AGREEMENT BETWEEN THE COUNTY OF SAN MATEO AND
ECLINICALWORKS, LLC

 

THIS AGREEMENT, entered into this _____ day of _______________ , 20_____, by and between the COUNTY OF SAN MATEO, hereinafter called "County," and ECLINICALWORKS, LLC, hereinafter called "Contractor";

 

W I T N E S S E T H:

 

WHEREAS, pursuant to Government Code Section 31000, County may contract with independent contractors for the furnishing of such services to or for County or any Department thereof; and

 

WHEREAS, it is necessary and desirable that Contractor be retained for the purpose of purchasing Electronic Medical Record Computer System software licenses, implementation and support;

NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES HERETO AS FOLLOWS:

1. Definitions

The following terms, when use in this Agreement, shall have the following meanings:

    Acceptance” shall mean the date on which County provides written notification to Contractor of completion pursuant to Exhibit A Section 5A of this Agreement.

    “CPI” shall mean Consumer Price Index published by the United States Department of Labor, Bureau of Statistics .

    “Defects” or “Error” shall mean a material failure of the Software Programs to conform to the Specifications.

    “Delivery” shall mean the date that the Software Programs are installed on the County hardware.

    “Effective Date” shall mean the execution date of this Agreement by the County of San Mateo Board of Supervisors.

    “EHR" or “EMR” shall mean Contractor’s Software Products that provide electronic health record or electronic medical record functionality.

    “Executive Sponsor” shall mean Contractor’s representative who is of vice president status or higher-level officer and is responsible for the overall relationship with County.

    “Final Acceptance” shall mean the date when all County Sites are live with the EMR and the Software Products are functioning according to the Specifications.

    “First Productive Use” or “FPU” shall mean the first use of the Software Products including the EMR to process patient data in County day-to-day operations.

    “FTE Provider” shall mean a County Full Time Equivalent Provider calculated at 1 FTE for each Provider working over 2 days a week and 0.25 FTE for each Provider working 2 days or less a week. (For additional clarification, please refer to definition “Provider(s)” below).

    “Implementation Team” shall mean those individuals that are employed by the Contractor or County who are working on the implementation of the EMR.

    “Initial Term” shall mean five (5) years from the Effective Date of this Agreement.

    “License Fee” shall mean the one time fee charged for each Provider License.

    “Practice” shall mean the ambulatory care clinics operated by the County.

    “Project Workplan” shall mean a document describing the tasks and responsibilities of both parties for the implementation of the Software Programs provided for in this Agreement.

    “Provider(s)” shall mean Physicians, Nurse Practitioners, Physicians’ Assistants, Optometrists, Physical Therapists, Psychologists, Dentists, Hygienists, Midwifes, Nutritionists, Podiatrist, Licensed Social Workers, Counselors and Audiologists employed by or under contract with the County to provide services within the medical field and for whom the County is paying a License Fee as set forth in this Agreement. The term Provider shall not include County personnel employed by or under contract with County as office managers, secretaries, other administrative staff, or Nurses (other than Nurse Practitioners). For a category not identified above, Contractor and County shall agree in writing as to who is a Provider.

    “RFP” shall mean the Request for Proposal dated December 2, 2005 and the requirements update of June 14, 2007, which was completed by the Contractor during the County’s evaluation process.

    “Sites” shall mean the 11 locations where the Software Products will initially be installed as described in Exhibit A Section 2.

    “Software Products” shall mean those Software Products listed in Exhibit A, Section 4 of this Agreement and E- Prescribing/Formulary checking.

    “Specifications” shall mean Contractor’s positive responses to the functional questions in the County RFP and Contractor standard specifications.

    “SMS” shall mean Support and Maintenance Services, including but not limited to telephone support, bug fixes, Versions and content usage for drug database and drug interaction checks.

    “Testing” shall mean the activities preformed by the County to determine if the Software Products are functioning in compliance with the Specifications.

    “Users” shall mean those individuals authorized by County to use the Software Products provided for in this Agreement.

    “Version” shall mean the delivery of electronic media containing new licensed features packaged and delivered as a significant revision to the Software Products.

   
   
   

2.

Exhibits and Attachments

 

The following exhibits and attachments are included hereto and incorporated by reference herein:

Exhibit A—Services

Exhibit B—Payments and Rates

Attachment A—Change Order Form

Attachment H—HIPAA Business Associate requirements

Attachment I—§ 504 Compliance

3.

Services to be performed by Contractor

In consideration of the payments set forth herein and in Exhibit “B,” Contractor shall perform services for County in accordance with the terms, conditions, and specifications set forth herein and in Exhibit “A.”

4.

Payments

In consideration of the services provided by Contractor in accordance with all terms, conditions, and specifications set forth herein and in Exhibit "A," County shall make payment to Contractor based on the rates and in the manner specified in Exhibit "B." The County reserves the right to withhold payment if the County determines that the quantity or quality of the work performed is unacceptable. The County’s total fiscal obligation under this Agreement shall not exceed $1,800,000 over the entire Term.

 

5.

Term and Termination

Subject to compliance with all terms and conditions, the initial term of this Agreement shall be from the Effective Date and continue for 5 years unless terminated earlier according to the terms of this Agreement. At the County’s option, the Agreement may be extended for an additional 2 years provided that County provided Contractor with a written notice to extend. This Agreement may be terminated by Contractor or by the Chief Information Officer, or his/her designee, at any time without a requirement of good cause upon thirty (30) days’ written notice to the other party.

In the event of termination, all finished or unfinished documents, data, studies, maps, photographs,

reports, and materials (hereafter referred to as materials) prepared by Contractor under this Agreement

shall become the property of the County and shall be promptly delivered to the County. Upon termination, the Contractor may make and retain a copy of such materials. Subject to availability of funding, Contractor shall be entitled to receive payment for work/services provided prior to termination of the Agreement. Such payment shall be a portion of the full payment which is determined by comparing the work/services completed to the work/services required by this Agreement.

If this Agreement is terminated pursuant to Section 5, Term and Termination, the following remedies apply:

If termination occurs in the first 60 days after the Effective Date of this Agreement, all payments made by County to Contractor under the terms of this Agreement shall be refunded. Contractor shall bill County on a time and materials basis for Contractor’s actual work performed during this period, including Travel and Living, not to exceed $25,000.

If termination occurs after the first 60 days after the Effective Date of this Agreement but prior to FPU, all payment to Contractor provided for under this Agreement shall cease. Contractor shall retain all Travel and Living payments, Fixed Fee Implementation payments, and Interface payments due to Contractor prior to the date of termination. Contractor shall refund to County all payments for Licenses.

If termination occurs after FPU and before Final Acceptance, all payments to Contractor provided for under this Agreement shall cease. Contractor shall retain all payments due Contractor prior to the date of termination except for payments for Licenses. Contractor shall refund to County all payments for Licenses.

In the event of termination Contractor will assist with any transition planning to a new system. As long as the transition planning entails consultation, Contractor will provide it for no additional cost. Any onsite services, e.g. data migration work, will be billed at $675 per day per person.

 

6.

Availability of Funds

The County may terminate this Agreement or a portion of the services referenced in the Attachments and Exhibits based upon unavailability of Federal, State, or County funds, by providing written notice to Contractor as soon as is reasonably possible after the County learns of said unavailability of funding.

   

7.

Relationship of Parties

Contractor agrees and understands that the work/services performed under this Agreement are performed as an independent Contractor and not as an employee of the County and that Contractor acquires none of the rights, privileges, powers, or advantages of County employees.

 

8.

Hold Harmless

Contractor shall indemnify and hold harmless County, its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description, brought for, or on account of: (A) injuries to or death of any person, including Contractor, or (B) damage to any property of any kind whatsoever and to whomsoever belonging, (C) any sanctions, penalties, or claims of damages resulting from Contractor’s failure to comply with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, or (D) any other loss or cost, including but not limited to, that caused by the concurrent active or passive negligence of County, its officers, agents, employees, or servants, resulting from the performance of any work required of Contractor or payments made pursuant to this Agreement, provided that this shall not apply to injuries or damage for which County has been found in a court of competent jurisdiction to be solely liable by reason of its own negligence or willful misconduct.

 

The duty of Contractor to indemnify and save harmless as set forth herein shall include the duty to defend as set forth in Section 2778 of the California Civil Code.

   

9.

Assignability and Subcontracting

Contractor shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required by Contractor under this Agreement without the prior written consent of County. Any such assignment or subcontract without the County’s prior written consent shall give County the right to automatically and immediately terminate this Agreement.

10.

Insurance

 

The Contractor shall not commence work or be required to commence work under this Agreement unless and until all insurance required under this paragraph has been obtained and such insurance has been approved by County’s Risk Manager, and Contractor shall use diligence to obtain such insurance and to obtain such approval. The Contractor shall furnish the Information Services Department with certificates of insurance evidencing the required coverage, and there shall be a specific contractual liability endorsement extending the Contractor's coverage to include the contractual liability assumed by the Contractor pursuant to this Agreement. These certificates shall specify or be endorsed to provide that thirty (30) days' notice must be given, in writing, to the Chief Information Officer of any pending change in the limits of liability or of any cancellation or modification of the policy.

 

(A)

Worker's Compensation and Employer's Liability Insurance The Contractor shall have in effect, during the entire life of this Agreement, Workers' Compensation and Employer's Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor certifies, as required by Section 1861 of the California Labor Code, that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of the Code, and will comply with such provisions before commencing the performance of the work of this Agreement.

 

(B)

Liability Insurance The Contractor shall take out and maintain, during the life of this Agreement, such Bodily Injury Liability and Property Damage Liability Insurance as shall protect Contractor while performing work covered by this Agreement from any and all claims for damages for bodily injury, including accidental death, as well as any and all claims for property damage which may arise from Contractor’s operations under this Agreement, whether such operations be by Contractor or by any sub-contractor or by anyone directly or indirectly employed by either of them. Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall be not less than the amount specified below.

   
 

Such insurance shall include:

 

(1) Comprehensive General Liability . . . . . . . . . . . . . . . . . .

(2) Motor Vehicle Liability Insurance . . . . . . . . . . . . . . . . . .

(3) Professional Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . .

$1,000,000

 

$1,000,000

 

$1,000,000

   

County and its officers, agents, employees and servants shall be named as additional insured on any such policies of insurance, which shall also contain a provision that the insurance afforded thereby to the County, its officers, agents, employees, and servants shall be primary insurance to the full limits of liability of the policy, and that if the County or its officers and employees have other insurance against the loss covered by such a policy, such other insurance shall be excess insurance only.

 

In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, the County at its option, may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.

 

11.

Compliance with Laws; Payment of Permits/Licenses

All services to be performed by Contractor pursuant to this Agreement shall be performed in accordance with all applicable Federal, State, County, and municipal laws, ordinances, and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Federal Regulations promulgated thereunder, as amended, and will comply with the Business Associate requirements set forth in Attachment “H,” and the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1973, as amended and incorporated by reference herein as Attachment “I,” which prohibits discrimination on the basis of handicap in programs and activities receiving any Federal or County financial assistance. Such services shall also be performed in accordance with all applicable ordinances and regulations, including, but not limited to, appropriate licensure, certification regulations, provisions pertaining to confidentiality of records, and applicable quality assurance regulations.

 

In the event of a conflict between the terms of this Agreement and State, Federal, County, or municipal law or regulations, the requirements of the applicable law will take precedence over the requirements set forth in this Agreement.

Contractor will timely and accurately complete, sign, and submit all necessary documentation of compliance.

 
 

12.

Non-Discrimination

A. Section 504 applies only to Contractors who are providing services to members of the public. Contractor shall comply with § 504 of the Rehabilitation Act of 1973, which provides that no otherwise qualified handicapped individual shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in the performance of this Agreement.

B. General non-discrimination. No person shall, on the grounds of race, color, religion, ancestry, gender, age (over 40), national origin, medical condition (cancer), physical or mental disability, sexual orientation, pregnancy, childbirth or related medical condition, marital status, or political affiliation be denied any benefits or be subjected to discrimination under this Agreement.

C. Equal employment opportunity. Contractor shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Agreement. Contractor’s equal employment policies shall be made available to County upon request.

D. Violation of Non-discrimination provisions. Violation of the non-discrimination provisions of this Agreement shall be considered a breach of this Agreement and subject the Contractor to penalties, to be determined by the County Manager, including but not limited to

 

1) termination of this Agreement;

2) disqualification of the Contractor from bidding on or being awarded a County contract for a period of up to 3 years;

3) liquidated damages of $2,500 per violation;

4) imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Manager.

 
 
 
     

To effectuate the provisions of this section, the County Manager shall have the authority to examine Contractor’s employment records with respect to compliance with this paragraph and/or to set off all or any portion of the amount described in this paragraph against amounts due to Contractor under this Agreement or any other Contract between Contractor and County.

     

Contractor shall report to the County Manager the filing by any person in any court of any complaint of discrimination or the filing by any person of any and all charges with the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission, or any other entity charged with the investigation of allegations within 30 days of such filing, provided that within such 30 days such entity has not notified Contractor that such charges are dismissed or otherwise unfounded. Such notification shall include the name of the complainant, a copy of such complaint, and a description of the circumstance. Contractor shall provide County with a copy of their response to the Complaint when filed.

 

E. Compliance with Equal Benefits Ordinance. With respect to the provision of employee benefits, Contractor shall comply with the County Ordinance which prohibits contractors from discriminating in the provision of employee benefits between an employee with a domestic partner and an employee with a spouse.

F. The Contractor shall comply fully with the non-discrimination requirements required by 41 CFR 60-741.5(a), which is incorporated as if fully set forth herein.

G. Compliance with Contractor Employee Jury Service Ordinance. Contractor shall comply with the County Ordinance with respect to provision of jury duty pay to employees and have and adhere to a written policy that provides that its employees shall receive from the Contractor, on an annual basis, no less than five days of regular pay for actual jury service in San Mateo County. The policy may provide that employees deposit any fees received for such jury service with the Contractor or that the Contractor deduct from the employee’s regular pay the fees received for jury service.

 

13.

Retention of Records, Right to Monitor and Audit

(a) Contractor shall maintain all required records for three (3) years after the County makes final payment and all other pending matters are closed, and shall be subject to the examination and/or audit of the County, a Federal grantor agency, and the State of California.

(b) Reporting and Record Keeping: Contractor shall comply with all program and fiscal reporting requirements set forth by appropriate Federal, State and local agencies, and as required by the County.

(c) Contractor agrees to provide to County, to any Federal or State department having monitoring or review authority, to County's authorized representatives, and/or their appropriate audit agencies upon reasonable notice, access to and the right to examine all records and documents necessary to determine compliance with relevant Federal, State, and local statutes, rules and regulations, and this Agreement, and to evaluate the quality, appropriateness, and timeliness of services performed.

 

14.

Merger Clause

This Agreement, including the Exhibits and Attachments attached hereto and incorporated herein by reference, constitutes the sole Agreement of the parties hereto and correctly states the rights, duties, and obligations of each party as of this Agreement's date. Any prior agreement, promises, negotiations, or representations between the parties not expressly stated in this document are not binding. All subsequent modifications shall be in writing and signed by the parties. In the event of a conflict between the terms, conditions, or specifications set forth herein and those in Exhibits "A" and “B” attached hereto, the terms, conditions, or specifications set forth herein shall prevail.

   

15.

Controlling Law

The validity of this Agreement and of its terms or provisions, as well as the rights and duties of the parties hereunder, the interpretation, and performance of this Agreement shall be governed by the laws of the State of California.

   

16.

Warranties

Contractor will maintain the confidentiality of information regarding any physician or patient record.

Contractor warrants that it either owns or has the right to license the services hereunder. Contractor warrants that the services provided hereunder will be performed in a competent and workmanlike manner, which meets or exceeds industry standards. Contractor guaranties the integrity of data at County’s location as long as any 3rd party has not modified the installed application.

Contractor represents and warrants that Contractor will update Software Products (including, but not limited to, content usage for drug database and drug interaction checks, E&M Coding Advisor) as necessary to ensure that such Software Product complies with the most current Federal or California requirements.

Other than as expressly set forth in this Agreement, Contractor does not make any express or implied warrantees, condition, or representations to County, any of its affiliates or any other party with respect to the applications, services or any products, documentation, or any other services or works of authorship provided hereunder, or otherwise regarding this Agreement, any implied warranty or condition of merchantability, non-infringement, or fitness for a particular purpose, are expressly excluded and disclaimed.

Limitation of Liability. Contractor’s liability to County for any losses or indirect damages, in contract, tort or otherwise, arising out of the subject matter of this Agreement shall be limited to those actual and direct damages which are reasonably incurred by County and shall not exceed the total fees paid to Contractor by the County less any beneficial use. The beneficial use will be depreciated over five (5) years. Contractor will not be liable for: (I) Special, punitive, indirect, incidental, exemplary or consequential damages or loss of date, lost profits, loss of goodwill in any way arising from or relating to this, the applications or services, even if Contractor has been notified of the possibility of such damages occurring.

 
   

17.

Software Products License Terms and Conditions

 

County’s use of the licensed Software Products is subject to the following:

General. Subject to the terms and conditions of this Agreement, Contractor grants and County accepts a non-exclusive, non-transferable license for the Providers to access and use the functionality of the Software Programs during the term of this Agreement. County may use the Contractor Software Products grams at any Sites owned or operated by the County. Providers may access the Contractor Software Products remotely. The County shall not permit any other person or entity to access or use the Software Products.

County Modifications and Enhancements. County may not make any modifications or enhancements to the Software Products without Contractor’s prior written consent.

Proper Use of Software. The County acknowledges that the continued integrity of the Software Products and Contractor's performance of its obligations described in this Agreement are dependent upon County’s use of the Software Products in accordance with the documentation available to County and the terms and conditions of this Agreement.

Ownership and Proprietary Rights. County may not attempt to sell, sublicense, lease, permit, rent or transfer in any way whatsoever the Software Products. County agrees that it will not, at any time, without the prior written consent of Contractor, decompile, disassemble or reverse engineer any software included within the Software Products, including without limitation the applications, to develop functionally similar Software Products or permit any third party to do any of the foregoing. County agrees to not grant access to any 3rd party for any purpose without the prior written consent of Contractor.

Contractor shall indemnify, defend, and hold County harmless from any action against County to the extent that it is based on an allegation that the Software Products have infringed an intellectual property right or trade secret and pay those damages or costs related to the settlement of such action or finally awarded against County in such action, including but not limited to attorney fees, provided that, (a) County promptly notifies Contractor of such action, (b) gives Contractor full authority, information and assistance to defend such claim, and (c) gives Contractor control of the defense of such claim.

Ownership of Data. All the patient demographics and medical records created by the Software Products will be solely owned by the County.

To the extent required by the Health Insurance Portability and Accountability Act of 1996 and regulations related to privacy promulgated there under (the “Privacy Standard”), and notwithstanding anything to the contrary herein, Contractor will maintain the confidentiality of Protected Health Information or PHI (as defined by the Privacy Standard) made available to or obtained by Contractor as a result of this Agreement and will comply with applicable requirements of the Privacy Standard. Specifically, Attachment H outlines the required policies and procedures.

County is responsible for all required hardware and network to be installed and set up properly prior to Contractor’s installation of Software Products. County is responsible for any delays due to hardware and network set up and that result in rescheduling of install, training dates and travel arrangements. County will incur any unavoidable Contractor expenses involved with having to reschedule install and training dates.

Contractor shall conform to all current and future Federal and California laws and regulations.

Contractor shall comply with HL-7, DICOM, SNOMED, CCOW, CCHIT and CCR standards.

Contractor will support all functionality and customizations in future Versions. Contractor shall make the Software Products backward compatible (i.e. Modern view v/s web view). County and Contractor will work in good faith to allow Contractor in the future to migrate away from old functionality as long as the new Versions adequately meet user requirements.

Contractor shall not discontinue support or regular updates and enhancements for any Software Products during the term of the Agreement. In the event of such discontinuation, County shall receive any successor application at no additional costs or a refund for any fees paid for the discontinued Software Products.

Contractor shall comply with the County security standards for remote access support.

 
   

18. Escrow

If Contractor or any successor company should cease its business generally and should irrevocably fail to perform its obligations under this Agreement, including but not limited to maintenance and support, Contractor agrees to provide access to the source code of the Software Products to the County solely for the purposes of (i) County's enhancing and making modifications to the Software Products for its internal use; and (ii) County’s maintaining the Software Products by diagnosing malfunctions and eliminating software ‘bugs’. In such case, and in only such case, County may provide access to the source code and knowledge of the technology underlying the Software Products to third parties, provided that any and all such third parties agree that their knowledge of the same will be maintained in confidence and used solely for the above-stated purposes, and not for commercial sale or use by any other persons or entities.

In addition to the foregoing, if and when Contractor places the Software Products in escrow (the Escrow Materials), and offers such escrow service to other Counties, Contractor shall add County as a beneficiary of such service. For purposes of this Agreement, the Escrow Materials shall consist of: the documentation associated with the Software Products, the data models, programmers’ notes and release notes respecting the Software Products, the source code of the Software Products, and the update source.

County agrees that any such Escrow Materials and the rights thereto may constitute a marketable asset of Contractor or a successor entity, and therefore will not transfer such materials to any third party, nor allow any third party to duplicate or reverse engineer any software, except as required for County’s own operations.

 
   

19.

Miscellaneous

Force Majeure. The obligations of the respective parties shall be abated for so long as, and to the extent that, their performance is rendered commercially impracticable by causes and events beyond the reasonable control of the affected party, including without limitation fires, floods, acts of God, strikes, unavailability or delays of materials or transportation, war, revolution, insurrection, acts of the public enemy, governmental regulation or prohibition. The party claiming abatement of obligation hereunder shall reasonably notify the other of the cause or event giving rise to such claim, and shall take all reasonable steps to limit the effect and duration of such cause or event.

Headings. The headings in this Agreement are for information and convenience only and shall not affect the construction thereof.

Entire Agreement. This Agreement sets forth the entire agreement between Contractor and County with respect to the subject matter hereof, and no modification, amendment, waiver, termination, or discharge of this Agreement or any provisions hereof shall be binding upon either party unless confirmed by written instrument signed by both parties.

Severability. In the event that any part of this Agreement is declared to be void or unenforceable by a court having jurisdiction, the remainder of this Agreement shall continue in full force and effect with such void or unenforceable part thereof deleted there from.

20. Dispute Resolution

Administrative-Level Performance Review. If a dispute arises between the parties, the project managers for the parties shall meet and attempt to resolve the dispute. Written minutes of such meetings shall be kept. If such representatives are unable to resolve the dispute within ten (10) calendar days after the initial request for a meeting, then the parties shall seek to resolve the dispute through an executive-level performance review as described below.

Executive-Level Performance Review. For disputes that are not resolved, negotiations shall be conducted by County’s Deputy Director of ISD and a vice president or higher-level officer of Contractor. If such representatives are unable to resolve the dispute within thirty (30) days after the parties have commenced negotiations, or forty-five (45) calendar days have passed since the initial request for negotiations at this level, then the parties shall be entitled to discontinue negotiations and shall seek to resolve the dispute through mediation.

Mediation. For disputes that are not resolved as described in Executive Level Performance Review, the parties may agree to submit the dispute to mediation, which shall be binding or non-binding as then agreed to by the parties; provided, however, that if the parties are unable to then agree, the mediation shall be non-binding. The parties mutually shall select an independent mediator experienced in health information systems, and each shall designate a representative(s) to meet with the mediator in good faith in an effort to resolve the dispute. The specific format for the mediation shall be left to the discretion of the mediator and the designated party representatives and may include the preparation of agreed-upon statements of fact or written statements of position furnished to the other party.

If Contractor fails to materially perform its duties under the Agreement, County may reasonably deduct from payments a proportional amount until resolution has been completed to County satisfaction.

County agrees to serve as a reference for Contractor after system implementation. This will include hosting site visits for Contractor’s potential clients; the terms are outlined in Exhibit B, paragraph 8.

 

21. Change Requests

If County believes that a change to the Project Workplan is necessary or desirable, County shall issue to Contractor a written change request ("Change Request") in the form attached hereto as Attachment A. Unless different time frames are then agreed to by the parties, within five (5) business days for a simple Change Request, or within ten (10) business days for a complex Change Request, in each case following Contractor' receipt of such Change Request, Contractor shall provide to County a written statement describing in detail: (a) any additional services to be performed, new software and/or equipment required as a result of the Change Request and/or software, equipment and/or services that are no longer required as a result of the Change Request; (b) the effect, if any, that any such additional software, equipment and/or services or deleted software, equipment and/or services will have on the Project Workplan; (c) the cost or savings associated with such additional or deleted software, equipment and/or services; and (d) any other information relating to the Change Request that may reasonably be requested by County (“Change Response"). If County accepts a Change Response in writing, such Change Response, together with County's Change Request, shall be deemed to be a Change Order and shall be considered an amendment to this Agreement. If County rejects such Change Response, Contractor shall proceed to fulfill its obligations as originally agreed under this Agreement.

 

22.

Notices

 

Any notice, request, demand, or other communication required or permitted hereunder shall be deemed to be properly given when deposited in the United States mail, postage prepaid, or when deposited with a public telegraph company for transmittal, charges prepaid, addressed to:

    In the case of County, to:

    San Mateo County

    Information Services Department

    Chris Flatmoe, CIO/Director

    455 County Center, Third Floor

    Redwood City, CA 94063

    In the case of Contractor, to:

    Girish Kumar Navani

    112 Turnpike Road

    Westborough, MA 01581

    Keith Aurzada, Esq.

    Powell Goldstein LLC

    2200 Ross Avenue – Suite 3200

    Dallas, TX 75201

IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have affixed their hands.

 

COUNTY OF SAN MATEO

A Political Sub-division of the

State of California

 
 

By:

 

President, Board of Supervisors

San Mateo County

 
 

Date:

 

ATTEST:

 

By:

Clerk of Said Board

 
 
ECLINICALWORKS LLC
 
 

Contractor’s Signature

 

Date:

Long Form Agreement/Business Associate v 6/24/04

5.

Project Workplan and Projected Timeline

Within 60 days from the Effective Date of this Agreement, Contractor and County shall meet and agree, in writing, on a mutually agreeable Project Workplan. This Project Workplan shall be kept current during the implementation effort and any change agreed to in writing. Changes that impact the project schedule or project costs must follow the Change Request Process described in the Agreement, paragraph 20. As part of the Project Workplan, County and Contractor shall develop an Acceptance Test Plan. A projected project timeline is shown below and will be updated and will be included in the final Project Workplan.

Tasks

Timeline

Workplan development with County signoff.

60 calendar days (~8.5 weeks)

Pre Implementation

(Includes readiness assessment, Installation, workflow analysis, discovery, interface development and customization, configuration of scheduling templates)

14 weeks

Schedule training and FPU

2 weeks

Scheduling live at all Sites

28th week

Pause for 2 weeks to plan for EMR roll out

2 weeks

Training and FPU schedule for 1st Sites

31st and 32nd week

Pause for 2 weeks to assess the lessons learned from 1st Sites

2 weeks

Training and FPU for 2nd Sites

35th and 36th week

Pause for 2 weeks to assess the lessons learned from 2nd Sites

2 weeks

Training and FPU for 3rd Sites

39th and 40th week

Pause for 2 weeks to assess the lessons learned from 3rd Sites

2 weeks

Training and FPU for 4th Sites

43nd and 44rd week

Training and FPU for 5th Sites

45th and 46th week

Training and FPU for 6th Sites

47th and 48th week

Training and FPU for 7th Sites

49th and 50th week

Training and FPU for 8th Sites

51th and 52st week

Training and FPU for 9th Sites

53nd week and 54rd week

Training and FPU for 10th Sites

55th week and 56th week

Training and FPU for 11th Sites

57th week and 58th week

Total Elapsed Time

58 weeks

A. Testing and Acceptance Process.

    Contractor shall certify in writing that a deliverable is ready for County Acceptance Testing in a test environment. Contractor shall provide testing scripts for each deliverable.

    County, following required training, shall perform Acceptance testing (using Contractor test scripts and any other tests and scenarios as determined by County) for each deliverable and notify Contractor in writing of any defects.

    Contractor shall correct any material defects.

    County shall notify Contractor in writing of pre FPU Acceptance of the deliverable.

    After FPU, County shall perform Acceptance testing in a production environment for each deliverable and notify Contractor in writing of any defects

    Contractor shall correct any defects

    County shall notify Contractor in writing of Acceptance of the deliverable

    Upon successful completion of the above process for all deliverables, County shall issue written notice of Final Acceptance.

    Final Acceptance shall occur within 60 days of last FPU or when any material defects are noted after last FPU and corrected by the Contractor, whichever occurs last.

 
 

Failed Acceptance. If County determines that there is an error in the Software Products, County shall immediately notify Contractor in writing of the error, which shall include e-mail. Such written notification shall include a description of the error and the circumstance under which the error occurred. Minor discrepancies, which may be corrected during the Acceptance Period, shall not be cause for reporting an error. Contractor shall recreate and isolate the error, write, test, deliver and install the new code to resolve the error within a reasonable period of time (“Resolution Cycle”). The Acceptance Period shall be extended for the same number of days from Contractor’s receipt of the written notification to the installation of the new code. However, the Software Products must function for one week after resolution of an error in order for Acceptance to be obtained. If Contractor is unable to resolve an error after three (3) Resolution Cycles, at County’s option, County may either terminate the offending Software Products or allow Contractor to perform additional testing. Contractor shall refund to County the License Fees and Implementation Services Fees paid to Contactor by County for the Software Products removed or terminated.

6.

Implementation, Staffing, Training, Installation, and other Implementation Services

    IMPLEMENTATION RESOURCES AND TIME ESTIMATES

Project Phase

Contractor Staff

County Staff

Readiness Assessment, Discovery, Project Management, Project Coordination

Included in fixed fee

(estimate 70 days)

Full Time County Project Manager on sites at County. Full Time is defined as working five days a week at eight hours a day excluding holidays. Starting after the pre-implementation phase is complete.

On Sites San Mateo Implementation Manager

Included in fixed fee

Full Time Implementation Manager on Sites at County

Full Time is defined as working five days a week at eight hours a day excluding holidays. Starting after the pre-implementation phase is complete for a minimum of 200 on site days.

n/a

Installation and IT Resources

5 days

15 days **

Certified Trainers for Contractor 101, On site Training, FPU Training and Support

Included in fixed fee

(estimate 165 days)

0 days

Super Users Training

Included in fixed fee

(estimate 10 days)

*** Up to 10 county staff and providers

Fixed Fee

Total Implementation Cost

$304,500*

n/a

 

    County Staff

    *Implementation is a fixed fee for 11 Sites and 72 FTE Providers. If Contractor is not able to train the Providers and achieve the performance metrics as defined in Exhibit B, Section 6, Contractor will provide additional training for no additional cost to County. It is assumed that Providers and Users will attend the training classes and demonstrate the commitment to learn and use the Software Programs.

    ** County shall provide IT staff to install any County desktops and devices required to access the Software Products. County shall be responsible for installation of the server hardware and any networking equipment and protocols. County IT is responsible for maintaining the hardware and performing backup and restore functions for ongoing maintenance. In addition, County’s IT staff will be required for a total of 15 days to install the Software Products on the 11 Sites and to ping response to test for County-to-server network connectivity.

    ***County will assign Users to undergo 2 weeks of super User training. Contractor will provide 10 days onsite super User training. The number and classification of Users for super User training will be agreed to during the development of the Project Workplan. To complete this project on schedule and with the goal of meeting the usage metrics, County will assign a full time Project Manager for the duration of the implementation.

    A steering team of County clinical staff, Providers and ISD staff will meet every week during the first 20 weeks and work with the Contractor Implementation Manager to validate and formalize the clinical content, decision support metrics and the clinical order sets. Members of the steering team will be agreed to during the development of the Project Workplan.

 

    Contractor Staff

    Contractor will provide the Software Products and staffing required to deploy the Software Products and meet the performance metrics as outlined in Exhibit B paragraph 6.

    Contractor will provide resumes of staff to be assigned to work on the project. The Contractor Implementation Manager and Project Manager must have prior experience in a comparable implementation to that provided for under this Agreement. County may reject a staff person prior to assignment provided the qualifications do not meet the County’s expectations. During implementation, County may request Contractor staff to be replaced and Contractor shall provide qualified replacement staff.

    Contractor project implementation team will consist of the following:

    o Implementation Manager – This individual has typically been a Contractor trainer for 2+ years, therefore they have a great deal of experience working with various specialists and have encountered many different types of workflow challenges. The Implementation Manager will have had implementation experience in at least two comparable Sites. This person will also act as the Business Flow Engineer and will work closely with the Practice to identify any special needs of the Practice. The Implementation Manager will submit a weekly project status report that describes the tasks that have been completed, those to be completed and any issues that need to be brought to the attention of the County.

    o Project Manager – Contractor will assign a Project Manager who best fits the needs of the County. When assigning an individual to a project, Contractor takes into account number of Providers, locations, and interface development the project manager has had experience with. The Project Manager will be the main point of contact throughout the implementation and is responsible for ensuring that all tasks are completed and the County is satisfied with the results before training begins. Contractor will also assign Technical Architects, Data Migration Programmers, Billing Specialists, Implementation Coordinators and Trainers as agreed to in the Project Workplan.

 

    Training and Installation

    Contractor agrees to install the latest production Version at no additional cost to County. Future versions will be provided at no cost to the County as long as the SMS payments are current. All functionality (or equivalent functionality) in the current version will be supported in future versions at no additional charge.

    Contractor shall install all Software Products and certify in writing that it is functioning in accordance with Specifications.

    Contractor’s Software Products will be transferred electronically.

    Contractor will deploy the software in test, training and production environments.

    All Contractor-training will be done onsite at the County locations. At County option, County may send staff to be trained at Contractor’s site(s). The classes and costs are outlined on the following page. In addition, Contractor will provide free Computer Based Training and free webinars every day.

 

ADDITIONAL TRAINING CLASSES

Training Certification

Target Audience New eClinicalWorks trainers

Training Overview A comprehensive training class of the entire eClinicalWorks application specifically for new trainers. A certified trainer will be certified to train all users within their office.

Length of Training

3 week training class at eCW corporate

1 week self study

Assessment test to be given after self study

Client shadow eCW training

eCW trainer shadows client training

Dates and Location

All training sessions will be held at the eClinicalWorks home office in Westborough, MA

Cost

$5000 per person

eCW 101

Target Audience Designated super users within the practice

Training Overview An overview of the system set-up, Front office, Mid-Office, Back Office applications, and registry reporting

Length of Training

5 days (held every other month)

Location

All training sessions will be held at the eClinicalWorks home office in Westborough, MA

Cost

1-3 Users $2,500 per week

4-6 Users $5,000 per week

7-10 Users $6,250 per week

Booster Training

Target Audience Super users that have been using eClinicalWorks for at least six months and would like additional training

Training Overview Refresher on EMR and PM

Length of Training

2 days EMR, 2 days PM

Location

All training sessions will be held at the eClinicalWorks home office in Westborough, MA

Cost

$200 per person/day

Installation Certification Training

Target Audience IT individuals within the client organization

Training Overview Comprehensive training class to provide clients the ability to install eClinicalWorks software on servers/workstations.

Length of Training

5 days

Location

All training sessions will be held at the eClinicalWorks home office in Westborough, MA

Cost

$1500 per person

 

Client ASP Set Up Training

Target Audience New eClinicalWorks clients interested in setting up their own ASP environment

Training Overview A comprehensive training class of the entire eClinicalWorks ASP technical environment

Length of Training

2 days (classes are scheduled quarterly)

Dates and Location

All training sessions will be held at the eClinicalWorks home office in Westborough, MA

Cost

$1500 per person

Support Certifications

To be determined – please call eClinicalWorks for details

   

7.

Other Implementation Services

    INTERFACES

    Contractor will create the following HL-7 compliant interfaces:

    • ADT bidirectional from Siemens
    • Orders and Results for Lab
    o bidirectional Lab (outbound orders, inbound order number, status and results)
    • Orders and Results for Radiology
    o bidirectional Radiology (outbound orders, inbound order number, status and results)
    • Transcribed Reports -inbound only
    • Allergies, Problem List and Medications List outbound
    • Charges outbound
    • Outbound encounter note – This may include chief complaints, HPI, current medication, medical history, social history, surgical history, allergies, immunizations, vitals, labs, x-ray & imaging, ROS, exam, assessment notes, treatment and preventative medicine.
    The specific data elements will be agreed to during the development of the Project Workplan

    DATA MIGRATION

    Contractor will provide data migration from the County’s Siemens Invision System for demographics, insurance information and scheduling information. The specific data elements to be migrated will be agreed to during the development of the Project Workplan and will include the feasibility of including registry data migration. Data migration for registry data will require a Change Order.

8.

Support and Maintenance Services (SMS)

As part of SMS, the Contractor will provide phone support for Service Requests 7/24 for 365 days. This support is via a live person and not an answering service. Contractor agrees to provide bug fixes to the software comprising the Software Programs in a timely fashion so as to not impact County's beneficial use of the Software Programs at the Practice. When problems are reported, Contractor will adhere to the following schedule to resolve Service Requests:

Severity

Description

Response Time

As defined as

‘call back from Contractor’

Recommendation

Resolution

P0

Critical Show stopper. System cannot function or any suggested alternative has drastic impact on the productivity

30 min

2 hr

Report a recommended resolution and fix date/time (plan for correction) after the inquiry is made to the help desk.

4 hr

Full system resolution or a workaround that is acceptable to County.

“Workaround”

as defined as one presented from Contractor.

P1

System or major components disabled, but there is a workaround for some functions.

In this case, “Workaround” is defined as a County provided workaround.

1 hr

4 hrs

1 day

Full system resolution or a comprehensive workaround that is acceptable to County.

“Workaround”

as defined as one presented from Contractor

P2

Minor Error, Non-Critical, but is having a negative impact on one or more business functions or System components.

System can function, and there is a clear workaround available.

In this case, “Workaround” is defined as a County provided workaround.

2 hrs

4 hrs

5 days

P3

Functional enhancement

or cosmetic with inconsequential deficiencies.

24 hrs

3 days

Next release

If resolution time is not met, then the system performance uptime penalties will be applicable as noted under System Performance and Uptime. Penalties will be a credit of a percentage of the monthly support costs as noted under System Performance and Uptime

 

Escalation Procedures. County shall have the right to escalate Service Requests that County believes are not being timely addressed by Contractor and/or not receiving the appropriate level of response from Contractor. The table below describes the escalation path:

Escalation Level

Timing

Implementation Division Head

1 day

Executive Sponsor

2 days

If County believes any Service Request is not being addressed in a timely or appropriate manner, County shall have the right to request an appropriate technical resource from the Contractor to coordinate and oversee resolution of such Service Requests. If appropriate for the situation, County and the Contractor-assigned Resource Coordinator shall have weekly status update conference calls until the Service Requests are resolved. County also shall have the right to exercise its right to require on-sites assistance as described above if necessary to resolve such Service Requests.

SYSTEM PERFORMANCE AND UPTIME

Contractor agrees to a 2-second screen response for 95% of the screens as long as the measurement does not include network latency. For the rest of the transactions, the maximum screen response time will be 7 seconds. All time measurements will be done on a direct connect device to the server. A measurement period will be any 2 hour period selected by County. County and Contractor may mutually agree on additional measurement periods. Contractor will warrant a 99.9% uptime as long as the recommended hardware is deployed.

In the event that Contractor fails to meet the uptime warranty and causes the Software Products to not be available for 24/7, 99.9% of the time as measured on a monthly basis, Contractor shall credit the amount as set forth in the chart below, against the next SMS invoice.

99.9 % or higher

None

99.0 – 99.89 % availability

10 % of the monthly SMS fees(Note 1)

98.5 – 98.99 availability

20 % of the monthly SMS fees (Note 2)

Less than 98.5 % availability

30 % of the monthly SMS fees (Note 3)

Note (1) – If uncorrected for one month, 20% of SMS costs for Months 2 and 3; if uncorrected after 3 months, 40% per month. Penalties are nonrefundable.

Note (2) – If uncorrected for one month, 30% of SMS costs for Months 2 and 3; if uncorrected after 3 months, 40% per month. Penalties are nonrefundable.

Note (3) – If uncorrected for one month, 50% of SMS costs for Months 2 and 3; if uncorrected after 3 months, 40% per month. Penalties are nonrefundable.

NOTE: IF MORE THAN ONE VIOLATION OCCURS IN THE “RESOLUTION PERIOD” PERTAINING TO SYSTEM FAILURE AND/OR AVAILABILITY AND/OR RESPONSE TIME THEN ONLY ONE PENALTY, THE MORE SEVERE ONE, SHALL APPLY.

The P0 and P1 support requests will be factored into the uptime warrantee which means for any resolution for P0 issues that go beyond 4 hours or P1 issues that go beyond 24 hours, the overage will be accounted for as downtime.

EXHIBIT B – PAYMENTS AND RATES

AGREEMENT BETWEEN COUNTY OF SAN MATEO

AND ECLINICALWORKS, LLC

In consideration of the services provided by Contractor in Exhibit “A”, County shall pay Contractor based on the following fee schedule:

 

1.

SOFTWARE IMPLEMENTATION AND HARDWARE

License Cost for 160 Named Providers and 72 FTE Providers:

$324,000

(Breakdown of providers and FTE is listed in Exhibit B #9)

 

Implementation FIXED FEE Cost:

$304,500 Assumes overall timeline for implementation of 11 Sites: not to exceed 58 weeks as outlined in Exhibit A Section 2.

    Contractor is providing a Fixed Fee implementation for the Software Programs. This assumes that County will provider IT Staff, a Steering Team and a full time Project Manager, for the 58 week implementation as described in Exhibit A.

Hardware

Contractor does not resell hardware. County may purchase the Contractor recommended Hardware (Exhibit A #3) to operate the Software Programs from any source. If County purchases and installs Contractor recommended Hardware and Hardware is found to be insufficient Contractor shall bear the cost of remediation.

E-prescribing Costs for 160 Named Providers and 72 FTE Providers

$21,600 per year

    (Breakdown of providers and FTE is listed in Exhibit B #9)

2.

INTERFACES AND DATA MIGRATION

Interfaces and Data Migration Fixed Fee

$70,000

    Interfaces - Details described in Exhibit A

    Data Migration will include demographics, scheduling and insurance information

    Additional Data Migration services may be requested by County in writing and if agreed to by Contractor will be provided at $675.00 per day

 

3.

TRAVEL ESTIMATES

Estimated Travel:

Estimated $57,500 based on:

    $250 per person per day onsite plus airfare. On Sites at County estimated at 200 days

    Airfare from Boston to SFO, estimated 10 trips at $750 per trip

 

4.

ONGOING YEARLY COSTS

Yearly Maintenance and Support (SMS)

$91,366.50 for 160 Named Providers and 72 FTE Providers

    Annual maintenance costs are 18% of the total license fee less at 10% discount

    Annual Support costs are $600 per FTE per year less a 10% discount

    For 72 FTEs the total before discount: $101,518.34

    Total after discount is $91,366.50 annually

    Additional Providers

    Maintenance is 18% of the license fee minus a 10% discount which comes to an annual maintenance costs $729 per additional FTE except for Physical Therapists which is $405 per additional FTE during the initial term

    Support is $600 per FTE minus a 10% discount so the annual Support costs for each additional FTE is $540 including Physical Therapists during the initial term

    County will receive all available Versions, at no charge, as long as the SMS agreement is in effect

 

E-prescribing/Formulary checking

$21,600 per year for 160 Named Providers and 72 FTE Providers

    E-Prescribing provided thru Surescripts

    $25 per month per FTE Provider

    Formulary checking provided thru RxHub

If County defaults in its payments for the SMS, or causes its SMS subscription to expire, County has the right to continue using the Software at its own risk, without benefit of upgrades or support, and agrees that Contractor shall not be liable or responsible for any errors or problems with the Software and/or its associated third

Party data from that time forward. County understands and agrees that the Drug Database, CPT, ICD codes and Lab and Device Interfaces cannot be used if the Maintenance and Support Agreement is not in effect.

 

5. PAYMENT TERMS

 

License Fees. The License Fee is $324,000 and is based on 160 named providers and 72 FTE Providers. The payments for the Licenses Fee shall be based on phases on the following milestones:, 15% upon Effective Date, 35 % on Delivery, 35% on FPU of Software Products and 15% upon Final Acceptance. Payment for additional Licenses purchased is due and payable in full upon Delivery. There are no License Fees for Users except for Providers and there is no User limit.

Interfaces. Payment for interfaces shall be based on the following milestones, 50% upon Effective Date and 50% upon Final Acceptance of all interfaces. There is no additional charge for Data Migration of demographics, scheduling or insurance data. Data Migration for registry data will be billed on a time and materials basis at $675 per day.

Implementation. The Fixed Implementation Fee is $304,500. Payments shall be $21,568.75 per month for 12 consecutive months and $45,675 upon Final Acceptance. Monthly payments for the Fixed Fee Implementation shall commence upon completion of the mutually agreed to Project Workplan.

Out of Pocket Expenses. County will reimburse Contractor for reasonable expenses required for Contractor to perform Contractor’s duties under this Agreement. County may require receipts as documentation of expenses. County requires prior approval of any out of pocket expense for travel not identified in the Project Workplan.

Sales Taxes. County shall be responsible for any sales taxes incurred by Contractor as a result of Contractor performing Contractor’s duties under this Agreement.

SMS.  SMS fees are comprised of an annual maintenance fee and an annual support fee. The annual maintenance fee for each Provider FTE is $729 except for Physical Therapists which is $405. The annual support fee for each Provider FTE is $540. SMS fees for the initial 72 Provider FTEs begin upon FPU for each of the 11 Sites and are based on the number of Provider FTEs at each Site. SMS on additional Provider Licenses shall start upon Delivery. SMS shall be invoiced on a monthly basis with the first month prorated based on Site FPU or Delivery.

The SMS fees include the upgrade functionality of the Software Products and the ongoing usage of the drug and billing codes (ICD & CPT) content, and the fee includes telephone support and online support. There shall be no increase in SMS fees for one year after the start of SMS. Thereafter, Contractor may increase the SMS once in a 12-month period provided County receives at least sixty (60) days prior written notice of such increase. SMS Fee increases shall not exceed three (3) percent annually or the past year CPI, whichever is lower.

E-Prescribing/Formulary Checking costs are based on each of the 11 Sites FPU. The annual costs for each Provider FTE is $300. Additional Providers can be added at the annual cost of $300 per Provider FTE commencing upon Delivery. E-prescribing/Formulary checking shall be invoiced on a monthly basis with the first month prorated based on FPU or Delivery Date. There shall be no increase in E-Prescribing/Formulary Checking fees for one year after the start of E-Prescribing/Formulary Checking fees. Thereafter, Contractor may increase the fee once in a 12 month period provided County receives at least sixty (60) days prior written notice of such increase. Such fee increases shall not exceed three (3) percent annually or the past year CPI, whichever is lower.

Consulting Services. County may request, in writing, Contractor to provide additional consulting services to identify ways to optimize the use of the Software Products for $675 per day per person plus applicable travel.

Additional Services. County may request in writing additional services from Contractor such as custom programming, additional Software Products and training. Contractor and County shall mutually agree in writing on the costs for such additional services and Contractor shall provide such additional services. Contractor’s rate for professional services is $675 per 8 hour day.

 

Future Purchases. County will have the option to purchase additional products and services that are not part of this Agreement by signing an agreement addendum to add these products or services. The costs of these additional products and services are outlined in Exhibit B, Section 7. County will receive a 35% discount on future purchases of EPM, EHX and additional interfaces.

Invoicing. Contractor agrees to work with the County to define the invoice details and agrees to comply with County specifications. Contractor will invoice County within 30 days of service or as otherwise provided for in this Agreement.

The amounts payable shall be due and payable on the date specified in this Agreement or if not specified then within thirty (30) days of receipt of invoice therefore and payment must be made in U.S. Dollars. Contractor will assess County a late payment charge on any amount which remains unpaid thirty (30) days after it is due, computed at the rate of one and one-half percent (1½%) per month or the highest allowable by law, whichever is lower, on the unpaid amount for every month the amount remains unpaid. All payments will be made without setoff, counterclaim, recourse or other defense. Payments withheld in good faith will not be considered breach by County or be subject to interest.

 

6. Performance Metrics

Contractor performance of services under this Agreement will achieve the following measures of success (“Implementation Success Metrics”) in 80% of the Providers.

Clinician Scorecard

Target

 

1. Current (post FPU) visit encounters captured and viewed in EHR (in any format)

Measure: Practice audit and analysis of EHR audit logs

85%

2. Form based/template based encounter documentation used at any time in an encounter.

Measure: Practice audit and analysis of EHR audit logs

30%

3. Visits coded in EHR.

Measure: Practice audit and audit logs from EHR system

85%

5. Prescriptions ordered, recorded and managed electronically: Prescriptions written in EHR and either printed out for patient or sent directly to pharmacy. Refill requests and renewals also handled directly through EHR.

Measure: Audit logs from EHR; analysis of eRx volume

85%

6. Test orders originated and recorded in EHR. Orders transmitted directly or requisition printed for patient.

Measure: Audit logs from EHR; analysis of orders

80%

7. Problem lists, medication lists, current meds, allergies recorded and maintained electronically

Measure: Practice audit and analysis of EHR audit logs

85%

Staff/Practice Scorecard

Target

8. Patient messages entered directly and managed in EHR.

Measure: Practice audit and analysis of EHR audit logs

85%

9. Clinical tasking performed electronically, recorded in EHR: Task assigned to someone, tracked and recorded in chart when patient specific. (e.g. lab results ready for review by physician, reviewed and referred to other staff for action.)

Measure: Practice audit and analysis of EHR audit logs

85%

10. Patient flow viewed and managed electronically (automated check-in, rooming etc, if available in the software application.)

Measure: Practice audit and analysis of EHR audit logs

70%

CALCULATION OF PERFORMANCE CREDITS

Failure to meet the Implementation Success Metrics (the “Metrics”) above will result in Contractor providing additional training to the providers at no additional cost that are not able to meet the Metrics. The Providers need to have demonstrated that they attended their scheduled trainings and have demonstrated their commitment to use the EHR.

Measurement –6-months after the FPU Date for the first Site (currently scheduled: TBD), County will measure implementation success for all live Sites in a manner substantially similar to the method described in the Implementation Success Metrics table above. A final measurement interval will occur 6 months after FPU Date for last Sites. Identification - If Contractor has not met 7 out of the 10 Implementation Success Metrics during the measurement interval with respect to 80% or more of the Providers that have then reached FPU with Contractor, the County will present to Contractor a list of Providers not meeting the Implementation Success Metrics (“Non-Performing Providers”). County will in good faith limit the list of Non-Performing Providers to those determined to be reasonably responsive to follow-up and remediation. Contractor and the Sites will mutually agree on a remediation plan for the Non-Performing Providers. Contractor will perform, at its cost, remediation for Non-Performing Providers.

7. Future Purchases

 

Cost of Future purchases during the initial term.

Optional Add on products for the EMR

Patient Education from Adam

    $15.00 per month per named provider

MidMark Equipment

    Contractor resells Midmark equipment that will integrate with eClinicalWorks. There will be no installation charge if purchased from eClinicalWorks. If County chooses to purchase elsewhere, there will be a charge of $500 per device. Device is configured to record from one computer. However, all computers using eClinicalWorks can read the results

    o Midmark IQ Digital ECG EMR - $3,995

    o Midmark IQ Digital Spirometer - $2,160

    o Midmark EZ Holter EMR Kit w/ Recorder - $5,840

    o Midmark Advanced Holter w/ Recorder - $7,850

    * Increase in Midmark rate to Contractor will increase the costs to the County.

Practice Management (EPM)

EPM Upfront license Fee

    $2,500 one time fee for the first FTE and $500 one time fee for each additional FTE plus applicable tax

    County to receive a 35% discount

    Total after discount $1,625 one time fee for the first FTE and $325 one time fee for each additional FTE plus applicable tax

Ongoing Fee

    Maintenance is 18% of the total license fee before discount for EMR and PM and will be adjusted accordingly.

    Support is already covered by the EMR agreement. Support fee will not increase when adding EPM.

Implementation

    Installation $675 per day

    Project Management $675 per day

    Training $675 per day per person

Travel

    $250 per day per person plus airfare

Features

    Claims Management

    Receivables Management

    Patient Statements

    Clearing House connectivity

    Financial Analysis Reports

OPTIONAL EPM Products – Clearinghouse (Choose One)

    WebMD Envoy (formerly WebMD) - $59 per month per named provider Includes unlimited electronic claims, Electronic Remittance Advice (ERA) for participating payers

    WebMD Envoy (formerly WebMD) - $79 per month per named provider includes unlimited electronic claims, Electronic Remittance Advice (ERA) for participating payers and real time patient insurance eligibility

    Gateway EDI - $75 per month per named provider includes unlimited electronic claims, and real time patient insurance eligibility

    EDI - $99 per month per provider includes unlimited electronic claims, real time patient insurance eligibility and Electronic Remittance Advice (ERA)

OPTIONAL – Patient Statement (Choose One)

    Express Bill - $.56* cents for single page letter/statement (includes printing, stuffing and mailing letter/statement with outgoing envelope, postage, inner windowed remit envelope), $.17 cents for per multiple page and $.03 cents for per page of backside printing with variable data

    Gateway EDI - $.52* cents for single page letter/statement (includes printing, stuffing and mailing letter/statement with outgoing envelope, postage, inner windowed remit envelope) and $.14 cents for per multiple page.

    * Increase in US Postage rate will increase the statement processing costs.

OPTIONAL – Code Correct

    $6 per month per named provider

OPTIONAL – COGNOS

    $1000 per named provider one time fee

    $50 per year per named provider ongoing fee

   
   
 

Electronic Health Exchange (EHX)

EHX Upfront license Fee

    $1,000 per FTE one time fee plus applicable tax

    County to receive a 35% discount

    Total after discount is $650 per FTE plus applicable tax

EHX Ongoing Fee

    $25 per month per FTE plus applicable tax

EHX Implementation

    Installation $675 per day

    Training $675 per day

EHX Features

    Electronic Referrals and Consult letters

    Continuity of Care Records (CCR)

    Access to the patients: Medical Summary, Labs, Medications, Demographics – includes transfer of demographics

    Physician can access these records as long as they have Internet connection and permission to access the records.

 

Interfaces not listed in

Exhibit A

    Contractor can create an interface as long as it is HL-7 compliant and the other Vendor is willing to work with the Contractor.

    Cost is $10,000 per a bidirectional interface and $5,000 per a unidirectional interface plus applicable tax.

    County to receive a 35% discount

    Cost after discount is $6,500 per bidirectional interface and $3,250 per a unidirectional interface plus applicable tax.

 

8. Site Visits

Terms and Conditions:

    The County will be entitled to receive a site visit credit for every potential customer that Contractor has organized a site visit for. This only applies when Contractor contacts the County directly to ask permission to have a site visit and is the primary organizer.

    This Agreement does NOT apply if:

    o A potential customer contacts the County without Contractor initiating the call to the County to ask for the site visit

    o If Contractor is not the primary organizer.

    o If the visiting potential customer has never had a demo with a Contractor product specialist.

    o A potential customer was referred to Contractor by the County who is taking a site visit and a Referral Agreement is in place.

    The sites visit fee will be calculated as follows:

    o First 10 site visits will be done with no compensation due County.

    o After the first 10 visits compensation in the form of credits will be calculated as follows.

      § If visiting potential customer has 1-14 providers County will be credited $500 per site visit

      § If visiting potential customer has 15+ providers County will be credited $1000 per site visit

The credit will be issued once the site visit is complete on a quarterly calendar (on Jan 1, April 1, July 1, Oct 1) and applied to County SMS invoices.

 

9. PROVIDER AND FTE BREAKDOWN

    Licenses and Costs: $308,250

    Contractor grants County a Perpetual License for 160 named Providers. This is based on a FTE Provider count of 72 as shown below:

    Providers

    FTE

    45 Full Time considered 1 FTE each:

    45

    45

    108 Part Time considered 0.25 FTE each:

    108

    27

    7 licenses are provided to the County at no cost and are not considered as part of the FTE count. These licenses are for 1 Licensed Social Worker, 3 Physical Therapists and 3 Nutritionists. If County hires additional Provider(s), then License(s) will need to be purchased for the new Providers.

    7

    0

    160

    72

Should County exceed 72 FTE Providers, County shall notify Contractor and County shall purchase the additional Provider Licenses. Additional Provider Licenses may be purchased on a FTE Provider basis for $4,500 except for licensed Physical Therapists which shall cost $2,500 per FTE Provider.

ATTACHMENT A – CHANGE ORDER FORM

AGREEMENT BETWEEN COUNTY OF SAN MATEO

AND ECLINICALWORKS, LLC

Project Agreement:

Change Request No.:

Request Date:

Requestor:

Change Description:

Action Requested: (Initial by Authorized COUNTY Management)

None Verbal Quote High-Level Estimate Detailed Assessment

Change Impact: