The parties to the attached contract, license, lease, amendment or other agreement of any kind (hereinafter, "the contract" or "this contract") agree to be bound by the following clauses which are hereby made a part of the contract (the word "Contractor" herein refers to any party other than the State, whether a contractor, licenser, licensee, lessor, lessee or any other party):
239 as well as possible termination of this contract and forfeiture of all moneys due hereunder for a second or subsequent violation.
within the State of New York or, if no such office is available, at a mutually agreeable and reasonable venue within the State, for the term specified above for the purposes of inspection, auditing and copying. The State shall take reasonable steps to protect from public disclosure any of the Records which are exempt from disclosure under Section 87 of the Public Officers Law (the "Statute") provided that: (i) the Contractor shall timely inform an appropriate State official, in writing, that said records should not be disclosed; and (ii) said records shall be sufficiently identified; and (iii) designation of said records as exempt under the Statute is reasonable. Nothing contained herein shall diminish, or in any way adversely affect, the State's right to discovery in any pending or future litigation.
(2) The personal information is requested by the purchasing unit of the agency contracting to purchase the goods or services or lease the real or personal property covered by this contract or lease. The information is maintained in New York State's Central Accounting System by the Director of Accounting Operations, Office of the State Comptroller, AESOB, Albany, New York 12236.
(a) The Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or marital status, and will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination. Affirmative action shall mean recruitment,
employment, job assignment, promotion, upgrading?, demotion, transfer, layoff, or termination and rates of pay or other forms of compensation;
(b) at the request of the contracting agency, the Contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding, to furnish a written statement that such employment agency, labor union or representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the contractor's obligations herein; and
(c) the Contractor shall state, in all solicitations or advertisements for employees, that, in the performance of the State contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.
Contractor will include the provisions of "a", "b", and "c" above, in every subcontract over $25,000.00 for the construction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon (the "Work") except where the Work is for the beneficial use of the Contractor. Section 312 does not apply to: (i) work, goods or services unrelated to this contract; or (ii) employment outside New York State; or (iii) banking services, insurance policies or the sale of securities. The State shall consider compliance by a contractor or subcontractor with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this section. The contracting agency shall determine whether the imposition of the requirements of title provisions hereof duplicate or conflict with any such federal law and if such duplication or conflict exists, the contracting agency shall waive the applicability of Section 312 to the extent of such duplication or conflict. Contractor will comply with all duly promulgated and lawful rules and regulations of the Governor's Office of Minority and Women's Business Development pertaining hereto.
In addition, when any portion of this contract involving the use of woods, whether supply or installation, is to be performed by any subcontractor, the prime Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in compliance with specifications and provisions regarding use of tropical hardwoods as detailed in §165 State Finance Law. Any such use must meet with the approval of the State; otherwise, the bid may not be considered responsive. Under bidder certifications, proof of qualification for exemption will be the responsibility of the Contractor to meet with the approval of the State.
accordance with: the MacBride Fair Employment Principles (Chapter 807 of the Laws of 1992), the Contractor hereby stipulates that the Contractor either (a) has no-business operations in Northern Ireland, or (b) shall take lawful steps in good faith to conduct any business operations in Northern Ireland in accordance with the MacBride Fair Employment Principles (as described in Section 165 of the New York State Finance Law), and shall permit independent monitoring of compliance with such principles.
Information on the availability of New York State subcontractors and suppliers is available from:
A directory of certified minority and women-owned business enterprises is available from:
The Omnibus Procurement Act of 1992 requires that by signing this bid proposal or contract, as applicable, Contractors certify that whenever the total bid amount is greater than $1 million:
(a) The Contractor has made reasonable efforts to encourage the participation of New York State Business Enterprises as suppliers and subcontractors, including certified minority and women-owned business enterprises, on this project, and has retained the documentation of these efforts to be provided upon request to the Slate;
(b) The Contractor has complied with the Federal Equal Opportunity Act of 1972 (P.L. 92-261), as amended;
(c) The Contractor agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities on this project through listing any such positions with the Job Service Division of the New York State Department of Labor, or providing such notification in such manner as is consistent with existing collective
bargaining contracts or agreements. The Contractor agrees to document these efforts and to provide said documentation to the State upon request; and
(d) The Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result of this contract and agrees to cooperate with the State in these efforts.
APPENDIX B CERTIFICATION REGARDING LOBBYING
The undersigned certifies, to the best of his or her knowledge, that:
1. No Federal appropriated funds have been paid or will be paid to any person by or on behalf of the Contractor for the purpose of influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of a Member of Congress in connection with the award of any Federal loan, the entering into of any cooperative agreement, or 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 the purpose of influencing or attempting to influence an officer or employee of any agency, a Member of Congress in connection with the award of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement, and the Agreement exceeds $100,000, the Contractor shall complete and submit Standard Form -LLL "Disclosure Form to Report Lobbying", in accordance with its instructions.
3. The Contractor shall include the provisions of this section in all provider Agreements
under this Agreement and require all Participating providers whose Provider Agreements exceed $100,000 to certify and disclose accordingly to the Contractor.
This certification is a material representation of fact upon which reliance was place when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction pursuant to U.S.C. Section 1352. The failure to file the required certification shall subject the violator to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
DATE: 3/17/06 |
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SIGNATURE: /s/ Todd S. Farha |
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TITLE: President and Chief Executive Officer |
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ORGANIZATION: WellCare of New York, Inc. |
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Appendix C
New York State Department of Health
Requirements for the Provision of Free Access to
Family Planning and Reproductive Health Services
| | C.I | Definitions and General Requirements for the Provision of Family Planning and Reproductive Health Services |
| | C.2 | Requirements for MCOs that Provide Family Planning and Reproductive Health Services |
| | C.3 | Requirements for MCOs That Do Not Provide Family Planning and Reproductive Health Services |
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C.I
Definitions and General Requirements for the Provision of Family Planning and Reproductive Health Services
1. Family Planning and Reproductive Health Services
| | a) | Family Planning and Reproductive Health Services mean the offering, arranging and furnishing of those health services which enable Enrollees, including minors who may be sexually active, to prevent or reduce the incidence of unwanted pregnancies. |
| | i) | Family Planning and Reproductive Health Services include the following medically-necessary services, related drugs and supplies which are furnished or administered under the supervision of a physician, licensed midwife or certified nurse practitioner during the course of a Family Planning and Reproductive Health visit for the purpose of: |
| | A) | contraception, including all FDA-approved birth control methods, devices such as insertion/removal of an intrauterine device (IUD)or insertion/removal of contraceptive implants, and injection procedures involving Pharmaceuticals such as Depo-Provera; |
B) emergency contraception and follow up;
C) sterilization;
| | D) | screening, related diagnosis, and referral to a Participating Provider for pregnancy; |
| | E) | medically-necessary induced abortions, which are procedures, either medical or surgical, that result in the termination of pregnancy. The determination of medical necessity shall include positive evidence of pregnancy, with an estimate of its duration. |
| | ii) | Family Planning and Reproductive Health Services include those education and counseling services necessary to render the services effective. |
| | iii) | Family Planning and Reproductive Health Services include medically-necessary ordered contraceptives and pharmaceuticals: |
| | A) | The Contractor is responsible for pharmaceuticals and medical supplies such as IUDS and Depo-Provera that must be furnished or administered under the supervision of a physician, licensed midwife, or certified nurse practitioner during the course of a Family Planning and Reproductive Health visit and for those prescription drugs included in the Contractor's Medicare Part D Prescription Drug Benefit. Over the counter drugs are not the responsibility of |
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the Contractor and are to be obtained when covered on the New York State list of Medicaid reimbursable drugs by the Enrollee from any appropriate eMedNY-enrolled health care provider of the Enrollee's choice.
| | b) | When clinically indicated, the following services may be provided as a part of a Family Planning and Reproductive Health visit: |
| | i) | Screening, related diagnosis, ambulatory treatment and referral as needed for dysmenorrhea, cervical cancer, or other pelvic abnormality/pathology. |
| | ii) | Screening, related diagnosis and referral for anemia, cervical cancer, glycosuria, proteinuria, hypertension and breast disease. |
| | iii) | Screening and treatment for sexually transmissible disease. |
iv) HIV blood testing and pre- and post-test counseling.
2. Free Access to Services for Enrollees
| | a) | Free Access means Enrollees may obtain Family Planning and Reproductive Health Services, and HIV blood testing and pre-and post-test counseling when performed as part of a Family Planning and Reproductive Health encounter, from either the Contractor, if it provides such services in its Medicare Advantage Benefit Package, or from any appropriate eMedNY-enrolled health care provider of the Enrollee's choice. No referral from the PCP or approval by the Contractor is required to access such services. |
| | b) | The Family Planning and Reproductive Health Services listed above are the only services which are covered under the Free Access policy. Routine obstetric and/or gynecologic care, including hysterectomies, pre-natal, delivery and post-partum care are not covered under the Free Access policy, and are the responsibility of the Contractor. |
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C.2
Requirements for MCOs that Provide Family Planning and Reproductive Health Services
1. Notification to Enrollees
a) If the Contractor provides Family Planning and Reproductive Health Services, the Contractor must notify all Enrollees of reproductive age at the time of Enrollment about their right to obtain Family Planning and Reproductive Health Services and supplies without referral or approval. The notification must contain the following:
i) Information about the Enrollee's right to obtain the full range of Family Planning and Reproductive Health Services, including HIV counseling and testing when performed as part of a Family Planning and Reproductive Health encounter, from the Contractor's Participating Provider without referral, approval or notification.
ii) Enrollees must receive notification that they also have the right to obtain Family Planning and Reproductive Health Services in accordance with the Medicaid Free Access policy as defined in C.I of this Appendix.
iii) A current list of qualified Participating Family Planning Providers who provide the full range of Family Planning and Reproductive Health Services within the Enrollee's geographic area, including addresses and telephone numbers. The Contractor may also provide Enrollees with a list of qualified Non-Participating providers who accept Medicaid and who provide the full range of these services.
iv) Information that the cost of the Enrollee's Family Planning and Reproductive care will be fully covered, including when an Enrollee obtains such services in accordance with the Medicaid Free Access policy.
2. Billing Policy
| | a) | The Contractor must notify its Participating Providers that all claims for Family Planning and Reproductive Health Services must be billed to the Contractor and not the Medicaid fee-for-service program. |
b) Non-Participating Providers will bill Medicaid fee-for-service.
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3. Consent and Confidentiality
a) The Contractor will comply with federal, state, and local laws, regulations and policies regarding informed consent and confidentiality and ensure Participating Providers comply with all of the requirements set forth in Sections 17 and 18 of the PHL and 10 NYCRR Section 751.9 and Part 753 relating to informed consent and confidentiality.
b) Participating Providers may share patient information with appropriate Contractor personnel for the purposes of claims payment, utilization review and quality assurance, unless the provider agreement with the Contractor provides otherwise. The Contractor must ensure that an Enrollee's use of Family Planning and Reproductive Health Services remains confidential and is not disclosed to family members or other unauthorized parties, without the Enrollee's consent to the disclosure.
4. Informing and Standards
a) The Contractor will inform its Participating Providers and administrative personnel about policies concerning Free Access as defined in C. 1 of this Appendix, where applicable; HIV counseling and testing; reimbursement for Family Planning and Reproductive Health encounters; Enrollee Family Planning and Reproductive Health education and confidentiality.
b) The Contractor will inform its Participating Providers that they must comply with professional medical standards of practice, the Contractor's practice guidelines, and all applicable federal, state, and local laws. These include but are not limited to, standards established by the American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, the U.S. Task Force on Preventive Services and the New York State Child/Teen Health Program. These standards and laws recognize that Family Planning counseling is an integral part of primary and preventive care.
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C.3
Requirements for MCOs That Do Not Provide Family Planning and Reproductive Health Services
1. Requirements
| | a) | The Contractor agrees to comply with the policies and procedures stated in the SDOH-approved statement described in Section 2 below. |
| | b) | Within ninety (90) days of signing this Agreement, the Contractor shall submit to the SDOH a policy and procedure statement that the Contractor will use to ensure that its Enrollees are fully informed of their rights to access a full range of Family Planning and Reproductive Health Services, using the following guidelines. The statement must be sent to the Director, Office of Managed Care, NYS Department of Health, Corning Tower, Room 2001, Albany, NY 12237. |
| | c) | SDOH may waive the requirement in (b) above if such approved statement is already on file with SDOH and remains unchanged. |
2. Policy and Procedure Statement
| | a) | The policy and procedure statement regarding Family Planning and Reproductive Health Services must contain the following: |
i) Enrollee Notification
| | A) | A statement that the Contractor will inform Prospective Enrollees, new Enrollees and current Enrollees that: |
| | I) | Certain Family Planning and Reproductive Health Services (such as abortion, sterilization and birth control) are not covered by the Contractor, but that routine obstetric and/or gynecologic care, including hysterectomies, pre-natal, delivery and post-partum care are covered by the Contractor; |
| | II) | Such Family Planning and Reproductive Health Services that are not covered by the Contractor may be obtained through fee-for-service Medicaid providers for Medicaid Advantage Enrollees; |
| | III) | No referral is needed for such services, and there will be no cost to the Enrollee for such services; |
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| | IV) | HIV counseling and testing services are available through the Contractor and are also available as part of a Family Planning and Reproductive Health encounter when furnished by a fee-for-service Medicaid provider to Medicaid Advantage Enrollees; and that anonymous counseling and testing services are available from SDOH, Local Public Health Agency clinics and other New York City or county programs. |
| | B) | A statement that this information will be provided in the following manner: |
| | I) | Through the Contractor's written Marketing materials, including the Member Handbook. The Member Handbook and Marketing materials will indicate that the Contractor has elected not to cover certain Family Planning and Reproductive Health Services, and will explain the right of all Medicaid Advantage Enrollees to secure such services through fee-for-service Medicaid from any provider/clinic which offers these services and who accepts Medicaid. |
| | II) | Orally at the time of Enrollment and any time an inquiry is made regarding Family Planning and Reproductive Health Services. |
| | III) | By inclusion on any web site of the Contractor which includes information concerning its Medicaid Advantage product. Such information shall be prominently displayed and easily navigated. |
| | C) | A description of the mechanisms to provide all new Medicaid Advantage Enrollees with an SDOH approved letter explaining how to access Family Planning and Reproductive Health Services and the SDOH approved list of Family Planning providers. This material will be furnished by SDOH and mailed to the Enrollee no later than fourteen (14) days after the Effective Date of Enrollment. |
| | D) | A statement that if an Enrollee or Prospective Enrollee requests information about these non-covered services, the Contractor's Marketing or Enrollment representative or member services department will advise the Enrollee or Prospective Enrollee as follows: |
| | I) | Family Planning and Reproductive Health Services such as abortion, sterilization and birth control are not covered by the Contractor and that only routine obstetric and/or gynecologic care, including hysterectomies, pre-natal, delivery and post-partum care are the responsibility of the Contractor. |
| | II) | Medicaid Advantage Enrollees can use their Medicaid card to receive these non-covered services from any doctor or clinic that provides these services and accepts Medicaid. |
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| | III) | Each Medicaid Advantage Enrollee and Prospective Enrollee who calls will be mailed a copy of the SDOH approved letter explaining the Enrollee's right to receive these non-covered services, and an SDOH approved list of Family Planning Providers who participate in Medicaid in the Enrollee's community. These materials will be mailed within two (2) business days of the contact. |
| | IV) | Enrollees can call the Contractor's member services number for further information about how to obtain these non-covered services. Medicaid Advantage Enrollees can also call the New York State Growing-Up-Healthy Hotline (1-800-522-5006) to request a copy of the list of Medicaid Family Planning Providers. |
| | E) | The procedure for maintaining a manual log of all requests for such information, including the date of the call, the Enrollee's client identification number (CIN), and the date the SDOH approved letter and SDOH or DOHMH approved list were mailed, where applicable. The Contractor will review this log monthly and upon request, submit a copy to SDOH. |
ii) Participating Provider and Employee Notification
| | A) | A statement that the Contractor will inform its Participating Providers and administrative personnel about Family Planning and Reproductive Health policies under Medicaid Advantage Free Access, as defined in C.I of this Appendix, HIV counseling and testing; reimbursement for Family Planning and Reproductive Health encounters; Enrollee Family Planning and Reproductive Health education and confidentiality. |
| | B) | A statement that the Contractor will inform its Participating Providers that they must comply with professional medical standards of practice, the Contractor's practice guidelines, and all applicable federal, state, and local laws. These include but are not limited to, standards established by the American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, the U.S. Task Force on Preventive Services. These standards and laws recognize that Family Planning counseling is an integral part of primary and preventive care. |
| | C) | The procedure(s) for informing the Contractor's Participating primary care providers, family practice physicians, obstetricians, and gynecologists that the Contractor has elected not to cover certain Family Planning and Reproductive Health Services, but that routine obstetric and/or gynecologic care, including hysterectomies, pre-natal, delivery and post-partum care are covered; and that Participating Providers may provide, make referrals, or arrange for non-covered services in accordance with Medicaid Advantage Free Access policy, as defined in C.I of this Appendix. |
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| | D) | A description of the mechanisms to inform the Contractor's Participating Providers that: |
| | I) | if they also participate in the fee-for-service Medicaid program and they render non-covered Family Planning and Reproductive Health Services to Medicaid Advantage Enrollees, they do so as a fee-for-service Medicaid practitioner, independent of the Contractor. |
| | E) | A description of the mechanisms to inform Participating Providers that, if requested by the Enrollee, or, if in the provider's best professional judgment, certain Family Planning and Reproductive Health Services not offered through the Contractor are medically indicated in accordance with generally accepted standards of professional practice, an appropriately trained professional should so advise the Enrollee and either: |
| | I) | offer those services to Medicaid Advantage Enrollees on a fee-for-service basis as an eMedNY-enrolled provider, or |
| | II) | provide Medicaid Advantage Enrollees with a copy of the SDOH approved list of Medicaid Family Planning Providers, or |
| | III) | give Enrollees the Contractor's member services number to call to obtain the list of Medicaid Family Planning Providers. |
| | F) | A statement that the Contractor acknowledges that the exchange of medical information, when indicated in accordance with generally accepted standards of professional practice, is necessary for the overall coordination of Enrollees' care and assist Primary Care Providers in providing the highest quality care to the Contractor's Enrollees. The Contractor must also acknowledge that medical record information maintained by Participating Providers may include information relating to Family Planning and Reproductive Health Services provided under the fee-for-service Medicaid program. |
iii) Quality Assurance Initiatives
| | A) | A statement that the Contractor will submit any materials to be furnished to Enrollees and providers relating to access to non-covered Family Planning and Reproductive Health Services to SDOH, Office of Managed Care for its review and approval before issuance. Such materials include, but are not limited to, Member Handbooks, provider manuals, and Marketing materials. |
| | B) | A description of monitoring mechanisms the Contractor will use to assess the quality of the information provided to Enrollees. |
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| | C) | A statement that the Contractor will prepare a monthly list of Medicaid Advantage Enrollees who have been sent a copy of the SDOH approved letter and the SDOH approved list of Family Planning providers. This information will be available to SDOH upon request. |
| | D) | A statement that the Contractor will provide all new employees with a copy of these policies. A statement that the Contractor's orientation programs will include a thorough discussion of all aspects of these policies and procedures and that annual retraining programs for all employees will be conducted to ensure continuing compliance with these policies. |
3. Consent and Confidentiality
a) The Contractor must comply with federal, state, and local laws, regulations and policies regarding informed consent and confidentiality and ensure that Participating Providers comply with all of the requirements set forth in Sections 17 and 18 of the PHL and 10 NYCRR § 751.9 and Part 753 relating to informed consent and confidentiality.
b) Participating Providers may share patient information with appropriate Contractor personnel for the purposes of claims payment, utilization review and quality assurance, unless the provider agreement with the Contractor provides otherwise. The Contractor must ensure that an Enrollee's use of Family Planning and Reproductive Health Services remains confidential and is not disclosed to family members or other unauthorized parties, without the Enrollee's consent to disclosure.
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Appendix D
New York State Department of Health
Medicaid Advantage Marketing Guidelines
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APPENDIX D
New York City 2006
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MEDICAID ADVANTAGE MARKETING GUIDELINES
I. Purpose
The purpose of these guidelines is to provide an operational framework for the Medicaid managed care organizations (MCOs) in the development of marketing materials and the conduct of marketing activities for the Medicaid Advantage Program. The marketing guidelines set forth in this Appendix do not replace the CMS marketing requirements for Medicare Advantage Plans; they supplement them.
II. Marketing Materials
A. Definitions
| | 1. | Marketing materials generally include the concepts of advertising, public service announcements, printed publications, and other broadcast or electronic messages designed to increase awareness and interest in a Contractor's Medicaid Advantage product. The target audience for these marketing materials is Eligible Persons as defined in Section 5.1 of this Agreement living in the defined service area. |
| | 2. | For purposes of this Agreement, marketing materials include any information that references the Contractor's Medicaid Advantage Product and which is intended for distribution to Dual Eligibles, and is produced in a variety of print, broadcast, and direct marketing mediums. These generally include: radio, television, billboards, newspapers, leaflets, informational brochures, videos, telephone book yellow page ads, letters, and posters. Additional materials requiring marketing approval include a listing of items to be provided as nominal gifts or incentives. |
B. Marketing Material Requirements
In addition to meeting CMS' Medicare Advantage marketing requirements and guidance on marketing to individuals entitled to Medicare and Medicaid:
| | 1. | Medicaid Advantage marketing materials must be written in prose that is understood at a fourth-to sixth-grade reading level except when the Contractor is using language required by CMS, and must be printed in at least twelve (12) point font. |
| | 2. | The Contractor must make available written marketing and other informational materials (e.g., member handbooks) in a language other than English whenever at least five percent (5%) of the Prospective Enrollees of the Contractor in any county of the service area speak that particular language and do not speak English as a first language. SDOH will inform the DOHMH and the DOHMH will inform the Contractor when the 5% threshold has been reached. Marketing materials to |
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be translated include those key materials, such as informational brochures, that are produced for routine distribution, and which are included within the MCO's marketing plan. SDOH will determine the need for other than English translations based on county specific census data or other available measures.
| | 3. | The Contractor shall advise potential Enrollees, in written materials related to enrollment, to verify with the medical services providers they prefer, or have an existing relationship with, that such medical services providers participate in the selected managed care provider's network and are available to serve the participant. |
C. Prior Approvals
| | 1. | The CMS and SDOH will jointly review and approve Medicaid Advantage marketing videos, materials for broadcast (radio, television, or electronic), billboards, mass transit (bus, subway or other livery) and statewide/regional print advertising materials in accordance with CMS timeframes for review of marketing materials. These materials must be submitted to the CMS Regional Office for review. CMS will coordinate SDOH input in the review process just as SDOH will coordinate DOHMH input in the review process. |
| | 2. | CMS and SDOH will jointly review and approve the following Medicaid Advantage marketing materials: |
a. Scripts or outlines of presentations and materials used at health fairs and other approved types of events and locations;
b. All pre-enrollment written marketing materials - written marketing materials include brochures and leaflets, and presentation materials used by marketing representatives;
c. All direct mailing from the Contractor specifically targeted to the Medicaid market.
| | 3. | The Contractor shall electronically submit all materials related to marketing Medicaid Advantage to Dually Eligible persons to the CMS Regional Office for prior written approval. The CMS Medicare Regional Office Plan Manager will be responsible for obtaining SDOH input in the review and approval process in accordance with CMS timeframes for the review of marketing materials. Similarly, SDOH will be responsible for obtaining DOHMH input in the review and approval process. |
| | 4. | The Contractor shall not distribute or use any Medicaid Advantage marketing materials that the CMS Regional Office and the SDOH have not jointly approved, prior to the expiration of the required review period. |
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| | 5. | Approved marketing materials shall be kept on file in the offices of the Contractor, the'DOHMH, the SDOH, and CMS. |
D. Dissemination of Outreach Materials to LDSS
| | 1. | Upon request, the Contractor shall provide to the LDSS and/or Enrollment Broker, sufficient quantities of approved Marketing materials or alternative informational materials that describe coverage in the LDSS jurisdiction. |
| | 2. | The Contractor shall, upon request, submit to the LDSS or Enrollment Broker, a current provider directory, together with information that describes how to determine whether a provider is presently available. |
III. Marketing Activities
A. General Requirements
| | 1. | The Contractor must follow the State's Medicaid marketing rules and the requirements of 42 CFR 438.104 to the extent applicable when conducting marketing activities that are primarily intended to sell a Medicaid managed care product (i.e., Medicaid Advantage). Marketing activities intended to sell a Medicaid managed care product shall be defined as activities which are conducted pursuant to a Medicaid Advantage marketing program in which a dedicated staff of marketing representatives employed by the Contractor, or by an entity with which the Contractor has subcontracted, are engaged in marketing activities with the primary purpose of enrolling recipients in the Contractor's Medicaid Advantage product. |
| | 2. | Marketing activities that do not meet the above criteria shall not be construed as having a primary purpose of intending to sell a Medicaid managed care product and shall be conducted in accordance with Medicare Advantage marketing requirements. Such activities include but are not limited to plan sponsored events in which marketing representatives not dedicated to the marketing of the Medicaid Advantage product explain Medicare products offered by the Contractor as well as the Contractor's Medicaid Advantage product. |
B. Marketing at LDSS Offices
With prior LDSS approval, MCOs may distribute CMS/SDOH approved Medicaid Advantage marketing materials in the local social services district offices and facilities.
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C. Responsibility for Marketing Representatives
Individuals employed by the Contractor as marketing representatives and employees of marketing subcontractors must have successfully completed the Contractor's training program including training related to an Enrollee's rights and responsibilities in Medicaid Advantage. The Contractor shall be responsible for the activities of its marketing representatives and the activities of any subcontractor or management entity.
D. Medicaid Advantage Specific Marketing Requirements
The requirements in Section D apply only if marketing activities for the Medicaid Advantage Program are conducted pursuant to a Medicaid Advantage marketing program in which a dedicated staff of marketing representatives employed by the Contractor or by an entity with which the Contractor has a subcontract are engaged in marketing activities with the sole purpose of enrolling recipients in the Contractor's Medicaid Advantage product.
1. Approved Marketing Plan
| | a. | The Contractor must submit a plan of Medicaid Advantage Marketing activities that meet the SDOH requirements to the SDOH. |
| | b. | The SDOH, in consultation with DOHMH, is responsible for the review and approval of Medicaid Advantage marketing plans, using a SDOH and CMS approved checklist. |
| | c. | Approved marketing plans will set forth the terms and conditions and proposed activities of the Medicaid Advantage dedicated staff during the contract period. The following must be included: description of materials to be used, distribution methods; primary types of marketing locations and a listing of the kinds of community service events the Contractor anticipates sponsoring and/or participating in during which it will provide information and/or distribute Medicaid Advantage marketing materials. |
| | d. | An approved marketing plan must be on file with the SDOH and the DOHMH prior to the Contractor engaging in the Medicaid Advantage specific Marketing activities. |
| | e. | The plan shall include stated marketing goal and strategies. Marketing activities, and the training, development and responsibilities of dedicated marketing staff. |
| | f. | The Contractor must describe how it is able to meet the informational needs related to marketing for the physical and cultural diversity of its potential membership. This may include, but not be limited to, a description of the |
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Contractor's other than English language provisions, interpreter services, alternate communication mechanisms including sign language, Braille, audio tapes, and/or use of Telecommunications Devices for the Deaf (TTY) services.
| | g. | The Contractor shall describe measures for monitoring and enforcing compliance with these guidelines by its Marketing representatives including the prohibition of door to door solicitation and cold-call telephoning; a description of the development of pre-enrollee mailing lists that maintains client confidentiality and honors the client's express request for direct contact by the Contractor; the selection and distribution of pre-enrollment gifts and incentives to prospective enrollees; and a description of the training, compensation and supervision of its Medicaid Advantage dedicated marketing representatives. |
2. Compensation for Dedicated Medicaid Advantage Marketing Staff
The Contractor shall not offer compensation to Medicaid Advantage dedicated Marketing Representatives, including salary increases or bonuses, based solely on the number of individuals they enroll in Medicaid Advantage. However, the Contractor may base compensation of these Marketing Representatives on periodic performance evaluations which consider enrollment productivity as one of several performance factors during a performance period, subject to the following requirements:
| | a. | "Compensation" shall mean any remuneration required to be reported as income or compensation for federal tax purposes; |
| | b. | The Contractor may not pay a "commission" or fixed amount per enrollment; |
| | c. | The Contractor may not award bonuses more frequently than quarterly, or for an annual amount that exceeds ten percent (10%) of his/her total annual compensation; |
| | d. | The Contractor shall keep written documentation, including performance evaluations or other tools it uses as a basis for awarding bonuses or increasing the salary of Marketing Representatives and employees involved in Marketing and make such documentation available for inspection by SDOH or the DOHMH; |
3. Prohibition of Cold Call Marketing Activities
Contractors are prohibited from directly or indirectly, engaging in door to door, telephone, or other cold-call marketing activities.
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4. Marketing in Emergency Rooms or Other Patient Care Areas
Contractors may not distribute materials or assist prospective Enrollees in completing Medicaid Advantage application forms in hospital emergency rooms, in provider offices, or other areas where health care is delivered unless requested by the individual.
5. Enrollment Incentives
Contractors may not offer incentives of any kind to Medicaid recipients to join Medicaid Advantage. Incentives are defined as any type of inducement whose receipt is contingent upon the recipients joining the Contractor's Medicaid Advantage product.
E. General Marketing Restrictions
The following restrictions apply anytime the Contractor markets its Medicaid Advantage product:
| | 1. | Contractors are prohibited from misrepresenting the Medicaid program, the Medicaid Advantage Program or the policy requirements of the LDSS or SDOH. |
| | 2. | Contractors are prohibited from purchasing or otherwise acquiring or using mailing lists that specifically identify Medicaid recipients from third party vendors, including providers and LDSS offices, unless otherwise permitted by CMS. The Contractor may produce materials and cover their costs of mailing to Medicaid recipients if the mailing is carried out by the State or LDSS, without sharing specific Medicaid information with the Contractor. |
| | 3. | Contractors may not discriminate against a potential Enrollee based on his/her current health status or anticipated need for future health care. The Contractor may not discriminate on the basis of disability or perceived disability of any Enrollee or their family member. Health assessments may not be performed by the Contractor prior to enrollment. The Contractor may inquire about existing primary care relationships of the applicant and explain whether and how such relationships may be maintained. Upon request, each potential Enrollee shall be provided with a listing of all participating providers and facilities in the MCO's network. The Contractor may respond to a potential Enrollee's question about whether a particular specialist is in the network. However, the contractor is prohibited from inquiring about the types of specialists utilized by the potential Enrollee. |
| | 4. | Contractors may not require participating providers to distribute plan prepared communications to their patients, including communications which compare the benefits of different health plans, unless the materials have the concurrence of all |
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MCOs involved, and have received prior approval by SDOH, and by CMS, if Medicare Advantage is referenced.
| | 5. | Contractors are responsible for ensuring that their marketing representatives engage in professional and courteous behavior in their interactions with LDSS and DOHMH staff, staff from other health plans and Medicaid clients. Examples of inappropriate behavior include interfering with other health plan presentations or talking negatively about another health plan. |
IV. Marketing Infractions
A. Infractions of Medicaid marketing guidelines, as found in Appendix D, Sections III D and E, may result in the following actions being taken by the SDOH, and/or the DOHMH to protect the interests of the program and its clients. These actions shall be taken by the SDOH, and/or DOHMH in collaboration with the CMS Regional Office.
| | 1. | If the Contractor or its representative commits a first time infraction of marketing guidelines and the SDOH and/or the DOHMH deems the infraction to be minor or unintentional in nature, the SDOH and/or the DOHMH may issue a warning letter to the Contractor. |
| | 2. | If the Contractor engages in Marketing activities that the SDOH and/or DOHMH determines to be an intentional or serious breach of the Medicaid Advantage Marketing Guidelines or the Contractor's approved Medicaid Advantage Marketing Plan, or a pattern of minor breaches, SDOH and/or the DOHMH may require the Contractor to and the Contractor shall prepare and implement a corrective action plan acceptable to the SDOH and/or DOHMH within a specified timeframe. In addition, or alternatively, SDOH and the DOHMH, in consultation with SDOH, may impose sanctions, including monetary penalties, as permitted by law. |
| | 3. | If the Contractor commits further infractions, fails to pay monetary penalties within the specified timeframe, fails to implement a corrective action plan in a timely manner or commits an egregious first time infraction, the SDOH, or the DOHMH in consultation with the SDOH, may in addition to any other legal remedy available to the SDOH and/or DOHMH in law or equity: |
a) direct the Contractor to suspend its Medicaid Advantage marketing activities for a period up to the end of the Agreement period;
b) suspend new Medicaid Advantage Enrollments, for a period up to the remainder of the Agreement period; or
c) terminate this Agreement pursuant to termination procedures described in Section 2.7 of this Agreement.
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Appendix E
New York State Department of Health
Medicaid Advantage
Model Member Handbook
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Introduction
Managed care organizations (MCOs) under contract to provide a Medicaid Advantage Product to Dually Eligible beneficiaries must provide Enrollees with a Medicaid Advantage member handbook which is consistent with the current model Medicaid Advantage member handbook provided by SDOH and approved by the CMS Regional Office and the SDOH. This model handbook is to be issued by the Contractor to Enrollees in addition to the handbook or Explanation of Coverage (EOC) required by CMS for Medicare Advantage. The model member handbook may be revised based on changes in the law and the changing needs of the program. Handbooks must be approved by the CMS Regional Office and the SDOH prior to printing and distribution by the Contractor.
General Format
Member handbooks must be written in a style and reading level that will accommodate the reading skills of Medicaid recipients. In general the writing should not exceed a fourth to sixth-grade reading level, taking into consideration the need to incorporate and explain certain technical or unfamiliar terms to assure accuracy. The text must be printed in at least twelve (12) point font. The SDOH reserves the right to require evidence that a handbook has been tested against the sixth-grade reading-level standard. Member handbooks must be available in languages other than English whenever at least five percent (5%) of the Prospective Enrollees in any county in the Contractor's service area speak that particular language and do not speak English as a first language.
Model Medicaid Advantage Handbook
It will be the responsibility of the SDOH to provide a copy of the current model Medicaid Advantage member handbook to the Contractor.
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APPENDIX F
New York State Department of Health
Medicaid Advantage Action and Grievance System Requirements
F.I General Requirements
F.2 Medicaid Advantage Action Requirements
F.3 Medicaid Advantage Grievance System Requirements
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F.I
General Requirements
1. Organization Determinations
a) Organization Determinations means any decision by or on behalf of a MCO regarding payment or services to which an Enrollee believes he or she is entitled. For the purposes of this Agreement, Organization Determinations are synonymous with Action, as defined by this Appendix.
b) Organization Determinations regarding services determined by the Contractor to be benefits covered solely by Medicare shall be conducted in accordance with the procedures and requirements of 42 CFR Subpart M of Part 422, and the Medicare Managed Care Manual.
c) Organization Determinations regarding services determined by the Contractor to be benefits covered by Medicare and Medicaid shall be conducted in accordance with the procedures and requirements of 42 CFR Subpart M of Part 422 and the Medicare Managed Care Manual, except that:
i) the Contractor will determine whether services are Medically Necessary as that
term is defined in this Agreement; and
ii) when the Contractor intends to reduce, suspend, or terminate a previously authorized service within an authorization period, the notification provisions of paragraph F.2(4)(a) of this Appendix shall apply.
d) Organization Determinations regarding services determined by the Contractor to be solely covered by Medicaid shall be conducted in accordance with Appendix F.I of this Agreement, and Articles 44 and 49 of the PHL, and 10 NYCRR Part 98, not otherwise expressly established herein.
2. Notices, Action Appeals, Complaints and Complaint Appeals
a) Services determined by the Contractor to be benefits solely covered by Medicare are subject to the Medicare Advantage Complaint and Appeals Process. In these cases, the Contractor will follow such procedures to notify Enrollees, and providers as applicable, regarding Organization Determinations and offer the Enrollee Medicare appeal rights.
b) Services determined by the Contractor to be solely covered by Medicaid are subject to the Medicaid Advantage Grievance System. In these cases, the Contractor will follow such procedures to notify Enrollees and providers regarding Organization Determinations and offer Action Appeal, Complaint, and Complaint Appeals rights in accordance with Appendices F.2 and F.3 of this Agreement and the requirements of Articles 44 and 49 of the PHL, and 10 NYCRR Part 98, not otherwise expressly established herein.
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c) For Organization Determinations regarding services determined by the Contractor to be a benefit under both Medicare and Medicaid, the Contractor must offer Enrollees the right to pursue either the Medicare appeal procedures or the Medicaid Advantage Action Appeals, Complaint, and Complaint Appeals procedures.
i) As part of, or attached to, the appropriate Organization Determination notice, the Contractor must provide Enrollees with a notice that informs the Enrollee of his or her appeal rights under both the Medicare and Medicaid Advantage programs, and of their right to select either the Medicare or Medicaid Advantage appeals process, and instructions to make such selection. Such notice shall inform the Enrollee that:
A) if he or she chooses to pursue the Medicare appeal procedures to challenge a service denial, suspension, reduction, or termination, the Enrollee may not pursue a Medicaid Advantage appeal and may not file a Fair Hearing request with the state; and
B) if he or she chooses to pursue the Medicaid Advantage appeal procedures to challenge a service denial, suspension, reduction, or termination, the Enrollee has up to 60 days from the day of the Contractor's notice of denial of coverage to pursue a Medicare appeal, regardless of the status of the Medicaid Advantage appeal.
ii) The Contractor will enclose with the notice described in (i) above the notice of Action and other attachments as may be required by Appendix F.2 (5)(a)(iii). However, the notice of Action need not duplicate information provided in the Organization Determination notice it is attached to.
iii) If the Enrollee files an appeal, but fails to select either the Medicare or Medicaid Advantage procedure, the default procedure will be the Medicaid Advantage procedure.
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F.2
Medicaid Advantage Action Requirements
1. Definitions
a) Service Authorization Request means a request by an Enrollee or a provider on the Enrollee's behalf, to the Contractor for the provision of a service, including a request for a referral or for a non-covered service.
i) Prior Authorization Request is a Service Authorization Request by the Enrollee, or a provider on the Enrollee's behalf, for coverage of a new service, whether for a new authorization period or within an existing authorization period, before such service is provided to the Enrollee.
ii) Concurrent Review Request is a Service Authorization Request by an Enrollee, or a provider on Enrollee's behalf, for continued, extended or more of an authorized service than what is currently authorized by the Contractor.
b) Service Authorization Determination means the Contractor's approval or denial of a Service Authorization Request.
c) Adverse Determination means a denial of a Service Authorization Request by the Contractor on the basis that the requested service is not Medically Necessary or an approval of a Service Authorization Request is in an amount, duration, or scope that is less than requested.
d) An Action means an activity of a Contractor or its subcontractor that results in:
i) the denial or limited authorization of a Service Authorization Request, including the type or level of service;
ii) the reduction, suspension, or termination of a previously authorized service;
iii) the denial, in whole or in part, of payment for a service;
iv) failure to provide services in a timely manner as defined by applicable State law and regulation and Section 15 of this Agreement; or
v) failure of the Contractor to act within the timeframes for resolution and notification of determinations regarding Complaints, Action Appeals and Complaint Appeals provided in this Appendix.
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2. General Requirements
a) The Contractor's policies and procedures for Service Authorization Determinations and utilization review determinations shall comply with 42 CFR Part 438 and Article 49 of the PHL, including but not limited to the following:
i) Expedited review of a Service Authorization Request must be conducted when the Contractor determines or the provider indicates that a delay would seriously jeopardize the Enrollee's life or health or ability to attain, maintain, or regain maximum function. The Enrollee may request expedited review of a Prior Authorization Request or Concurrent Review Request. If the Contractor denies the Enrollee's request for expedited review, the Contractor must handle the request under standard review timeframes.
ii) Any determination to deny a Service Authorization Request or to authorize a service in an amount, duration, or scope that is less than requested, must be made by a licensed, certified, or registered health care professional. If such Adverse Determination was based on medical necessity, the determination must be made by a clinical peer reviewer as defined by PHL §4900(2)(a).
iii) The Contractor is required to provide notice by phone and in writing to the Enrollee and to the provider of Service Authorization Determinations, whether adverse or not, within the timeframe specified in Section 3 below. Notice to the provider must contain the same information as the Notice of Action for the Enrollee.
iv) The Contractor is required to provide the Enrollee written notice of any Action other than a Service Authorization Determinations within the timeframe specified in Section 4 below.
3. Timeframes for Service Authorization Determinations
a) For Prior Authorization Requests, the Contractor must make a Service Authorization Determination and notice the Enrollee of the determination by phone and in writing as fast as the Enrollee's condition requires and no more than:
i) In the case of an expedited review, three (3) business days after receipt of the Service Authorization Request; or
ii) In all other cases, within three (3) business days of receipt of necessary information, but no more than fourteen (14) days after receipt of the Service Authorization request.
b) For Concurrent Review Requests, the Contractor must make a Service Authorization Determination and notice the Enrollee of the determination by phone and in writing as fast as the Enrollee's condition requires and no more than:
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| | i) | In the case of an expedited review, one (1) business day after receipt of necessary information but no more than three (3) business days after receipt of the Service Authorization Request; or |
| | ii) | In all other cases, within one (1) business day of receipt of necessary information, but no more than fourteen (14) days after receipt of the Service Authorization Request. |
c) Timeframes for Service Authorization Determinations may be extended for up to fourteen (14) days if:
i) the Enrollee, the Enrollee's designee, or the Enrollee's provider requests an extension orally or in writing; or
ii) The Contractor can demonstrate or substantiate that there is a need for additional information and how the extension is in the Enrollee's interest. The Contractor must send notice of the extension to the Enrollee. The Contractor must maintain sufficient documentation of extension determinations to demonstrate, upon SDOH's request, that the extension was justified.
d) If the Contractor extended its review as provided in paragraph 3(c) above, the Contractor must make a Service Authorization Determination and notice the Enrollee by phone and in writing as fast as the Enrollee's condition requires and within three (3) business days after receipt of necessary information for Prior Authorization Requests or within one (1) business day after receipt of necessary information for Concurrent Review Requests, but in no event later than the date the extension expires.
| | 4. | Timeframes for Notices of Actions Other Than Service Authorizations Determinations |
| | a) | When the Contractor intends to reduce, suspend, or terminate a previously authorized service within an authorization period, it must provide the Enrollee with a written notice at least ten (10) days prior to the intended Action, except: |
i) the period of advance notice is shortened to five (5) days in cases of confirmed
Enrollee fraud; or
ii) the Contractor may mail notice not later than date of the Action for the following:
A) the death of the Enrollee;
| | B) | a signed written statement from the Enrollee requesting service termination or giving information requiring termination or reduction of services (where the Enrollee understands that this must be the result of supplying the information); |
| | C) | the Enrollee's admission to an institution where the Enrollee is ineligible for further services; |
| | D) | the Enrollee's address is unknown and mail directed to the Enrollee is returned stating that there is no forwarding address; |
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| | E) | the Enrollee has been accepted for Medicaid services by another jurisdiction; |
or
F) the Enrollee's physician prescribes a change in the level of medical care.
b) The Contractor must mail written notice to the Enrollee on the date of the Action when the Action is denial of payment, in whole or in part, except as provided in paragraph F.2 6(b) below.
c) When the Contractor does not reach a determination within the Service Authorization Determination timeframes described above, it is considered an Adverse Determination, and the Contractor must send notice of Action to the Enrollee on the date the timeframes expire.
5. Format and Content of Notices
a) The Contractor shall ensure that all notices are in writing, in easily understood language and are accessible to non-English speaking and visually impaired Enrollees. Notices shall include that oral interpretation and alternate formats of written material for Enrollees with special needs are available and how to access the alternate formats.
i) Notice to the Enrollee that the Enrollee's request for an expedited review has been denied shall include that the request will be reviewed under standard timeframes, including a description of the timeframes.
ii) Notice to the Enrollee regarding a Contractor-initiated extension shall include:
A) the reason for the extension;
B) an explanation of how the delay is in the best interest of the Enrollee;
C) any additional information the Contractor requires from any source to make its determination;
D) the revised date by which the MCO will make its determination;
E) the right of the Enrollee to file a Complaint (as defined in Appendix F.3 ofthis Agreement)regarding the extension;
F) the process for filing a Complaint with the Contractor and the timeframes within which a Complaint determination must be made;
G) the right of an Enrollee to designate a representative to file a Complaint on behalf of the Enrollee; and
H) the right of the Enrollee to contact the New York State Department of Health regarding his or her Complaint, including the SDOH's toll-free number for Complaints.
iii) Notice to the Enrollee of an Action shall include:
A) the description of the Action the Contractor has taken or intends to take;
B) the reasons for the Action, including the clinical rationale, if any;
C) the Enrollee's right to file an Action Appeal (as defined in Appendix F.3 of this Agreement), including:
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| | I) | The fact that the Contractor will not retaliate or take any discriminatory action against the Enrollee because he/she filed an Action Appeal. |
II) The right of the Enrollee to designate a representative to file Action Appeals on his/her behalf;
D) the process and timeframe for filing an Action Appeal with the Contractor, including an explanation that an expedited review of the Action Appeal can be requested if a delay would significantly increase the risk to an Enrollee's health, a toll-free number for filing an oral Action Appeal and a form, if used by the Contractor, for filing a written Action Appeal;
E) a description of what additional information, if any, must be obtained by the Contractor from any source in order for the Contractor to make an Appeal determination;
F) the timeframes within which the Action Appeal determination must be made;
G) the right of the Enrollee to contact the New York State Department of Health with his or her Complaint, including the SDOH's toll-free number for Complaints; and
H) the notice entitled "Managed Care Action Taken" for denial of benefits or for termination or reduction in benefits, as applicable, containing the Enrollee's fair hearing and aid continuing rights.
I) For Actions based on issues of Medical Necessity or an experimental or investigational treatment, the notice of Action shall also include:
| | I) | a clear statement that the notice constitutes the initial adverse determination and specific use of the terms "medical necessity" or "experimental/investigational;" |
| | II) | a statement that the specific clinical review criteria relied upon in making the determination is available upon request; and |
| | III) | a statement that the Enrollee may be eligible for, and timeframes for filing an External Appeal, including that if so eligible, the Enrollee may request an External Appeal after first filing an expedited Action Appeal with the Contractor and receiving notice that the Contractor upholds its adverse determination, or after filing standard Action Appeal with the Contractor and receiving the Contractor's final adverse determination, or after the Contractor and the Enrollee agree to waive the internal Action Appeal process. |
6. Contractor Obligation to Notice
a) The Contractor must provide written Notice of Action to Enrollees and providers in accordance with the requirements of this Appendix, including, but not limited to, the following circumstances (except as provided for in paragraph 6(b) below):
i) the Contractor makes a coverage determination or denies a request for a referral, regardless of whether the Enrollee has received the benefit;
ii) the Contractor determines that a service does not have appropriate authorization;
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| | iii) | the Contractor denies a claim for services provided by a Non-Participating Provider for any reason; |
iv) the Contractor denies a claim or service due to medical necessity;
v) the Contractor rejects a claim or denies payment due to a late claim submission;
| | vi) | the Contractor denies a claim because it has determined that the Enrollee was not eligible for Medicaid Advantage coverage on the date of service; |
| | vii) | the Contractor denies a claim for service rendered by a Participating Provider due to lack of a referral; |
viii) the Contractor denies a claim because it has determined it is not the appropriate payor; or
| | ix) | the Contractor denies a claim due to a Participating Provider billing for Benefit Package services not included in the Provider Agreement between the Contractor and the Participating Provider. |
b) The Contractor is not required to provide written Notice of Action to Enrollees in the following circumstances:
| | i) | When there is a prepaid capitation arrangement with a Participating Provider and the Participating Provider submits a fee-for-service claim to the Contractor for a service that falls within the capitation payment; |
| | ii) | if a Participating Provider of the Contractor itemizes or "unbundles" a claim for services encompassed by a previously negotiated global fee arrangement; |
| | iii) | if a duplicate claim is submitted by the Enrollee or a Participating Provider, no notice is required, provided an initial notice has been issued; |
| | iv) | if the claim is for a service that is carved-out of the Benefit Package and is provided to an Enrollee through Medicaid fee-for-service, however, the Contractor should notify the provider to submit the claim to Medicaid; |
| | v) | if the Contractor makes a coding adjustment to a claim (up-coding or down-coding) and its Provider Agreement with the Participating Provider includes a provision allowing the Contractor to make such adjustments; |
| | vi) | if the Contractor has paid the negotiated amount reflected in the Provider Agreement with a Participating Provider for the services provided to the Enrollee and denies the Participating Provider's request for additional payment; or |
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| | vii) | if the Contractor has not yet adjudicated the claim. If the Contractor has pended the claim while requesting additional information, a notice is not required until the coverage determination has been made. |
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F.3
Medicaid Advantage Grievance System Requirements
1. Definitions
a) A Grievance System means the Contractor's Medicaid Advantage Complaint and Appeal process, and includes a Complaint and Complaint Appeal process, a process to appeal Actions, and access to the State's fair hearing system.
b) For the purposes of this Agreement, a Complaint means an Enrollee's expression of dissatisfaction with any aspect of his or her care other than an Action. A "Complaint" means the same as a "grievance" as defined by 42 CFR §438.400 (b).
c) An Action Appeal means a request for a review of an Action.
d) A Complaint Appeal means a request for a review of a Complaint determination.
e) An Inquiry means a written or verbal question or request for information posed to the Contractor with regard to such issues as benefits, contracts, and organization rules. Neither Enrollee Complaints nor disagreements with Contractor determinations are Inquiries.
2. Grievance System - General Requirements
a) The Contractor shall describe its Grievance System in the Member Handbook, and it must be accessible to non-English speaking, visually, and hearing impaired Enrollees. The handbook shall comply with The Member Handbook Guidelines (Appendix E) of this Agreement.
b) The Contractor will provide Enrollees with any reasonable assistance in completing forms and other procedural steps for filing a Complaint, Complaint Appeal or Action Appeal, including, but not limited to, providing interpreter services and toll-free numbers with TTY/TDD and interpreter capability.
c) The Enrollee may designate a representative to file Complaints, Complaint Appeals and Action Appeals on his/her behalf.
d) The Contractor will not retaliate or take any discriminatory action against the Enrollee because he/she filed a Complaint, Complaint Appeal or Action Appeal.
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e) The Contractor's procedures for accepting Complaints, Complaint Appeals and Action Appeals shall include:
i) toll-free telephone number;
ii) designated staff to receive calls;
iii) "live" phone coverage at least 40 hours a week during normal business hours;
iv) a mechanism to receive after hours calls, including either:
A) a telephone system available to take calls and a plan to respond to all such calls no later than on the next business day after the calls were recorded; or
B) a mechanism to have available on a twenty-four (24) hour, seven (7) day a week basis designated staff to accept telephone Complaints, whenever a delay would significantly increase the risk to an Enrollee's health.
f) The Contractor must ensure that personnel making determinations regarding Complaints, Complaint Appeals and Action Appeals were not involved in previous levels of review or decision-making. If any of the following applies, determinations must be made by qualified clinical personnel as specified in this Appendix:
i) A denial of an Action Appeal based on lack of medical necessity. ii) A Complaint regarding denial of expedited resolution of an Action Appeal. iii) A Complaint, Complaint Appeal, or Action Appeal that involves clinical issues.
3. Action Appeals Process
a) The Contractor's Action Appeals process shall indicate the following regarding resolution of Appeals of an Action:
i) The Enrollee, or his or her designee, will have no less than sixty (60) business days and no more than 90 days from the date of the notice of Action to file an Action Appeal. An Enrollee filing an Action Appeal within ten (10) days of the notice of Action or by the intended date of an Action, whichever is later, that involves the reduction, suspension, or termination of previously approved services may request "aid continuing" in accordance with Section 24.4 of this Agreement.
ii) The Enrollee may file a written Action Appeal or an oral Action Appeal. Oral Action Appeals must be followed by a written, signed. Action Appeal. The Contractor may provide a written summary of an oral Action Appeal to the Enrollee (with the acknowledgement or separately) for the Enrollee to review, modify if needed, sign and return to the Contractor. If the Enrollee or provider requests expedited resolution of the Action Appeal, the oral Action Appeal does not need to be confirmed in writing.
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The date of the oral filing of the Action Appeal will be the date of the Action Appeal for the purposes of the timeframes for resolution of Action Appeals. Action Appeals resulting from a Concurrent Review must be handled as an expedited Action Appeal.
iii) The Contractor must send a written acknowledgement of the Action Appeal, including the name, address and telephone number of the individual or department handling the Action Appeal, within fifteen (15) days of receipt. If a determination is reached before the written acknowledgement is sent, the Contractor may include the written acknowledgement with the notice of Action Appeal determination (one notice).
iv) The Contractor must provide the Enrollee reasonable opportunity to present evidence, and allegations of fact or law, in person as well as in writing. The Contractor must inform the Enrollee of the limited time to present such evidence in the case of an expedited Action Appeal. The Contractor must allow the Enrollee or his or her designee, both before and during the Action Appeals process, to examine the Enrollee's case file, including medical records and any other documents and records considered during the Action Appeals process. The Contractor will consider the Enrollee, his or her designee, or legal estate representative of a deceased Enrollee a party to the Action Appeal.
v) The Contractor must have a process for handling expedited Action Appeals. Expedited resolution of the Action Appeal must be conducted when the Contractor determines or the provider indicates that a delay would seriously jeopardize the Enrollee's life or health or ability to attain, maintain, or regain maximum function. The Enrollee may request an expedited review of an Action Appeal. If the Contractor denies the Enrollee's request for an expedited review, the Contractor must handle the request under standard Action Appeal resolution timeframes, make reasonable efforts to provide prompt oral notice of the denial to the Enrollee and send written notice of the denial within two (2) days of the denial determination.
vi) The Contractor must ensure that punitive action is not taken against a provider who either requests an expedited resolution or supports an Enrollee's Appeal.
vii) Action Appeals of clinical matters must be decided by personnel qualified to review the Action Appeal, including licensed, certified or registered health care professionals who did not make the initial determination, at least one of whom must be a clinical peer reviewer, as defined by PHL §4900(2)(a). Action Appeals of non-clinical matters shall be determined by qualified personnel at a higher level than the personnel who made the original determination.
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4. Timeframes for Resolution of Action Appeals
a) The Contractor's Action Appeals process shall indicate the following specific timeframes regarding Action Appeal resolution:
i) The Contractor will resolve Action Appeals as fast as the Enrollee's condition requires, and no later than thirty (30) days from the date of the receipt of the Action Appeal.
ii) The Contractor will resolve expedited Action Appeals as fast as the Enrollee's condition requires, within two (2) business days of receipt of necessary information and no later than three (3) business days of the date of the receipt of the Action Appeal.
iii) Timeframes for Action Appeal resolution, in either (i) or (ii) above, may be extended for up to fourteen (14) days if:
A) the Enrollee, his or her designee, or the provider requests an extension orally or in writing; or
B) the Contractor can demonstrate or substantiate that there is a need for additional information and the extension is in the Enrollee's interest. The Contractor must send notice of the extension to the Enrollee. The Contractor must maintain sufficient documentation of extension determinations to demonstrate, upon SDOH's request, that the extension was justified.
iv) The Contractor will make a reasonable effort to provide oral notice to the Enrollee, his or her designee, and the provider where appropriate, for expedited Action Appeals at the time the Action Appeal determination is made.
v) The Contractor must send written notice to the Enrollee, his or her designee, and the provider where appropriate, within two (2) business days of the Action Appeal determination.
5. Action Appeal Notices
a) The Contractor shall ensure that all notices are in writing and in easily understood language and are accessible to non-English speaking and visually impaired Enrollees. Notices shall include that oral interpretation and alternate formats of written material for Enrollees with special needs are available and how to access the alternate formats.
i) Notice to the Enrollee that the Enrollee's request for an expedited Action Appeal has been denied shall include that the request will be reviewed under standard Action Appeal timeframes, including a description of the timeframes. This notice may be combined with the acknowledgement.
ii) Notice to the Enrollee regarding an Contractor-initiated extension shall include:
| | A) | the reason for the extension; |
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B) an explanation of how the delay is in the best interest of the Enrollee;
C) any additional information the Contractor requires from any source to make its determination;
D) the revised date by which the MCO will make its determination;
E) the right of the Enrollee to file a Complaint regarding the extension;
F) the process for filing a Complaint with the Contractor and the timeframes within which a Complaint determination must be made;
G) the right of an Enrollee to designate a representative to file a Complaint on behalf of the Enrollee; and
H) the right of the Enrollee to contact the New York State Department of Health regarding his or her their Complaint, including the SDOH's toll-free number for Complaints.
iii) Notice to the Enrollee of Action Appeal Determination shall include:
A) Date the Action Appeal was filed and a summary of the Action Appeal;
B) Date the Action Appeal process was completed;
C) the results and the reasons for the determination, including the clinical rationale, if any;
D) If the determination was not in favor of the Enrollee, a description of Enrollee's fair hearing rights, if applicable;
E) the right of the Enrollee to contact the New York State Department of Health regarding his or her Complaint, including the SDOH's toll-free number for Complaints; and
F) For Action Appeals involving Medical Necessity or an experimental or investigational treatment, the notice must also include:
I) a clear statement that the notice constitutes the final adverse determination and specifically use the terms "medical necessity" or ' 'experimental/investigational;''
II) the Enrollee's coverage type;
III) the procedure in question, and if available and applicable the name of the provider and developer/manufacturer of the health care service;
IV) statement that the Enrollee is eligible to file an External Appeal and the timeframe for filing;
V) a copy of the "Standard Description and Instructions for Health Care Consumers to Request an External Appeal" and the External Appeal application form;
VI) the Contractor's contact person and telephone number;
VII) the contact person, telephone number, company name and full address of the utilization review agent, if the determination was made by the agent;
and
VIII) if the Contractor has a second level internal review process, the notice shall contain instructions on how to file a second level Action Appeal and a statement in bold text that the timeframe for requesting an External Appeal begins upon receipt of the final adverse determination of the first level Action Appeal, regardless of whether or not a second level of Action Appeal is requested, and that by choosing to request a second level Action appeal, the time may expire for the Enrollee to request an External Appeal.
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6. Complaint Process
a) The Contractor' Complaint process shall include the following regarding the handling of Enrollee Complaints:
| | i) | The Enrollee, or his or her designee, may file a Complaint regarding any dispute with the Contractor orally or in writing. The Contractor may have requirements for accepting written Complaints either by letter or Contractor supplied form. The Contractor cannot require an Enrollee to file a Complaint in writing. |
| | ii) | The Contractor must provide written acknowledgment of any Complaint not immediately resolved, including the name, address and telephone number of the individual or department handling the Complaint, within fifteen (15) business days of receipt of the Complaint. The acknowledgement must identify any additional information required by the Contractor from any source to make a determination. If a Complaint determination is made before the written acknowledgement is sent, the Contractor may include the acknowledgement with the notice of the determination (one notice). |
| | iii) | Complaints shall be reviewed by one or more qualified personnel. |
iv) Complaints pertaining to clinical matters shall be reviewed by one or more licensed, certified or registered health care professionals in addition to whichever non-clinical personnel the Contractor designates.
7. Timeframes for Complaint Resolution by the Contractor
a) The Contractor's Complaint process shall indicate the following specific timeframes regarding Complaint resolution:
i) If the Contractor immediately resolves an oral Complaint to the Enrollee's satisfaction, that Complaint may be considered resolved without any additional written notification to the Enrollee. Such Complaints must be logged by the Contractor and included in the Contractor's quarterly HPN Complaint report submitted to SDOH in accordance with Section 18 of this Agreement.
ii) Whenever a delay would significantly increase the risk to an Enrollee's health, Complaints shall be resolved within forty-eight (48) hours after receipt of all necessary information and no more than seven (7) days from the receipt of the Complaint.
iii) All other Complaints shall be resolved within forty-five (45) days after the receipt of all necessary information and no more than sixty (60) days from receipt of the Complaint. The Contractor shall maintain reports of Complaints unresolved after forty-five (45) days in accordance with Section 18 of this Agreement.
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8. Complaint Determination Notices
a) The Contractor's procedures regarding the resolution of Enrollee Complaints shall include the following:
i) Complaint Determinations by the Contractor shall be made in writing to the Enrollee or his/her designee and include:
A) the detailed reasons for the determination;
B) in cases where the determination has a clinical basis, the clinical rationale for the determination;
C) the procedures for the filing of an appeal of the determination, including a form, if used by the Contractor, for the filing of such a Complaint Appeal; and notice of the right of the Enrollee to contact the State Department of Health regarding his or her Complaint, including SDOH's toll-free number for Complaints.
ii) If the Contractor was unable to make a Complaint determination because insufficient information was presented or available to reach a determination, the Contractor will send a written statement that a determination could not be made to the Enrollee on the date the allowable time to resolve the Complaint has expired.
iii) In cases where delay would significantly increase the risk to an Enrollee's health, the Contractor shall provide notice of a determination by telephone directly to the Enrollee or to the Enrollee's designee, or when no phone is available, some other method of communication, with written notice to follow within three (3) business days.
9. Complaint Appeals
a) The Contractor's procedures regarding Enrollee Complaint Appeals shall include the following:
i) The Enrollee or designee has no less than sixty (60) business days after receipt of the notice of the Complaint determination to file a written Complaint Appeal. Complaint Appeals may be submitted by letter or by a form provided by the Contractor.
ii) Within fifteen (15) business days of receipt of the Complaint Appeal, the Contractor shall provide written acknowledgment of the Complaint Appeal, including the name, address and telephone number of the individual designated to respond to the Appeal. The Contractor shall indicate what additional information, if any, must be provided for the Contractor to render a determination.
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iii) Complaint Appeals of clinical matters must be decided by personnel qualified to review the Appeal, including licensed, certified or registered health care professionals who did not make the initial determination, at least one of whom must be a clinical peer reviewer, as defined by PHL §4900(2)(a).
iv) Complaint Appeals of non-clinical matters shall be determined by qualified personnel at a higher level than the personnel who made the original Complaint determination.
v) Complaint Appeals shall be decided and notification provided to the Enrollee no more than:
A) two (2) business days after the receipt of all necessary information when a delay would significantly increase the risk to an Enrollee's health; or
B) thirty (30) business days after the receipt of all necessary information in all other instances.
vi) The notice of the Contractor's Complaint Appeal determination shall include:
A) the detailed reasons for the determination;
B) the clinical rationale for the determination in cases where the determination has a clinical basis;
C) the notice shall also inform the Enrollee of his/her option to also contact the State Department of Health with his/her Complaint, including the SDOH's toll-free number for Complaints;
D) instructions for any further Appeal, if applicable.
10. Records
a) The Contractor shall maintain a file on each Complaint, Action Appeal and Complaint Appeal. These records shall be readily available for review by the SDOH, upon request. The file shall include:
i) date the Complaint was filed;
ii), copy of the Complaint, if written;
iii) date of receipt of and copy of the Enrollee's written confirmation, if any;
iv) log of Complaint determination including the date of the determination and the titles of the personnel and credentials of clinical personnel who reviewed the Complaint;
v) date and copy of the Enrollee's Action Appeal or Complaint Appeal;
vi) Enrollee or provider requests for expedited Action Appeals and Complaint Appeals and the Contractor's determination;
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vii) necessary documentation to support any extensions;
viii) determination and date of determination of the Action Appeals and Complaint Appeals;
ix) the titles and credentials of clinical staff who reviewed the Action Appeals and Complaint Appeals; and
x) Complaints unresolved for greater than forty-five (45) days.
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APPENDIX G
Reserved
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APPENDIX H
New York State Department of Health Guidelines for the Processing of Medicaid Advantage Enrollments and Disenrollments
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Appendix H SDOH Guidelines
For the Processing of Medicaid Advantage Enrollments and Disenrollments
1. General
The Contractor's Enrollment and Disenrollment procedures for Medicaid Advantage shall be consistent with these requirements, except that to allow LDSS and the Contractor flexibility in developing processes that will meet the needs of both parties, the SDOH may allow modifications to timeframes and some procedures. Where an Enrollment Broker exists, the Enrollment Broker may be responsible for some or all of the LDSS responsibilities.
2. Enrollment
a) SDOH Responsibilities:
i) The SDOH is responsible for monitoring Local District program activities and providing technical assistance to the LDSS and the Contractor to ensure compliance with the State's policies and procedures.
ii) SDOH reviews and approves proposed Enrollment materials prior to the Contractor publishing and disseminating or otherwise using the materials.
b) LDSS Responsibilities:
i) The LDSS has the primary responsibility for processing Medicaid Advantage enrollments.
ii) Each LDSS determines Medicaid eligibility. To the extent practicable, the LDSS will follow up with Enrollees when the Contractor provides documentation of any change in status which may affect the Enrollee's Medicaid and/or Medicaid Advantage eligibility.
iii) The LDSS is responsible for providing pre-enrollment information on Medicaid Advantage to Dually Eligible beneficiaries, consistent with Social Services Law, Section 364-j(4)(e)(iv) and train persons providing enrollment counseling to Eligible Persons.
iv) The LDSS is responsible for informing Eligible Persons of the availability of Medicaid Advantage Products, the scope of services covered by each, and that enrollment is voluntary.
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v) The LDSS is responsible for informing Eligible Persons of the right to confidential face-to-face enrollment counseling and will make confidential face-to-face sessions available upon request.
vi) The LDSS is responsible for instructing Eligible Persons, to verify with the medical services providers they prefer, or have an existing relationship with, that such medical services providers are Participating Providers of the selected MCO and are available to serve the Enrollee. The LDSS includes such written instructions to Eligible Persons in its written materials related to Enrollment.
vii) For Enrollments made during face-to-face counseling, if the Prospective Enrollee has a preference for particular medical services providers, Enrollment counselors shall verify with the medical services providers that such medical services providers whom the prospective Enrollee prefers are Participating Providers of the selected MCO and are available to serve the Prospective Enrollee.
viii) The LDSS is responsible for the timely processing of Medicaid Advantage Enrollment applications received from participating health plans.
ix) The LDSS is responsible for processing Enrollments in Medicaid Advantage without edits for Medicare coverage in the Welfare Management System (WMS); however the LDSS is responsible for ensuring that WMS is updated with Medicare A and B coverage status for new Enrollees upon review of documentation provided by the Contractor or the Enrollee.
x) The LDSS is responsible for determining the eligibility status of Medicaid Advantage enrollment applications. Applications will be enrolled, pended or denied.
xi) The LDSS is responsible for processing Medicaid Advantage enrollment applications until the last day of the month preceding th-e Effective Date of Enrollment, to the extent possible.
xii) The LDSS is responsible for notifying the Contractor of plan-assisted enrollment applications that are accepted, pended or denied.
xiii) The LDSS is responsible for entering individual enrollment form data and transmitting that data to the State's Prepaid Capitation Plan (PCP) Subsystem. The transfer of enrollment information may "be accomplished by any of the following:
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A) LDSS directly enters data into PCP Subsystem; or
B) LDSS or Contractor submits a tape to the State, to be edited and entered into PCP Subsystem; or
C) LDSS electronically transfers data via a dedicated line, from eMedNY to the PCP Subsystem.
xiv) Extensive use of the secondary roster will be utilized to coordinate the Effective Dates of Enrollment for Medicaid and Medicare Advantage.
xv) The LDSS is responsible for prospectively re-enrolling an Enrollee who is disenrolled from the Contractor's Medicaid Advantage Product due to loss of Medicaid eligibility, who regains eligibility within three months, in the Contractor's Medicaid Advantage Product, provided that the individual remains enrolled in the Contractor's Medicare Advantage Product.
xvi) The LDSS is responsible for processing new Enrollment applications to transfer a member of the Contractor's Medicaid managed care product to the Contractor's Medicaid Advantage Product if the Enrollee, upon gaining Medicare eligibility, wishes to enroll in the Contractor's Medicaid Advantage Product. To the extent possible, such Enrollments shall be made effective the first day of the month that the Enrollee's Medicare Advantage Coverage is effective.
xvii) The LDSS is responsible for sending the following notices to Eligible Persons:
A) Enrollment Confirmation Notice: This notice indicates the Effective Date of Enrollment, the name of the Medicaid Advantage Product and the individual who is being enrolled. This notice must also include a statement advising the individual that if his/her Medicare Advantage enrollment is denied by CMS, the individual's Medicaid Advantage Enrollment will be voided retroactively back to the Effective Date of Enrollment, hi such instances, the individual may be responsible for the cost of any Medicaid Advantage Benefit rendered during the retroactive period if the benefit was provided by a non-Medicaid participating provider.
B) Notice of Denial of Enrollment: This notice is used when an individual has been determined by LDSS to be ineligible for enrollment into a Medicaid Advantage Product. This notice must include fair hearing rights.
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c) Contractor Responsibilities:
i) To the extent permitted by law and regulation, the Contractor is responsible for assisting Dually Eligible persons eligible for enrollment in Medicaid Advantage to complete the Enrollment application. The Contractor will submit plan Enrollments to the LDSS, within a maximum of five (5) business days from the day the Enrollment is received by the Contractor (unless otherwise agreed to by SDOH and LDSS).
ii) The Contractor is responsible for obtaining documentation of Medicare A and B coverage prior to sending the Enrollment transaction to the LDSS for processing. In all areas where Enrollments are not processed by the Enrollment Broker, the documentation must accompany the Enrollment form to the LDSS. Acceptable documentation includes: a current Medicare card or other documentation acceptable to CMS or received by the Contractor from interaction with CMS' data systems.
iii) In areas where Enrollments are submitted electronically to the Enrollment Broker, the Contractor is responsible for forwarding the documentation of current Medicare A and B coverage to the Enrollment Broker within five (5) business days of learning from the Enrollment Broker that evidence of Medicare A and B coverage is not reflected in the WMS system.
iv) The Contractor must notify new Enrollees of their Effective Date of Enrollment. To the extent practicable, such notification must precede the Effective Date of Enrollment. This notice must also include a statement advising the individual that if his/her Medicare Advantage enrollment is denied by CMS, the individual's Medicaid Advantage Enrollment will be voided retroactively back to the Effective Date of Enrollment. In such instances, the individual may be responsible for the cost of any Medicaid Advantage Benefit rendered during the retroactive period if the benefit was provided by a non-Medicaid participating provider.
v) The Contractor must report any changes in status for its Enrollees to the LDSS within five (5) business days of such information becoming known to the Contractor. This includes, but is not limited to, factors that may impact Medicaid or Medicaid Advantage eligibility such as address changes, incarceration, third party insurance other than Medicare, Disenrollment from the Contractor's Medicare Advantage Product, etc.
vi) If an Enrollee's Enrollment in the Contractor's Medicare Advantage Product is rejected by CMS, the Contractor must notify the LDSS within five (5) business days of learning of CMS' rejection of the Enrollment.
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In such instances, the LDSS shall delete the Enrollee's Enrollment in the Contractor's Medicaid Advantage Plan.
vii) The Contractor shall advise potential Enrollees, in written materials related to enrollment, to verify with the medical services providers they prefer, or have an existing relationship with, that such medical services providers are Participating Providers and are available to serve the Prospective Enrollee.
viii) The Contractor shall accept all Enrollments as ordered by the Office of Temporary and Disability Assistance's Office of Administrative Hearings due to fair hearing requests or decisions.
3. Newborn Enrollments:
a) SDOH Responsibilities:
i) The SDOH will update WMS with information on the newborn received from hospitals or birthing centers, consistent with the requirements of Section 366-g of the Social Services Law as amended by Chapter 412 of the Laws of 1999.
ii) Upon notification of the birth by the hospital or birthing center, the SDOH will update WMS with the demographic data for the newborn generating appropriate Medicaid coverage.
b) LDSS Responsibilities:
i) The LDSS is responsible for granting Medicaid eligibility for newboms for one (1) year if born to a woman eligible for and receiving MA assistance on the date of birth. (Social Services Law Section 366(4)(1))
ii) The LDSS is responsible for adding eligible unboms to all WMS cases that include a pregnant woman as soon as the pregnancy is medically verified. (NYS DSS Administrative Directive 85 ADM-33)
iii) hi the event that the LDSS learns of an Enrollee's pregnancy prior to the Contractor, the LDSS is responsible for establishing MA eligibility and enrolling the unborn into Medicaid managed care in cases where an enrollment form is received or other members of the family are enrolled in a mainstream plan.
iv) When a newborn is enrolled in managed care, the LDSS is responsible for sending an Enrollment Confirmation Notice to inform the mother of the Effective Date of Enrollment, which is the first (1st) day of the month of birth, and the plan in which the newborn is enrolled.
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v) The LDSS may develop a transmittal form to be used for unbom/newbom notification between the Contractor and the LDSS.
c) Contractor Responsibilities:
i) The Contractor must notify the LDSS in writing of any Enrollee that is pregnant within thirty (30) days of knowledge of the pregnancy. Notifications should be transmitted to the LDSS at least monthly. The notifications should contain the pregnant woman's name. Client ID Number (CIN), and the expected date of confinement (EDC).
ii) Upon the newborn's birth, the Contractor must send verifications of infant's demographic data to the LDSS, within five (5) days after knowledge of the birth. The demographic data must include: the mother's name and CIN, the newborn's name and CIN (if newborn has a CIN), sex and the date of birth.
4. Roster Reconciliation:
a) All Enrollments are effective the first of the month.
b) SDOH Responsibilities:
i) The SDOH maintains both the PCP subsystem Enrollment files and the WMS eligibility files, using data input by the LDSS. SDOH uses data contained in both these files to generate the Roster.
ii) SDOH shall send monthly to the the Contractor and LDSS (according to a schedule established by SDOH), a complete list of all Enrollees for which the Contractor is expected to assume medical risk beginning on the 1st of the following month (First Monthly Roster). Notification to the Contractor and LDSS will be accomplished via paper transmission, magnetic media, or the HPN.
iii) SDOH shall send monthly to the Contractor and LDSS, at the time of the first monthly roster production; a Disenrollment Report listing those Enrollees from the previous month's roster who were disenrolled, transferred to another MCO, or whose Enrollments were deleted from the file. Notification to the Contractor and LDSSs will be accomplished via paper transmission, magnetic media, or the HPN.
iv) The SDOH shall also forward an error report as necessary to the Contractor and LDSS.
v) On the first (1st) weekend after the first (1st) day of the month following the generation of the first (1st) Roster, SDOH shall send the Contractor
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and LDSS a second Roster which contains any additional Enrollees that the LDSS has added for Enrollment for the current month. The SDOH will also include any additions to the error report that have occurred since the initial error report was generated.
c) LDSS Responsibilities:
i) The LDSS is responsible for notifying the Contractor electronically or in writing of changes in the First Roster and error report, no later than the end of the month. This includes, but is not limited to, new Enrollees whose Enrollments in Medicaid Advantage were processed subsequent to the pull-down date but prior to the Effective Date of Enrollment. (Note: To the extent practicable the date specified must allow for timely notice to Enrollees regarding their Enrollment status. The Contractor and the LDSS may develop protocols for the purpose of resolving Roster discrepancies that remain unresolved beyond the end of the month).
ii) Enrollment and eligibility issues are reconciled by the LDSS to the extent possible, through manual adjustments to the PCP subsystem Enrollment and WMS eligibility files, if appropriate.
d) Contractor Responsibilities:
i) The Contractor is at risk for providing Benefit Package services for those Enrollees listed on the 1st and 2nd Rosters for the month in which the 2nd Roster is generated. Contractor is not at risk for providing services to Enrollees who appear on the monthly Disenrollment report.
ii) The Contractor must submit claims to the State's Fiscal Agent for all Eligible Persons that are on the 1st and 2nd Rosters (see Appendix H, page 7), adjusted to add Eligible Persons enrolled by the LDSS after Roster production and to remove individuals disenrolled by LDSS after Roster production (as notified to the Contractor). In the cases of retroactive Disenrollments, the Contractor is responsible for submitting an adjustment to void any previously paid premiums for the period of retroactive Disenrollment, where the Contractor was not at risk for the provision of Benefit Package services. Payment of sub-capitation does not constitute "provision of Benefit Package services."
5. Disenrollment:
a) LDSS Responsibilities:
i) Enrollees may request to disenroll from the Contractor's Medicaid Advantage product at any time for any reason. Disenrollment requests may be made by Enrollees to the LDSS, the Enrollment Broker, or the Contractor.
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ii) Medicaid Advantage Plans, LDSSs, and the Enrollment Broker must utilize State-approved Disenrollment forms.
iii) The LDSS will accept requests for Disenrollment directly from the Enrollee or from the Contractor.
iv) Enrollees may initiate a request for an expedited Disenrollment to the LDSS. The LDSS is responsible for expediting the Disenrollment process in those cases where an Enrollee's request for Disenrollment involves concurrent Disenrollment from the Contractor's Medicare Advantage Product, an urgent medical need, a complaint of non-consensual enrollment or, in New York City, homeless individuals in the shelter system. If approved, the LDSS will manually process the Disenrollment through the PCP Subsystem. Enrollees who request to be disenrolled from Medicaid Advantage based on their documented HIV, ESRD, or SPMI/SED status are categorically eligible for an expedited Disenrollment on the basis of urgent medical need.
v) The LDSS is responsible for processing routine Disenrollment requests to take effect on the first (1st) day of the following month to the extent possible. In no event shall the Effective Date of Disenrollment be later than the first (1st) day of the second month after the month in wilich an Enrollee requests a Disenrollment.
vi) The LDSS is responsible for disenrolling Enrollees automatically upon death, Disenrollment from the Contractor's Medicare Acrvantage Product, or loss of Medicaid eligibility. All such Disenrollments will be effective at the end of the month in which the death. Effective Date of Disenrollment from the Contractor's Medicare Advantage Product, or loss of eligibility occurs, or at the end of the last month of Guaranteed Eligibility, where applicable.
vii) The LDSS is responsible for promptly disenrolling an Enrollee whose managed care eligibility or status changes such that he/she is deemed by the LDSS to no longer be eligible for Medicaid Advantage Enrollment. The LDSS is responsible for providing Enrollees with a notice of their right to request a fair hearing.
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viii) The LDSS is responsible for ensuring that Retroactive Disenrollments are used only when absolutely necessary. Circumstances warranting a retroactive Disenrollment are rare and include when an individual is deemed to have been non-consensually enrolled in the Contractor's Medicaid Advantage Product, is enrolled when ineligible for Enrollment, or when an Enrollee enters or resides in a residential institution under circumstances which render the individual ineligible; is incarcerated; is retroactively disenrolled from the Contractor's Medicare Advantage Product, or dies - as long as the Contractor was not at risk for provision of Benefit Package services for any portion of the retroactive period. Payment of subcapitation does not constitute "provision of Benefit Package services." The LDSS is responsible for notifying the Contractor of the retroactive disenrollment prior to the action. The LDSS is responsible for finding out if the Contractor has made payments to providers on behalf of the Enrollee prior to Disenrollment. After this information is obtained, the LDSS and Contractor will agree on a retroactive Disenrollment or prospective Disenrollment date.
In all cases of retroactive Disenrollment, including Disenrollments effective the first day of the current month, the LDSS is responsible for sending notice to the Contractor at the time of Disenrollrnent, of the Contractor's responsibility to submit to the SDOH's Fiscal Agent voided premium claims for any full months of retroactive Disenrollment where the Contractor was not at risk for the provision of Benefit Package services during the month. However, failure by the LDSS to so notify the Contractor does not affect the right of the SDOH to recover the premium payment as authorized by Section 3.6 of this Agreement.
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ix) Generally the effective dates of Disenrollment are prospective. Effective dates for other than routine Disenrollments are described below:
Reason for Disenrollment | Effective Date of Disenrollment |
• Death of Enrollee | • First day of the month after death |
• Incarceration | • First day of the month of incarceration (note-Contractor is at risk for covered services only to the date of incarceration and is entitled to the capitation payment for the month of incarceration). |
• Enrollee entered or stayed in a residential institution under circumstances which rendered the individual ineligible for enrollment in Medicaid Advantage or is in receipt ofwaivered services through the Long Term Home Health Care Program (LTHHCP), including when an Enrollee is admitted to a hospital that 1) is certified by Medicare as a long-term care hospital and 2) has an average length of stay for all patients greater than ninety-five (95) days as reported in the Statewide Planning and Research Cooperative System (SPARCS) Annual Report 2002. | • First day of the month of entry or first day of the month of classification of the stay as permanent, subsequent to entry (note-Contractor is at risk for covered services only to the date of entry or classification of the stay as permanent subsequent to entry, and is entitled to the capitation payment for the month of entry or classification of the stay as permanent subsequent to entry). |
• Individual enrolled while ineligible for enrollment | • Effective Date of Enrollment in the Contractor's Plan. |
• Non-consensual Enrollment | • Retroactive to the first day of the month of Enrollment |
• Enrollee moved outside of the District/County of Fiscal Responsibility | • First day of the month after the update of the system with the new address* |
• Urgent medical need | • First day of the next month after determination except where medical need requires an earlier Disenrollment |
• Homeless Enrollees in Medicaid Advantage residing in the shelter system in NYC | • Retroactive to the first day of the month of the request |
• An Enrollee with more than one Client Identification Number (CIN) is enrolled in the Contractor's Medicaid Advantage Product under more than one of the CINs. | • First day of the month the duplicate Enrollment began. |
* In counties outside of New York City, LDSSs should work together to ensure continuity of care through the Contractor if the Contractor's service area includes the county to which the Enrollee has moved and the Enrollee, with continuous eligibility, wishes to stay enrolled in the Contractor's plan. In New York City, Enrollees, not in guaranteed status, who move out of the Contractor's
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Service Area but not outside, of the City of New York (e.g., move from one borough to another), will not be involuntarily disenrolled, but must request a Disenrollment or transfer. These Disenrollments will be performed on a routine basis unless there is an urgent medical need to expedite the Disenrollment.
x) The LDSS is responsible for informing Enrollees of their right to disenroll at any time for any reason.
xi) The LDSS will render a decision within five (5) days of the receipt of a fully documented request for Disenrollment.
xii) To the extent possible, the LDSS is responsible for processing an expedited disenrollment within two (2) business days of its determination that an expedited Dissenrollment is warranted.
xiii) The LDSS is responsible for sending the following notices to Enrollees regarding their Disenrollment status. Where practicable, the process will allow for timely notification to Enrollees unless there is "good cause" to disenroll more expeditiously.
A) Notice of Disenrollment: These notices will advise the Enrollee of the LDSS's determination regarding an Enrollee-initiated, LDSS-initiated or Contractor-initiated Disenrollment and will include the Effective Date of Disenrollment. In cases where the Enrollee is being involuntarily disenrolled, the notice must contain fair hearing rights.
B) When the LDSS denies any Enrollee's request for Disenrollment pursuant to Section 8 of this Agreement, the LDSS is responsible for informing the Enrollee in writing explaining the reason for the denial, stating the facts upon which the denial is based, citing the statutory and regulatory authority and advising the Enrollee of his/her right to a fair hearing pursuant to 18 NYCRR Part 358.
C) Notice of Change to "Guarantee Coverage": This notice will advise the Enrollee that his or her Medicaid coverage is ending and how this affects his or her enrollment in the Medicaid Advantage Product. This notice contains pertinent information regarding "Guaranteed Eligibility" benefits and dates of coverage. If an Enrollee is not eligible for guarantee, this notice is not necessary.
xiv) In those instances where the LDSS approves the Contractor's request to disenroll an Enrollee, and the Enrollee requests a fair hearing, the Enrollee will remain in the Contractor's Medicaid Advantage Product until the disposition of the fair hearing, if Aid to Continue is ordered by the New York State Office of Administrative Hearings.
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xv) The LDSS is responsible for reviewing each Contractor requested Disenrollment in accordance with the provisions of Section 8.7 of this Agreement. Where applicable, the LDSS may consult with local mental health and substance abuse authorities in the district when making the determination to approve or disapprove the request.
xvi) The LDSS is responsible for establishing procedures whereby the Contractor refers cases which are appropriate for an LDSS-initiated Disenrollment and submits supporting documentation to the LDSS.
xvii) After the LDSS receives and, if appropriate, approves the request for Disenrollment either from the Enrollee or the Contractor, the LDSS is responsible for updating the PCP subsystem file with an end date. The Enrollee is removed from the Contractor's Roster.
b) Contractor Responsibilities:
i) In those instances where the Contractor directly receives Disenrollment forms, the Contractor will forward these Disenrollments to the LDSS for processing within five (5) business days (or according to Section 5 of this Appendix). During pull-down week, these forms may be faxed to the LDSS with the hard copy to follow.
ii) The Contractor must accept and transmit all requests for voluntary Disenrollments from its Enrollees to the LDSS, and shall not impose any barriers to Disenrollment requests. The Contractor may require that a Disenrollment request be in writing, contain the signature of the Enrollee, and state the Enrollee's correct Contractor or Medicaid identification number.
iii) Following LDSS procedures, the Contractor will refer cases which are appropriate for an LDSS-initiated Disenrollment and will submit supporting documentation to the LDSS. This includes, but is not limited to, changes in status for its enrolled members that may impact eligibility for Enrollment in an MCO such as address changes, incarceration, death, ineligibility for Medicaid Advantage Enrollment, change in Medicare status, etc.
iv) With respect to Contractor-initiated Disenrollments:
A) The Contractor may initiate an involuntary Disenrollment if the Enrollee:
i) engages in conduct or behavior that seriously impairs the Contractor's ability to furnish services to either the Enrollee or other Enrollee's, provided that the Contractor has made
Medicaid Advantage Contract
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and documented reasonable efforts to resolve the problems presented by the Enrollee; or
ii) provides fraudulent information on an enrollment form or permits abuse of an enrollment card except when the Enrollee is no longer eligible for Medicaid and is in his/her Guaranteed Eligibility period.
B) The Contractor may not request Disenrollment because of an adverse change in the Enrollee's health status, or because of the Enrollee's utilization of medical services, diminished mental capacity, or uncooperative or disruptive behavior resulting from the Enrollee's special needs (except where continued enrollment in the Contractor's plan seriously impairs the Contractor's ability to furnish services to either the Enrollee or other Enrollees).
C) The Contractor must make a reasonable effort to identify for the Enrollee, both verbally and in writing, those actions of the Enrollee that have interfered with the effective provision of covered services as well as explain what actions or procedures are acceptable.
D) The Contractor shall give prior verbal and written notice to the Enrollee, with a copy to the LDSS, of its intent to request Disenrollment. The written notice shall advise the Enrollee that the request has been forwarded to the LDSS for review and approval. The written notice must include the mailing address and telephone number of the LDSS.
E) The Contractor shall keep the LDSS informed of decisions related to all complaints filed by an Enrollee as a result of, or subsequent to, the notice of intent to disenroll.
v) The Contractor will not consider an Enrollee disenrolled without confirmation from the LDSS or the Roster (as described in Section 4 of this Appendix).
Medicaid Advantage Contract
APPENDIX H
New York
City 2006
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APPENDIX I
Reserved
Medicaid Advantage Contract APPENDIX I
New York City 2006
1-1
APPENDIX J
New York State Department of Health Guidelines for Contractor Compliance with the Federal Americans with Disabilities Act
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I. OBJECTIVES
Title II of the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied access to the benefits of services, programs or activities of a public entity, or be subject to discrimination by such an entity. Public entities include State and local government and ADA and Section 504 requirements extend to all programs and services provided by State and local government. Since MMC and FHPlus are government programs, health services provided through MMC and FHPlus Programs must be accessible to all that qualify for them.
Contractor responsibilities for compliance with the ADA are imposed under Title II and Section 504 when, as a Contractor in a MMC or FHPlus Program, a Contractor is providing a government service. If an individual provider under contract with the Contractor is not accessible, it is the responsibility of the Contractor to make arrangements to assure that alternative services are provided. The Contractor may-determine it is expedient to make arrangements with other providers, or to describe reasonable alternative means and methods to make these services accessible through its existing Participating Providers. The goals of compliance with ADA Title II requirements are to offer a level of services that allows people with disabilities access to the program in its entirety, and the ability to achieve the same health care results as any Enrollee.
Contractor responsibilities for compliance with the ADA are also imposed under Title III when the Contractor functions as a public accommodation providing services to individuals (e.g. program areas and sites such as Marketing, education, member services, orientation. Complaints and Appeals). The goals of compliance with ADA Title III requirements are to offer a level of services that allows people with disabilities full and equal enjoyment of the goods, services, facilities or accommodations that the entity provides for its customers or clients. New and altered areas and facilities must be as accessible as possible. Whenever Contractors engage in new construction or renovation, compliance is also required with accessible design and construction standards promulgated pursuant to the ADA as well as State and local laws. Title III also requires that public accommodations undertake "readily achievable barrier removal" in existing facilities where architectural and communications barriers can be removed easily and without much difficulty or expense.
The State uses MCO Qualification Standards to qualify MCOs for participation in the MMC and FHPlus Programs. Pursuant to the State's responsibility to assure program access to all Enrollees, the Plan Qualification Standards require each MCO to submit an ADA Compliance Plan that describes in detail how the MCO will make services, programs and activities readily accessible and useable by individuals with disabilities. In the event that certain program sites are not readily accessible, the MCO must describe reasonable alternative methods for making the services or activities accessible and usable.
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The objectives of these guidelines are threefold:
• To ensure that Contractors take appropriate steps to measure access and assure program accessibility for persons with disabilities;
• To provide a framework for Contractors as they develop a plan to assure compliance with the Americans with Disabilities Act (ADA); and
• To provide standards for the review of the Contractor Compliance Plans.
These guidelines include a general standard followed by a discussion of specific considerations and suggestions of methods for assuring compliance. Please be advised that, although these guidelines and any subsequent reviews by State and local governments can give the Contractor guidance, it is ultimately the Contractor's obligation to ensure that it complies with its Contractual obligations, as well as with the requirements of the ADA, Section 504, and other federal, state and local laws. Other federal, state and local statutes and regulations also prohibit discrimination on the basis of disability and may impose requirements in addition to those established under ADA. For example, while the ADA covers those impairments that "substantially" limit one or more of the major life activities of an individual. New York City Human Rights Law deletes the modifier "substantially".
II. DEFINITIONS
A. "Auxiliary aids and services" may include qualified interpreters, note takers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for Enrollees who are deaf or hard of hearing (TTY/TDD), video test displays, and other effective methods of making aurally delivered materials available to individuals with hearing impairments; qualified readers, taped texts, audio recordings, Braille materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments.
B. "Disability" means a mental or physical impairment that substantially limits one or more of the major life activities of an individual; a record of such impairment; or being regarded as having such an impairment.
III. SCOPE OF CONTRACTOR COMPLIANCE PLAN
The Contractor Compliance Plan must address accessibility to services at Contractor's program sites, including both Participating Provider sites and Contractor facilities intended for use by Enrollees.
IV. PROGRAM ACCESSIBILITY
Public programs and services, when viewed in their entirety must be readily accessible to and useable by individuals with disabilities. This standard includes physical access, non-discrimination in policies and procedures and communication. Communications with individuals with disabilities are required to be as
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effective as communications with others. The Contractor Compliance Plan must include a detailed description of how Contractor services, programs, and activities are readily accessible and usable by individuals with disabilities. In the event that full physical accessibility is not readily available for people with disabilities, the Contractor Compliance Plan will describe the steps or actions the Contractor will take to assure accessibility to services equivalent to those offered at the inaccessible facilities.
IV PROGRAM ACCESSIBILITY
A. PRE-ENROLLMENT MARKETING AND EDUCATION
STANDARD FOR COMPLIANCE
Marketing staff, activities and materials will be made available to persons with disabilities. Marketing materials will be made available in alternative formats (such as Braille, large print, and audiotapes) so that they are readily usable by people with disabilities.
SUGGESTED METHODS FOR COMPLIANCE
1. Activities held in physically accessible location, or staff at activities available to meet with person in an accessible location as necessary
2. Materials available in alternative formats, such as Braille, large print, audio tapes
3. Staff training which includes training and information regarding attitudinal barriers related to disability
4. Activities and fairs that include sign language interpreters or the distribution of a written summary of the marketing script used by Contractor marketing representatives
5. Enrollee health promotion material/activities targeted specifically to persons with disabilities (e.g. secondary infection prevention, decubitus prevention, special exercise programs, etc.)
6. Policy statement that Marketing Representatives will offer to read or summarize to blind or vision impaired individuals any written material that is typically distributed to all Enrollees
7. Staff/resources available to assist individuals with cognitive impairments in understanding materials
COMPLIANCE PLAN SUBMISSION
1. A description of methods to ensure that the Contractor's Marketing presentations (materials and communications) are accessible to persons with auditory, visual and cognitive impairments
2. A description of the Contractor's policies and procedures, including Marketing training, to ensure that Marketing Representatives neither screen health status nor ask questions about health status or prior health care services
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IV. PROGRAM ACCESSIBILITY
B. MEMBER SERVICES DEPARTMENT
Member services functions include the provision to Enrollees of information necessary to make informed choices about treatment options, to effectively utilize the health care resources, to assist Enrollees in making appointments, and to field questions and Complaints, to assist Enrollees with the Complaint process.
Bl. ACCESSIBILITY
STANDARD FOR COMPLIANCE
Member Services sites and functions will be made accessible to and usable by, people with disabilities.
SUGGESTED METHODS FOR COMPLIANCE (include, but are not limited to those identified below):
1. Exterior routes of travel, at least 36" wide, from parking areas or public transportation stops into the Contractor's facility
2. If parking is provided, spaces reserved for people with disabilities, pedestrian ramps at sidewalks, and drop-offs
3. Routes of travel into the facility are stable, slip-resistant, with all steps > Vi" ramped, doorways with minimum 32" opening
4. Interior halls and passageways providing a clear and unobstructed path or travel at least 36" wide to bathrooms and other rooms commonly used by Enrollees
5. Waiting rooms, restrooms, and other rooms used by Enrollees are accessible to people with disabilities
6. Sign language interpreters and other auxiliary aids and services provided in appropriate circumstances
7. Materials available in alternative formats, such as Braille, large print, audio tapes
8. Staff training which includes sensitivity training related to disability issues (Resources and technical assistance are available through the NYS Office of Advocate for Persons with Disabilities - V/TTY (800) 522-4369; and the NYC Mayor's Office for People with Disabilities - (212) 788-2830 or TTY (212)788-2838)
9. Availability of activities and educational materials tailored to specific conditions/illnesses and secondary conditions that affect these populations (e.g. secondary infection prevention, decubitus prevention, special exercise programs, etc.)
10. Contractor staff trained in the use of telecommunication devices for Enrollees who are deaf or hard of hearing (TTY/TDD) as well as in the use of NY Relay for phone communication
11. New Enrollee orientation available in audio or by interpreter services
12. Policy that when member services staff receive calls through the NY Relay, they will offer to return the call utilizing a direct TTY/TDD connection
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COMPLIANCE PLAN SUBMISSION
1. A description of accessibility to the Contractor's -member services department or reasonable alternative means to access member services for Enrollees using wheelchairs (or other mobility aids)
2. A description of the methods the Contractor's member services department will use to communicate with Enrollees who have visual or hearing impairments, including any necessary auxiliary aid/services for Enrollees who are deaf or hard of hearing, and TTY/TDD technology or NY Relay service available through a toll-free telephone number
3. A description of the training provided to the Contractor's member services staff to assure that staff adequately understands how to implement the requirements of the program, and of these guidelines, and are sensitive to the needs of persons with disabilities
IV. PROGRAM ACCESSIBILITY
B2. IDENTIFICATION OF ENROLLEES WITH DISABILITIES
STANDARD FOR COMPLIANCE
The Contractor must have in place satisfactory methods/guidelines for identifying persons at risk of, or having, chronic diseases and disabilities and determining their specific needs in terms of specialist physician referrals, durable medical equipment, medical supplies, home health services etc. The Contractor may not discriminate against a Prospective Enrollee based on his/her current health status or anticipated need for future health care. The Contractor may not discriminate on the basis of disability, or perceived disability of an Enrollee or their family member. Health assessment forms may not be used by the Contractor prior to Enrollment. Once a MCO has been chosen, a health assessment form may be used to assess the person's health care needs.
SUGGESTED METHODS FOR COMPLIANCE
1. Appropriate post Enrollment health screening for each Enrollee, using an appropriate health screening tool
2. Patient profiles by condition/disease for comparative analysis to national norms, with appropriate outreach and education
3. Process for follow-up of needs identified by initial screening; e.g. referrals, assignment of case manager, assistance with scheduling/keeping appointments
4. Enrolled population disability assessment survey
5. Process for Enrollees who acquire a disability subsequent to Enrollment to access appropriate services
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COMPLIANCE PLAN SUBMISSION
A description of how the .Contractor will identify special health care, physical access or communication needs of Enrollees on a timely basis, including but not limited to the health care needs of Enrollees who:
• are blind or have visual impairments, including the type of auxiliary aids and services required by the Enrollee
• are deaf or hard of hearing, including the type of auxiliary aids and services required by the Enrollee
• have mobility impairments, including the extent, if any, to which they can ambulate
• have other physical or mental impairments or disabilities, including cognitive impairments
• have conditions which may require more intensive case management
IV. PROGRAM ACCESSIBILITY
B3. NEW ENROLLEE ORIENTATION
STANDARD FOR COMPLIANCE
Enrollees will be given information sufficient to ensure that they understand how to access medical care through the Contractor. This information will be made accessible to and usable by people with disabilities.
SUGGESTED METHODS FOR COMPLIANCE
1. Activities held in physically accessible location, or staff at activities available to meet with person in an accessible location as necessary
2. Materials available in alternative formats, such as Braille, large print, audio tapes
3. Staff training which includes sensitivity training related to disability issues (Resources and technical assistance are available through the NYS Office of Advocate for Persons with Disabilities - V/TTY (800) 522-4369; and the NYC Mayor's Office for People with Disabilities - (212) 788-2830 or TTY (212)788-283 8)
4. Activities and fairs that include sign language interpreters or the distribution of a written summary of the Marketing script used by Contractor marketing representatives
5. Include in written/audio materials available to all Enrollees information regarding how and where people with disabilities can access help in getting services, for example help with making appointments or for arranging special transportation, an interpreter or assistive communication devices
6. Staff/resources available to assist individuals with cognitive impairments in understanding materials
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COMPLIANCE PLAN SUBMISSION
1. A description of how the Contractor will advise Enrollees with disabilities, during the new Enrollee orientation on how to access care
2. A description of how the Contractor will assist new Enrollees with disabilities (as well as current Enrollees who acquire a disability) in selecting or arranging an appointment with a Primary Care Practitioner (PCP)
• This should include a description of how the Contractor will assure and provide notice to Enrollees who are deaf or hard of hearing, blind or who have visual impairments, of their right to obtain necessary auxiliary aids and services during appointments and in scheduling appointments and follow-up treatment with Participating Providers
• In the event that certain provider sites are not physically accessible to Enrollees with mobility impairments, the Contractor will assure that reasonable alternative site and services are available
3. A description of how the Contractor will determine the specific needs of an Enrollee with or at risk of having a disability/chronic disease, in terms of specialist physician referrals, durable medical equipment (including assistive technology and adaptive equipment), medical supplies and home health services and will assure that such contractual services are provided
4. A description of how the Contractor will identify if an Enrollee with a disability requires on-going mental health services and how the Contractor will encourage early entry into treatment
5. A description of how the Contractor will notify Enrollees with disabilities as to how to access transportation, where applicable
IV. PROGRAM ACCESSIBILITY
B4. COMPLAINTS, COMPLAINT APPEALS AND ACTION APPEALS STANDARD FOR COMPLIANCE
The Contractor will establish and maintain a procedure to protect the rights and interests of both Enrollees and the Contractor by receiving, processing, and resolving Complaints, Complaint Appeals and Action Appeals in an expeditious manner, with the goal of ensuring resolution of Complaints, Complaint Appeals, and Action Appeals and access to appropriate services as rapidly as possible.
All Enrollees must be informed about the Grievance System within their Contractor and the procedure for filing Complaints, Complaint Appeals and Action Appeals. This information will be made available through the Member Handbook, SDOH toll-free Complaint line (1-(800) 206-8125) and the Contractor's Complaint process annually, as well as when the Contractor denies a benefit or referral. The Contractor will inform Enrollees of the Contractor's Grievance System; Enrollees' right to contact the LDSS or SDOH with a Complaint, and to file a Complaint Appeal,
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Action Appeal or request a fair hearing; the right to appoint a designee to handle a Complaint, Complaint Appeal or Action Appeal; and the toll free Complaint line. The Contractor will maintain designated staff to take and process Complaints, Complaint Appeals and Action Appeals, and be responsible for assisting Enrollees in Complaint, Complaint Appeal or Action Appeal resolution.
The Contractor will make all information regarding the Grievance System available to and usable by people with disabilities, and will assure that people with disabilities have access to sites where Enrollees typically file Complaints and requests for Complaint Appeals and Action Appeals.
SUGGESTED METHODS FOR COMPLIANCE
1. Toll-free Complaint phone line with TDD/TTY capability
2. Staff trained in Complaint process, and able to provide interpretive or assistive support to Enrollee during the Complaint process
3. Notification materials and Complaint forms in alternative formats for Enrollees with visual or hearing impairments
4. Availability of physically accessible sites, e.g. member services department sites
5. Assistance for individuals with cognitive impairments
COMPLIANCE PLAN SUBMISSION
1. A description of how the Contractor's Complaint, Complaint Appeals and Action appeal procedures shall be accessible for persons with disabilities, including:
• procedures for Complaints, Complaint Appeals and Action Appeals to be made in person at sites accessible to persons with mobility impairments
• procedures accessible to persons with sensory or other impairments who wish to make verbal Complaints, Complaint Appeals or Action Appeals, and to communicate with such persons on an ongoing basis as to the status or their Complaints and rights to further appeals
• description of methods to ensure notification material is available in alternative formats for Enrollees with vision and hearing impairments
2. A description of how the Contractor monitors Complaints, Complaint Appeals and Action Appeals related to people with disabilities. Also, as part of the Compliance Plan, the Contractor must submit a summary report based on the Contractor's most recent year's Complaints, Complaint Appeals and Action Appeals data.
IV. PROGRAM ACCESSIBILITY
C. CASE MANAGEMENT
STANDARD FOR COMPLIANCE
The Contractor must have in place adequate case management systems to identify the service needs of all Enrollees, including Enrollees with chronic illness and Enrollees with disabilities, and ensure that medically necessary covered benefits are delivered on a timely basis. These systems must include procedures for standing referrals, specialists as PCPs, and referrals to specialty centers for Enrollees who require specialized medical
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care over a prolonged period of time (as determined by a treatment plan approved by the Contractor in consultation with the primary care provider, the designated specialist and the Enrollee or his/her designee), out-of-network referrals and continuation of existing treatment relationships with out-of-network providers (during transitional period).
SUGGESTED METHODS FOR COMPLIANCE
1. Procedures for requesting specialist physicians to function as PCP
2. Procedures for requesting standing referrals to specialists and/or specialty centers, out-of-network referrals, and continuation of existing treatment relationships
3. Procedures to meet Enrollee needs for; durable medical equipment, medical supplies, home visits as appropriate
4. Appropriately trained Contractor staff to function as case managers for special needs populations, or sub-contract arrangements for case management
5. Procedures for informing Enrollees about the availability of case management services
COMPLIANCE PLAN SUBMISSION
1. A description of the Contractor case management program for people with disabilities, including case management functions, procedures for qualifying for and being assigned a case manager, and description of case management staff qualifications
2. A description of the Contractor's model protocol to enable Participating Providers, at their point of service, to identify Enrollees who require a case manager
3. A description of the Contractor's protocol for assignment of specialists as PCP, and for standing referrals to specialists and specialty centers, out-of-network referrals and continuing treatment relationships
4. A description of the Contractor's notice procedures to Enrollees regarding the availability of case management services, specialists as PCPs, standing referrals to specialists and specialty centers, out-of-network referrals and continuing treatment relationships
IV. PROGRAM ACCESSIBILITY
D. PARTICIPATING PROVIDERS
STANDARD FOR COMPLIANCE
The Contractor's network will include all the provider types necessary to furnish the Benefit Package, to assure appropriate and timely health care to all Enrollees, including those with chronic illness and/or disabilities. Physical accessibility is not limited to entry to a provider site, but also includes access to services within the site, e.g., exam tables and medical equipment.
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SUGGESTED METHODS FOR COMPLIANCE
1. Process for the Contractor to evaluate provider network to ascertain the degree of provider accessibility to persons with disabilities, to identify barriers to access and required modifications to policies/procedures
2. Model protocol to assist Participating Providers, at their point of service, to identify Enrollees who require case manager, audio, visual, mobility aids, or other accommodations
3. Model protocol for determining needs of Enrollees with mental disabilities
4. Use of Wheelchair Accessibility Certification Form (see attached)
5. Submission of map of physically accessible sites
6. Training for providers re: compliance with Title III of ADA, e.g. site access requirements for door widths, wheelchair ramps, accessible diagnostic/treatment rooms and equipment; communication issues; attitudinal barriers related to disability, etc. (Resources and technical assistance are available through the NYS Office of Advocate for Persons with Disabilities -V/TTY (800) 522-4369; and the NYC Mayor's Office for People with Disabilities - (212) 788-2830 or TTY (212) 788-2838).
7. Use of NYS Office of Persons with Disabilities (OAPD) ADA Accessibility Checklist for Existing Facilities and NYC Addendum to OAPD ADA Accessibility Checklist as guides for evaluating existing facilities and for new construction and/or alteration.
COMPLIANCE PLAN SUBMISSION
1. A description of how the Contractor will ensure that its Participating Provider network is accessible to persons with disabilities. This includes the following:
• Policies and procedures to prevent discrimination on the basis of disability or type of illness or condition
• Identification of Participating Provider sites which are accessible by people with mobility impairments, including people using mobility devices. If certain provider sites are not physically accessible to persons with disabilities, the Contractor shall describe reasonable, alternative means that result in making the provider services readily accessible
• Identification of Participating Provider sites which do not have access to sign language interpreters or reasonable alternative means to communicate with Enrollees who are deaf or hard of hearing; and for those sites, a description of reasonable alternative methods to ensure that services will be made accessible
| | • | Identification of Participating Providers which do not have adequate communication systems for Enrollees who are blind or have vision impairments (e.g. raised symbol and lettering or visual signal appliances), and for those sites, a description of reasonable alternative methods to ensure that services will be made accessible |
2. A description of how the Contractor's specialty network is sufficient to meet the needs of Enrollees with disabilities
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3. A description of methods to ensure the coordination of out-of-network providers to meet the needs of the Enrollees with disabilities
• This may include the implementation of a referral system to ensure that the health care needs of Enrollees with disabilities are met appropriately
• The Contractor shall describe policies and procedures to allow for the continuation of existing relationships with out-of-network providers, when in the best interest of the Enrollee with a disability
4. Submission of the ADA Compliance Summary Report or Contractor statement that data submitted to SDOH on the Health Provider Network (HPN) files is an accurate reflection of each network's physical accessibility.
IV. PROGRAM ACCESSIBILITY
E. POPULATIONS WITH SPECIAL HEALTH CARE NEEDS
STANDARD FOR COMPLIANCE
The Contractor will have satisfactory methods for identifying persons at risk of, or having, chronic disabilities and determining their specific needs in terms of specialist physician referrals, durable medical equipment, medical supplies, home health services, etc. The Contractor will have satisfactory systems for coordinating service delivery and, if necessary, procedures to allow continuation of existing relationships with out-of-network provider for course of treatment.
SUGGESTED METHODS FOR COMPLIANCE
1. Procedures for requesting standing referrals to specialists .and/or specialty centers, specialist physicians to function as PCP, out-of-network referrals, and continuation "of existing relationships with out-of-network providers for course of treatment
2. Linkages with behavioral health agencies, disability and advocacy organizations, etc.
3. Adequate network of providers and sub-specialists (including pediatric providers and sub-specialists) and contractual relationships with tertiary institutions
4. Procedures for assuring that these populations receive appropriate diagnostic work-ups on a timely basis
5. Procedures for assuring that these populations receive appropriate access to durable medical equipment on a timely basis
6. Procedures for assuring that these populations receive appropriate allied health professionals (Physical, Occupational and Speech Therapists, Audiologists) on a timely basis
7. State designation as a Well Qualified Plan to serve the OMRDD population and look-alikes
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COMPLIANCE PLAN SUBMISSION
1. A description of arrangements to ensure access to specialty care providers and centers in and out of New York State, standing referrals, specialist physicians to function as PCP, out-of-network referrals, and continuation of existing relationships (out-of-network) for diagnosis and treatment of rare disorders
2. A description of appropriate service delivery for children with disabilities. This may include a description of methods for interacting with school districts, child protective service agencies, early intervention officials, behavioral health, and disability and advocacy organizations.
3. A description of the sub-specialist network, including contractual relationships with tertiary institutions to meet the health care needs of people with disabilities
V. ADDITIONAL ADA RESPONSIBILITIES FOR PUBLIC ACCOMMODATIONS
Please note that Title III of the ADA applies to all non-governmental providers of health care. Title III of the Americans with Disabilities Act prohibits discrimination on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. A public accommodation is a private entity that owns, leases or leases to, or operates a place of public accommodation. Places of public accommodation identified by the ADA include, but are not limited to/ stores (including pharmacies) offices (including doctors' offices), hospitals, health care providers, and social service centers.
New and altered areas and facilities must be as accessible as possible. Barriers must be removed from existing facilities when it is readily achievable, defined by the ADA as easily accomplishable without much difficulty or expense. Factors to be considered when determining if barrier removal is readily achievable include the cost of the action, the financial resources of the site involved, and, if applicable, the overall financial resources of any parent corporation or entity. If barrier removal is not readily achievable, the ADA requires alternate methods of making goods and services available. New facilities must be accessible unless structurally impracticable.
Title III also requires places of public accommodation to provide any auxiliary aids and services that are needed to ensure equal access to the services it offers, unless a fundamental alteration in the nature of services or an undue burden would result. Auxiliary aids include, but are not limited to, qualified sign interpreters, assistive listening systems, readers, large print materials, etc. Undue burden is defined as "significant difficulty or expense". The factors to be considered in determining "undue burden" include, but are not limited to, the nature and cost of the action required and the overall financial resources of the provider. "Undue burden" is a higher standard than "readily achievable" in that it requires a greater level of effort on the part of the public accommodation.
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October 1,2005
J-13
Please note also that the ADA is not the only law applicable for people with disabilities. In some cases, State or local laws require more than the ADA. For example. New York City's Human Rights Law, which also prohibits discrimination against people with disabilities, includes people whose impairments are not as "substantial" as the narrower ADA and uses the higher "undue burden" ("reasonable") standard where the ADA requires only that which is "readily achievable". New York City's Building Code does not permit access waivers for newly constructed facilities and requires incorporation of access features as existing facilities are renovated. Finally, the State Hospital code sets a higher standard than the ADA for provision of communication (such as sign language interpreters) for services provided at most hospitals, even on an outpatient basis.
APPENDIX J
October 1,2005
J-14
APPENDIX K
Medicare and Medicaid Advantage Products And Non-Covered Services
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-l
APPENDIX K.l
MEDICARE ADVANTAGE PRODUCT
Medicare Advantage Benefit Package for Dual Eligibles- Upstate Counties |
Category of Service | Included in Medicare Capitation |
| Inpatient Hospital Care Including Substance Abuse and Rehabilitation Services | Up to 365 days per year (366 days for leap year). $3 00 per stay co-payment |
| Inpatient Mental Health | Medically necessary care. $300 per stay co-payment. 190-day lifetime limit in a psychiatric hospital. |
| Skilled Nursing Facility | Care provided in a skilled nursing facility. Covered for 100 days each benefit period. No prior hospital stay required. No co-payment. |
| Home Health | Medically necessary intermittent skilled nursing care, home health aide services and rehabilitation services. $10 per visit co-payment. |
| PCP Office Visits | Primary care doctor office visits. Subject to $10 co-payment per visit. |
| Specialist Office Visits | Specialist office visits. Subject to $20 co-payment for each specialist office visit. |
| Chiropractic | Manual manipulation of the spine to correct subluxation provided by chiropractors or other qualified providers. Subject to $20 co-payment. |
| Podiatry | Medically necessary foot care, including care for medical conditions affecting lower limbs, subject to $20 co-payment. Visits for routine foot care up to 4 visits per year, not subject to co-payment. |
| Outpatient Mental Health | Individual and group therapy visits, subject to co-payment of $20 per individual or group visit. Enrollee must be able to self-refer for one assessment from a network provider in a twelve (12) month period. |
| Outpatient Substance Abuse | Individual and group visits subject to $20 co-payment per group or individual visit. Enrollee must be able to self-refer for one assessment from a network provider in a twelve (12) month period. |
| Outpatient Surgery | Medically necessary visits to an ambulatory surgery center or outpatient hospital facility. $35 per visit to ambulatory surgery or outpatient hospital. |
| Ambulance | Transportation provided by an ambulance service, including air ambulance. Emergency transportation if for the purpose of obtaining hospital service for an enrollee who suffers from severe, life-threatening or potentially disabling conditions |
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-3
Medicare Advantage Benefit Package for Dual Eligibles - Upstate Counties |
Category of Service | Included in Medicare Capitation |
| | which require the provision of emergency services while the enrollee is being transported. Includes transportation to a hospital emergency room generated by a "Dial 911". $50 co- |
| Emergency Room | Care provided in an emergency room subject to prudent layperson standard. $50 co-payment per visit. Co-payment waived if admitted to the hospital within 24 hours for the same condition. |
| Urgent Care | Urgently needed care in most cases outside the plan's service area. Subject to $20 co-payment. |
| Outpatient Rehabilitation (OT, PT, Speech) | Occupational therapy, physical therapy and speech and language therapy subject to $20 co-payment. |
| Durable Medical Equipment (DME) | Medicare and Medicaid covered durable medical equipment, including devices and equipment other than medical/surgical supplies, enteral formula, and prosthetic or orthotic appliances having the following characteristics: can withstand repeated use for a protracted period of time; are primarily and customarily used for medical purposes; are generally not useful to a person in the absence of illness or injury and are usually fitted, designed or fashioned for a particular individual's use. Must be ordered by a qualified practitioner. No homebound prerequisite and including non-Medicare DME covered by Medicaid (e.g. tub stool; grab bars). No co-payment or coinsurance. |
| Prosthetics | Medicare and Medicaid covered prosthetics, orthotics and orthopedic footwear. No diabetic or temporary impairment prerequisite for orthotics. Not subject to co-payment or coinsurance. |
| Diabetes Monitoring | Diabetes self-monitoring training and supplies including coverage for glucose monitors, test strips, lancets and self-management training. No co-payment. |
| Diagnostic Testing | Diagnostic tests, x-rays, lab services and radiation therapy. No co-payment. |
| Bone Mass Measurement | Bone Mass Measurement for people at risk. No co-payment. |
| Colorectal Screening | Colorectal screening for people, age 50 and older. No co-payment. |
| Immunizations | Flu, hepatitis B vaccine for people who are at risk. Pneumonia vaccine. Vaccines/Toxoids. No co-payment. |
| Mammograms | Annual screening for women age 40 and older. No referral necessary. No co-payment. |
| Pap Smear and Pelvic Exams | Pap smears and Pelvic Exams for women. No co-payment. |
| Prostate Cancer Screening | Prostate Cancer Screening exams for men age 50 and older. No co-payment |
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-4
Medicare Advantage Benefit Package for Dual Eligibles - Upstate Counties |
Category of Service | Included in Medicare Capitation |
| Outpatient Drugs | Medicare Part B covered prescription drugs and other drugs obtained by a provider and administered in a physician office or clinic setting covered by Medicaid. |
| Hearing Services | Medicaid and Medicare hearing services and products when medically necessary to alleviate disability caused by the loss or impairment of hearing. Services include hearing aid selecting, fitting, and dispensing; hearing aid checks following dispensing, conformity evaluations and hearing aid repairs; audiology services including examinations and testing, hearing aid evaluations and hearing aid prescriptions; and hearing aid products including hearing aids, earmolds, special fittings and replacement parts. No co-payment or limitations. |
| Vision Care Services | Services of optometrists, ophthalmologists and ophthalmic dispensers including eyeglasses, medically necessary contact lenses and poly-carbonate lenses, artificial eyes (stock or custom-made), low vision aids and low vision services. Coverage includes the replacement of lost or destroyed glasses. Coverage also includes the repair or replacement of parts. Coverage also includes examinations for diagnosis and treatment for visual defects and/or eye disease. Examinations for refraction are limited to every two (2) years unless otherwise justified as medically necessary. Eyeglasses do not require changing more frequently than every two (2) years unless medically necessary or unless the glasses are lost, damaged or destroyed. No prerequisite of cataract surgery. No co-payment |
| Routine Physical Exam I/year | Up to one routine physical per year. Subject to $10 co-payment per visit. |
| Health/Wellness Education | Coverage for the following: general health education classes, parenting classes, smoking cessation classes, childbirth education and nutrition counseling, plus additional benefits at plan option including but not limited to items such as newsletters, nutritional training, congestive heart program, health club membership/fitness classes, nursing hotline, disease management, other wellness services. No co-payments. |
| Additional Part C Benefits, if any | |
| Medicare Part D Prescription Drug Benefit as Approved by CMS | |
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-5
Medicare Advantage Benefit Package for Dual Eligibles NYC, Nassau, Suffolk, Westchester, Rockland, Orange and Putnam Counties |
Category of Service | Included in Medicare Capitation |
| Inpatient Hospital Care Including Substance Abuse and Rehabilitation Services | Up to 365 days per year (366 days for leap year) with no deductible or co-payment |
| Inpatient Mental Health | Medically necessary care with no deductible or co-payment. 190-day lifetime limit in a psychiatric hospital. |
| Skilled Nursing Facility | Care provided in a skilled nursing facility. Covered for 100 days each benefit period. No prior hospital stay required. No co-payment. |
| Home Health | Medically necessary intermittent skilled nursing care, home health aide services and rehabilitation services. No co-payment. |
| PCP Office Visits | Primary care doctor office visits. No co-payment. |
| Specialist Office Visits | Specialist office visits. Subject to $10 co-payment for each specialist office visit. |
| Chiropractic | Manal manipulation of the spine to correct subluxation provided by chiropractors or other qualified providers. Subject to $10 co-payment. |
| Podiatry | Medically necessary foot care, including care for medical conditions affecting lower limbs, subject to $10 co-payment. Visits for routine foot care up to 4 visits per year, not subject to co-payment. |
| Outpatient Mental Health | Individual and group therapy visits, subject to co-payment of $20 per individual or group visit. Enrollee must be able to self-refer for one assessment from a network provider in a twelve (12) month period. |
| Outpatient Substance Abuse | Individual and group visits subject to $20 co-payment per group or individual visit. Enrollee must be able to self-refer for one assessment from a network provider in a twelve (12) month period. |
| Outpatient Surgery | Medically necessary visits to an ambulatory surgery center or outpatient hospital facility. No co-payment. |
| Ambulance | Transportation provided by an ambulance service, including air ambulance. Emergency transportation if for the purpose of obtaining hospital services for an enrollee who suffers from severe, life-threatening or potentially disabling conditions which require the provision of emergency services while the enrollee is being transported. Includes transportation to a hospital emergency room generated by a "Dial 9 II". No co-payment. |
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-6
Medicare Advantage Benefit Package for Dual Eligibles NYC, Nassau, Suffolk, Westchester, Rockland, Orange and Putnam Counties |
Category of Service | Included in Medicare Capitation |
Emergency Room | Care provided in an emergency room subject to prudent layperson standard. $50 co-payment per visit. Co-payment waived if admitted to the hospital within 24 hours for the same condition. |
Urgent Care | Urgently needed care in most cases outside the plan's service area. Subject to $10 co-payment. |
Outpatient Rehabilitation (OT, PT, Speech) | Occupational therapy, physical therapy and speech and language therapy subject to $ 10 co-payment. |
| Durable Medical Equipment (DME) | Medicare and Medicaid covered durable medical equipment, including devices and equipment other than medical/surgical supplies, enteral formula, and prosthetic or orthotic appliances having the following characteristics: can withstand repeated use for a protracted period of time; are primarily and customarily used for medical purposes; are generally not useful to a person in the absence of illness or injury and are usually not fitted, designed or fashioned for a particular individual's use. Must be ordered by a qualified practitioner. No homebound prerequisite and including non-Medicare DME covered by Medicaid (e.g., tub stool; grab bar). No co-payment or coinsurance. |
Prosthetics | Medicare and Medicaid covered prosthetics, orthotics and orthopedic footwear. No diabetic prerequisite for orthotics. Not subject to co-payment or coinsurance. |
Diabetes Monitoring | Diabetes self-monitoring training and supplies including coverage for glucose monitors, test strips, lancets and self-management training. No co-payments. |
Diagnostic Testing | Diagnostic tests, x-rays, lab services and radiation therapy. No co-payments. |
Bone Mass Measurement | Bone Mass Measurement for people at risk. No co-payment |
Colorectal Screening | Colorectal screening for people, age 50 and older. No co-payment. |
Immunizations | Flu, hepatitis B vaccine for people who are at risk. Pneumonia vaccine. No co-payment. |
Mammograms | Annual screening for women age 40 and older. No referral necessary. No co-payment. |
| Pap Smear and Pelvic Exams | Pap smears and Pelvic Exams for women. No co-payment. |
Prostate Cancer Screening | Prostrate Cancer Screening exams for men age 50 and older. No co-payment. |
Outpatient Drugs | Medicare Part B covered prescription drugs and other drugs obtained by a provider and administered in a physician office or clinic setting covered by Medicaid. |
Hearing Services | Medicare and Medicaid hearing services and products when |
Medicaid Advantage Contract APPENDIX K New York City 2006 K-7
Medicare Advantage Benefit Package for Dual Eligibles NYC, Nassau, Suffolk, Westchester, Rockland, Orange and Putnam Counties |
Category of Service | Included in Medicare Capitation |
| | medically necessary to alleviate disability caused by the loss or impairment of hearing. Services include hearing aid selecting, fitting, and dispensing; hearing aid checks following dispensing, conformity evaluations and hearing aid repairs; audiology services including examinations and testing, hearing aid evaluations and hearing aid prescriptions; and hearing aid products including hearing aids, earmolds, special fittings and replacement parts. No co-payment or limitations. |
| Vision Care Services | Services of optometrists, ophthalmologists and ophthalmic dispensers including eyeglasses, medically necessary contact lenses and poly-carbonate lenses, artificial eyes (stock or custom-made), low vision aids and low vision services. Coverage includes the replacement of lost or destroyed glasses. Coverage also includes the repair or replacement of parts. Coverage also includes examinations for diagnosis and treatment for visual defects and/or eye disease. Examinations for refraction are limited to every two (2) years unless otherwise justified as medically necessary. Eyeglasses do not require changing more frequently than every two (2) years unless medically necessary or unless the glasses are lost, damaged or destroyed. No prerequisite of cataract services. No co-payment. |
| Routine Physical Exam I/year | Up to one routine physical per year. No co-payment. |
| Health/Wellness Education | Coverage for the following: general health education classes, parenting classes, smoking cessation classes, childbirth education and nutrition counseling, plus additional benefits at plan option including but not limited to items such as newsletters, nutritional training, congestive heart program, health club membership/fitness classes, nursing hotline, disease management, other wellness services. No co-payments. |
| Additional Part C Benefits, if any | |
Medicare Part D Prescription Drug Benefit as Approved by CMS | |
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-8
APPENDIX K.2
MEDICAID ADVANTAGE PRODUCT
Medicaid Advantage Benefit Package for Dual Eligibles - Upstate Counties |
Category of Service | Included in Medicaid Capitation |
| Inpatient Hospital Care Including Substance Abuse and Rehabilitation Services | Elimination of $300 per stay co-payment. |
| Inpatient Mental Health | Elimination of $300 per stay co-payment, plus days in excess of the 190-day lifetime maximum. |
| Home Health | Elimination of $10 co-payment per Medicare covered visit, plus value of Medicare non-covered visits including home health aid services with nursing supervision to medically unstable individuals. |
| PCP Office Visits | Elimination of $10 co-payment |
| Specialist Office Visits | Elimination of $20 co-payment |
| Podiatry | Elimination of $20 co-payment for medically necessary foot care |
| Outpatient Mental Health | Elimination of $20 co-payment |
| Outpatient Substance Abuse | Elimination of $20 co-payment |
| Outpatient Surgery | Elimination of $35 co-payment |
| Ambulance | Elimination of $50 co-payment |
| Emergency Room | Elimination of $50 co-payment |
| Urgent Care | Elimination of $20 co-payment |
| Outpatient Rehabilitation (OT, PT, Speech) | Elimination of $20 co-payment |
Dental (Optional benefit) | Medicaid covered dental services including necessary preventive, prophylactic and other routine dental care, services and supplies and dental prosthetics to alleviate a serious health condition. Ambulatory or inpatient surgical dental services subject to prior authorization. |
| Routine Physical Exam I/year | Elimination of $10 co-payment |
Transportation - Routine (Optional benefit) | Transportation essential for an enrollee to obtain necessary medical care and services under the plan's benefits or Medicaid fee-for-service. Includes ambulette, invalid coach, taxicab, livery, public transportation, or other means appropriate to the enrollee's medical condition and a transportation attendant to accompany the enrollee, if necessary. |
| Private Duty Nursing | Medically necessary private duty nursing services in accordance with the ordering physician, registered physician assistant or certified nurse practitioner's written treatment plan. |
Medicaid Advantage Contract
APPENDIX K-
New York City 2006
K-9
Medicaid Advantage Benefit Package for Dual Eligibles NYC, Nassau, Suffolk,.Westchester, Rockland, Orange and Putnam Counties |
Category of Service | Included in Medicaid Capitation |
| Inpatient Mental Health | Days in excess of the 190-day lifetime maximum. |
| Home Health | Non-Medicare covered home health services, including home health aid services and nursing supervision to medically unstable individuals. |
| Specialist Office Visits | Elimination of $ 10 co-payment. |
| Podiatry | Elimination of $10 co-payment for medically necessary footcare. |
| Outpatient Mental Health | Elimination of $20 co-payment. |
| Outpatient Substance Abuse | Elimination of $20 co-payment. |
| Emergency Room | Elimination of $50 co-payment |
| Urgent Care | Elimination of $ 10 co-payment. |
| Outpatient Rehabilitation (OT, PT, Speech) | Elimination of $10 co-payment. |
Dental (Optional benefit outside of NYC) | Medicaid covered dental services including necessary preventive, prophylactic and other routine dental care, services and supplies and dental prosthetics to alleviate a serious health condition. Ambulatory or inpatient surgical dental services subject to prior authorization. |
Transportation - Routine (Optional benefit outside of NYC) | Transportation essential for an enrollee to obtain necessary medical care and services under the plan's benefits or Medicaid fee-for-service. Includes ambulette, invalid coach, taxicab, livery, public transportation, or other means appropriate to the enrollee's medical condition and a transportation attendant to accompany the enrollee, if necessary. |
| Private Duty Nursing | Medically necessary private duty nursing services in accordance with the ordering physician, registered physician assistant or certified nurse practitioner's written treatment plan. |
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-10
DESCRIPTION OF MEDICAID ONLY SERVICES IN MEDICAID ADVANTAGE BENEFIT PACKAGE:
Inpatient Mental Health Over 190-Day Lifetime Limit
All inpatient mental health services, including voluntary or involuntary admissions for mental health services over the Medicare 190-Day Lifetime Limit. The Contractor may provide the covered benefit for medically necessary mental health impatient .services through hospitals licensed pursuant to Article 28 of the New York State P.H.L.
Non-Medicare Covered Home Health Services
Medicaid covered home health services include the provision of skilled services not covered by Medicare (e.g. physical therapist to supervise maintenance program for patients who have reached their maximum restorative potential or nurse to pre-fill syringes for disabled individuals •with diabetes) and /or home health aide services as required by an approved plan of care developed by a certified home health agency.
Private Duty Nursing Services
Private duty nursing services provided by a person possessing a license and current registration from the NYS Education Department to practice as a registered professional nurse or licensed practical nurse. Private duty nursing services can be provided through an approved certified home health agency, a licensed home care agency, or a private Practitioner. The location of nursing services may be in the Enrollee's home or in the hospital.
Private duty nursing services are covered when determined by the attending physician to be medically necessary. Nursing services may be intermittent, part-time or continuous and provided in accordance with the ordering physician, registered physician assistant or certified nurse practitioner's written treatment plan.
Dental Services (optional benefit outside of NYC)
Dental care includes preventive, prophylactic and other routine dental care, services, supplies and dental prosthetics required to alleviate a serious health condition, including one which affects employability.
Dental surgery performed in an ambulatory or inpatient setting is the responsibility of the Contractor whether dental services are a covered plan benefit, or not. Inpatient claims and referred ambulatory claims for dental services provided in an inpatient or outpatient hospital setting for surgery, anesthesiology, x-rays, etc. are the responsibility of the Contractor. In these situations, the professional services of the dentist are covered by Medicaid fee-for-service. The Contractor should set up procedures to prior approve dental services providedin inpatient and ambulatory settings.
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-ll
As described in Sections 10.9 and 10.18 of this Agreement, Enrollees may self-refer to Article 28 clinics operated by academic dental centers to obtain covered dental services.
If Contractor's Benefit Package excludes dental services:
i) Enrollees may obtain routine exams, orthodontic services and appliances, dental office surgery, fillings, prophylaxis, and other Medicaid covered dental services from any qualified Medicaid provider who shall claim reimbursement from eMedNY; and
ii) Inpatient and referred ambulatory claims for medical services provided in an inpatient or outpatient hospital setting in conjunction with a dental procedure (e.g. anesthesiology, x-rays), are the responsibility of the Contractor. In these situations, the professional services of the dentist are covered Medicaid fee-for-service.
Non-Emergency Transportation (optional benefit outside ofNYC)
Transportation expenses are covered when transportation is essential in order for an Enrollee to obtain necessary medical care and services which are covered under the Medicaid program (either as part of the Contractor's Benefit Package or by fee-for-service Medicaid). Non-emergent transportation guidelines may be developed in conjunction with the LDSS, based on the LDSS' approved transportation plan.
Transportation services means transportation by ambulance, ambulette, fixed wing or airplane transport, invalid coach, taxicab, livery, public transportation, or other means appropriate to the Enrollee's medical condition; and a transportation attendant to accompany the Enrollee, if necessary. Such services may include the transportation attendant's transportation, meals, lodging and salary; however, no salary will be paid to a transportation- attendant who is a member of the Enrollee's family.
When the Contractor is capitated for non-emergency transportation, the Contractor is also responsible for providing transportation to Medicaid covered services that are not part of the Contractor's Benefit Package.
For Contractors that cover non-emergency transportation in the Medicaid Advantage Benefit Package, transportation costs to MMTP services may be reimbursed by Medicaid FFS in accordance with the LDSS transportation policies in local districts where there is a systematic method to discretely identify and reimburse such transportation costs.
For Enrollees with disabilities, the method of transportation must reasonably accommodate their needs, taking into account the severity and nature of the disability.
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-12
APPENDIX K.3
NON COVERED SERVICES
The following services will not be the responsibility of the MCO under the Medicare/Medicaid program:
Services Covered by Direct Reimbursement from Original Medicare
• Hospice services provided to Medicare Advantage members
• Other services deemed to be covered by Original Medicare by CMS
Services Covered by Medicaid Fee for Service
• Out of network Family Planning services under the direct access provisions of the waiver
• Skilled Nursing Facility (SNF) days not covered by Medicare
• Personal Care Services
• Medicaid-Covered Prescription and Non-Prescription (OTC) Drugs, Medical Supplies and Enteral Formula not covered under Medicare Part B or the Contractor's Medicare Part D Prescription Drug Benefit approved by CMS.
• Methadone Maintenance Treatment Programs
• Certain Mental Health Services, including
o Intensive Psychiatric Rehabilitation Treatment Programs
o Day Treatment
o Continuing Day Treatment
o Case Management for Seriously and Persistently Mentally 111 (sponsored by state or local mental health units) o Partial Hospitalizations o Assertive Community Treatment (ACT) o Personalized Receiving Oriented Services (PROS)
• Rehabilitation Services Provided to Residents of OMH Licensed Community Residences (CRs) and Family Based Treatment Programs
• Office of Mental Retardation and Developmental Disabilities (OMRDD) Services
• Comprehensive Medicaid Case Management
• Directly Observed Therapy for Tuberculosis Disease
• AIDS Adult Day Health Care
• HIV COBRA Case Management
• Adult Day Health Care
• Personal Emergency Response Services (PERS)
Medicaid Advantage Program Optional Benefits
Optional benefits will be covered Medicaid fee for service if the MCO elects not to cover these services in their Medicaid Advantage Product. Currently the only 2 optional benefits are:
• Non-Emergency Transportation Services
• Dental Service
These services are mandatory in NYC.
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-13
DESCRIPTION OF NON-COVERED SERVICES
The following services are excluded from the Contractor's Medicare and Medicaid Benefit Packages, and are covered, in most instances, by Medicare or Medicaid fee-for-service:
1. Hospice Services Provided to Medicaid Advantage Enrollees
Hospice services provided to Medicare Advantage Enrollees by a Medicare approved hospice providers are directly reimbursed by Medicare. Hospice is a coordinated program of home and inpatient care that provides non-curative medical and support services for persons certified by a physician to be terminally ill with a life expectancy of six (6) months or less. Hospice programs provide patients and families with palliative and supportive care to meet the special needs arising out of physical, psychological, spiritual, social and economic stresses which are experienced during the final stages of illness and during dying and bereavement.
Hospices are organizations which must be certified under Article 40 of the NYS P.H.L. and approved by Medicare. All services must be provided by qualified employees and volunteers of the hospice or by qualified staff through contractual arrangements to the extent permitted by federal and state requirements. All services must be provided according to a written plan of care which reflects the changing needs of the patient/family.
If an Enrollee in the Contractor's plan becomes terminally ill and receives Hospice Program services he or she may remain enrolled and continue to access the Contractor's Benefit Package while Hospice costs are paid for by Medicare fee-for-service.
2. Other Services Deemed to be Covered by Original Medicare by CMS
3. Personal Care Agency Services
Personal care services (PCS) are the provision of some or total assistance with personal hygiene, dressing and feeding; and nutritional and environmental support (meal preparation and housekeeping). Such services must be essential to the maintenance of the Enrollee's health and safety in his or her own home. The service has to be ordered by a physician, and there has to be a medical need for the service. Licensed home care services agencies, as opposed to certified home health agencies, are the primary providers of PCS. Enrollees receiving PCS have to have a stable medical condition and are generally expected to be in receipt of such services for an extended period of time (years).
Services rendered by a personal care agency which are approved by the LDSS are not covered under the Medicare or Medicaid Benefit Packages. Should it be medically necessary for the PCP to order personal care agency services, the PCP (or the Contractor on the physician's behalf) must first contact the Enrollee's LDSS contact person for personal care. The district will determine the Enrollee's need for personal care agency services and coordinate with the personal care agency a plan of care.
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-14
4. Skilled Nursing Facility Days Not Covered by Medicare
Skilled nursing facility days for Medicaid Advantage Enrollees in excess of the first 100 days in the benefit period are covered by Medicaid on a fee for service basis.
5. Prescription and Non-Prescription (OTC) Drugs, Medical Supplies, and Enteral
Formula Not Covered by Medicare Part B and the Medicare Advantage Organization's Medicare Part D Prescription Drug Benefit approved by CMS
Coverage for drugs dispensed by community pharmacies, over the counter drugs, medical/surgical supplies and enteral formula covered by Medicaid and not included in the Contractor's Medicare Advantage Benefit Package will be paid for by Medicaid fee-for-service. Medical/surgical supplies are items other than drugs, prosthetic or orthotic appliances, or DME which have been ordered by a qualified practitioner in the treatment of a specific medical condition and which are: consumable, non-reusable, disposable, or for a specific rather than incidental purpose, and generally have no salvageable value (e.g. gauze pads, bandages and diapers). Pharmaceuticals and medical supplies routinely furnished or administered as part of a clinic or office visit are covered by the Contractor.
6. Out of Network Family Planning Services
As described in Section 10.6 and 10.9 of this Agreement, out of network family planning services provided by qualified Medicaid providers to plan enrollees will be directly reimbursed by Medicaid fee-for-service at the Medicaid fee schedule. Family Planning and Reproductive Health Care services means those health services which enable Enrollees, including minors, who may be sexually active to prevent or reduce the incidence of unwanted pregnancy. These include: diagnosis and all medically necessary treatment, sterilization, screening and treatment for sexually transmissible diseases and screening for disease and pregnancy.
Also included is HIV counseling and testing when provided as part of a family planning visit. Additionally, reproductive health care includes coverage of all medically necessary abortions. Elective induced abortions must be covered for New York City recipients. Fertility services are not covered.
7. Dental (when not in benefit package)
(see description in Appendix K-2)
8. Non-Emergency Transportation (when not in benefit package) (see description in Appendix K-2)
9. Methadone Maintenance Treatment Program (MMTP)
Consists of drug detoxification, drug dependence counseling, and rehabilitation services which include chemical management of the patient with methadone. Facilities that provide methadone
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-15
maintenance treatment do so as their principal mission and are certified by the Office of Alcohol and Substance Abuse Services (OASAS) under Title 14 NYCRR, Part 828.
10. Certain Mental Health Services
Contractor is not responsible for the provision and payment of the following services which are reimbursed through Medicaid fee-for-service.
a. Intensive Psychiatric Rehabilitation Treatment Programs (IPRT)
A time limited active psychiatric rehabilitation designed to assist a patient in forming and achieving mutually agreed upon goals in living, learning, working and social environments, to intervene with psychiatric rehabilitative technologies to overcome functional disabilities. IPRT services are certified by OMH under 14 NYCRR, Part 587.
b. Day Treatment
A combination of diagnostic, treatment, and rehabilitative procedures which, through supervised and planned activities and extensive client-staff interaction, provides the services of the clinic treatment program, as well as social training, task and skill training and socialization activities. Services are expected to be of six (6) months duration. These services are certified by OMH under 14 NYCRR, Part 587.
c. Continuing Day Treatment
Provides treatment designed to maintain or enhance current levels of functioning and skills, maintain community living, and develop self-awareness and self-esteem. Includes: assessment and treatment planning; discharge planning; medication therapy; medication education; case management; health screening and referral; rehabilitative readiness development; psychiatric rehabilitative readiness determination and referral; and symptom management. These services are certified by OMH under 14 NYCRR, Part 587.
This waiver is in select counties for children and adolescents who would otherwise be admitted to an institutional setting if waiver services were not provided. The services include individualized care coordination, respite, family support, intensive in-home skill building, and crisis response.
d. Case Management for Seriously and Persistently Mentally 111 Sponsored by State or Local Mental Health Units
The target population consists of individuals who are seriously and persistently mentally ill (SPMI), require intensive, personal and proactive intervention to help them obtain those services which will permit functioning in the community and either have symptomology which is difficult to treat in the existing mental health care system or are unwilling or unable to adapt to the existing mental health care system. Three case management models are currently operated pursuant to an agreement with OMH or a local governmental unit, and receive Medicaid reimbursement pursuant to 14 NYCRR Part 506.
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-16
Please note: See generic definition of Comprehensive Medicaid Case Management (CMCM) in this section.
e. Partial Hospitalization Not Covered by Medicare
Provides active treatment designed to stabilize and ameliorate acute systems, serves as an alternative to inpatient hospitalization, or reduces the length of a hospital stay within a medically supervised program by providing the following: assessment and treatment planning; health screening and referral; symptom management; medication therapy; medication education; verbal therapy; case management; psychiatric rehabilitative readiness determination and referral and crisis intervention. These services are certified by OMH under NYCRR Part 587.
f. Assertive Community Treatment (ACT)
ACT is a mobile team-based approach to delivering comprehensive and flexible treatment, rehabilitation, case management and support services to individuals in their natural living setting. ACT programs deliver integrated services to recipients and adjust services over time to meet the recipient's goals and changing needs; are operated pursuant to approval or certification by OMH; and receive Medicaid reimbursement pursuant to 14 NYCRR Part 508.
g. Personalized Recovery Oriented Services (PROS)
PROS, licensed and reimbursed pursuant to 14 NYCCR Part 512, are designed to assist individuals in recovery from the disabling effects of mental illness through the coordinated delivery of a customized array of rehabilitation, treatment, and support services in traditional settings and in off-site locations. Specific components of PROS include Community Rehabilitation and Support, Intensive Rehabilitation, Ongoing Rehabilitation and Support and Clinical Treatment.
11. Rehabilitation Services Provided to Residents of OMH Licensed Community Residences (CRs) and Family Based Treatment Programs, as follows:
a. OMH Licensed CRs*
Rehabilitative services in community residences are interventions, therapies and activities which are medically therapeutic and remedial in nature, and are medically necessary for the maximum reduction of functional and adaptive behavior defects associated with the person's mental illness.
b. Family-Based Treatment*
Rehabilitative services in family-based treatment programs are intended to provide treatment to seriously emotionally disturbed children and youth to promote their successful functioning and integration into the natural family, community, school or independent living situations. Such services are provided in consideration of a child's developmental stage. Those children determined eligible for admission are placed in surrogate family homes for care and treatment.
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-17
"These services are certified by OMH under 14 NYCRR Part 586.3, 594 and 595.
12. Office of Mental Retardation and Developmental Disabilities (OMRDD) Services
a. Long Term Therapy Services Provided by Article 16-Clinic Treatment Facilities or Article 28 Facilities
These services are provided to persons with developmental disabilities including medical or remedial services recommended by a physician or other licensed practitioner of the healing arts for a maximum reduction of the effects of physical or mental disability and restoration of the person to his or her best possible functional level. It also includes the fitting, training, and modification of assistive devices by licensed practitioners or trained others under their direct supervision. Such services are designed to ameliorate or limit the disabling condition and to allow the person to remain in or move to, the least restrictive residential and/or day setting. These services are certified by OMRDD under 14 NYCRR, Part 679 (or they are provided by Article 28 Diagnostic and Treatment Centers that are explicitly designated by the SDOH as serving primarily persons with developmental disabilities). If care of this nature is provided in facilities other than Article 28 or Article 16 centers, it is a covered service.
b. Day Treatment
A planned combination of diagnostic, treatment and rehabilitation Services provided to developmentally disabled individuals in need of a broad range of services, but who do not need intensive twenty-four (24) hour care and medical supervision. The services provided as identified in the comprehensive assessment may include nutrition, recreation, self-care, independent living, therapies, nursing, and transportation services. These services are generally provided in ICF or a comparable setting. These services are certified by OMRDD under 14 NYCRR, Part 690.
c. Medicaid Service Coordination (MSC)
Medicaid Service Coordination (MSC) is a Medicaid State Plan service provided by OMRDD which assists persons with developmental disabilities and mental retardation to gain access to necessary services and supports appropriate to the needs of the needs of the individual. MSC is provided by qualified service coordinators and uses a person centered planning process in developing, implementing and maintaining an Individualized Service Plan (ISP) with and for a person with developmental disabilities and mental retardation. MSC promotes the concepts of a choice, individualized services and consumer satisfaction.
MSC is provided by authorized vendors who have a contract with OMRDD, and who are paid monthly pursuant to such contract. Persons who receive MSC must not permanently reside in an ICF for persons with developmental disabilities, a developmental center, a skilled nursing facility or any other hospital or Medical Assistance institutional setting that provides service coordination. They must also not concurrently be enrolled in any other comprehensive Medicaid long term service coordination program/service including the Care at Home Waiver.
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K--18
Please note: See generic definition of Comprehensive Medicaid Case Management (CMCM) in this section.
d. Home And Community Based Services Waivers (HCBS)
The Home and Community-Based Services Waiver serves persons with developmental disabilities who would otherwise be admitted to an ICF/MR if waiver services were not provided. HCBS waivers services include residential habilitation, day habilitation, prevocational, supported work, respite, adaptive devices, consolidated supports and services, environmental modifications, family education and training, live-in caregiver, and plan of care support services. These services are authorized pursuant to a SSA Section 1915(c) waiver from DHHS.
e. Services Provided Through the Care At Home Program (OMRDD)
The OMRDD Care at Home III, Care at Home IV, and Care at Home VI waivers, serve children who would otherwise not be eligible for Medicaid because of their parents' income and resources, and who would otherwise be eligible for an ICF/MR level of care. Care at Home waiver services include service coordination, respite and assistive technologies. Care at Home waiver services are authorized pursuant to a SSA section 1915(c) waiver from DHHS.
13. Comprehensive Medicaid Case Management (CMCM)
A program which provides "social work" case management referral services to a targeted population (e.g.: teens, mentally ill). A CMCM case manager will assist a client in accessing necessary services in accordance with goals contained in a written case management plan. CMCM programs do not provide services directly, but refer to a wide range of service Providers. Some of these services are: medical, social, psycho-social, education, employment, financial, and mental health. CMCM referral to community service agencies and/or medical providers requires the case manager to work out a mutually agreeable case coordination approach with the .agency/medical providers. Consequently, if an Enrollee of the Contractor is participating in a CMCM program, the Contractor should work collaboratively with the CMCM case manager to coordinate the provision of services covered by the Contractor. CMCM programs will be instructed on how to identify a managed care Enrollee on eMedNY and informed on the need to contact the Contractor to coordinate service provision.
14. Directly Observed Therapy for Tuberculosis Disease
Tuberculosis directly observed therapy (TB/DOT) is the direct observation of oral ingestion of TB medications to assure patient compliance with the physician's prescribed medication regimen.. While the clinical management of tuberculosis is covered in the Benefit Package, TB/DOT where applicable, can be billed directly to MMIS by any SDOH approved fee-for-service Medicaid TB/DOT Provider. The Contractor remains responsible for communicating, cooperating and coordinating clinical management of TB with the TB/DOT Provider.
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-19
15. AIDS Adult Day Health Care
Adult Day Health Care Programs (ADHCP) are programs designed to assist individuals with HIV disease to live more independently in the community or eliminate the need for residential health care services. Registrants in ADHCP require a greater range of comprehensive health care services than can be provided in any single setting, but do not require the level of services provided in a residential health care setting. Regulations require that a person enrolled in an ADHCP must require at least three (3) hours of health care delivered on the basis of at least one (1) visit per week. While health care services are broadly defined in this setting to include general medical care, nursing care, medication management, nutritional services, rehabilitative services, and substance abuse and mental health services, the latter two (2) cannot be the sole reason for admission to the program. Admission criteria must include, at a minimum, the need for general medical care and nursing services.
16. HIV COBRA Case Management
The HIV COBRA (Community Follow-up Program) Case Management Program is a program that provides intensive, family-centered case management and community follow-up activities by case managers, case management technicians, and community follow-up workers. Reimbursement is through an hourly rate billable to Medicaid. Reimbursable activities include intake, assessment, reassessment, service plan development and implementation, monitoring, advocacy, crisis intervention, exit planning, and case specific supervisory case-review conferencing.
17. Adult Day Health Care
Adult Day Health Care means care and services provided to a registrant in a residential health care facility or approved extension site under the medical direction of a physician and which is provided by personnel of the adult day health care program in accordance with a comprehensive assessment of care needs and individualized health care plan, ongoing implementation and coordination of the health care plan, and transportation.
Registrant means a person who is a nonresident of the residential health care facility who is functionally impaired and not homebound and who requires certain preventive, diagnostic, therapeutic, rehabilitative or palliative items or services provided by a general hospital, or residential health care facility; and whose assessed social and health care needs, in the professional judgment of the physician of record, nursing staff, Social Services and other professional personnel of the adult day health care program can be met in whole or in part satisfactorily by delivery of appropriate services in such program.
18. Personal Emergency Response Services (PERS)
Personal Emergency Response Services (PERS) are not covered by the Benefit Package. PERS are covered on a fee-for-service basis through contracts between the LDSS and PERS vendors.
Medicaid Advantage Contract
APPENDIX K
New York City 2006
K-20
Wellcare of New York, Inc
Dual Eligible Medicaid Managed Care Rates
| MMSI ID#: 02645710 | | Effective Date: 01/01/06 |
| Region: NYC | | |
| County: NYC | | |
Rate Code | Premium Group | Rate Amount |
| 2370 | DUALLY ELIGIBLE SSI 21-64 MALE/FEMALE | $44.45 |
| 2371 | DUALLY ELIGIBLE SSI 65+ MALE/FEMALE | $46.04 |
Optional Benefits Offered: |
R Dental R Non-Emergent Transportation Box will be checked if the optional benefit is covered by the plan |
APPENDIX M
Service Area
Medicaid Advantage Contract
APPENDIX M
New York City 2006
M-l
WellCare of New York, Inc.
The Contractor's Medicaid Advantage service area is comprised of the following Counties in their entirety:
New York
Medicaid Advantage Contract
APPENDIX M
New York City 2006
M-2
Appendix N
New York City Specific Contracting Requirements
APPENDIX M
New York City 2006
N-l
Appendix N New York City Specific Contracting Requirements
1. General
a) In New York City, the Contractor will comply with all provisions of the main body and other Appendices of this Agreement, except as otherwise expressly established in this Appendix.
b) This Appendix sets forth New York City Specific Contracting Requirements and contains the following sections:
N. 1 Compensation for Public Health Services
N.2 Coordination with DOHMH on Public Health Initiatives
N.3 Benefits
N.4 Additional Reporting Requirements
N.5 New York City Additional Medicaid Advantage Marketing Guidelines
N.6 Guidelines for Processing Enrollments and Disenrollments in New York City
N.7 New York City Transportation Policy Guidelines
Schedule 1 DOHMH Public Health Services Fee Schedule
APPENDIX N
New York City 2006
N-2
N.I
Compensation for Public Health Services
1. The Contractor shall reimburse DOHMH at the rates contained in Schedule 1 of this Appendix for Enrollees who receive the following services from DOHMH facilities, except in those instances where DOHMH may bill Medicaid fee-for-service.
a) Diagnosis and/or treatment of TB
b) HIV counseling and testing that is not part of an STD or TB visit
c) Adult immunizations
d) Dental services
. 2. Notwithstanding Sections 10.11 (a) (v) (C) and (b) (ii) of this Agreement, the following requirements concerning Contractor notification and documentation of services shall apply in New York City:
a) DOHMH shall confirm the Enrollee's membership in the Contractor's Medicaid Advantage product on the date of service through EMEDNY prior to billing for these services.
b) DOHMH must submit claims for services provided to Enrollees no later than one year from the date of service.
c) The Contractor shall not require pre-authorization, notification to the Contractor or , contacts with the PCP for the above mentioned services.
d) DOHMH shall make reasonable efforts to notify the Contractor that it has provided the above mentioned services to an Enrollee.
APPENDIX N
New York City 2006
N-3
N.2
Coordination with DOHMH on Public Health Initiatives
1. Coordination with DOHMH
a) The Contractor shall provide the DOHMH with existing information requested by DOHMH to conduct epidemiological investigations.
2. Provider Reporting Obligations
a) The Contractor shall make reasonable efforts to assure timely and accurate compliance by Participating Providers with public health reporting requirements relating to communicable disease and conditions mandated in the New York City Health Code pursuant to 24 RCNY §§ 1103-1107 and Article 21 of the NYS Public Health Law.
b)"Reasonable efforts" shall include:
i) educating Participating Providers on treatment guidelines and instructions for
reporting included in the NYC DOHMH Compendium of Public Health
Requirements and Recommendations. ii) Including reporting requirements in the Contractor's provider manual or other
written instructions or guidelines. iii) letters from the Contractor to Participating Providers who generated claims that
suggest that an Enrollee may have a reportable disease or condition, encouraging
such providers to report and providing information on how to report. iv) Other methods for follow up with Participating Providers, subject to DOHMH
approval, may be employed.
3. Enrollee Outreach/Education
a) The Contractor shall provide health education to Enrollees on an on-going basis through methods such as distribution of Enrollee newsletters, health education classes or individual counseling on preventive health and public health topics. Each topic below shall be covered at least once every two years.
i) HIV/AIDS
A) Encourage Enrollee counseling and testing
B) Inform Enrollees as to availability of sterile needles and syringes ii) STDs
A) Inform Enrollees that confidential STD services are available at DOHMH facilities for non-enrolled sexual and needle-sharing partners at no charge iii) Injury prevention, including age appropriate anticipatory guidance iv) Domestic violence
APPENDIX N
New York City 2006
N-4
v) Smoking cessation
vi) Asthma
vii) Immunization-influenza and pneumococcal
viii) Mental health services
ix) Diabetes
x) Screening for Cancer
xi) Chemical Dependence
xii) Physical fitness and nutrition
xiii) Cardiovascular disease and hypertension
xiv) Injury prevention including guidance on preventing falls and poisoning
xv) Preserving oral function and oral health
xvi) Stroke recognition
4. Provider Education
a) DOHMH shall prepare a public health compendium ("Compendium") with public health guidelines, protocols, and recommendations which it shall make available directly to Participating Providers and to the Contractor.
b) The Contractor shall adapt public health guidance from the Compendium for its internal protocols, practice manuals and guidelines.
c) The Contractor will assist DOHMH in its efforts to disseminate electronic materials to its Participating Providers by providing electronic addresses if known by Contractor (fax and/or e-mail) for its Participating Providers, updated semi- annually.
d) The Contractor shall promote the use of rapid HIV testing among its Participating Providers.
5. MCO Staff Responsibilities and Training
a) Domestic Violence
i) The Contractor shall designate a domestic violence coordinator who can:
A) Provide technical assistance to Participating Providers in documenting cases of domestic violence;
B) Provide referrals to Enrollees or their Participating Providers, to obtain protective, legal and or supportive social services; and
C) Provide consultative assistance to other staff within the Contractor's organization.
ii) The Contractor shall distribute a directory of resources for victims of domestic violence to appropriate staff, such as member services staff or case managers.
6. Medical Directors
APPENDIX N
New York City 2006
N-5
a) The Contractor's Medical Director shall participate in Medical Directors' Meetings with the medical directors of the other MCOs participating in the MMC Program in New York City and representatives of the New York City Department of Health and Mental Hygiene. The purpose of the Medical Directors' Meetings shall be to share public health information and data; recommend that certain public health information be disseminated by the MCOs to their Participating Providers; discuss public health strategies and outreach efforts and potential collaborative projects; encourage the development ofMCO policies that support public health strategies; and provide a vehicle for communication between the MCOs participating in the MMC Program and the various bureaus and divisions of the NYC Department of Health and Mental Hygiene.
b) The Contractor's Medical Director shall attend all periodic meetings, which shall not exceed one every two months. In the event that the Medical Director is unable to attend a particular meeting, the Contractor will designate an appropriate substitute to attend the meeting.
c) DOHMH, following consultation with the Medical Directors, may create workgroups on particular public health topics. The Contractor's Medical Director may participate in any or all of the workgroups, but shall participate in at least one of the designated workgroups.
7. Take Care New York
a) The Contractor shall:
i) Educate Enrollees regarding prevention and treatment of diseases and conditions included in the Take Care New York initiative (TCNY);
ii) Disseminate TCNY health passports or materials containing similar content approved by DOHMH to Enrollees;
iii) Disseminate reminders to obtain recommended health screenings at age appropriate intervals to Enrollees; and
iv) Educate Participating Providers on recommended clinical guidelines regarding prevention and treatment/management of diseases and conditions described in the TCNY initiative.
b) The Contractor shall select one condition annually from the TCNY initiative and perform the following:
i) Identify Enrollees with the condition using information from multiple sources (e.g., utilization data, including hospitalizations and ER visits; provider referrals; new Enrollee screenings; self-referrals by Enrollees) and maintain such information in a patient registry; and
APPENDIX N
New York City 2006
N-6
ii) Develop and submit to DOHMH for approval a proposal to evaluate the effectiveness of Contractor interventions for this condition by tracking service utilization and assessing health outcomes.
c) The Contractor shall, upon request by DOHMH, participate in one or more TCNY workgroups or other activities sponsored by the DOHMH.
APPENDIX N
New York City 2006
N-7
N.3 Benefits
1. Transitional Home Health Services Pending Placement in Personal Care Agency Services
a) Transitional home health services are home health services as defined in Appendix K of this Agreement provided by the Contractor to a Medicaid Advantage Enrollee while the Human Resources Administration's determination regarding a request for the provision of personal care agency services to the Enrollee is pending. Transitional home health services are available to Medicaid Advantage Enrollees in addition to the home health care services otherwise covered under the Medicare and Medicaid Advantage Benefit Packages as medically necessary.
b) The Contractor shall be responsible for providing transitional home health services to Medicaid Advantage Enrollees for up to a thirty (30) day period as follows:
i) For Enrollees discharged from a hospital or RHCF and for whom personal care a-gency services have been requested by the hospital/RHCF discharge planner, the thirty (30) day period shall commence with the day following the Enrollee's discharge from the hospital or RHCF. Transitional home health services shall not be available if the Enrollee: was hospitalized less than thirty (30) days, was in receipt of personal care agency services prior to his/her admission to the hospital or RHCF, and requires the same level and hours of personal care agency services upon discharge. ii) For Enrollees who have been receiving Medicare or Medicaid Advantage covered home health care services in the community and for whom personal care agency services have been ordered by the Enrollee's physician, the thirty (30) day period shall commence with the day following the last day that the Contractor approved home health care services to be medically necessary.
c) The Contractor shall provide reasonable assistance as requested regarding the completion of forms required by the Human Resources Administration to initiate the review of a request for personal care agency services. Such form, commonly referred to as the Ml 1Q, requires physician orders, signed by the licensed physician, to be received by HRA within thirty (30) calendar days of the physician's examination.
APPENDIX N
New York City 2006
N-8
N.4
Additional Reporting Requirements
1. DOHMH, will provide Contractor with instructions for submitting the reports required by paragraphs 4(c), below. These instructions shall include time frames, and requisite formats. The instructions, time frames and formats may be modified by DOHMH upon sixty (60) days written notice to the Contractor.
2. The Contractor shall submit reports that are required to be submitted to DOHMH by this Agreement electronically.
3. The Contractor shall pay liquidated damages of $500 to DOHMH for any report required by paragraphs 4(c) below which is materially incomplete, contains material misstatements or inaccurate information or is not submitted on time in the requested format. The DOHMH shall not impose liquidated damages for a first time infraction by the Contractor unless DOHMH deems the infraction to be a material misrepresentation of fact or the Contractor fails to cure the first infraction within a reasonable period of time upon notice from the DOHMH. Liquidated damages may be waived at the sole discretion of DOHMH.
4. The Contractor shall submit the following reports to DOHMH:
a) The Contractor shall provide DOHMH with all reports submitted to SDOH pursuant to Sections! 8.6(a)(i), (ii), (vi) and (vii) of this Agreement.
b) Upon request by DOHMH, the Contractor shall submit to DOHMH reports submitted to SDOH pursuant to Section 18.6(a) (iii) of this Agreement.
c) Upon request by the DOHMH, the Contractor shall prepare and submit other operational data reports. Such requests will be limited to situations in which the desired data is considered essential and cannot be obtained through existing Contractor reports. Whenever possible, the Contractor will be provided with ninety (90) days notice and the opportunity to discuss and comment on the proposed requirements before work is begun. However, the DOHMH reserves the right to give thirty (30) days notice in circumstances where time is of the essence.
APPENDIX N
New York City 2006
N-9
N.5
New York City Additional Medicaid Advantage Marketing Guidelines
1. Contractor may not market Medicaid Advantage within a two block perimeter of an HRA facility. Additionally, when a Medicaid community office is located in a hospital facility, Contractor may not market Medicaid Advantage within 60 feet of the MEedicaid community office.
2. Contractor shall not market in h-omeless shelters.
Appendix N
New York City 2006
N-10
N.6
Guidelines for Processing Enrollments and Disenrollments in New York City
1. Notwithstanding any contrary provisions in Appendix H, in New York City, Enrollment error reports are generated by the Enrollment Broker to the Contractor generally within 24-48 hours of Contractor Enrollment submissions and the Contractor is able to resubmit corrections via the Enrollment Broker before Roster pulldown. Changes in Enrollee eligibility or Enrollment status that occur prior to production of the monthly Roster are reported by the State to the Contractor with their rosters. Changes in Enrollee eligibility status that occur subsequent to production of the monthly Roster shall be reported by the Enrollment Broker by means of the electronic bulletin board. Reports of Disenrollments processed by the Enrollment Broker shall be reported to the Contractor as they occur by means of the electronic bulletin board. Reports of Disenrollments processed by HRA shall be reported to the Contractor manually as they occur or through the HPN. In the event that the electronic bulletin board notification process is not available for any reason, the Contractor shall use EMEDNY to verify loss of eligibility.
2. With respect to Section 5 (a) (vi) of Appendix H of this Agreement, in the event that an Enrollee loses Medicaid eligibility, the PCP Enrollment is left on the system and removed thereafter by SDOH if no eligibility reinstatement occurs.
3. Section 3 (c) (ii) of Appendix H of this Agreement is not applicable in New York City. The Contractor shall not send verification of the infant's demographic data to the HRA unless thirty days has expired since the date of birth and the Contractor has not received confirmation via the HPN of a successful Enrollment through the automated Enrollment system. When the thirty days has expired the Contractor shall, within 10 days, send verification of the infant's demographic data to the HRA including: the mother's name and CIN; and the newborn's name, CIN, sex and date of birth. Upon receipt of the data, if the Enrollment does not appear on the system, HRA will process the retroactive Enrollment.
4. In New York City, Enrollees may initiate a request for an expedited Disenrollment to the HRA. The HRA will expedite the Disenrollment process in those cases where: an Enrollee's request for Disenrollment involves an urgent medical need; the Enrollee is a homeless individual residing in the shelter system in New York City; the Enrollee has HIV, ESRD, or a SPMI/SED condition; the request involves a complaint ofnon-consenusal Enrollment; or the Enrollee is certified blind or disabled and meets an exemption criteria. If approved, the HRA will manually process the Disenrollment.
APPENDIX N
New York City 2006
N-ll
5. Notwithstanding Section 5 (a) (viii) of Appendix H of this Agreement, in New York City, further notification by HRA is not required prior to retroactive Disenrollment in the following instances:
(a) death or incarceration of an Enrollee;
(b) an Enrollee has duplicate CINs and is enrolled in a Contractor's Medicaid Advantage Product or FHPlus product under more than one of the CINs; or
(c) where there has been communication between the Contractor and HRA or the Enrollment Broker regarding the date of disenrollmerit.
Consistent with 5 (a) (viii) of Appendix H of this Agreement, the LDSS remains responsible for sending a notice to the Contractor at the time of Disenrollment of the Contractor's responsibility to submit to the SDOH's Fiscal Agent voided premium claims for any full months of retroactive Disenrollment where the Contractor was not at risk for the provision of Benefit Package Services. Such notice shall be completed by the LDSS to include: the Disenrollment Effective Date, the reason for the retroactive Disenrollment, and the months for which premiums must be repaid. The Contractor has 10 days to notify the LDSS should it refute the Disenrollment Effective Date, based on a belief that the Contractor was at risk for the provision of Benefit Package Services for any month for which recoupment of premium has been requested. However failure by the LDSS to so notify the Contractor does not affect the right of SDOH to recover premium payment as authorized by Section 3.6 of this Agreement.
6. In New York City, the LDSS will only accept Medicaid Advantage plan Enrollments submitted to the Enrollment Broker via the bulletin board with the exception of consumers currently enrolled in a mainstream plan. For consumers enrolled in a mainstream plan. Enrollment applications will only be accepted when submitted to the Enrollment Broker via paper application.
APPENDIX N
New York City 2006
N-12
N.7
New York City Transportation Policy Guidelines
1. The Medicaid Managed Care Program contractual Benefit Package in New York City includes non emergency transportation to all medical care and services that are covered under the Medicare and Medicaid program, regardless of whether the specific medical service is included in the Benefit Package or paid for on a fee-for-service basis, except for transportation costs to Methadone Maintenance Treatment Programs. The transportation obligation includes the cost of meals and lodging incurred when going to and returning from a provider of medical care and services when distance and travel time require these costs.
2. Generally, the Contractor may provide transportation by giving or reimbursing the Enrollee subway/bus tokens for the round trip for their medical care and services, if public transportation is available for such care and services. The Contractor is not required to provide transportation if the distance to the medical appointment is so short that the Enrollee would customarily walk to perform other routine errands. The Contractor may adopt policies requiring a minimum distance between an Enrollee's residence and the medical appointment, which may not be greater than ten blocks;
however, the policy must provide transportation for Enrollees living a lesser distance upon a showing of special circumstances such as a physical disability on a case-by-case basis.
3. If the Enrollee has disabilities or medical conditions which prevent him or her from utilizing public transportation, the Contractor must provide accessible transportation which is appropriate to the disability or condition such as livery, ambulette, or taxi. The Contractor may require pre-authorization of non-public transportation except for emergency transportation.
a) The Contractor shall provide livery transportation under the following circumstances, unless the Enrollee requires transportation by ambulette or ambulance:
i) The Enrollee is able to travel independently but due to a debilitating physical or mental condition, cannot use the mass transit system. ii) The Enrollee is traveling to and from a location that is inaccessible by mass transit.
iii) The Enrollee cannot access the mass transit system due to temporary severe weather, which prohibits use of the normal mode of transportation.
b) The Contractor shall provide ambulette transportation under the following circumstances, unless the Enrollee requires transportation by ambulance:
i) The Enrollee requires personal assistance from the driver in entering/exiting the Enrollee's residence, the ambulette and the medical facility.
APPENDIX N
New York City 2006
N-13
ii) The Enrollee is wheelchair-bound (non-collapsible or requires a specially configured vehicle).
iii) The Enrollee has a mental impairment and requires the personal assistance of the ambulette driver.
iv) The Enrollee has a severe, debilitating weakness or is mentally disoriented as a result of medical treatment and requires the personal assistance of the ambulette driver.
v) The Enrollee has a disabling physical condition that requires the use of a walker, cane, crutch or brace and is unable to use livery service or mass transportation.
c) The Contractor shall provide non-emergency ambulance transportation when the Enrollee must be transported on a stretcher and/or requires the administration of life support equipment by trained medical personnel. The use of non-emergency ambulance is indicated when the Enrollee's condition would prohibit any other form of transport.
4. Emergency transportation may only be provided by accessing 911 emergency ambulances. Urgent care transportation may be provided by any mode of transportation so long as such mode is appropriate for the medical condition or disability experienced by the Enrollee.
5. If an attendant is medically necessary to accompany the Enrollee to the medical appointment, the Contractor is responsible for the transportation of the attendant. A medically required attendant (authorized by the attending physician) may include a family member, friend, legal guardian or home health worker. When a child travels to medical care and services, and an attendant is required, the parent or guardian of the child may act as an attendant. In these situations, the costs of the transportation, lodging and meals of the parent or guardian may be reimbursable, and authorization of the attending physician is not required.
APPENDIX N
New York City 2006
N-14
Schedule 1 of Appendix N
DOHMH Public Health Services Fee Schedule
SERVICE | FEE |
| TB CLINIC | $125.00 |
| IMMUNIZATION | $ 50.00 |
| HP/ COUNSELING AND TESTING | $ 96.47 |
| VISIT HIV COUNSELING AND NO TESTING | $90.12 |
| HIV POST TEST COUNSELING | $ 72.54 |
| Visit Negative Result Visit Positive Result | $90.12 |
| LAB TESTS | $ 12.27 |
HP/ 1 (ELISA Test) HIV Antibody, Confirmatory (Western Blot) | $ 26.75 |
| DENTAL SERVICES | $ 108.00 |
APPENDIX N
New York City 2006
N-15
APPENDIX O
Reserved
Medicaid Advantage Contract
APPENDIX 0
New York City 2006
0-1
APPENDIX P
Reserved
APPENDIX P
New York City 2006
P-l
APPENDIX Q
Reserved
Medicaid Advantage Contract
APPENDIX Q
New York City 2006
Q-l
APPENDIX R
New York City Standard Clauses
R.1 General Provisions Governing Contracts for Consultants, Professional and Technical Services (Not-For-Profit Entities)
R.2 General Provisions Governing Contracts for Consultants, Professional and Technical Services (For-Profit Entities)
Medicaid Advantage Contract
APPENDIX R
New York City 2006
R-l
APPENDIX R
New York City Standard Local Clauses
R.I General Provisions Governing Contracts for Consultants, Professional and Technical Services (Not-For-Profit Entities)
R.2 General Provisions Governing Contracts for Consultants, Professional and Technical Services (For-Profit Entities)
APPENDIX R October 1, 2005
R-l
APPENDIX R 1
GENERAL PROVISIONS GOVERNING CONTRACTS FOR CONSULTANTS, PROFESSIONAL AND TECHNICAL SERVICES (Not-For-Profit entities)
CONTENTS | Page | | | | |
ARTICLE 1. | DEFINITIONS | 2 | | 6.5 | Waiver | 12 |
| | | | 6.6 | Notice | 12 |
ARTICLE 2. | REPRESENTATIONS AND WARRANTIES | 2 | | 6.7 | All Legal Provisions Deemed Included | 12 |
2.1 | Procurement of Agreement | 2 | | 6.8 | Severability | 12 |
2.2 | Conflict of interest | 2 | | 6.9 | Political Activity | 12 |
2.3 | Fair Practices | 2 | | 6.10 | Modification | 12 |
| | | | 6.11 | Paragraph Headings | 13 |
ARTICLE 3. | AUDIT BY DEPARTMENT AND CITY | 3 | | 6.12 | No removal of records from premises | 13 |
| | | | 6.13 | Inspection at site | 13 |
ARTICLE 4. | CONVENANTS OF THE CONTRACTOR | 3 | | 6.14 | Pricing | 13 |
4.1 | Employees | 3 | | ARTICLE 7. | MERGER | 13 |
4.2 | Independent Contractor Status | 4 | | | | |
4.3 | Insurance | 4 | | ARTICLE 8. | CONDITIONS PRECEDENT | 13 |
4.4 | Protection of City Property. | 6 | | | | |
4.5 | Confidentiality | 6 | | ARTICLE 9. | PPB RULES | 14 |
4.6 | Books and Records | 6 | | | | |
4.7 | Retention of Records | 6 | | ARTICLE 10. | STATE LABOR LAW AND CITY ADMINISTRTIVE CODE | 14 |
4.8 | Compliance with Law | 6 | | | | |
4.9 | Investigation Clause | 6 | | ARTICLE 11. | FORUM PROVISION | 15 |
4.10 | Assignment | 8 | | | | |
4.11 | Subcontracting | 8 | | ARTICLE 12. | EQUAL EMPLOYMENT OPPORTUNITY | 15 |
4.12 | Publicity | 9 | | | | |
4.13 | Participation in an International Boycott | 9 | | ARTICLE 13. | NO DAMAGE FOR DELAY | 16 |
4.14 | Inventions, Patents, and Copyrights | 9 | | ARTICLE 14. | CONSULTANT REPORT INFORMATION | 16 |
4,15 | Infringements | 9 | | | | |
4.16 | Anti-Trust | 10 | | ARTICLE 15. | RESOLUTION OF DISPUTES | 17 |
| | | | 15.4 | Presentation of Dispute to Agency head | 17 |
ARTICLE 5. | TERMINATION | 10 | | 15.5 | Presentation of dispute to the controller | 18 |
5.1 | Termination of Agreement | 10 | | 15.6 | Contract Dispute Resolution Board | 19 |
| | | | 15.7 | Petition to Contract Dispute Resolution Board | 19 |
ARTICLE 6. | MISCELLANEOUS | 11 | | | | |
6.1 | Conflict of Laws | 11 | | ARTICLE 16. | PROMPT PAYMENT | 20 |
6.2 | General Release | 11 | | | | |
6.3 | Claims and Actions Thereon | 11 | | | | |
6.4 | No Claims Against Officers, Agents, or Employees | 11 | | | | |
ARTICLE 1. DEFINITIONS
As used throughout this Agreement, the following terms shall have the meaning set forth below:
a. "City" shall mean the City of New York, its departments and political subdivisions.
b. "Comptroller" shall mean the Comptroller of the City of New York.
c. "Department" or "Agency" shall mean the DEPARTMENT OF HEALTH. AND MENTAL HYGIENE
d. "Commissioner" or "Administrator" shall mean the COMMISSIONER OF HEALTH AND MENTAL
HYGIENE or his duly authorized representative. The term "duly authorized representative" shall include any
person or persons acting within the limits of his or her authority.
e. "Law" or "Laws" shall include but not be limited to the New York City Charter, the New York City AdministrativeCode, a local law of the City of New York, and any ordinance, rule or regulation having the Force of law.
f. "Contractor"or"ConsuItant" shall mean VENDOR
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
2.1 PROCUREMENT OF AGREEMENT
A. The Contractor represents and warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage fee, contingent fee or any other compensation. The Contractor further represents and warrants that no payment, gift or thing of value has been made, given or promised to obtain this or any other agreement between the parties. The Contractor makes such representations and warranties to induce the City to enter into this Agreement and the City relies upon such representations and warranties in the execution hereof.
B. For a breach or violation of such representations or warranties, the Administrator shall have the right to annul this Agreement without liability, entitling the City to recover all monies paid hereunder and the Contractor shall not make claim for, or be entitled to recover, any sum or sums due under this Agreement. This remedy, if effected, shall not constitute the sole remedy afforded the City for the falsity or breach, nor shall it constitute a waiver of the City's right to claim damages or refuse payment or to take any other action provided for by law or pursuant to this Agreement.
2.2 CONFLICT OF INTEREST
The Contractor represents and warrants that neither it nor any of its directors, officers, members, partners or employees, has any interest nor shall they acquire any interest, directly or indirectly, which would or may conflict in any manner or degree with the performance or rendering of the services herein provided. The Contractor further represents and warrants that in the performance of this Agreement no person having such interest or possible interest shall be employed by it. No elected official or other officer or employee of the City or Department, nor any person whose salary is payable, in whole or in part, from the City Treasury, shall participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested; nor shall any such person have any interest, direct or indirect, in this Agreement or in the proceeds thereof.
2.3 FAIR PRACTICES
The Contractor and each person signing on behalf of any contractor represents and warrants and certifies, under penalty of perjury, that to the best of its knowledge and belief:
A. The prices in this contract have been arrived at independently without collusion, consultation, communication, or
agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or with any competitor;
B. Unless otherwise required by law, the prices which have been quoted in this contract and on the proposal submitted by the Contractor have not been knowingly disclosed by the Contractor prior to the proposal opening, directly or indirectly, to any other bidder or to any competitor; and
C. No attempt has been made or will be made by the Contractor to induce any other person, partnership or corporation to submit or not to submit a proposal for the purpose of restricting competition. The fact that the Contractor (a) has published price lists, rates, ortariffs covering items being procured, (b) has informed prospective customers of proposed
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or pending publication of new or revised price lists for such items, or © has sold the same items to other customers at the same prices being bid, does not constitute, without more, a disclosure within the meaning of the above.
ARTICLE 3. AUDIT BY THE DEPARTMENT AND CITY
3.1 All vouchers or invoices presented for payment to be made hereunder, and the books, records and accounts upon which said vouchers or invoices are based are subject to audit by the Department and by the Comptroller of the City of New York pursuant to the powers and responsibilities as conferred upon said Department and said Comptroller by the New York City Charter and Administrative Code of the City of New York, as well as all orders and regulations promulgated pursuant thereto.
3.2 The Contractor shall submit any and all documentation and justification in support of expenditures or fees under this Agreement as may be required by said Department and said Comptroller so that they may evaluate the reasonableness ofthe charges and shall make its records available to the Department and to the Comptroller as they consider necessary.
3.3 All books, vouchers, records, reports, canceled checks and any and all similar material may be subject to periodic inspection, review and audit by the State of New York, Federal Government and other persons duly authorized by the City. Such audit may include examination and review ofthe source and application of all funds whether from the City, any State, the Federal Government, private sources or otherwise.
3.4 The contractor shall not be entitled to final payment under the Agreement until all requirements have been satisfactorily met.
ARTICLE 4. COVENANTS OF THE CONTRACTOR
4.1 EMPLOYEES
A. All experts or consultants or employees ofthe Contractor who are employed by the Contractor to perform work under this contract are neither employees ofthe City nor under contract to the City and the Contractor alone is responsible for their work, direction, compensation and personal conduct while engaged under this Agreement. Nothing in this contract shall impose any liability or duty on the City for the acts, omissions, liabilities or obligations ofthe Contractor any person, firm company, agency, association, expert, consultant, independent contractor, specialist, trainee, employee, servant, or agent, or for taxes of any nature including but not limited to unemployment insurance, workmen's compensation, disability benefits and social security, or, except as specifically stated in this contract, to any person, firm or corporation.
B. The Contractor shall be solely responsible for all physical injuries or death to its agents, servants, or employees or to any other person or damage to any property sustained during its operations and work on the project under this agreement resulting from any act of omission or commission or error in judgment of any of its officers, trustees, employees, agents, servants, or independent contractors, and shall hold harmless and indemnify the City from liability upon any and all claims for damages on account of such injuries or death to any such person or damages to property on account of any neglect, fault or default ofthe Contractor, its officers, trustees, employees, agents, servants, or independent contractors. The Contractor shall be solely responsible for the safety and protection of all of its employees whether due to the negligence, fault or default ofthe Contractor or not.
C. Workmen's Compensation and Disability Benefits
If this Agreement be of such a character that the employees engaged thereon are required to be insured by the provision of Chapter 615 ofthe Laws of 1922, known as the "Workmen's Compensation Law" and acts amendatory thereto, the Agreement shall be void and of no effect unless the Contractor shall secure compensation for the benefit of, and keep insured during the life of this Agreement such employees in compliance with the provisions of said law, inclusive of Disability Benefits,; and, shall furnish the Department with two (2) certificates of these insurance coverages.
D. Unemployment Insurance
Unemployment Insurance coverage shall be obtained and provided by the Contractor for its employees.
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E. Minimum Wage
Except for those employees whose minimum wage is required to be fixed pursuant to Section 220 of the Labor Law of the State of New York, all persons employed by the Contractor in the performance of this Agreement shall be paid, without subsequent deduction or rebate, unless expressly authorized by law, not less than the minimum wage as prescribed by law. Any breach or violation of the foregoing shall be deemed a breach or violation of a material provision of this Agreement.
4.2 INDEPENDENT CONTRACTOR STATUS
The Contractor and the Department agree that the Contractor is an independent contractor, and not an employee of the Department or the City of New York, and that in accordance with such status as independent contractor, the Contractor covenants and agrees that neither it nor its employees or agents will hold themselves out as, nor claim to be, officers or employees of the City ofNew York, or of any department, agency or unit thereof, by reason hereof, and that they will not, by reason hereof, make any claim, demand or application to or for any right or privilege applicable to an officer or employee of the City ofNew York, including, but not limited to, Workmen's Compensation coverage. Unemployment Insurance Benefits, Social Security coverage or employee retirement membership or credit.
4.3 INSURANCE
A. INSURANCE REQUIREMENTS FOR CONTRACTORS
Contractors shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees or subcontractors. All required insurance policies shall be maintained with companies that may lawfully issue the required policy and have an A.M. Best rating of at least A-7 or a Standard and Poor's rating of at least AA, unless prior written approval is obtained from the Mayor's Office of Operations. The cost of such insurance shall be included in the Contractor's bid.
a. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office form number GL 0002 (1/73) covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001).(ED 11/85).
2.Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsements CA 2232 and CA 0112.
3. Workers' Compensation insurance as required by Labor Code of the State ofNew York and Employers Liability insurance.
b. Minimum Limits of Insurance
Contractor shall maintain limits no less than:
1. Comprehensive General Liability: $1,000,000.00 combined single limit per accident for bodily injury and property damage.
2-Professional liability: 1 Million Dollars per occurrence; Three Million Dollars Aggregate.
3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of New York Employers Liability limits of $1,000,000.00 per accident. Pursuant to Section 57 of the NYS Workers' Compensation Law, the vendor has submitted proof of workers' compensation and disability benefits coverage to the agency.
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c. Deductibles and Self-Insured Retentions
Any deductibles and self-insured retentions must be declared to and approved by the Agency. At the option of the Agency, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects and Agency, its officers, officials and employees; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
1. General Liability and Automobile Liability Coverages
a. The City, its officers, officials and employees are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, leases or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials and employees.
b. The Contractor's insurance coverage shall be primary insurance as respect the City, its officers, officials, and employees. Any other insurance or self-insurance maintained by the Agency, its officers, officials and employees shall be excess of and not contribute with the Contractor's insurance.
c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Agency, its officers, officials, and employees.
d. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurers liability.
2. Workers' Compensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against the Agency, its officers, officials, and employees for losses arising from work performed by the Contractor for Agency. -
3. All Coverages
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after sixty (60) days prior written notice by certified mail, return receipt requested, has been given to the City.
d. Acceptability of Insurers
Insurance is to be placed with insurers with an A.M. Best rating of at least A-7 or a Standard and Poor's rating of at least AA, unless prior written approval is obtained from the Mayor's Office of Operations.
e. Verification of Coverage
Contractor shall furnish the City with Certificates of Insurance effecting coverage required by this clause.' The Certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates are to be on forms provided by the Agency and are to be received and approved by the Agency before work commences. The Agency reserves the right to obtain complete, certified copies of all required insurance policies, at any time.
f. Subcontractors
Contractor shall include all subcontractors as insured under its policies or shall furnish separate Certificates for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
B. In the event that any claim is made or any action is brought against the City arising out of negligent or careless acts of an employee of the Contractor, either within or without the scope of his employment, or arising out of Contractor's negligent performance of this Agreement, then the City shall have the right to withhold further payments hereunder for the purpose of set-off in sufficient sums to cover the said claim or action. The rights and remedies of the City provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or this Agreement,
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4.4 PROTECTION OF CITY PROPERTY
A. The Contractor assumes the risk of, and shall be responsible for, any loss or damage to City property, including property and equipment leased by the City, used in the performance of this Agreement; and caused, either directly or indirectly by the acts, conduct, omissions or lack of good faith of the Contractor, its officers, managerial personnel and employees, or any person, firm, company, agent or others engaged by the Contractor as expert, consultant, specialist or subcontractor hereunder.
B. In the event that any such City property is lost or damaged, except for normal wear and tear, then the City shall have the right to withhold further payments hereunder for the purpose of set-off, in sufficient sums to cover such loss or damage.
C. The Contractor agrees to indemnify the City and hold it harmless from any and all liability or claim for damages due to any such loss or damage to any such City property described in subsection A above.
D. The rights and remedies of the City provided herein shall not be exclusive and are in addition to any other rights and remedies provided by law or by this Agreement.
4.5 CONFIDENTIALITY
All of the reports, information or data, furnished to or prepared, assembled or used by the Contractor under this Agreement are to be held confidential, and prior to publication, the Contractor agrees that the same shall not be made available to any individual or organization without the prior written approval of the Department.
4.6 BOOKS AND RECORDS
The Contractor agrees to maintain separate and accurate books, records, documents and other evidence and accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement.
4.7 RETENTION OF RECORDS
The Contractor agrees to retain all books, records, and other documents relevant to this Agreement for six years after the final payment or termination of this Agreement, whichever is later. City, State and Federal auditors and any other persons duly authorized by the Department shall have full access to and the right to examine any of said materials during said period.
4.8 COMPLIANCE WITH LAW
Contractor shall render all services under this Agreement in accordance with the applicable provisions of federal, state and local laws, rules and regulations as are in effect at the time such services are rendered.
4.9 INVESTIGATION CLAUSE
1. The parties to this agreement agree to cooperate fully and faithfully with any investigation, audit or inquiry conducted by a State of New York (State) or City of New York (City) governmental agency or authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by the Inspector General of a governmental agency that is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or inquiry.
2(a) If any person who has been advised that his or her statement, and any information from such statement, will not be used against him or her in any subsequent criminal proceeding refuses to testify before a grand jury or other governmental agency or authority empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath concerning the award of or performance under any transaction,
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agreement, lease, permit, contract, or license entered into with the City, the State, or any political subdivision or public authority thereof, or the Port Authority of New York and New Jersey, or any local development corporation within the City, or any public benefit corporation organized under the laws of the State of New York, or;
(b) If any person refuses to testify for a reason other than the assertion of his or her privilege against self-incrimination in an investigation, audit or inquiry conducted by a City or State governmental agency or authority empowered directly or by designation to compel the attendance of witnesses and to take testimony under oath, or by the Inspector General of the governmental agency that is a party in interest in, and is seeking testimony concerning the award of, or performance under, any transaction, agreement, lease, permit, contract . or license entered into with the City, the State, or any political subdivision thereof or any local development corporation within the City, then;
3(a) The commissioner or agency head whose agency is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license shall convene a hearing, upon not less than five (5) days written notice to the parties involved, to determine if any penalties should attach for the failure of a person to testify.
3(b) If any non-governmental party to the hearing requests an adjournment, the commissioner or agency head who convened the hearing may, upon granting the adjournment, suspend any contract, lease, permit, or license pending the final determination pursuant to paragraph 5 below without the City incurring any penalty or damages for delay or otherwise.
4. The penalties which may attach after a final determination by the commissioner or agency head may include but shall not exceed:
(a) The disqualification for a period not to exceed five (5) years from the date of an adverse determination for any person, or any entity of which such person was a member at the time the testimony was sought, from submitting bids for, or transacting business with, or entering into or obtaining any contract, lease, permit or license with or from the City; and/or
(b) The cancellation or termination of any and all such existing City contracts, leases, permits or licenses that the refusal to testify concerns and that have not been assigned as permitted under this agreement, nor the proceeds of which pledged, to an unaffiliated and unrelated institutional lender for fair value prior to the issuance of the . notice scheduling the hearing, without the City incurring any penalty or damages on account of such cancellation or termination; monies lawfully due for goods delivered, work done, rentals, or fees accrued prior to the cancellation or termination shall be paid by the City.
5. The commissioner or agency head shall consider and address in reaching his or her determination and in assessing an appropriate penalty the factors in paragraphs (a) and (b) below. He or she may also consider, if relevant and appropriate, the criteria established in paragraphs (c) and (d) below in addition to any other information which may be relevant and appropriate:
(a) The party's good faith endeavors or lack thereof to cooperate fully and faithfully with any governmental investigation or audit, including but not limited to the discipline, discharge, or disassociation of any person failing to testify, the production of accurate and complete books and records, and the forthcoming testimony of all other members, agents, assignees or fiduciaries whose testimony is sought.
(b) The relationship of the person who refused to testify to any entity that is a party to the hearing, including, but not limited to, whether the person whose testimony is sought has an ownership interest in the entity and/or the degree of authority and responsibility the person has within the entity.
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(c) The nexus of the testimony sought to the subject entity and its contracts, leases, permits or licenses with the City.
(d) The effect a penalty may have on an unaffiliated and unrelated party or entity that has a significant interest in an entity subject to penalties under 4 above, provided that the party or entity has given actual notice to the commissioner or agency head upon the acquisition of the interest, or at the hearing called for in 3(a) above gives notice and proves that such interest was previously acquired. Under either circumstance the party or entity must present evidence at the hearing demonstrating the potential adverse impact a penalty will have on such person or entity.
6. The term "license" or "permit" as used herein shall be defined as a license, permit, franchise or concession not granted as a matter of right.
(a) The term "person" as used herein shall be defined as any natural person doing business alone or associated with another person or entity as a partner, director, officer, principal or employee.
b) The term "entity" as used herein shall be defined as any firm, partnership, corporation, association, or person that receives monies, benefits, licenses, leases, or permits from or through the City or otherwise transacts business with the City.
(c) The term "member" as used herein shall be defined as any person associated with another person or entity as a partner, director, officer, principal or employee.
7. . In addition to and notwithstanding any other provision of this agreement the Commissioner or agency head may in his or her sole discretion terminate this agreement upon not less than three (3) days written notice in the event contractor fails to promptly report in writing to the Commissioner of Investigation of the City of New York any solicitation of money, goods, requests for future employment or other benefit or thing of value, by or on behalf of any employee of the City or other person, firm, corporation or entity for any purpose which may be related to the procurement or obtaining of this agreement by the contractor, or affecting the performance of this contract.
4.10 ASSIGNMENT
A. The Contractor shall not assign, transfer, convey or otherwise dispose of this Agreement or of Contractor's rights, obligations, duties, in whole or in part, or of its right to execute it, or its right, title or interest in it or any part thereof, or assign, by power of attorney or otherwise, any of the notices due or to become due under this contract, unless the prior written consent of the Administrator shall be obtained. Any such assignment, transfer, conveyance or other disposition without such consent shall be void.
B. Failure of the Contractor to obtain any required consent to any assignment, shall be cause for termination for cause, at the option of the Administrator; and if so terminated, the City shall thereupon be relieved and discharged from any further liability and obligation to the Contractor, its assignees or transferees, and all monies that may become due under the contract shall be forfeited to the City except so much thereof as may be necessary to pay the Contractor's employees.
C. The provisions of this clause shall not hinder, prevent, or affect an assignment by the Contractor for the benefit of its creditors made pursuant to the laws of the State of New York.
D. This Agreement may be assigned by the City to any corporation, agency or instrumentality having authority to accept such assignment.
4.11 SUBCONTRACTING
A. The Contractor agrees not to enter into any subcontracts for the performance of its obligations, in whole or in part, under this Agreement without the prior written approval of the Department. Two copies of each such proposed subcontract
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shall be submitted to the Department with the Contractor's written request for approval. All such subcontracts shall contain provisions specifying:
1. that the work performed by the subcontractor must be in accordance with the terms of the Agreement between the Department and the Contractor,
2. that nothing contained in such agreement shall impair the rights of the Department,
3. that nothing contained herein, or under the Agreement between the Department and the Contractor, shall create any contractual relation between the subcontractor and the Department, and
4. that the subcontractor specifically agrees to be bound by the confidentiality provision set forthin this Agreement between the Department and the Contractor.
B. The Contractor agrees that it is fully responsible to the Department for the acts and omissions of the subcontractors and of persons either directly or indirectly employed by them as it is for the acts and omissions of persons directly employed by it.
C. The aforesaid approval is required in all cases other than individual employer-employee contracts.
D. The Contractor shall not in any way be relieved of any responsibility under this Contract by any subcontract.
4.12 PUBLICITY
A. The prior written approval of the Department is required before the Contractor or any of its employees, servants, agents, or independent contractors may, at any time, either during or after completion or termination of this Agreement, make any statement to the press or issue any material for publication through any media of communication bearing on the work performed or data collected under this Agreement.
B. If the Contractor publishes a work dealing with any aspect of performance under this Agreement, or of the results and accomplishments attained in such performance, the Department shall have a royalty free, non-exclusive and irrevocable license to reproduce, publish or otherwise use and to authorize others to use the publication.
4.13 PARTICIPATION IN AN INTERNATIONAL BOYCOTT
A. The Contractor agrees that neither the Contractor nor any substantially-owned affiliated company is participating or shall participate in an international boycott in violation of the provisions of the Export Administration Act of 1979, as amended, or the regulations of the United States Department of Commerce promulgated thereunder.
B. Upon the final determination by the Commerce Department or any other agency of the United States as to, or conviction of the Contractor or a substantially-owned affiliated company thereof, participation in an international boycott in violation of the provisions of the Export Administration Act of 1979, as amended, or the regulations promulgated thereunder, the Comptroller may, at his option, render forfeit and void this contract.
C. The Contractor shall comply in all respects, with the provisions of Section 6-114 of the Administrative Code of the City of New York and the rules and regulations issued by the Comptroller thereunder.
4.14 INVENTIONS. PATENTS AND COPYRIGHTS
A. Any discovery or invention arising out of or developed in the course of performance of this Agreement shall be promptly and fully reported to the Department, and if this work is supported by a federal grant of funds, shall be promptly and fully reported to the Federal Government for determination as to whether patent protection on such invention shall be sought and how the rights in the invention or discovery, including rights under any patent issued thereon, shall be disposed of and administered in order to protect the public interest.
B. No report, document or other data produced in whole or in part with contract funds shall be copyrighted by the Contractor nor shall any notice of copyright be registered by the Contractor in connection with any report, document or other data developed for the contract.
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C. In no case shall subsections A and B of this section apply to, or prevent the Contractor from asserting or protecting its rights in any report, document or other data, or any invention which existed prior to or was developed or discovered independently from the activities directly related to this Agreement.
4.15 INFRINGEMENTS
The Contractor shall be liable to the Department and hereby agrees to indemnify and hold the Department harmless for any damage or loss or expense sustained by the Department from any infringement by the Contractor of any copyright, trademark or patent rights of design, systems, drawings, graphs, charts, specifications orprinted matter furnished orused by the Contractor in the performance of this Agreement.
4.16 ANTI-TRUST
The Contractor hereby assigns, sells, and transfers to the City all right, title and interest in and to any claims and causes of action arising under the anti-trust laws of the State of New York or of the United States relating to the particular goods or services purchased or procured by the City under this Agreement.
ARTICLES. TERMINATION
5.1 TERMINATION OF AGREEMENT
A. The Department and/or City shall have the right to terminate this Agreement, inwhole or in part:
1. Under any right to terminate as specified in any section of this Agreement.
2. Upon the failure of the Contractor to comply with any of the terms and conditions of this Agreement.
3. Upon the Contractor's becoming insolvent.
4. Upon the commencement under the Bankruptcy Act of any proceeding by or against the Contractor, either voluntarily or involuntarily. -
5. Upon the Commissioner's determination, termination is in the best interest of the City.
B. The Department or City shall give the Contractor written notice of any termination of this Agreement specifying therein the applicable provisions of subsection A of this section and the effective date thereof which shall not be less than ten (10) days from the date the notice is received.
C. The Contractor shall be entitled to apply to the Department to have this Agreement terminated by said Department by reason of any failure in the performance of this Agreement (including any failure by the Contractor to make progress in the prosecution of work hereunder which endangers such performance), if such failure arises out of causes beyond the control and without the fault or negligence of the Contractor. Such causes may include, but are not restricted to: acts of God or of the public enemy; acts of the Government in either its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes; freight embargoes; or any other cause beyond the reasonable control of the Contractor. The determination that such failure arises out of causes beyond the control and without the fault or negligence of the Contractor shall be made by the Department which agrees to exercise reasonable judgment therein. If such a determination is made and the Agreement terminated by the Department pursuant to such application by the Contractor, such termination shall be deemed to be without cause.
D Upon termination of this Agreement the Contractor shall comply with the Department or City close-out procedures, including but not limited to:
1. Accounting for and refund to the Department or City, within thirty (30) days, any unexpended funds which have been paid to the Contractor pursuant to this agreement.
2. Furnishing within thirty (30) days an inventory to the Department or City of all equipment, appurtenances and property purchased through or provided under this Agreement carrying out any Department or City directive concerning the disposition thereof.
3. Not incurring or paying any further obligation pursuant to this Agreement beyond the termination date. Any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of termination and falling due after such date shall be paid by the Department or City in accordance with the terms of this Agreement. In no event shall the word "obligation as used herein,,"
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be construed as including any lease agreement, oral or written, entered into between the Contractor and its landlord.
4. Turn over to the Department or City or its designees all books, records, documents and material specifically relating to this Agreement.
5. Submit, within ninety (90) days, a final statement and report relating to this Agreement. The report shall be made by a certified public accountant or a licensed public accountant.
E. In the event the Department or City shall terminate this Agreement, in whole or in part, as provided in paragraphs 1,2, 3, or 4 of subsection A of this section, the Department or City may procure, upon such terms and in such manner as deemed appropriate, services similar to those so terminated, and the Contractor shall continue the performance of this Agreement to the extent not terminated hereby.
F. Not withstanding any other provisions of this contract, the Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of Contractor's breach of the contract, and the City may withhold payments to the Contractor for the purpose of set-off until such time as the exact amount of damages due to the City from the Contractor is determined.
G. The provisions of the Agreement regarding confidentiality of information shall remain in full force and effect following any termination.
H. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to all other rights and remedies provided by law or under this Agreement.
ARTICLE 6. MISCELLANEOUS
6.1 CONFLICT OF LAWS
All disputes arising out of this Agreement shall be interpreted and decided in accordance with the laws of the State of New York.
6.2 GENERAL RELEASE
The acceptance by the Contractor or its assignees of the final payment under this contract, whether by voucher, judgment of any court of competent jurisdiction or any other administrative means, shall constitute and operate as a general release to the City from any and all claims of and liability to the Contractor arising out of the performance of this contract.
6.3 CLAIMS AND ACTIONS THEREON
A. No action at law or proceeding in equity against the City or Department shall lie or be maintained upon any claim based upon this Agreement or arising out of this Agreement or in any way connected with this Agreement unless the Contractor shall have strictly complied with all requirements relating to the giving of notice and of information with respect to such claims, all as herein provided.
B. No action shall lie or be maintained against the City by Contractor upon any claims based upon this Agreement unless such action shall be commenced within six (6) months after the date of filing in the Office of the Comptroller of the City of the certificate for the final payment hereunder, or within six (6) months of the termination or conclusion of this Agreement, or within six (6) months after the accrual of the Cause of Action, whichever first occurs.
C. In the event any claim is made or any action brought in any way relating to the Agreement herein, the Contractor shall diligently render to the Department and/or the City of New York without additional compensation any and all assistance which the Department and/or the City of New York may require of the Contractor.
D. The Contractor shall report to the Department in writing within three (3) working days of the initiation by or against the Contractor of any legal action or proceeding in connection with or relating to this Agreement.
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6.4 NO CLAIM AGAINST OFFICERS. AGENTS OR EMPLOYEES
No claim whatsoever shall be made by the Contractor against any officer, agent or employee of the City for, or on account of, anything done or omitted in connection with this contract.
6.5 WAIVER
Waiver by the Department of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of the Agreement unless and until the same shall be agreed to in writing by the Department or City as required and attached to the original Agreement.
6.6 NOTICE
The Contractor and the Department hereby designate the business addresses hereinabove specified as the places where all notices, directions or communications from one such party to the other party shall be delivered, or to which they shall be mailed. Actual delivery of any such notice, direction or communication to a party at the aforesaid place, or delivery by certified mail shall be conclusive and deemed to be sufficient service thereof upon such party as of the date such notice, direction or communication is received by the party. Such address may be changed at any time by an instrument in writing executed and acknowledged by the party making such change and delivered to the other party in the manner as specified above. Nothing in this section shall be deemed to serve as a waiver of any requirements for the service of notice or process in the institution of an action or proceeding as provided by law, including the Civil Practice Law and Rules.
6.7 ALL LEGAL PROVISIONS DEEMED INCLUDED
It is the intent and understanding of the parties to this Agreement that each and every provision of law required to be inserted in this Agreement shall be and is inserted herein. Furthermore, it is hereby stipulated that every such provision is to be deemed to be inserted herein, and if, through mistake or otherwise, any such provision is not inserted, or is not inserted in correct form, then this Agreement shall forthwith upon the application of either party be amended by such insertion so as to comply strictly with the law and without prejudice to the rights of either party hereunder.
6.8 SEVERABILITY
If this Agreement contains any unlawful provision not an essential part of the Agreement and which shall not appear to have been a controlling or material inducement to the making thereof, the same shall be deemed of no effect and shall upon notice by either party, be deemed stricken from the Agreement without affecting the binding force of the remainder.
6.9 POLITICAL ACTIVITY
There shall be no partisan political activity or any activity to further the election or defeat of any candidate for public, political or party office as part of or in connection with this Agreement, nor shall any of the funds provided under this Agreement be used for such purposes.
6.10 MODIFICATION
This Agreement may be modified by the parties in writing in a manner not materially affecting the substance hereof. It may not be altered or modified orally.
A. CONTRACT CHANGES
Changes may be made to this contract only as duly authorized by the Agency Chief Contracting Officer of his or her designee. Vendors deviating from the requirements of an original purchase order or contract without a duly authorized change order document, or written contract modification or amendment, do so at their own risk. All such duly authorized changes, modifications and amendments will be reflected in a written change order and become a part of the original contract. Contract changes will be made only for work necessary to complete the work included in the original scope of the contract, and for non-material changes to the scope of the contract. Changes are not permitted for any material alteration in the scope of the work. Changes may include any one or more of the following:
- Specification changes to account for design errors or omissions;
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| | - | changes in contract amount due to authorized additional or omitted work. Any such changes require appropriate price and cost analysis to determine reasonableness. In addition, except for non-construction requirements contracts, all changes that cumulatively exceed the greater often percent of the original contract amount or $100,000 shall be approved by the City Chief Procurement Officer; |
| | - | Extensions of a contract term for good and sufficient cause for a cumulative period not to exceed one year from the date of expiration of this current contract. Requirements contracts shall be subject to this limitation; |
| | - | Changes in delivery location; |
- Changes in shipment method; and
- Any other change not inconsistent with §4-02 of the P.P.B. Rules (ed. 9/00), or any successor Rule.
The Contractor may be entitled to a price adjustment for extra work performed pursuant to a written change order. If any part of the contract work is necessarily delayed by a change order, the Contractor may be entitled to an extension of time for performance. Adjustments to price shall be validated for reasonableness by using appropriate price and cost analysis.
6.11 PARAGRAPH HEADINGS
Paragraph headings are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this contract and in no way affect this contract.
6.12 NO REMOVAL OF RECORDS FROM PREMISES
Where performance of this Agreement involves use by the Contractor of Departmental papers, files, data or records at Departmental facilities or offices, the Contractor shall not remove any such papers, files, data or records, therefrom without the prior approval of the Department's designated official.
6.13 INSPECTION AT SITE
The Department shall have the right to have representatives of the Department or of the City or of the State or Federal governments present at the site of the engagement to observe the work being performed.
6.14 PRICING
A. The Contractor shall when ever required during the contract, including but not limited to the time of bidding, submit cost or pricing data and formally certify that, to the best of its knowledge and belief, the cost or pricing date submitted was accurate, complete, and current as of a specified date. The Contractor shall be required to keep its submission of cost and pricing date current until the contract has been completed.
B. The price of any change order or contract modification subject to the conditions of paragraph A, shall be adjusted to exclude any significant sums by which the City finds that such price was based on cost or price data furnished by the supplier which was inaccurate, incomplete, or not current as of the date agreed upon between the parties.
C. Time for Certification. The Contractor must certify that the cost or pricing data submitted are accurate, complete and current as of a mutually determined date.
D. Refusal to Submit Data. When any contractor refuses to submit the required data to support a price, the Contracting Officer shall not allow the price.
E. Certificate of Current Cost or Pricing Data. Form of Certificate. In those cases when cost or pricing data is required, certification shall be made using a certificate substantially similar to the one contained in Chapter 4 of the PPB rules and such certification shall be retained in the agency contract file.
ARTICLE 7. MERGER
This written Agreement contains all the terms and conditions agreed upon by the parties hereto, and no other agreement, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto, or to vary any of the terms contained herein.
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ARTICLE 8. CONDITIONS PRECEDENT
This contract shall neither be binding nor effective unless:
A. Approved by the Mayor pursuant to the provisions of Executive Order No. 42, dated October 9, 1975, in the event the
Executive Order requires such approval; and
B. Certified by the Mayor (Mayor's Fiscal Committee created pursuant to Executive Order No. 43, dated October 14,1975) that performance thereof will be in accordance with the City's financial plan; and
C. Approved by the New York State Financial Control Board (Board) pursuant to the New York State Financial Emergency Act for the City of New York, as amended, (the "Act"), in the event regulations of the Board pursuant to the Act require such approval.
D. It has been authorized by the Mayor and the Comptroller shall have endorsed his certificate that there remains unexpended and unapplied a balance of the appropriation of funds applicable thereto sufficient to pay the estimated expense of carrying out this Agreement. The requirements of this section of the contract shall be in addition to, and not in lieu of, any approval or authorization otherwise required for this contract to be effective and for the expenditure of City funds.
ARTICLE 9. PPB RULES
This contract is subject to the Rules of the Procurement Policy Board of the City of New York effective August 1, 1990, as amended. In the event of a conflict between said Rules and a provision of this contract, the Rules shall take precedence.
ARTICLE 10. STATE LABOR LAW AND CITY ADMINISTRATIVE CODE
1. As required by New York State Labor Law Section 220-e:
a. That in the hiring of employees for the performance of work under this contract or any subcontract hereunder, neither the Contractor, Subcontractor, nor any person acting on behalf of such Contractor or Subcontractor, shall by reason of race, creed, color, sex or national origin discriminate against any citizen of the State of New York who is qualified and available to perform the work to which the employment relates;
b. That neither the Contractor, subcontractor, nor any person on his behalf shall, in any manner, discriminate against or intimidate any employee hired for the performance of work under this contract on account of race, creed, color, sex or national origin;
c. That there may be deducted from the amount payable to the Contractor by the City under this contract a penalty of five dollars for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of this contract; and
d. That this contract may be canceled or terminated by the City and all monies due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the contract.
e. The aforesaid provisions of this section covering every contract for or on behalf of the State or a municipality for the manufacture, sale or distribution of materials, equipment or supplies shall be limited to operations performed within the territorial limits of the State of New York.
2. As required by New York City Administrative Code Section 6-108:
a. It shall be unlawful for any person engaged in the construction, alteration or repair of buildings or engaged in the construction or repair of streets or highways pursuant to a contract with the City or engaged in the manufacture, sale or distribution of materials, equipment or supplies pursuant to a contract with the City to refuse to employ or to refuse to continue in any employment any person on account of the race, color or creed of such person.
b. It shall be unlawful for any person or any servant, agent or employee of any person, described in subdivision (a) above, to ask, indicate or transmit, orally or in writing, directly or indirectly, the race, color, creed or religious affiliation of any person employed or seeking employment from such person, firm or corporation.
c. Disobedience of the foregoing provisions shall be deemed a violation of a material provision of this contract.
d. Any person, or the employee, manager or owner of or officer of such firm or corporation who shall violate any of the provisions of this section shall, upon conviction thereof, be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days, or both.
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ARTICLE 11. FORUM PROVISION CHOICE OF LAW. CONSENT TO JURISDICTION AND VENUE
This Contract shall be deemed to be executed in the City of New York, State of New York. regardless of the domicile of the Contractor, and shall be governed by and construed in accordance with the laws of the State of New York. The parties agree that any and all claims asserted by or against the City arising under this Contract or related thereto shall be heard and determined either in the courts of the United States located in New York City ("Federal Courts") or in the courts of the State of New York ("New York State Courts") located in the City and County of New York. To effect this Agreement and intent, the Contractor agrees:
a. If the City initiates any action against the Contractor in Federal Court or in New York State Court, service of process may be made on the Contractor either in person, wherever such Contractor may be found, or by registered mail addressed to the Contractor at its address as set forth in this Contract, or to such other address .as the Contractor may provide to the City in writing; and
b. With respect to any action between the City and the Contractor in New York State Court, the Contractor hereby expressly waives and relinquishes any rights it might otherwise have (I) to move to dismiss on grounds of forum non conveniens; (ii) to remove to Federal Court; and (iii) to move for a change of venue to a New York State Court outside New York County.
c. With respect to any action between the City and the Contractor in Federal Court located in New York City, the Contractor expressly waives and relinquishes any right it might otherwise have to move to transfer the action to a United States Court outside the City of New York.
d. If the Contractor commences any action against the City in a court located other than in the City and State of New York, upon request of the City, the Contractor shall either consent to a transfer of the action to a court of competent jurisdiction located in the City and State ofNew York or, if the court where the action is initially brought will not or cannot transfer the action, the Contractor shall consent to dismiss such action without prejudice and may thereafter reinstitute the action in a court of competent jurisdiction in New York City. If any provision(s) of this Article is held unenforceable for any reason, each and all other provision(s) shall nevertheless remain in full force and effect.
ARTICLE 12. EQUAL EMPLOYMENT OPPORTUNITY
This contract is subject to the requirements of Executive Order No. 50 (1980) as revised ("E.O. 50") and the Rules and Regulations promulgated thereunder. No contract will be awarded unless and until these requirements have been complied with in their entirety. By signing this contract, the contractor agrees that it:
1. will not engage in any unlawful discrimination against any employee or applicant for employment because of race, creed, color, national origin, sex age, disability, marital status or sexual orientation with respect to all employment decisions including, but not limited to, recruitment, hiring, upgrading, demotion, downgrading, transfer, training, rates of pay or other forms of compensation, layoff, termination, and all other terms and conditions of employment;
2. the contractor agrees that when it subcontracts it will not engage in any unlawful discrimination in the selection of subcontractors on the basis of the owner's race, color, creed, national origin, sex, age, disability, marital status or sexual orientation;
3. will state in all solicitations or advertisements for employees placed by or on behalf of the contractor that all qualified applicants will receive consideration for employment without unlawful discrimination based on race, creed, color, national origin, sex, age, disability, marital status or sexual orientation, or that it is an equal employment opportunity employer;
4. will send to each labor organization or representative of workers with which it has a collective bargaining agreement or other contract or memorandum of understanding, written notification of its equal employment opportunity commitments under E. 0. 50 and the rules and regulations promulgated thereunder; and
5. will furnish all information and reports including an Employment Report before the award of the contract which are required by E. 0. 50, the rules and regulations promulgated thereunder, and orders of the Director of the Bureau of Labor Services ("Bureau"), and will permit access to its books, records and accounts by the Bureau for the purposes of investigation to ascertain compliance with such rules, regulations, and orders. The contractor understands that in the event of its noncompliance with nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, such noncompliance shall constitute a material breach of the contract and noncompliance with the E. 0. 50 and the rules and regulations promulgated thereunder. After a hearing held pursuant to the rules of the Bureau, the Director may direct the imposition by the contracting agency held of any or all of the following sanctions:
(i) disapproval of the contractor;
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(ii) suspension or termination of the contract;
(iii) declaring the contractor in default; or '
(iv) in lieu of any of the foregoing sanctions, the Director may impose an employment program. The Director of the Bureau may recommend to the contracting agency head that a Board of Responsibility be convened for purposes of declaring a contractor who has repeatedly failed to comply with E.O. 50 and the rule and regulations promulgated thereunder to be nonresponsible. The contractor agrees to include the provisions of the foregoing paragraphs in every subcontract or purchase order in excess of $50,000 to which it becomes a party unless exempted by E.O. 50 and the rules and regulations promulgated thereunder, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Director of the Bureau of Labor Services as a means of enforcing such provisions, including sanctions for noncompliance. The contractor further agrees that it will refrain from entering into any contract or contract modification subject to E.O. 50 and the rules and regulations promulgated thereunder with a subcontractor who is not in compliance with the requirements of E.O. 50 and the rules and regulations promulgated thereunder.
ARTICLE 13. NO DAMAGE FOR DELAY
The Contractor agrees to make no claim for damages for delay in the performance of this Contract occasioned by any act or omission to act of the City or any of its representatives, and agrees that any such claim shall be fully compensated for by an extension of time to complete performance of the work as provided herein.
ARTICLE 14. CONSULTANT REPORT INFORMATION
A copy of each consultant report submitted by a consultant to any City official or to any officer, employee, agent or representative of a City department, agency, commission or body or to any corporation, association or entity whose expenses are paid in whole or in part from the City treasury shall be furnished to the Commissioner of the department to which such report was submitted or, if not a City department, then to the chief controlling officer or officers of such other office or entity. A copy of such report shall also be furnished to the Director of the Mayor's Office of Construction for matters related to construction or to the Director of the Mayor's Office of Operations for all other matters.
ARTICLE 15. RESOLUTION OF DISPUTES
15.1 All disputes between the City and the Contractor of the kind delineated in this section that arise under, or by virtue of this Contract shall be finally resolved in accordance with the provisions of this section and Section 4-09 of the Rules of the Procurement Policy Board ("PPB Rules"), and any successor Rule. The procedure for resolving all disputes of the kind delineated herein shall be the exclusive means of resolving any such disputes.
a. This section shall not apply to disputes concerning matters dealt with in other sections of the PPB Rules or to disputes involving patents, copyrights, trademarks, or trade secrets (as interpreted by the courts of New York State) relating to proprietary rights in computer software.
b. For construction and construction-related services this section shall apply only to disputes about the scope of work delineated by the Contract, the interpretation of Contract Documents, the amount to be paid for extra work or disputed work performed in connection with the Contract, the conformity of the Contractor's work to the Contract, and the acceptability and quality of the Contractor's work; such disputes arise when the Engineer makes a determination with which the Contractor disagrees.
15.2 All determinations required by this section shall be made in writing, clearly stated, with a reasoned explanation for the determination based on the information and evidence presented to the party making the determination. Failure to make such determination within the time period required by this section shall be deemed a non-determination without prejudice that will allow appeal to the next level.
15.3 During such time as any dispute is being presented, heard, and considered pursuant to this section, the contract terms shall remain in full force and effect and the Contractor shall continue to perform work in accordance with the Contract and as directed by the Agency Chief Contracting Officer or Engineer. Failure of the Contractor to continue the work as directed shall constitute a waiver by the Contractor of any and all claims being presented pursuant to this section and a material breach of Contract.
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15.4 Presentation of Dispute to Agency Head.
(A) Notice of Dispute and Agency Response. The Contractor shall present its dispute in writing ("Notice of Dispute") to the Agency Head within the time specified herein or, if no time is specified, within thirty (30) days of receiving notice of the determination or action that is the subject of the dispute. This notice requirement shall not be read to replace any other notice requirements contained in the Contract. The Notice of Dispute shall include all the facts, evidence, documents, or other basis upon which the Contractor relies in support of its position, as well as a detailed computation demonstrating how any amount of money claimed by the Contractor in the dispute was arrived at. Within thirty (30) days after receipt of the detailed written submission, the Agency Chief Contracting Officer or, in the case of construction or construction-related services, the Engineer shall submit to the Agency Head all materials he or she deems pertinent to the dispute. Following initial submissions to the Agency Head, either party may demand of the other the production of any document or other material the demanding party believes may be relevant to the dispute. The requested party shall produce all relevant materials that are not otherwise protected by a legal privilege recognized by the courts of New York State. Any question of relevancy shall be determined by the Agency Head whose decision shall be final. Wilful failure of the Contractor to produce any requested material whose relevancy the Contractor has not disputed, or whose relevancy has been affirmatively determined, shall constitute a waiver by the Contractor of its claim.
(B) Agency Head Inquiry. The Agency Head shall examine the material and may, in his or her discretion, convene an informal conference with the Contractor and the Agency Chief Contracting Officer and, in the case of construction or construction-related services, the Engineer to resolve the issue by mutual consent prior to reaching a determination. The Agency Head may seek such technical or other expertise as he or she shall deem appropriate, including the use of neutral mediators, and require any such additional material from either or both parties as he or she deems fit. The Agency Head's ability to render, and the effect of, a decision hereunder shall not be impaired by any negotiations in connection with the dispute presented, whether or not the Agency Head participated therein. The Agency Head may or, at the request of any party to the dispute, shall compel the participation of any other contractor with a contract related to the work of this Contract, and that contractor shall be bound by the decision of the Agency Head. Any contractor thus brought into the dispute resolution proceeding shall have the same rights to make presentations and to seek review as the Contractor initiating the dispute.
(C) Agency Head Determination. Within thirty (30) days after the receipt of all materials and information, or such longer time as may be agreed to by the parties, the Agency Head shall make his or her determination and shall deliver or send a copy of such determination to the Contractor and Agency Chief Contracting Officer and, in the case of construction or construction-related services, the Engineer, together with a statement concerning how the decision may be appealed.
(D) Finality of Agency Head Decision. The Agency Head's decision shall be final and binding on all parties, unless presented to the Contract Dispute Resolution Board pursuant to this section. The City may not take a petition to the Contract Dispute Resolution Board. However, should the Contractor take such a petition, the City may seek, and the Board may render, a determination less favorable to the Contractor and more favorable to the City than the decision of the Agency Head.
15.5 Presentation of Dispute to the Comptroller. Before any dispute may be brought by the Contractor to the Contract Dispute Resolution Board, the Contractor must first present its claim to the comptroller for his or her review, investigation, and possible adjustment.
(A) Time, Form, and Content of Notice. Within thirty (30) days of its receipt of a decision by the Agency Head, the Contractor shall submit to the Comptroller and to the Agency Head a Notice of Claim regarding its dispute with the Agency. The Notice of Claim shall consist of(i) a brief written statement of the substance of the dispute, the amount of money, if any, claimed and the reason(s) the Contractor contends the dispute was wrongly decided by the Agency Head; (ii) a copy of the written decision of the Agency Head, and (iii) a copy of all materials submitted by the Contractor to the Agency, including the Notice of Dispute. The Contractor may not present to the Comptroller any material not presented to the Agency Head, except at-the request of the Comptroller.
(B) Agency Response. Within thirty (30) days of receipt of the Notice of Claim, the Agency shall make available to the Comptroller a copy of all material submitted by the Agency to the Agency Head in connection with the dispute. The Agency may not present to the Comptroller any material not presented to the Agency Head except at the request of the Comptroller.
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(C) Comptroller Investigation. The Comptroller may investigate the claim in dispute and, in the course of such investigation, may exercise all powers provided in sections 7-201 and 7-203 of the New York City Administrative Code. In addition, the Comptroller may demand of either party, and such party shall provide, whatever additional material the Comptroller deems pertinent to the claim, including original business records of the Contractor. Wilful failure of the Contractor to produce within fifteen (15) days any material requested by the Comptroller shall constitute a waiver by the Contractor of its claim. The Comptroller may also schedule an informal conference to be attended by the Contractor, Agency representatives, and any other personnel desired by the Comptroller.
(D) Opportunity of Comptroller to Compromise or Adjust Claim. The Comptroller shall have forty-five (45) days from his or her receipt of all materials referred to in 5. (C) to investigate the disputed claim. The period for investigation and compromise may be further extended by agreement between the Contractor and. the Comptroller, to a maximum of ninety (90) days from the Comptroller's receipt of all the materials. The Contractor may not present its petition to the Contract Dispute Resolution Board until the period for investigation and compromise delineated in this paragraph has expired. In compromising or adjusting any claim hereunder, the Comptroller may not revise or disregard the terms of the Contract between the parties.
15.6 Contract Dispute Resolution Board. There shall be a Contract Dispute Resolution Board composed of:
A. the chief administrative law judge of the Office of Administrative Trials and Hearings ("OATH") or his/her designated OATH administrative law judge, who shall act as chairperson, and may adopt operational procedures and issue such orders consistent with this section as may be necessary in the execution of the Contract Dispute Resolution Board's functions, including, but not limited to, granting extensions of time to present or respond to submissions;
B. the City Chief Procurement Officer or a designee; or in the case of disputes involving construction, the Director of the Office of Construction or his/her designee; any designee shall have the requisite background to consider and resolve the merits of the dispute and shall not have participated personally and substantially in the particular matter that is the subject of the dispute or report to anyone who so participated, and
C. a neutral person with appropriate expertise. This person shall be selected by the presiding administrative lawjudge from a prequalified panel of individuals, established and administered by OATH, with appropriate background to act as decision-makers in a dispute. Such individuals may not have a contract or dispute with the City or be an officer or employee of any company or organization that does, or regularly represents persons, companies, or organizations having disputes with the City.
15.7 Petition to Contract Dispute Resolution Board. In the event the claim has not been settled or adjusted by the Comptroller within the period provided in this section, the Contractor, within thirty (30) days thereafter, may petition the Contract Dispute Resolution Board to review the Agency Head determination.
(A) Form and Content of Petition by Contractor. The Contractor shall present its dispute to the Contract Dispute Resolution Board in the form of a Petition, which shall include (i) a brief written statement of the substance of the dispute, the amount of money, if any, claimed and the reason(s) the Contractor contends that the dispute was wrongly decided by the Agency Head; (ii) a copy of the written decision of the Agency Head; (iii) copies of all materials submitted by the Contractor to the Agency; (iv) a copy of the written decision of the Comptroller, if any, and (v) copies of all correspondence with, or written material submitted by the Contractor to, the Comptroller's Office. The Contractor shall concurrently submit four complete sets of the Petition: one to the Corporation Counsel (Attn: Commercial and Real Estate Litigation Division), and three to the Contract Dispute Resolution Board at oath's offices with proof of service on the Corporation Counsel. In addition, the supplier shall submit a copy of the statement of the substance of the dispute, cited in (i) above to both the Agency Head and the Comptroller.
(B) Agency Response. Within thirty (30) days of its receipt of the Petition by the Corporation Counsel, the Agency shall respond to the brief written statement of the Contractor and make available to the Board at oath's offices and one to the Contractor, all material it submitted to the Agency Head and Comptroller. Extensions of time for submittal of the agency response shall be given as necessary upon a showing of good cause or, upon the consent of the parties, for an initial period of up to thirty (30) days.
(C) Further Proceedings. The Board shall permit the Contractor to present its case by
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the submission of memoranda, briefs, and oral argument. The Board shall also permit the Agency to present its case in response to the Contractor by the submission of memoranda, briefs, and oral argument. If requested by the Corporation Counsel, the Comptroller shall provide reasonable assistance in the preparation of the Agency's case. Neither the Contractor nor the Agency may support its case with any documentation or other material that was not considered by the Comptroller, unless requested by the Board. The Board, at its discretion, may seek such technical or other expertise as it shall deem appropriate and may seek, on its own or upon application of a party, any such additional material from any party as it deems fit. The Board, in its discretion, may combine more than one dispute between the parties of concurrent resolution.
(D) Contract Dispute Resolution Board Determination. Within forty-five (45) days of the conclusion of all written submissions and oral arguments, the Board shall render a written decision resolving the dispute. In an unusually complex case, the Board may render its decision in a longer period of time, not to exceed ninety (90) days, and shall so advise the parties at the commencement of this period. The Board's decision must be consistent with the terms of the Contract. In reaching its decision, the Board shall accord no precedential significance to prior decisions of the Board involving other non-related contracts.
(E) Notification of Contract Dispute Resolution Board Decision. The Board shall send a copy of its decision to the Contractor, the Agency Chief Contracting Officer, the Corporation Counsel, the Comptroller, and in the case of construction or construction-related services, the Engineer. A decision in favor of the Contractor shall be subject to the prompt payment provisions of the PPB Rules. The Required Payment Day shall be thirty (30) days after the date the parties are formally notified of the Board's decision.
(F) Finality of Contract Dispute Resolution Board Decision. The Board's decision shall be final and binding on all parties. Any party may seek review of the Board's decision solely in the form of a challenge, made within four (4) months of the date of the Board's decision, in a court of competent jurisdiction of the State ofNew York, County of New York, pursuant to Article 78 of the Civil Practice Law and Rules. Such review by the court shall be limited to the question of whether or not the Board's decision was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion. No evidence or information shall be introduced or relied upon in such proceeding that was not presented to the Board in accordance with Section 4-09 of the PPB Rules.
15.8 Any termination, cancellation, or alleged breach of the Contract prior to or during the pendency of any proceedings pursuant to this section shall not affect or impair the ability of the Agency Head or Contract Dispute Resolution Board to make a binding and final decision pursuant to this section.
ARTICLE 16. PROMPT PAYMENT
The Prompt Payment provisions set forth in Chapter 4, Section 4-06 of the Procurement Policy Board Rules in effect at the time for this solicitation will be applicable to payments made under this contract. The provisions require the payment to the contractors of interest on payments made after the required payment date except as set forth in Section 4-06 of the Rules;
The contractor must submit a proper invoice to receive payment, except where the contract provides that the contractor will be paid at predetermined intervals without having to submit an invoice for each scheduled payment.
Determinations of interest due will be made in accordance with the provisions of the Procurement Policy Board Rules and General Municipal Law Section 3-a.
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APPENDIX R2
GENERAL PROVISIONS GOVERNING CONTRACTS FOR CONSULTANTS, PROFESSIONAL AND TECHNICAL SERVICES (For-Profit Entities)
| CONTENTS | PAGE |
| ARTICLE 1. | DEFINITIONS | 1 |
| ARTICLE 2. | REPRESENTATIONS AND WARRANTIES | 1 |
| ARTICLE 3. | AUDIT BY THE DEPARTMENT AND CITY | 2 |
ARTICLE 4. | COVENANTS OF THE CONTRACTOR | 3 |
| ARTICLE 5. | TERMINATION | 10 |
| ARTICLE 6 | MISCELLANEOUS | 12 |
| ARTICLE 7. | MERGER | 15 |
| ARTICLE 8. | CONDITIONS PRECEDENT | 15 |
| ARTICLE 9. | PPB RULES | 15 |
| ARTICLE 10. | STATE LABOR LAW AND CITY ADMINISTRATIVE CODE | 15 |
| ARTICLE 11. | FORUM PROVISION | 16 |
| ARTICLE 12 | EQUAL EMPLOYMENT OPPORTUNITY | 17 |
| ARTICLE 13 | NO DAMAGE FOR DELAY | 18 |
| ARTICLE 14 | CONSULTANT REPORT INFORMATION | 18 |
| ARTICLE 15. | RESOLUTION OF DISPUTES | 18 |
| ARTICLE 16. | PROMPT PAYMENT | 22 |
| ARTICLE 17. | MACBRIDE PRINCIPLES ADMINISTRATIVE CODE | 22 |
ARTICLE 1. DEFINITIONS
As used throughout this Agreement, the following a-ms shall have the meaning set forth below:
a. "City" shall mean the City of New York, its
departments and political subdivisions.
b. "Comptroller" shall mean the Comptroller
of the City of New York.
c. "Department" or "Agency" shall mean the DEPARTMENT OF HEALTH AND MENTAL HYGIENE
d. "Commissioner" or "Administrator shall mean the COMMISSIONER OF HEALTH AND MENTAL HYGIENE or his duly authorized representative. The term "duly authorized representative" shall include any person or persons acting within the limits of his or her authority.
e. "Law" or "Laws" shall include but not be limited to the New York City Charter, the New York City Administrative Code, a local law of the City of New York, and any ordinance, rule or regulation having the force of law.
f. "Contractor"or"ConsuItant" shall mean WellCare of New York, Inc.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
2.1 PROCUREMENT OF AGREEMENT
A. The Contractor represents and warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage fee, contingent fee or any other compensation. The Contractor further represents and warrants that no payment, gift or thing of value has been made, given or promised to obtain this or any other agreement between the parties. The Contractor makes such representations and warranties to induce the City to enter into this Agreement and the City relies upon such representations and warranties in the execution hereof.
B. For a breach or violation of such representations or warranties, the Administrator shall have the right to annul this Agreement without liability, entitling the City to recover all monies paid hereunder and the Contractor shall not make claim for, or be entitled to recover, any sum or sums due under this Agreement. This remedy, if effected, shall not constitute the sole remedy afforded the City for the falsity or breach, nor shall it constitute a waiver of the City's right to claim damages or refuse payment or to take any other action provided for by law or pursuant to this Agreement.
2.2 CONFLICT OF INTEREST
The Contractor represents and warrants that neither it nor any of its directors, officers, members, partners or employees, has any interest nor shall they acquire any interest, directly or indirectly, which would or may conflict in any manner or degree with the performance or rendering of the services herein provided. The Contractor further represents and warrants that in the performance of this Agreement no person having such interest or possible interest shall be employed by it. No elected official or other officer or employee of the City or Department, nor any person whose salary is payable, in whole or in part, from the City Treasury, shall participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested; nor shall any such person have any interest, direct or indirect, in this Agreement or in the proceeds thereof.
2.3 FAIR PRACTICES
The Contractor and each person signing on behalf of any contractor represents and warrants and certifies, under penalty of perjury, that to the best of its knowledge and belief:
A. The prices in this contract have been arrived at independently without collusion, consultation, communication, or agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or with any competitor;
B. Unless otherwise required by law, the prices which have been quoted in this contract and on the proposal submitted by the Contractor have not been knowingly disclosed by the Contractor prior to the proposal opening, directly or indirectly, to any other bidder or to any competitor; and
C. No attempt has been made or will be made by the Contractor to induce any other person, partnership or corporation to submit or not to submit a proposal for the purpose of restricting competition.
The fact that the Contractor (a) has published price lists, rates, or tariffs covering items being procured, (b) has informed prospective customers of proposed or pending publication of new or revised price lists for such items, or (c) has sold the same items to other customers at the same prices being bid, does not constitute, without more, a disclosure within the meaning of the above.
ARTICLE 3. AUDIT BY THE DEPARTMENT AND CITY
3.1 All vouchers or invoices presented for payment to be made hereunder, and the books, records and accounts upon which said vouchers or invoices are based are subject to audit by the Department and by the Comptroller of the City of New York pursuant to the powers and responsibilities as conferred upon said Department and said Comptroller by the New York City Charter and Administrative Code of the City of New York, as well as all orders and regulations promulgated pursuant thereto.
3.2 The Contractor shall submit any and all documentation and justification in support of expenditures or fees under this Agreement as may be required by said Department and said Comptroller so that they may evaluate the reasonableness of the charges and shall make its records available to the Department and to the Comptroller as they consider necessary.
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3.3 All books, vouchers, records, reports, canceled checks and any and all similar material may be subject to periodic inspection, review and audit by the State of New York, Federal Government and other persons duly authorized by the City. Such audit may include examination and review of the source and application of all funds whether from the City, any State, the Federal Government, private sources or otherwise.
3.4 The contractor shall not be entitled to final payment under the Agreement until all requirements have been satisfactorily met.
ARTICLE 4. COVENANTS OF THE CONTRACTOR
4.1 EMPLOYEES
A. All experts or consultants or employees of the Contractor who are employed by the Contractor to perform work under this contract are neither employees of the City nor under contract to the City and the Contractor alone is responsible for their work, direction, compensation and personal conduct while engaged under this Agreement. Nothing in this contract shall impose any liability or duty on the City for the acts, omissions, liabilities or obligations of the Contractor any person, firm company, agency, association, expert, consultant, independent contractor, specialist, trainee, employee, servant, or agent, or for taxes of any nature including but not limited to unemployment insurance, workmen's compensation, disability benefits and social security, or, except as specifically stated in this contract, to any person, firm or corporation.
B. The Contractor shall be solely responsible for all physical injuries or death to its agents, servants, or employees or to any other person or damage to any property sustained during its operations and work on the project under this agreement resulting from any act of omission or commissioner error in judgment of any of its officers, trustees, Employees, agents, servants, or independent contractors and shall hold harmless, and indemnify the city from liability upon any and all claims for damages on account of such injuries or death to any such person or damages to property on account for any neglect, fault or default of the contractor, its officers trustees, employees, agents, servants, or independent contractors. The Contractor shall be solely responsible for the safety and protection of all of its employees whether due to the negligence, fault or default of the contractor or not.
C. Workmen’s Compensation and Disability Benefits:
If this agreement be of such a character that the employees engages thereon are required to be insured by the provision of Chapter 615 of the Laws of 1992, known as the “Workmen’s Compensation Law” and acts amendatory thereto, the agreement shall be void and of no effect unless the Contractor shall secure compensation for the benefit of, and keep such insured during the life of this agreement such employees compliance with the provisions of said law, inclusive of Disabilities Benefits; and shall furnish the Department with two (2) certificates of these insurance coverages.
| D. | Unemployment Insurance: |
Unemployment Insurance coverage shall be obtained and provided by the contractor for its employees
E. Minimum Wage
Except for those employees whose minimum wage is required to be fixed pursuant to Section 220 of the Labor Law of the State of New York, all persons employees by the contractor in the performance of this agreement shall be paid, without subsequent deduction or rebate, unless expressly authorized by the law, not less than the minimum wage as prescribed by law. Any breach or violation of the foregoing shall be deemed a breach or violation of a material provision of this Agreement.
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4.2 INDEPENDENT CONTRACTOR STATUS The Contractor and the Department agree that the Contractor is an independent contractor, and not an employee of the Department or the City of New York, and that in accordance with such status as independent contractor, the Contractor covenants and agrees that neither it nor its employees or agents will hold themselves out as, nor claim to be, officers or employees of the City of New York, or of any department, agency or unit thereof, by reason hereof, and that they will not, by reason hereof, make any claim, demand or application to or for any right or privilege applicable to an officer or employee of the City of New York, including, but not limited to, Workmen's Compensation coverage. Unemployment Insurance Benefits, Social Security coverage or employee retirement membership or credit.
4.3 INSURANCE
A. Insurance Requirements for Contractors
Contractors shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees or subcontractors. All required insurance policies shall be maintained with companies that may lawfully issue the required policy and have an A.M. Best rating of at least A-7 or a Standard and Poor's rating of at least AA, unless prior written approval is obtained from the Mayor's Office of Operations. The cost of such insurance shall be included in the Contractor's bid.
a. Minimum Scope of Insurance
Coverage shall be at least as broad as:
| 1. | Insurance Services Office form number GL 0002 (1/73) covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Commercial General Liability; Insurance General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001).(ED 11/85). |
| 2. | Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsements CA 2232 and CA 0112. |
| 3. | Workers' Compensation insurance as required by Labor Code of the State of New York and Employers Liability insurance. |
| b. | Minimum Limits of Insurance Contractor shall maintain limits no less than: |
1. Comprehensive General Liability:
$1,000,000.00 combined single limit per accident for bodily injury and property damage.
2. Professional liability: 1 Million Dollars per occurrence; Three Million Dollars Aggregate.
3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of New York Employers Liability limits of $1,000,000.00 per accident. Pursuant to Section 57 of the NYS Workers' Compensation Law, the vendor has submitted proof of workers' compensation and disability benefits coverage to the agency.
c. Deductibles and Self-Insured Retentions. Any deductibles and self-insured retentions must be declared to and approved by the Agency. At the option of the Agency, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Agency, its officers, officials and employees; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
1. General Liability and Automobile Liability Coverages
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a. The City, its officers, officials and employees are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, leases or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials and employees.
b. The Contractor's insurance coverage shall be primary insurance as respect the City, its officers, officials, and employees. Any other insurance or self-insurance maintained by the Agency, its officers, officials and employees shall be excess of and not contribute with the Contractor's insurance.
| c. | Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Agency, .its officers, officials, and employees. |
| d. | The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurers liability. |
| 2. | Workers Compensation and Employers Liability Coverage |
The insurer shall agree to waive all rights of subrogation against the Agency, its officers, officials, and employees for losses /rising from work performed by the Contractor for Agency.
3. All Coverages
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after sixty (60) days prior written notice by certified mail, return receipt requested, has been given to the City.
| d. | Acceptability of Insurers |
Insurance is to be placed with insurers with a Best's rating of no less than an A.M. Best rating of at least A-7 or a Standard and Poor's rating of at least AA, unless prior written approval is obtained from the Mayor's Office of Operations.
| e. | Verification of Coverage Contractor shall furnish the City with Certificates of Insurance effecting coverage required by this clause. The Certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates are to be on forms provided by the Agency and are to be received and approved by the Agency before work commences. The Agency reserves the right to obtain complete, certified copies of all required insurance policies, at any time. |
Contractor shall include all subcontractors as insured under its policies or shall furnish separate Certificates for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
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B. In the event that any claim is made or any action is brought against the City arising out of negligent or careless acts of an employee of the Contractor, either within or without the scope of his employment, or arising out of Contractor's negligent performance of this Agreement, then the City shall have the right to withhold further payments hereunder for the purpose of set-off in sufficient sums to cover the said claim or action. The rights and remedies of the City provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or this Agreement.
4.4 PROTECTION OF CITY PROPERTY
A. The Contractor assumes the risk of, and shall be responsible for, any loss or damage to City property, including property and equipment leased by the City, used in the performance of this Agreement; and caused, either directly or indirectly by the acts, conduct, omissions or lack of good faith of the Contractor, its officers, managerial personnel and employees, or any person, firm, company, agent or others engaged by the Contractor as expert, consultant, specialist or subcontractor hereunder.
B. In the event that any such City property is lost or damaged, except for normal wear and tear, then the City shall have the right to withhold further payments hereunder for the purpose of set-off, in sufficient sums to cover such loss or damage.
C. The Contractor agrees to indemnify the City and hold it harmless from any and all liability or claim for damages due to any such loss or damage to any such City property described in subsection A above.
D. The rights and remedies of the City provided herein shall not be exclusive and are in addition to any other rights and remedies provided by law or by this Agreement.
4.5 CONFIDENTIALITY
All of the reports, information or data, furnished to or prepared, assembled or used by the Contractor under this Agreement are to be held confidential, and prior to publication, the Contractor agrees that the same shall not be made available to any individual or organization without the prior written approval of the Department.
4.6 BOOKS AND RECORDS
The Contractor agrees to maintain separate and accurate books, records, documents and other evidence and accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement.
4.7 RETENTION OF RECORDS
The Contractor agrees to retain all books, records, and other documents relevant to this Agreement for six years after the final payment or termination of this Agreement, whichever is later. City, State and Federal auditors and any other persons duly authorized by the Department shall have full access to and the right to examine any of said materials during said period.
4.8 COMPLIANCE WITH LAW
Contractor shall render all services under this Agreement in accordance with the applicable provisions of federal, state and local laws, rules and regulations as are in effect at the time such services are rendered.
4.9 INVESTIGATION CLAUSE
1. The parties to this agreement agree to cooperate fully and faithfully with any investigation, audit or ' inquiry conducted by a State of New York (State) or City of New York (City) governmental agency or authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by the Inspector General of a governmental agency that is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or inquiry.
2.
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(a) If any person who has been advised that his or her statement, and any information from such statement, will not be used against him or her in any subsequent criminal proceeding refuses to testify before a grand jury or other governmental agency or authority empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath concerning the award of or performance under any transaction, agreement, lease, permit, contract, or license entered into with the City, the State, or any political subdivision or public authority thereof, or the Port Authority of New York and New Jersey, or any local development corporation within the City, or any public benefit corporation organized under the laws of the State of New York, or;
2.
(b) If any person refuses to testify for-a reason other than the assertion of his or her privilege against self-incrimination in an investigation, audit or inquiry conducted by a City or State governmental agency or authority empowered directly or by designation to compel the attendance of witnesses and to take testimony under oath, or by the Inspector General of the governmental agency that is a party in interest in, and is seeking testimony concerning the award of, or performance under, any transaction, agreement, lease, permit, contract, or license entered into with the City, the State, or any political subdivision thereof or any local development corporation within the City, then;
3.
(a) The commissioner or agency head whose agency is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license shall convene a hearing, upon not less than five (5) days written notice to the parties involved, to determine if any penalties should attach for the failure of a person to testify.
3.
(b) If any non-governmental party to the hearing requests an adjournment, the commissioner or agency head who convened the hearing may, upon granting the adjournment, suspend any contract, lease, permit, or license pending the final determination pursuant to paragraph 5 below without the City incurring any penalty or damages for delay or otherwise.
4. The penalties which may attach after a final determination by the commissioner or agency head may include but shall not exceed:
(a) The disqualification for a period not to exceed five (5) years from the date of an adverse determination for any person, or any entity of which such person was a member at the time the testimony was sought, from submitting bids for, or transacting business with, or entering into or obtaining any contract, lease, permit or license with or from the City; and/or
(b) The cancellation or termination of any and all such existing City contracts, leases, permits or licenses that the refusal to testify concerns and that have not been assigned as permitted under this agreement, nor the proceeds of which pledged, to an unaffiliated and unrelated institutional lender for fair value prior to the issuance of the notice scheduling the hearing, without the City incurring any penalty or damages on account of such cancellation or termination; monies lawfully due for goods delivered, work done, rentals, ' or fees accrued prior to the cancellation or termination shall be paid by the City.
5. The commissioner or agency head shall consider and address in reaching his or her determination and in assessing an appropriate penalty the factors in paragraphs (a) and (b) below. He or she may also consider, if relevant and appropriate, the criteria established in paragraphs (c) and (d) below in addition to any other information which may be relevant and appropriate:
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(a) The party's good faith endeavors or lack thereof to cooperate fully and faithfully with any governmental investigation or audit, including but not limited to the discipline, discharge, or disassociation of any person failing to testify, the production of accurate and complete books and records, and the forthcoming testimony of all other members, agents, assignees or fiduciaries whose testimony is sought.
(b) The relationship of the person who refused to testify to any entity that is a party to the hearing, including, but not limited to, whether the person whose testimony is sought has an ownership interest in the entity and/or the degree of authority and responsibility the person has within the entity.
(c) The nexus of the testimony sought to the subject entity and its contracts, leases, permits or licenses with the City.
(d) The effect a penalty may have on an unaffiliated and unrelated party or entity that has a significant interest in an entity subject to penalties under 4 above, provided that the party or entity has given actual notice to the commissioner or agency head upon the acquisition of the interest, or at the hearing called for in 3 (a) above gives notice and proves that such interest was previously acquired. Under either circumstance the party or entity must present evidence at the hearing demonstrating the potential adverse impact a penalty will have on such person or entity.
6.
(a) The term "license" or "permit" as used herein shall be defined as a license, permit, franchise or concession not granted as a matter of right.
(b) The term "person" as used herein shall be defined as any natural person doing business alone or associated with another person or entity as a partner, director, officer, principal or employee.
(c) The term "entity" as used herein shall be defined as any firm, partnership, corporation, association, or person that receives monies, benefits, licenses, leases, or permits from or through the City or otherwise transacts business with the City.
(d) The term "member" as used herein shall be defined as any person associated with another person or entity as a partner, director, officer, principal or employee,
7. In addition to and notwithstanding any other provision of this agreement the Commissioner or agency head may in his or her sole discretion terminate this agreement upon not less than three (3) days written notice in the event contractor fails to promptly report in writing to the Commissioner of Investigation of the City of New York any solicitation of money, goods, requests for future employment or other benefit or thing of value, by or on behalf of any employee of the City or other person, firm, corporation or entity for any purpose which may be related to the procurement or obtaining of this agreement by the contractor, or affecting the performance of this contract.
4.10 ASSIGNMENT
A. The Contractor shall not assign, transfer, convey or otherwise dispose of this Agreement or of Contractor's rights, obligations, duties, in whole or in part, or of its right to execute it, or its right, title or interest in it or any part thereof, or assign, by power of attorney or otherwise, any of the notices due or to become due under this contract, unless the prior written consent of the Administrator shall be obtained. Any such assignment, transfer, conveyance or other disposition ' without such consent shall be void.
B. Failure of the Contractor to obtain any required consent to any assignment, shall be cause for termination for cause, at the option of the Administrator; and if so terminated, the City shall thereupon be relieved and discharged from any further liability and obligation to the Contractor, its assignees or transferees, and all monies that may become due under the contract shall be forfeited to the City
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except so much thereof as may be necessary to pay the Contractor's employees.
C. The provisions of this clause shall not hinder, prevent, or affect an assignment by the Contractor for the benefit of its creditors made pursuant to the laws of the State of New York.
D. This Agreement may be assigned by the City to any corporation, agency or instrumentality having authority to accept such assignment.
4.11 SUBCONTRACTING
A. The Contractor agrees not to enter into any subcontracts for the performance of its obligations, in whole or in part, under this Agreement without the prior written approval of the Department. Two copies of each such proposed subcontract shall be submitted to the Department with the Contractor's written request for approval. All such subcontracts shall contain provisions specifying:
1. that the work performed by the subcontractor must be in accordance with the terms of the Agreement between the Department and the Contractor,
2. that nothing contained in such agreement shall impair the rights of the Department,
3. that nothing contained herein, or under the Agreement between the Department and the Contractor, shall create any contractual relation between the subcontractor and the Department, and
4. that the subcontractor specifically agrees to be bound by the confidentiality provision set forth in this Agreement between the Department and the Contractor.
B. The Contractor agrees that it is fully responsible to the Department for the acts and omissions of the subcontractors and of persons either directly or indirectly employed by them as it is for the acts and omissions of persons directly employed by it.
C. The aforesaid approval is required in all cases other than individual employer-employee contracts.
D. The Contractor shall not in any way be relieved of any responsibility under this Contract by any subcontract.
4.12 PUBLICITY
A. The prior written approval of the Department is required before the Contractor or any of its employees, servants, agents, or independent contractors may, at any time, either during or after completion or termination of this Agreement, make any statement to the press or issue any material for publication through any media of communication bearing on the work performed or data collected under this Agreement.
B. If the Contractor publishes a work dealing with any aspect of performance under this Agreement, or of the results and accomplishments attained in such performance, the Department shall have a royalty free, non-exclusive and irrevocable license to reproduce, publish or otherwise use and to authorize others to use the publication
4.13. PARTICIPATION IN AN INTERNATIONAL BOYCOTT
A. The Contractor agrees that neither the Contractor nor any substantially-owned affiliated company is participating or shall participate in an international boycott in violation of the provisions of the Export Administration Act of 1979, as amended, or the regulations of the United States Department of Commerce promulgated thereunder.
B. Upon the final determination by the Commerce Department or any other agency of the United States as to, or conviction of the Contractor or a
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substantially-owned affiliated company thereof, participation in an international boycott in violation of the provisions of the Export Administration Act of 1979, as amended, or the regulations promulgated thereunder, the Comptroller may, at his option, render forfeit and void this contract.
C. The Contractor shall comply in all respects, with the provisions of Section 6-114 of the Administrative Code of the City of New York and the rules and regulations issued by the Comptroller thereunder.
4.14 INVENTIONS. PATENTS AND COPYRIGHTS
A. Any discovery or invention arising out of or developed in the course of performance of this Agreement shall be promptly and fully reported to the Department, and if this work is supported by a federal grant of funds, shall be promptly and fully reported to the Federal Government for determination as to whether patent protection on such invention shall be sought and how the rights in the invention or discovery, including rights under any patent issued thereon, shall be disposed of and administered in order to protect the public interest.
B. No report, document or other data produced in whole or in part with contract funds shall be copyrighted by the Contractor nor shall any notice of copyright be registered by the Contractor in connection with any report, document or other data developed for the contract.
C. In no case shall subsections A and B of this section apply to, or prevent the Contractor from asserting or protecting its rights in any report, document or other data, or any invention which existed prior to or was developed or discovered independently from the activities directly related to this Agreement.
4.15 INFRIGEMENTS
The Contractor shall be liable to the Department and hereby agrees to indemnify and hold the Department harmless for any damage or loss or expense sustained by the Department from any infringement by the Contractor of any copyright, trademark or patent rights of design, systems, drawings, graphs, charts, specifications or printed matter furnished or used by the Contractor in the performance of this Agreement.
4.16 ANTI-TRUST
The Contractor hereby assigns, sells, and transfers to the City all right, title and interest in and to any claims and causes of action arising under the anti-trust laws of the State of New York or of the United States relating to the particular goods or services purchased or procured by the City under this Agreement.
ARTICLE 5. TERMINATION
5.1 TERMINATION OF AGREEMENT
A. The Department and/or City shall have the right to terminate this Agreement, in whole or in part:
1. Under any right to terminate as specified in any section of this Agreement.
2. Upon the failure of the Contractor to comply with any of the terms and conditions of this Agreement.
3. Upon the Contractor's becoming insolvent.
4. Upon the commencement under the Bankruptcy Act of any proceeding by or against the Contractor, either voluntarily or involuntarily.
5. Upon the Commissioner's determination, termination is in the best interest of the City.
B. The Department or City shall give the Contractor written notice of any termination of this Agreement specifying therein the applicable provisions of subsection A of this section and the effective date thereof which shall not be
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less than ten (10) days from the date the notice is
received.
C. The Contractor shall be entitled to apply to the Department to have this Agreement terminated by said Department by reason of any failure in the performance of this Agreement (including any failure by the Contractor to make progress in the prosecution of work hereunder which endangers such performance), if such failure arises out of causes beyond the control and without the fault or negligence of the Contractor. Such causes may include, but are not restricted to: acts of God or of the public enemy; acts of the Government in either its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes; freight embargoes; or any other cause beyond the reasonable control of the Contractor. The determination that such failure arises out-of causes beyond the control and without the fault or negligence of the Contractor shall be made by the Department which agrees to exercise reasonable judgment therein. If such a determination is made and the Agreement terminated by the Department pursuant to such application by the Contractor, such termination shall be deemed to be without cause.
D. Upon termination of this Agreement the Contractor shall comply with the Department or City close-out procedures, including but not limited to:
1. Accounting for and refund to the Department or City, within thirty (30) days, any unexpended funds which have been paid to the Contractor pursuant to this agreement.
2. Furnishing within thirty (30) days an inventory to the Department or City of all equipment, appurtenances and property purchased through or provided under this Agreement carrying out any Department or City directive concerning the disposition thereof.
| 3. | Not incurring or paying any further obligation pursuant to this Agreement beyond the termination date. Any obligation necessarily incurred by the . Contractor on account of this Agreement prior to receipt of notice of termination and falling due after such date shall be paid by the Department or City in accordance with the terms of this Agreement. In no event shall the word "obligation," as used herein, be construed as including any lease agreement, oral or written, entered into between the Contractor and its landlord. |
| 4. | Turn over to the Department or City or its designees all books, records, documents and material specifically relating to this Agreement. |
5. Submit, within ninety (90) days, a final statement and report relating to this Agreement. The report shall be made by a certified public accountant or a licensed public accountant.
E. In the event the Department or City shall terminate this Agreement, in whole or in part, as provided in paragraphs 1, 2, 3, or 4 of subsection A of this section, the Department or City may procure, upon such terms and in such manner as deemed appropriate, services similar to those so terminated, and the Contractor shall continue the performance of this Agreement to the extent not terminated hereby.
F. Not withstanding any other provisions of this contract, the Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of Contractor's breach of the contract, and the City may withhold payments to the Contractor for the purpose of set-off until
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such time as the exact amount of damages due to the City from the Contractor is determined.
G. The provisions of the Agreement regarding confidentiality of information shall remain in full force and effect following any termination.
H. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to all other rights and remedies provided by law or under this Agreement.
ARTICLE 6. MISCELLANEOUS
6.1 CONFLICT OF LAWS
All disputes arising out of this Agreement shall be interpreted and decided in accordance with the laws of the State of New York.
6.2 GENERAL RELEASE
The acceptance by the Contractor or its assignees of the final payment under this contract, whether by voucher, judgment of any court of competent jurisdiction or any other administrative means, shall constitute and operate as a general release to the City from any and all claims of and liability to the Contractor arising out of the performance of this contract.
6.3 CLAIMS AND ACTIONS THEREON
A. No action at law or proceeding in equity against the City or Department shall lie or be maintained upon any claim based upon this Agreement or arising out of this Agreement or in any way connected with this Agreement unless the Contractor shall have strictly complied with all requirements relating to the giving of notice and of information with respect to such claims, all as herein provided.
B. No action shall lie or be maintained against the City by Contractor upon any claims based upon this Agreement unless such action shall be commenced within six (6) months after the date of filing in the Office of the Comptroller of the City of the certificate for the final payment hereunder, or within six (6) months of the termination or conclusion of this Agreement, or within six (6) months after the accrual of the Cause of Action, whichever first occurs.
C. In the event any claim is made or any action brought in any way relating to the Agreement herein, the Contractor shall diligently render to the Department and/or the City of New York without additional compensation any and all assistance which the Department and/or the City of New York may require of the Contractor.
D. The Contractor shall report to the Department in writing within three (3) working days of the initiation by or against the Contractor of any legal action or proceeding in connection with or relating to this Agreement.
6.4 NO CLAIM AGAINST OFFICERS. AGENTS OR EMPLOYEES
No claim whatsoever shall be made by the Contractor against any officer, agent or employee of the City for, or on account of, anything done or omitted in connection with this contract.
6.5 WAIVER
Waiver by the Department of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of the Agreement unless and until the same shall be agreed to in writing by the Department or City as required and attached to the original Agreement.
6.6 NOTICE
The Contractor and the Department hereby designate the business addresses hereinabove specified as the places where all notices, directions or communications from one such party to the other party shall be delivered, or to which they shall be mailed. Actual delivery of any such notice, direction or communication to a party at the
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aforesaid place, or delivery by certified mail shall be conclusive and deemed to be sufficient service thereof upon such party as of the date such notice, direction or communication is received by the party. Such address may be changed at any time by an instrument in writing executed and acknowledged by the party making such change and delivered to the other party in the manner as specified above. Nothing in this section shall be deemed to serve as a waiver of any requirements for the service of notice or process in the institution of an action or proceeding as provided by law, including the Civil Practice Law and Rules.
6.7 ALL LEGAL PROVISIONS DEEMED INCLUDED
It is the intent and understanding of the parties to this Agreement that each and every provision of law required to be inserted in this Agreement shall be and is inserted herein. Furthermore, it is hereby stipulated that every such provision is to be deemed to be inserted herein, and if, through mistake or otherwise, any such provision is not inserted, or is not inserted in correct form, then this Agreement shall forthwith upon the application of either party be amended by such insertion so as to comply strictly with the law and without prejudice to the rights of either party hereunder.
6.8 SEVERABILITY
If this Agreement contains any unlawful provision not an essential part of the Agreement and which shall not appear to have been a controlling or material inducement to the making thereof, the same shall be deemed of no effect and shall upon notice by either party, be deemed stricken from the Agreement without affecting the binding force of the remainder.
6.9 POLITICAL ACTIVITY
There shall be no partisan political activity or any activity to further the election or defeat of any candidate for public, political or party office as part of or in connection with this Agreement, nor shall any of the funds provided under this Agreement be used for such purposes.
6.10 MODIFICATION
This Agreement may be modified by the parties in writing in a manner not materially affecting the substance hereof. It may not be altered or modified orally.
A. CONTRACT CHANGES Changes may be made to this contract only as duly authorized by the Agency Chief Contracting Officer of his or her designee. Vendors deviating from the requirements of an original purchase order or contract without a duly authorized change order document, or written contract modification or amendment, do so at their own risk. All such duly authorized changes, modifications and amendments will be reflected in a written change order and become a part of the original contract. Contract changes will be made only for work necessary to complete the work included in the original scope of the contract, and for non-material changes to the scope of the contract. Changes are not permitted for any material alteration in the scope of the work. Changes may include any one or more of the following:
- Specification changes to account for design errors or omissions;
- changes in contract amount due to authorized additional or omitted work. Any such changes require appropriate price and cost analysis to determine reasonableness. In addition, except for non-construction requirements contracts, all changes that cumulatively exceed the greater often percent of the original contract amount or $100,000 shall be approved by the City Chief Procurement Officer;
- Extensions of a contract term for good and sufficient cause for a cumulative period not to exceed one year from the date of expiration of this current contract. Requirements contracts shall be subject to this limitation;
- Changes in delivery location;
- Changes in shipment method; and
- Any other change not inconsistent with
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§ 5-02 of the P.P.B. Rules (ed. 9/99), or any successor Rule.
The Contractor may be entitled to a price adjustment for extra work performed pursuant to a written change order. If any part of the contract work is necessarily delayed by a change order, the Contractor may be entitled to an extension of time for performance. Adjustments to price shall be validated for reasonableness by using appropriate price and cost analysis.
6.11 PARAGRAPH HEADINGS
Paragraph headings are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this contract and in no way affect this contract.
6.12 NO REMOVAL OF RECORDS FROM PREMISES
Where performance of this Agreement involves use by the Contractor of Departmental papers, files, data or records at Departmental facilities or offices, the Contractor shall not remove any such papers, files, data or records, therefrom without the prior approval of the Department's designated official.
6.13 INSPECTION AT SITE
The Department shall have the right to have representatives of the Department or of the City or of the State or Federal governments present at the site of the engagement to observe the work being performed.
6.14 PRICING
A. The Contractor shall when ever required during the contract, including but not limited to the time of bidding, submit cost or pricing data and formally certify that, to the best of its knowledge and belief, the cost or pricing date submitted was accurate, complete, and current as of a specified date. The Contractor shall be required to keep its submission of cost and pricing date current until the contract has been completed.
B. The price of any change order or contract modification subject to the conditions of paragraph A, shall be adjusted to exclude any significant sums by which the City finds that such price was based on cost or price data furnished by the supplier which was inaccurate, incomplete, or not current as of the date agreed upon between the parties.
| C. | Time for Certification. The Contractor must certify that the cost or pricing data submitted are accurate, complete and current as of a mutually determined date |
D. Refusal to Submit Data. When any contractor refuses to submit the required data to support a price, the Contracting Officer shall not allow the price.
E. Certificate of Current Cost or Pricing Data.
Form of Certificate. In those cases when cost or pricing data is required, certification shall be made using a certificate substantially similar to the one contained in Chapter 4 of the PPB rules and such certification shall be retained in the agency contract file.
ARTICLE 7. MERGER
This written Agreement contains all the terms and conditions agreed upon by the parties hereto, and no other agreement, oral or otherwise, regarding the subject matter of tills Agreement shall be deemed to exist or to bind any of the parties hereto, or to vary any of the terms contained herein.
ARTICLE 8. CONDITIONS PRECEDENT
This contract shall neither be binding nor effective unless:
A. Approved by the Mayor pursuant to the provisions of Executive Order No. 42, dated October 9, 1975, in the event the Executive Order requires such approval; and
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| B. | Certified by the Mayor (Mayor's Fiscal Committee created pursuant to Executive Order No. 43, dated October 14, 1975) that performance thereof will be in accordance with the City's financial plan; and |
C. Approved by the New York State Financial Control Board (Board) pursuant to the New York State Financial Emergency Act for the City of New York, as amended, (the "Act"), in the event regulations of the Board pursuant to the Act require such approval.
D. It has been authorized by the Mayor and the Comptroller shall have endorsed his certificate that there remains unexpended and unapplied a balance of the appropriation of funds applicable thereto sufficient to pay the estimated expense of carrying out this Agreement.
The requirements of this section of the contract shall be in addition to, and not in lieu of, any approval or authorization otherwise required for this contract to be effective and for the expenditure of City funds.
ARTICLE 9. PPB RULES
This contract is subject to the Rules of the Procurement Policy Board of the City of New York effective August 1, 1990, as amended. In the event of a conflict between said Rules and a provision of this contract, the Rules shall take precedence.
ARTICLE 10. STATE LABOR LAW AND CITY ADMINISTRATIVE CODE
1. As required by New York State Labor Law Section 220-e:
a. That in the hiring of employees for the performance of work under this contract or any subcontract hereunder, neither the Contractor, Subcontractor, nor any person acting on behalf of such Contractor or Subcontractor, shall by reason of race, creed, color, sex or national origin discriminate against any citizen of the State of New York who is qualified and available to perform the work to which the employment relates;
b. That neither the Contractor, subcontractor, nor any person on his behalf shall, in any manner, discriminate against or intimidate any employee hired for the performance of work under this contract on account of race, creed, color, sex or national origin;
c. That there may be deducted from the amount payable to the Contractor by the City under this contract a penalty of five dollars for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of this contract; and
d. That this contract may be canceled or terminated by the City and all monies due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the contract.
e. The aforesaid provisions of this section covering every contract for or on behalf of the State or a municipality for the manufacture, sale or distribution of materials, equipment or supplies shall be limited to operations performed within the territorial limits of the State of New York.
2. As required by New York City Administrative Code Section 6-108:
a. It shall be unlawful for any person engaged in the construction, alteration or repair of buildings or engaged in the construction or repair of streets or highways pursuant to a contract with the City or. engaged in the manufacture, sale or distribution of' materials, equipment or supplies pursuant to a contract with the City to refuse to employ or to refuse to continue in any employment any person on account of the race, color or creed of such person.
b. It shall be unlawful for any person or any servant, agent or employee of any person, described in subdivision (a) above, to ask, indicate or transmit, orally or in writing, directly or indirectly, the race, color, creed or religious affiliation of any person employed or seeking employment from such person, firm or corporation.
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c. Disobedience of the foregoing provisions shall be deemed a violation of a material provision of this contract.
d. Any person, or the employee, manager or owner of or officer of such firm or corporation who shall violate any of the provisions of this section shall, upon conviction thereof, be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days, or both.
ARTICLE 11. FORUM PROVISION
Choice of Law, Consent to Jurisdiction and Venue This Contract shall be deemed to be executed in the City of New York, State of New York, regardless of the domicile of the Contractor, and shall be governed by and construed in accordance with the laws of the State of New York.
The parties agree that any and all claims asserted by or against the City arising under this Contract or related thereto shall be heard and determined either in the courts of the United States located in New York City ("Federal Courts") or in the courts of the State of New York ("New York State Courts") located in the City and County of New York. To effect this Agreement and intent, the Contractor agrees:
a. If the City initiates any action against the
Contractor in Federal Court or in New York State Court, service of process may be made on the Contractor either in person, wherever such Contractor may be found, or by registered mail addressed to the Contractor at its address as set forth in this Contract, or to such other address as the Contractor may provide to the City in writing; and
b. With respect to any action between the City and the Contractor in New York State Court, the Contractor hereby expressly waives and relinquishes any rights it might otherwise have (I) to move to dismiss on grounds of forum non conveniens; (ii) to remove to Federal Court; and (iii) to move for a change of venue to a New York State Court outside New York County.
c. With respect to any action between the City and the Contractor in Federal Court located in New York City, the Contractor expressly waives and relinquishes any right it might otherwise have to move to transfer the action to a United States Court outside the City of New York.
d. If the Contractor commences any action against the City in a court located other than in the City and State of New York, upon request of the City, the Contractor shall either consent to a transfer of the action to a court of competent jurisdiction located in the City and State of New York or, if the court where the action is initially brought will not or cannot transfer the action, the Contractor shall consent to dismiss such action without prejudice and may thereafter reinstitute the action in a court of competent jurisdiction in New York City. If any provision(s) of this Article is held unenforceable for any reason, each and all other provision(s) shall nevertheless remain in full force and effect.
ARTICLE 12. EQUAL EMPLOYMENT OPPORTUNITY
This contract is subject to the requirements of Executive Order No. 50 (1980) as revised ("E.O. 50") and the Rules and Regulations promulgated thereunder. No contract will be awarded unless and until these requirements have been complied with in their entirety. By signing this contract, the contractor agrees that it:
1. will not engage in any unlawful discrimination against any employee or applicant for employment because of race, creed, color, national origin, sex age, disability, marital status or sexual orientation with respect to all employment decisions including, but not limited to, recruitment, hiring, upgrading, demotion, downgrading, transfer, training, rates of pay or other forms of compensation, layoff, termination, and all other terms and conditions of employmEnt;
2. the contractor agrees that when it subcontracts it will not engage in any unlawful discrimination in
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the selection of subcontractors on the basis of the owner's race, color, creed, national origin, sex, age. disability, marital status or sexual orientation;
3. will state in all solicitations or advertisements for employees placed by or on behalf of the contractor that all qualified applicants will receive consideration for employment without unlawful discrimination based on race, creed, color, national origin, sex, age, disability, marital status or sexual orientation, or that it is an equal employment opportunity employer;
4. will send to each labor organization or representative of workers with which it has a collective bargaining agreement or other contract or memorandum of understanding, written notification of its equal employment opportunity commitments under E. 0. 50 and the rules and regulations promulgated thereunder; and
5. will furnish all information and reports including an Employment Report before the award of the contract which are required by E-. 0. 50, the rules and regulations promulgated thereunder, and orders of the Director of the Bureau of Labor Services ("Bureau"), and will permit access to its books, records and accounts by the Bureau for the purposes of investigation to ascertain compliance with such rules, regulations, and orders. The contractor understands that in the even of its noncompliance with nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, such noncompliance shall constitute a material breach of the contract and noncompliance with the E. 0. 50 and the rules and regulations promulgated thereunder. After a hearing held pursuant to the rules of the Bureau, the Director may direct the imposition by the contracting agency held of any or all of the following sanctions:
(I) disapproval of the contractor;
(ii) suspension or termination of the contract;
(iii) declaring the contractor in default; or (iv) in lieu of any of the foregoing sanctions, the Director may impose an employment program.
The Director of the Bureau may recommend to the contracting agency head that a Board of Responsibility be convened for purposes of declaring a contractor who has repeatedly failed to comply with E.O. 50 and the rule and regulations promulgated thereunder to be nonresponsible. The contractor agrees to include the provisions of the foregoing paragraphs in every subcontract or purchase order in excess of $50,000 to which it becomes a party unless exempted by E.O. 50 and the rules and regulations promulgated thereunder, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Director of the Bureau of Labor Services as a means of enforcing such provisions, including sanctions for noncompliance.
The contractor further agrees that it will refrain from entering into any contract or contract modification subject to E.O. 50 and the rules and regulations promulgated thereunder with a subcontractor who is not in compliance with the requirements of E.O. 50 and the rules and regulations promulgated thereunder.
ARTICLE 13. NO DAMAGE FOR DELAY
The Contractor agrees to make no claim for damages for delay in the performance of this Contract occasioned by any act or omission to act of the City or any of its representatives, and agrees that any such claim shall be fully compensated for by an extension of time to complete performance of the work as provided herein.
ARTICLE 14. CONSULTANT REPORT INFORMATION
A copy of each consultant report submitted by a consultant to any City official or to any officer, employee, agent or representative of a City department, agency, commission or body or to any
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corporation, association or entity whose expenses are paid in whole or in part from the City treasury shall be furnished to the Commissioner of the department to which such report was submitted or, if not a City department, then to the chief controlling officer or officers of such other office or entity. A copy of such report shall also be furnished to the Director of the Mayor's Office of Construction for matters related to construction or to the Director of the Mayor's Office of Operations for all other matters.
ARTICLE 15. RESOLUTION OF DISPUTES
15.1 All disputes between the City and the Contractor of the kind delineated in this section that arise under, or by virtue of, this Contract shall be finally resolved in accordance with the provisions of this section and Section 5-11 of the Rules of the Procurement Policy Board ("PPB Rules"). The procedure for resolving all disputes of the kind delineated herein shall be the exclusive means of resolving any such disputes.
a. This section shall not apply to disputes concerning matters dealt with in other sections of the PPB Rules or to disputes involving patents, copyrights, trademarks, or trade secrets (as interpreted by the courts of New York State) relating to proprietary rights in computer software.
b. For construction and construction-related services this section shall apply only to
disputes about the scope of work delineated by the Contract, the interpretation of Contract Documents, the amount to be paid for extra work or disputed work performed in connection with the Contract, the conformity of the Contractor's work to the Contract, and he acceptability and quality of the Contractor's work; such disputes arise when the Engineer makes a determination with which the Contractor disagrees.
5.2 All determinations required by this section shall be made in writing, clearly stated, with a reasoned explanation for the determination based on the information and evidence presented to the party making the determination. Failure to make such determination within the time period required by this section shall be deemed a non-determination without prejudice that will allow appeal to the next level.
15.3 During such time as any dispute is being presented, heard, and considered pursuant to this section, the contract terms shall remain in full force and effect and the Contractor shall continue to perform work in accordance with the Contract and as directed by the Agency Chief Contracting Officer or Engineer. Failure of the Contractor to continue the work as directed shall constitute a waiver by the Contractor of any and all claims being presented pursuant to this section and a material breach of Contract.
15.4 Presentation of Dispute to Agency Head.
(A) Notice of Dispute and Agency Response. The Contractor shall present its dispute in writing ("Notice of Dispute") to the Agency Head within the time specified herein or, if no time is specified, within thirty (30) days of receiving notice of the determination or action that is the subject of the dispute. This notice requirement shall not be read to replace any other notice requirements contained in the Contract. The Notice of Dispute shall include all the facts, evidence, documents, or other basis upon which the Contractor relies in support of its position, as well as a detailed computation demonstrating' how any amount of money claimed by the Contractor in the dispute was arrived at. Within thirty (30) days after receipt of the detailed written submission, the Agency Chief Contracting Officer or, in the case of construction or construction-related services, the Engineer shall submit to the Agency Head all materials he or she deems pertinent to the dispute. Following initial submissions to the Agency Head, either party may demand of the other the production of any document or other material the demanding party believes may be relevant to the dispute. The requested party shall produce all relevant materials
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that are not otherwise protected by a legal privilege recognized by the courts of New York State. Any question of relevancy shall be determined by the Agency Head whose decision shall be final. Wilful failure of the Contractor to produce any requested material whose relevancy the Contractor has not disputed, or whose relevancy has been affirmatively determined, shall constitute a waiver by the Contractor of its claim.
(B) Agency Head Inquiry. The Agency Head shall examine the material and may, in his or her discretion, convene an informal conference with the Contractor and the Agency Chief Contracting Officer and, in the case of construction or construction-related services, the Engineer to resolve the issue by mutual consent prior to reaching a determination. The Agency Head may seek such technical or other expertise as he or she shall deem appropriate, including the use of neutral mediators, and require any such additional material from either or both parties as he or she deems fit. The Agency Head's ability to render, and the effect of, a decision hereunder shall not be impaired by any negotiations in connection with the dispute presented, whether or not the Agency Head participated therein. The Agency Head may or, at the request of any party to the dispute, shall compel the participation of any other contractor with a contract related to the work of this Contract, and that contractor shall be bound by the decision of the Agency Head. Any contractor thus brought into the dispute resolution proceeding shall have the same rights to make presentations and to seek review as the Contractor initiating the dispute.
(C) Agency Head Determination. Within thirty (30) days after the receipt of all materials and information, or such longer time as may be agreed to by the parties, the Agency Head shall make his or her determination and shall deliver or send a copy of such determination to the Contractor and Agency Chief Contracting Officer and, in the case of construction or construction-related services, the Engineer, together with a statement concerning how the decision may be appealed.
(D) Finality of Agency Head Decision. The Agency Head's decision shall be final and binding on all parties, unless presented to the Contract Dispute Resolution Board pursuant to this section. The City may not take a petition to the Contract Dispute Resolution Board. However, should the Contractor take such a petition, the City may seek, and the Board may render, a determination less favorable to the Contractor and more favorable to the City than the decision of the Agency Head.
15.5 Presentation of Dispute to the Comptroller. Before any dispute may be brought by the Contractor to the Contract Dispute Resolution Board, the Contractor must first present its claim to the comptroller for his or her review, investigation, and possible adjustment.
(A) Time, Form, and Content of Notice. Within thirty
(3 0) days of its receipt of a decision by the Agency Head, the Contractor shall submit to the Comptroller and to the Agency Head a Notice of Claim regarding its dispute with the Agency. The Notice of Claim shall consist of (i) a brief written statement of the substance of the dispute, the amount of money, if any, claimed and the reason(s) the Contractor contends the dispute was wrongly decided by the Agency Head; (ii) a copy of the written decision of the Agency Head, and (iii) a copy of all materials submitted by the Contractor to the Agency, including the Notice of Dispute. The Contractor may not present to the Comptroller any material not presented to the Agency Head, except at-the request of the Comptroller.
(B) Agency Response. Within thirty (30) days of receipt of the Notice of Claim, the Agency shall make available to the Comptroller a copy of all material submitted by the Agency to the Agency Head in connection with the dispute. The Agency may not present to the Comptroller any material not presented to the Agency Head except at the request of the Comptroller.
(C) Comptroller Investigation. The Comptroller may investigate the claim in dispute and, in the course of such
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investigation, may exercise all powers provided in sections 7-201 and 7-203 of the New York City Administrative Code. In addition, the Comptroller may demand of either party, and such party shall provide, whatever additional material the Comptroller deems pertinent to the claim, including original business records of the Contractor. Wilful failure of the Contractor to produce within fifteen (15) days any material requested by the Comptroller shall constitute a waiver by the Contractor of its claim. The Comptroller may also schedule an informal conference to be attended by the Contractor, Agency representatives, and any other personnel desired by the Comptroller.
(D) Opportunity of Comptroller to Compromise or Adjust Claim. The Comptroller shall have forty-five (45) days from his or her receipt of all materials referred to in 5. (C) to investigate the disputed claim. The period for investigation and compromise may be further extended by agreement between the Contractor and the Comptroller, to a maximum of ninety (90) days from the Comptroller's receipt of all the materials. The Contractor may not present its petition to the Contract Dispute Resolution Board until the period for investigation and compromise delineated in this paragraph has expired. In compromising or adjusting any claim hereunder, the Comptroller may not revise or disregard the terms of the Contract between the parties.
15.6 Contract Dispute Resolution Board. There shall be a Contract Dispute Resolution Board composed of:
(a) the chief administrative law judge of the Office of Administrative Trials and Hearings ("OATH") or his/her designated OATH administrative law judge, who shall act as chairperson, and may adopt operational procedures and issue such orders consistent with this section as may be necessary in the execution of the Contract Dispute Resolution Board's functions, including, but not limited to, granting extensions of time to present or respond to submissions;
(b) the City Chief Procurement Officer or a designee; or in the case of disputes involving construction, the Director of the Office of Construction or his/her designee; any designee shall have the requisite background to consider and resolve the merits of the dispute and shall not have participated personally and substantially in the particular matter that is the subject of the dispute or report to anyone who so participated, and
(c) a neutral person with appropriate expertise. This person shall be selected by the presiding administrative law judge from a prequalified panel of individuals, established and administered by OATH, with appropriate background to act as decision-makers in a dispute. Such individuals may not have a contract or dispute with the City or be an officer or employee of any company or organization that does, or regularly represents persons. companies, or organizations having disputes with the City.
15.7 Petition to Contract Dispute Resolution Board. In the event the claim has not been settled or adjusted by the Comptroller within the period provided in this section, the Contractor, within thirty (30) days thereafter, may petition the Contract Dispute Resolution Board to review the Agency Head determination.
(A) Form and Content of Petition by Contractor. The Contractor shall present its dispute to the Contract Dispute Resolution Board in the form of a Petition, which shall include (i) a brief written statement of the substance of the dispute, the amount of money, if any, claimed and the reason(s) the Contractor contends that the dispute was wrongly decided by the Agency Head; (ii) a copy of the written decision of the Agency Head; (iii) copies of all materials submitted by the Contractor to the Agency; (iv) a copy of the written decision of the Comptroller, if any, and (v) copies of all correspondence with, or written material submitted by the Contractor to, the Comptroller's Office. The Contractor shall concurrently submit four complete sets of the Petition: one to the Corporation Counsel (Attn: Commercial and
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Real Estate Litigation Division), and three to the Contract Dispute Resolution Board at oath's offices with proof of service on the Corporation Counsel. In addition, the supplier shall submit a copy of the statement of the substance of the dispute, cited in (i) above to both the Agency Head and the Comptroller.
(B) Agency Response. Within thirty (30) days of its receipt of the Petition by the Corporation Counsel, the Agency shall respond to the brief written statement of the Contractor and make available to the Board at oath's offices and one to the Contractor, all material it submitted to the Agency Head and Comptroller. Extensions of time for submittal of the agency response shall be given as necessary upon a showing of good cause or, upon the consent of the parties, for an initial period of up to thirty (30) days.
(C) Further Proceedings. The Board shall permit the Contractor to present its case by
the submission of memoranda, briefs, and oral argument. The Board shall also permit the Agency to present its case in response to the Contractor by the submission of memoranda, briefs, and oral argument. If requested by the Corporation Counsel, the Comptroller shall provide reasonable assistance in the preparation of the Agency's case. Neither the Contractor nor the Agency may support its case with any documentation or other material that was not considered by the Comptroller, unless requested by the Board. The Board, at its discretion, may seek such technical or other expertise as it shall deem appropriate and may seek, on its own or upon application of a party, any such additional material from any party as it deems fit. The Board, in its discretion, may combine more than one dispute between the parties of concurrent resolution.
(D) Contract Dispute Resolution Board Determination. Within forty-five (45) days of the conclusion of all written submissions and oral arguments, the Board shall render a written decision resolving the dispute. In an unusually complex case, the Board may render its decision in a longer period of time, not to exceed ninety (90) days, and shall so advise the parties at the commencement of this period. The Board's decision must be consistent with the terms of the Contract. In reaching its decision, the Board shall accord no precedential significance to prior decisions of the Board involving other non-related contracts.
(E) Notification of Contract Dispute Resolution Board Decision. The Board shall send a copy of its decision to the Contractor, the Agency Chief Contracting Officer, the Corporation Counsel, the Comptroller, and in the case of construction or construction-related services, the Engineer. A decision in favor of the Contractor shall be subject to the prompt payment provisions of the PPB Rules. The Required Payment Day shall be thirty (30) days after the date the parties are formally notified of the Board's decision.
(F) Finality of Contract Dispute Resolution Board Decision. The Board's decision shall be final and binding on all parties. Any party may seek review of the Board's decision solely in the form of a challenge, made within four (4) months of the date of the Board's decision, in a court of competent jurisdiction of the State of New York, County of New York, pursuant to Article 78 of the Civil Practice Law and Rules. Such review by the court shall be limited to the question of whether or not the Board's decision was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion. No evidence or information shall be introduced or relied upon in such proceeding that was not presented to the Board in' accordance with Section 5-11 of the PPB Rules.
15.8 Any termination, cancellation, or alleged breach of the Contract prior to or during the pendency of any proceedings pursuant to this section shall not affect or impair the ability of the Agency Head or Contract Dispute Resolution Board to make a binding and final decision pursuant to this section.
ARTICLE 16. PROMPT PAYMENT
The Prompt Payment provisions set forth in Chapter 5,
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Section 5-07 of the Procurement Policy Board Rules in effect at the time for this solicitation will be applicable to payments made under this contract. The provisions require the payment to the contractors of interest on payments made after the required payment date except as set forth in subdivisions c(3) and d(2), (3), (4) and (5) of Section 5-07 of the Rules.
The contractor must submit a proper invoice to receive payment, except where the contract provides that the contractor will be paid at predetermined intervals without having to submit an invoice for each scheduled payment.
Determinations of interest due will be made in accordance with the provisions of the Procurement Policy Board Rules and General Municipal Law Section 3-a.
ARTICLE 17.
MACBRIDE PRINCIPLES PROVISIONS FOR NEW YORK CITY CONTRACTORS
ARTICLE I. MACBRIDE PRINCIPLES NOTICE TO ALL PROSPECTIVE CONTRACTORS
Local Law No. 34 of 1991 became effective on September 10, 1991 and added section 6-115.1 to the Administrative Code of the City of New York. The local law provides for certain restrictions on City contracts to express the opposition of the people of the City of New York to employment discrimination practices in Northern Ireland and to encourage companies doing business in Northern Ireland to promote freedom of workplace opportunity.
Pursuant to Section 6-115. ^prospective contractors for contracts to provide goods or services involving an expenditure of an amount greater than ten thousand dollars, or for construction involving an amount greater than fifteen thousand dollars, are asked to sign a rider in which they covenant and represent, as a material condition of their contract, that any business in Northern Ireland operations conducted by the contractor and any individual or legal entity in which the contractor holds a ten percent or greater ownership interest and any individual or legal entity that holds a ten percent or greater ownership interest in the contractor will be conducted in accordance with the MacBride Principles of nondiscrimination in employment.
Prospective contractors are not required to agree to these conditions. However, in the case of contracts let by competitive sealed bidding, whenever the lowest responsible bidder has not agreed to stipulate to the conditions set forth in this notice and another bidder who has agreed to stipulate to such conditions has submitted a bid within five percent of the lowest responsible bid for a contract to supply goods, services or construction of comparable quality, the contracting entity shall refer such bids to the Mayor, the Speaker or other officials, as appropriate, who may determine, in accordance with applicable law and rules, that it is in the best interest of the city that the contract be awarded to other than the lowest responsible bidder pursuant to Section 313 (b)(2) of the City Charter.
In the case of contracts let by other than competitive sealed bidding, if a prospective contractor does not agree to these conditions, no agency, elected official or the Council shall award the contract to that bidder unless the entity seeking to use the goods, services or construction certifies in writing that the contract is necessary for the entity to perform its functions and there is no other responsible contractor who will supply goods, services or construction of comparable quality at a comparable price.
PART A
In accordance with section 6-115.1 of the Administrative Code of the City of New York, the contractor stipulates that such contractor and any individual or legal entity in which the contractor holds a ten percent or greater ownership interest and any individual or legal entity that holds a ten percent or greater ownership interest in the contractor either (a) have no business operations in Northern Ireland, or (b) shall take lawful steps in good faith to conduct any business operations they have in Northern Ireland in accordance with the MacBride Principles, and shall permit independent monitoring of their compliance with such principles.
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PART B
For purposes of this section, the following terms shall have the following meanings:
1. "MacBride Principles" shall mean those principles relating to nondiscrimination in employment and freedom of workplace opportunity which require employers doing business in Northern Ireland to:
(1) increase the representation of individuals from under represented religious groups in the work force, including managerial, supervisory, administrative, clerical and technical jobs;
(2) take steps to promote adequate security for the protection of employees from under represented religious groups both at the workplace and while traveling to and from work;
(3) ban provocative religious or-political emblems from the workplace;
(4) publicly advertise all job openings and make special recruitment efforts to attract applicants from under represented religious groups;
(5) establish layoff, recall and termination procedures which do not in practice favor a particular religious group;
(6) abolish all job reservations, apprenticeship restrictions and different employment criteria which discriminate on the basis of religion;
(7) develop training programs that will prepare substantial numbers of current employees from under represented religious groups for skilled jobs, including the expansion of existing programs and the creation of new programs to train, upgrade and improve the skills of workers from under represented religious groups;
(8) establish procedures to assess, identify and actively recruit employees from under represented religious groups with potential for further advancement; and
(9) appoint a senior management staff member to oversee affirmative action efforts and develop a timetable to ensure their full implementation.
ARTICLE II. ENFORCEMENT OF ARTICLE I.
The contractor agrees that the covenants and representation in Article I above are material conditions to this contract. In the event the contracting entity receives information that the contractor who made the stipulation required by this section is in violation thereof, the contracting entity shall review such information and give the contractor an opportunity to respond. If the contracting entity finds that a violation has occurred, the entity shall have the right to declare the contractor in default and/or terminate this contract for cause and procure the supplies, services or work from another source in any manner the entity deems proper. In the event of such termination, the contractor shall pay to the entity, or the entity in its sole discretion may withhold from any amounts otherwise payable to the contractor, the difference between the contract price for the uncompleted portion of this contract and the cost to the contracting entity of completing performance of this contract either itself or by engaging another contractor or contractors. In the case of a requirements contract, the contractor shall be liable for such difference in price for the entire amount of supplies required by the contracting entity for the uncompleted term of its contract. In the case of a construction contract, the contracting entity shall also have the right to hold the contractor in partial or total default in accordance with the default provisions of this contract, and/or may seek debarment or suspension of the contractor. The rights and remedies of the entity hereunder shall be in addition to, and not in lieu of, any rights and remedies the entity has pursuant to this contract or by operation of law.
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