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Self Insurance Administrators
November 2019 RECEIVE
N0V252 4;
019
Melisa Folmer
Cityof Bremerton C'h"ofBremotion
Risk Mana :. :;
345 6 St.Ste 100 gement i,:...
Bremerton,WA 98337
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RE: Claims Administration Agreement,by and between Eberle Vivian Inc, and City ;:._�
of Bremerton, dated December 28, 2017 e.,''`'
Dear Melisa:
Eberle Vivian,Inc. ("EV") has agreed to sell the Transferred Assets (as
defined in the Asset Purchase Agreement) to Helmsman Management Services LLC
=:;:; .
("Helmsman") (the"Transaction"). Ii
In connection with the Transaction,Assignor intends to assign to Helmsman
or one of its affiliates (the "Assignee") all of the Assignor's right,title and interest in, '
to and under the Agreement(the"Assignment").
We are sending you this letter to request your consent to the Assignment.
Kindly acknowledge your receipt of this letter,and confirm your consent to the
Assignment,by signing below and returning a copy as promptly as practicable,but >'
in any event no later than December 5, 2019. You can scan the signed letter and =_
return it by email to me at:lisa@eberlevivian.com. You may also fax this signed •
letter to my attention at (253) 854-6404. By returning this to us electronically,you
agree that the electronic copy shall act as an original.
Your signature will not change the terms of the Agreement. It is,and will
remain,in full force and effect.
The Assignment shall become effective, subject to your consent referenced F .
above,as of the closing of the Transaction,which is expected to occur by the end of
the fourth quarter of 2019. In the event that a closing does not occur,the
Assignment shall be null and void.
We value our relationship with you and we will remain involved during the
transition and afterward to ensure the process is as efficient and seamless as
possible. '
:_;
206 Railroad Avenue North •Kent, Washington 98032 er;:
(253)854-6323 • FAX(253)854-6404 >"`
If you have any questions or wish to discuss this request, please call me at
(253)854-4647.
Sincerely, if
E e erle Vi nc.
• e: isa A •
Title: President
ACCEPTED,ACKNOWLEDGED
AND AGREED:
By: (. ))
Name: G Ce.q
J
Title: Mayo
is
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
7N
SUBJECT: Claims Administration Study Session Date: December 13, 2017
Agreement with Eberle Vivian, Inc. COUNCIL MEETING Date: December 20, 2017
Self -Insured Worker's Compensation Claims Department: City Attorney's Office —
Risk Management
Presenter: Thelma Swem
Phone: (360) 473-5302
SUMMARY: The City contracts its self-insured worker's compensation claim administration with a
third party self-insurance administrator to ensure compliance with all Labor & Industries rules. The
City submitted a request for proposals to three Washington State self-insurance claims
administration firms and received three responses. The proposals were evaluated and staff is
recommending Eberle Vivian be selected to administer its worker's compensation claims beginning
February 1, 2018. The proposed agreement is for an initial three-year term with an option for two
two-year extensions.
ATTACHMENTS: Proposed Claims Administration Agreement between the City of Bremerton and
Eberle Vivian for self-insured worker's compensation claims administration
FISCAL IMPACTS (Include Budgeted Amount): The annual contract amount is $28,950 and
sufficient funds have been budgeted for 2018 in the Risk Management Fund.
STUDY SESSION AGENDA: N No Presentation ❑ Full Presentation
STUDY SESSION ACTION: ® Consent Agenda ❑ General Business ❑ Public Hearing
RECOMMENDED MOTION:
Move to approve the Claims Administration Agreement between the City of Bremerton and Eberle
Vivian for self-insured worker's compensation claims administration; and authorize the Mayor to
finalize and execute the agreement with substantially the same terms and conditions as presented.
COUNCIL ACTION: [Approve
Form Updated 01/07/15
❑ Deny ❑ Table ❑ Continue ❑ No Action
EV/City of Bremerton
Contract Agreement
Page 1
CLAIMS ADMINISTRATION AGREEMENT
THIS AGREEMENT is made and entered into between EBERLE VIVIAN
INCORPORATED, with its principal place of business at 206 Railroad Ave, N., Kent,
Washington, 98032 (hereinafter referred to as "EV"), and the City of Bremerton with its
principal place of business at 345 6'h St. Suite 100, Bremerton, WA 98337 (hereinafter
referred to as "the Client").
WITNESSETH
WHEREAS, the Client maintains an insured plan to cover its Workers' Compensation
liabilities in the State of Washington; and EV has agreed to perform certain services in
connection therewith, as herein set forth:
NOW, THEREFORE, it is agreed as follows:
1. The initial term of this Agreement shall be for the period of three (3)years
commencing February 1, 2018 and ending January 31, 2021. At the end of the
initial term, this Agreement may, at the sole discretion of the Client, be renewed
for up to two (2) terms of two (2) years each, with the same terms and
conditions. Nonetheless, this Agreement may be terminated by either party at
any time by giving not less than sixty (60) days written notice to the other party,
and EV may terminate this Agreement on shorter notice in the circumstances
described in Sections 3(c) and 5(e).
2. During the period of this Agreement, EV shall represent and act for the Client in
matters pertaining to the actual or potential liability of the Client for claims
based on injuries to the Client's employees which occur during the term of this
Agreement that are or should be, in the Client's judgment, handled pursuant to
the self-insured provisions of the Industrial Insurance Act of the State of
Washington (the "Act"). More specifically, EV shall:
a. Receive notice of and create files on each claim reported and maintain
these files for the Client.
b. Investigate all claims as required to determine their validity. and
compensability.
c. Determine proper benefits due on compensable claims.
d. Make timely payment of benefits due, in accord with payment
procedures as established from funds provided by the Client. The Client
will be wholly responsible for providing such funds as may be required
for these payments.
e. Prepare documentation and defense of cases considered non -
compensable and assist legal counsel selected by the Client in
preparation of cases for hearing, appeals, and/or trial.
f. Maintain and provide the Client pertinent data on all claim payments
g. Provide monthly and/or quarterly computerized loss reports in a tailored
format, as mutually agreed at inception of the program, showing
descriptive data, details of each month's payments, total payments,
reserves and total experience for each claim.
h. Provide the Client's excess insurers such reports as they may reasonably
require within specific excess coverage reporting requirement.
i. Provide information and assistance as may be reasonably required for
preparation and filing of all reports required by the Act and any other
applicable law in connection with the Client's approved self-insured
status.
j. File with the appropriate State of Washington administrative agencies,
including but not limited to the Department of Labor and Industries, such
information as is required by the Act and any other applicable law with
respect to each claim.
k. Provide loss control services, defined as loss control, consultations and
surveys as mutually agreed.
1. Perform all services to be rendered pursuant to this Agreement in full
compliance with the Act and all other applicable law.
m. EV RMIS will electronically interface with the Centers for Medicare and
Medicaid Services (CMS) to capture and report data in the format
prescribed by the CMS Specifications.
n. EV RMIS will report directly to CMS on behalf of Client as an Account
Designee (reporting agent), as such term is defined in the CMS User
Guide published on March 16, 2009 ("Account Designee").
o. If Client is the Responsible Reporting Entity ("RRE") as that term is
defined in MMSEA Section 111 as set forth in 42 U.S.C. 1395Y, EV
RMIS will assist client as follows:
EV/City of Bremerton
Contract Agreement
Page 3
L EV RMIS will develop an electronic interface with CMS to
forward the information needed to meet Client's MMSEA
reporting obligations.
ii. As the custodian of the original claims information from which
the reports will be compiled, EV RMIS will be authorized
Account Designee for Client. As an Account Designee, EV RMIS
will prepare and submit test files to CMS in accordance with the
applicable regulations and the requirements of the CMS
Specifications.
iii. EV RMIS will prepare the CMS Medicare beneficiary required
data files and submit them to CMS or otherwise forward them as
required by applicable regulations instructed, by Client.
iv, EV RMIS will establish and implement proper safeguards against
unauthorized use and disclosure of the data exchanges for the
purposes of complying with MMSEA. Proper safeguards shall
include, but not be limited to, the adoption of policies and
procedures to ensure that the data obtained shall be used solely in
accordance with Section 1106 of the Social Security Act 1.42
U.S.C. 1306], Section 1874(b) of the Social Security Act [42
U.S.0 1395kk (b)], Section 1862(b) of the Social Security Act
[42 U.S.0 13958y(b), and the Privacy Act of 1974, as amended [5
U.S.0 552x]. EV RMIS shall establish appropriate administrative,
technical, procedures and physical safeguards to protect the
confidentiality of the data to prevent unauthorized access to the
data provided by CMS. Further EV RMIS agrees to grant an
authorized representative of the Center for Medicare and
Medicaid Services (CMS) and/or Client access to facilities where
the Client's Medicare data is stored or kept for the purpose of
inspecting security arrangements at a mutually agreeable date and
time. The purpose of any such inspection will be to confirm that
EV RMIS is in compliance with all applicable security
requirements. Access to the records matched to any records
created by the matching process shall be restricted to authorized
CMS, EV RMIS and Client employees, agents and/or officials
who require access to perform their official duties in accordance
with the uses of the information as authorized under Section 111
of the MMSEA of 2007 and this Addendum, Such Personnel shall
be advised of (1) the confidential nature of the information; (2)
safeguards required to protect the information; and (3) the .
administrative, civil and criminal penalties for noncompliance
contained in applicable Federal laws.
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4:P1
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EV/City of Bremerton
T
Contract Agreement
Page 4
p. EV RMIS will be responsible for payment of any and all fines assessed
Ia
to the Client in regards to compliance with the Medicare beneficiary
reporting requirements of Medicare, Medicaid and SCHIP Extension Act
of 2007 that relate to the negligent acts or omissions of EV RMIS except
to the extent that:
L Such fines or penalties are the direct result of specific direction
given by Client and/or its agent or the negligent actions or
omissions of Client and /or its agent;
ii. EV RMIS did not receive information from Client that is essential
to the performance of the duties set forth herein in a timely
manner so as to be able to comply with the terms of this
Addendum;
3. In consideration of the services to be performed by EV hereunder, the Client
shall pay to EV:
a. A service fee of $28, 950 per year for all claims administration service
performed within the contract period. The contract period will include
the initial term of this Agreement and two (2) optional years, if exercised.
Thereafter, the service fee will be subject to an annual increase equal to
the Greater Seattle Area Consumer Price Index, plus two (2) percent.
b. Such additional fee as mutually agreed by the parties for any services in
addition, to those described in Section 2 that are requested by the Client.
c. Interest of 1.5% per month on invoices not paid within 30 days of client's
receipt thereof. In the event invoices are not paid within sixty (60) days
of client's receipt thereof, EV may terminate this Agreement, at its
option, after ten (10) days written notice to the Client.
4. The Parties mutually agree that:
a. Client will indemnify, defend and hold harmless EV, its officers,
directors, employees, and agents, from all claims, losses, damages, costs,
liability or expenses, including attorneys' fees, caused by or resulting
from the negligence or willful misconduct of Client, its officers,
directors, employees, insureds or agents, to the extent permitted by law.
b. EV will indemnify, defend and hold harmless Client, its officers,
directors, employees, and agents, from all claims, losses, damages, costs,
liability or expenses, including attorney's fees caused by or resulting
solely from the negligence or willful misconduct of EV, its directors,
officers or agents, to the extent permitted by law, however the parties
EV/City of Bremerton
Contract Agreement
Page 5
agree that EV, its directors, officers, agents or employees, will not be
liable to Client or any third party for claims arising from EV's
performance under this Agreement in those cases where EV acted at the
request of or with the consent of Client.
c. Client agrees that it will not hold EV liable for, or reduce the
compensation of EV with respect to any failure of EV to deliver any
services resulting from any failure of cooperation on the part of Client or
the prior administrator, or from any files for takeover claims which have
not been properly maintained or are not delivered to EV in good order.
d. This section of the Agreement shall survive the termination of the
Agreement.
5. The Client agrees:
a. To pay EV the fee provided for hereunder and any other fees agreed to
by the Client.
b. To pay all allocated loss expense, as hereinafter defined, in addition to
the fees to be paid to EV. Allocated loss expense is defined as
reasonable attorneys' fees, court and/or hearing costs, costs of
depositions, documents and exhibits, witness and expert fees, medical
and engineering appraisal, surveillance, independent adjusting,
photography.and other incidental and special costs incurred to evaluate
compensability of claims.
c. To make funds available to EV to be used by EV to pay claims that the
Client determines it should pay pursuant to the Act and allocated loss
expense.
d. To advise EV on a timely basis of all pertinent excess insurance reporting
requirements and/or reporting modifications for all annual periods for
which claim administration services are provided.
e. That this Agreement is entered into with the assumption that existing
Federal, State or other jurisdictional regulations will remain in effect for
the duration of this Agreement.
The Client agrees that should administrative or other costs of service
provided hereunder be substantially increased as a result of modifications
in existing law, enactment of new legislation, or promulgation of new
administrative guidelines.
The Client and EV agree to attempt to negotiate an adjustment to the
-� 7.7.:-7 - - - ------------------ ---
EV/Ci
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EV/City of Bremerton
Contract Agreement
Page 6
service fees to equitably reflect the effect of such change.
If the parties cannot agree on a revised service fee, EV may terminate
this Agreement, at its option, after thirty (30) days written notice to the
Client.
6: The Parties acknowledge and agree that:
a. Any and all information emanating from either party's business in any
form, including compilations of otherwise public information, is
confidential and proprietary in nature. Each party will use it best efforts
during and after the termination of this Agreement to preclude the
duplication, use or disclosure of any such confidential and proprietary
information to any third party, unless such duplication or disclosure is
specifically authorized under this agreement or otherwise by the party
claiming ownership. In addition, the parties agree that information
provided by EV's RMIS or otherwise in the context of this relationship
shall be considered confidential and proprietary and may constitute
privileged and/or attorney work product protected from discovery by law
and/or rules of court. Therefore, neither party will release any such
information unless:
L Compelled by an order of a court of competent jurisdiction;
ii. Mandated by an insurance code, claim practices act, workers'
compensation law, or other applicable law or regulation to
provide information to the claimant or other person;
iii. Mandated by applicable court discovery rules in the opinion of
the claim professional responsible for the adjustment of the claim
or defense counsel, if any.
b. Any information sought to be produced will be prescreened by EV in
consultation with Client, provided such discovery requests comply with
applicable rules of court governing discovery litigation.
c. If there is an obligation to release part but not all of the information, the
part deemed not responsive will be withheld, but nothing in this
Agreement is intended to abrogate the duty of either party to comply in
good faith with such discovery requests.
d. Each party agrees that the information contained within EV's RMIS must
be treated in a confidential manner by all users who may gain authorized
access to the RMIS. In the event of a third party suit alleging defamation,
false light, or other invasion of privacy tort, violation of civil rights,
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c:.'.. ..:_.: :::....:...:..::,:. ____.___c;:.::.. ..........:....,......;:::. .
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EV/City of Bremerton
Contract Agreement
Page 7 : =
violation of federal or state medical privacy statutes, or violation of fair
employment practice laws, arising from either party's use of EV's RMIS
under this agreement, the liable party agrees to indemnify and hold
harmless the other party for all sums due under the terms of a judgment
or reasonable settlement, including interest and attorneys' fees, upon a
final judgment or mutual agreement that one of the parties hereto is liable
as charged in. such allegations.
EV shall hold the non-public personal information in strict confidence
and access it only for explicit business purpose of this agreement. EV's
Privacy and Confidentiality Policy, and as applicable, all state and
federal laws related to privacy, including, but without limitation, Gramm -
Leach -Bliley Act. Upon reasonable request, Client may audit EV's
compliance with EV's Privacy and Confidential Policy as well as EV's
compliance with state and federal laws related to confidentiality of non-
public personal information. EV shall promptly notify Client in writing
of any unauthorized use or disclosure of non-public personal information.
EV shall endeavor to promptly notify Client of any unauthorized use or
disclosure on non- public personal information and it will take immediate
steps to remedy the situation and mitigate damage.
f. This section of the Agreement shall survive the termination of the
Agreement.
7, All claims and related files generated by EV as a result of its activity under this
Agreement shall remain at all times the property of the Client with the exception
of any supporting data required by EV to make such accountings to the Client or
excess insurers as are required in this Agreement.
EV will retain claim. files for three (3) years following date of closure.
Thereafter, files may be returned, at the Client's direction and expense, to the
Client or forwarded to such location as may be designated for continued storage.
Upon EV's request, closed claim files will be returned for additional
administration as may be required.
EV will electronically maintain any claim files created on or after the inception
date of this contract. EV will maintain any files not scanned. into our electronic
database and return them to the client or its designee in the event of contract
termination at the expense of the client.
In the event of termination or non -renewal of EV's services, EV will, at the
Client's request and expense, transfer all open and retained closed claim files to
the Client or its designee, as of the effective date of termination.
i::
EV/City of Bremerton
Contract Agreement
Page 8
8. EV is retained by the Client only for the purposes and to the extent set forth in
this Agreement, and its relationship to the Client shall be that of an independent
contractor
9. The Client agrees that during the term of this Agreement and for a period of one
(1) year following its termination, it will not employ any person employed by
EV during the term of this Agreement without the prior written consent of EV.
10. Any notice required or permitted to be given under this Agreement shall be
sufficient if given in writing and sent by registered or certified mail to.the Client
or to EV at the addresses first set forth above or to any other address of which
written notice of change is given.
11. The waiver by EV or the Client of the breach of any provision of this Agreement
by the other party shall not operate or be construed as a waiver of any
subsequent breach by either party or prevent either party thereafter enforcing any
such provision.
12. This Agreement is for the term provided for in Section 1. Upon termination of
this Agreement, the Client shall have the option to:
a. Assume all open claims pending for the terminated or non -renewal
portion of the program as of the effective date of termination or non-
renewal, provided, however, that EV shall be entitled to receive its full
fee for all quarters beginning prior to the effective date of termination or
non -renewal; or
b. Upon agreement by both parties to a rate of compensation, require EV to
continue administration, to conclusion, of all open claims associated with
that portion of the program terminated or non -renewed. Such rate of
compensation shall thereafter be reviewed by the parties on an annual
basis and shall be the subject of mutual agreement between the parties.
Adequate funds shall continue to be made available by the Client for the
payment of claims and allocated loss expense until all claims are
liquidated.
c. In the event the Client requests EV to provide post -termination or non-
renewal claims administration, upon agreement by both parties to a rate
of compensation, the Client may continue to purchase computer data
services. Such rate of compensation shall thereafter be reviewed by the
parties on an annual basis and continued on-line services shall be the
subject of mutual written agreement between the parties.
13. The obligation of EV to perform its duties hereunder is conditioned upon the
Client's cooperation with EV with respect to the activities of EV including, but
EV/City of Bremerton
Contract Agreement
Page 9
not limited to, responding to EV's requests for information promptly; providing
excess carrier reporting requirements; meeting with EV and/or third parties, as
may be needed; making decisions on matters which, in the professional opinion
.of EV, should be made by the Client; the provision of funds referred to in
Section 5; and performance by the Client of all other obligations of this
Agreement.
14. This Agreement may not be assigned by either party without the prior written
consent of the other party, which consent will not be unreasonably withheld.
15. Any unresolved dispute between the Client and EV that may arise from the
obligations of either party as set forth herein, will be subject to non-binding
mediation on the written request of either party. Such mediation shall not be
binding upon the Client and EV, however the parties agree to negotiate in good
faith to resolve disputes prior to commencing litigation. The parties shall attempt
in good faith to select a single mediator within 15 days of the written request for
mediation. If they are unable to select a single mediator within said period, then
each party shall select a mediator. If the two mediators cannot agree on a third
within fifteen (15) days, either parry may request that selection be made by a
judge of a court having competent jurisdiction. The laws of the State of
Washington will apply. The parties shall each pay for one-half of any
mediator's costs. In the event of mediation and/or litigation, each party shall
pay its own attorney's fees and costs.
16. EV shall provide Certificates of Insurance to the City; Attorney's Office verifying the
following coverage:
a. Professional liability providing coverage of One Million Dollars ($1,000,000)
for errors and omissions committed by EV while performing its obligations
under this Agreement. The policy shall remain in full force and effect, and
provide coverage for the full term of this Agreement. Insurer shall provide the
City Attorney with thirty (30) days' written notice of any cancellation or change
of coverage of the policy.
b. Cyber liability insurance covering liabilities for financial loss resulting or arising
from acts, errors, or omissions, in rendering technology services in connection
with the specific services described in this Agreement with a minimum limit of
One Million Dollars ($1,000,000) per occurrence and in the aggregate. Coverage
must be provided for privacy and security liability, privacy regulatory defense
and payment of civil fines, payment of credit card provider penalties, and breach
response costs (including without limitation, notification costs, forensics, credit
protection services, call center services, identity theft protection services, and
crisis management/public relations services).
17. This Agreement sets forth all of the terms, conditions, and agreements of the
parties relative to the subject matter hereof and supersedes any and all such
EV/City of Bremerton
Contract Agreement
Page 10
former agreements which are hereby declared terminated and of no further force
and effect upon the execution and delivery hereof. There are no terms,
conditions or agreements with respect thereto, except as herein provided and no
amendment or modification of this Agreement shall be effective unless reduced
to writing and executed by the parties. All terms, conditions, and definitions as
set forth in this Agreement will be interpreted under the laws of the State of
Washington.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate counterparts as of this date written and the persons signing below warrant that
they have the authority to execute this Agreement.
EBERLE YIWAN INCORPORATED C�
By:
President Title: f1G�d�L.
Date: ���1� Date: