Emergency Medical Services Restocking Agreement Banner Health
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City of El Mirage Fire Department – 0101-03-106555 (04.10.2020) MRS
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EMERGENCY MEDICAL SERVICES RESTOCKING AGREEMENT
ARIZONA FACILITIES
(0101-03-106555)
This Emergency Medical Services Restocking Agreement (the “Agreement”) is entered
into effective as of the last date of signature (“Effective Date”) between Banner Health, an
Arizona nonprofit corporation on behalf of itself and as agent for its consolidated affiliates
(“Banner”) and City of El Mirage Fire Department (“EMS Agency”).
RECITALS:
A. Banner operates a number of medical centers licensed by the State of Arizona.
B. EMS Agency is licensed by the State of Arizona to provide emergency medical services and
desires to utilize Banner facilities to restock supplies and pharmaceuticals for patients
received by Banner.
C. The parties intend that this Agreement will apply to all medical centers operated by Banner
in the State of Arizona.
NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter
set forth, the parties covenant and agree as follows:
AGREEMENT:
1.
Banner Responsibilities.
1.1
Banner will establish a procedure for replenishing pharmaceutical and other
medical supplies (“Supplies”) expended during EMS Agency ’s treatment of any
patients and those persons transported to a Banner facility pursuant to Exhibit A.
1.1.1 Items in the drug box are restricted to those identified in Arizona
Administrative Code, Title 9, Chapter 25, Article 5, Section R9-25-502; in
Table 1, Table 2, or Table 3 on
https://www.azdhs.gov/preparedness/emergency-medical-services-trauma-
system/index.php#chapter-25 or under an emergency rule by ADHS’s
Bureau of Emergency Medical Services. Exceptions can be made by the
Administrative Medical Director for pilot studies, expanded scopes of
practice, such as Haz-Mat Paramedics, Tactical Operating Unit
Paramedics, Wilderness Paramedics, Wildland Paramedics, or EMCTs of
all levels in a disaster situation.
1.1.2 Banner and EMS Agency will adhere to the drug box implementation
procedures contained in Section R9-25-201(F) of the ADHS regulations.
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1.1.3 Banner will establish and implement a procedure which meets applicable
federal and state requirements to assure the appropriate disposal of
contaminated waste expended during the treatment of any patients
transported to a receiving Banner facility. EMS Agency may dispose of
such waste at a Banner facility.
1.2
Banner may provide continuing education, including education relating to
restocking policies and procedures, as agreed upon between Banner and EMS
Agency.
1.3
Banner will utilize and adhere to the medical control plans adopted by the local
Arizona Emergency Medical Services coordinating system.
2.
EMS Agency Responsibilities.
2.1
EMS Agency will be responsible for all required personnel and equipment.
2.2
EMS Agency will comply with all Banner policies and procedures related to
restocking.
2.3
EMS Agency will initiate a patient care report for each patient contact. When
transported to a receiving Banner facility, the patient(s), the patient care report(s),
and the care of the patient(s) will immediately be transferred to that facility and
become the responsibility of the receiving Banner facility. EMS Agency will
provide Banner’s Pre-Hospital Coordinator with copies of the patient care
record(s) in a timely manner.
3.
Term and Termination. The term of this Agreement will begin on the Effective Date,
will continue for a period of one year, and will automatically renew for successive one
year terms. This Agreement may be terminated by either party at any time without cause
and without penalty by giving the other party at least 30 days’ prior written notice.
4.
Additional Requirements.
4.1
Independent Contractor Status. EMS Agency is an independent contractor to
Banner. Neither EMS Agency nor its personnel are deemed employees of
Banner. Nothing in this Agreement creates an employer-employee relationship,
partnership, franchise, joint venture or agency relationship between the parties,
and EMS Agency will not represent to any third party that any such relationship
exists. EMS Agency has and will retain the right to exercise full control and
supervision of the emergency medical services, and full control over the
employment, direction, compensation and discharge of all personnel assisting
EMS Agency in the performance of the emergency medical services. EMS
Agency will be solely responsible for the payment of all social security, self-
employment, federal, state and local income taxes, disability insurance, workers’
compensation insurance, fees, licenses and any other statutory benefits provided
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to its personnel. EMS Agency will hold Banner harmless for EMS Agency’s
failure to comply with any of its obligations under this Section.
4.2
Mutual Indemnification. Each party will indemnify, defend, and save harmless
the other party for, from and against all actions, liabilities, losses, damages,
claims and demands whatsoever, including costs, expenses and attorneys’ fees
resulting from, or claimed to have resulted from, any intentional or negligent acts
or omissions of the indemnifying party or its employees or agents engaged in the
work under this Agreement at the time of the event or occurrence upon which
such actions, claims or demands are based or a material breach by a party of any
of its representations or warranties under this Agreement. Where both Banner and
EMS Agency, including their respective employees or agents, participated in the
liability causing event, each party will contribute to the common liability a pro
rata share based upon its relative degree of fault.
4.3
Insurance. EMS Agency will maintain insurance coverage during the term of this
Agreement, provided by an insurer with a minimum A-VII rating, and will
provide Banner with 30 days’ prior written notice of termination or substantial
coverage change. Coverage will include professional liability, general liability,
and business auto of at least $1,000,000 per occurrence and $3,000,000 in the
annual aggregate. Where the services described in this Agreement include control
of Banner’s data or PHI, or the use or development of IT hardware or software,
coverage also will include cyber insurance coverage of at least $1,000,000 per
occurrence and $3,000,000 in the annual aggregate. All policies will stipulate that
the insurance will be primary insurance, that any self-insurance carried by Banner
will not be contributory insurance, and will name Banner as an additional named
insured. EMS Agency must waive, and require its insurers to waive, any and all
recovery rights that any insurer of EMS Agency may have against Banner by
virtue of the payment of any loss under any insurance. Notwithstanding any
limitations set forth in this Agreement, if a claim would be covered by the
insurance required to be carried under this Agreement, then in lieu of any
limitations set forth herein, the insurance required by this Agreement will apply.
4.4
Compliance with Employment Laws. EMS Agency agrees to comply with all
federal, state, and local laws, regulations, ordinances, and orders regarding
employment, employment practices, terms and conditions of employment, worker
classification, prohibited discrimination, equal employment, fair employment
practices, meal and rest periods, immigration, employee safety and health, wages,
compensation, affirmative action where applicable, and hours of work. Banner is
a federal contractor obligated to comply with federal, state, and local
requirements governing immigration, equal employment, and affirmative action,
including, but not limited to, 42 USC §§2000(e) et seq., the Civil Rights Act of
1964, the Civil Rights Act of 1991, Sections 503 and 504 of the Rehabilitation
Act of 1973, the Vietnam Era Veterans Readjustment Assistance Act, 38 USC
§4212, as amended, Executive Order 11246 of September 24, 1965, Executive
Order 13496 of January 30, 2009, and all amendments and applicable regulations
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pertaining to any of them, including 41 CFR §§60.1.4(a)(7), 60-250.5, 60-300.5
and 60-741.5 (imposing anti-discrimination and affirmative action requirements).
4.5
Change in Law; Regulatory Termination. If any law, regulation or rule is enacted
or modified or there is any substantial change in the judicial or administrative
interpretation of an existing law, regulation or rule, in either case in a manner that
materially and adversely affects a party’s ability to perform under this Agreement
or to realize the intended benefits of this Agreement, or if any governmental entity
determines that this Agreement is illegal or jeopardizes Banner’s tax exempt
status, then either party may, in lieu of giving a notice of termination, give written
notice of such event to the other party and the parties will thereafter use their best
efforts to modify this Agreement in a manner that mitigates the effect of the
change or removes the illegality or jeopardy to tax exempt status. If no
modification can be agreed upon by the parties within a reasonable period
following the notice (not to exceed 30 days), then either party, in its discretion,
may terminate this Agreement immediately by written notice to the other party. If
no cure is implemented by the parties, or if no cure is possible, then either party in
its discretion may terminate this Agreement with such notice as is reasonable
under the circumstances.
4.6
Notice. Any notice required to be given under this Agreement will be in writing,
and will be deemed delivered to the party to whom the notice is sent (a) when
personally delivered, (b) one business day after the same is sent by overnight
delivery service, or (c) three days after the same is sent by certified mail, postage
prepaid, addressed to such party at the address that follows or to such other
address as such party may hereinafter designate in writing:
If intended to EMS Agency: City of El Mirage Fire Department
13601 N. El Mirage Road
El Mirage, AZ 85335
Attn: Fire Chief
If intended to Banner:
Banner Health
2901 N. Central Avenue, Suite 160
Phoenix, AZ 85012
Attn: Sr. Director, Acute Pharmacy Services
With a copy to:
Banner Health
2901 N. Central Avenue, Suite 160
Phoenix, AZ 85012
Attn: General Counsel
4.7
HIPAA. Banner is required to comply with the standards for privacy of
individually identifiable health information and the security standards for the
protection of electronic protected health information under the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”), as amended, together with
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its implementing regulations promulgated under HIPAA and the Health
Information Technology for Economic and Clinical Health Act by the United
States Department of Health and Human Services ("HHS"). If AME Agency
creates, receives, maintains or transmits protected health information for or on
behalf of Banner, EMS Agency will execute a Business Associate Agreement.
4.8
Confidentiality and Nondisclosure. EMS Agency acknowledges that EMS
Agency may have access to confidential and proprietary information of Banner
(the “Proprietary Material”) through the performance of the emergency medical
services or as a result of this Agreement. EMS Agency will keep confidential all
Proprietary Material by exercising the same degree of care toward such material
as EMS Agency does with respect to its own confidential and proprietary
information of like importance, but, in any case, using no less than a reasonable
degree of care. EMS Agency will not disclose, distribute, publish, transmit,
transfer or disassemble the Proprietary Material or use the Proprietary Material
for its own or any other party’s benefit, except in furtherance of its obligations
under this Agreement. EMS Agency will limit access to the Proprietary Material
to only those individuals who need to know such information for carrying out
EMS Agency’s obligations hereunder. EMS Agency will ensure that its personnel,
agents, consultants and representatives who are given access to the Proprietary
Material will be bound by and comply with the terms of this Agreement. The
nondisclosure provisions of this Agreement will be in effect during the term of
this Agreement and will survive termination, and EMS Agency’s duty to hold the
Proprietary Material in confidence will remain in effect until the Proprietary
Material no longer qualifies as confidential information or a trade secret under
applicable law. For purposes hereof, the Proprietary Material includes, but is not
limited to, documents, records, reports, data, patient health information,
demographic information, plans, concepts, ideas, processes, procedures, policies,
designs, discoveries, inventions, marketing plans, methodologies, specifications,
pricing information, and other business information relating to Banner’s business,
assets, operations or contracts, regardless of whether such information has been
expressly designated as confidential or proprietary. The Proprietary Material may
be provided in written, oral, electronic or other form. The Proprietary Material
will not include any information that (a) is now or becomes generally known or
available to the public through no fault of EMS Agency; (b) was known by EMS
Agency before receipt from Banner without any obligation of confidentiality; (c)
is rightfully obtained by EMS Agency from a third party without breach of any
obligation to the disclosing party; or (d) is independently developed by EMS
Agency without use of or reference to any of the Proprietary Material.
4.9
No Referral. This Agreement is limited solely to Banner’s contractual
arrangement with EMS Agency to provide the services in accordance with the
terms of this Agreement. EMS Agency acknowledges and agrees that there is no
intent, agreement, understanding or requirement pursuant to which EMS Agency
or any other person or entity affiliated with EMS Agency has any obligation to
admit, refer or recommend patients to any hospital or facility owned or operated
by Banner.
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4.10
Assignment. This Agreement may not be assigned by either party without the
prior written consent of the other party. If consent to an assignment is obtained,
this Agreement is binding on the assigns of the parties to this Agreement.
Notwithstanding anything to the contrary in this Agreement, Banner may assign
or otherwise transfer its interest under this Agreement to any “related entity”
without the consent of the other party. For the purposes of this Section, a related
entity will be deemed to include a parent, a subsidiary, any entity that acquires all
or substantially all of Banner’s assets or operations relating to this Agreement,
and the surviving entity of any merger or consolidation involving Banner.
4.11
Integration and Amendment. This Agreement and any Exhibits contains the entire
agreement between the parties with respect to the subject matter hereof. All prior
negotiations between the parties are merged in this Agreement, and there are no
understandings or agreements other than those incorporated herein. This
Agreement may not be modified except by a written instrument signed by both
parties to this Agreement.
4.12
Force Majeure. Neither party will be liable for any delay in performance or any
failure in performance caused in whole or in part by reason of force majeure,
which will be deemed to include the occurrence of any event beyond the control
of the parties, including, without limitation, war (whether an actual declaration
thereof is made or not), sabotage, insurrection, riot and other acts of civil
disobedience, action of a public enemy, laws, regulations or acts of any national,
state or local government (or any agency, subdivision or instrumentality thereof),
judicial action, accident, fire, explosion, flood, storm or act of God.
4.13
Severability. If any provision of this Agreement, or any application thereof to any
person, is determined to be invalid or unenforceable to any extent, the remainder
of this Agreement, and the application thereof to other persons or circumstances,
will not be impaired, and will be enforced to the fullest extent permitted by law.
4.14
Supersede and Replace. This Agreement is intended to supersede and replace any
existing agreements between the parties with regard to the subject matter
contained herein.
4.15
Transactional Conflicts of Interest. The parties hereto both acknowledge that this
Agreement may be subject to cancellation by EMS Agency pursuant to provisions
of A.R.S. § 38-511.
4.16
Definitions. Unless otherwise specified herein, the terms used in this Agreement
will have the same meanings as those defined in Arizona Administrative Code §
R9-25-101.
4.17
No Federal Exclusion or Preclusion. EMS Agency represents and warrants that
neither it nor any of its employees, directors, officers, equity owners,
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subcontractors or agents under this Agreement (each, an “EMS Agency
Representative”) are excluded or precluded from participation, or are otherwise
ineligible to participate, in a “federal health care program” (as defined in 42 USC
§1320a-7b(f)) or in any other government payment program, and that no such
action is pending. EMS Agency will assess the status of the EMS Agency
Representatives prior to hire or contracting and on a monthly basis thereafter as
required by HHS or the Centers for Medicare and Medicaid Services. EMS
Agency will notify Banner in writing within three days of either of the following:
(a) the discovery of any debarment, exclusion, preclusion, suspension or other
event that makes EMS Agency or any EMS Agency Representative ineligible to
participate in a federal health care program or any other government payment
program; or (b) any conviction of EMS Agency or any of the EMS Agency
Representatives of a criminal offense that falls within the scope of 42 USC
§1320a-7(a), even if they have not yet been excluded, precluded, debarred,
suspended or otherwise declared ineligible. Such notice will contain reasonably
sufficient information to allow Banner to determine the nature of any sanction.
EMS Agency will be responsible for any and all expenses and lost revenue
incurred by Banner as a result of EMS Agency’s failure to screen or to notify
Banner of any such occurrence. EMS Agency will also be responsible for any and
all related expenses and lost revenue directly or indirectly caused by EMS
Agency’s failure to identify excluded or precluded individuals, including
reimbursement of Banner for any amounts Banner is required to repay to any
federal health care program or any amounts that Banner is unable to bill for
reimbursement because of the involvement of an excluded or precluded individual
in the provision of the services described in this Agreement. If EMS Agency is in
breach of this Section or upon the occurrence of such exclusion, preclusion,
debarment, suspension or conviction of EMS Agency or any EMS Agency
Representative, whether or not notice is given, Banner may immediately terminate
this Agreement.
4.18
Non-Exclusive Agreement. This Agreement is not exclusive. EMS Agency is free
to contract with other parties to obtain restocking services, and Banner is free to
contract to provide restocking services to other EMS agencies.
4.19
Access to Books and Records. As required under 42 CFR §420.302, EMS
Agency agrees, until the expiration of four years after the furnishing of the
services described in this Agreement, to make available, upon request, to the
Secretary of HHS, the Comptroller General of the United States, or any of their
duly authorized representatives, the contracts, books, documents and records that
are necessary to certify the nature and extent of reimbursable costs under the
Medicare laws. If EMS Agency carries out any of the services under this
Agreement through a subcontract with a value or cost of $10,000 or more over a
12-month period with a related organization, such subcontract will contain a
requirement identical to that set forth in the preceding sentence.
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4.20
Governing Law. This Agreement will be governed by the internal substantive law
of the State of Arizona, without regard for the conflict of law principles thereof.
4.21
Physician Ownership. EMS Agency expressly represents and warrants that one of
the following provisions applies: (a) no physician, no physician organization and
no member of any physician’s immediate family owns or holds an ownership or
financial interest in EMS Agency, including any affiliated or related entity or
person, that is not the subject of an exception or “safe harbor” under applicable
law; or (b) EMS Agency is a publicly-traded company and is the subject of an
exception under 42 CFR § 411.356(a)(1) and (a)(2).
4.22
Retention and Inspection of Records. All records related to this arrangement will
be kept on file by EMS Agency for a period of four years from the date the record
is made or such longer period of time as may be required by applicable law. Upon
reasonable prior notice, EMS Agency will give Banner, or its authorized
representative, and any relevant regulatory agency the ability to inspect, examine,
and audit, during normal business hours, such of EMS Agency’s business records
as are relevant to this Agreement. The cost of any Banner inspection,
examination, and audit will be at the sole expense of Banner.
4.23
Corporate Authority. Each party represents and warrants that the individual
executing this Agreement on behalf of such party is duly authorized to execute
and deliver this Agreement on behalf of such corporation, person, firm,
partnership or other entity and that this Agreement is binding upon such entity in
accordance with its terms.
4.24
Waiver and Breach. No waiver of the enforcement or breach of any agreement or
provision herein will be deemed a waiver of any preceding or succeeding breach
thereof or of the enforcement of any other agreement or provision herein. No
extension of time for performing any obligation or act will be deemed an
extension of time for performing any other obligation or act. All rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies otherwise provided by law.
4.25
Counterparts. This Agreement may be executed in one or more copies or
counterparts, each of which when signed will be an original, but all of which
together will constitute one instrument. Signatures submitted via telecopy or
electronic signature will have the same force and effect as original signatures and,
as such, will be valid and binding upon the parties hereto.
4.26
Applicable Standards. EMS Agency and all EMS Agency personnel will comply
with all standards applicable to the services described in this Agreement, as such
standards may be amended from time to time, including, but not limited to the
following: (a) the standards of The Joint Commission and other accreditation
agencies; (b) federal, state and local government laws, rules and regulations; (c)
the standards of any third-party payors, including the Drug Supply Chain Security
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Act, 21 CFR § 10.115(g)(2), 42 CFR § 1001.952(v) and any requirements
promulgated by the Arizona Medical Direction Commission organized pursuant
to A.R.S. § 36-2203.01, or its successor entity,; (d) the bylaws, rules, regulations,
accreditation standards, policies, procedures and practices of Banner, including,
but not limited to, quality assurance requirements and completion of background
checks; (e) the Banner Code of Conduct, when performing the services described
in this Agreement on Banner’s premises; and (f) laws relating to emergency
ambulance services and the handling of controlled substances.
4.27
Compliance with Banner Rules and Regulations. Whenever providing services or
goods pursuant to this Agreement on Banner premises, EMS Agency, its
employees and agents will comply with and observe all Banner rules and
regulations concerning conduct on Banner premises. If any of the services or
goods provided under this Agreement are services or goods for which Banner
may, directly or indirectly, obtain compensation or reimbursement from any
governmental health program (e.g., Medicare, Medicaid, AHCCCS, TRICARE,
or any successor entity), EMS Agency will comply with all government
reimbursement requirements as specified by Banner and will assist Banner in
completing necessary documents and records for reimbursement.
4.28
Cost of Litigation. If either party takes legal action to enforce this Agreement, the
prevailing party will be entitled to recovery of its reasonable attorneys’ fees and
costs incurred in connection with such action.
4.29
Survival. Any covenant or provision herein that requires or might require
performance after the termination or expiration of this Agreement, including, but
not limited to, indemnities, confidentiality, settlement of accounts, records
retention and access, and insurance requirements, will survive any termination or
expiration of this Agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
BANNER:
Banner Health
EMS AGENCY:
City of El Mirage Fire Department
By:
By:
Name:
Name:
Title:
Title:
Signature Date:
Signature Date:
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May 14, 2020 | 10:17 AM MST
CEO Banner Pharmacy Services
Russell L. Funk
City of El Mirage Fire Department – 0101-03-106555 (04.10.2020) MRS
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EXHIBIT A
MEDICATION RESTOCKING CHARGES
1. Banner will provide restocking at the rate of: Banner’s cost of drug + 10%.
2. Banner will prepare and deliver a monthly invoice to EMS Agency for the Supplies
restocked by each Banner facility where restocking was performed in the prior month.
3. EMS Agency agrees to pay Banner within thirty (30) days of receipt of the monthly
invoice.
4. In the event that EMS Agency does not pay monthly invoices in a timely manner, Banner
reserves the right to discontinue restocking and terminate this Agreement.
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