HomeMy WebLinkAboutDoc 377 - IGA - DHS for DD ServicesDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of June 29, 2011
DATE: June 22, 2011
FROM: Nancy England, Contract Specialist, Deschutes County Health Services, 322-7516
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document #2011-377, of Intergovernmental Agreement #134273
between Deschutes County Health Services, Developmental Disabilities Division and the Department
of Human Services for the financing of Community Developmental Disability Services.
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
The Department of Human Services (DHS) is Oregon's principal agency for helping
Oregonians achieve wellbeing and independence through opportunities that protect,
empower, respect choice and preserve dignity, especially for those who are least able to
help themselves. The 1971 Oregon Legislature created the Oregon Department of Human
Resources, an agency providing a spectrum of human services to individuals, families and
communities. Over the years, parts of the agency were spun off, becoming the Oregon
Department of Corrections, Oregon Employment Department, the Oregon Youth Authority,
and the Oregon Department of Housing and Community Services. The 2001 Oregon
Legislature reorganized the department and changed its name to the Oregon Department
of Human Services (DHS). In 2009, the Oregon Legislature transferred many of the health
related functions to the newly created Oregon Health Authority (OHA). Today, DHS' key
functions serve children, adults, families, seniors, and people with disabilities.
The Deschutes County Developmental Disabilities program provides informational
resources, connects clients and families with existing programs and facilitates the
development of needed services. Service coordinators advocate for clients and provide
assistance as they and their family's transition through the stages of development. The
2011-2013 biennium Intergovernmental Agreement for the Financing of Community
Developmental Disability Services outlines the terms and conditions for the services
provided and the manner in which DD shall obtain financial assistance for the operation of
its programs.
Funding for this Agreement will be awarded through Express Payment and Reporting
System (eXPRS) in a Service Element Prior Authorization (SEPA). EXPRS is an
information system for managing the disbursement and tracking of DHS financial
assistance. SEPA is the maximum amount of financial assistance that DHS will provide
under this Agreement. The County submits a Provider Prior Authorization (PPA) or Client
Prior Authorization (CPA) to obtain confirmation of an approved rate through the SEPA.
Upon Acceptance of the SEPA, County is agreeing to provide the services as described in
the appropriate federal regulations, Oregon Revised Statutes, Oregon Administrative
Rules, Service Element Standards and Procedures and any attached Special Conditions.
FISCAL IMPLICATIONS:
Funding reimbursement is approximately $3,800,000 for FY 11-13.
RECOMMENDATION & ACTION REQUESTED:
Approval and signature of Intergovernmental Financial Agreement Award #134273 between
Deschutes County Health Services, Developmental Disabilities and the Department of Human
Services is requested.
ATTENDANCE: Kathy Drew, Program Manager
DISTRIBUTION OF DOCUMENTS:
E -Mail (tami.i.goertzenCa�state.or.us) Tami Goertzen, signed Page 2 of the agreement, a
completed page 31 of Exhibit E, and the completed, signed Document Return Statement.
Original documents to Nancy England at Health Services.
DESCHUTES COUNTY DOCUMENT SUMMARY
(NOTE: This form is required to be submitted with ALL contracts and other agreements, regardless of whether the document is to be
on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board
agenda, the Agenda Request Form Is also required. If this form is not Included with the document, the document will be returned to
the Department. Please submit documents to the Board Secretary for tracking purposes, and not directly to Legal Counsel, the
County Administrator or the Commissioners. In addition to submitting this form with your documents, please submit this form
electronically to the Board Secretary.)
Date:
Please complete aH sections above the Official Review line.
June 21, 2011
Department:
Health Services, Behavioral Health
Contractor/Supplier/Consultant Name:
Contractor Contact:
April Barrett
Oregon Health Authority
Contractor Phone #:
Type of Document: Intergovernmental Agreement
503-945-5821
Goods and/or Services: The Department of Human Services (DHS) is Oregon's
principal agency for helping Oregonians achieve wellbeing and independence through
opportunities that protect, empower, respect choice and preserve dignity, especially for
those who are least able to help themselves; the attached Intergovernmental
Agreement (#134273) outlines the financing for Community Development Disability
Services (DD) for fiscal year 2011-2013.
Background & History: The 1971 Oregon Legislature created the Oregon Department
of Human Resources, an agency providing a spectrum of human services to individuals,
families and communities. Over the years parts of the agency were spun off, becoming
the Oregon Department of Corrections, Oregon Employment Department, the Oregon
Youth Authority, and the Oregon Department of Housing and Community Services.
The 2001 Oregon Legislature reorganized the department and changed its name to the
Oregon Department of Human Services (DHS). In 2009 the Oregon Legislature
transferred many of the health related functions to the newly created Oregon Health
Authority (OHA). Today, DHS' key functions serve children, adults and families and
seniors and people with disabilities.
The Deschutes County Developmental Disabilities program provides: informational
resources, connects clients and families with existing programs and facilitates the
development of needed services. Service coordinators advocate for clients and provide
assistance as they and their family's transition through the stages of development. The
2011-2013 biennium Intergovernmental Agreement for the Financing of Community
Developmental Disability Services outlines the terms and conditions for the services
provided and the manner in which DD shall obtain financial assistance for the operation
of its programs.
Funding for this Agreement will be awarded through Express Payment and Reporting
System (eXPRS) in a Service Element Prior Authorization (SEPA). Upon Acceptance of
the SEPA, County is agreeing to provide the services as described in the appropriate
federal regulations, Oregon Revised Statutes, Oregon Administrative Rules, Service
Element Standards and Procedures and any attached Special Conditions.
6/21/2011
Agreement Starting Date:
July 01, 2011
Annual Value or Total Payment:
Ending Date:
June 30, 2013
Biennial revenue is approximately, $3,800,000.
® Insurance Certificate Received (check box)
Insurance Expiration Date:
N/A County is Contractor
Check all that apply:
El RFP, Solicitation or Bid Process
0 Informal quotes (<$150K)
® Exempt from RFP, Solicitation or Bid Process (specify — see DCC §2.37)
Funding Source: (Included in current budget? ® Yes 0 No
If No, has budget amendment been submitted? ❑ Yes 0 No
Is this a Grant Agreement providing revenue to the County? ❑ Yes ® No
Special conditions attached to this grant:
Deadlines for reporting to the grantor:
If a new FTE will be hired with grant funds, confirm that Personnel has been notified that
it is a grant -funded position so that this will be noted in the offer letter: ❑ Yes 0 No
Contact information for the person responsible for grant compliance: Name:
Phone #:
Departmental Contact and Title:
Phone #:
541-322-7516
Department Director Approval:
Nancy England, Contract Specialist
(0•2.II
Date
6/21/2011
Distribution of Document: E -Mail (tami.i.goertzen@a.state.or.us) Tami Goertzen,
signed Page 2 of the agreement, a completed page 31 of Exhibit E, and the completed,
signed Document Return Statement. Original documents to Nancy England at Health
Services.
Official Review:
County Signature Required (check one): ❑ BOCC 0 Department Director (if <$25K)
❑ Administrator (if >$25K but <$150K; if >$150K, BOCC Order No. )
Legal Review Date
Document Number: 2011- 77
6/21/2011
)(DHS
Oregon Department
of Human Services Office of Contracts and Procurement
John A. Kilzhaber, MD, Governor
ADMINISTRATIVE SERVICES DIVISION
egalth
Authority
250 Winter St NE, Room 306
Salem, OR 97301
Voice: (503) 945-5818
FAX: (503) 378-4324
DOCUMENT RETURN STATEMENT
Re: Amendment #00 to Agreement #134273 hereinafter referred to as "Document."
Please complete the following statement and return it along with the completed signature page and the
Contractor Data and Certification page and/or Contractor Tax Identification Information form (if
applicable).
Important: If you have any questions or find errors in the above referenced Document, please contact
the contract specialist, April D. Barrett at (503) 945-5821.
I Scott Johnson , Director ,
(Name)
(Title)
received a copy of the above referenced Document, between the State of Oregon, acting by and through
its Oregon Health Authority, and Deschutes County, by e-mail from Tami Goertzen on June 18, 2011.
On June 20, 2011 , I signed the electronically transmitted Document without
(Date)
change. I am returning the completed signature page and Contractor Data and Certification page and/or
Contractor Tax Identification Information form (if applicable) with this Document Return Statement.
(Authorizi : ` ignature) (Date)
In compliance with the Americans with Disabilities Act, this document is
available in alternate formats such as Braille, large print, audio recordings,
Web -based communications and other electronic formats. To request an
alternate format, please send an e-mail to dhsalt(2�state.or.us or call 503-378-
3486 (voice) or 503-378-3523 (TTY) to arrange for the alternative format.
AGREEMENT # 134273
2011-2013 INTERGOVERNMENTAL AGREEMENT
FOR THE FINANCING OF COMMUNITY
DEVELOPMENTAL DISABILITY SERVICES
This 2011-2013 Intergovernmental Agreement for the Financing of Community Developmental
Disability Services (the "Agreement") is between the State of Oregon acting by and through its Department
of Human Services ("DHS") and Deschutes County, a political subdivision of the State of Oregon
("County").
RECITALS
WHEREAS, ORS 430.6I0(4) and 430.640(1) authorize DHS to assist Oregon counties and
groups of Oregon counties in the establishment and financing of developmental disability programs
operated or contracted for by one or more counties;
WHEREAS, County has established and proposes, during the term of this Agreement, to operate
or contract for the operation of community developmental disability programs in accordance with the
policies, procedures and administrative rules of DHS;
WHEREAS, County has requested financial assistance from DHS to operate or contract for the
operation of its community developmental disability programs;
WHEREAS, in connection with County's request for financial assistance and in connection with
similar requests from other counties, DHS and representatives of various counties requesting financial
assistance, including the Association of Oregon Counties, have attempted to conduct agreement
negotiations in accordance with the Principles and Assumptions set forth in a Memorandum of
Understanding that was signed by both parties;
WHEREAS, DHS is willing, upon the terms of and conditions of this Agreement, to provide
financial assistance to County to operate or contract for the operation of its community developmental
disability programs; and
WHEREAS, various statutes authorize DHS and County to collaborate and cooperate in
providing for basic community developmental disability programs and incentives for community-based
care in a manner that ensures appropriate and adequate statewide service delivery capacity, subject to
availability of funds.
DC -2011-37?
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Effective Date and Duration. This Agreement shall become effective on July 1, 2011. Unless
terminated earlier in accordance with its terms, this Agreement shall expire on June 30, 2013.
2. Agreement Documents, Order of Precedence. This Agreement consists of the following
documents:
This Agreement without Exhibits
Exhibit A Definitions
Exhibit B Special Terms and Conditions
Exhibit C General Terms and Conditions
Exhibit D Standard Terms and Conditions
Exhibit E Required Federal Terms and Conditions
In the event of a conflict between two or more of the documents comprising this Agreement, the
language in the document with the highest precedence shall control. The precedence of each of the
documents comprising this Agreement is as follows, listed from highest precedence to lowest
precedence: (a) this Agreement without Exhibits, (b) Exhibit E, (c) Exhibit A (d) Exhibit B, (e)
Exhibit C, and (f) Exhibit D.
EACH PARTY, BY EXECUTION OF THIS AGREEMENT, HEREBY
ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT,
AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
Deschutes County
By:
Authorized Signature Title Date
Approved for Legal Sufficiency:
Approved via email by Steven Marlowe
Assistant Attorney General
State of Oregon acting by and through its Department of Human Services
By:
6/17/2011
Date
Authorized Signature
Title Date
134273 Deschutes County Approved6/13/201 1 2
DHS CFAA
2011-2013 INTERGOVERNMENTAL AGREEMENT
FOR THE FINANCING OF COMMUNITY
DEVELOPMENTAL DISABILITY SERVICES
EXHIBIT A
DEFINITIONS
As used in this Agreement, the following words and phrases shall have the indicated meanings. Certain
additional words and phrases are defined in the Service Element Standards and Procedures, and special
conditions in the Service Element Prior Authorization. When a word or phrase is defined in a particular
Service Element Standards and Procedures, or special condition in the Service Element Prior
Authorization, the word or phrase shall not necessarily have the ascribed meaning in any part of the
Agreement other than the particular Service Element Standards and Procedures, or special condition in
which it is defined.
"Agreement Settlement" means DHS's reconciliation, after termination or expiration of this
Agreement, of amounts DHS actually disbursed to County from the Service Element Prior
Authorization with amounts that DHS is obligated to pay in accordance with the financial
assistance calculation methodologies set forth in the Service Element Standards and Procedures.
DHS reconciles disbursements and payments on an individual service basis as set forth in the
Service Element Standards and Procedures, and in accordance with Exhibit C, Section 1,
Disbursement and Recovery of Financial Assistance.
2. "Allowable Costs" means the costs described in OMB Circular A-87 except to the extent such
costs are limited or excluded by other provisions of this Agreement, whether in the applicable
Service Element Standards and Procedures, or special conditions identified in the Service
Element Prior Authorization (SEPA).
3. "Claim" has the meaning set forth in the Provider Enrollment and Service Claiming, OAR 411-
370.
4. "Client Process Monitoring System or CPMS" means DHS's information system that tracks
and documents service delivery or any successor system designated by DHS.
5. "Client Prior Authorization" or "CPA" means an authorization for a specific Recipient to
receive a particular service, by an identified Provider at a rate approved by DHS. The CPA is
submitted by the County for the Provider once a Recipient and the Provider have agreed to the
placement. The CPA specifies:
(a) the service,
(b) a Certified or Licensed Provider to deliver the service
(c) a Recipient to receive that service, who satisfies the eligibility requirements for that
service,
(d) effective date and end date that identifies the time period the Provider is authorized to
provide services to the recipient
(e) a rate of financial assistance for delivery of the specified service that:
134273 Deschutes County Approved 6/13/2011 3
DHS CFAA
(1)if a rate established through a ReBAR process, the amount cannot exceed the rate in
the ReBAR Rate Table for the specified tier and facility capacity, that is located at
http://www.oregon.gove/DHS/dd/rebar/docs/dd50.pdf.
(2) if the rate is not established through the ReBAR process, it must be based upon a
DHS approved budget tool submitted to DHS by the County.
6. "Community Based Programs" are services for Recipients under the following service names,
applicable rule, whose costs are covered in whole or in part with financial assistance pursuant to
this Agreement. Only services whose costs are covered in whole or in part with financial
assistance or services that the County is required to authorize are subject to this Agreement.
Service Name
Service
Code
OAR
DD Local Administration
DD 02
Chapter 411, Division 320
Short Term Crisis Services for Children and Adults
DD 44
Chapter 411, Division 320
Nursing Facility Specialized Services
DD 45
Chapter 411, Division 86
Targeted Case Management
DD 48
Chapter 411, Division 320
Comprehensive In -Home Support Services for Adults
DD 49
Chapter 411, Division 330
Residential Facilities
DD 50
Chapter 411, Division 325
Supported Living Services
DD 51
Chapter 411, Division 328
Transportation Services
DD 53
Service Element Standards
and Procedures
Employment and Community Inclusion Services
DD 54
Chapter 411, Division 345
Abuse Investigation Services
DD 55
Chapter 411, Division 320
Rent Subsidies
DD 56
Service Element Standards
and Procedures
DD Special Projects
DD 57
Service Element Standards
and Procedures
DD Foster Homes
DD 58
Chapter 411, Division 346
and Division 360
Children's Residential Facilities
DD 142
Chapter 411, Division 325
Children's Proctor Foster Homes
DD 143
Chapter 411, Division 335
Family Support Services
DD 150
Chapter 411, Division 305
Long Term Support for Children
DD 151
Chapter 411, Division 308
Room & Board
DD 156
Service Element Standards
and Procedures
Regional Crisis And Back -Up Services
DD 157
Chapter 411, Division 320
7. "Community Developmental Disability Program" or "CDDP" means a centrally organized
and coordinated program of services for persons with developmental disabilities, operated by, or
contractually affiliated with a Local Mental Health Agency (LMHA) and operated in a specific
geographic area of the State of Oregon.
8. "Community Mental Health Program or CMHP" means a centrally organized and coordinated
program of services for persons with mental and emotional disorders, developmental disabilities,
and addiction dependencies operated by, or contractually affiliated with a LMHA and operated in
a specific geographic area of the State of Oregon.
134273 Deschutes County Approved 6/13/2011 4
DHS CFAA
9. "County Financial Assistance Administrator" has the meaning set forth in section 4 of Exhibit
C.
10. "Developmental Disability Services" or "DD" means all services As described in OAR 411-
320 for eligible Recipients.
11. "Disbursement Claim" means a document executed and delivered to DHS by a Provider or
County, either electronically in eXPRS or in hard copy, with respect to a service authorized in a
CPA and PPA, certifying that a unit of that service was delivered by a Provider identified in the
CPA and PPA, to the individual identified in the CPA and during the period specified in the CPA
and requesting disbursement of financial assistance for that unit of service.
12. "Express Payment and Reporting System" or "eXPRS" means an information system for
managing the disbursement and tracking of DHS financial assistance for developmental disability
programs.
13. "Federal Funds" means all funds paid to County under this Agreement that DHS receives from
an agency, instrumentality or program of the federal government of the United States.
14. "False Claim" means a claim or encounter that a Provider knowingly submits or causes to be
submitted that contains inaccurate or misleading information, and that information would result,
or has resulted, in an overpayment or other improper payment.
15. "Local Administration Services" has the meaning set forth in the Service Element Standards
and Procedures identified as DD02 and OAR 411-320.
16. "Medicaid" means Federal Funds received by DHS under Title XIX of the Social Security Act
and Children's Health Insurance Funds administered jointly with Title XIX funds as part of state
medical assistance programs by DHS.
17. "Misexpenditure" means money, other than an Overexpenditure, disbursed to County by DHS
under this Agreement and expended by County that:
(a)
Is identified by the federal government as expended contrary to applicable statutes, rules,
OMB Circulars or any other authority that governs the permissible expenditure of such
money, for which the federal government has requested reimbursement by the State of
Oregon and whether in the form of a federal determination of improper use of federal
funds, a federal notice of disallowance, or otherwise; or
(b) Is identified by the State of Oregon or DHS as expended in a manner other than that
permitted by this Agreement, including without limitation, any money expended by
County, contrary to applicable statutes, rules, OMB Circulars or any other authority that
governs the permissible expenditure of such money; or
(c) Is identified by the State of Oregon or DHS as expended on the delivery of a service that
did not meet the standards and requirements of this Agreement with respect to that
service.
18. "Overexpenditure" means money disbursed by DHS under this Agreement and expended by
County that is identified by the State of Oregon or DHS, through Agreement Settlement or any
other disbursement/payment reconciliation permitted or required by this Agreement, as in excess
of the amount County is entitled to as determined in accordance with the financial assistance
calculation methodologies set forth in the applicable Service Element Standards and Procedures.
134273 Deschutes County Approved 6/13/2011 5
DHS CFAA
19. "Program Area" means DHS's Office of Developmental Disability Services.
20. "Provider" Means an individual, facility, corporate entity, or other organization which provides
Community Based Program services, also termed a performing provider, that must be enrolled
with DHS in accordance with OAR 411-323, Certification and Endorsement, to seek payment
from DHS. Provider also includes County if County provides the service directly.
21. "Provider Enrollment Agreement" has the meaning set forth in Provider Enrollment and
Service Claiming, Rule 411-370.
22. "Provider Prior Authorization" or "PPA" means an authorization, submitted by County to
DHS either through eXPRS or by submission to DHS of a document acceptable to DHS, for use
of financial assistance awarded in the SEPA for delivery of a particular service by a particular
Provider, and for Provider submission of Disbursement Claims for the service, that specifies:
(a) the service,
(b) the Provider,
(c) a period of time, during which the authorized financial assistance may be used to support
delivery of the Service by the Provider,
(d) if desired, the total amount of financial assistance authorized for the use in supporting
delivery of the service by the Provider during the period, which total, together with all
amounts authorized in all other PPAs that authorize financial assistance for the specified
service, does not exceed, on any day during the period of time specified in the PPA, the
sum of all funds awarded in the SEPA for the specified Service for a period of time that
includes that day.
23. "Recipient" or "Client" means, a person found eligible by DHS to receive Community Based
Programs for individuals with developmental disabilities under OAR 411-320.
24. "Service Element Standards and Procedures" means the description of a service. It is the
responsibility of the County to read the Service Element Standards and Procedures for those
services funded through this Agreement and for all services authorized by the County. The
Service Element Standards and Procedures are located at
http://www.oregon.gov/DHS/spd/provtools!
25. "Service Element Prior Authorization" or "SEPA" means the maximum amount of financial
assistance that DHS will provide under this Agreement through eXPRS (and any associated
special performance or other requirements), as the SEPA may be amended from time to time by a
SEPA Adjustment. The SEPA is broken down by service.
26. "SEPA Adjustment" means a document, acceptable to DHS, that may be presented and
executed in hard copy, or electronically in eXPRS, and that amends the SEPA, with respect to
one or more services, to reflect the new maximum amount of financial assistance that DHS will
provide under this Agreement through eXPRS for the specified service as well as any new or
modified special performance or other requirements.
27. "SEPA Pass Phrase/PassCode" or "SEPA Pass Phrase" means a code used by eXPRS to
verify the identity of the individual accepting the SEPA Adjustment on behalf of the County.
28. "SPD Funding Allocation Coordinator" means the SPD staff person assigned to serve as the
liaison with County for DD contracts implementation, funding and review under this Agreement.
134273 Deschutes County Approved 6/13/2011 6
DHS CFAA
29. "SPD Regional Coordinator" means the SPD staff person assigned to be the primary liaison
with County for DD services under this Agreement.
30. "State Operated Community Program" or "SOCP" means 24 -Hour Residential Services for
individuals with DD, as defined in OAR Chapter 411, Division 325, provided directly by DHS, as
opposed to being financed by DHS under an Intergovernmental Agreement with County or
purchased by DHS from a service provider.
31. "Underexpenditure" means money disbursed by DHS under this Agreement that remains
unexpended at Agreement termination or expiration, other than money County is permitted to
retain and expend in the future under section 3.b of Exhibit C
134273 Deschutes County Approved 6/13/2011
DHS CFAA
2011-2013 INTERGOVERNMENTAL AGREEMENT
FOR THE FINANCING OF COMMUNITY
DEVELOPMENTAL DISABILITY SERVICES
EXHIBIT B
FINANCIAL TERMS AND CONDITIONS
Funding for this Agreement will be awarded through eXPRS in a Service Element Prior
Authorization (SEPA). Upon acceptance of the SEPA, County is agreeing to provide the services
as described in the appropriate federal regulations, Oregon Revised Statutes, Oregon
Administrative Rules, Service Element Standards and Procedures and any attached Special
Conditions.
134273 Deschutes County Approved 6/13/2011 8
DHS CFAA
2011-2013 INTERGOVERNMENTAL AGREEMENT
FOR THE FINANCING OF COMMUNITY
DEVELOPMENTAL DISABILITY SERVICES
EXHIBIT C
SPECIAL TERMS AND CONDITIONS
1. County Authorization of Client Services
a. County certifies the validity of the rate and client placement by:
(i) Submitting an approved budget to DHS prior to the origination of the Client Prior
Authorization.
(ii) Upon DHS's confirmation of an approved rate, establishing a Client Prior
Authorization for the start date equal to the date the individual was placed in
service and end date equal to the last day of the biennium, unless an earlier end
date is known.
(iii) The Client Prior Authorization is established for the Provider that has agreed to
the placement, start and end dates and rate of the individual.
b. County may establish a Client Prior Authorization only if placement for services are
within the current Policies, OARs and Service Element Standards and Procedures.
134273 Deschutes County Approved 6/13/201 I 9
DHS CFAA
2011-2013 INTERGOVERNMENTAL AGREEMENT
FOR THE FINANCING OF COMMUNITY
DEVELOPMENTAL DISABILITY SERVICES
EXHIBIT D
GENERAL TERMS AND CONDITIONS
1. Disbursement and Recovery of Financial Assistance.
a. Disbursement Generally. Subject to the conditions precedent set forth below, DHS shall
disburse the financial assistance described in the Service Element Prior Authorization to
County in accordance with the procedures set forth below and, as applicable, in the Service
Element Standards and Procedures. Disbursement procedures may vary by service.
(1) Disbursements Remain Subject to Recovery. All disbursements of financial
assistance under this Agreement remain subject to recovery from County, in
accordance with Section 1.c, as an Underexpenditure, Overexpenditure or
Misexpenditure.
b. Conditions Precedent to Disbursement. DHS's obligation to disburse financial assistance to
County under this Agreement is subject to satisfaction, with respect to each disbursement, of
each of the following conditions precedent:
(1) No County default as described in Section 6 of Exhibit D has occurred.
(2) County's representations and warranties set forth in Section 4 of Exhibit D are true and
correct on the date of disbursement with the same effect as though made on the date of
disbursement.
c. Recovery of Financial Assistance.
(1)
Notice of Underexpenditure, Overexpenditure or Misexpenditure. If DHS believes
there has been an Underexpenditure or Overexpenditure (as defined in Exhibit A) of
moneys disbursed under this Agreement, DHS shall provide County with written notice
thereof and DHS and County shall engage in the process described in Section 1.c.3.
below. If DHS believes there has been a Misexpenditure (as defined in Exhibit A) of
moneys disbursed to County under this Agreement, DHS shall provide County with
written notice thereof and DHS and County shall engage in the process described in
Section 1 .c.(3) below.
(2) Recovery of Underexpenditure or Overexpenditure.
(a)
County's Response. County shall have 90 calendar days from the effective date
of the notice of Underexpenditure or Overexpenditure to pay the DHS in full or
notify DHS that it wishes to engage in the appeals process set forth in Section
1.c.(3)(b) below. if County fails to respond within that 90 day time period,
County shall promptly pay the noticed Underexpenditure or Overexpenditure.
(b) Appeals Process. If County notifies DHS that it wishes to engage in the appeals
process, County and DHS shall engage in non-binding discussions to give the
County an opportunity to present reasons why it believes that there is no
Underexpenditure or Overexpenditure, or that the amount of the
Underexpenditure or Overexpenditure is different than the amount identified by
134273 Deschutes County Approved 6/13/2011 10
DHS CFAA
(3)
DHS, and to give DHS the opportunity to reconsider its notice. County and DHS
may negotiate an appropriate apportionment of responsibility for the repayment
of an Underexpenditure or Overexpenditure. At County request, DHS will meet
and negotiate with County in good faith concerning appropriate apportionment of
responsibility for repayment of an Underexpenditure or Overexpenditure. In
determining an appropriate apportionment of responsibility, County and DHS
may consider any relevant factors. An example of a relevant factor is the extent
to which either party contributed to an interpretation of a statute, regulation or
rule prior to the expenditure that was officially reinterpreted after the
expenditure. If DHS and County reach agreement on the amount owed to the
DHS, County shall promptly repay that amount to DHS by issuing payment to
DHS or by directing DHS to withhold future payments pursuant to Section
1.c.(3)(c) below. If DHS and County continue to disagree as to whether there has
been an Underexpenditure or Overexpenditure or as to the amount owed, the
parties may agree to consider further appropriate dispute resolution processes,
including, subject to Department of Justice and County Counsel approval,
arbitration.
(c) Recovery From Future Payments. To the extent that DHS is entitled to recover
an Underexpenditure or Overexpenditure pursuant to Section 1.c.(2), DHS may
recover the Underexpenditure or Overexpenditure by offsetting the amount
thereof against future amounts owed to County by DHS, including, but not
limited to, any amount owed to County by DHS under any other contract or
agreement between County and DHS, present or future. DHS shall provide
County written notice of its intent to recover the amount of the Underexpenditure
or Overexpenditure from amounts owed County by DHS as set forth in this
Section, and shall identify the amounts owed by DHS which DHS intends to
offset, (including the contracts or agreements, if any, under which the amounts
owed arose and from those DHS wishes to deduct payments from). County shall
then have 14 calendar days from the date of DHS's notice in which to request the
deduction be made from other amounts owed to County by DHS and identified
by County. DHS shall comply with County's request for alternate offset. In the
event that DHS and County are unable to agree on which specific amounts, owed
to County by DHS, DHS may offset in order to recover the amount of the
Underexpenditure or Overexpenditure, then DHS may select the particular
contracts or agreements between DHS and County and amounts from which it
will recover the amount of the Underexpenditure or Overexpenditure, after
providing notice to the County and within the following limitations: DHS shall
first look to amounts owed to County (but unpaid) under this Agreement. If that
amount is insufficient, then DHS may look to any other amounts currently owing
or owed in the future to County by DHS. In no case, without the prior consent of
County, shall DHS deduct from any one payment due County under the contract
or agreement from which DHS is offsetting funds an amount in excess of twenty-
five percent (25%) of that payment. DHS may look to as many future payments
as necessary in order to fully recover the amount of the Underexpenditure or
Overexpenditure.
Recovery of Misexpenditure.
(a) County's Response. From the effective date of the notice of Misexpenditure,
County shall have the lesser of (1) 60 calendar days, or (2) if a Misexpenditure
relates to a federal government request for reimbursement, 30 calendar days
fewer than the number of days (if any) the DHS has to appeal a final written
decision from the federal government, to either:
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i. Make a payment to DHS in the full amount of the noticed Misexpenditure
identified by DHS; or
ii. Notify DHS that County wishes to repay the amount of the noticed
Misexpenditure from future payments pursuant to Section 1.c.(3)(c) below;
or
Notify DHS that it wishes to engage in the applicable appeal process set
forth in Section 1.c.(3)(b) below.
If County fails to respond within the time required by this Section, DHS may
recover the amount of the noticed Misexpenditure from future payments as set
forth in Section 1.c.(3)(c) below.
(b) Appeal Process. if County notifies DHS that it wishes to engage in an appeal
process with respect to a noticed Misexpenditure, the parties shall comply with
the following procedures, as applicable:
Appeal from DHS -Identified Misexpenditure. If DHS's notice of
Misexpenditure is based on a Misexpenditure solely of the type described
in Section 1 8(b) or (c) of Exhibit A, County and DHS shall engage in the
process described in this Section to resolve a dispute regarding the noticed
Misexpenditure. First, County and DHS shall engage in non-binding
discussions to give the County an opportunity to present reasons why it
believes that there is, in fact, no Misexpenditure or that the amount of the
Misexpenditure is different than the amount identified by the DHS, and to
give DHS the opportunity to reconsider its notice. County and DHS may
negotiate an appropriate apportionment of responsibility for the repayment
of a Misexpenditure. At County request, DHS will meet and negotiate with
County in good faith concerning appropriate apportionment of
responsibility for repayment of a Misexpenditure. In determining an
appropriate apportionment of responsibility, County and DHS may
consider any relevant factors. An example of a relevant factor is the extent
to which either party contributed to an interpretation of a statute, regulation
or rule prior to the expenditure that was officially reinterpreted after the
expenditure. If DHS and County reach agreement on the amount owed to
DHS County shall promptly repay that amount to DHS by issuing payment
to DHS or by directing DHS to withhold future payments pursuant to
Section 1.c.(3)(c) below. If DHS and County continue to disagree as to
whether there has been a Misexpenditure or as to the amount owed, the
parties may agree to consider further appropriate dispute resolution
processes, including, subject to Department of Justice and County Counsel
approval, arbitration.
ii. Appeal from Federal -Identified Misexpenditure.
A. If DHS's notice of Misexpenditure is based on a Misexpenditure of
the type described in Section 18(a) of Exhibit A and the relevant
federal agency provides a process either by statute or administrative
rule to appeal the determination of improper use of federal funds, the
notice of disallowance or other federal identification of improper use
of funds, and if the disallowance is not based on a federal or state
court judgment founded in allegations of Medicaid fraud or abuse,
then County may, prior to 30 days prior to the applicable federal
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appeals deadline, request that DHS appeal the determination of
improper use, notice of disallowance or other federal identification
of improper use of funds in accordance with the process established
or adopted by the federal agency. If County so requests that DHS
appeal the determination of improper use of federal funds, federal
notice of disallowance or other federal identification of improper use
of funds, the amount in controversy shall, at the option of County, be
retained by the County or returned to DHS pending the final federal
decision resulting from the initial appeal. If the County does request,
prior to the deadline set forth above, that DHS appeal, DHS shall
appeal the determination of improper use, notice of disallowance or
other federal identification of improper use of funds in accordance
with the established process and shall pursue the appeal until a
decision is issued by the Departmental Grant Appeals Board of the
Department of Health and Human Services (the "Grant Appeals
Board") pursuant to the process for appeal set forth in 45 C.F.R.
Subtitle A, Part 16, or an equivalent decision is issued under the
appeal process established or adopted by the federal agency. County
and DI -IS shall cooperate with each other in pursuing the appeal. If
the Grant Appeals Board or its equivalent denies the appeal then
either County, DHS, or both may, in their discretion, pursue further
appeals. Regardless of any further appeals, within 90 days of the
date the federal decision resulting from the initial appeal is final,
County shall repay to DHS the amount of the noticed
Misexpenditure (reduced, if at all, as a result of the appeal) by
issuing payment to DHS or by directing DHS to withhold future
payments pursuant to Section I .c.(3)(c). below. To the extent that
County retained any of the amount in controversy while the appeal
was pending, the County shall pay to DHS the interest, if any,
charged by the federal government on such amount.
B. If the relevant federal agency does not provide a process either by
statute or administrative rule to appeal the determination of improper
use of federal funds, the notice of disallowance or other federal
identification of improper use of funds or County does not request
that DHS pursue an appeal 30 days prior to the applicable federal
appeals deadline, and if DHS does not appeal, then within 90 days of
the date the federal determination of improper use of federal funds,
the federal notice of disallowance or other federal identification of
improper use of funds is final County shall repay to DHS the amount
of the noticed Misexpenditure by issuing a payment to DHS or by
directing DHS to withhold future payments pursuant to Section
1.c.(3)(c) below.
C. If County does not request that DHS pursue an appeal of the
determination of improper use of federal funds, the notice of
disallowance or other federal identification of improper use of funds,
prior to 30 days prior to the applicable federal appeals deadline but
DHS nevertheless appeals, County shall repay to DHS the amount of
the noticed Misexpenditure (reduced, if at all, as a result of the
appeal), within 90 days of the date the federal decision resulting
from the appeal is final, by issuing payment to DHS or by directing
DHS to withhold future payments pursuant to Section 1.c.(3)(c)
below.
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D. Notwithstanding Section I c.(3), if the
Misexpenditure was expressly authorized by a DHS rule or a DHS
writing that applied when the expenditure was made, but was
prohibited by federal statutes or regulations that applied when the
expenditure was made, County will not be responsible for repaying
the amount of the misexpenditure to DHS, provided that:
(i)
Where post -expenditure official reinterpretation of federal
statutes or regulations results in a Misexpenditure, County and
DHS will meet and negotiate in good faith an appropriate
apportionment of responsibility between them for repayment
of the Misexpenditure.
(ii) For purposes of this Section, a DHS writing must interpret this
Agreement or a DHS rule and be signed by the Director of
DHS or by one of the following DHS officers concerning
services in the category where the officers are listed:
Developmental Disability Services:
Assistant Director for Seniors and People with Disabilities
Deputy Assistant Director for Seniors and People with
Disabilities
Office Administrators for the Assistant or Deputy Assistant
Director for Seniors and People with Disabilities.
DHS shall designate alternate officers in the event the offices
designated in the previous sentence are abolished. Upon
County request, DHS shall notify County of the names of
individual officers with the above titles. DHS shall send DHS
writings described in this paragraph to County by mail and
email, and to CMHP directors by email.
(iii) The writing must be in response to a request from County for
expenditure authorization, or a statement intended to provide
official guidance to County or counties generally for making
expenditures under this Agreement. The writing must not be
contrary to this Agreement or contrary to law or other
applicable authority that is clearly established at the time of the
writing.
(iv) If the DHS writing is in response to a request from
County for expenditure authorization, the request must be in
writing and signed by the director of a County department with
authority to make such a request or by the County Counsel. It
must identify the supporting data, provisions of this Agreement
and provisions of applicable law relevant to determining if the
expenditure should be authorized.
(v) A DHS writing expires on the date stated in the writing, or if
no expiration date is stated, six years from the date of the
writing. An expired DHS writing continues to apply to County
expenditures that were made in compliance with the writing
and during the term of the writing.
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(vi) DHS may revoke or revise DHS writing at any time if it
determines in its sole discretion that the writing allowed
expenditure in violation of this Agreement or law or any other
applicable authority.
(vii) The DHS rule does not authorize an expenditure that this
Agreement prohibits.
(c) Recovery From Future Payments. To the extent that DHS is entitled to recover
a Misexpenditure pursuant to Section 1.c.(3)(b)i. and ii. DHS may recover the
Misexpenditure by offsetting the amount thereof against future amounts owed to
County by DHS, including, but not limited to, any amount owed to County by
DHS under this Agreement or any amount owed to County by DHS under any
other contract or agreement between County and DHS, present or future. DHS
shall provide County written notice of its intent to recover the amount of the
Misexpenditure from amounts owed County by DHS as set forth in this Section,
and shall identify the amounts owed by DHS which DHS intends to offset
(including the contracts or agreements, if any, under which the amounts owed
arose and from those DHS wishes to deduct payments from). County shall then
have 14 calendar days from the date of DHS's notice in which to request the
deduction be made from other amounts owed to County by DHS and identified
by County. DHS shall comply with County's request for alternate offset. In the
event that DHS and County are unable to agree on which specific amounts, owed
to County by DHS, DHS may offset in order to recover the amount of the
Misexpenditure, then DHS may select the particular contracts or agreements
between DHS and County and amounts from which it will recover the amount of
the Misexpenditure, after providing notice to the County, and within the
following limitations: DHS shall first look to amounts owed to County (but
unpaid) under this Agreement. If that amount is insufficient, then DHS may look
to any other amounts currently owing or owed in the future to County by DHS.
In no case, without the prior consent of County, shall DHS deduct from any one
payment due County under the contract or agreement from which DHS is
offsetting funds an amount in excess of twenty-five percent (25%) of that
payment. DHS may look to as many future payments as necessary in order to
fully recover the amount of the Misexpenditure.
(4) Additional Provisions related to parties rights/obligations with respect to
Underexpenditures, Overexpenditures and Misexpenditures.
a. County shall cooperate with DHS in the Agreement Settlement process.
b. DHS's right to recover Underexpenditures, Overexpenditures and
Misexpenditures from County under this Agreement is not subject to or
conditioned on County's recovery of any money from any other entity.
c. If the exercise of DHS's right to offset under this provision requires the County
to complete a re -budgeting process, nothing in this provision shall be construed
to prevent the County from fully complying with its budgeting procedures and
obligations, or from implementing decisions resulting from those procedures and
obligations.
d. Nothing in this provision shall be construed as a requirement or agreement by the
County to negotiate and execute any future contract with DHS.
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e. Nothing in this Section shall be construed as a waiver by either party of any
process or remedy that might otherwise be available.
2. Use of Financial Assistance. County shall use the financial assistance disbursed to County under
this Agreement solely to cover actual Allowable Costs reasonably and necessarily incurred to
deliver services during the term of this Agreement.
3. Reserved.
Appointment of County Financial Assistance Administrator. County shall, by a duly adopted
order or resolution of the County Board of Commissioners or County Court ("Authorizing
Resolution"), appoint a County officer to administer this Agreement ("County Financial Assistance
Administrator"). The Authorizing Resolution shall authorize the County Financial Assistance
Administrator to amend the Service Element Prior Authorization, on behalf of County, by execution
and delivery of amendments to this Agreement in the name of County in hard copy, electronically,
or, with respect to the Service Element Prior Authorization only, through electronic acceptance of
SEPA Adjustments in eXPRS. The Authorizing Resolution shall also authorize the County
Financial Assistance Administrator to enable, on behalf of County, the disbursement of financial
assistance under this Agreement that is described in the Service Element Prior Authorization,
through submission and modification of CPAs and PPAs, either electronically through eXPRS or
by submission of hard copy documents to DHS, and to authorize Providers, through submission of
PPAs, to submit Disbursement Claims on behalf of County, either electronically through eXPRS or
by submission of hard copy documents to DHS. The Authorizing Resolution may authorize the
County Financial Assistance Administrator to authorize others to take one or more of the foregoing
actions on behalf of County. Unless the Authorizing Resolution clearly vests such authority in the
County Financial Assistance Administrator, DHS will not treat the County Financial Assistance
Administrator as authorized to amend, on behalf of County, any part of this Agreement other than
the Service Element Prior Authorization, absent further authorization from the County Board of
Commissioners or County Court. County shall furnish DHS with a copy of the Authorizing
Resolution. County shall immediately notify DHS if the County Board of Commissioners or
County Court revokes or alters the Authorizing Resolution. If County chooses to name a new
County Financial Assistance Administrator, County shall adopt a new Authorizing Resolution and
promptly furnish a copy thereof to DHS.
5. eXPRS Access.
a. Effect of Failure to Satisfy Conditions for Access to eXPRS. If County fails to satisfy the
conditions for access to eXPRS as described in this Section, County will not be able to view
information in eXPRS electronically and will be required to receive, execute and deliver all
SEPA Adjustments, receive, submit, and modify all PPAs and CPAs, and submit all
Disbursement Claims, in hard copy form. If a Provider fails to satisfy the conditions for
access to eXPRS as described in this Section, the Provider will not be able to view
information in eXPRS electronically and will be required to submit CPAs and Disbursement
Claims, to the extent the Provider is authorized to submit CPAs and Disbursement Claims, to
DHS in hard copy form.
b. Designation of Direct Contract Chief Security Officer.
DHS will enable an individual or individuals designated by the County Financial Assistance
Administrator to access eXPRS after the County Financial Assistance Administrator
designates to DHS in writing on a form provided by DHS the name of the individual or
individuals County has authorized to perform the duties of the security role currently titled
Direct Contract Chief Security Officer (DCCSO) or as such role may be renamed by DHS.
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The individual designated as the DCCSO is responsible to ensure that the County is in
compliance with OAR 125-800-0005 through 0020 and DHS's security policies DHS -090-
001, 090-002, 090-003, 090-004, 090-005, and 090-009. The DCCSO shall assign, maintain
and, if necessary, revoke all eXPRS user account securities in eXPRS for County staff and
providers as needed. If the Authorizing Resolution does not authorize the County Financial
Assistance Administrator to delegate his or her authority under the Authorizing Resolution,
the County Financial Assistance Administrator may only designate himself or herself as the
DCCSO and act as the DCCSO on behalf of the County. Promptly after receipt of the
foregoing notice, DHS will send the DCCSO a userid for accessing eXPRS. If County wishes
to designate a substitute DCCSO, the County Financial Assistance Administrator may do so
by subsequent written notice to DHS. DHS will act upon all subsequent notices in the same
manner as the initial notice.
(1)
After receipt of the userid, the DCCSO may log on to eXPRS and assign the necessary
roles to County staff and Providers to view the SEPA and SEPA Adjustments made
available by DHS for County acceptance in eXPRS and, through use of the SEPA Pass
Phrase created in eXPRS by the County staff or Provider, accept those SEPA
Adjustments, in accordance with the terms and conditions of this Agreement, on behalf
of County. Use of the SEPA Pass Phrase to accept electronically a SEPA Adjustment
will be deemed for all purposes to constitute a County "signature" on the SEPA
Adjustment and will have the same effect as a County signature on a hard copy SEPA
Adjustment. A SEPA Adjustment has the effect of amending this Agreement, as
described in section 6. of Exhibit C.
(2) After receipt of the userid a DCCSO may log on to eXPRS and authorize individuals to
view the SEPA, the CPAs, the PPAs and the Disbursement Claims previously
submitted on behalf of County, modify CPAs, PPAs and Disbursement Claims, and
submit new CPAs, PPAs and Disbursement Claims, by creating additional userids or
modifying the authority of userids previously created. Only individuals approved in
writing by the DCCSO on a form provided by or approved by DHS may be granted
access to eXPRS by the DCCSO. Through use of userids created by the DCCSO, the
user will be able to view the SEPA, the CPAs, the PPAs and the Disbursement Claims
previously submitted on behalf of County, modify CPAs, PPAs and Disbursement
Claims, and submit new CPAs, PPAs and Disbursement Claims to the extent
authorized by the DCCSO. Use of a userid created by the DCCSO to logon to eXPRS
and submit or modify a CPA, PPA or Disbursement Claim shall, for purposes of this
Agreement, be considered an authorized County action in the administration of this
Agreement.
c. Protection of userids, passwords and SEPA Pass Phrases. The DCCSO is solely
responsible for protecting the confidentiality of and regulating the use of eXPRS userids and
passwords furnished to or created by the DCCSO in accordance with the terms and conditions
of this Agreement. County shall keep all eXPRS userids, passwords and SEPA Pass Phrases
secure by taking security measures to prevent unauthorized access to, or disclosure, loss,
compromise, or use of, the eXPRS userids, passwords, and SEPA Pass Phrase. The security
measures must be equivalent to or stricter than the security measures adopted by DHS in
Policy Number AS -090-002, version 1.0, Effective November 1, 2003, as it may be revised
from time to time.
d. Revocation of userids and SEPA Pass Phrase. Revocation of an eXPRS userid will disable
access to eXPRS through use of that userid. Revocation of a SEPA Pass Phrase will disable
the use of that SEPA Pass Phrase to accept SEPA Adjustments on behalf of County. The
revocation of a userid or a SEPA Pass Phrase does not alter the rights and duties of DHS and
County under this Agreement with respect to SEPA Adjustments accepted through use of the
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SEPA Pass Phrase prior to revocation of the SEPA Pass Phrase, or with respect to any
Agreement administration actions taken through use of the userid, including but not limited to
the creation of additional userids by the DCCSO or the submission of CPAs, PPAs and
Disbursement Claims, prior to revocation of the userid. All userids and SEPA Pass Phrases
are subject to revocation as follows:
(1)
DHS may temporarily revoke a userid or SEPA Pass Phrase if DHS determines that
revocation is reasonably necessary for technical or security reasons. If DHS revokes a
SEPA Pass Phrase under this Section , DHS will promptly thereafter request a new
SEPA Pass Phrase from the DCCSO whose SEPA Pass Phrase was revoked, to
reestablish that the DCCSO's ability to perform the duties of the DCCSO.
(2) DHS may revoke a userid or SEPA Pass Phrase if it determines that (a) the userid or
SEPA Pass Phrase was not properly issued or created or was obtained by fraud, (b) the
userid or SEPA Pass Phrase has or may have been lost or its security otherwise
compromised, (c) the Authorizing Resolution has been revoked or modified in such a
way that the authorizations originally conferred by the Authorizing Resolution have
been changed in a material way, or (d) County is in default under this Agreement. If
DHS revoke's a userid or SEPA Pass Phrase under this Section DHS will notify
County promptly thereafter.
(3)
DHS may, without notice to County, revoke all userids and SEPA Pass Phrases upon
termination or expiration of this Agreement.
(4) DHS will revoke a userid or SEPA Pass Phrase upon the written request of the County
Financial Assistance Administrator or other individual that DHS reasonably believes is
authorized to request revocation on behalf of County. County shall immediately
request revocation of a userid or SEPA Pass Phrase if County suspects or discovers that
the userid or SEPA Pass Phrase has been or is in danger of being lost, disclosed,
compromised or subjected to unauthorized use. DHS shall revoke the userid or SEPA
Pass Phrase as soon as reasonably practical after receipt of County's request.
DHS may, decide to modify the requirements for electronic access to eXPRS, the
method by which it implements SEPA Pass Phrases, or both. If DHS decides to modify
the eXPRS access requirements or SEPA Pass Phrase method, it shall, prior to
implementing the new requirements or method, offer to amend this Agreement to
reflect the new requirements or method. If County declines to amend the Agreement to
reflect the new eXPRS access requirements or SEPA Pass Phrase method, DHS may,
by and effective upon written notice to County, revoke the userids or SEPA Pass
Phrases, or both of the DCCSO and the userids or SEPA Pass Phrases assigned by the
DCCSO, through which County or County provider accesses eXPRS or accepts SEPA
Adjustments or, by and effective upon written notice to a County Provider, revoke the
userids through which that Provider accesses eXPRS. After revocation of County's
eXPRS userids under this Section , County will not be able to view information in
eXPRS electronically and will be required to receive, execute and deliver all SEPA
Adjustments, and receive, submit, and modify all PPAs, CPAs, and Disbursement
Claims, in hard copy form. After revocation of County's SEPA Pass Phrases under this
Section, County will be required to receive, execute and deliver all SEPA Adjustments
in hard copy form. After revocation of a County Provider's eXPRS userids under this
Section, the Provider will not be able to view information in EXPRS electronically and
will be required to submit all CPAs and Disbursement Claims, to the extent Provider is
authorized to submit CPAs or Disbursement Claims, to DHS in hard copy form.
(5)
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f. DHS as Business Associate. If County is or, during the term of this Agreement, becomes a
Covered Entity, as that phrase is defined in 45 CFR 164.501, with respect to any service, then
County shall promptly notify DHS in writing of its status as a Covered Entity and County and
DHS shall comply with the provisions of OAR 125, Division 55 as if County were "Agency"
and DHS were "Business Associate" under those rules.
6. Amendments Proposed by DHS. County shall review all pending amendments and Service
Element Prior Authorizations prepared and presented to County by DHS either by email or the
eXPRS system and act within 60 days of County's receipt. If County chooses to accept the
amendment or Service Element Prior Authorization, funding will be adjusted accordingly; if
County chooses to reject the amendment or Service Element Prior Authorization, County must
submit an email detailing the reason for the rejection to County's assigned Fund Allocation
Coordinator.
7. Alternative Formats and Translation of Written Materials, Interpreter Services. In
connection with the delivery of services, County shall:
a. Make available to a Client, without charge to the Client, upon the Client's or DHS's request,
any and all written materials in alternate, if appropriate, formats as required by DHS's
administrative rules or by DHS's written policies made available to County.
b. Make available to a Client, without charge to the Client, upon the Client's or DHS's request,
any and all written materials in the prevalent non-English languages in the area served by
County's CMHP.
c. Make available to a Client, without charge to the Client, upon the Client's or DHS's request,
oral interpretation services in all non-English languages in the area served by County's
CMHP.
d. Make available to Clients with hearing impairment, without charge to the Client, upon the
Client's or DHS's request, sign language interpretation services and telephone
communications access services.
For purposes of the foregoing, "written materials" includes, without limitation, all written materials
created or delivered in connection with the services related to this Agreement.
8. Reporting Requirements. County shall prepare and furnish the following information to DHS
when that service is delivered:
a. Client, service and financial information as specified in the Service Element Standards and
Procedures.
b. All additional information and reports that DHS reasonably requests.
9. Operation of CMHP. County shall operate or contract for the operation of a CMHP during the
term of this Agreement. If County uses funds provided under this Agreement for a particular
service, County shall include that service in its CMHP from the date it begins using the funds for
that service until the earlier of (a) termination or expiration of this Agreement, (b) termination by
DHS of DHS's obligation to provide financial assistance for that service in accordance with Section
8 of this Exhibit D or (c) termination by the County, in accordance with Section 8 of Exhibit D, of
County's obligation to include in its CMHP a Program Area that includes that service.
10. DHS Reports. To the extent resources are available to DHS to prepare and deliver the information,
DHS shall, during the term of this Agreement, provide County with summary reports from CPMS
data and other Client data reported to DHS under this Agreement; and
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11. Technical Assistance. During the term of this Agreement, DHS shall provide technical assistance
to County in the delivery of services to the extent resources are available to DHS for this purpose.
12. Payment of Certain Expenses. If DHS requests that an employee of County or a citizen of
County attend DHS training or a DHS conference or business meeting and County has obligated
itself to reimburse the individual for travel expenses incurred by the individual in attending the
training or conference, DHS may pay those travel expenses on behalf of County but only at the
rates and in accordance with the reimbursement procedures set forth in the Oregon Accounting
Manual (www.oregon.gov/DAS/SCD/SARS/policies/oam/ 10.35.00.PR.pdf?ga=t) as of the
date the expense was incurred and only to the extent that DHS determines funds are available for
such reimbursement.
13. Effect of Amendments Reducing Financial Assistance. If County and DHS amend this
Agreement to reduce the amount of financial assistance awarded for a particular service, County is
not required by this Agreement to utilize other County funds to replace the funds no longer received
under this Agreement as a result of the amendment and County may, from and after the date of the
amendment, reduce the quantity of that service included in its CMHP commensurate with the
amount of the reduction in financial assistance awarded for that service. Nothing in the preceding
sentence shall affect County's obligations under this Agreement with respect to financial assistance
actually disbursed by DHS under this Agreement or with respect to services actually delivered.
14. Resolution of Disputes over Additional Financial Assistance Owed County After Termination
or Expiration. If, after termination or expiration of this Agreement, County believes that DHS
disbursements of financial assistance under this Agreement for a particular service are less than the
amount of financial assistance that DHS is obligated to provide to County under this Agreement for
that service, as determined in accordance with the applicable financial assistance calculation
methodology, County shall provide DHS with written notice thereof. DHS shall have 90 calendar
days from the effective date of County's notice to pay County in full or notify County that it wishes
to engage in a dispute resolution process. If DHS notifies County that it wishes to engage in a
dispute resolution process, County and DHS's Assistant Administrator shall engage in non-binding
discussion to give DHS an opportunity to present reasons why it believes that it does not owe
County any additional financial assistance or that the amount owed is different than the amount
identified by County in its notices, and to give County the opportunity to reconsider its notice. if
DHS and County reach agreement on the additional amount owed to County, DHS shall promptly
pay that amount to County. if DHS and County continue to disagree as to the amount owed, the
parties may agree to consider further appropriate dispute resolution processes, including, subject to
Department of Justice and County Counsel approval, binding arbitration. Nothing in this Section
shall preclude the County from raising underpayment concerns at any time prior to termination or
expiration of this Agreement under Section 15. below.
15. Alternative Dispute Resolution. The parties should attempt in good faith to resolve any
dispute arising out of this agreement. This may be done at any management level,
including at a level higher than persons directly responsible for administration of the
agreement. In addition, the parties may agree to utilize a jointly selected mediator or
arbitrator (for non-binding arbitration) to resolve the dispute short of litigation.
16. Tax -Exempt Status. Except for specific properties identified by DHS, Providers of Residential
Facilities (DD 50) services and Children's Residential Facilities (DD 142) services occupying
housing developed with financing authorized by DHS and obtained through the Oregon Housing
and Community Services Department must have 501(C)(3) tax exempt status from the federal
Internal Revenue Service (IRS). A copy of the IRS letter of determination of 501(C)(3) status, or
equivalent IRS interim determination, must be submitted to DHS's Seniors and People with
Disabilities (SPD) Housing Development Section upon request.
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17. Nothing in this Agreement shall cause or require County or DHS to act in violation of state or
federal constitutions, statutes, regulations or rules. The parties intend this limitation to apply in
addition to any other limitation in this Agreement, including limitations in Section 1 of this
Exhibit C.
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2011-2013 INTERGOVERNMENTAL AGREEMENT
FOR THE FINANCING OF COMMUNITY DEVELOPMENTAL DISABILITY SERVICES
EXHIBIT E
STANDARD TERMS AND CONDITIONS
1. Governing Law, Consent to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon without regard to principles
of conflicts of law. Any claim, action, suit or proceeding (collectively, "Claim") between
the parties that arise from or relate to this Agreement shall be brought and conducted
solely and exclusively within a circuit court in the State of Oregon of proper jurisdiction.
THE PARTIES, BY EXECUTION OF THIS AGREEMENT, HEREBY CONSENT TO
THE IN PERSONAM JURISDICTION OF SAID COURTS. Except as provided in this
section, neither party waives any form of defense or immunity, whether sovereign
immunity, governmental immunity, immunity based on the eleventh amendment to the
Constitution of the United States or otherwise, from any Claim or from the jurisdiction of
any court. The parties acknowledge that this is a binding and enforceable Agreement and,
to the extent permitted by law, expressly waive any defense alleging that either party
does not have the right to seek judicial enforcement of this Agreement.
2. Compliance with Law. Both parties shall comply with laws, regulations and executive
orders to which they are subject and which are applicable to the Agreement or to the
delivery of services. Without limiting the generality of the foregoing, Both parties
expressly agree to comply with the following laws, regulations and executive orders to
the extent they are applicable to the Agreement: (a) all applicable requirements of state
civil rights and rehabilitation statutes, rules and regulations;(b) all state laws requiring
reporting of Client abuse; (c) ORS 659A.400 to 659A.409, ORS 659A.145 and all
regulations and administrative rules established pursuant to those laws in the
construction, remodeling, maintenance and operation of any structures and facilities, and
in the conduct of all programs, services and training associated with the delivery of
services. These laws, regulations and executive orders are incorporated by reference
herein to the extent that they are applicable to the Agreement and required by law to be
so incorporated. All employers, including County and DHS that employ subject workers
who provide services in the State of Oregon shall comply with ORS 656.017 and provide
the required Workers' Compensation coverage, unless such employers are exempt under
ORS 656.126.
3. Independent Contractors. The parties agree and acknowledge that their relationship is
that of independent contracting parties and that County is not an officer, employee, or
agent of the State of Oregon as those terms are used in ORS 30.265 or otherwise.
4. Representations and Warranties.
a. County represents and warrants as follows:
(1) Organization and Authority. County is a political subdivision of the State of
Oregon duly organized and validly existing under the laws of the State of Oregon.
County has full power, authority and legal right to make this Agreement and to
incur and perform its obligations hereunder.
(2) Due Authorization. The making and performance by County of this Agreement
(a) have been duly authorized by all necessary action by County and (b) do not
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(3)
and will not violate any provision of any applicable law, rule, regulation, or order
of any court, regulatory commission, board, or other administrative agency or any
provision of County's charter or other organizational document and (c) do not and
will not result in the breach of, or constitute a default or require any consent under
any other agreement or instrument to which County is a party or by which County
may be bound or affected. No authorization, consent, license, approval of, filing
or registration with or notification to any governmental body or regulatory or
supervisory authority is required for the execution, delivery or performance by
County of this Agreement.
Binding Obligation. This Agreement has been duly executed and delivered by
County and constitutes a legal, valid and binding obligation of County,
enforceable in accordance with its terms subject to the laws of bankruptcy,
insolvency, or other similar laws affecting the enforcement of creditors' rights
generally.
(4) Services. To the extent services are performed by County, the delivery of each
service will comply with the terms and conditions of this Agreement and meet the
standards for such service as set forth herein, including but not limited to, any
terms, conditions, standards and requirements set forth in the Service Element
Standards and Procedures.
b. DHS represents and warrants as follows:
(1) Organization and Authority. DHS has full power, authority and legal right to
make this Agreement and to incur and perform its obligations hereunder.
(2) Due Authorization. The making and performance by DHS of this Agreement (a)
have been duly authorized by all necessary action by DHS and (b) do not and will
not violate any provision of any applicable law, rule, regulation, or order of any
court, regulatory commission, board, or other administrative agency and (c) do
not and will not result in the breach of, or constitute a default or require any
consent under any other agreement or instrument to which DHS is a party or by
which DHS may be bound or affected. No authorization, consent, license,
approval of, filing or registration with or notification to any governmental body or
regulatory or supervisory authority is required for the execution, delivery or
performance by DHS of this Agreement, other than approval by Department of
Justice if required by law.
Binding Obligation. This Agreement has been duly executed and delivered by
DHS and constitutes a legal, valid and binding obligation of DHS, enforceable in
accordance with its terms subject to the laws of bankruptcy, insolvency, or other
similar laws affecting the enforcement of creditors' rights generally.
c. Warranties Cumulative. The warranties set forth above are in addition to, and not in
lieu of, any other warranties provided.
5. Ownership of Intellectual Property.
a. Except as otherwise expressly provided herein, or as otherwise required by state or
federal law, DHS will not own the right, title and interest in any intellectual property
created or delivered by County or a Provider in connection with the services. With
respect to that portion of the intellectual property that the County owns, County
grants to DHS a perpetual, worldwide, non-exclusive, royalty -free and irrevocable
(3)
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license, subject to any provisions in the Agreement that restrict or prohibit
dissemination or disclosure of information, to (1) use, reproduce, prepare derivative
works based upon, distribute copies of, perform and display the intellectual property,
(2) authorize third parties to exercise the rights set forth in Section 5.a.(1) on DHS's
behalf, and (3) sublicense to third parties the rights set forth in Section 5.a.(1).
b. If state or federal law requires that DHS or County grant to the United States a license
to any intellectual property, or if state or federal law requires that DHS or the United
States own the intellectual property, then County shall execute such further
documents and instruments as DHS may reasonably request in order to make any
such grant or to assign ownership in the intellectual property to the United States or
DHS. To the extent that DHS becomes the owner of any intellectual property created
or delivered by County in connection with the services, DHS will grant a perpetual,
worldwide, non-exclusive, royalty -free and irrevocable license, subject to any
provisions in the Agreement that restrict or prohibit dissemination or disclosure of
information, to County to use, copy, distribute, display, build upon and improve the
intellectual property.
6. County Default. County shall be in default under this Agreement upon the occurrence
of any of the following events:
a.
County fails to perform, observe or discharge any of its covenants, agreements or
obligations set forth herein.
b. Any representation, warranty or statement made by County herein or in any
documents or reports made in connection herewith or relied upon by DHS to measure
the delivery of services, the use or expenditure of financial assistance or the
performance by County is untrue in any material respect when made;
c. County (1) applies for or consents to the appointment of, or taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or all of its property, (2) admits in
writing its inability, or is generally unable, to pay its debts as they become due, (3)
makes a general assignment for the benefit of its creditors, (4) is adjudicated a
bankrupt or insolvent, (5) commences a voluntary case under the Federal Bankruptcy
Code (as now or hereafter in effect), (6) files a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization, winding -up, or
composition or adjustment of debts, (7) fails to controvert in a timely and appropriate
manner, or acquiesces in writing to, any petition filed against it in an involuntary case
under the Bankruptcy Code, or (8) takes any action for the purpose of effecting any of
the foregoing; or
d. A proceeding or case is commenced, without the application or consent of County, in
any court of competent jurisdiction, seeking (1) the liquidation, dissolution or
winding -up, or the composition or readjustment of debts, of County, (2) the
appointment of a trustee, receiver, custodian, liquidator, or the like of County or of all
or any substantial part of its assets, or (3) similar relief in respect to County under any
law relating to bankruptcy, insolvency, reorganization, winding -up, or composition or
adjustment of debts, and such proceeding or case continues undismissed, or an order,
judgment, or decree approving or ordering any of the foregoing is entered and
continues unstayed and in effect for a period of sixty consecutive days, or an order for
relief against County is entered in an involuntary case under the Federal Bankruptcy
Code (as now or hereafter in effect).
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e. The delivery of any service fails to comply with the terms and conditions of this
Agreement or fails to meet the standards for service as set forth herein, including but
not limited to, any terms, condition, standards and requirements set forth in the
Service Element Standards and Procedures.
7. DHS Default. DHS shall be in default under this Agreement upon the occurrence of any of the
following events:
a. DHS fails to perform, observe or discharge any of its covenants, agreements, or obligations
set forth herein; or
b. Any representation, warranty or statement made by DHS herein or in any documents or
reports made in connection herewith or relied upon by County to measure performance by
DHS is untrue in any material respect when made.
8. Termination.
a. County Termination. County may terminate this Agreement in its entirety or may terminate
its obligation to include a particular Program Area in its CMHP:
(1) For its convenience, upon at least three calendar months advance written notice to
DHS, with the termination effective as of the first day of the month following the
notice period;
(2) Upon 45 days advance written notice to DHS, if County does not obtain funding,
appropriations and other expenditure authorizations from County's governing body,
federal, state or other sources sufficient to permit County to satisfy its performance
obligations under this Agreement, as determined by County in the reasonable exercise
of its administrative discretion.
(3)
Upon 30 days advance written notice to DHS, if DHS is in default under this
Agreement and such default remains uncured at the end of said 30 day period or such
longer period, if any, as County may specify in the notice; or
(4) Immediately upon written notice to DHS, if Oregon statutes or federal laws, regulations
or guidelines are modified, changed or interpreted by the Oregon Legislative
Assembly, the federal government or a court in such a way that County no longer has
the authority to meet its obligations under this Agreement.
b. DHS Termination. DHS may terminate this Agreement in its entirety or may terminate its
obligation to provide financial assistance under this Agreement for one or more particular
services described in the Service Element Prior Authorization:
(1) For its convenience, upon at least three calendar months advance written notice to
County, with the termination effective as of the first day of the month following the
notice period.
(2) Upon 45 days advance written notice to County, if DHS does not obtain funding,
appropriations and other expenditure authorizations from federal, state or other sources
sufficient to meet the payment obligations of DHS under this Agreement, as
determined by DHS in the reasonable exercise of its administrative discretion.
Notwithstanding the preceding sentence, DHS may terminate this Agreement in its
entirety or may terminate its obligation to provide financial assistance under this
Agreement for one or more particular services, immediately upon written notice to
County or at such other time as it may determine if action by the Oregon Legislative
Assembly or Emergency Board reduces DHS's legislative authorization for expenditure
of funds to such a degree that DHS will no longer have sufficient expenditure authority
134273 Deschutes Count Approved 6/13/2011 25
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(3)
to meet its payment obligations under this Agreement, as determined by DI -IS in the
reasonable exercise of its administrative discretion, and the effective date for such
reduction in expenditure authorization is less than 45 days from the date the action is
taken.
Immediately upon written notice to County if Oregon statutes or federal laws,
regulations or guidelines are modified, changed or interpreted by the Oregon
Legislative Assembly, the federal government or a court in such a way that the DHS no
longer has the authority to meet its obligations under this Agreement or no longer has
the authority to provide the financial assistance from the funding source it had planned
to use.
(4) Upon 30 days advance written notice to County, if County is in default under this
Agreement and such default remains uncured at the end of said 30 day period or such
longer period, if any, as DHS may specify in the notice.
Immediately upon written notice to County, if any license or certificate required by law
or regulation to be held by County to deliver a service described in the Service Element
Prior Authorization is for any reason denied, revoked, suspended, not renewed or
changed in such a way that County no longer meets requirements to deliver the service.
This termination right may only be exercised with respect to the particular service or
services impacted by loss of necessary licensure or certification.
(6) Immediately upon written notice to County, if DHS determines that County has
endangered or are endangering the health or safety of a Client or others.
c. DHS and County agree that this Agreement extends to September 1, 2013, but only for the
purpose of amendments to adjust the allocated budget for services performed, or not
performed, by County during the 2011-2013 biennium and prior to July 1, 2013. In no event
is the County authorized to provide any services under this Agreement, and County is not
required to provide any services under this Agreement, after June 30, 2013.
(5)
9. Effect of Termination.
a. Entire Agreement.
(1)
Upon termination of this Agreement in its entirety, DHS shall have no further
obligation to pay or disburse financial assistance to County under this Agreement,
whether or not DHS has paid or disbursed to County all financial assistance described
in the Service Element Prior Authorization, except (a) with respect to funds described
in the Service Element Prior Authorization, to the extent DHS's disbursement of
financial assistance for a particular service, the financial assistance for which is
calculated on a rate per unit of service or service capacity basis, is less than the
applicable rate multiplied by the number of applicable units of service or service
capacity of that type performed or made available from the effective date of this
Agreement through the termination date, (b) with respect to funds described in the
Financial Assistance Award, to the extent DHS's disbursement of financial assistance
for a particular service, the financial assistance for which is calculated on a cost
reimbursement basis, is less than the cumulative actual Allowable Costs reasonably and
necessarily incurred with respect to delivery of that service, from the effective date of
this Agreement through the termination date, and (c) with respect to funds described in
the Service Element Prior Authorization, to the extent of unpaid Disbursement Claims
submitted within 60 days after the date of termination of this Agreement with respect to
services performed after the effective date of this Agreement and prior to termination of
this Agreement.
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(2) Upon termination of this Agreement in its entirety, County shall have no further
obligation under this Agreement to operate a CMHP.
b. Individual Program Area or Service.
(1)
Upon termination of DHS's obligation to provide financial assistance under this
Agreement for a particular service, DHS shall have no further obligation to pay or
disburse any financial assistance to County under this Agreement for that service,
whether or not DHS has paid or disbursed to County all financial assistance described
in the Service Element Prior Authorization for that service except (a) with respect to
funds described in the Service Element Prior Authorization and if the financial
assistance for that service is calculated on a rate per unit of service or service capacity
basis, to the extent that DHS's prior disbursement of financial assistance for that
service is less than the applicable rate multiplied by the number of applicable units of
service or service capacity of that type performed or made available during the period
from the first day of the period for which the funds were awarded through the earlier of
the termination of the DHS's obligation to provide financial assistance for that service
or the last day of the period for which the funds were awarded, (b) with respect to funds
described in the Service Element Prior Authorization and if the financial assistance for
that service is calculated on a cost reimbursement basis, to the extent that DHS's prior
disbursement of financial assistance for that service is Tess than the cumulative actual
Allowable Costs reasonably and necessarily incurred by County with respect to
delivery of that service, during the period from the effective date of this Agreement
through the termination of DHS's obligation to provide financial assistance for that
service, and (c) with respect to funds described in the Service Element Prior
Authorization, to the extent of unpaid Disbursement Claims, submitted within 60 days
after the date of termination of DHS's obligation to provide financial assistance for that
service, with respect to services of that type performed during the period from the
effective date of this Agreement through the termination of DHS's obligation to
provide financial assistance for that service.
(2) Upon termination of DHS's obligation to provide financial assistance under this
Agreement for a particular service, County shall have no further obligation under this
Agreement to include that service in its CMHP.
(3) Upon termination of County's obligation to include a Program Area in its CMHP, DHS
shall have (a) no further obligation to pay or disburse financial assistance to County
under this Agreement for Local Administration (LA01) of services in that Program
Area whether or not DHS has paid or disbursed to County all financial assistance
described in the Service Element Prior Authorization for local administration of
services in that Program Area and (b) no further obligation to pay or disburse any
financial assistance to County under this Agreement for services in that Program Area,
whether or not DHS has paid or disbursed to County all financial assistance described
in the Service Element Prior Authorization for those services except (1) with respect to
funds described in the Service Element Prior Authorization, to the extent DHS's
disbursement of financial assistance for a particular service falling within that Program
Area, the financial assistance for which is calculated on a rate per unit of service or
service capacity basis, is less than the applicable rate multiplied by the number of
applicable units of service or service capacity of that type performed or made available
during the period from the effective date of this Agreement through the termination of
County's obligation to include the Program Area, in which that service falls, in
County's CMHP, (2) with respect to funds described in the Service Element Prior
Authorization, to the extent DHS's disbursement of financial assistance for a particular
service falling within that Program Area, the financial assistance for which is calculated
on a cost reimbursement basis, is less than the cumulative actual Allowable Costs
134273 Deschutes County Approved 6/13/2011 27
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reasonably and necessarily incurred by County with respect to delivery of that service,
during the period from the effective date of this Agreement through the termination of
County's obligation to include the Program Area, in which that service falls, in
County's CMHP, and (3) with respect to funds described in the Service Element Prior
Authorization, to the extent of unpaid Disbursement Claims, submitted within 60 days
after the date of termination of County's obligation to include the Program Area in its
CMHP, for a service falling with that Program Area and performed during the period
from the effective date of this Agreement through the termination of County's
obligation to include the Program Area, in which the service falls, in its CMHP.
(4) Upon termination of County's obligation to include a Program Area in its CMHP,
County shall have no further obligation under this Agreement to include that Program
Area in its CMHP.
c. Disbursement Limitations. Notwithstanding subsections a. and b. above:
(1)
Under no circumstances will DHS be obligated to provide financial assistance to
County for a particular service in excess of the amount awarded under this Agreement
for that service as set forth in the Service Element Prior Authorization; and
(2) Under no circumstances will DHS be obligated to provide financial assistance to
County from funds described in the Service Element Prior Authorization in an amount
greater than the amount due County under the Service Element Prior Authorization for
services, as determined in accordance with the financial assistance calculation
methodologies in the applicable Service Element Standards and Procedures.
d. Survival. Exercise of a termination right set forth in Section 8. of Exhibit D or expiration of
this Agreement in accordance with its terms, shall not affect County's right to receive
financial assistance to which it is entitled hereunder, as described in subsections a. and b.
above and as determined through the Agreement Settlement process, or County's right to
invoke the dispute resolution processes under Sections 13 and 14 of Exhibit C.
Notwithstanding subsections a. and b. above, exercise of the termination rights in Section 8.of
Exhibit D or termination of this Agreement in accordance with its terms, shall not affect
County's obligations under this Agreement or DHS's right to enforce this Agreement against
County in accordance with its terms, with respect to financial assistance actually disbursed by
DHS under this Agreement, or with respect to services actually delivered. Specifically, but
without limiting the generality of the preceding sentence, exercise of a termination right set
forth in Section 8. of Exhibit D or termination of this Agreement in accordance with its terms
shall not affect County's representations and warranties, reporting obligations, record-
keeping and access obligations, confidentiality obligations, obligation to comply with
applicable federal requirements, the restrictions and limitations on County's use of financial
assistance actually disbursed by DHS hereunder, County's obligation to cooperate with DHS
in the Agreement Settlement process, or DHS's right to recover from County, in accordance
with the terms of this Agreement, any financial assistance disbursed by DHS under this
Agreement that is identified as an Underexpenditure, Overexpenditure or Misexpenditure. If
a termination right set forth in Section 8. of Exhibit D is exercised, both parties shall make
reasonable good faith efforts to minimize unnecessary disruption or other problems
associated with the termination.
10. Limitation of Liabilities. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR
ANY DAMAGES OF ANY SORT ARISING SOLELY FROM THE TERMINATION OF
THIS AGREEMENT OR ANY PART HEREOF IN ACCORDANCE WITH ITS TERMS.
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11. Records Maintenance, Access and Confidentiality.
a. Access to Records and Facilities. DHS, the Secretary of State's Office of the State of
Oregon, the Federal Government, and their duly authorized representatives shall have access
to the books, documents, papers and records of the County that are directly related to this
Agreement, the financial assistance provided hereunder, or any service for the purpose of
making audits, examinations, excerpts, copies and transcriptions. In addition, County shall
permit authorized representatives of DHS to perform site reviews of all services delivered by
County.
b. Retention of Records. County shall retain and keep accessible all books, documents, papers,
and records that are directly related to this Agreement, the financial assistance provided
hereunder or any service, for a minimum of three (3) years, or such longer period as may be
required by other provisions of this Agreement or applicable law, following the termination
or expiration of this Agreement. If there are unresolved audit or Agreement Settlement
questions at the end of the applicable retention period, County shall retain the records until
the questions are resolved.
c. Expenditure Records. County shall document the use and expenditure of all financial
assistance paid by DHS under this Agreement. Unless applicable federal law requires County
to utilize a different accounting system, County shall create and maintain all use and
expenditure records in accordance with generally accepted accounting principles and in
sufficient detail to permit DHS to verify how the financial assistance paid by DHS under this
Agreement was used or expended.
d. Client Records. If County delivers a service directly, County shall create and maintain a
Client record for each Client who receives that service, unless the Service Element Standards
and Procedures precludes delivery of the service on an individual Client basis and reporting
of service commencement and termination information is not required by the Service Element
Standards and Procedures. The Client record shall contain:
i. Client identification;
ii. Problem assessment;
iii. Treatment, training and/or care plan;
iv. Medical information when appropriate; and
v. Progress notes including service termination summary and current assessment or
evaluation instrument as designated by DHS in administrative rules.
County shall retain Client records in accordance with OAR 166-005-000 through 166-150-
0215 (State Archivist). Unless OAR 166-005-0000 through 166-150-0215 requires a longer
retention period, Client records must be retained for a minimum of seven years from
termination or expiration of this Agreement.
e. Safeguarding of Client Information. County shall maintain the confidentiality of Client
records as required by applicable state and federal law, including without limitation, ORS
179.495 to 179.507, 45 CFR Part 205, 42 CFR Part 2, any administrative rule adopted by
DHS implementing the foregoing laws, and any written policies made available to County by
DHS. County shall create and maintain written policies and procedures related to the
134273 Deschutes County Approved 6/13/2011 29
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disclosure of Client information, and shall make such policies and procedures available to
DHS for review and inspection as reasonably requested by DHS.
12. Force Majeure. Neither DHS nor County shall be held responsible for delay or default
caused by fire, civil unrest, labor unrest, natural causes, or war which is beyond the
reasonable control of DHS or County, respectively. Each party shall, however, make all
reasonable efforts to remove or eliminate such cause of delay or default and shall, upon
the cessation of the cause, diligently pursue performance of its obligations under this
Agreement. Each party may terminate this Agreement upon written notice to the other
party after reasonably determining that the delay or breach will likely prevent successful
performance of this Agreement.
13. Assignment of Agreement, Successors in Interest.
a. County shall not assign or transfer its interest in this Agreement without prior written
approval of DHS. Any such assignment or transfer, if approved, is subject to such
conditions and provisions as DHS may deem necessary. No approval by DHS of any
assignment or transfer of interest shall be deemed to create any obligation of DHS in
addition to those set forth in the Agreement.
b. The provisions of this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, and their respective successors and permitted assigns.
14. No Third Party Beneficiaries. DHS and County are the only parties to this Agreement
and are the only parties entitled to enforce its terms. The parties agree that County's
performance under this Agreement is solely for the benefit of DHS to assist and enable
DHS to accomplish its statutory mission. Nothing in this Agreement gives, is intended to
give, or shall be construed to give or provide any benefit or right, whether directly,
indirectly or otherwise, to third persons any greater than the rights and benefits enjoyed
by the general public unless such third persons are individually identified by name herein
and expressly described as intended beneficiaries of the terms of this Agreement.
15. Amendment. No amendment, modification or change of terms of this Agreement shall
bind either party unless in writing and signed by both parties and when required by the
Department of Administrative Services and Department of Justice. Such amendment,
modification or change, if made, shall be effective only in the specific instance and for
the specific purpose given. The parties, by signature of its authorized representative,
hereby acknowledge that they have read this Agreement, understand it, and agree to be
bound by its terms and conditions.
16. Severability. The parties agree that if any term or provision of this Agreement is
declared by a court of competent jurisdiction to be illegal or in conflict with any law, the
validity of the remaining terms and provisions shall not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement did not
contain the particular term or provision held to be invalid.
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17. Notice. Except as otherwise expressly provided in this Agreement, any communications between
the parties hereto or notices to be given hereunder shall be given in writing by personal delivery,
facsimile, or mailing the same, postage prepaid to County or DHS at the address or number set forth
below, or to such other addresses or numbers as either party may indicate pursuant to this section.
Any communication or notice so addressed and mailed shall be effective five (5) days after mailing.
Any communication or notice delivered by facsimile shall be effective on the day the transmitting
machine generates a receipt of the successful transmission, if transmission was during normal
business hours of the recipient, or on the next business day, if transmission was outside normal
business hours of the recipient. To be effective against DHS, any notice transmitted by facsimile
must be confirmed by telephone notice to Office of Contracts and Procurement (503) 945-5818. To
be effective against County, any notice transmitted by facsimile must be confirmed by telephone
notice to County's Con. r4. + SPeC:4119}; 5N1 -3Z2 -}51b• Any communication or notice given by
personal delivery shall be effective when actually delivered.
Notices to DHS: April D. Barrett or delegate
Office of Contracts & Procurement
250 Winter Street NE, Room 305
Salem, OR 97301
Notices to County:
Deschutes County Health Services
2577 NE Courtney Drive
Bend, OR 97701
Attn: Nancy England
18. Headings. The headings and captions to sections of this Agreement have been inserted for
identification and reference purposes only and shall not be used to construe the meaning or
to interpret this Agreement.
19. Counterparts. This Agreement may be executed in several counterparts, all of which
when taken together shall constitute one agreement binding on all parties, notwithstanding
that all parties are not signatories to the same counterpart. Each copy of this Agreement so
executed shall constitute an original.
20. Integration and Waiver. This Agreement, including all Exhibits, constitutes the entire
agreement between the parties on the subject matter hereof. There are no understandings,
agreements, or representations, oral or written, not specified herein regarding this
Agreement. The failure of either party to enforce any provision of this Agreement shall not
constitute a waiver by that party of that or any other provision. No waiver or consent shall
be effective unless in writing and signed by the party against whom it is asserted.
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21. Construction. This Agreement is the product of extensive negotiations between DHS and
representatives of county governments. The provisions of this Agreement are to be
interpreted and their legal effects determined as a whole. An arbitrator or court interpreting
this Agreement shall give a reasonable, lawful and effective meaning to the Agreement to
the extent possible, consistent with the public interest.
22. Contribution. If any third party makes any claim or brings any action, suit or proceeding
alleging a tort as now or hereafter defined in ORS 30.260 ("Third Party Claim") against a
party (the "Notified Party") with respect to which the other party ("Other Party") may have
liability, the Notified Party must promptly notify the Other Party in writing of the Third
Party Claim and deliver to the Other Party a copy of the claim, process, and all legal
pleadings with respect to the Third Party Claim. Either party is entitled to participate in the
defense of a Third Party Claim, and to defend a Third Party Claim with counsel of its own
choosing. Receipt by the Other Party of the notice and copies required in this paragraph
and meaningful opportunity for the Other Party to participate in the investigation, defense
and settlement of the Third Party Claim with counsel of its own choosing are conditions
precedent to the Other Party's liability with respect to the Third Party Claim.
With respect to a Third Party Claim for which the State is jointly liable with the County (or
would be if joined in the Third Party Claim ), the State shall contribute to the amount of
expenses (including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred and paid or payable by the County in such proportion as is
appropriate to reflect the relative fault of the State on the one hand and of the County on
the other hand in connection with the events which resulted in such expenses, judgments,
fines or settlement amounts, as well as any other relevant equitable considerations. The
relative fault of the State on the one hand and of the County on the other hand shall be
determined by reference to, among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the circumstances resulting in
such expenses, judgments, fines or settlement amounts. The State's contribution amount in
any instance is capped to the same extent it would have been capped under Oregon law if
the State had sole liability in the proceeding.
With respect to a Third Party Claim for which the County is jointly liable with the State (or
would be if joined in the Third Party Claim), the County shall contribute to the amount of
expenses (including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred and paid or payable by the State in such proportion as is
appropriate to reflect the relative fault of the County on the one hand and of the State on
the other hand in connection with the events which resulted in such expenses, judgments,
fines or settlement amounts, as well as any other relevant equitable considerations. The
relative fault of the County on the one hand and of the State on the other hand shall be
determined by reference to, among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the circumstances resulting in
such expenses, judgments, fines or settlement amounts. The County's contribution amount
in any instance is capped to the same extent it would have been capped under Oregon law
if it had sole liability in the proceeding.
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2011-2013 INTERGOVERNMENTAL AGREEMENT
FOR THE FINANCING OF COMMUNITY
DEVELOPMENTAL DISABILITY SERVICES
EXHIBIT F
REQUIRED FEDERAL TERMS AND CONDITIONS
In addition to the requirements of section 2 of Exhibit D, County shall comply with the following
federal requirements. For purposes of this Agreement, all references to federal and state laws are
references to federal and state laws as they may be amended from time to time.
1. Miscellaneous Federal Provisions. County shall comply and require all Providers to
comply with all federal laws, regulations, and executive orders applicable to the Agreement
or to the delivery of services. Without limiting the generality of the foregoing, County
expressly agrees to comply and require all Providers to comply with the following laws,
regulations and executive orders to the extent they are applicable to the Agreement: (a)
Titles VI and VII of the Civil Rights Act of 1964, as amended, (b) Sections 503 and 504 of
the Rehabilitation Act of 1973, as amended, (c) the Americans with Disabilities Act of
1990, as amended, (d) Executive Order 11246, as amended, (e) the Health Insurance
Portability and Accountability Act of 1996, (f) the Age Discrimination in Employment Act
of 1967, as amended, and the Age Discrimination Act of 1975, as amended, (g) the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, (h) all
regulations and administrative rules established pursuant to the foregoing laws, (i) all other
applicable requirements of federal civil rights and rehabilitation statutes, rules and
regulations, (j) all federal law governing operation of Community Mental Health Programs,
including without limitation, all federal laws requiring reporting of Client abuse. These
laws, regulations and executive orders are incorporated by reference herein to the extent
that they are applicable to the Agreement and required by law to be so incorporated. No
federal funds may be used to provide services in violation of 42 USC 14402.
2. Equal Employment Opportunity. If this Agreement, including amendments, is for more
than $10,000, then County shall comply and require all Providers to comply with Executive
Order 11246, entitled "Equal Employment Opportunity," as amended by Executive Order
11375, and as supplemented in Department of Labor regulations (41 CFR Part 60).
3. Clean Air, Clean Water, EPA Regulations. If this Agreement, including amendments,
exceeds $100,000 then County shall comply and require all Providers to comply with all
applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act
(42 U.S.C. 1857(h)), the Federal Water Pollution Control Act as amended (commonly
known as the Clean Water Act) (33 U.S.C. 1251 to ] 387), specifically including, but not
limited to Section 508 (33 U.S.C. 1368). Executive Order 11738, and Environmental
Protection Agency regulations (2 CFR Part 1532), which prohibit the use under
non-exempt Federal contracts, grants or loans of facilities included on the EPA List of
Violating Facilities. Violations shall be reported to DHS, HHS and the appropriate
Regional Office of the Environmental Protection Agency. County shall include and require
all Providers to include in all contracts with subcontractors receiving more than $100,000,
language requiring the subcontractor to comply with the federal laws identified in this
section.
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4. Energy Efficiency. County shall comply and require all Providers to comply with
applicable mandatory standards and policies relating to energy efficiency that are contained
in the Oregon energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163).
5. Truth in Lobbying. The County certifies, to the best of the County's knowledge and belief
that:
a. No federal appropriated funds have been paid or will be paid, by or on behalf of
County, to any person for influencing or attempting to influence an officer or
employee of an agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with the awarding of any
federal contract, the making of any federal grant, the making of any federal loan, the
entering into of any cooperative agreement, and the extension, continuation, renewal,
amendment or modification of any federal contract, grant, loan or cooperative
agreement.
b. If any funds other than federal appropriated funds have been paid or will be paid to
any person for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with this federal contract, grant, loan or
cooperative agreement, the County shall complete and submit Standard Form LLL,
"Disclosure Form to Report Lobbying" in accordance with its instructions.
c. The County shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and that all subrecipients
and subcontractors shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when
this Agreement was made or entered into. Submission of this certification is a prerequisite
for making or entering into this Agreement imposed by section 1352, Title 31,of the U.S.
Code. Any person who fails to file the required certification shall be subject to a civil
penalty of not less than $10,000 and not more than $100,000 for each such failure.
6. HIPAA Compliance. As a Business Associate of a Covered Entity, DHS must comply
with the Health Insurance Portability and Accountability Act and the federal regulations
implementing the Act (collectively referred to as HIPAA), and DHS must also comply with
OAR 125-055-0100 through OAR 125-055-0130 to the extent that any Work or obligations
of DHS related to this Contract are covered by HIPAA. Contractor shall determine if
Contractor will have access to, or create any protected health information in the
performance of any Work or other obligations under this Contract. To the extent that
Contractor will have access to, or create any protected health information to perform
functions, activities, or services for, or on behalf of, DHS as specified in the Contract,
Contractor shall comply and cause all subcontractors to comply with the following:
a. Privacy and Security of Individually Identifiable Health Information. Individually
Identifiable Health Information about specific individuals is confidential.
Individually Identifiable Health Information relating to specific individuals may be
exchanged between Contractor and DHS for purposes directly related to the provision
of services to Clients which are funded in whole or in part under this Contract.
However, Contractor shall not use or disclose any Individually Identifiable Health
Information about specific individuals in a manner that would violate DHS Privacy
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Rules, OAR 407-014-0000 et. seq., or DHS Notice of Privacy Practices, if done by
DHS. A copy of the most recent DHS Notice of Privacy Practices is posted on the
DHS web site at https://apps.state.or.us.-Forms//Scrvcd/DE2090.pdf or may be
obtained from DHS.
b. Data Transactions Systems. If Contractor intends to exchange electronic data
transactions with DHS or the Oregon Health Authority (OHA) in connection with
claims or encounter data, eligibility or enrollment information, authorizations or other
electronic transaction, Contractor shall execute an EDI Trading Partner Agreement
and shall comply with EDI Rules.
c. Consultation and Testing. If Contractor reasonably believes that the Contractor's or
DHS' data transactions system or other application of HIPAA privacy or security
compliance policy may result in a violation of HIPAA requirements, Contractor shall
promptly consult the DHS Information Security Office. Contractor or DHS may
initiate a request for testing of HIPAA transaction requirements, subject to available
resources and the DHS testing schedule.
d. Contractor and all subcontractors shall comply with the same requirements for
Business Associates set forth in OAR 125-055-0100 through OAR 125-055-0130 as a
contractor of a Business Associate.
7. Resource Conservation and Recovery. County shall comply and require all Providers to
comply with all mandatory standards and policies that relate to resource conservation and
recovery pursuant to the Resource Conservation and Recovery Act (codified at 42 USC
6901 et. seq.). Section 6002 of that Act (codified at 42 USC 6962) requires that preference
be given in procurement programs to the purchase of specific products containing recycled
materials identified in guidelines developed by the Environmental Protection Agency.
Current guidelines are set forth in 40 CFR Part 247.
8. Audits.
a. County shall comply, if applicable, require all Providers to comply, with the
applicable audit requirements and responsibilities set forth in the Office of
Management and Budget Circular A-133 entitled "Audits of States, Local
Governments and Non -Profit Organizations."
b. Sub -recipients shall also be required to comply with applicable Code of Federal
Regulations (CFR) sections and OMB Circulars governing expenditure of federal
funds. State, local and Indian Tribal Governments and governmental hospitals must
follow OMB A-102. Non -profits, hospitals, colleges and universities must follow 2
CFR Part 215. Sub -recipients shall be required to monitor any organization to which
funds are passed for compliance with CFR and OMB requirements.
9. Debarment and Suspension. County shall not permit any person or entity to be a
Provider if the person or entity is listed on the non -procurement portion of the General
Service Administration's "List of Parties Excluded from Federal Procurement or
Nonprocurement Programs" in accordance with Executive Orders No. 12549 and No.
12689, "Debarment and Suspension". (See 2 CFR part 180). This list contains the names
of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared
ineligible under statutory authority other than Executive Order No. 12549. Providers with
awards that exceed the simplified acquisition threshold shall provide the required
certification regarding their exclusion status and that of their principals prior to award.
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10. Drug -Free Workplace. County shall comply and require all Providers to comply with the
following provisions to maintain a drug-free workplace: (i) County certifies that it will
provide a drug-free workplace by publishing a statement notifying its employees that the
unlawful manufacture, distribution, dispensation, possession or use of a controlled
substance, except as may be present in lawfully prescribed or over-the-counter
medications, is prohibited in County's workplace or while providing services to DHS
clients. County's notice shall specify the actions that will be taken by County against its
employees for violation of such prohibitions; (ii) Establish a drug-free awareness program
to inform its employees about: The dangers of drug abuse in the workplace, County's
policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation,
and employee assistance programs, and the penalties that may be imposed upon employees
for drug abuse violations; (iii) Provide each employee to be engaged in the performance of
services under this Agreement a copy of the statement mentioned in paragraph (i) above;
(iv) Notify each employee in the statement required by paragraph (i) above that, as a
condition of employment to provide services under this Agreement, the employee will:
abide by the terms of the statement, and notify the employer of any criminal drug statute
conviction for a violation occurring in the workplace no later than five (5) days after such
conviction; (v) Notify DHS within ten (10) days after receiving notice under subparagraph
(iv) above from an employee or otherwise receiving actual notice of such conviction; (vi)
Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or
rehabilitation program by any employee who is so convicted as required by Section 5154 of
the Drug -Free Workplace Act of 1988; (vii) Make a good -faith effort to continue a drug-
free workplace through implementation of subparagraphs (i) through (vi) above; (viii)
Require any Provider to comply with subparagraphs (i) through (vii) above; (ix) Neither
County, or any of County's employees, officers, agents or Provider may provide any
service required under this Agreement while under the influence of drugs. For purposes of
this provision, "under the influence" means: observed abnormal behavior or impairments in
mental or physical performance leading a reasonable person to believe the County or
County's employee, officer, agent or Provider or has used a controlled substance,
prescription or non-prescription medication that impairs the County or County's employee,
officer, agent or Provider's performance of essential job function or creates a direct threat
to DHS clients or others. Examples of abnormal behavior include, but are not limited to:
hallucinations, paranoia or violent outbursts. Examples of impairments in physical or
mental performance include, but are not limited to: slurred speech, difficulty walking or
performing job activities; (x) Violation of any provision of this subsection may result in
termination of this Agreement.
11. Pro -Children Act. County shall comply and require all Providers to comply with the Pro -
Children Act of 1994 (codified at 20 USC section 6081 et. seq.).
12. Medicaid Services. To the extent County provides any service whose costs are paid in
whole or in part by Medicaid, County shall comply with all applicable federal and state
laws and regulation pertaining to the provision of Medicaid Services under the Medicaid
Act, Title XIX, 42 USC Section 1396 et. Seq., including without limitation:
a. Keep such records as are necessary to fully disclose the extent of services provided to
individuals receiving Medicaid assistance and shall furnish information to any state or
federal agency responsible for administering the Medicaid program regarding any
payments claimed by such person or institution for providing Medicaid Services as
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the state or federal agency may from time to time request. 42 USC Section
1396a(a)(27); 42 CFR 431.107(b)(1) & (2).
b. Comply with all applicable disclosure requirements set forth in 42 CFR 1002.3(a) and
42 CFR 455 Subpart (B).
c. Maintain written notices and procedures respecting advance directive in compliance
with 42 USC Section 1396(a)(57) and (w), 42 CFR 431.107(b)(4), and 42 CFR 489
subpart I.
d. Certify when submitting any claim for the provision of Medicaid Services that the
information submitted is true, accurate and complete. County shall acknowledge
County's understanding that payment of the claim will be from federal and state
funds and that any falsification or concealment of a material fact may be prosecuted
under federal and sate laws.
e. Entities receiving $5 million or more annually (under this Agreement and any other
Medicaid Agreement) for furnishing Medicaid health care items or services shall, as a
condition of receiving such payments, adopt written fraud, waste and abuse policies
and procedures in compliance with Section 6032 of the Deficit Reduction Act of
2005, 42 USC § 1396a(a)(68).
13. ADA. County shall comply with Title II of the Americans with Disabilities Act of 1990
(codified at 42 USC 12131 et. seq.) in the construction, remodeling, maintenance and
operation of any structures and facilities, and in the conduct of all programs, services and
training associated with the delivery of services.
14. Agency -Based Voter Registration. County shall comply with the Agency -based Voter
Registration sections of the National Voter Registration Act of 1993 which require voter
registration opportunities to be offered where an individual may apply for or receive an
application for public assistance.
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