CALIFORNIA PRISON HEALTH CARE RECEIVERSHIP CORPORATION OFFICE OF THE

CALIFORNIA PRISON HEALTH CARE RECEIVERSHIP CORPORATION OFFICE OF THE RECEIVER REQUEST FOR PROPOSAL PER DIEM MEDICAL TRANSCRIPTION SERVICES November 3, 2008 PROPOSALS DUE: 5:00 p.m., December 5, 2008 SUBMITTAL PACKAGE SHOULD BE ADDRESSED TO: Jamie Mangrum Chief Information Officer 501 J. Street PO Box 4038 Sacramento, CA 95812-4038 Jamie.Mangru@CDCR.CA.gov CONTACT FOR QUESTIONS: Sandra M. Hirsch Sandra.Hirsch@CDCR.CA.gov 2017949.2 CALIFORNIA PRISON HEALTH CARE RECEIVERSHIP CORPORATION OFFICE OF THE RECEIVER REQUEST FOR PROPOSAL For: Per Diem Medical and Mental Health Transcription Services Date: November 7, 2008 You are invited to review and respond to this Request for Proposal (RFP) for per diem medical and mental health transcription services. To submit an proposal for these goods and/or services, you must comply with the instructions contained in this document as well as the requirements stated in the State’s Scope of Work (SOW), Exhibit A. By submitting a proposal, your firm agrees to the terms and conditions stated in this RFP. Read the attached document carefully. The RFP due date is: Friday, December 5, 2008. Responses to this RFP and any required copies must be submitted by electronic mail, clearly labeled to the department contact noted below. Department Contact: Jamie Mangrum, CIO Jamie.Mangru@CDCR.CA.gov 2017949.2Per Diem Transcription Services RFP Page 2 Contents General Information.................................................................................................................................... 4 Request .................................................................................................................................................... 4 Background and Purpose of the RFP.................................................................................................. 4 RFP Response Requirements .............................................................................................................. 5 Format .................................................................................................................................................. 5 Contents ............................................................................................................................................... 5 Review of Proposals for Award ............................................................................................................ 6 Evaluation Criteria .................................................................................................................................. 6 Key Dates ................................................................................................................................................ 7 General Rules ......................................................................................................................................... 7 Reservation of Rights ............................................................................................................................. 7 Exhibit A ....................................................................................................................................................... 9 Scope of Services ....................................................................................................................................... 9 Scope ....................................................................................................................................................... 9 California Prison Healthcare Receivership’s Responsibilities ......................................................... 9 Contractor’s Basic Service Requirements ........................................................................................10 Quality Assurance Monitoring .............................................................................................................10 Information Technology .......................................................................................................................10 Document Storage................................................................................................................................10 Exhibit B .....................................................................................................................................................11 Cost Worksheet ........................................................................................................................................11 Pricing.....................................................................................................................................................11 Invoice Terms ........................................................................................................................................11 Exhibit C .....................................................................................................................................................12 Form Transcription Services Agreement ..............................................................................................12 Exhibit D………………………………………………………………………………………………….22 2017949.2Per Diem Transcription Services RFP Page 3 General Information Request The Receiver of the California Department of Corrections and Rehabilitation’s ("CDCR") prison medical system is requesting proposals for per diem medical and mental health transcription services. The selected vendor will be engaged to provide as needed transcription services to all CDCR facilities. The contract awarded by the Receiver will be with either the California Prison Health Care Receivership Corporation ("CPR") or the CDCR. Background and Purpose of the RFP As a result of the State of California’s ongoing failure to provide medical care to prison inmates at constitutionally acceptable levels, the United States District Court for the Northern District of California has established the CPR to assume the executive management of the California prison medical system and raise the level of care up to constitutional standards. On February 14, 2006, the Court appointed Clark Kelso to serve as the Receiver and granted him, among other powers, the authority to exercise all powers vested by law in the Secretary of the CDCR as they relate to the administration, control, management, operation, and financing of the California prison medical health care system. CDCR currently delivers healthcare services to over 175,000 inmate-patients in thirty-three institutions throughout the State. The scope of the healthcare mission includes dental care, primary care, acute and urgent care, chronic care management, long-term care, hemodialysis, physical therapy and rehabilitation, and infirmary-level care. Cases requiring specialty consultation or complex management are seen remotely by telemedicine or are referred to neighboring medical/dental offices or hospitals. A functioning healthcare system like CDCR’s also entails ancillary services such as enterprise imaging, clinical laboratory services, and health records management. Until recently, healthcare operations in the thirty-three institutions were confined to silos, with no central planning, management, or oversight of services. Consequently, each institution has been responsible for managing its own clinical dictation and transcription services. The Receiver is seeking to make the management of these essential services more effective and more efficient. The Receiver has recently engaged a consultant to assess the precise scope and nature of existing transcription services in each of the 33 prisons. CDCR appears to employ 98 full-time, on-site medical transcribers with approximately 36 additional unfilled positions. Only one facility (San Quentin) outsources medical transcription. Their volume is approximately 59,000 lines of transcription per month, comprising approximately 1200 documents. Other facilities had been unable to provide precise documentation as to their usage of dictation and transcription, but have reported their average number of monthly documents transcribed as anywhere between 9 and 850. There are a number of prisons where the backlog of dictated but not transcribed reports extends back weeks to months. The assessment of current practices for dictation and transcription at 33 adult health care facilities found substantial variability in dictation and transcription utilization and management. Currently, CDCR clinicians are dictating only approximately 30% of healthcare documents potentially amenable to transcription. Part of the reason for this includes inadequate or no dictation equipment and lack of qualified personnel. The CPR has recently embarked on a project to implement a staffed and fully operational centralized medical transcription department where medical and mental health documentation is dictated and transcribed at a central location for all 33 California state prisons. The project plan includes relocating CDCR medical and mental health transcribers, or identifying facility positions for staff that do not wish to 2017949.2Per Diem Transcription Services RFP Page 4 relocate. A major risk identified with this centralization project is a backlog of dictation during the implementation phase, which will be addressed by the services described in this RFP. The State’s Scope of Work, the Cost Worksheet and a Form Transcription Services Agreement are attached to this RFP as Exhibits A, B, and C, respectively. RFP Response Requirements Format Proposals should be clear, concise, complete, well organized and demonstrate both respondent’s qualifications and its ability to follow instructions. The respondent must submit electronically to the CPR contact name and address contained on the cover sheet to this RFP. All documents must be in PDF format. Pages must be numbered. All respondents are requested to follow the order and format specified below. Please tab each section of the submittal to correspond to the numbers/headers shown below. Respondents are advised to adhere to submittal requirements. Failure to comply with the instructions of this RFP may be cause for rejection of submittals. This RFP and the respondent’s response to this document will be made part of the ordering department’s Purchase Order and procurement contract file. Responses must contain all requested information and data and conform to the format described in this section. It is the respondent’s responsibility to provide all necessary information for the State to evaluate the response, verify requested information and determine the respondent’s ability to perform the tasks and activities defined in the State’s Scope of Work, Exhibit A and Cost Worksheet, Exhibit B provided as required below. Contents The proposal must include the following items: 1. A cover letter signed by an officer of the firm submitting the proposal, or signed by another person with authority to act on behalf of and bind the firm. The cover letter must contain a commitment to provide the required Services described in Exhibit A, the Scope of Work. The letter should certify that the information contained in the proposal is true and correct. Please also indicate the contact person(s) for the selection process along with contact information. 2. Demonstration of the respondent’s Qualifications: Please provide the following information: A. Your company’s name, business address and telephone numbers, including headquarters and local offices. B. A brief description of your organization, including names of principals, number of employees, longevity, client base, and areas of specialization and expertise. C. A description of your company’s prior experience related to correctional and healthcare facilities. D. A description of your company’s prior experience in California. E. A description of your company’s specific areas of technical expertise as they relate to this RFP. F. A description of your company’s internal training and quality assurance programs. 2017949.2Per Diem Transcription Services RFP Page 5 G. Proposed revisions to the Form Services Agreement attached hereto as Exhibit C and a representation that respondent is prepared to enter into the Form Services Agreement on the terms and conditions proposed. H. Default Termination: Disclosure whether your company has defaulted in its performance on a contract in the last five years, which has led to the termination of a contract. I. Conflict of Interest: Identify any existing financial relationships with other vendors that may be a part of your proposal, and explain why those relationships will not constitute a real or perceived conflict of interest. 3. The respondent’s “Statement of Work” will be used to evaluate responsiveness to requirements of this RFP. The Statement of Work must map each task/deliverable item listed in Exhibit A, the Scope of Work. The response must include any additional information that the respondent deems necessary to explain how the respondent intends to meet the State’s requirements. 4. Cost proposal: Provide a cost proposal for performing the Services. The cost proposal should include a response to Exhibit B, the Cost Worksheet. The cost proposal should detail the billing definition and charge in the format described in Exhibit B. Review of Proposals for Award Responses to this RFP will first be reviewed for responsiveness to the requirements of Exhibits A and B and proposed revisions to Exhibit C. If a response is missing information required in either exhibit, it may be deemed not responsive. An Evaluation Committee (the “Committee”) will review the submitted proposals in accordance with submittal requirements and evaluation criteria set forth below and will recommend to the Receiver a short list of firms for further consideration. If the Receiver elects to request additional information, the entire proposed Key Staff of any short-listed teams must be available to participate in these interviews. The Committee will then make a final evaluation and submit its recommendation to the Receiver. The Receiver will make a final determination and authorize negotiations with one or more of the companies that have submitted their response and whose responses are most advantageous to the Receiver. The Receiver reserves the right to seek clarification of information submitted in response to this RFP and/or request additional information during the evaluation process. The Receiver reserves the right to accept or reject any or all qualifications and selections when it is determined, in the sole discretion of the Receiver, to be in the best interest of the Receiver. The Receiver intends to negotiate and enter into a services agreement (“the Agreement”) with the selected Respondent promptly upon selection. Prior to commencing the Services, the selected contractor must sign the Agreement and provide proof of insurance. The Agreement will include terms substantially similar to the General Terms and Conditions and Contractor Certification Clauses set forth at: http://www.documents.dgs.ca.gov/ols/GTC-307.doc and http://www.documents.dgs.ca.gov/ols/CCC-307.doc, Except that all references to the State of California or the Department of General Services will mean the CPR. Evaluation Criteria The Committee will review proposals in accordance with the following criteria: 2017949.2Per Diem Transcription Services RFP Page 6 A. Respondent's proven experience, capabilities and resources, at both the corporate and individual levels, in providing a per diem transcription services in size and functionality described in the Scope of Services, Exhibit A of this document. B. Proven management techniques, required expertise and resources designed to facilitate timely and effective implementation and stakeholder coordination. C. Cost or relative value. D. Completeness and comprehensiveness of response to this RFP and compliance with submittal requirements. E. Absence of any relationship that could constitute a conflict of interest or otherwise impede the ability of the Respondent to protect the interests of the Receiver. Key Dates It must be understood that time is always of the essence, both for the RFP submittal and contract completion. Respondents are advised of the key dates and times shown below and are expected to adhere to them. Event Release of RFP RFP Response Submission Due date (and time) Anticipated Contract Award Date November 7, 2008 COB December 5, 2008 December 19, 2008 General Rules A. B. C. D. Only one proposal will be accepted from any one person, partnership, corporation or other entity. Proposals received after the deadline will not be considered. This is an RFP, not a work order. All costs associated with a response to this RFP, or negotiating a contract, shall be borne by the respondent. CPR's failure to address errors or omissions in the proposals shall not constitute a waiver of any requirement of this RFP. Reservation of Rights CPR reserves the right to do the following at any time, at the CPR's discretion: A. B. C. D. E. Reject any and all proposals, or cancel this RFP. Waive or correct any minor or inadvertent defect, irregularity or technical error in any proposal. Request that certain or all respondents supplement or modify all or certain aspects of their respective proposals or other materials submitted. Procure any services specified in this RFP by other means. Modify the specifications or requirements for services in this RFP, or the required contents or format of the proposals prior to the due date. 2017949.2Per Diem Transcription Services RFP Page 7 F. G. H. I. Extend the key dates specified in this RFP, including the deadline for accepting proposals. Negotiate with any or none of the respondents. Terminate negotiations with a respondent without liability, and negotiate with other respondents. Award a contract to any respondent. 2017949.2Per Diem Transcription Services RFP Page 8 Exhibit A Scope of Services Scope These specifications cover the medical transcription services required by the CPR. The medical transcription program desired should be highly sophisticated, comprehensive, incorporating modern techniques, utilizing employees (not subcontractors) that will establish and maintain a high level of accuracy and promptness of service. The standards of performance set forth in these specifications represent minimum acceptable standards. Please respond to each of the following statements: A. All associated costs, to include, but not limited to, labor, fringe benefits, equipment and supplies that are necessary to accomplish all specified services shall be included in the Bidders’ “Cost Per Transcription Line.” B. Access to the Contractor’s toll free dictation line must be available 24 hours per day, three hundred and sixty five days per year. C. The CPR will be implementing a staffed and fully operational centralized medical transcription department where medical and mental health documentation is dictated and transcribed at a central location for all 33 California state prisons. Contractor must agree to provide all templates, document types and ‘normals’ acquired through the course of this contract to the centralized transcription department. D. Contractor will render transcription services for the CDCR as needed. The services shall include both after the fact (backlog) and emergency transcription services. Contractor shall ensure that all services be scheduled consistent with the severity of the medical needs, and services shall be delivered at the time scheduled. E. Contractor agrees to acknowledge and adhere to CDCR rules, regulations, policies and procedures that apply to maintaining security measures, providing a safe work environment, performing services with the scope of the provider’s licensure and compliance with universal precautions. California Prison Healthcare Receivership’s Responsibilities A. Facilities utilizing the Per Diem Transcription Services contract will provide templates of the various work types to the awarded Contractor. B. Each facility will appoint a central point of contact through whom communications will be directed and who will be responsible for monitoring quality assurance and quality control issues. C. Because this is a per diem contract, the CPR makes no specific guarantee of a minimum or maximum amount of services that shall be required. 2017949.2Per Diem Transcription Services RFP Page 9 Contractor’s Basic Service Requirements Please respond to each of the following statements: A. Provide as needed transcription services, seven days a week (365 days per year). B. Provide a toll free telephone number for CDCR Clinicians to dictate reports. C. Have the ability to offload and transcribe voice files from various dictation systems, to include Lanier, Crescendo, and Fusion, as needed. D. Contractor must comply with all HIPAA and State security and privacy regulations for protected health information. Please describe how your current processes for dictation and document distribution are HIPAA and State compliant. E. Contractor shall not subcontract services without prior written approval from the State. F. All work must be performed in the United States. G. Contractor shall provide listen access to reports dictated by CDCR Clinicians prior to transcription. Quality Assurance Monitoring A. Contractor shall describe and provide a sample of their QA process as part of their bid response. B. Contractor’s QA process will include error rates at a minimum of ninety-five (95) percent accuracy. Information Technology A. The CPR is currently in contract negotiations with Crescendo for purchase of their dictation system and transcription platform. As transcription is centralized, all dictation and transcription will be performed in our Crescendo system. Please describe your ability to interface with this type of system, i.e., offload voice files and upload completed documents. B. Prior to the implementation of our Crescendo system, our facilities will rely on your current process for document distribution. Describe in detail your process for distribution of transcribed documents. C. Some of our facilities have dictation systems. Can the User ID’s being used at these facilities be duplicated in your system? Document Storage A. The CPR requires that all transcribed documents be stored for a minimum of 90 days. Please describe your ability to resend requested documents. B. Are voice files maintained post transcription? If so, how long are they maintained? 2017949.2Per Diem Transcription Services RFP Page 10 Exhibit B Cost Worksheet Pricing Pricing for transcription services shall be on a “per line” basis, and shall be inclusive of all costs associated with performing the services requested herein. Indicate a firm, fixed price per transcribed line of type: $____________ Price per transcribed line of type Contractor definition of a line of type: ____________________________________________ _________________________________________________________________________ _________________________________________________________________________ Invoice Terms Invoice Payment Terms: $______________ or _____% discount if paid within ________ days; OR Net payment due within ________ days 2017949.2Per Diem Transcription Services RFP Page 11 Exhibit C Form Transcription Services Agreement THIS TRANSCRIPTION SERVICES AGREEMENT (“Agreement”) is made by and between (“Transcription Company”), with a principal place of business at ___________________________, and the California Prison Healthcare Receivership Corporation (“CPR”), with a principal place of business at 501 J Street, Suite 100, Sacramento, CA 95814, effective __________, 2008 (“Effective Date”). RECITALS A. services. Transcription Company is engaged in the business of providing dictation and transcription B. The United States District Court for the Northern District of California has established a receiver to assume the executive management of the California prison medical system and raise the level of care up to constitutional standards. On January 23, 2008, the Court appointed J. Clark Kelso to serve as the receiver and granted him, among other powers, the authority to exercise all powers vested by law in the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) as they relate to the administration, control, management, operation, and financing of the California prison medical health care system. The receiver caused the formation of CPR, which provides staff and infrastructure to assist the receiver in discharging his court-appointed function. C. CDCR currently delivers healthcare to 175,000 inmate-patients in thirty-three institutions throughout the state. Until recently, each of the thirty-three institutions has been responsible for managing its own clinical dictation and transcription services. CPR seeks to make the management of these essential dictation and transcription services more effective and efficient. D. CPR and Transcription Company desire to enter into a business relationship under which CPR will acquire, from time to time, dictation and transcription services from Transcription Company as needed. NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth below, CPR and Transcription Company agree as follows: AGREEMENT 1. Scope of Agreement. a. General. Transcription Company shall provide to CDCR on behalf of CPR, in accordance with the terms and conditions of this Agreement, the transcription services, including transcription for dictations by physicians and personnel providing health care services in the California prison medical health care system and a toll-free telephone number for dictation, for CDCR, that are described in the Statement of Work (“SOW”) set forth in Exhibit A to this Agreement (“Services”). b. Use of Subcontractors. Transcription Company shall not contract with a subcontractor for the provision of the Services to CPR without the prior written approval of CPR. A proposal to use a subcontractor shall identify the subcontractor and include a description of tasks to be performed by the subcontractor. Transcription Company shall bind subcontractor to all applicable terms and conditions set forth in this Agreement. CPR shall have the right to revoke its prior approval of a subcontractor and direct Transcription Company to replace such 2017949.2Per Diem Transcription Services RFP Page 12 subcontractor as soon as possible if the subcontractor's performance is materially deficient, good faith doubts exist concerning the subcontractor's ability to render future performance, or there have been material misrepresentations by or concerning the subcontractor. Transcription Company shall remain responsible for obligations performed by subcontractors to the same extent as if such obligations were performed by Transcription Company's employees. Transcription Company shall not disclose Confidential Information of CPR to a subcontractor unless and until such subcontractor has agreed in writing to protect the confidentiality of such Confidential Information as required of Transcription Company under this Agreement. c. Notification of Certain Events. Transcription Company shall notify CPR in writing within twenty-four (24) hours after the occurrence of any one or more of the following events: (i) Transcription Company becomes the subject of, or otherwise materially involved in, any government investigation of Transcription Company’s business practices or the provision of transcription services, including being served with a search warrant in connection with such activities; (ii) Transcription Company is charged with or convicted of a criminal offense; (iii) Transcription Company is debarred, suspended or otherwise ineligible to participate in the Medicare, Medicaid or any other federal or state healthcare program (the “Programs”); or (iv) Any act of nature or any other event occurs which has a material adverse effect on Transcription Company’s ability to provide the Services. d. Independent Contractor. Transcription Company is and at all times will be an independent contractor with respect to the CPR and in meeting Transcription Company’s responsibilities under this Agreement. Transcription Company and the agents and employees of Transcription Company, in the performance of this contract, shall act in an independent capacity and not as officers or employees or agents of CPR, CDCR or the State. Nothing in this Agreement is intended nor shall be construed to create a partnership, employer-employee or joint venture relationship between the CPR and Transcription Company. e. Stop Work. CPR may, at any time, by written notice to Transcription Company, require Transcription Company to stop all, or any part, of the work called for by this Agreement for a period up to 90 days after the notice is delivered to Transcription Company, and for any further period to which the parties may agree. The notice shall be specifically identified as a "Stop Work Order" and shall indicate it is issued under this clause. Upon receipt of the Stop Work Order, Transcription Company shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Stop Work Order during the period of work stoppage. Within a period of 90 days after a Stop Work Order is delivered to Transcription Company, or within any extension of that period to which the parties shall have agreed, CPR shall either: (i) cancel the Stop Work Order; or (ii) terminate the work covered by the Stop Work Order as provided for in the termination for convenience provision of this Agreement. If a Stop Work Order issued under this clause is canceled or the period of the Stop Work Order or any extension thereof expires, Transcription Company shall resume work. CPR shall make an equitable adjustment in the delivery schedule, the Agreement price, or both, and the Agreement shall be modified, in writing, accordingly, if: (i) the Stop Work Order results in an increase in the time required for, or in Transcription Company's cost properly allocable to, the performance of any part of this Agreement; and (ii) Transcription Company asserts its right to an equitable adjustment within 30 days after the end of the period of work stoppage; provided, that if CPR decides the facts justify the action, CPR may receive and act upon a proposal submitted at any time before final payment under this Agreement. If a Stop Work Order is not canceled and the work covered by the Stop Work Order is terminated, CPR shall allow reasonable costs resulting from the Stop Work Order in arriving at the termination settlement. CPR shall not be liable to Transcription Company for loss of profits because of a Stop Work Order issued under this clause. 2. Invoicing and Payment. a. Billing. Transcription Company shall bill regularly on the tenth of every month for all services provided in the previous month. Transcription Company must itemize all charges 2017949.2Per Diem Transcription Services RFP Page 13 to include patient name, date of service and provider. Invoices shall be mailed to 501 J Street, Suite 100, Sacrament, CA 95814 ATTN: _______________, or in a manner as CPR may otherwise instruct Transcription Company. b. Compensation. For services satisfactorily rendered, and upon receipt and approval of Transcription Company’s invoices, CPR shall pay to Transcription Company an amount equal to [price] per [billing unit] in a Report. [Definition of billing unit] c. Required Payment Date. CPR shall pay properly submitted, undisputed invoices from Transcription Company not more than 45 days after (i) the date of acceptance of goods or performance of services; or (ii) receipt of an undisputed invoice, whichever is later. 3. Warranties. Transcription Company represents and warrants that: a. Conformance with Agreement. It will substantially conform to the statements of fact, representations of available resources, representations of service levels and other representations made in this Agreement. b. General Warranty. Transcription Company warrants that services furnished hereunder will conform to the requirements of this Agreement. c. Covenant Against Gratuities. No gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by Transcription Company, or any agent or representative of Transcription Company, to any officer or employee of CPR with a view toward securing the Agreement or securing favorable treatment with respect to any determinations concerning the performance of the Agreement. For breach or violation of this warranty, CPR shall have the right to terminate the Agreement, either in whole or in part, and any loss or damage sustained by CPR in procuring on the open market any items which Transcription Company agreed to supply shall be borne and paid for by Transcription Company. The rights and remedies of CPR provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or in equity. d. Americans with Disabilities Act. Transcription Company complies and shall continue to comply with the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq). e. Corporate Qualifications to do Business in California. Transcription Company declares that it is currently qualified to do business in California. f. Expatriate Corporations. Transcription Company declares that it is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of PCC §§ 10286 and 10286.1 and is eligible to contract with CPR. g. Compliance With Statutes and Regulations. Transcription Company shall comply with all laws and regulations related to the provision of medical transcription services in California and the United States, including any laws which prohibit a transcription service from removing or disclosing medical information outside of the United States. Transcription Company further warrants and certifies that in the performance of this Agreement, it will comply with all applicable statutes, rules, regulations, and orders of the United States and the State of California and agrees to indemnify CPR against any loss, cost, damage or liability by reason of Transcription Company’s violation of this provision. If this contract is in excess of $500,000, it is subject to the requirements of the World Trade Organization Government Procurement Agreement. 4. Term and Termination. 2017949.2Per Diem Transcription Services RFP Page 14 a. Term. This Agreement shall commence on ________________ (the “Effective Date”) and shall continue for two years thereafter until _______________ (the “Expiration Date”), subject to the termination provisions hereof. After the initial term, CPR may renew this Agreement for an additional one-year term by providing Transcription Company with written notice at least sixty (60) days prior to the expiration of the initial term. b. Termination for Convenience. Either party shall have the right to terminate this Agreement with or without cause upon sixty (60) days prior written notice. c. Termination for Breach. CPR or Transcription Company may terminate this Agreement if CPR or Transcription Company, as applicable, notifies the other party to this Agreement in writing of the other party’s material breath of the Agreement and such breach is not cured within thirty (30) days of such notice. In the event of such termination, CPR may proceed with the work in any manner it deems proper. All costs to CPR shall be deducted from any sum due Transcription Company and the balance, if any, shall be paid to Transcription Company upon demand. Termination shall not limit either party from pursuing other available remedies. d. Termination for Non-Appropriation of Funds. If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the Legislature. If funds to effect such continued payment are not appropriated, Transcription Company agrees to terminate any services supplied to CPR under this Agreement and relieve CPR of any further obligation therefor. e. Termination for the Convenience of CPR. i. CPR may terminate performance of work under this contract for its convenience in whole. CPR shall terminate by delivering to Transcription Company a Notice of Termination specifying the extent of termination and the effective date thereof. The parties agree that, as to the terminated portion of the contract, the contract shall be deemed to remain in effect until such time as the termination settlement, if any, is concluded and the contract shall not be void. ii. After receipt of a Notice of Termination, and except as directed by CPR, Transcription Company shall immediately proceed with the following obligations, as applicable, regardless of any delay in determining or adjusting any amounts due under this clause. Transcription Company shall: (1) Stop work as specified in the Notice of Termination. (2) Place no further subcontracts for materials, services, or facilities, except as necessary to complete the continued portion of the contract. (3) terminated. (4) Settle all outstanding liabilities and termination settlement proposals arising from the termination of subcontracts; the approval or ratification of which will be final for purposes of this clause. f. Termination For Default. Terminate all subcontracts to the extent they relate to the work i. CPR may, subject to the Force Majeure paragraph contained herein, by written notice of default to Transcription Company, terminate this contract in whole or in part if Transcription Company fails to: 2017949.2Per Diem Transcription Services RFP Page 15 (1) amendment thereto; (2) subparagraph (b) below); or (3) subparagraph (b), below). Perform the services within the time specified in the contract or any Make progress, so as to endanger performance of this contract (but see Perform any of the other provisions of this contract (but see ii. CPR’s right to terminate this contract under subparagraphs (a)(ii) and (a)(iii) above, may be exercised if Transcription Company does not cure such failure within the time frame stated in the cure notice issued by CPR. iii. If CPR terminates this contract in whole or in part, it may acquire, under the terms and in the manner the buyer considers appropriate, goods or services similar to those terminated, and Transcription Company will be liable to CPR for any excess costs for those goods or services. However, Transcription Company actor shall continue the work not terminated. iv. If, after termination, it is determined that Transcription Company was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of CPR. v. The rights and remedies of CPR in this clause are in addition to any other rights and remedies provided by law or under this Agreement. 5. Force Majeure. Except for defaults of subcontractors at any tier, Transcription Company shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of Transcription Company. Examples of such causes include, but are not limited to: (1) Acts of God or of the public enemy, and (2) Acts of the federal or state government in either its sovereign or contractual capacity. If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both Transcription Company and subcontractor, and without the fault or negligence of either, Transcription Company shall not be liable for any excess costs for failure to perform. Rights And Remedies Of CPR For Default. a. In the event any services provided by Transcription Company in the performance of this Agreement should fail to conform to the requirements herein, CPR may reject the same, and it shall become the duty of Transcription Company to correct the performance of services, without expense to CPR. b. In the event of the termination of this Agreement, either in whole or in part, by reason of default or breach by Transcription Company, any loss or damage sustained by CPR in procuring any services which Transcription Company agreed to supply shall be borne and paid for by the contractor. c. CPR reserves the right to offset the reasonable cost of all damages caused to CPR against any outstanding invoices or amounts owed to Transcription Company or to make a claim against Transcription Company therefore. 7. Audit. CPR, the Department of General Services, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Transcription Company shall: (i) maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated; (ii) allow the auditor(s) access to such 6. 2017949.2Per Diem Transcription Services RFP Page 16 records during normal business hours; (iii) allow interviews of any employees who might reasonably have information related to such records; and (iv) include a similar right of CPR to audit records and interview staff in any subcontract related to performance of this Agreement. 8. Confidentiality. Each party receiving Confidential Information of the other party (“Recipient”) shall retain in confidence and require its employees, agents and subcontractors to retain in confidence all Confidential Information of a party that discloses Confidential Information (“Discloser”). “Confidential Information” means information, in written or other tangible form, which is directly related to the business of the Discloser, which has been conspicuously marked by Discloser as “confidential” or “proprietary” at the time of disclosure and if unable to reasonably so mark, Discloser informs Recipient of the information’s confidential nature at the time of disclosure and confirms such nature in a writing transmitted to Recipient within ten (10) days after disclosure. Recipient shall retain Discloser’s Confidential Information in the same manner Recipient retains its own Confidential Information, but in no event less secure than a reasonable manner. All Confidential Information shall be protected by the Recipient from unauthorized use and disclosure. Confidential Information shall remain the sole property of the Discloser and shall not be disclosed to any third party without Discloser’s express written consent (except, solely for Recipient’s internal business needs, to consultants and subsidiaries who are bound by a written agreement with Recipient to maintain the confidentiality of such Confidential Information in a manner consistent with this Agreement). Notwithstanding the foregoing, the Recipient shall not be required to keep confidential any data or information which is or becomes publicly available, is already rightfully in Recipient's possession, is independently developed by Recipient outside the scope of this Agreement, or is rightfully obtained from third parties. HIPAA and Privacy Law Compliance. All inmate/patient medical information and data is the Confidential Information of CPR. If the Services involve the use of any inmate/patient medical information, Transcription Company shall comply with all applicable patient privacy laws, including, but not limited to, California Civil Code Section 56 et seq. and the Health Insurance Portability and Accountability Act Privacy Rule, (“HIPAA”). If Transcription Company receives any “protected health information” (as that term is defined by HIPAA) from the CDCR, Transcription Company shall comply with the Business Associate Addendum set forth in Exhibit D to this Agreement. For the purposes of the Business Associate Addendum, CDCR shall be a third party beneficiary. Indemnification. Transcription Company shall indemnify, defend and save harmless CPR, the State, their officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, suppliers, laborers, and any other person, firm or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this Agreement, and from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by Transcription Company in the performance of this Agreement. Mandatory Reference. Notwithstanding Section 8 above, Transcription Company shall publicize the fact that CPR is a customer, list CPR's name on Transcription Company’s standard customer lists and include CPR as a reference with all future governmental customers and potential customers. Nondiscrimination Clause. During the performance of this Agreement, Transcription Company shall not unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, sexual orientation, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS), medical condition (cancer), age, marital status, and denial of family care leave. Transcription Company shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Transcription Company shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12990 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The 9. 10. 11. 12. 2017949.2Per Diem Transcription Services RFP Page 17 applicable regulations of the Fair Employment and . Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Transcription Company shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. Transcription Company shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement. 13. National Labor Relations Board Certification. Transcription Company swears under penalty of perjury that no more than one final, unappealable finding of contempt of court by a federal court has been issued against Transcription Company within the immediately preceding two-year period because of Transcription Company's failure to comply with an order of the National Labor Relations Board. This provision is required by, and shall be construed in accordance with, PCC § 10296. Drug-Free Workplace Certification. Transcription Company shall comply with the requirements of the Drug-Free Workplace Act of 1990 (Cal. Gov. Code § 8350 et seq.) and will provide a drugfree workplace by taking the following actions: (a) publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Cal. Gov. Code § 8355(a); (b) establish a Drug-Free Awareness Program as required by Cal. Gov. Code § 8355(b) to inform employees about all of the following: (i) the dangers of drug abuse in the workplace; (ii) the person's or organization's policy of maintaining a drug-free workplace; (iii) any available counseling, rehabilitation and employee assistance programs; and, (iv) penalties that may be imposed upon employees for drug abuse violations; (c) provide, as required by Cal. Gov. Code § 8355(c), that every employee who works on the proposed or resulting Agreement: (i) will receive a copy of the company's drug-free policy statement; and, (ii) will agree to abide by the terms of the company's statement as a condition of employment on the Agreement. Sweatfree Code of Conduct. Transcription Company declares under penalty of perjury that no equipment, materials, or supplies furnished to CPR pursuant to the Agreement have been produced in whole or in part by sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor, or with the benefit of sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor. Transcription Company further declares under penalty of perjury that it adheres to the Sweatfree Code of Conduct as set forth on the California Department of Industrial Relations website, located at www.dirca.gov, and PCC § 6108. Transcription Company shall cooperate fully in providing reasonable access to its records, documents, agents or employees, or premises if reasonably required by authorized officials of CPR, the State, the Department of Industrial Relations, or the Department of Justice to determine Transcription Company's compliance with the requirements under this section. Recycling Certification. Transcription Company shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post consumer material as defined in the PCC § 12200, in products, materials, goods, or supplies offered or sold to CPR, regardless of whether the product meets the requirements of Section 12209. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply. Child Support Compliance Act. Transcription Company shall fully comply with all applicable State and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the Family Code, and Transcription Company, to the best of its knowledge, is fully complying with the earnings 14. 15. 16. 17. 2017949.2Per Diem Transcription Services RFP Page 18 assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. 18. Domestic Partners. Transcription Company may elect to offer domestic partner benefits to Transcription Company's employees in accordance with PCC § 10295.3. However, Transcription Company cannot require an employee to cover the costs of providing any benefits, which have otherwise been provided to all employees regardless of marital or domestic partner status. Conflict of Interest. Transcription Company shall comply with the State law provisions in PCC §§ 10410 and 10411 regarding the hiring or engagement of current or former State employees to furnish services under or be involved with this Agreement. If Transcription Company violates any provisions of §§ 10410 and 10411, this Agreement shall be void pursuant to PCC § 10420. Air or Water Pollution Violation. Under the State law, Transcription Company shall not be: (1) in violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; (2) subject to cease and desist order not subject to review issued pursuant to Section 13301 of the Water Code for violation of waste discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution. Assignment a. CPR Assignment. Notwithstanding any provision in this Agreement to the contrary, CPR may assign, sublicense or otherwise transfer this Agreement or any right granted under this Agreement without the prior written consent of Transcription Company to the CDCR or any agency of the State of California which is established to meet the requirements and obligations of the CDCR or is a successor to the responsibilities of CPR. b. Transcription Company Assignment. This Agreement is not assignable by Transcription Company, either in whole or in part, without the consent of CPR in the form of a formal written amendment. c. Binding on Successors. This Agreement and the conditions contained herein shall apply to, be binding upon, and inure to the assignees, successors, agents and assigns of the Transcription Company and CPR. 22. Third Party Beneficiary. Except as otherwise provided, nothing in this Agreement shall be construed as giving any third party any right, remedy or claim. Attorneys’ Fees and Costs. If any dispute arises out of or related to this Agreement, the prevailing party shall recover all reasonably incurred attorneys’ fees and costs. Complete Integration. This Agreement, including any documents, exhibits and attachments to this Agreement whether expressly incorporated by reference or not, is intended to be a complete integration and there are no prior or contemporaneous different or additional agreements pertaining to the subject matter of the contract. Agreement Modification. No supplement, modification, amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in the Agreement is binding on the parties. Severability. Transcription Company and CDR agree that if any provision of this Agreement is found to be illegal, void or unenforceable, such term or provision shall be deemed stricken and the remainder of the Agreement shall remain in full force and effect. Either party having 19. 20. 21. 23. 24. 25. 26. 2017949.2Per Diem Transcription Services RFP Page 19 knowledge of such term or provision shall promptly inform the other of the presumed nonapplicability of such provision. 27. Applicable Law. This Agreement shall be governed by and shall be interpreted in accordance with the laws of the State of California; venue of any action brought with regard to this Agreement shall be in Sacramento County, Sacramento, California. Waiver of Rights. Any action or inaction by CPR or failure of CPR on any occasion to enforce any right or provision of the Agreement shall not be construed to be a waiver by CPR of its rights hereunder and shall not prevent CPR from enforcing such provision or right on any future occasion. The rights and remedies of CPR herein are cumulative and are in addition to any other rights or remedies that CPR may have at law or equity. Time is of the Essence. Time is of the essence in this Agreement. Delivery. Transcription Company shall strictly adhere to the delivery and completion schedules specified in this Agreement. Time, if stated as a number of days, shall mean calendar days unless otherwise specified. Construction. This Agreement shall not be construed against the party preparing it, but shall be construed as if both CPR and Transcription Company jointly prepared this Agreement, and any uncertainty and ambiguity shall not be interpreted against a party. Notices. Except where otherwise provided herein, notices provided for herein shall be in writing and sent via certified mail, return receipt requested to the contact addresses set forth on the signature page. Notice shall be deemed to have been given upon delivery (by post or facsimile) with confirmation of receipt (unless received after 5 pm in the place of receipt, in which case receipt shall be deemed to have occurred on the next business day). Captions. The captions preceding the text of each Article and Section of this Agreement are used solely for convenient reference and neither constitutes a part of this Agreement nor affects its meaning, interpretation or effect. Counterparts and Originals. The parties may execute this Agreement in counterparts. Each signed counterpart shall be an original, and all of them, together, shall constitute one and the same instrument. Pronouns and Gender. All terms and words used in this Agreement, regardless of the number or gender in which they are used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context or the sense of this Agreement may require, as if such words had been fully and properly written in the appropriate number and gender. Recitals and Exhibits. The recitals set forth at the beginning of this Agreement, and the Exhibits attached to this Agreement, are true and correct. This Agreement all be interpreted by reference to, and construed in accordance with, such recitals and Exhibits. Waiver of Rights. Any action or inaction by CPR or the failure of CPR on any occasion, to enforce any right or provision of this Agreement, shall not be construed to be a waiver by CPR of its rights hereunder and shall not prevent CPR from enforcing such provision or right on any future occasion. The rights and remedies of CPR herein are cumulative and are in addition to any other rights or remedies that CPR may have at law or in equity. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. IN WITNESS WHEREOF, CPR and Transcription Company have executed this Agreement as of the Execution Date. 2017949.2Per Diem Transcription Services RFP Page 20 CALIFORNIA PRISON HEALTH CARE RECEIVERSHIP CORPORATION TRANSCRIPTION COMPANY By By Printed Name: J. Clark Kelso Printed Name: Title: Receiver Title: Date: Date: Address: Address: 2017949.2Per Diem Transcription Services RFP Page 21 Exhibit D Business Associate Agreement BUSINESS ASSOCIATE ADDENDUM WHEREAS, TRANSCRIPTION COMPANY, hereinafter referred to in this Exhibit as “Business Associate,” acknowledges that the CDCR, hereinafter referred to in this Exhibit as “Covered Entity,” has in its possession data that contains individual identifiable health information as defined by Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder ("HIPAA"); WHEREAS, Business Associate acknowledges that the fulfillment of the its obligations under this Addendum may necessitate the exchange of, or access to, data including individual identifiable health information; and, WHEREAS, the parties desire to comply with federal and California laws regarding the use and disclosure of individually identifiable health information, and in particular with the provisions of HIPAA. NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter contained, the parties agree as follows: ARTICLE 1 DEFINITIONS Terms used, but not otherwise defined, in this Exhibit shall have the meanings set forth below. 1.1 "HHS Transaction Standard Regulation" means the Code of Federal Regulations ("CFR") at Title 45, Sections 160 and 162. “Individual” means the subject of protected health information or, if deceased, his or her personal representative. "Parties" shall mean the Covered Entity and Business Associate. (Covered Entity and Business Associate, individually, may be referred to as a "Party".) “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E. “PHI” shall have the same meaning as the term “protected health information” in 45 CFR §164.501, limited to the information created or received by Business Associate from or on behalf of the Covered Entity. 1.2 1.3 1.4 1.5 2017949.2Per Diem Transcription Services RFP Page 22 1.6 “Required By Law” shall have the same meaning as “required by law” in 45 CFR §164.501. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his or her designee. 1.7 Any other terms used, but not otherwise defined, in this Exhibit shall have the same meaning as those terms in the Privacy Rule. ARTICLE 2 CONFIDENTIALITY 2.1 Obligations and Activities of Business Associate. Business Associate agrees as follows: (a) (b) (c) not to use or further disclose PHI other than as permitted or required by this Addendum or as Required By Law; to establish, maintain, and use appropriate safeguards to prevent use or disclosure of the PHI other than as permitted herein; to report to Covered Entity any use, access or disclosure of the PHI not provided for by this Addendum, or any misuse of the PHI, including but not limited to systems compromises of which it becomes aware and to mitigate, to the extent practicable, any harmful effect that is known to Business Associate as a result thereof. Business Associate shall be responsible for any and all costs (including the costs of Covered Entity) associated with mitigating or remedying any violation of this Addendum; to enforce and maintain appropriate policies, procedures, and access control mechanisms to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created or received by Business Associate on behalf of Covered Entity agrees to the same restrictions and conditions that apply through this Addendum to Business Associate with respect to such information. The access and privileges granted to any such agent shall be the minimum necessary to perform the assigned functions; to provide access, at the request of Covered Entity, and in the time and manner reasonable designated by Covered Entity, to PHI in a Designated Record Set (as defined in the Privacy Rule), to Covered Entity or, as directed by Covered Entity, to an Individual to meet the requirements under 45 CFR §164.524; to make any amendment(s) to PHI in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR §164.526 at the request of Covered Entity or an Individual, and in the time and manner reasonably requested by Covered Entity. to make internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of, Covered Entity available to the Covered Entity, or at the request of the Covered Entity to the Secretary, in a time and manner reasonably requested by Covered Entity or designated by the Secretary, for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule. Transcription Services RFP Page 23 (d) (e) (f) (g) 2017949.2Per Diem (h) (i) (j) (k) (l) (m) (n) (o) to document such disclosures of PHI, and information related to such disclosures, as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR §164.528. Said documentation shall include, but not be limited to, the date of the disclosure, the name and, if known, the address of the recipient of the PHI, a brief description of the PHI disclosed, and the purpose of the disclosure. Said documentation shall be made available to Covered Entity upon request. to provide to Covered Entity or an Individual, in a time and manner reasonably requested by Covered Entity, information collected in accordance with Section 2.1(h) above to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR §164.528. to promptly notify Covered Entity of all actual or suspected instances of deliberate unauthorized attempts (both successful and unsuccessful) to access PHI. Such notice shall be made to Covered Entity by telephone as soon as Business Associate becomes aware of the unauthorized attempt, and this telephone notification shall be followed within two (2) calendar days of the discovery of the unauthorized attempt by a written report to Covered Entity from Business Associate. Business Associate shall, at the same time, report to Covered Entity any remedial action taken, or proposed to be taken, with respect to such unauthorized attempt. Covered Entity shall have the discretion to determine whether or not any such remedial action is sufficient, and all such remedial action shall be at Business Associate’s expense. to maintain and enforce policies, procedures and processes to protect physical access to hardware, software and/or media containing PHI (e.g., hardcopy, tapes, removable media, etc. ) against unauthorized physical access during use, storage, transportation, disposition and /or destruction. to ensure that access controls in place to protect PHI and processing resources from unauthorized access are controlled by two-factor identification and authentication: a user ID and a Token, Password or Biometrics. to implement, use and monitor its compliance with appropriate technological, administrative and physical safeguards to prevent the use or disclosure of PHI other than as permitted by this Addendum. Business Associate shall provide Covered Entity with evidence of such safeguards upon Covered Entities request. Covered Entity has the right to determine, in its sole discretion, whether such safeguards are appropriate, and to require any additional safeguards it deems necessary. If Business Associate is served with legal process (e.g. a subpoena) or request from a governmental agency (e.g. the Secretary) that potentially could require the disclosure of PHI, Business Associate shall provide prompt (i.e., within twentyfour (24) hours) written notice of such legal process (including a copy of the legal process served) to the designated person at the Covered Entity. In addition, Business Associate shall not disclose the PHI without the consent of Covered Entity unless pursuant to a valid and specific court order or to comply with a requirement for review of documents by a governmental regulatory agency under its statutory or regulatory authority to regulate the activities of either party. to submit to periodic audits by Covered Entity verifying Business Associate’s compliance with appropriate technological, administrative and physical safeguards to prevent the use or disclosure of PHI other than as permitted by this Addendum, as well as compliance with the terms and conditions pursuant to this Addendum and compliance with state and federal laws and regulations. Audit review may be undertaken directly by the Covered Entity or by third parties Transcription Services RFP Page 24 2017949.2Per Diem engaged by the Covered Entity. Business Associate shall cooperate fully with Covered Entity or any such third party in connection with such audits. 2.2 Disclosures Required By Law. If Business Associate is required by law to disclose PHI, Business Associate will immediately provide Covered Entity with written notice and provide Covered Entity an opportunity to oppose any request for such PHI or to take whatever action Covered Entity deems appropriate. 2.3 Specific Use and Disclosure Provisions. (a) (b) Except as otherwise limited in this Addendum, Business Associate may use PHI only to carry out the legal responsibilities of the Business Associate under the agreement to which this Addendum is attached ("Agreement"). Except as otherwise limited in this Addendum, Business Associate may only disclose PHI (i) as Required By Law, or (ii) in the fulfillment of its obligations under the Agreement and provided that Business Associate has first obtained (A) the consent of Covered Entity for such disclosure, (B) reasonable assurances from the person to whom the information is disclosed that the PHI will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and (C) reasonable assurances from the person to whom the information is disclosed that such person will notify the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. 2.4 Obligations of Covered Entity. (a) Covered Entity will notify Business Associate of any limitations in its notice of privacy practices of Covered Entity in accordance with 45 CFR §164.520, to the extent that such limitation may affect Business Associate's use or disclosure of PHI. Covered Entity will notify Business Associate of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect Business Associate’s use or disclosures of PHI. Covered Entity will notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 CFR §164.522, to the extent that such restriction may affect Business Associate's use or disclosure of PHI. For any PHI received by Covered Entity from Business Associate on behalf of a third party or another covered entity, Covered Entity will be bound to the obligations and activities of Business Associate enumerated in Section 2.1 as if and to the same extent Covered Entity was the named Business Associate hereunder. (b) (c) (d) 2017949.2Per Diem Transcription Services RFP Page 25 2.5 Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by the Covered Entity. 2.6 Policy and Procedure Review. Upon request, Business Associate shall make available to Covered Entity any and all documentation relevant to the safeguarding of PHI including but not limited to current policies and procedures, operational manuals and/or instructions, and/or employment and/or third party agreements. ARTICLE 3 SECURITY 3.1 Security Procedures. Each Party shall employ security procedures that comply with HIPAA and all other applicable state and federal laws and regulations (collectively, the "Law") and that are commercially reasonable, to ensure that transactions, notices, and other information that are electronically created, communicated, processed, stored, retained or retrieved are authentic, accurate, reliable, complete and confidential. Moreover, each Party shall, and shall require any agent or subcontractor involved in the electronic exchange of data to: (a) (b) (c) (d) (e) (f) require its agents and subcontractors to provide security for all data that is electronically exchanged between Covered Entity and Business Associate; provide, utilize, and maintain equipment, software, services and testing necessary to assure the secure and reliable transmission and receipt of data containing PHI; maintain and enforce security management policies and procedures and utilize mechanisms and processes to prevent, detect, record, analyze, contain and resolve unauthorized access attempts to PHI or processing resources; maintain and enforce policies and guidelines for workstation use that delineate appropriate use of workstations to maximize the security of data containing PHI; maintain and enforce policies, procedures and a formal program for periodically reviewing its processing infrastructure for potential security vulnerabilities; implement and maintain, and require its agents and subcontractors to implement and maintain, appropriate and effective administrative, technical and physical safeguards to protect the security, integrity and confidentiality of data electronically exchanged between Business Associate and Covered Entity, including access to data as provided herein. Each Party and its agents and subcontractors shall keep all security measures current and shall document its security measures implemented in written policies, procedures or guidelines, which it will provide to the other Party upon the other Party’s request. 2017949.2Per Diem Transcription Services RFP Page 26 ARTICLE 4 EXCHANGE OF STANDARD TRANSMISSIONS 4.1 Obligations of the Parties. Each of the Parties agrees that for the PHI, (a) it will not change any definition, data condition or use of a data element or segment as proscribed in the HHS Transaction Standard Regulation. it will not add any data elements or segments to the maximum denied data set as proscribed in the HHS Transaction Standard Regulation. it will not use any code or data elements that are either marked "not used" in the HHS Standard's implementation specifications or are not in the HHS Transaction Standard's implementation specifications. it will not change the meaning or intent of any of the HHS Transaction Standard's implementation specifications. (b) (c) (d) 4.2 Incorporation of Modifications to HHS Transaction Standards. Each of the Parties agrees and understands that from time-to-time, HHS may modify and set compliance dates for the HHS Transaction Standards. Each of the Parties agrees to incorporate by reference into this Addendum any such modifications or changes. 4.3 Code Set Retention. If applicable, both parties understand and agree to keep open code sets being processed or used in this Addendum for at least the current billing period or any appeal period, which ever is longer. 4.4 Business Associate Obligations. (a) Business Associate shall not submit duplicate transmissions unless so requested by Covered Entity. Business Associate shall only perform those transactions, which are authorized by Covered Entity. Furthermore, Business Associate assumes all liability for any damage, whether direct or indirect, to the electronic data or to Covered Entity's systems caused by Business Associate's unauthorized use of such transactions. Business Associate shall hold Covered Entity harmless from any claim, loss or damage of any kind, whether direct or indirect, whether to person or property, arising out of or related to (1) Business Associate's use or unauthorized disclosure of the electronic data; or (2) Business Associate’s submission of data, including but not limited to the submission of incorrect, misleading, incomplete or fraudulent data. (b) (c) 2017949.2Per Diem Transcription Services RFP Page 27 (d) Business Associate agrees to maintain adequate back-up files to recreate transmissions if such recreations become necessary. Back-up tapes shall be subject to this Addendum to the same extent as original data. Business Associate agrees to trace lost or indecipherable transmissions and make reasonable efforts to locate and translate the same. Business Associate shall bear all costs associated with the recreation of incomplete, lost or indecipherable transmissions if such loss is the result of an act or omission of Business Associate. Business Associate shall maintain, for seven (7) years, true copies of any source documents from which it produces electronic data. Except encounter data furnished by Business Associate to Covered Entity, Business Associate shall not (other than to correct errors) modify any data to which it is granted access under this Addendum or derive new data from such existing data. Any modification of data is to be recorded, and a record of such modification is to be retained by Business Associate for a period of seven (7) years. Business Associate shall not disclose security access codes to any third party in any manner without the express written consent of Covered Entity. Business Associate furthermore acknowledges that Covered Entity may change such codes at any time without notice. Business Associate shall assume responsibility for any damages arising from its disclosure of the security access codes or its failure to prevent any third party use of the system without the express written consent of Covered Entity. Business Associate shall maintain general liability coverage, including coverage for general commercial liability, for a limit of not less than one million dollars, as well as other coverage as Covered Entity may require to compensate any parties damaged by Business Associate's negligence. Business Associate shall provide evidence of such coverage in the form of a certificate of insurance and agrees to notify Covered Entity immediately of any reduction or cancellation of such coverage. Business Associate agrees to conduct testing with Covered Entity to ensure delivery of files that are HIPAA-AS Compliant and to accommodate Covered Entity’s specific business requirements. (e) (f) (g) (h) (i) (j) 2017949.2Per Diem Transcription Services RFP Page 28 ARTICLE 5 MISCELLANEOUS 5.1 Indemnification. Business Associate shall indemnify, defend, and save harmless the State, CDCR, and CDCR’s officers, employees and agents, against any and all losses, liabilities, settlements, claims, demands, damages, or deficiencies (including interest) and expenses of any kind (including, but not limited to, attorneys’ fees) arising out of or due to a breach of the terms of this Addendum, and arising out of Business Associate's acts or omissions in regard to the terms of this Addendum. The foregoing indemnity is in addition to any other save harmless or indemnification set forth in the Agreement. 5.2 Term and Termination. (a) Term. The Term of this Addendum shall be effective as of the first date of commencement of services under the Agreement, and shall terminate when all of the PHI provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions in this Section. Termination for Cause. Upon a material breach by Business Associate of this Addendum, Covered Entity may (i) terminate this Addendum; (ii) permit Business Associate to cure the breach; (iii) report the violation to the Secretary; and/or (iv) require Business Associate to take such other action as Covered Entity may request, at Business Associate’s expense. Effect of Termination. (i) Except as provided in paragraph 5.2(c)(ii), upon termination of this Addendum, for any reason, Business Associate shall return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to PHI that is in the possession of subcontractors or agents of Business Associate. Business Associate shall retain no copies of the PHI. (ii) If Business Associate determines that returning the PHI is infeasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible. Upon Covered Entity's agreement that return or destruction of PHI is infeasible, Business Associate shall extend the protections of this Addendum to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI. (b) (c) 2017949.2Per Diem Transcription Services RFP Page 29 5.3 Injunctive Relief. Notwithstanding any rights or remedies provided for in Section 5.3, Covered Entity retains all rights to seek injunctive relief to prevent the unauthorized use of disclosure of PHI by Business Associate or any agent, contractor or third party that received PHI from Business Associate. 5.4 Regulatory References. A reference in this Addendum to a section in the Privacy Rule means the section as in effect or as amended. 5.5 Amendment. The Parties agree to take such action as is necessary to amend this Addendum from time to time to the extent necessary for Covered Entity to comply with the requirements of HIPAA and its regulations. All amendments to this Exhibit shall be in writing and signed by both parties through a formal amendment to the Agreement. 5.5 Survival. The respective rights and obligations of Business Associate and Covered Entity under Sections 5.1 and 5.2(c) of this Addendum shall survive the termination of this Addendum. 5.5 Limitation of Damages. Other than liabilities under Section 5.1, neither party shall be liable to the other for any special, incidental, exemplary, punitive or consequential damages arising from or as a result of any delay, omission, or error in the electronic transmission or receipt of any information pursuant to this Addendum, even if the other Party has been advised of the possibility of such damages. 5.5 Interpretation. Any ambiguity in this Addendum shall be resolved to permit Covered Entity to comply with the Privacy Rule. 5.5 Third Party Beneficiary Unless otherwise set forth herein, nothing contained herein is intended, nor shall it be construed, to create rights running of the benefit of third parties. 2017949.2Per Diem Transcription Services RFP Page 30