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EXHIBIT G
FLEXIBLE SPENDING ACCOUNT (“FSA”) ADMINISTRATION
RECITALS
WHEREAS, the County has adopted an Internal Revenue Code Section 125 (26 USC § 125) Cafeteria Plan (the “125 Plan”) for its
eligible employees and participants, and included in the 125 Plan is one or more of the following plans or arrangements: a health flexible
spending arrangement (“Health FSA”); a dependent care flexible spending arrangement (“Dependent Care FSA”) (a Health FSA and a
Dependent Care FSA are referred to collectively as an “FSA”); and/or a limited purpose health flexible spending arrangement (“Limited
Health FSA”); (individually and collectively, as the context may require, the foregoing shall be referred to as the “Plan”); and
WHEREAS, County is the administrator of the Plan; and
WHEREAS County desires Businessolver to assist in its administration of the Plan, and Businessolver desires to assist County in the
administration of the Plan;
NOW, THEREFORE, in consideration of the promises and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
AGREEMENT
ARTICLE 1. FSA SERVICES.
Section 1.1. FSA Services. Businessolver shall provide to County the services described in the Schedules attached to this Exhibit
G to the Contract ("FSA Services"). Such FSA Services may be provided by Discovery Benefits, Inc. (“DBI”) or another qualified third
party service provider as mutually agreed by the parties.
Section 1.2. Plan Administrative Assistance. County has established the Plan for the exclusive benefits of its employees and
authorized participants. County remains the administrator of the Plan, including the establishment of eligibility and benefits and funding
payment of benefits owed to participants under the Plan. Businessolver shall assist County in the administration of the Plan as provided in
these Schedules. Businessolver’s duties with respect to the Plan are limited to those expressly provided for in these Schedules. The Plans
covered for FSA Services under these Schedules are limited to Plans selected by County via the Businessolver portal or design guide. If a
Plan is not selected, the Plan is not covered for FSA Services, and Businessolver shall have no responsibility or duty with respect to such
non-selected Plan. County acknowledges and agrees that the FSA Services provided by Businessolver pursuant to these Schedules relate
to enrollment and disenrollment in the Plan and that these FSA Services to the extent permitted under HIPAA shall be deemed to be
performed by Businessolver on behalf of County in its capacity as the sponsor of the Plan. County further acknowledges and agrees that
Businessolver may use or disclose enrollment or disenrollment information that it receives from County with respect to a particular
participant to provide additional services, including website links to value added services, to the participant without cost to County.
Section 1.3. Plan Fiduciary. Except as provided below in Section 1.3.1, County agrees that Businessolver is not the plan
administrator, the named fiduciary or a plan fiduciary under the Plan as such terms are described under ERISA. Businessolver shall have
no power or authority to waive, alter, breach or modify any terms and conditions of the Plan. Custodian (defined below) shall make
payments or distributions from the Custodial Account in accordance with the framework of policies, interpretations, rules, practices, and
procedures set forth in the Plan, these Schedules, and as otherwise agreed upon or directed by County.
1.3.1. Total Authority. Except as otherwise expressly provided in these Schedules, County has total control and discretionary
authority over the Plan and the manner in which the Plan is operated. Businessolver’s duties with respect to the Plan are limited to the acts
as an agent of County only for the processing of qualifying expense/reimbursement requests as provided under these Schedules.
1.3.2. Non-Discretionary Acts. Except as provided above in Section 1.3.1, Businessolver shall neither have nor shall be
deemed to exercise any discretion, control or authority with respect to the disposition of County funds. County agrees that the use of or
offset or recoupment of funds in the Custodial Account to pay fees or other undisputed amounts due to Businessolver pursuant to these
Schedules or any other agreement between the parties constitutes a County action that is authorized by County under these Schedules and
agrees that such actions are not discretionary acts of Businessolver and do not create fiduciary status for Businessolver.
Section 1.4. HIPAA Excepted Benefits. Businessolver’s standard administrative procedures for the administration of Health
FSAs and Limited Health FSAs are based on the assumption that County’s Health FSA and Limited Health FSA (as applicable) are HIPAA
excepted benefits under DOL Reg. Section 2590.732(c)(3)(v) and Treas. Reg. Section 54.9831-1(c)(3)(v).
Section 1.5. Businessolver Performance. Businessolver agrees that it will perform FSA Services on the Plan’s behalf as set forth in
these Schedules, including any attachments to these Schedules. However, Businessolver will not undertake any duties or responsibilities
regardless of whether they are set forth in the Plan if such actions are in violation of any applicable law or regulation.
1.5.1. Reliance on Information and Instructions. Businessolver shall provide the FSA Services in accordance with these
Schedules based on information that is provided to Businessolver by County or any agent, designee or representative of County. For this
purpose, the term “information” means all data, records, and other information supplied to Businessolver, obtained by Businessolver or
produced by Businessolver (based on data, records or other information supplied to, or obtained by, Businessolver) in connection with
performing the FSA Services pursuant to these Schedules, regardless of the form of the information (e.g., paper, oral, electronic etc.) or the
manner in which the information is provided to Businessolver.
1.5.2. Implementation of Standard Forms. County has authorized and instructed Businessolver to implement its standard
administrative forms and procedures to provide FSA Services in accordance with these Schedules, which may be revised by Businessolver
at any time without notice. Businessolver shall be fully protected in relying upon representations by County set forth in these Schedules.
Businessolver shall be fully protected in relying upon communications made by or on behalf of County in effecting its obligations under
these Schedules. Businessolver is entitled to rely on the most current information in its possession when providing FSA Services under
these Schedules.
1.5.3. Health Plan Identifier. County acknowledges and agrees that Businessolver does not, and shall not, have any
responsibility for obtaining one or more health plan identifiers (“HPID”) for the Plan from the Enumeration System identified in 45 C.F.R.
§ 162.508 or for updating the Enumeration System with respect to the HPID.
ARTICLE 2. FEES.
Section 2.1. Payment of Fees. County shall pay to Businessolver the fees set forth in Exhibit A and Schedule G-3, attached to
hereto and by this reference shall be incorporated herein.
Section 2.2. Failure to Pay Fees. Notwithstanding anything in these Schedules, this Exhibit or the Contract between the parties to
the contrary, if County fails to pay Businessolver within the required time period, any amount (except for amounts subject to a good faith
dispute) that is due as a result of any product or service provided by Businessolver to County under these Schedules, Businessolver shall
be permitted to deduct (in accordance with Section 1.3.2 the undisputed past due amount from any funds held by Businessolver that were
received from County without additional prior notice or approval of County. This right of offset shall be in addition to any other remedies
that Businessolver may have under these Schedules or the Contract between the parties with respect to such non-payment, including,
without limitation, any right to terminate these Schedules or a right to recoupment, regardless of whether the past due amount is paid in
full as a result of the offset or recoupment rights provided herein.
ARTICLE 3. PLAN DOCUMENTS AND PLAN DOCUMENT COMPLIANCE.
Section 3.1. Sample Documents. Businessolver shall assist County in the establishment and operation of the Plan by providing
sample documents, including a sample plan document, a sample summary plan description, and other sample documents relating to the
administration of the Plan for review by County. The sample plan document, the sample summary plan description, and the other sample
documents provided by Businessolver are based on the legal and regulatory requirements then in effect and on Businessolver’s internal
policies and procedures, which may change from time to time. County is under no obligation to use the sample documents from
Businessolver in establishing and maintaining the Plan. Businessolver provides sample amendments to the plan when regulations change
or when requested by County due to County changing plan design. Businessolver also provides County with sample amendments to its
sample documents for review by County. If County uses its own plan document and/or summary plan description, Businessolver shall not
be obligated to provide any amendments or updates other than those described in the preceding sentence.
Section 3.2. Plan Amendments. County shall provide Businessolver with a copy of any contemplated amendment to the Plan no
less than thirty (30) days prior to the anticipated amendment effective date. Under no circumstances may County adopt any amendment
that would alter Businessolver’s FSA Services or obligations under the Contract without prior written consent of Businessolver.
Businessolver has no obligation to provide any Plan amendments to County other than described in Article 3.
Section 3.3. Forms. Businessolver shall provide Customer administrative forms for use in administering the Plan. All forms and all
user guide information will be subject to periodic updates and revision. Businessolver shall also provide Customer instructions and forms
for the processing of benefit claims under the Plan.
Section 3.4. Plan Compliance. Customer is responsible for the final content of all Plan materials and documents. It is Customer’s
responsibility to ensure that the Plan documents and any amendments to the Plan documents, including any sample documents provided
under this Schedule, are legally compliant for Customer’s purposes, appropriately completed, in compliance with the requirements of
Customer’s Plan, and appropriately and timely adopted by Customer. Customer shall file with the appropriate governmental agencies all
required returns, reports, documents, and other papers relating to the Plan. Customer shall distribute to its employees participating in the
Plan all materials and documents as may be necessary or convenient for the operation of the Plan and to satisfy the requirements of
applicable law. Customer shall provide Businessolver with an executed copy of its Plan document(s).
Section 3.5. Summary Plan Description. Customer shall be responsible for the distribution of a copy of the summary plan
description and/or the summary of benefits and coverage to its employees participating in the Plan.
ARTICLE 4. RECORDS, REPORTS AND FORMS.
Section 4.1. Recordkeeping. Businessolver shall assist Customer in the development and maintenance of administrative and
recordkeeping systems for the Plan. Recordkeeping services are listed in the FSA Services and Recordkeeping Addendum.
Section 4.2. Information for Customer Reporting. Businessolver shall provide Customer with general information about reporting
and disclosure requirements that relate to the Plan and information reasonably available to Businessolver that is necessary for Customer to
prepare the annual Form 5500. Businessolver shall not be responsible for the accuracy of any information provided by Customer nor shall
Businessolver be responsible for determining the level of compliance required by the Plan. It is the sole responsibility of Customer to
assure compliance with all legal reporting and disclosure requirements.
Section 4.3. Additional Reports. The reports as set forth in Schedule G-3 shall be provided to Customer.
ARTICLE 5. CLAIMS PROCESSING.
Section 5.1. Payment of Claims.Using funds received from County, Businessolver shall pay the amounts due as a result of the
operation of the Plan and in compliance with the participant’s current Plan elections. Businessolver shall process claims received from
County or from Plan participants on a daily basis during regular business hours (6:00 a.m. to 6:00 p.m. Central Standard Time, Monday
through Friday excluding holidays). Businessolver shall arrange for the payment of approved reimbursement requests as provided in the
Plan.
Section 5.2. Initial Claims. Businessolver shall consider any initial claim for benefits made under the Plan provided the claim
is submitted in accordance with the Plan, the summary plan description, and any reasonable rules established by Businessolver and
communicated to participants.
5.2.1. Businessolver will accept or deny (in whole or in part) an initial claim for benefits after making such investigation as
it deems necessary.
5.2.1.1. To the extent Businessolver determines that a participant is entitled to the claimed benefits under the Plan,
Businessolver will arrange for the proper payment from the Plan using the funds provided by County.
5.2.1.2. To the extent Businessolver determines that a participant is not entitled to claimed benefits under the Plan,
Businessolver shall provide to such participant a written notification of its decision as soon as administratively practicable after the claim
was received by Businessolver, but no later than within the time required per Section 503 of ERISA and 29 C.F.R. § 2590.715-2719 as
applicable. The written notice shall comply with the requirements set out in Section 503 of ERISA and 29 C.F.R. § 2590.715-2719 as
applicable.
5.2.1.3. To the extent that Businessolver provides written non-English assistance to a participant during the course of
claims processing as required by Section 503 of ERISA and 29 C.F.R. § 2590.715-2719 as applicable, County shall reimburse Businessolver
for the related fees and expenses, if any.
5.2.1.4. Businessolver has established procedures to receive appeals of initial denials of benefit claims. Businessolver
shall be responsible for making the decision to accept or deny (in whole or in part) all initial appeals of denied benefit claims consistent
with Section 503 of ERISA and 29 C.F.R. § 2590.715-2719 as applicable. Businessolver shall be responsible for notifying the participant
of its decision regarding the appeal consistent with Section 503 of ERISA and 29 C.F.R. § 2590.715-2719 as applicable. In accordance
with the summary plan description, participants have the right to a second appeal which shall be made to the Plan Administrator.
5.2.1.5. In making decisions regarding claims for benefits and appeals of denied benefit claims, Businessolver shall
have discretionary authority to construe and interpret the terms of the Plan and to determine whether a benefit claim is properly payable
under the Plan.
Section 5.3. Call Recording. In compliance with federal and state law, Businessolver may monitor and/or record calls that are
made to and from the County service line for quality assurance and training purposes and/or to ensure that Businessolver’s FSA Services
fully comply with the terms of these Schedules.
Section 5.4. Claim Fiduciary. Businessolver has a fiduciary duty only to the extent described in Section 6.1. All remaining fiduciary
duties under the Plan are the responsibility of County. Notwithstanding anything herein to the contrary, County shall be responsible for all
eligibility claims, eligibility appeals, and eligibility determinations.
ARTICLE 6. COUNTY FUNDS AND CUSTODIAL ACCOUNT.
Section 6.1. Appointment and Acceptance of Custodian. By signing this Contract, County shall appoint a custodian of County
funds (“Custodian”), as set forth in the attached Schedule G-4, for the purposes and upon the terms and conditions set forth in these
Schedules, and the appointed Custodian shall accept such appointment and agrees to act as Custodian hereunder and to hold any County
funds received hereunder in accordance with the terms and conditions set forth in these Schedules.
Section 6.2. Custodial Account. Custodian shall maintain one or more depository accounts (“Custodial Account”) as set forth in
Schedule G-4 and shall hold in such Custodial Account all funds initially received from County plus any additional funds that may be
received from County for Custodial Account from time to time. For administrative convenience and to reduce costs, Custodian shall hold
funds received from County together with similar funds from other customers in a single Custodial Account (or one or more Custodial
Accounts as determined by Custodian). Custodian shall maintain records as to the exact amount of funds attributable to County so that
County has a legal right to the specific amount of its funds held in the Custodial Account (less any applicable fees, costs or expenses as set
forth in these Schedules). At all times, the assets comprising County’s funds in the Custodial Account shall be considered a separate
subaccount for purposes of these Schedules. Depending upon the context, the term “Custodial Account” as used herein shall refer to either
the separate subaccount for County or all of the subaccounts for all customers in the aggregate.
Section 6.3. Funds. Funds received by Businessolver from County for the payment of Plan benefits shall be held in the Custodial
Account pursuant to Article 6.
Section 6.4. County’s General Assets. Custodian and County intend and agree that all funds received from County for deposit in
the Custodial Account shall be comprised of and shall remain County’s general assets. In no event will funds received from County and
deposited in the Custodial Account constitute or include participant or employee contributions to employee benefit plans, whether made
by salary reduction or otherwise, as those terms have their general meaning under ERISA. Except to the extent that outstanding checks
have been written or withdrawals have been made against the Custodial Account balance on behalf of County, and subject to Section 2.2,
all funds received from County and deposited in the Custodial Account may be withdrawn by County at any time (less applicable fees,
costs or expenses as set forth in these Schedules) and are subject to the claims of County’s general creditors in the same manner as funds
contributed to County’s ordinary checking accounts. Notwithstanding the foregoing, these Schedules does not alter or eliminate any
separate obligation of County to fund and maintain the Minimum Account Balance in the Custodial Account as described in Section 6.8.
Section 6.5. Disbursements. Custodian shall make payments or distributions from the Custodial Account in accordance with the
framework of policies, interpretations, rules, practices, and procedures established by Businessolver for this purpose and as set forth in the
Plan or as otherwise agreed upon or directed by County. Custodian or Businessolver shall not have nor shall be deemed to have any
discretion, control or other authority with respect to the disposition of County funds. Custodian and Businessolver shall be responsible for
administering the funds in accordance with the terms of these Schedules. Funds shall be disbursed from the Custodial Account by Custodian
only for an allowable Plan expense as determined by County or a representative of County (including Businessolver) or as otherwise
required by a court of competent jurisdiction.
Section 6.6. Claims Based Funding. If County selects the claims based funding method to pay claims, County gives Businessolver,
and its designee, approval to withdraw applicable amounts from County’s United States bank account to deposit in the Custodial Account
from which disbursements can be made on County’s behalf for payment of qualifying expenses, which are otherwise specified by County
in its Plan document or as provided for under the Code. Disbursements will not be made until the amounts are credited to the Custodial
Account.
Section 6.7. Contribution Funds. County shall deposit contribution funds in the Custodial Account to be used to pay benefits and
expenses under the Plan as agreed to herein and in accordance with the Plan documents. Funds contributed to the Custodial Account shall
consist solely of general assets of County. Participant contributions, if any, made by employees to the Plan through salary reduction or
otherwise, shall be used to reimburse County for the contributions advanced by County to pay benefits under the Plan. County has the sole
responsibility and liability for the funding of all benefits under the Plan.
Section 6.8. Deduction/Contribution Based Funding Method. If County selects the deduction/contribution based funding method
to pay claims, County establishes a pre-determined initial deposit amount that will adequately fund the reasonable needs of the Plan (the
“Minimum Account Balance”) to be deposited into the Custodial Account. If the deposited amount falls below the Minimum Account
Balance, County will be notified of the deficiency and will be required to provide additional funds until such time the Minimum Account
Balance can be restored. If County fails to immediately restore the Minimum Account Balance, Businessolver has the right to suspend all
FSA Services under these Schedules until County is able to restore the Minimum Account Balance.
Section 6.9. Overpayment Recovery. If Custodian determines that it has paid benefits to an ineligible person or paid more than
the appropriate amount, Custodian and Businessolver shall, with County’s full cooperation, undertake a good faith effort to recover such
erroneous payment. For purposes of this provision, Custodian shall have the sole discretion to determine what constitutes a “good faith
effort,” which effort may vary from time to time depending upon the circumstances of the overpayment, but may include Custodian’s
attempt to contact the participant twice via letter, phone, email or another means about the recovery of the payment at issue.
Section 6.10. Unused Amounts and Unclaimed Amounts. Except for those amounts that are subject to any Health FSA carryover
elected by the Plan in accordance with IRS Notice 2013-71, 71 (as such guidance may be modified or updated) all amounts that remain
unused in an FSA after the end of the period specified by the Plan during which a participant can make a claim plus any periods for appeal
or claim dispute, shall be forfeited by the participant and returned to County less any applicable fees and expenses owing to Businessolver
under these Schedules. The direct terms of an applicable Plan may alter the forfeiture provisions of this Section 6.10 only with respect to
a Plan participant. Any amounts unclaimed by participants, including any unclaimed reimbursement checks (or other methods of payment)
that have been issued but remain unendorsed or uncashed and unpaid after the end of the plan year’s run-out period elected by the Plan,
shall be returned to County less any applicable fees and expenses that are due and owing to Businessolver under these Schedules. County
shall be responsible to report unclaimed amounts in accordance with applicable state escheat laws.
Section 6.11. Interest Earned. County acknowledges and understands that from time to time Custodian may receive interest earned
on the funds held in the Custodial Account and that any such interest shall be part of Businessolver’s compensation. County acknowledges
and understands that fees otherwise charged by Businessolver for FSA Services under these Schedules would be greater if Businessolver
did not retain such interest on these funds. The period during which interest may be earned begins on the date the funds are deposited in
the Custodial Account and ends when these Schedules terminate. Funds shall be disbursed on a first-in, first-out basis.
Section 6.12. Maintenance of Records. Upon County’s written request, Custodian shall provide County with an accounting of all
assets and transactions involving the Custodial Account in relation to County, including a description of all receipts, payments or
disbursements, and other transactions.
ARTICLE 7. [RESERVED]
ARTICLE 8. CONFIDENTIALITY OF PLAN INFORMATION.
Section 8.1. Businessolver shall keep confidential all information that it obtains concerning the Plan. Other than in due course of
business, such information shall not be disclosed without prior approval of County or as otherwise provided in accordance with the
Schedules. County may request that Businessolver share a Plan and other data with another vendor of the Plan. Businessolver shall
consider all reasonable requests, however, prior to releasing or sharing any Plan information or other data with another vendor,
Businessolver requires County to enter into a confidentiality and data sharing agreement with the vendor. County shall make a copy of
such agreement available to Businessolver upon request.
ARTICLE 9. AUDIT.
Section 9.1. Claims Audit. During the term of this Contract, and at any time within six (6) months following its termination,
County (or a mutually agreeable third party auditor) may audit Businessolver to determine whether Businessolver is fulfilling the terms of
these Schedules with respect to processing claims for benefits. The audit shall be limited to such processing claims for benefits information
relating to the calendar year in which the audit begins and /or the immediately preceding calendar year. Businessolver will provide timely
inquiry and feedback regarding the sample size and sampling methodology as it relates to the objective of the audit. The audit must be
completed within six (6) months following the date the audit begins. The place, time, type, duration, and frequency of any audit must be
reasonable and mutually agreeable. County shall pay or cause to be paid any expenses that it incurs in connection with the audit.
Section 9.2. Audit Process. Any audit will be subject to these additional requirements:
i. County must provide Businessolver with a sixty (60) day advance written notice of its intent to audit.
ii. County must utilize individuals to conduct the audit who are qualified by appropriate training and experience for such work; who
will perform their review in accordance with published administrative safeguards and procedures against unauthorized use or
disclosure (in the audit report or otherwise) of any individually identifiable information (including health care information)
contained in the information audited; and who will not make or retain any record of payment identifying information concerning
treatment of drug or alcohol abuse, mental/nervous, HIV/AIDS or genetic markers in connection with the audit (“Auditors”).
iii. At least thirty (30) days in advance of commencement of the audit, County must provide Businessolver with a complete and
accurate list of the transactions to be selected for audit, along with the specific service for which each transaction or item is being
tested. The sample must be based on a statistically valid random sampling methodology (e.g., systematic random sampling,
simple random sampling, and stratified random sampling).
iv. The Auditors must provide their draft findings to Businessolver before a final audit report is presented to County. The draft
findings will be the basis for discussion between the Auditors and Businessolver to resolve any disagreement and to summarize
the audit findings.
v. The Auditors must provide their final audit report to Businessolver before delivery to County and allow Businessolver to include
with the final audit report a supplementary statement containing facts that Businessolver considers pertinent to the audit.
vi. The Auditors must provide Businessolver with a complete copy of the final audit report that is delivered to County.
vii. The audit will be subject to proprietary and confidentiality protections. Before the audit commences, County and any third party
auditor shall execute a non-disclosure and confidentiality agreement, the scope of which shall be reasonable and shall be
determined by Businessolver, consistent with any and all applicable public records laws.
Section 9.3. External Review. To the extent that the external review requirements set forth in 29 C.F.R. § 2590.715-2719 apply
to the Plan, Businessolver shall serve as a conduit for external review requests. Meaning, Businessolver will send appropriate information
to, and cooperate fully with, the external review organization conducting the review. Any cost, fee or expense related to the review or
request for review shall be paid by County. If Businessolver pays any such cost, fee or expense on behalf of County, County shall reimburse
Businessolver promptly upon request.
ARTICLE 10. RED FLAGS RULE.
Section 10.1. Red Flag Compliance. For the purposes of this Article 10, “Red Flags Rule” means regulation adopted by
various federal agencies, including the Federal Trade Commission, in connection with the detection, prevention, and mitigation of identity
theft and located at Federal Register Volume 72, Issue 217 (November 9, 2007), as amended. “Covered Services” means the FSA Services
provided by Businessolver with respect to the plan or plans selected and as described in Schedule G-2 FSA Debit Card Addendum that
allow Plan participants to pay for eligible expenses under the Plan with a debit card or other stored-value card, and any other FSA Services
provided by Businessolver pursuant to these Schedules that fall under the protections of the Red Flags Rule as determined by Businessolver
in its sole discretion. To the extent applicable, Businessolver shall comply with the Red Flags Rule with respect to Covered Services. As
part of its Red Flags Rule compliance, Businessolver shall adopt, maintain, and use appropriate and commercially reasonable rules,
procedures, and safeguards to detect and identify red flags and to prevent and mitigate identify theft as required by the Red Flags Rule.
Such rules, procedures, and safeguards shall be set forth in a written program (the “Red Flags Program”). Businessolver shall, upon request,
make available to County a copy of its Red Flags Program. The parties agree that if a breach of unsecured PHI (as defined in the business
associate agreement, Exhibit F to this Contract) occurs and a violation of the Red Flags Rule occurs with respect to the same incident, both
the Red Flags Rule and the provisions of the business associate agreement (Exhibit F to this Contract) shall apply, except that the notice
requirements of the business associate agreement (Exhibit F to this Contract) shall satisfy any notice obligations under the Red Flags Rules
and this Article 10.
ARTICLE 11. WARRANTIES.
Section 11.1. Information Security Program. Businessolver represents and warrants that it has implemented and maintains a written
and comprehensive information security program, and complies with all applicable law and regulation, including without limitation state
privacy and data security law and regulation, such as the Massachusetts Standards for the Protection of Personal Information of Residents
of the Commonwealth (201 C.M.R. 17.00).
Section 11.2. Anti-Rebating Compliance. County represents and warrants that if someone other than County is making the payment
of Businessolver’s fees on behalf of County such payment does not violate any applicable anti-rebating law.
ARTICLE 12. COUNTY RESPONSIBILITIES.
Section 12.1. Compliance with Laws. County shall remain responsible for all Plan activities, including compliance with the Patient
Protection and Affordable Care Act of 2010 (the “PPACA”), the Employee Retirement Income Security Act of 1974 (“ERISA”), the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Internal Revenue Code (the “Code”), and other applicable law and
regulation.
Section 12.2. Plan Tax Obligations. The Plan and/or County on behalf of the Plan, is responsible for any state or federal tax,
fee, assessment, surcharge and/or penalty imposed, assessed or levied against or with respect to the Plan and/or Businessolver relating to
the Plan or the FSA Services provided by Businessolver pursuant to these Schedules, including those imposed pursuant to PPACA, as
amended from time to time. This includes the funding, remittance, and determination of the amount due for PPACA required taxes and
fees. In the event that Businessolver is required to pay any such tax, fee, assessment, surcharge and/or penalty, Businessolver shall report
the payment to County along with documentation of the payment and County shall promptly reimburse Businessolver for such amount (or
for County’s proportionate share of such amount), except as provided in Section 13.1. This payment shall be in addition to the fees
described in Article 2. County is at all times responsible for the tax consequences of the establishment and operation of the Plan.
Businessolver is responsible for all taxes based upon its net income and its property ownership.
Section 12.3. Non-Discriminatory Plans – 125 Plans and FSA Tests. County must maintain non-discriminatory plans and is
responsible to complete required non-discrimination tests for the Plan. As such, County is responsible for taking immediate corrective
action in the event the Plan becomes discriminatory. Businessolver will cooperate with County to implement any corrective action that is
required as a result of the failure or potential failure of one or more applicable discrimination tests.
12.3.1. At no additional charge to County, Businessolver performs the following standard quantitative non-discrimination tests
on information provided by County: (i) Section 125 25% Key Employee Concentration Test; (ii) Section 129 More than 5% Owners
Concentration Test; and (iii) Section 129 55% Average Benefits Test. These standard non-discrimination tests shall be performed twice
during the plan year unless the parties agree otherwise. All other non-discrimination tests are the responsibility of County to complete.
For an additional charge, Businessolver may provide other non-standard non-discrimination testing services including re-running a test that
is failed.
12.3.2. County must provide Businessolver with the information necessary to perform the standard non-discrimination testing
services and in the file format required by Businessolver. County’s HRIS/payroll system is the system of record for non-discrimination
testing information. Businessolver may rely on the information provided by County in performing the testing for non-discrimination
testing.
ARTICLE 13. INDEMNIFICATION.
Section 13.1. County Indemnification. County agrees to hold Businessolver harmless from and against any and all liability, damages,
costs, and losses and expenses (including attorney fees) that result from any of the following: (i) County’s breach of Section 11.2; (ii) any
failure or alleged failure of County, its officers and employees, and any other entity related to or performing services on behalf of County
(other than Businessolver) to comply with PPACA, ERISA, HIPAA, the Code, and any other applicable law or regulation or the provisions
of these Schedules.
Section 13.2. County Instruction(s). County and Businessolver agree that if County instructs Businessolver with a specific
written request (in a format acceptable to Businessolver) to provide FSA Services in a manner other than in accordance with Businessolver
standard forms and procedures, Businessolver may (but need not) comply with such a request. This would include any County request to
add a vendor link to the consumer portal. To the extent that Businessolver complies with such a request, County and not Businessolver
shall be solely responsible for Businessolver’s action so taken, and County agrees to hold Businessolver harmless from and against any
and all liability, damages, costs, losses and expenses (including attorney fees) and expressly releases all claims against Businessolver in
connection with any claim or cause of action that results from or in connection with Businessolver complying with County’s written
requests to provide FSA Services in a manner other than in accordance with Businessolver’s standard procedures.
Section 13.3. Reliance on County. County further agrees to hold Businessolver harmless from and against any and all
liability, damages, costs, losses and expenses (including attorney fees) that result from any acts or omissions by Businessolver made in
reliance upon: (i) the direction or consent of County or any agent, designee or representative of County; or (ii) inaccurate, misleading or
incomplete information received by Businessolver from anyone other than Businessolver, its partners, agents or subcontractors.
Section 13.4. County Release. County expressly releases all claims against Businessolver in connection with any claim or cause
of action based on any activity or occurrence prior to the Effective Date that results from the failure or alleged failure of County, its officers
and employees, and any other entity related to or performing FSA Services on behalf of County to comply with PPACA, ERISA, HIPAA,
the Code, and any other applicable law or regulation.
Section 13.5. County, Employee, and Plan Participant Fraud. County is solely responsible for making the Plan whole if fraud is
committed against the Plan by its employees or Plan participants. Businessolver will assist in pursuing or correcting such actions using its
standard procedures.
Section 13.6. Disclaimer. Businessolver does not insure or underwrite County’s liability to provide benefits under the Plan.
Businessolver shall not be liable or use its funds for payment of benefits under the Plan, including, without limitation, where such payment
of benefits is sought as damages in an action against County, Businessolver or the Plan.
Section 13.7. Notice of Litigation. Businessolver shall notify County promptly of any summons, complaint or other communication
concerning threatened litigation and any inquiry by any governmental agency that is related to the Plan unless such notification would be
a violation of applicable law.
ARTICLE 14. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY.
Section 14.1. General Obligations. For purposes of this Article 14, “confidential information” shall mean any information
identified by either party as “Confidential” and/or “Proprietary”, or which, under the circumstances, ought to be treated as confidential or
proprietary, including non-public information related to the disclosing party’s business, employees, service methods, software,
documentation, financial information, and product plans (including “information” as that term is defined in Section 1.5.1). Neither
Businessolver nor County shall disclose confidential information of the other party. The receiving party shall use reasonable care to protect
the confidential information and ensure it is maintained in confidence, and in no event use less than the same degree of care as it employs
to safeguard its own confidential information of like kind. The foregoing obligation shall not apply to: any information that is at the time
of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; is subsequently learned from
a third party that does not impose an obligation of confidentiality on the receiving party; was known to the receiving party at the time of
disclosure; was generated independently by the receiving party; or is required to be disclosed by law, subpoena or other process.
Businessolver may disclose County’s or the Plan’s confidential information to a governmental agency or other third party to the extent
necessary for Businessolver to perform its obligations under these Schedules or if County has given Businessolver written authorization to
do so. Each party agrees that its obligations contained in this Article 14 apply also to its partners, agents and employees, and to all of its
parent, subsidiary, and affiliated companies, if any, and to similarly bind its successors, employees, agents, and representatives.
Section 14.2. Financial Statements and Audit Information. If County requests access to certain financial statements and/or service
organization control audits or other audit information of Businessolver for the purpose of reviewing the financial, operating, and business
condition of Businessolver, County’s acceptance of or access to such confidential information shall constitute its agreement with the
following:
14.2.1. County shall maintain the information (whether communicated by means of oral, electronic or written disclosures) in
confidence and shall not use the same for its own benefit, or for any purpose other than the furtherance of its review, or disclose the same
to any third party.
14.2.2. County may only disclose the information to its own officers, employees, and agents on a need-to-know basis for the
purposes of its review.
Section 14.3. Intellectual Property. All materials, including, without limitation, documents, forms (including data collection
forms provided by Businessolver), brochures, and online content (“Materials”) furnished by Businessolver to County are licensed, not sold.
County is granted a personal, non-transferable, and nonexclusive license to use Materials solely for County’s own internal business use.
County does not have the right to copy, distribute, reproduce, alter, display or use these Materials or any Businessolver trademarks for any
other purpose other than its own internal business use. County shall use commercially reasonable efforts to prevent and protect the content
of Materials from unauthorized use. County’s license to use Materials ends on the termination date of these Schedules. Upon termination,
County agrees to destroy Materials or, if requested by Businessolver, to return them to Businessolver, Businessolver retains exclusive
ownership rights to and reserves the right to independently use its experience and know-how, including processes, ideas, concepts, and
techniques acquired prior to or developed in the course of performing FSA Services under these Schedules.
ARTICLE 15. TERM AND TERMINATION OF THESE SCHEDULES.
Section 15.1. Automatic Termination of Schedules. These Schedules shall automatically terminate under the following
circumstances:
15.1.1. If any law is enacted or interpreted to prohibit the continuance of these Schedules, upon the effective date of such law
or interpretation;
15.1.2. If County’s Contract with Businessolver is terminated under its own provisions.
Section 15.2. Run-Out Period. If these Schedules are terminated under Article 15, Businessolver will immediately cease the
performance of FSA Services unless both parties agree in writing that the FSA Services shall continue while Businessolver performs during
a run-out period. If County engages Businessolver to administer a run-out period, and upon prepayment if requested by Businessolver of
the fee for the run-out period, Businessolver will continue to process qualifying expense reimbursements and to provide general Plan
administration and FSA Services with respect to any claims that are received by Businessolver on or before the end date agreed upon by
the parties.
Section 15.3. Completion of FSA Services. Upon the termination of these Schedules and/or the Contract, Businessolver will cease
the processing of any claims that are received and County shall be immediately responsible for all aspects of its Plan, including the
processing of all claims, annual reporting, and general plan administration. Businessolver shall promptly return to County any funds in the
Custodial Account that have not been used for Plan benefit payments, along with any unpaid or other pending payment requests and/or
subsequent claims that are received after the end date of any specific run-out period. However, such return shall remain subject to the
completion of a final accounting of all account activities, as well as the deduction of any undisputed unpaid fees and other expenses under
these Schedules or any other agreement between the parties. As necessary, Businessolver shall have the immediate right to demand and
pursue collection of any unpaid fees, reimbursements or other amounts that are due and owing to Businessolver as of the date of termination
under the terms of these Schedules or any other agreement between the parties. The Contract will remain in force during any specified
run-out period.
Section 15.4. Final Accounting. Within sixty (60) days after the later of the termination of these Schedules or the specified run-out
period, Businessolver shall prepare and deliver to County a complete and final accounting and report of the financial status of the Plan as
of the date of termination together with all books and records in Businessolver’s possession and control pertaining to the administration of
the Plan, all claim files, and all reports pertaining to the Plan.
Section 15.5. Plan Data. Upon termination of this Contract, Businessolver is entitled to retain a copy of all information (as
information is defined in Section 1.5.1), including any data, records, and files released by Businessolver pursuant to Section 9.2 and to use
and disclose such information for claims and audits, and for legal and contractual compliance purposes to the extent permitted by law.
Businessolver shall retain for eight (8) years, from the date the record is created at Businessolver, Plan records under these Schedules,
including without limitation records of all assets and transactions involving the Custodial Account (defined in Article 6). Businessolver
shall cooperate with County or County’s subsequent service provider to effect an orderly transition of FSA Services provided under these
Schedules and, within a reasonable time, will release to County in Businessolver’s standard format, a copy of all data, records, and files.
SCHEDULE G-1
FSA SERVICES AND RESPONSIBILITES
I. Implementation and Ongoing FSA Services
In addition to those items identified in this Exhibit G,
A. FSA Eligibility
County Responsibilities
Determining which of its employees are eligible to participate in the respective plan
Collect the required information from employees and to inform Businessolver of such affected or eligible employees
Provide Businessolver a complete list of employees eligible to participate in the Plan
Notify Businessolver on a monthly basis of any changes in eligible employees.
Provide Businessolver with any demographic and related information that Businessolver may need to perform its
services under these Schedules.
Businessolver Responsibilities
If there are insufficient County funds available to restore the erroneous payments or the requested reimbursement of
funds would otherwise cause the Minimum Account Balance deposit to become insufficient, Businessolver may
suspend all services under these Schedules and request immediate restoration of funds from County.
B. FSA Enrollment
County Responsibilities
Assist in the enrollment of the employees in the Plan,
Cooperate with Businessolver regarding the proper settlement of claims
Transmit any inquiries pertaining to the Plan to Businessolver.
Collect from employee(s) any erroneous payments from the employee due to late enrollment.
C. FSA Online County Account- In the event County accesses services provided by Businessolver online or through any mobile
or other electronic devices (“Online Account”), County is solely responsible for the following:
County Responsibilities
Designating who is authorized to have access to the Online Account
Safeguarding all of County’s passwords, usernames, logins or other security features used to access the Online Account
(“Online Account Access”)
County’s use of the Online Account under any usernames, logins or passwords
Ensuring that use of the Online Account complies fully with the provisions of these Schedules
Any unauthorized access or use of the Online Account caused by County’s actions or inactions, including, without
limitation, its failure to safeguard the Online Account or Online Account Access.
D. FSA Debit Card Payments-- All participants in a Health FSA, or Dependent Care FSA shall automatically receive one or
more debit cards, for which the terms of the Debit Card Addendum shall control.
E. FSA Reports
Businessolver Responsibilities
Businessolver shall make available to County the following reports:
o County Funding Report (daily or monthly – the frequency of this report is dependent on funding method
selected).
o Payment History Report (on demand).
o Enrollment Report (monthly and on demand).
o Account Balance Detail Report (monthly and on demand).
o Payroll Deduction Report (frequency based on payroll frequency for auto-post groups).
o Statement of fees due to Businessolver (monthly invoice).
SCHEDULE G-2
FSA DEBIT CARD ADDENDUM
To the extent that debit cards are provided with respect to FSA accounts, the following additional provisions shall apply with respect to
the debit card services. Unless otherwise provided below, all of the provisions of the Contract shall apply to the provision of debit card
services as well. Debit cards are referred to as "Card" in this Schedule G-2- FSA Debit Card Addendum.
A. Definitions
1. “Account” means the FSA, as the context requires and as elected by County as part of this Contract
2. “Card Transaction” means when the Card is presented for payment of Qualified Services (defined below).
3. “Employee” means those employees eligible to participate in the Plan.
4. “Plan Participants” or “Participant(s)” mean individuals that are participating in the Accounts.
5. For a Health FSA, “Qualified Services” include any and all related goods and services within the meaning of the term
"medical care" or "medical expense" as defined in Code Section 213 and the rulings and Treasury regulations
thereunder to the extent that such goods and services are allowable for the Account in question.
B. General Provisions- As provided in these Schedules, County has authorized and instructed Businessolver to implement its
standard administrative procedures to provide services in accordance with these Schedules. Such standard administrative
procedures may be different for Card Transactions with respect to a Health FSA, and with respect to one or more groups of Card
Transactions, as determined solely by Businessolver. Such standard administrative procedures may change without notice, as
determined solely by Businessolver.
1. Businessolver Responsibilities:
a. Businessolver shall be responsible to provide administrative services to Participants, including updating
Participant records, maintaining accurate account balances and deposit information, activating and
deactivating Cards, responding to Participant inquiries and providing appropriate notices of actions taken.
b. Businessolver agrees to reasonably ensure compliance with proper use of the Card and take whatever action
is necessary to investigate and resolve errors in Card Transactions asserted by Participants within five (5)
business days.
c. Businessolver agrees to cancel, as soon as is practical, access to a Participant's account when a Card is
reported as lost or stolen.
d. Businessolver agrees, upon notice from County of termination or ineligibility of a Participant to deactivate,
as soon as is practical, such Participant’s Card. Should County fail to provide this notice in a timely manner
causing payment of ineligible expenses, County will be responsible for all costs incurred for subsequent Card
Transactions made by the terminated or ineligible Participant.
e. Businessolver will make available to County, for distribution to the Participants, information as to the proper
use of the Card.
2. County Responsibilities:
a. County agrees to notify Businessolver immediately upon suspicion or confirmation of inappropriate or
fraudulent Card use.
b. The liability for payment of claims falls on County or the Plan Participant. Any additional costs, including
administrative costs, shall be paid by County or Plan Participant. In no event shall Businessolver be
responsible for these payments.
c. County agrees to administer the Plan in accordance with the rules and regulations of the Plan and these
Schedules.
d. County understands and acknowledges that the origination of ACH transactions to the account must comply
with the provisions of U.S. law.
e. County agrees to provide all information to be included in any reports or other required documents in a timely
fashion, as established by the rules of all governmental entities involved with the Plan, including but not
limited to the Department of Labor and the Internal Revenue Service.
C. Settlement Provisions
1. County has, in conjunction with this Schedule, executed and delivered an Authorization Agreement for Direct Payment
form to Businessolver that, among other things, authorizes the issuer of Cards ("Issuer") to debit the account
("Account") designated by County on such Authorization Agreement for Direct Payment as more fully set forth therein
and in this Addendum.
2. All information regarding County and its Account in the Authorization Agreement for Direct Payment is true and
correct. County will provide the Issuer's company ID and routing number to County's Depository. If County wishes
to change the designated Account, County must submit the change to Issuer in writing at least ten (10) days before the
intended effective date of the change.
3. Each business day, Issuer is authorized to debit County's Account in the amount required to settle all Card Transactions
("Daily Settlement Amount"). Each business day, collected and available funds in County's Account must be greater
than or equal to the Daily Settlement Amount for the previous business day.
4. Notwithstanding whether there are sufficient funds in the Account to pay a debit originated by Issuer, County shall
reimburse Issuer for all Card Transactions irrespective of whether any authorization for a Card Transaction was made
in accordance with the terms of the applicable health or other County Plan.
5. If County fails to fund the Account to settle with Issuer for Card Transactions, fails to reimburse Issuer for all Card
Transactions, or breaches its obligations to Issuer, Issuer may, at its option, suspend or terminate all Cards or change
the method by which County may settle with Issuer for Card Transactions, including requiring County to prefund a
settlement account at Issuer.
6. County acknowledges that Issuer is not a party to the Contract between County and Businessolver and Issuer has no
obligation or responsibility to process and or adjudicate benefit claims. Issuer's sole role is to issue Cards and to make
settlements arising from Card Transactions based solely on information provided to it by the Card processor.
7. County acknowledges that the Issuer shall be deemed to be a third party beneficiary with respect to this Addendum
with full rights to rely upon and enforce the provisions thereof.
D. Other Provisions. Card Transactions and direct deposit payments will be settled directly to the County Account at the depository
financial institution designated by County and on record with Businessolver. Changes to County Account information must be
made by completing a new Authorization Agreement for Direct Payment form (provided by Businessolver) and submitting it to
Businessolver. This authorization is to remain in full force and effect until Businessolver and Issuer receive written notification
from an authorized representative of its termination in such time and in such manner as to afford Businessolver, Issuer and
Depository a reasonable opportunity to act on it.
E. Remittance of Funds. In order to settle the amounts expended by County’s Cardholders pursuant to the Stored Value Card
Services, Businessolver or the third-party service provider designated by Businessolver will initiate debits to County's designated
bank account (the “Account”). Such debits shall be initiated on a daily basis or on such other Schedules as may be set forth in
an ACH Agreement, Debit Authorization or as may be communicated to County from time to time. County shall receive notice
via email prior to any such debit, and a settlement report from Businessolver detailing the amounts expended by County’s
Cardholders within a reasonable period after such debit. County covenants and agrees to have at all times sufficient good and
available funds in the Account to satisfy all debits initiated in connection with the Stored Value Card Services. In the event the
Account does not contain adequate funds to satisfy such debit, County shall immediately wire to Businessolver or such third
party card service provider designated by Businessolver the amount necessary to satisfy such debit and, in addition to any other
remedies available to Businessolver, Businessolver shall charge, and County shall pay, a nonsufficient funds (“NSF”) charge for
each NSF occurrence.
SCHEDULE G-3
FEES AND SERVICES
FSA Services and Recordkeeping
Plan design and set up Included
Web enrollment Included
Online enrollment presentation (Health FSA and Dependent Care FSA Only) Included
Debit card Included
Claims Based or Deduction/Contribution Based Included
Maintain and update employee FSA Included
Automatic email to participant when claims received and reimbursement is made Included
Adjudicate FSA reimbursement requests Included
IIAS compliant debit card Included
Daily processing of reimbursement requests Included
Issue direct deposit to participant savings or checking accounts Included
Issue reimbursement checks to participants Included
Postage for standard mailings Included
Process claims during plan year run-out period Included
Reconcile records to County’s payroll, if applicable Included
Administration for 2 ½ month grace period extension, if applicable Included
Retain records for 8 years from the date the record is created at Businessolver Included
Reporting and Communication – County
County Web portal Included
County Administrative Guide Included
Daily, weekly, and/or monthly reporting available on status of account balances Included
Consult on interpretation of applicable law Included
Reporting and Communication – Participant
Employee Administrative Guide Included
Enrollment Materials Included
Statement included with each reimbursement check Included
Communication concerning ineligible claims Included
Online access to account information 24/7 Included
Quarterly emailed statements to participants Included
Account balance statement sent 60 days prior to end of plan year (FSA Only) Included
Toll-free County service line, Monday through Friday (Central Time Zone)
Clients 7:00 a.m. to 7:00 p.m. Included
Participants 6:00 a.m. to 9:00 p.m.
In compliance with applicable federal and state law, Businessolver may monitor and/or record calls that are
made to and from the County service line for quality assurance and training purposes and/or to ensure that
Businessolver’s services fully comply with the terms of the Contract.
Compliance
Generic sample plan document (Section 125, FSA only) Included
Generic sample summary plan description Included
Generic sample plan document and summary plan description updates Included
Information for annual 5500 Filing (Health FSA) Included
Section 125 25% Key employee concentration non-discrimination testing Included
Section 129 55% Average benefits non-discrimination testing Included
Section 129 More than 5% Owners concentration non-discrimination testing Included
Additional 125 Plan and FSA non-discrimination testing and related services Included
SCHEDULE G-4
FSA SERVICES APPOINTMENT OF CUSTODIAN
By signing this Contract, County appoints Businessolver’s designee, Discovery Benefit, Inc. (“DBI”), as Custodian of County
funds for the purposes and upon the terms and conditions set forth in these Schedules, and DBI accepts such appointment and
agrees to act as custodian hereunder and to hold any County funds received hereunder in accordance with the terms and conditions
set forth in this Contract.
Custodian agrees it shall maintain one or more depository accounts (“Custodial Account”) at Bell Bank (“Bank”), Fargo, North
Dakota.
Any notice required or permitted to be given to Discovery Benefits, Inc. under these Schedules shall be provided as follows:
Discovery Benefits, Inc.
4321 20th Avenue South
Fargo, ND 58103
Attention: Chief Compliance Officer/EVP