable federal laws, rules, or regulations, as they
may pertain to this Contract.
ARTICLE VI OWNERSHIP AND INTELLECTUAL PROPERTY
6.01 Ownership
The Enterprise Agency will own, and Grantee hereby assigns to the Enterprise Agency, all right,
title, and interest in all Deliverables.
6.02 Intellectual Property
a. The Enterprise Agency and Grantee will retain ownership, all rights, title, and interest in and
to, their respective pre-existing Intellectual Property. A license to either Party's pre-existing
Intellectual Property must be agreed to under this or another contract.
b. Grantee grants to the Enterprise Agency and the State of Texas a royalty-free, paid up,
worldwide, perpetual, non-exclusive, non-transferable license to use any Intellectual Property
invented or created by Grantee, Grantee's contractor, or a subcontractor in the performance of
the Project. Grantee will require its contractors to grant such a license under its contracts.
c. As used herein, "Intellectual Property" shall mean: inventions and business processes,
whether or not patentable; works of authorship; trade secrets; trademarks; service marks;
industrial designs; and other intellectual property incorporated in any Deliverable and first
created or developed by Grantee, Grantee's contractor or a subcontractor in performing the
Project.
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ARTICLE VII RECORDS,AUDIT,AND DISCLOSURE
7.01 Books and Records
Grantee will keep and maintain under GAAP or GASB, as applicable, full, true, and complete
records necessary to fully disclose to the Enterprise Agency, the Texas State Auditor's Office,
the United States Government, and their authorized representatives sufficient information to
determine compliance with the terms and conditions of this Contract and all state and federal
rules, regulations, and statutes. Unless otherwise specified in this Contract, Grantee will
maintain legible copies of this Contract and all related documents for a minimum of seven (7)
years after the termination of the contract period or seven (7) years after the completion of any
litigation or dispute involving the Contract, whichever is later.
7.02 Access to records,books, and documents
In addition to any right of access arising by operation of law, Grantee and any of Grantee's
affiliate or subsidiary organizations, or Subcontractors will permit the Enterprise Agency or any
of its duly authorized representatives, as well as duly authorized federal, state or local
authorities, unrestricted access to and the right to examine any site where business is conducted
or Services are performed, and all records, which includes but is not limited to financial, client
and patient records, books,papers or documents related to this Contract. If the Contract includes
federal funds, federal agencies that will have a right of access to records as described in this
section include: the federal agency providing the funds, the Comptroller General of the United
States, the General Accounting Office, the Office of the Inspector General, and any of their
authorized representatives. In addition, agencies of the State of Texas that will have a right of
access to records as described in this section include: the Enterprise Agency, HHSC, HHSC's
contracted examiners, the State Auditor's Office, the Texas Attorney General's Office, and any
successor agencies. Each of these entities may be a duly authorized authority. If deemed
necessary by the Enterprise Agency or any duly authorized authority, for the purpose of
investigation or hearing, Grantee will produce original documents related to this Contract. The
Enterprise Agency and any duly authorized authority will have the right to audit billings both
before and after payment, and all documentation that substantiates the billings. Grantee will
include this provision concerning the right of access to, and examination of, sites and
information related to this Contract in any Subcontract it awards.
7.03 Response/compliance with audit or inspection findings
a. Grantee must act to ensure its and its Subcontractor's compliance with all corrections
necessary to address any finding of noncompliance with any law, regulation, audit
requirement, or generally accepted accounting principle, or any other deficiency identified in
any audit, review, or inspection of the Contract and the goods or services provided
hereunder. Any such correction will be at Grantee or its Subcontractor's sole expense.
Whether Grantee's action corrects the noncompliance will be solely the decision of the
Enterprise Agency.
b. As part of the Services, Grantee must provide to HHSC upon request a copy of those portions
of Grantee's and its Subcontractors' internal audit reports relating to the Services and
Deliverables provided to the State under the Contract.
Attachment B-DSHS Contract No.2016-048774-001
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7.04 SAO Audit
Grantee understands that acceptance of funds directly under the Contract or indirectly through a
Subcontract under the Contract acts as acceptance of the authority of the State Auditor's Office
(SAO), or any successor agency, to conduct an audit or investigation in connection with those
funds. Under the direction of the legislative audit committee, an entity that is the subject of an
audit or investigation by the SAO must provide the SAO with access to any information the SAO
considers relevant to the investigation or audit. Grantee agrees to cooperate fully with the SAO
or its successor in the conduct of the audit or investigation, including providing all records
requested. Grantee will ensure that this clause concerning the authority to audit funds received
indirectly by Subcontractors through Grantee and the requirement to cooperate is included in any
Subcontract it awards.
7.05 Confidentiality
Any specific confidentiality agreement between the Parties takes precedent over the terms of this
section. To the extent permitted by law, Grantee agrees to keep all information confidential, in
whatever form produced, prepared, observed, or received by Grantee. The provisions of this
section remain in full force and effect following termination or cessation of the services
perfonned under this Contract.
7.06 Public Information Act
Information related to the performance of this Contract may be subject to the PIA and will be
withheld from public disclosure or released only in accordance therewith. Grantee must make all
information not otherwise excepted from disclosure under the PIA available in portable
document file (".pdf') format or any other format agreed between the Parties.
ARTICLE VIII CONTRACT MANAGEMENT AND EARLY TERMINATION
8.01 Contract Management
To ensure full performance of the Contract and compliance with applicable law, the Enterprise
Agency may take actions including:
a. suspending all or part of the Contract;
b. requiring the Grantee to take specific corrective actions in order to remain in
compliance with term of the Contract;
c. recouping payments made to the Grantee found to be in error;
d. suspending, limiting, or placing conditions on the continued performance of the
Project;
e. imposing any other remedies authorized under this Contract; and
f. imposing any other remedies, sanctions or penalties permitted by federal or state
statute, law,regulation,or rule.
8.02 Termination for Convenience
The Enterprise Agency may terminate the Contract at any time when, in its sole discretion, the
Enterprise Agency determines that termination is in the best interests of the State of Texas. The
termination will be effective on the date specified in HHSC's notice of termination.
Attachment B-DSHS Contract No.2016-048774-001
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8.03 Termination for Cause
Except as otherwise provided by the U.S. Bankruptcy Code, or any successor law,the Enterprise
Agency may terminate the Contract, in whole or in part, upon either of the following conditions:
a. Material Breach
The Enterprise Agency will have the right to terminate the Contract in whole or in part if the
Enterprise Agency determines, at its sole discretion, that Grantee has materially breached the
Contract or has failed to adhere to any laws, ordinances, rules, regulations or orders of any public
authority having jurisdiction and such violation prevents or substantially impairs performance of
Grantee's duties under the Contract. Grantee's misrepresentation in any aspect of Grantee's
Solicitation Response, if any or Grantee's addition to the Excluded Parties List System (EPLS)
will also constitute a material breach of the Contract.
b. Failure to Maintain Financial Viability
The Enterprise Agency may terminate the Contract if, in its sole discretion, the Enterprise
Agency has a good faith belief that Grantee no longer maintains the financial viability required
to complete the Services and Deliverables, or otherwise fully perform its responsibilities under
the Contract.
8.04 Equitable Settlement
Any early termination under this Article will be subject to the equitable settlement of the
respective interests of the Parties up to the date of termination.
ARTICLE IX MISCELLANEOUS PROVISIONS
9.01 Amendment
The Contract may only be amended by an Amendment executed by both Parties.
9.02 Insurance
Unless otherwise specified in this Contract, Grantee will acquire and maintain, for the duration of
this Contract, insurance coverage necessary to ensure proper fulfillment of this Contract and
potential liabilities thereunder with financially sound and reputable insurers licensed by the
Texas Department of Insurance, in the type and amount customarily carried within the industry
as determined by the Enterprise Agency. Grantee will provide evidence of insurance as required
under this Contract, including a schedule of coverage or underwriter's schedules establishing to
the satisfaction of the Enterprise Agency the nature and extent of coverage granted by each such
policy, upon request by the Enterprise Agency. In the event that any policy is determined by the
Enterprise Agency to be deficient to comply with the terms of this Contract, Grantee will secure
such additional policies or coverage as the Enterprise Agency may reasonably request or that are
required by law or regulation. If coverage expires during the term of this Contract, Grantee must
produce renewal certificates for each type of coverage.
These and all other insurance requirements under the Contract apply to both Grantee and its
Subcontractors, if any. Grantee is responsible for ensuring its Subcontractors' compliance with all
requirements.
Attachment B-DSHS Contract No.2016-048774-001
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9.03 Legal Obligations
Grantee will comply with all applicable federal, state, and local laws, ordinances, and
regulations. Grantee will be deemed to have knowledge of all applicable laws and regulations
and be deemed to understand them. In addition to any other act or omission that may constitute a
material breach of the Contract, failure to comply with this Section may also be a material breach
of the Contract.
9.04 Permitting and Licensure
At Grantee's sole expense, Grantee will procure and maintain for the duration of this Contract
any state, county, city, or federal license, authorization, insurance, waiver, permit, qualification
or certification required by statute, ordinance, law, or regulation to be held by Grantee to provide
the goods or Services required by this Contract. Grantee will be responsible for payment of all
taxes, assessments, fees, premiums, permits, and licenses required by law. Grantee agrees to be
responsible for payment of any such government obligations not paid by its contactors or
subcontractors during performance of this Contract.
9.05 Indemnity
To THE EXTENT ALLOWED BY LAW, GRANTEE WILL DEFEND, INDEMNIFY, AND HOLD
HARMLESS THE STATE OF TEXAS AND ITS OFFICERS AND EMPLOYEES, AND THE ENTERPRISE
AGENCY AND ITS OFFICERS AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS, ACTIONS,
SUITS, DEMANDS, PROCEEDINGS, COSTS, DAMAGES, AND LIABILITIES, INCLUDING ATTORNEYS'
FEES AND COURT COSTS ARISING OUT OF,OR CONNECTED WITH,OR RESULTING FROM:
a. GRANTEE'S PERFORMANCE OF THE CONTRACT, INCLUDING ANY NEGLIGENT ACTS OR
OMISSIONS OF GRANTEE, OR ANY AGENT, EMPLOYEE, SUBCONTRACTOR, OR SUPPLIER OF
GRANTEE, OR ANY THIRD PARTY UNDER THE CONTROL OR SUPERVISION OF GRANTEE, IN
THE EXECUTION OR PERFORMANCE OF THIS CONTRACT; OR
b. ANY BREACH OR VIOLATION OF A STATUTE, ORDINANCE, GOVERNMENTAL REGULATION,
STANDARD, RULE, OR BREACH OF CONTRACT BY GRANTEE, ANY AGENT, EMPLOYEE,
SUBCONTRACTOR,OR SUPPLIER OF GRANTEE,OR ANY THIRD PARTY UNDER THE CONTROL
OR SUPERVISION OF GRANTEE,IN THE EXECUTION OR PERFORMANCE OF THIS CONTRACT;
OR
C. EMPLOYMENT OR ALLEGED EMPLOYMENT, INCLUDING CLAIMS OF DISCRIMINATION
AGAINST GRANTEE,ITS OFFICERS,OR ITS AGENTS; OR
d. WORK UNDER THIS CONTRACT THAT INFRINGES OR MISAPPROPRIATES ANY RIGHT OF ANY
THIRD PERSON OR ENTITY BASED ON COPYRIGHT, PATENT, TRADE SECRET, OR OTHER
INTELLECTUAL PROPERTY RIGHTS.
GRANTEE WILL COORDINATE ITS DEFENSE WITH THE ENTERPRISE AGENCY AND ITS COUNSEL.
THIS PARAGRAPH IS NOT INTENDED TO AND WILL NOT BE CONSTRUED TO REQUIRE GRANTEE
TO INDEMNIFY OR HOLD HARMLESS THE STATE OR THE ENTERPRISE AGENCY FOR ANY CLAIMS
OR LIABILITIES RESULTING SOLELY FROM THE GROSS NEGLIGENCE OF THE ENTERPRISE
AGENCY OR ITS EMPLOYEES. THE PROVISIONS OF THIS SECTION WILL SURVIVE
TERMINATION OF THIS CONTRACT.
Attachment B-DSHS Contract No.2016-048774-001
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9.06 Assignments
Grantee may not assign all or any portion of its rights under, interests in, or duties required under
this Contract without prior written consent of the Enterprise Agency, which may be withheld or
granted at the sole discretion of the Enterprise Agency. Except where otherwise agreed in writing
by the Enterprise Agency, assignment will not release Grantee from its obligations under the
Contract.
Grantee understands and agrees the Enterprise Agency may in one or more transactions assign,
pledge, or transfer the Contract. This assignment will only be made to another State agency or a
non-state agency that is contracted to perform agency support.
9.07 Relationship of the Parties
Grantee is, and will be, an independent contractor and, subject only to the terms of this Contract,
will have the sole right to supervise, manage, operate, control, and direct performance of the
details incident to its duties under this Contract. Nothing contained in this Contract will be
deemed or construed to create a partnership or joint venture, to create relationships of an
employer-employee or principal-agent, or to otherwise create for the Enterprise Agency any
liability whatsoever with respect to the indebtedness, liabilities, and obligations of Grantee or
any other Party.
Grantee will be solely responsible for, and the Enterprise Agency will have no obligation with
respect to:
a. payment of Grantee's employees for all Services performed;
b. ensuring each of its employees, agents, or Subcontractors who provide Services or
Deliverables under the Contract are properly licensed, certified, or have proper permits to
perform any activity related to the Work;
c. withholding of income taxes,FICA, or any other taxes or fees;
d. industrial or workers' compensation insurance coverage;
e. participation in any group insurance plans available to employees of the State of Texas;
f. participation or contributions by the State to the State Employees Retirement System;
g. accumulation of vacation leave or sick leave; or
h. unemployment compensation coverage provided by the State.
9.08 Technical Guidance Letters
In the sole discretion of the Enterprise Agency, and in conformance with federal and state law,
the Enterprise Agency may issue instructions, clarifications, or interpretations as may be required
during Work performance in the form of a Technical Guidance Letter. A TGL must be in
writing, and may be delivered by regular mail, electronic mail, or facsimile transmission. Any
TGL issued by the Enterprise Agency will be incorporated into the Contract by reference herein
for all purposes when it is issued.
9.09 Governing Law and Venue
This Contract and the rights and obligations of the Parties hereto will be governed by, and
construed according to, the laws of the State of Texas, exclusive of conflicts of law provisions.
Venue of any suit brought under this Contract will be in a court of competent jurisdiction in
Travis County, Texas unless otherwise elected by the Enterprise Agency. Grantee irrevocably
waives any objection, including any objection to personal jurisdiction or the laying of venue or
Attachment B-DSHS Contract No.2016-048774-001
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based on the grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in respect of this Contract or any
document related hereto. Severability
If any provision contained in this Contract is held to be unenforceable by a court of law or
equity, this Contract will be construed as if such provision did not exist and the non-
enforceability of such provision will not be held to render any other provision or provisions of
this Contract unenforceable.
9.10 Survivability
Termination or expiration of this Contract or a Contract for any reason will not release either
party from any liabilities or obligations in this Contract that the parties have expressly agreed
will survive any such termination or expiration, remain to be performed, or by their nature would
be intended to be applicable following any such termination or expiration, including maintaining
confidentiality of information and records retention.
9.11 Force Majeure
Except with respect to the obligation of payments under this Contract, if either of the Parties,
after a good faith effort, is prevented from complying with any express or implied covenant of
this Contract by reason of war; terrorism; rebellion; riots; strikes; acts of God; any valid order,
rule, or regulation of governmental authority; or similar events that are beyond the control of the
affected Party (collectively referred to as a "Force Majeure"), then, while so prevented, the
affected Party's obligation to comply with such covenant will be suspended, and the affected
Party will not be liable for damages for failure to comply with such covenant. In any such event,
the Party claiming Force Majeure will promptly notify the other Party of the Force Majeure
event in writing and, if possible, such notice will set forth the extent and duration thereof.
9.12 No Waiver of Provisions
Neither failure to enforce any provision of this Contract nor payment for services provided under
it constitute waiver of any provision of the Contract.
9.13 Publicity
Except as provided in the paragraph below, Grantee must not use the name of, or directly or
indirectly refer to, the Enterprise Agency, the State of Texas, or any other State agency in any
media release, public announcement, or public disclosure relating to the Contract or its subject
matter, including in any promotional or marketing materials, customer lists, or business
presentations.
Grantee may publish, at its sole expense, results of Grantee performance under the Contract with
the Enterprise Agency's prior review and approval, which the Enterprise Agency may exercise at
its sole discretion. Any publication (written, visual, or sound) will acknowledge the support
received from the Enterprise Agency and any Federal agency, as appropriate.
9.14 Prohibition on Non-compete Restrictions
Grantee will not require any employees or Subcontractors to agree to any conditions, such as
non-compete clauses or other contractual arrangements that would limit or restrict such persons
or entities from employment or contracting with the State of Texas.
Attachment B-DSHS Contract No.2016-048774-001
Page 17 of 19
9.15 No Waiver of Sovereign Immunity
Nothing in the Contract will be construed as a waiver of sovereign immunity by the Enterprise
Agency.
9.16 Entire Contract and Modification
The Contract constitutes the entire agreement of the Parties and is intended as a complete and
exclusive statement of the promises, representations, negotiations, discussions, and other
agreements that may have been made in connection with the subject matter hereof. Any
additional or conflicting terms in any future document incorporated into the Contract will be
harmonized with this Contract to the extent possible by the Enterprise Agency.
9.17 Counterparts
This Contract may be executed in any number of counterparts, each of which will be an original,
and all such counterparts will together constitute but one and the same Contract.
9.18 Proper Authority
Each Party hereto represents and warrants that the person executing this Contract on its behalf
has full power and authority to enter into this Contract. Any Services or Work performed by
Grantee before this Contract is effective or after it ceases to be effective are performed at the sole
risk of Grantee with respect to compensation.
9.19 Employment Verification
Grantee will confirm the eligibility of all persons employed during the contract term to perform
duties within Texas and all persons, including subcontractors, assigned by the contractor to
perform work pursuant to the Contract.
9.20 Civil Rights
a. Grantee agrees to comply with state and federal anti-discrimination laws,
including:
1. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.);
2. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794);
3. Americans with Disabilities Act of 1990 (42 U.S.C. §12101 etseq.);
4. Age Discrimination Act of 1975 (42 U.S.C. §§6101-6107);
5. Title IX of the Education Amendments of 1972 (20 U.S.C. §§1681-1688);
6. Food and Nutrition Act of 2008 (7 U.S.C. §2011 et seq.);and
7. The Enterprise Agency's administrative rules, as set forth in the Texas Administrative
Code,to the extent applicable to this Agreement.
Grantee agrees to comply with all amendments to the above-referenced laws, and all
requirements imposed by the regulations issued pursuant to these laws. These laws provide in
part that no persons in the United States may, on the grounds of race, color, national origin,
sex, age, disability, political beliefs, or religion, be excluded from participation in or denied
any aid, care, service or other benefits provided by Federal or State funding, or otherwise be
subjected to discrimination.
b. Grantee agrees to comply with Title VI of the Civil Rights Act of 1964, and its implementing
regulations at 45 C.F.R. Part 80 or 7 C.F.R. Part 15, prohibiting a contractor from adopting
Attachment B-DSHS Contract No.2016-048774-001
Page 18 of 19
and implementing policies and procedures that exclude or have the effect of excluding or
limiting the participation of clients in its programs, benefits, or activities on the basis of
national origin. State and federal civil rights laws require contractors to provide alternative
methods for ensuring access to services for applicants and recipients who cannot express
themselves fluently in English. Grantee agrees to take reasonable steps to provide services
and information, both orally and in writing, in appropriate languages other than English, in
order to ensure that persons with limited English proficiency are effectively informed and
can have meaningful access to programs, benefits, and activities.
c. Grantee agrees to post applicable civil rights posters in areas open to the public informing
clients of their civil rights and including contact information for the HHS Civil Rights Office.
The posters are available on the HHS website at:
http://www.hhsc.state.tx.us/about_hhsc/civil-riihts/brochures-posters.shtml
d. Grantee agrees to comply with Executive Order 13279, and its implementing regulations at
45 C.F.R. Part 87 or 7 C.F.R. Part 16. These provide in part that any organization that
participates in programs funded by direct financial assistance from the United States
Department of Agriculture or the United States Department of Health and Human Services
shall not discriminate against a program beneficiary or prospective program beneficiary on
the basis of religion or religious belief.
e. Upon request, Grantee will provide HHSC Civil Rights Office with copies of all of the
Grantee's civil rights policies and procedures.
f. Grantee must notify HHSC's Civil Rights Office of any civil rights complaints received
relating to its performance under this Agreement. This notice must be delivered no more than
ten (10) calendar days after receipt of a complaint. Notice provided pursuant to this section
must be directed to:
HHSC Civil Rights Office
701 W. 51St Street,Mail Code W206
Austin, Texas 78751
Phone Toll Free: (888)388-6332
Phone: (512) 438-4313
TTY Toll Free: (877)432-7232
Fax: (512)438-5885.
•
Attachment B-DSHS Contract No.2016-048774-001
Page 19 of 19
ATTACHMENT C
SPECIAL CONDITIONS
Section 1.01 Notice of Legal Matter or Litigation.
Contractor shall notify the contract manager assigned to this Contract of any litigation or legal matter
related to or affecting this Contract within seven calendar days of becoming aware of the litigation or
legal matter.
Section 1.02 Notice of a Contract Action.
Contractor shall notify their assigned contract manager assigned to the contract if Contractor has had any
contract
suspended or terminated for cause by any local,state or federal department or agency or nonprofit
entity within five days of becoming aware of the action and include the following:
a. Reason for such action;
b. Name and contact information of the local,state or federal department or agency or entity;
c. Date of the contract;
d. Date of suspension or termination; and
e. Contract or case reference number.
Section 1.03 Notice o f Bankruptcy. Contractor shall notify in writing their assigned
contract manager assigned of its plan to seek bankruptcy protection within five days of such action by
Contractor.
Section 1.04 Notice of Criminal Activity and Disciplinary Actions.
a. Contractor shall immediately report in writing their contract manager when the Contractor has
knowledge or reason to believe any that they or any person with ownership or controlling
interest in the organization/business,or their agent,employee, subcontractor or volunteer that
is providing services under this Contract has engaged in any activity that:
1. Would constitute a criminal offense equal to or greater than a Class A misdemeanor; and
2. Reasonably would constitute grounds for disciplinary action by a state or federal
regulatory authority; or
3. Has been placed on community supervision,received deferred adjudication,or
been indicted for or convicted of a criminal offense relating to involvement in any
financial matter,federal or state program or felony sex crime.
b. Contractor shall not permit any person who engaged,or was alleged to have engaged,
in any activity subject to reporting under this section to perform direct client services
or have direct contact with clients,unless otherwise directed in writing by DSHS.
Section 1.05 Contractor's Notification of Change of Contact Person or Key Personnel.
Within ten days shall notify in writing the contract manager assigned to the Contract of any change
enumerated in the Contractor's Contact Person or Key Personnel.
Section 1.06 All activities related to WIC, including timeframes, budget, and any revisions shall
be approved by DSHS.
Section 1.07 Contractor shall comply with all provisions required by implementing the
regulations of the Department of Agriculture, 7 CFR Part 246, 248; Department of Justice
Guidelines for Enforcement of Title VI; 28 CFR § 50.3 and 28 CFR Part 42; and Food&
Nutrition Service (FNS) directives and guidelines,to the effect that no person will, on the
DSHS Contract No. 2016-048774-001
Attachment C- Page 1
ATTACHMENT C
SPECIAL CONDITIONS
grounds of race, color, national origin, sex, age, or disability be excluded from participation
under any program or activity for which Contractor receives federal financial assistance from
FNS; and hereby gives assurance that it shall immediately take measures necessary to
implement this Contract.
Contractor shall compile data, maintain records and submit reports, as required,to permit
effective enforcement of the nondiscrimination laws and permit authorized USDA and State of
Texas personnel, during normal working hours,to review such records, books, and accounts as
needed to ascertain compliance with the nondiscrimination laws. The Department of
Agriculture, Food and Nutrition Service (USDA), has the right to seek judicial enforcement if
Contractor violates any nondiscrimination laws. This Assurance is binding on Contractor, its
successors,transferees, and assignees, as long as they receive assistance or retain possession of
any assistance from the Department of Agriculture. The person or persons whose signatures
appear on the Core Contract are authorized to sign this Assurance on behalf of Contractor.
Contractor shall comply with all of the requirements of the current WIC Policy and Procedures
Manual and Program rules as well as state and federal laws and amendments governing or
regulating the WIC Program. A copy of the current WIC Policy and Procedures Manual has
been made available to Contractor. The WIC Policy and Procedures Manual, and all revisions
made to the WIC Policy and Procedures Manual are incorporated into this Agreement by
reference. Contractor is responsible to remain familiar with the contents within the WIC Policy
and Procedures Manual.
Contractor is responsible for ensuring that employees or agents acting on behalf of Contractor
comply with all of the requirements of the current WIC Policy and Procedures Manual,
Program rules, and all state and federal laws and amendments governing and regulating the
WIC Program.
Section 1.08 The Contractor will be notified if a change in funding occurs and will have sixty
(60) days to provide written notice to the DSHS if it intends to terminate this contract.
Contractor shall submit all performance, and other Closeout reports required under this Contract
within 60 calendar days after the Contract, if applicable, has terminated.
Surplus encumbered by September 30 shall be billed and vouchers received by DSHS no later
than 60 calendar days following the term of the contract.
Section 1.09 Contractor will be allowed the option of receiving a two(2)month cash advance in
accordance with current WIC Program Policy and Procedures.
Section 1.10 Contractor shall maintain full and complete records concerning Program operations
and the following requirements:
a. Records shall include, but not be limited to, information pertaining to financial
operations, food delivery systems, food benefit issuance and redemption, equipment
purchases and inventory, certification, nutrition education, civil rights and fair hearing
procedures.
DSHS Contract No. 2016-048774-001
Attachment C - Page 2
ATTACHMENT C
SPECIAL CONDITIONS
b. If USDA deems any of the WIC program records to be of historical interest, it may
require DSHS or the Contractor to forward such records to the USDA whenever either
entity is disposing of them.
c. All records shall be available during normal business hours for representatives of the
USDA,DSHS and the Comptroller General of the United States to inspect, audit, and
copy. Any reports or other documents resulting from the examination of such records that
are publicly released may not include confidential applicant or participant information.
Section 1.11 If Contractor chooses to interview a client to determine if an affirmative defense to
prosecution exists, as defined by DSHS,which would allow them under the DSHS policy to not
make a report of child abuse,the Contractor shall conduct these interviews in the following
manner:
a. For ineligible clients,the interview shall be conducted after the entire WIC visit is done.
For eligible clients,the interview may occur at the point in time when all WIC activities,
including communication of eligibility and individual counseling, are completed with
the exception of food instrument issuance.
b. The interview shall be conducted only by a competent authority or a supervisor and in a
confidential setting.
c. Prior to asking the client any questions,the interviewer shall inform the client that the
questions have no bearing on the client's WIC eligibility and receipt of services.
Section 1.12 Contractor shall maintain an inventory of reportable capital assets placed in the
custody of the Contractor by DSHS. Contractor shall conduct an annual inventory for each
administrative and clinic site and submit to DSHS Property Management in a format and upon a
delivery date designated by DSHS. Contractor shall administer a program of maintenance,repair
and protection of assets under this Contract so as to assure their full availability and usefulness.
In the event Contractor is indemnified, reimbursed, or otherwise compensated for any loss of,
destruction of, or damage to the assess provided under this Contract, it shall use the proceeds to
repair or replace said assets.
Section 1.13 DSHS may terminate this Contract with at least thirty(30) calendar days prior
written notice to the other Party.
If the Contractor seeks to terminate this Contract, Contractor shall give the Department at least
sixty (60) calendar days prior written notice and shall submit a transition plan to ensure client
services are not disrupted.
The Parties can agree to terminate by mutual agreement.
DSHS may temporarily suspend or terminate this Contract, as applicable if funds become
unavailable through lack of appropriations,budget cuts,transfer of funds between programs or
HHSC agencies, amendments to the Appropriations Act,health and human services
consolidations or any other disruption of current appropriated funding for this Contract.
Contractor shall be notified in writing of any termination or temporary suspension and of any
cessation of temporary suspension.Upon notification of temporary suspension, Contractor will
DSHS Contract No. 2016-048774-001
Attachment C -Page 3
ATTACHMENT C
SPECIAL CONDITIONS
discontinue performance under the Contract as of the effective date of the suspension for the
duration of the suspension.
Section 1.14 Section 9.02, Insurance, of Attachment B - Uniform Terms and Conditions, is
deleted in its entirety and replaced by the following: Pursuant to Chapter 2259 of the Texas
Government Code entitled, "Self-Insurance by Governmental Units," Each Party is self-insured
and, therefore, is not required to purchase insurance.
DSHS Contract No. 2016-048774-001
Attachment C -Page 4
ATTACHMENT D
DATA USE AGREEMENT
BETWEEN THE
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
BY AND THROUGH THE
TEXAS DEPARTMENT OF STATE HEALTH SERVICES
AND
CITY OF PORT ARTHUR
This Data Use Agreement("DUA"), is entered into by and between the Texas Health and Human Services
Commission, by and through the Department of State Health Services ("HHS") and CITY OF PORT
ARTHUR("CONTRACTOR"), and incorporated into the terms of DSHS Contract No. 2016-048774-001 in
Travis County, Texas (the "Base Contract"). The DUA takes effect contemporaneously with the Base
Contract.
ARTICLE 1.PURPOSE; APPLICABILITY; ORDER OF PRECEDENCE
ATTACHMENT 1. The purpose of this DUA is to facilitate creation, receipt, maintenance,
use, disclosure or access to Confidential Information with CONTRACTOR, and describe
CONTRACTOR'S rights and obligations with respect to the Confidential Information
and the limited purposes for which the CONTRACTOR may create, receive, maintain, use,
disclose or have access to Confidential Information. 45 CFR 164.504(e)(1)-(3) This DUA
also describes HHS's remedies in the event of CONTRACTOR'S noncompliance with
its obligations under this DUA. This DUA applies to both Business Associates and contractors who
are not Business Associates who create, receive, maintain, use, disclose or have access to Confidential
Information on behalf of FIRS,its programs or clients as described in the Base Contract.
As of the Effective Date of this DUA, if any provision of the Base Contract, including any General
Provisions or Uniform Terms and Conditions,conflicts with this DUA,this DUA controls.
ARTICLE 2. DEFINITIONS
For the purposes of this DUA, capitalized, underlined terms have the meanings set forth in the
following: Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (42 U.S.C.
§1320d, et seq.) and regulations thereunder in 45 CFR Parts 160 and 164, including all amendments,
regulations and guidance issued thereafter; The Social Security Act, including Section 1137 (42 U.S.C.
§§ 1320b-7), Title XVI of the Act; The Privacy Act of 1974, as amended by the Computer Matching and
Privacy Protection Act of 1988, 5 U.S.C. § 552a and regulations and guidance thereunder; Internal Revenue
Code,Title 26 of the United States Code and regulations and publications adopted under that code,including
IRS Publication 1075; OMB Memorandum 07-18; Texas Business and Commerce Code Ch. 521; Texas
Government Code, Ch. 552, and Texas Government Code §2054.1125. In addition, the following terms in
this DUA are defined as follows:
"Authorized Purpose" means the specific purpose or purposes described in the Scope of Work of
the Base Contract for CONTRACTOR to fulfill its obligations under the Base Contract,or any other purpose
expressly authorized by HHS in writing in advance.
"Authorized User"means a Person:
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GOVERNMENTAL ENTITY VERSION
HHS _ .,ntract No.
(1) Who is authorized to create, receive, maintain, have access to, process, view, handle,
examine, interpret,or analyze Confidential Information pursuant to this DUA;
(2) For whom CONTRACTOR warrants and represents has a demonstrable need to create,
receive,maintain,use, disclose or have access to the Confidential Information; and
(3) Who has agreed in writing to be bound by the disclosure and use limitations pertaining to
the Confidential Information as required by this DUA.
"Confidential Information" means any communication or record (whether oral, written,
electronically stored or transmitted, or in any other form)provided to or made available to CONTRACTOR
or that CONTRACTOR may create,receive,maintain,use,disclose or have access to on behalf of HHS that
consists of or includes any or all of the following:
(1) Client Information;
(2) Protected Health Information in any form including without limitation, Electronic
Protected Health Information or Unsecured Protected Health Information;
(3) Sensitive Personal Information defined by Texas Business and Commerce Code Ch. 521;
(4) Federal Tax Information;
(5) Personally Identifiable Information;
(6) Social Security Administration Data, including, without limitation, Medicaid
information;
(7) All privileged work product;
(8) All information designated as confidential under the constitution and laws of the State of
Texas and of the United States, including the Texas Health & Safety Code and the Texas Public
Information Act,Texas Government Code, Chapter 552.
"Legally Authorized Representative" of the Individual, as defined by Texas law, including as
provided in 45 CFR 435.923 (Medicaid); 45 CFR 164.502(g)(1) (HIPAA); Tex. Occ. Code § 151.002(6);
Tex.H.&S.Code §166.164;Estates Code Ch.752 and Texas Prob.Code§3.
ARTICLE 3.CONTRACTOR'S DUTIES REGARDING CONFIDENTIAL INFORMATION
Section 3.01 Obligations of CONTRACTOR
CONTRACTOR agrees that:
(A) CONTRACTOR will exercise reasonable care and no less than the same degree of care
CONTRACTOR uses to protect its own confidential, proprietary and trade secret information to prevent
any portion of the Confidential Information from being used in a manner that is not expressly an
Authorized Purpose under this DUA or as Required by Law. 45 CFR 164.502(b)(1);45 CFR 164.514(d)
(B) CONTRACTOR will not, without HHS's prior written consent, disclose or allow access
to any portion of the Confidential Information to any Person or other entity, other than Authorized User's
Workforce or Subcontractors of CONTRACTOR who have completed training in confidentiality,privacy,
security and the importance of promptly reporting any Event or Breach to CONTRACTOR's
management,to carry out the Authorized Purpose or as Required by Law.
HHS, at its election, may assist CONTRACTOR in training and education on specific or unique
HHS processes, systems and/or requirements. CONTRACTOR will produce evidence of completed
training to HHS upon request.45 C.F.R. 164.308(a)(5)(i); Texas Health &Safety Code§181.101
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HHS Contract
(C) CONTRACTOR will establish, implement and maintain appropriate sanctions against
any member of its Workforce or Subcontractor who fails to comply with this DUA,the Base Contract or
applicable law. CONTRACTOR will maintain evidence of sanctions and produce it to HHS upon
request.45 C.F.R. 164.308(a)(1)(ii)(C);164.530(e);164.410(6);164.530(6)(1)
(D) CONTRACTOR will not, without prior written approval of HHS, disclose or provide
access to any Confidential Information on the basis that such act is Required by Law without notifying
HHS so that HHS may have the opportunity to object to the disclosure or access and seek appropriate
relief. If HHS objects to such disclosure or access, CONTRACTOR will refrain from disclosing or
providing access to the Confidential Information until HHS has exhausted all alternatives for relief. 45
CFR 164.5 0 4(e)(2)(i i)(A)
(E) CONTRACTOR will not attempt to re-identify or further identify Confidential
Information or De-identified Information, or attempt to contact any Individuals whose records are
contained in the Confidential Information, except for an Authorized Purpose, without express written
authorization from HHS or as expressly permitted by the Base Contract.45 CFR 164.502(d)(2)(i) and(ii)
CONTRACTOR will not engage in prohibited marketing or sale of Confidential Information. 45 CFR
164.501, 164.508(a)(3) and(4); Texas Health & Safety Code Ch. 181.002
(F) CONTRACTOR will not permit, or enter into any agreement with a Subcontractor to,
create, receive, maintain, use, disclose, have access to or transmit Confidential Information, on behalf of
CONTRACTOR without requiring that Subcontractor first execute the Form Subcontractor Agreement,
Attachment 1, which ensures that the Subcontractor will comply with the identical terms, conditions,
safeguards and restrictions as contained in this DUA for PHI and any other relevant Confidential
Information and which permits more strict limitations; and 45 CFR 164.502(e)(1)(1)(ii); 164.504(e)(1)(i)
and(2)
(G) CONTRACTOR is directly responsible for compliance with, and enforcement of, all
conditions for creation, maintenance, use, disclosure, transmission and Destruction of Confidential
Information and the acts or omissions of Subcontractors as may be reasonably necessary to prevent
unauthorized use. 45 CFR 164.504(e)(5);42 CFR 431.300,et seq.
(H) If CONTRACTOR maintains PHI in a Designated Record Set, CONTRACTOR will
make PHI available to HHS in a Designated Record Set or, as directed by HHS, provide PHI to the
Individual, or Legally Authorized Representative of the Individual who is requesting PHI in compliance
with the requirements of the HIPAA Privacy Regulations. CONTRACTOR will make other Confidential
Information in CONTRACTOR's possession available pursuant to the requirements of HIPAA or other
applicable law upon a determination of a Breach of Unsecured PHI as defined in HIPAA. 45 CFR
164.524and 164.504(e)(2)(ii)(E)
(I) CONTRACTOR will make PHI as required by HIPAA available to HHS for amendment
and incorporate any amendments to this information that HHS directs or agrees to pursuant to the HIPAA.
45 CFR 164.504(e)(2)(ii)(E) and(F)
(J) CONTRACTOR will document and make available to HHS the PHI required to provide
access, an accounting of disclosures or amendment in compliance with the requirements of the HIPAA
Privacy Regulations.45 CFR 164.504(e)(2)(ii)(6) and 164.528
(K) If CONTRACTOR receives a request for access, amendment or accounting of PHI by
any Individual subject to this DUA, it will promptly forward the request to HHS; however, if it would
violate HIPAA to forward the request, CONTRACTOR will promptly notify HHS of the request and of
CONTRACTOR's response. Unless CONTRACTOR is prohibited by law from forwarding a request,
HHS will respond to all such requests,unless HHS has given prior written consent for CONTRACTOR to
respond to and account for all such requests. 45 CFR 164.504(e)(2)
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HtiS N _ Jt•
(L) CONTRACTOR will provide, and will cause its Subcontractors and agents to provide, to
HHS periodic written certifications of compliance with controls and provisions relating to information
privacy, security and breach notification, including without limitation information related to data transfers
and the handling and disposal of Confidential Information.45 CFR 164.308;164.530(c); 1 TAC 202
(M) Except as otherwise limited by this DUA, the Base Contract, or law applicable to the
Confidential Information, CONTRACTOR may use or disclose PHI for the proper management and
administration of CONTRACTOR or to carry out CONTRACTOR's legal responsibilities if: 45 CFR
164.504(e)(ii)(1)(A)
(1) Disclosure is Required by Law, provided that CONTRACTOR complies with Section
3.01(D);
(2) CONTRACTOR obtains reasonable assurances from the Person to whom the information
is disclosed that the Person will:
(a)Maintain the confidentiality of the Confidential Information in accordance with this DUA;
(b) Use or further disclose the information only as Required by Law or for the Authorized
Purpose for which it was disclosed to the Person; and
(c) Notify CONTRACTOR in accordance with Section 4.01 of any Event or Breach of
Confidential Information of which the Person discovers or should have discovered with the
exercise of reasonable diligence. 45 CFR 164.504(e)(4)(ii)(B)
(N) Except as otherwise limited by this DUA, CONTRACTOR will, if requested by HHS,
use PHI to provide data aggregation services to HHS, as that term is defined in the HIPAA, 45 C.F.R.
§164.501 and permitted by HIPAA. 45 CFR 164.504(e)(2)(i)(B)
(0) CONTRACTOR will, on the termination or expiration of this DUA or the Base Contract,
at its expense, return to HHS or Destroy, at HHS's election, and to the extent reasonably feasible and
permissible by law, all Confidential Information received from HHS or created or maintained by
CONTRACTOR or any of CONTRACTOR's agents or Subcontractors on HHS's behalf if that data
contains Confidential Information. CONTRACTOR will certify in writing to HHS that all the
Confidential Information that has been created, received, maintained, used by or disclosed to
CONTRACTOR, has been Destroyed or returned to HHS, and that CONTRACTOR and its agents and
Subcontractors have retained no copies thereof. Notwithstanding the foregoing, CONTRACTOR
acknowledges and agrees that it may not Destroy any Confidential Information if federal or state law, or
HHS record retention policy or a litigation hold notice prohibits such Destruction. If such return or
Destruction is not reasonably feasible, or is impermissible by law, CONTRACTOR will immediately
notify HHS of the reasons such return or Destruction is not feasible, and agree to extend indefinitely the
protections of this DUA to the Confidential Information and limit its further uses and disclosures to the
purposes that make the return of the Confidential Information not feasible for as long as CONTRACTOR
maintains such Confidential Information. 45 CFR164.504(e)(2)(0(.1)
(P) CONTRACTOR will create, maintain, use, disclose,transmit or Destroy Confidential
Information in a secure fashion that protects against any reasonably anticipated threats or hazards to the
security or integrity of such information or unauthorized uses. 45 CFR 164.306;164.530(c)
(Q) If CONTRACTOR accesses, transmits, stores, and/or maintains Confidential
Information, CONTRACTOR will complete and return to HHS at infosecuritvc hhsc.state.tx.us the HHS
information security and privacy initial inquiry(SPI) at Attachment 2 . The SPI identifies basic privacy
and security controls with which CONTRACTOR must comply to protect HHS Confidential Information.
CONTRACTOR will comply with periodic security controls compliance assessment and monitoring by
HHS as required by state and federal law, based on the type of Confidential Information CONTRACTOR
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HHS Contrast o
creates, receives, maintains, uses, discloses or has access to and the Authorized Purpose and level of risk.
CONTRACTOR's security controls will be based on the National Institute of Standards and Technology
(NIST) Special Publication 800-53. CONTRACTOR will update its security controls assessment
whenever there are significant changes in security controls for HHS Confidential Information and will
provide the updated document to HHS. HHS also reserves the right to request updates as needed to
satisfy state and federal monitoring requirements. 45 CFR 164.306
(R) CONTRACTOR will establish, implement and maintain any and all appropriate
procedural, administrative, physical and technical safeguards to preserve and maintain the
confidentiality, integrity, and availability of the Confidential Information, and with respect to PHI, as
described in the HIPAA Privacy and Security Regulations, or other applicable laws or regulations relating
to Confidential Information, to prevent any unauthorized use or disclosure of Confidential Information as
long as CONTRACTOR has such Confidential Information in its actual or constructive possession. 45
CFR 164.308 (administrative safeguards); 164.310 (physical safeguards); 164.312 (technical
safeguards);164.530(c)(privacy safeguards)
(S) CONTRACTOR will designate and identify, subject to HHS approval, a Person or
Persons, as Privacy Official 45 CFR 164.530(a)(1) and Information Security Official, each of whom is
authorized to act on behalf of CONTRACTOR and is responsible for the development and
implementation of the privacy and security requirements in this DUA. CONTRACTOR will provide
name and current address, phone number and e-mail address for such designated officials to HHS upon
execution of this DUA and prior to any change. 45 CFR 164.308(a)(2)
(T) CONTRACTOR represents and warrants that its Authorized Users each have a
demonstrated need to know and have access to Confidential Information solely to the minimum extent
necessary to accomplish the Authorized Purpose pursuant to this DUA and the Base Contract,and further,
that each has agreed in writing to be bound by the disclosure and use limitations pertaining to the
Confidential Information contained in this DUA. 45 CFR 164.502;164.514(d)
(U) CONTRACTOR and its Subcontractors will maintain an updated,complete, accurate and
numbered list of Authorized Users, their signatures, titles and the date they agreed.to be bound by the
terms of this DUA, at all times and supply it to HHS, as directed, upon request.
(V) CONTRACTOR will implement, update as necessary, and document reasonable and
appropriate policies and procedures for privacy, security and Breach of Confidential Information and an
incident response plan for an Event or Breach, to comply with the privacy, security and breach notice
requirements of this DUA prior to conducting work under the DUA. 45 CFR 164.308; 164.316;
164.514(d);164.530(i)(1)
(W) CONTRACTOR will produce copies of its information security and privacy policies and
procedures and records relating to the use or disclosure of Confidential Information received from,
created by, or received, used or disclosed by CONTRACTOR on behalf of HHS for HHS's review and
approval within 30 days of execution of this DUA and upon request by HHS the following business day
or other agreed upon time frame. 45 CFR 164.308;164.514(d)
(X) CONTRACTOR will make available to HHS any information HHS requires to fulfill HHS's
obligations to provide access to, or copies of,PHI in accordance with HIPAA and other applicable laws and
regulations relating to Confidential Information. CONTRACTOR will provide such information in a time
and manner reasonably agreed upon or as designated by the Secretary, or other federal or state law. 45 CFR
164 504(e)(2)(i)(I)
(Y) CONTRACTOR will only conduct secure transmissions of Confidential Information
whether in paper,oral or electronic form. A secure transmission of electronic Confidential Information in
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HHS Cc;r;act No.
motion includes secure File Transfer Protocol (SFTP) or Encryption at an appropriate level or otherwise
protected as required by rule,regulation or law.HHS Confidential Information at rest requires Encryption
unless there is adequate administrative, technical, and physical security, or as otherwise protected as
required by rule, regulation or law. All electronic data transfer and communications of Confidential
Information will be through secure systems. Proof of system, media or device security and/or Encryption
must be produced to HHS no later than 48 hours after HHS's written request in response to a compliance
investigation, audit or the Discovery of an Event or Breach. Otherwise, requested production of such
proof will be made as agreed upon by the parties. De-identification of HHS Confidential Information is
a means of security. With respect to de-identification of PHI, "secure" means de-identified according to
HIPAA Privacy standards and regulatory guidance. 45 CFR 164.312;164.530(d)
(Z) CONTRACTOR will comply with the following laws and standards if applicable to the type of
Confidential Information and Contractor's Authorized Purpose:
• Title 1,Part 10,Chapter 202, Subchapter B,Texas Administrative Code;
• The Privacy Act of 1974;
• OMB Memorandum 07-16;
• The Federal Information Security Management Act of 2002(FISMA);
• The Health Insurance Portability and Accountability Act of 1996 (HIPAA) as defined in the
DUA;
• Internal Revenue Publication 1075 —Tax Information Security Guidelines for Federal, State
and Local Agencies;
• National Institute of Standards and Technology (NIST) Special Publication 800-66 Revision
1 —An Introductory Resource Guide for Implementing the Health Insurance Portability and
Accountability Act(HIPAA) Security Rule;
• NIST Special Publications 800-53 and 800-53A — Recommended Security Controls for
Federal Information Systems and Organizations,as currently revised;
• NIST Special Publication 800-47 — Security Guide for Interconnecting Information
Technology Systems;
• NIST Special Publication 800-88,Guidelines for Media Sanitization;
• NIST Special Publication 800-111, Guide to Storage of Encryption Technologies for End
User Devices containing PHI; and
• Any other State or Federal law, regulation, or administrative rule relating to the specific HHS
program area that CONTRACTOR supports on behalf of HHS.
ARTICLE 4. BREACH NOTICE,REPORTING AND CORRECTION REQUIREMENTS
Section 4.01. Breach or Event Notification to HHS. 45 CFR 164.400-414
(A) CONTRACTOR will cooperate fully with HHS in investigating, mitigating to the extent
practicable and issuing notifications directed by HHS, for any Event or Breach of Confidential
Information to the extent and in the manner determined by HHS.
(B) CONTRACTOR'S obligation begins at the Discovery of an Event or Breach and
continues as long as related activity continues, until all effects of the Event are mitigated to
HHS's satisfaction(the"incident response period").45 CFR 164.404
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!S Contras -NC 0..r Vii i
(C) Breach Notice:
1. Initial Notice.
a. For federal information, including without limitation, Federal Tax Information, Social Security
Administration Data, and Medicaid Client Information, within the first, consecutive clock hour
of Discovery, and for all other types of Confidential Information not more than 24 hours after
Discovery, or in a timeframe otherwise approved by HHS in writing, initially report to HHS's
Privacy and Security Officers via email at: privacy@HHSC.state.tx.us and to the HHS division
responsible for this DUA; and IRS Publication 1075; Privacy Act of 1974, as amended by the
Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. §552a; OMB Memorandum
07-16 as cited in HHSC-CMS Contracts for information exchange.
b. Report all information reasonably available to CONTRACTOR about the Event or Breach of
the privacy or security of Confidential Information. 45 CFR 164.410
c. Name, and provide contact information to HHS for, CONTRACTOR's single point of contact
who will communicate with HHS both on and off business hours during the incident response
period.
2. 48-Hour Formal Notice. No later than 48 consecutive clock hours after Discovery, or a
time within which Discovery reasonably should have been made by CONTRACTOR of an Event
or Breach of Confidential Information, provide formal notification to the State, including all
reasonably available information about the Event or Breach, and CONTRACTOR's investigation,
including without limitation and to the extent available: For(a)- (m) below: 45 CFR 164.400-
414
a.The date the Event or Breach occurred;
b.The date of CONTRACTOR's and,if applicable, Subcontractor's Discovery;
c. A brief description of the Event or Breach; including how it occurred and who is responsible
(or hypotheses, if not yet determined);
d.A brief description of CONTRACTOR's investigation and the status of the investigation;
e. A description of the types and amount of Confidential Information involved;
f. Identification of and number of all Individuals reasonably believed to be affected, including
first and last name of the individual and if applicable the, Legally authorized representative, last
known address, age, telephone number, and email address if it is a preferred contact method, to
the extent known or can be reasonably determined by CONTRACTOR at that time;
g. CONTRACTOR's initial risk assessment of the Event or Breach demonstrating whether
individual or other notices are_required by applicable law or this DUA for HHS approval,
including an analysis of whether there is a low probability of compromise of the Confidential
Information or whether any legal exceptions to notification apply;
h. CONTRACTOR's recommendation for HHS's approval as to the steps Individuals and/or
CONTRACTOR on behalf of Individuals, should take to protect the Individuals from potential
harm,including without limitation CONTRACTOR's provision of notifications, credit protection,
claims monitoring, and any specific protections for a Legally Authorized Representative to take
on behalf of an Individual with special capacity or circumstances;
i. The steps CONTRACTOR has taken to mitigate the harm or potential harm caused (including
without limitation the provision of sufficient resources to mitigate);
HHS Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1,2015
Page 7 of 11
_Or[ t: 2)it)-,
j. The steps CONTRACTOR has taken, or will take, to prevent or reduce the likelihood of
recurrence of a similar Event or Breach;
k. Identify, describe or estimate of the Persons, Workforce, Subcontractor,or Individuals and any
law enforcement that may be involved in the Event or Breach;
1. A reasonable schedule for CONTRACTOR to provide regular updates to the foregoing in the
future for response to the Event or Breach, but no less than every three (3) business days or as
otherwise directed by HHS, including information about risk estimations, reporting, notification,
if any, mitigation, corrective action, root cause analysis and when such activities are expected to
be completed;and
m. Any reasonably available, pertinent information, documents or reports related to an Event or
Breach that HHS requests following Discovery.
Section 4.02 Investigation,Response and Mitigation. For A-F below: 45 CFR 169.308,310
and 312; 164.530
(A) CONTRACTOR will immediately conduct a full and complete investigation, respond to
the Event or Breach, commit necessary and appropriate staff and resources to expeditiously
respond, and report as required to and by HHS for incident response purposes and for purposes of
HHS's compliance with report and notification requirements,to the satisfaction of HHS.
(B) CONTRACTOR will complete or participate in a risk assessment as directed by HHS
following an Event or Breach, and provide the final assessment, corrective actions and
mitigations to HHS for review and approval.
(C) CONTRACTOR will fully cooperate with HHS to respond to inquiries and/or
proceedings by state and federal authorities, Persons and/or Individuals about the Event or
Breach.
(D) CONTRACTOR will fully cooperate with HHS's efforts to seek appropriate injunctive
relief or otherwise prevent or curtail such Event or Breach, or to recover or protect any
Confidential Information, including complying with reasonable corrective action or measures, as
specified by HHS in a Corrective Action Plan if directed by HHS under the Base Contract.
Section 4.03 Breach Notification to Individuals and Reporting to Authorities. Tex. Bus. &
Comm. Code§521.053;45 CFR 164.404(Individuals), 164.406(Media);164.408(Authorities)
(A) HHS may direct CONTRACTOR to provide Breach notification to Individuals,
regulators or third-parties,as specified by HHS following a Breach.
(B) CONTRACTOR must obtain HHS's prior written approval of the time, manner and
content of any notification to Individuals, regulators or third-parties, or any notice required by
other state or federal authorities. Notice letters will be in CONTRACTOR's name and on
CONTRACTOR's letterhead, unless otherwise directed by HHS, and will contain contact
information, including the name and title of CONTRACTOR's representative, an email address
and a toll-free telephone number,for the Individual to obtain additional information.
(C) CONTRACTOR will provide HHS with copies of distributed and approved
communications.
(D) CONTRACTOR will have the burden of demonstrating to the satisfaction of HHS that
any notification required by HHS was timely made. If there are delays outside of
HHS Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1,2015
Page 8 of 11
Hi 1S Contcr o C-i
CONTRACTOR's control, CONTRACTOR will provide written documentation of the reasons
for the delay.
(E) If HHS delegates notice requirements to CONTRACTOR, HHS shall, in the time and
manner reasonably requested by CONTRACTOR, cooperate and assist with CONTRACTOR's
information requests in order to make such notifications and reports.
ARTICLE 5. SCOPE OF WORK
Scope of Work means the services and deliverables to be performed or provided by
CONTRACTOR,or on behalf of CONTRACTOR by its Subcontractors or agents for HHS that are described
in detail in the Base Contract. The Scope of Work,including any future amendments thereto,is incorporated
by reference in this DUA as if set out word-for-word herein.
ARTICLE 6. GENERAL PROVISIONS
Section 6.01 Ownership of Confidential Information
CONTRACTOR acknowledges and agrees that the Confidential Information is and will remain the
property of HHS. CONTRACTOR agrees it acquires no title or rights to the Confidential Information.
Section 6.02 HHS Commitment and Obligations
HHS will not request CONTRACTOR to create, maintain, transmit, use or disclose PHI in any manner
that would not be permissible under applicable law if done by HHS.
Section 6.03 HHS Right to Inspection
At any time upon reasonable notice to CONTRACTOR, or if HHS determines that CONTRACTOR
has violated this DUA,HHS,directly or through its agent,will have the right to inspect the facilities,systems,
books and records of CONTRACTOR to monitor compliance with this DUA. For purposes of this
subsection,HHS's agent(s)include,without limitation,the HHS Office of the Inspector General or the Office
of the Attorney General of Texas,outside consultants or legal counsel or other designee.
Section 6.04 Term; Termination of DUA;Survival
This DUA will be effective contemporaneously with the Base Contract, and will terminate upon
termination of the Base Contract and as set forth herein . If the Base Contract is extended or amended,this
DUA is updated automatically concurrent with such extension or amendment.
(A) HHS may immediately terminate this DUA and Base Contract upon a material violation
of this DUA.
(B) Termination or Expiration of this DUA will not relieve CONTRACTOR of its obligation
to return or Destroy the Confidential Information as set forth in this DUA and to continue to safeguard the
Confidential Information until such time as determined by HHS.
(D) If HHS determines that CONTRACTOR has violated a material term of this DUA; HHS
may in its sole discretion:
1. Exercise any of its rights including but not limited to reports, access and inspection under
this DUA and/or the Base Contract; or
HHS Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1,2015
Page 9 of 11
2. Require CONTRACTOR to submit to a corrective action plan, including a plan for
monitoring and plan for reporting, as HHS may determine necessary to maintain compliance with
this DUA; or
3. Provide CONTRACTOR with a reasonable period to cure the violation as determined
by HHS; or
4. Terminate the DUA and Base Contract immediately, and seek relief in a court of
competent jurisdiction in Travis County,Texas.
Before exercising any of these options, HHS will provide written notice to CONTRACTOR
describing the violation and the action it intends to take.
(E) If neither termination nor cure is feasible, HHS shall report the violation to the Secretary.
(F) The duties of CONTRACTOR or its Subcontractor under this DUA survive the expiration or
termination of this DUA until all the Confidential Information is Destroyed or returned to HHS, as
required by this DUA.
Section 6.05 Governing Law, Venue and Litigation
(A) The validity, construction and performance of this DUA and the legal relations among the
Parties to this DUA will be governed by and construed in accordance with the laws of the State of Texas.
(B) The Parties agree that the courts of Travis County, Texas, will be the exclusive venue for
any litigation, special proceeding or other proceeding as between the parties that may be brought, or arise
out of, or in connection with, or by reason of this DUA.
Section 6.06 Injunctive Relief
(A) CONTRACTOR acknowledges and agrees that HHS may suffer irreparable injury if
CONTRACTOR or its Subcontractor fails to comply with any of the terms of this DUA with respect to
the Confidential Information or a provision of HIPAA or other laws or regulations applicable to
Confidential Information.
(B) CONTRACTOR further agrees that monetary damages may be inadequate to compensate
HHS for CONTRACTOR's or its Subcontractor's failure to comply. Accordingly, CONTRACTOR
agrees that HHS will, in addition to any other remedies available to it at law or in equity, be entitled to
seek injunctive relief without posting a bond and without the necessity of demonstrating actual damages,
to enforce the terms of this DUA.
Section 6.07 Indemnification
To the extent permitted by law, CONTRACTOR will indemnify, defend and hold harmless HHS and its
respective Executive Commissioner,employees, Subcontractors,agents(including other state agencies acting
on behalf of HHS) or other members of its Workforce (each of the foregoing hereinafter referred to as
"Indemnified Party") against all actual and direct losses suffered by the Indemnified Party and all liability to
third parties arising from or in connection with any breach of this DUA or from any acts or omissions related
to this DUA by CONTRACTOR or its employees, directors, officers, Subcontractors, or agents or other
members of its Workforce. The duty to indemnify, defend and hold harmless is independent of the duty to
insure and continues to apply even in the event insurance coverage required, if any, in the DUA or Base
Contract is denied,or coverage rights are reserved by any insurance carrier. Upon demand,CONTRACTOR
will reimburse HHS for any and all losses,liabilities,lost profits,fines,penalties,costs or expenses(including
reasonable attorneys' fees)which may for any reason be imposed upon any Indemnified Party by reason of
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LIP-)Contract No. . ;,''1 i) + U I
any suit, claim, action, proceeding or demand by any third party to the extent caused by and which results
from the CONTRACTOR's failure to meet any of its obligations under this DUA. To the extent permitted by
law, CONTRACTOR's obligation to defend, indemnify and hold harmless any Indemnified Party will
survive the expiration or termination of this DUA.
Section 6.08 Insurance
(A) CONTRACTOR represents and warrants that it maintains either self-insurance or
commercial insurancewith policy limits sufficient to cover any liability arising from any acts or omissions
by CONTRACTOR or its employees, directors, officers, Subcontractors, or agents or other members of its
Workforce under this DUA. CONTRACTOR warrants that HHS will be a loss payee and beneficiary for any
such claims. .
(B) CONTRACTOR will provide HHS with written proof that required insurance coverage is
in effect,at the request of HHS.
Section 6.09 Fees and Costs
Except as otherwise specified in this DUA or the Base Contract, including but not limited to
requirements to insure and/or indemnify HHS, if any legal action or other proceeding is brought for the
enforcement of this DUA, or because of an alleged dispute, contract violation, Event. Breach, default,
misrepresentation,or injunctive action,in connection with any of the provisions of this DUA,each party will
bear their own legal expenses and the other cost incurred in that action or proceeding.
Section 6.10 Entirety of the Contract
This Data Use Agreement is incorporated by reference into the Base Contract and,together with the
Base Contract, constitutes the entire agreement between the parties. No change, waiver, or discharge of
obligations arising under those documents will be valid unless in writing and executed by the party against
whom such change,waiver,or discharge is sought to be enforced.
Section 6.11 Automatic Amendment and Interpretation
Upon the effective date of any amendment or issuance of additional regulations to HIPAA, or any
other law applicable to Confidential Information, this DUA will automatically be amended so that the
obligations imposed on HHS and/or CONTRACTOR remain in compliance with such requirements. Any
ambiguity in this DUA will be resolved in favor of a meaning that permits HHS and CONTRACTOR to
comply with HIPAA or any other law applicable to Confidential Information.
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Page 11 of 11
ATTACHMENT 1. SUBCONTRACTOR AGREEMENT FORM
HHS CONTRACT NUMBER
The DUA between HHS and CONTRACTOR establishes the permitted and required uses and disclosures
of Confidential Information by CONTRACTOR.
CONTRACTOR has subcontracted with
(SUBCONTRACTOR)for performance of duties on behalf of CONTRACTOR which are subject to the
DUA. SUBCONTRACTOR acknowledges,understands and agrees to be bound by the identical terms
and conditions applicable to CONTRACTOR under the DUA, incorporated by reference in this
Agreement,with respect to HHS Confidential Information. CONTRACTOR and SUBCONTRACTOR
agree that HHS is a third-party beneficiary to applicable provisions of the subcontract.
HHS has the right but not the obligation to review or approve the terms and conditions of the subcontract
by virtue of this Subcontractor Agreement Form.
CONTRACTOR and SUBCONTRACTOR assure HHS that any Breach or Event as defined by the DUA
that SUBCONTRACTOR Discovers will be reported to HHS by CONTRACTOR in the time,manner
and content required by the DUA.
If CONTRACTOR knows or should have known in the exercise of reasonable diligence of a pattern of
activity or practice by SUBCONTRACTOR that constitutes a material breach or violation of the DUA or
the SUBCONTRACTOR's obligations CONTRACTOR will:
1. Take reasonable steps to cure the violation or end the violation,as applicable;
2. If the steps are unsuccessful,terminate the contract or arrangement with SUBCONTRACTOR, if
feasible;
3. Notify HHS immediately upon reasonably discovery of the pattern of activity or practice of
SUBCONTRACTOR that constitutes a material breach or violation of the DUA and keep HHS
reasonably and regularly informed about steps CONTRACTOR is taking to cure or end the
violation or terminate SUBCONTACTOR's contract or arrangement.
This Subcontractor Agreement Form is executed by the parties in their capacities indicated below.
CONTRACTOR SUBCONTRACTOR
BY: BY:
NAME: NAME:
TITLE: TITLE:
DATE ,201 . DATE:
HHS Data Use Agreement V.8.3 HIPAA Omnibus Compliant April 1,2015
GOVERNMENTAL ENTITY VERSION
Attachment 1 -Subcontractor Agreement Form
ATTACHMENT E
NON-EXCLUSIVE LIST OF APPLICABLE LAWS
1. Contractor shall comply with all applicable federal and state laws, rules,regulations,
standards, and guidelines in effect on the beginning date of this Attachment as amended,
including, but not limited to:
1) Uniform Federal Assistance Regulations, 7 CFR Parts 15, 15a, 15b,246,248,
3016, 3017 and 3018;
2) WIC Program and Farmers' Market Nutrition Program Rules, 25 Texas
Administrative Code, §§ 31.11-31.37; and
3) Child Nutrition Act of 1966, as amended, 42 USC 1786.
2. The following documents are incorporated by reference and made a part of this Program
Attachment:
1. DSHS Standards for Public Health Clinic Services,revised August 2004, or latest
revision;
2. USDA Food and Nutrition Service(FNS) Guidelines;
3. USDA FNS Instructions issued under the FNS Directives Management System;
4. Current WIC Policy and Procedures Manual; and
5. Contractor's Plan to Allocated Direct Costs (PADC) as approved by the DSHS
WIC Program.
3. Within thirty(30) days of receipt of an amended standard(s) or guideline(s) listed above,
Contractor shall inform DSHS, in writing, if it shall not continue performance under this
Program Attachment in compliance with the amended standard(s) or guideline(s). DSHS may
terminate the Program Attachment immediately or within a reasonable period of time as
determined by DSHS.
4. Contractor is responsible for reviewing and complying with all applicable statutes, rules,
regulations, executive orders and policies. To the extent applicable to Contractor, Contractor
shall comply with the following:
a. Statutes, rules, regulations, and DSHS policy (and any of their subsequent amendments)
that collectively prohibit discrimination, exclusion from or limitation of participation in
programs, benefits or activities or denial of any aid, care, service or other benefit on the
basis of race, color, national origin, limited English proficiency, sex, sexual orientation
(where applicable), disabilities, age, substance abuse,political belief or religion:
1. Title VI of the Civil Rights Act of 1964, 42 USC §§ 2000d et seq.;
2. Title IX of the Education Amendments of 1972, 20 USC §§ 1681-1683, and
1685-1686;
3. Section 504 of the Rehabilitation Act of 1973,29 USC § 794(a);
4. Americans with Disabilities Act of 1990, 42 USC §§ 12101 et seq.;
5. Age Discrimination Act of 1975, 42 USC §§6101-6107;
6. Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
DSHS Contract No. 2016-048774-001
Attachment E-Page 1
ATTACHMENT E
NON-EXCLUSIVE LIST OF APPLICABLE LAWS
Rehabilitation Act of 1970, 42 USC § 290dd (b)(1); 7) 45 CFR Parts 80,
84, 86 and 91;
7. U.S. Department of Labor,Equal Employment Opportunity E.O. 11246;
8. Tex. Labor Code Chapter 21;
9. Food Stamp Act of 1977 (7 USC §§ 2011 et seq.);
10. Executive Order 13279, 45 CFR Part 87 or 7 CFR Part 16
regarding equal treatment and opportunity for religious
organizations;
11. Drug Abuse Office and Treatment Act of 1972, 21 USC §§ 1101 et seq.,
relating to drug abuse;
12. Public Health Service Act of 1912, §§ 523 and 527, 42 USC § 290dd-2,
and 42 CFR pt. 2, relating to confidentiality of alcohol and drug abuse
patient records;
13. Title VIII of the Civil Rights Act of 1968, 42 USC §§ 3601 et seq., relating to
nondiscrimination in
housing; and
14. DSHS Policy AA-5018,Non-discrimination Policy for DSHS Programs;
b. Immigration Reform and Control Act of 1986, 8 USC § 1324a, and Immigration Act of
1990, 8 USC 1101 et seq., as amended by Public Law113-4 (March 7, 2013), regarding
employment verification; and
Illegal Immigration Reform and Immigrant Responsibility Act of 1996;
c. Pro-Children Act of 1994, 20 USC §§ 6081-6084, and the Pro-Children Act of 2001,
20 USC § 7183, regarding the non-use of all tobacco products;
d. National Research Service Award Act of 1971, 42 USC §§ 289a-1 et seq., and 6601 (P.L.
93-348 and
P.L. 103-43), regarding human subjects involved in research;
e. Hatch Political Activity Act, 5 USC §§ 1501-1508 and 7324-26, which limits the
political activity of employees whose employment is funded with federal funds;
f. Fair Labor Standards Act, 29 USC §§ 201 et seq., and the Intergovernmental Personnel
Act of 1970, 42 USC §§ 4701 et seq., as applicable, concerning minimum wage and
maximum hours;
g. Texas Government Code Chapter 469 pertaining to eliminating architectural barriers
for persons with disabilities;
h. Texas Workers' Compensation Act, Texas Labor Code Chapters 401-406, and 28 Texas
Administrative
Code (TAC)pt.2,regarding compensation for employees' injuries;
i. The Clinical Laboratory Improvement Amendments of 1988,42 USC §263a,regarding
the regulation and certification of clinical laboratories;
j. The Occupational Safety and Health Administration Regulations on Blood Borne
Pathogens, 29 CFR §
1910.1030, or Title 25 Tex. Admin Code Chapter 96 regarding safety standards
for handling blood borne pathogens;
k. Laboratory Animal Welfare Act of 1966, 7 USC §§ 2131 et seq., pertaining to the
treatment of
laboratory animals;
I. Environmental standards pursuant to the following:
1. Institution of environmental quality control measures under the National
Environmental Policy Act of 1969, 42 USC §§ 4321-4347 and Executive
DSHS Contract No. 2016-048774-001
Attachment E-Page 2
ATTACHMENT E
NON-EXCLUSIVE LIST OF APPLICABLE LAWS
Order 11514 (35 Fed. Reg. 4247), "Protection and Enhancement of
Environmental Quality;" Notification of violating facilities pursuant to
Executive Order 11738 (40 CFR Part 32),"Providing for Administration of
the Clean Air Act and the Federal Water Pollution Control Act with respect
to Federal Contracts, Grants, or Loans;"
2. Protection of wetlands pursuant to Executive Order 11990, 42 Fed. Reg.
26961;
3. Evaluation of flood hazards in floodplains in accordance with Executive Order
11988, 42 Fed.Reg.
26951 and, if applicable, flood insurance purchase requirements of
Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93-
234);
4. Assurance of project consistency with the approved State Management
program developed under the Coastal Zone Management Act of 1972, 16
USC §§ 1451 et seq.;
5. Federal Water Pollution Control Act, 33 USC §§ 1251 et seq.;
6. Protection of underground sources of drinking water under the Safe Drinking
Water Act of 1974,42 USC §§ 300f-300j;
7. Protection of endangered species under the Endangered Species Act of
1973, 16 USC §§ 1531 et seq.;
8. Conformity of federal actions to state clean air implementation plans
under the Clean Air Act of 1955, 42 USC§§7401 et seq.;
9. Wild and Scenic Rivers Act of 1968, 16 USC §§ 1271 et seq., related to
protecting certain river systems; and
m. Lead-Based Paint Poisoning Prevention Act, 42 USC §§ 4821 et seq., prohibiting the use
of lead-based
paint in residential construction or rehabilitation;
n. Intergovernmental Personnel Act of 1970, 42 USC §§ 4278-4763, regarding
personnel merit systems for programs specified in Appendix A of the federal
Office of Program Management's
Standards for a Merit System of Personnel Administration, 5 CFR Part1200 et seq;
o. Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of, 42 USC §§4601 et seq (PL 91-646), relating to fair treatment of persons
displaced or whose property is
acquired as a result of Federal or federally-assisted programs;
p. Davis-Bacon Act,40 USC §§ 3141-3148;
q. Copeland Act,40 USC §§276c and 18 USC § 874;
r. Contract Work Hours and Safety Standards Act, 40 USC § 3702 et seq., regarding
labor standards for federally-assisted construction subagreements;
s. National Historic Preservation Act of 1966, § 106, 16 USC § 470; Executive Order 11593;
and the
Archaeological and Historic Preservation Act of 1974(16 USC §§ 469a-1 et seq.)
regarding historic property to the extent necessary to assist DSHS in complying
with the Acts;
t. Trafficking Victims Protection Act of 2000, Section 106(g) (22 USC § 7104);
u. Executive Order 13513 (Oct. 1, 2009), Federal Leadership on Reducing Text Messaging
While Driving, October 1,2009, if required by a federal funding source of this Contract;
v. Whistleblower Protection Enhancement Act (5 U.S.C. 2302(b)(8)) and Texas
DSHS Contract No. 2016-048774-001
Attachment E-Page 3
ATTACHMENT E
NON-EXCLUSIVE LIST OF APPLICABLE LAWS
Whistleblower Act(Tex.
Gov. Code Chapter 554); and
w. Requirements of any other applicable state and federal statutes, executive orders,
regulations, rules and policies.
5. Where applicable, federal statutes and regulations, including federal grant requirements
applicable to funding sources, will apply to this Contract. Contractor agrees to comply with
applicable laws, executive orders, regulations and policies, as well as Office of Management
and Budget(OMB) Circulars (as codified in Title 2 of the Code of Federal Regulations), the
Uniform Grant and Contract Management Act of 1981 (UGMA), Tex. Gov. Code Chapter
783, and Uniform Grant Management Standards (UGMS), as revised by federal circulars
and incorporated in UGMS by the Comptroller of Public Accounts, Texas Procurement and
Support Services Division. UGMA and UGMS can be located through web links on the
DSHS website at http::''\vww.dshs.state.tx.us/contracts/links.shtm.
DSHS Contract No. 2016-048774-001
Attachment E-Page 4
. ;SP's F .%
\i F\
�, TEXAS DEPARTMENT OF STATE HEALTH SERVICES
r:
CERTIFICATION REGARDING LOBBYING
CERTIFICATION FOR CONTRACTS,GRANTS,LOANS AND COOPERATIVE
AGREEMENTS
The undersigned certifies,to the best of his or her knowledge and belief that:
(1) No federal appropriated funds have been paid or will be paid,by or on behalf of the undersigned,to
any person for influencing or attempting to influence an officer or an employee of any agency, a
member of Congress,an officer or employee of Congress,or an employee of a member of Congress in
connection with the awarding of any federal contract,the making of any federal grant,the making of
any federal loan, the entering into of any cooperative agreement, and the extension, continuation,
renewal,amendment,or modification of any federal contract,grant,loan,or cooperative agreement.
(2) If any funds other than federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency,a member of Congress,
an officer or employee of Congress,or an employee of a member of Congress in connection with this
federal contract, grant. loan, or cooperative agreement, the undersigned shall complete and submit
Standard Form LLL,"Disclosure Form to Report Lobbying,"in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers(including subcontracts,subgrants,and contracts under grants,
loans and cooperative agreements)and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction
was made or entered into. Submission of this certification is a prerequisite for making or entering into this
transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required
certification shall be subject to a civil penalty of not less that$10,000 and not more than$100,000 for each
such failure.
Signature Date
Print Name of Authorized Individual
2016-048774-001
Application or Contract Number
CITY OF PORT ARTHUR
Organization Name
CSCU#EF29-12374-Revised 08.10.07
Fiscal Federal Funding Accountability and Transparency Act
(FFATA) CERTIFICATION
For Fiscal Year (FY16)
The certifications enumerated below represent material facts upon which DSHS relies when reporting
information to the federal government required under federal law. If the Department later determines
that the Contractor knowingly rendered an erroneous certification, DSHS may pursue all available
remedies in accordance with Texas and U.S. law. Signor further agrees that it will provide immediate
written notice to DSHS if at any time Signor learns that any of the certifications provided for below were
erroneous when submitted or have since become erroneous by reason of changed circumstances. If the
Signor cannot certify all of the statements contained in this section, Signor must provide written
notice to DSHS detailing which of the below statements it cannot certify and why.
Legal Name of Contractor: City of Port Arthur FFATA Contact#1 Name, Email and Phone Number:
Bernadine Crockett, WIC Director
bernadine.crockett@portarthurtx.gov
(409) 983-8845
Primary Address of Contractor: FFATA Contact#2 Name, Email and Phone Number:
449 Austin Avenue Jerry Dale, Interim Finance Director
Port Arthur, Texas jerry.dale@portarthurtx.gov
(409) 983-8174
ZIP Code:9-digits Required www.usps.com DUNS Number: 9-digits Required www.ccr.gov
7 7 6 4 0 - 5 8 0 2 1 3 7 1 3 4 9 0 9
State of Texas Comptroller Vendor Identification Number (VIN) 14 Digits
Printed Name of Authorized Representative Signature of Authorized Representative
Brian McDougal,
Title of Authorized Representative Date
City Manager
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Department of State Health Services Form 4734—June 2012
Fiscal Federal Funding Accountability and Transparency Act
(FFATA) CERTIFICATION
For Fiscal Year (FY16)
As the duly authorized representative (Signor) of the Contractor, I hereby certify that
the statements made by me in this certification form are true, complete and correct to
the best of my knowledge.
Did your organization have a gross income, from all sources, of less than $300,000 in
your previous tax year? Yes [No
If your answer is "Yes", skip questions "A", "B", and "C" and finish the certification.
If your answer is "No", answer questions "A" and "B".
A. Certification Regarding% of Annual Gross from Federal Awards.
Did your organization receive 80% or more of its annual gross revenue from federal
awards during the preceding fiscal year? I Yes [No
B. Certification Regarding Amount of Annual Gross from Federal Awards.
Did your organization receive $25 million or more in annual gross revenues from federal
awards in the preceding fiscal year? I I Yes [ No
If your answer is "Yes" to both question "A" and "B", you must answer question "C".
If your answer is "No" to either question "A" or "B", skip question "C" and finish the
certification.
C. Certification Regarding Public Access to Compensation Information.
Does the public have access to information about the compensation of the senior
executives in your business or organization (including parent organization, all branches,
and all affiliates worldwide) through periodic reports filed under section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the
Internal Revenue Code of 1986? Yes I I No
If your answer is "Yes"to this question,where can this information be accessed?
If your answer is "No" to this question, you must provide the names and total
compensation of the top five highly compensated officers below.
For example:
John Blum:500000;Mary Redd:50000;Eric Gant:400000;Todd Platt:300000;
Sally Tom:300000
Provide compensation information here:
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Department of State Health Services Form 4734—June 2012