MOU BETWEEN CHS AND ADULT PROBATION RE TECHCARE SIGNED BY PJ.PDF

MEMORANDUM OF UNDERSTANDING
BETWEEN
MAR1COPA COUNTY BY AND THROUGH ITS
DEPARTMENT OF CORRECTIONAL HEALTH SERVICES
AND
THE SUPERIOR COURT OF ARIZONA IN MARICOPA COUNTY BY AND THROUGH
ITS ADULT PROBATION DEPARTMENT
This Memorandum of Understanding ("MOW) is between Maricopa County, a political
subdivision of the state, by and through its Department of Correctional Health Services
("County" or "CHS") and the Superior Court in and for Maricopa County, Arizona, by and
through its Adult Probation Department in Maricopa County (hereafter, "Court" or "APD")
(collectively, "Parties").
BACKGROUND
1. The County and Court are separate entities; however, the County is legally required to
fund, support and house the Court and its employees. The Parties acknowledge that
CHS currently operates the TechCareTm Electronic Health Records Application
System ("TechCarer" EHR App") under its contract with NaphCare, Inc. for related
software licenses and installation services. The licensed counselors of APD are in
need of an electronic medical records system. The Parties recognize they have
common clients and use of electronic health records and electronic health information
exchange is essential to improving the quality of care, safety, and efficiency of their
health care and counseling services. In addition to achieving these benefits,
appropriate privacy and security safeguards on health information must be
established and enforced.
PURPOSE
2. The purpose of this MOU is to set forth the terms and conditions under which APD will
be allowed to access and utilize the TechCareT 64 EHR App. Also, for the purpose of
meeting the needs of clients common to the Parties, this MOU will enable data sharing
of confidential client information where access to a client's medical records is
permitted under federal and state law, including, but not limited to, the Health
Insurance Portability and Accountability Act of 1996 ("H1PAA").
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TERM
3. The term of this MOU shall begin on the date it is signed and continue for ten (10)
years unless terminated by either party with or without cause, upon thirty (30) days'
written notice to the other party; provided, however, that either party may terminate
this MOU, in whole or in part, immediately upon providing either written or verbal
notice when the terminating party deems the health or welfare of a client is
endangered or performance would be in violation of the law or order of a court of law.
SCOPE
4. Definitions.
a. "Authorized Use" means the use and exchange of electronic health records in
the TechCarenA EHR App for treatment, payment, and healthcare operations
where permitted under federal and state law, including, but not limited to,
HIPAA and 42 CFR Part 2. Circumstances for Authorized Use include the
following: the client has signed an authorization for the release of his or her
protected health information and/or protected substance abuse treatment
information on a form that meets the requirements of HIPAA and/or 42 CFR
Part 2, as applicable; or a court order directs release of the client's records to
APD or CHS, as applicable; or an exception under federal law applies.
Authorized Use does not include the use or disclosure of electronic health
records to third parties.
b. "Protected Health Information (PHI)" shall include electronic health information
and shall have the same meaning given to the term "protected health
information" under the HIPAA Rules, including, but not limited to, health
information that (1) is created or received by either CHS or APD, (2) relates to
the physical condition, mental health or other health condition of an individual,
or to the provision of health care to an individual (including but not limited to the
payment for such health care), and (3) identifies or can be used to identify an
individual.
c. "Security Breach" means (i) any act or omission that materially compromises
either the security, confidentiality or integrity of PHI or the physical, technical,
administrative or organizational safeguards put in place that relate to the
protection of the security, confidentiality or integrity of PHI, or (ii) receipt of a
complaint in relation to the privacy practices of a party or one of its employees
or a breach or alleged breach of this MOU relating to such privacy practices.
5. Limited Use of the TechCare TM EHR App. CHS hereby grants, at no cost to APD,
a limited software use and record access license to APD for the term of this MOU with
respect to the TechCare TM EHR App. For purposes of this MOU, "limited software
use" includes access for APD to use the TechCareml EHR App to create and store
APD's electronic health records concerning APD's clients.
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6. Limited Access to EHR. APD may only have limited access to CHS's electronic
health records for the purpose of continuity of treatment and care of common clients of
OHS and APD when Authorized Use is permitted. APD's access to CHS's electronic
health records is limited to a "read only" file. Likewise, OHS may only have limited
access to APD's electronic health records for the purpose of continuity of treatment
and care common clients of CHS and APD when Authorized Use is permitted. CHS's
access to APD's electronic health records is limited to a "read only" file.
7. No Warranty. OHS does not and cannot warrant the electronic health records and
the TechCareTm EHR App or any other software that is the platform for the Parties'
electronic health records. APD recognizes that it uses the electronic health record
data and software at its own risk.
8. Organized Health Care Arrangement. The Parties acknowledge that their
performance under this MOU may constitute an organized health care arrangement
("OHCA"), as recognized under the HIPAA Privacy Rule, which allows providers
providing healthcare to a common set of patients to share PHI about their patients in
order to manage and benefit their treatment, payment, and healthcare operations.
To that end, they agree to exchange and work cooperatively on the content of a notice
of privacy practices to be provided to all APD clients and CHS clients. Should the
need to enter into a Business Associate Agreement arise, the Parties agree to take all
reasonable steps to execute said agreement.
9. Compliance Monitoring. The Parties shall each monitor their own respective
compliance with, and performance under, the terms and conditions of this MOU.
Notwithstanding the foregoing, CHS may conduct quality assurance audits from time
to time to assess the proper access and utilization of the TechCare TM EHR App. In
the event of an audit, APD shall be notified in advance and expected to cooperate with
the audit and provide reasonable access to APD stations using the TechCareT" EHR
App.
10. Security Breach. In the event either party becomes aware of a suspected or actual
Security Breach involving PHI of another party's client, the notifying party shall
immediately report the matter to the receiving party's privacy official or designee.
Each party shall post the following notice in the respective working areas where the
TechCareTm EHR App is installed: "Report any suspected security or privacy
breach, incident or emergency involving protected health information to the
[insert title and phone number of department's privacy official) a.s.a.p."
OBLIGATIONS OF THE PARTIES
11. Responsibilities of the County by and through CHS:
a. OHS shall, through normal procedures, manage user provisioning, including
supplying TechCare TM EHR App client install to APO, construction associated
with forms creation, and overseeing any TechCareim EHR App maintenance,
changes and/or updates that may arise.
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b. CHS shall provide APD limited technical assistance, as may be requested,
relevant to APD's obligations in managing its privacy and security policies and
procedures and use of the relevant data. CHS shall provide APD with initial
setup and training support on the use of the TechCare TM EHR App. CHS shall
provide APD the system administration services necessary for secure access
and routine operation of the TechCaremi EHR App consistent with the
objectives of this MOU.
c. CHS shall not allow any use of APD's electronic health records or PHI of APD's
clients by a third party or any other department, division, unit, employee, or
other affiliated entity or individual connected with CHS without APD's express
written consent; provided, however, that CHS may allow its employees and
agents to use said electronic health records and PHI to carry out the purposes
of this MOU, consistent with its terms and conditions.
d. CHS shall retain full and complete ownership of all records and PHI contained
within the TechCare TM EHR App post maturation of the contractual obligations
herein as required by HIPAA and all applicable regulations and follow
appropriate retention schedules. A data file containing the medical records of
APO clients shall be provided upon APD's request, at cost to APD.
e. CHS shall work cooperatively with APD to resolve questions and concerns
about incomplete or inaccurate information in the TechCare TM EHR App.
f. CHS shall work cooperatively with APD to best support the purpose of this
MOU, including information sharing and meeting confidentiality requirements,
and appoint a CHS liaison to work with APD to fulfill the requirements of this
MOU.
12. Responsibilities of the Court by and through APD:
a. APD shall be responsible for any costs associated with development of new
functionality or memory space in the TechCareTm EHR App that APD may
require in connection with creating and maintaining its own client records, per
the vendor's pricing as indicated under the County's vendor contract number
10135-C. The Parties will work cooperatively on any contracts or contract
amendments with vendors of the County and/or the Court that may be required
for performance under this MOU.
b. To the extent needed by APD, APD shall be responsible for costs (e.g.,
payment of wages) incurred for CHS personnel required to add, modify or
create functionality in the TechCareTm ERR App or provide training to APD
personnel about the TechCareTm ERR App. APD agrees to provide the
necessary hardware, equipment and accessibility to support its use of the
TechCare TM EHR App.
c. APD shall not allow any use of the TechCarem ERR App, CHS's electronic
health records, or PHI of CHS's clients by a third party or any other department,
division, unit, employee, or other affiliated entity or individual connected with
APD without CHS's express written consent; provided, however, that APD may
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allow its employees and agents to use the TechCareTm EHR App and CHS's
electronic health records and PHI of CHS's clients to carry out the purposes of
this MOU, consistent with its terms and conditions.
d. APD shall ensure that every APD employee authorized to access the
TechCareTm EHR App is instructed concerning the confidential nature of PHI
and the applicable prohibitions against its disclosure, and the terms and
conditions of sections 76 and 101 of this MOU.
e. APD shall work cooperatively with CHS to resolve questions and concerns
about incomplete or inaccurate information in the TechCaren' EHR App.
f. APD shall work cooperatively with CHS to best support the purpose of this
MOU, including information sharing and meeting confidentiality requirements,
and appoint an APD liaison to work with CHS to fulfill the requirements of this
MOU.
MISCELLANEOUS TERMS
13. Cancellation for Conflict of Interest: In accordance with A.R.S. § 38-511, if within
three (3) years of the execution of this MOU, any person significantly involved in the
initiating, negotiating, securing, drafting or creation of this MOU becomes an
employee or agent of the other party to the MOU in any capacity or a consultant to the
other party with respect to the subject matter of this MOU, either party may cancel this
MOU.
14. Availability of Funds: Notwithstanding the foregoing, the provisions of this MOU
involving payment for services and/or software licenses shall become effective when
funds assigned for such purpose are actually available to the Parties for
disbursement. The Parties shall be the sole judge and authority in determining the
availability of funds necessary to support this MOU. The Parties shall keep each
other fully informed as to the availability of funds. If any action is taken by any state
agency, federal department or any other agency or instrumentality to suspend,
decrease, or terminate its fiscal obligations under, or in connection with, this MOU, the
Parties may amend, suspend, decrease, or terminate their obligations under, or in
connection with, this MOU. In the event of termination, the Parties shall be liable for
payment only for services rendered prior to the effective date of the termination,
provided that such services are performed in accordance with the provisions of this
MOU.
15. Audit of Records: Pursuant to A.R.S. §§ 35-214 and 35-215, Maricopa County
shall retain all of its records relating to this MOU for a period of no less than five (5)
years after completion of the MOU. All records shall be subject to inspection and audit
by the State of Arizona at reasonable times. Upon request, Maricopa County shall
produce the original of any or all such records at the offices of the Court.
16. Non-Discrimination: The parties shall comply with Executive Order 2009-9, which
mandates that all persons, regardless of race, color, religion, sex, age, or national
origin shall have equal access to employment opportunities, and all other applicable
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state and Federal employment laws, rules, and regulations, including, but not limited
to, Title VI and VII of the Federal Civil Rights Act; the Federal Rehabilitation Act; the
Age Discrimination in Employment Act; and the Americans with Disabilities Act, as
amended. The parties shall take affirmative action to ensure that applicants for
employment and employees are not discriminated against due to race, creed, color,
religion, sex, national origin or disability.
17.1ndemnification: To the extent permissible under A.R.S. §§ 41-621 et seq. and
§ 11-981 and not prohibited by A.R.S. § 35-154, each party (as "Indemnitor") agrees
to indemnify, defend, and hold harmless the other party (as "Indemnitee"), including
any of the party's departments, agencies, officers, employees, elected officials or
agents, from any and all claims, losses, liabilities, costs or expenses (including
reasonable attorneys' fees) (hereinafter collectively referred to as "Claims") arising out
of its performance under this MOU, but only to the extent that such Claims which result
in vicarious/derivative liability to the Indemnitee are caused by the act, omission,
negligence, misconduct, or other faults of the Indemnitor, its officers, officials, agents,
employees, or volunteers.
18.Verification Regarding Compliance with A.R.S. § 41-4401: Each party warrants
that it is in compliance with A.R.S. § 41-4401 and further acknowledges that:
a. Any contractor or subcontractor who is contracted by a party to perform work
related to this MOU shall warrant their compliance with all federal immigration
laws and regulations that relate to their employees and their compliance with
A.R.S. § 23-214(A);
b. Any breach of a warranty listed above shall be deemed a material breach of this
MOU that is subject to penalties up to and including termination of this MOU;
c. The Parties retain the legal right to inspect the papers of any contractor or
subcontractor employee who performs work related to this MOU to ensure that
the contractor or subcontractor is complying with the warranty above and that
the contractor agrees to make all papers and employment records of said
employee available during normal working hours in order to facilitate such an
inspection; and
d. Nothing in this MOU shall make any contractor or subcontractor an agent or
employee of the Parties to this MOU.
19. Compliance with Law: Each party shall comply with all applicable federal and state
laws, ordinances, Executive Orders, rules, regulations, and codes whether or not
specifically referenced herein. To the extent that any term or provision of this MOU is
not in compliance with any such applicable laws, ordinances, Executive Orders, rules,
regulations, or codes, the County and Court shall negotiate in good faith to amend
such term or provision so as to prevent or eliminate such failure to comply.
20. No Implied Authority: This MOU does not imply authority to perform any tasks, or
accept any responsibility, not expressly stated in this MOU. Nor does this MOU
create a duty or responsibility unless the intention to do so is clearly and
unambiguously stated in this MOU.
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21. Entire Agreement: This MOU contains the entire agreement between the Parties
with regard to the undertakings contained herein.
22.Amendments: This MOU may be amended from time to time only by written
agreement of the Parties.
23. Severability and Waiver: The invalidity or unenforceability of any term or provision
of this MOU shall in no way affect the validity or enforceability of any other term or
provision. The waiver by a party of a breach of any provision of this MOU shall not
operate or be construed as a waiver of any subsequent breach thereof.
24.Relationship of Parties: The Parties acknowledge that each is a separate and
independent entity and each will act in its individual capacity and not as an agent,
employee, partner, joint venturer, or associate of the other. An employee or agent of
one party shall not be deemed or construed to be the employee or agent of the other
for any purpose whatsoever.
25. Governing Law. This MOU shall be construed in accordance with the laws of the
State of Arizona.
26. No Third Party Beneficiaries: Nothing in this MOU is intended to create any third
party beneficiary rights, and the Court and County expressly state that this MOU does
not create any third party rights of enforcement.
27. Counterparts: This MOU may be executed in two or more counterparts, each of
which shall be deemed an original and when taken together shall constitute one
agreement.
28. Assignment: Except as expressly provided herein, no party may delegate or assign
its rights or responsibilities under this MOU without prior written approval of the other
party.
29. Notices. Communication and details concerning this MOU shall be directed to the
following party representatives:
COUNTY: COURT:
Rebecca L. Quince Therese Wagner, Deputy Chief
Business Integration & Technology Manager Assessment and Development
Maricopa County Correctional Health Servs. Maricopa County Adult Probation
234 N. Central Ave., Ste. 5000 620 W. Jackson St.
Phoenix, AZ 85004 Phoenix, AZ 85003
Phone: (602) 506-0897 Phone: (602) 506-6460
Cell: (602) 319-8682 Email: wagnert000mail.maricopa.gov
Fax: (602) 506-2577
Email: quincer@mail.rnaricopa.00v
[Signature Pages to Follow]
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SIGNATURE PAGE
MARICOPA COUNTY SUPERIOR COURT OF ARIZONA
IN MARICOPA COUNTY
Approved and Accepted by: Approved and Accepted by:
Clint Hickman, Chairman Date Janet E. Barton, Presiding Judge Date
Board of Supervisors
Attested to:
Clerk of the Board Date
Approved as to form:
Deputy County Attorney Date
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