FMS FINAL CLARIFICATION MEMO: QUESTIONS & … · Gina Meier-Hummel, ... FMS FINAL CLARIFICATION...

Community Services and Programs Commission New England Building 503 South Kansas Avenue Topeka, KS 66603-3404

Phone: (785) 296-3537 Fax: (785) 296-0256

[email protected] www.kdads.ks.gov

Kari M. Bruffett, Acting Secretary Sam Brownback, Governor

Gina Meier-Hummel, Commissioner

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FMS FINAL CLARIFICATION MEMO: QUESTIONS & ANSWERS

AND DISCUSSION OF SPECIFIC CONTRACT PROVISIONS

(January 14, 2015)

I. INTRODUCTION:

During the past several weeks, various providers have continued to submit questions

regarding the FMS process and also as to the FMS contract. Most of the questions have been

reproduced below and with appropriate answers provided. In addition, section III addresses

specific contract provisions. In some instances, changes have been made; while in others,

clarification has been provided. Any changes appear in red.

KDADS understands the possibility of necessary system changes to provider operations as a

result of the shift in FMS model. As a result, KDADS will continue to work with FMS providers

to implement a system that supports consumer-direction and the desired hybrid model. The shift

in FMS models requires KDADS to set expectations that provides safeguards for the consumer

and FMS providers.

These expectations include ensuring providers fully offer an FMS service that is robust and

includes these primary principles:

General accounting practice

Financial accountability that is reported to the level of a direct service worker

Fiscal support for consumer direction

Consumer control in selecting wages within allowable reimbursement rates

Information and Assistance to fully support the consumer as the sole employer and their

role as employer

II. QUESTIONS & ANSWERS: (Questions appear in Italics)

General Questions:

1. The requirement that FMS is only available for beneficiaries that live in their own private

residences or the private home of a family member is too limiting. What about people that live

with friends? What about folks that live in a shared/roommate situation?

This question seems to interpret the term “private” more strictly than KDADS

intends. We are not supporting restrictions to services in a manner that would preclude a

person from living with another family member or a friend or a couple of friends.

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“Private” home does not include group/congregate settings or settings in which licensed

residential or day supports are provided.

2. We’re working as an agency with choice. I believe we’re being told we now have to go to the

other model. Is that true? If any FMS agency (self-direct) has less than 100 employees, can the

FMS provider remain agency with choice?

CMS has confirmed the proposed model in Kansas is a hybrid model and the appropriate box in

the waiver is fiscal/employer agent. An FMS provider is unable to remain an agency with choice

provider under the Kansas hybrid model.

3. If an FMS employee is the social security “payee” for an HCBS member, and the HCBS

member choses to self-direct his or her services using the FMS entity as its payroll agent,

is this a conflict of interest?

In general, the social security payee is in a fiduciary relationship with the member to use

such funds in the member’s best interest, and per the terms of applicable social security

law. As the payee funds and the FMS funds used to pay the member’s DSW are separate

and distinct, it would appear that there is no actual conflict; however, the ultimate answer

would rest on the content of federal law and the facts presented on a case by case basis. A

conflict of interest arises under the HCBS final rule if an HCBS provider has financial or

medical authority for a person served. In addition, as this question requires legal advice,

the proponent should engage private counsel for a definitive answer.

4. Consumer setting wages – FMS will pay one worker $9/hour and another $12/hour?

How will this function? Under the FMS model will there be a limit or range that

individuals can pay staff? What is max and required qualifications? Does the consumer have

to negotiate with FMS?

KDADS expects the consumer to set the worker’s wage within allowed HCBS program

reimbursement rate minus the applicable employer/employee expenses.

5. What is FMS provider incentive to provide “adequate” support for individual employers?

FMS providers must comply with the terms of the FMS agreement, state and federal rules/

regulation, and policies and procedures. KDADS will conduct quality assurance and program

integrity reviews to ensure FMS providers are in compliance.

6. Foster children & PAS/FMS services: there are foster children receiving HCBS supports

now, including the option of self-directed in-home PAS services. In these cases, who is

the appropriate EIN holder? Would it be the foster care agency? The state? The

CDDO?

In the proposed renewal and subject to CMS approval, children in foster care will only

receive agency-directed care while in custody of the Secretary of the Department for

Children and Families (DCF). DCF and their foster placement contractors will continue

to have the opportunity to choose the providers of services for agency-directed services.

The transition plan and timeframe will coincide with the transition plan for the federal

EIN.

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7. The Summary of Proposed Change in Service Definition for FMS, 1. MCO

Responsibilities says “The MCO will ensure that persons seeking or receiving

participant-directed services have been informed of the benefits….and provide the choice

of FMS providers.” This has traditionally been the responsibility of the CDDO, rather

than the MCO. Why the proposed change?

KDADS expects the CDDO and MCO to have shared responsibility in fully informing

the consumer of their opportunities under participant-direction.

8. Proposed Changes for FMS, 3.FMS Duties mentions the Employer Authority

model. Where can we find an expanded description of this model, especially as

compared to the current Agency With Choice (AWC) model? Does the Employer

Authority model eliminate the “joint-employer” issues that have been a concern with the

current FMS model in Kansas?

Please visit the KDADS website at www.kdads.ks.gov for the FMS Summary description

of the Kanas hybrid model for FMS providers. Additionally, general information about

the fiscal/employer agent model is available from the National Research Center for

Participant-Directed Services as an example (http://www.bc.edu/schools/gssw/nrcpds/).

9. Proposed Changes for FMS, 6. Employer Responsibilities, 11th bullet “Verify time

worked by DSW(s) was delivered according to the POC, and approve and validate time

worked electronically or by exception paper timesheets.” Under the current

AuthentiCare electronic system how can the Employer verify, approve, and validate time

worked? The Employer has no involvement in the electronic system. Please explain how

this will be accomplished.

The FMS provider is responsible for ensuring the consumer has access to information

relating to a worker’s timesheet for the purpose of approving and validating time worked.

The State is working on future enhancements with KS AuthentiCare to allow employer

verification.

10. Proposed Changes for FMS, 6. Employer Responsibilities, 19th bullet “Participate in

required quality assurance visits…” Why is CDDO QA not included in this?

For the purpose of this language, all HCBS providers are required to participate in quality

assurance visits in order to meet with CMS quality assurance requirements.

11. The HCBS participant, will FMS continue to be our pay agent, as well as, administer

other functions outlined in the Summary of Proposed Changes?

Any qualified HCBS provider delivering services under participant-direction will be paid

by an FMS provider.

12. Related to background checks, what happens if a Consumer refuses to run the

background check? What happens when the Consumer hires the individual anyway?

http://www.kdads.ks.gov/

http://www.bc.edu/schools/gssw/nrcpds/

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FMS providers will need to notify the MCO that the self-directing Consumer is refusing to run a

background check, so the MCO can discuss the rights and responsibilities of self-direction or

change the individual to agency-directed services. If the Consumer attempts to hire the individual

anyway, the FMS provider may notify the Consumer that they will not be able to provide FMS

services for the person and notify the MCO.

13. Related to the Department of Labor rule, what is the impact for the FMS provider?

On December 22, 2014, Judge Richard Leon of the U.S. District Court for the District of

Columbia entered a Memorandum Opinion in Home Care Association, et al. v. David Weil, et al.,

Case No. 14-CV-967 regarding the DOL Final Rule (concerning HCBS direct service workers),

which struck down the third-party employer portion of the new regulation, but left questions

about the new definitions in the regulation.

On December 24, KDADS Secretary Kari Bruffett provided an affidavit that was submitted to the

court in support of the Plaintiffs’ motion for a temporary restraining order regarding the

“companionship services” definition, which was set to go into effect January 1, 2015.

On December 31, the court granted a temporary restraining order, postponing the effective date of

the “companionship services” definition promulgated in 78 Fed. Reg. 60,557 and to be codified at

29 C.F.R. § 552.6 until January 15, 2015. This means that the new definition for companionship

services, as outlined in the DOL Final Rule, will not go into effect until, at least, January 15.

As of today, the court is hearing on the merits of the case and the temporary injunction and

additional decisions are expected to be made before January 15, 2015.

FMS Agreement Specific Questions:

1. Page 6, 29. Provider Owned: Attendant Care Service Agency. I assume that “Attendant

Care Service” means Supportive Home Care. This section reads “(the Provider shall

not) c. Commingle funds received from this Agreement with funds received from the

Agency which provides such Attendant Care Services.” (I’m not sure what “funds

received from the Agency” means-perhaps received by the Agency? In any case, we

resolved the “commingling” of funds issue in a previous section by requiring a proper

accounting for the funds. This change was made due to the obvious cash flow issues for

an FMS in paying DSW payroll when having to wait for the MCOs to pay the FMS

provider the DSW Reimbursement Rate funds. This same issue exists for a company that

provides other HCBS services such as SHC, Residential Supports, Day Supports-

depending solely on self-directed funding payments from the MCOs in order for the FMS

department to meet DSW payroll is not practical or possible. Again, the same cash flow

issue exists.

FMS providers must be able to account separately for funds related to FMS

administration, direct service worker reimbursement and agency directed services even if

deposited in the same bank account. Funds received from an Agency shall be deposited

by the Provider in an account(s) in which such deposits may be traced to and accounted

for the provision of agency-directed services. In other words, while Agency and FMS

funds may be deposited into the same account, the Provider shall trace and account for

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such funds on a consumer basis regarding both agency-directed services and FMS

services. The revenue and disbursements related to these revenue streams should follow

generally accepted accounting principles.

2. Page6/7, 30. Guardian Prohibition. As currently written, does this mean an employee or

board member (agent) cannot be a guardian of an HCBS Consumer who is self-directing,

or does it mean any Consumer the Agency/Company serves in another capacity such as

SHC, Residential Supports, Day Supports, etc.? The steps to remedy such a situation are

not practical. If the Provider facilitates a successor guardian why would the Consumer

need to be “sent” to a different Provider of FMS? The issue would be resolved,

correct? Also, the FMS does not “send” (during the meantime) a Consumer to a

different Provider for FMS services-it is the role of the CDDO to offer choice of FMS

provider. It was my understanding, and that of other FMS providers, that KDADS

recognized that many FMS providers have parent/guardians on their Boards of

Directors and that this section would be deleted.

KDADS is referring to owner-operators and employees who are guardians and self-direct

the care of their wards and not necessarily board members. The guardian cannot self-

direct care and serve as the consumer’s FMS provider to pay those services. If an FMS

provider facilitates a successor guardian, the new guardian would have the choice of FMS

provider. Choice may be offered by the MCO or CDDO as appropriate. All guardians

must demonstrate that they have mitigated conflict of interest according to the HCBS

waiver program criteria.

3. The first year of FMS we sent checks back to the Direct Service Workers(DSW) to show

that all funds were paid directly to DSW’s and only the FMS admin rate was retained by

the company. We have not sent out checks for the past year due to the following reasons:

a. We received some remittance payments with interest from the Managed Care

Organizations (MCO) due to the legislators passing the “Prompt Pay” provision

last session. Therefore, I am assuming since we covered payroll for DSW’s

during that time and submitted clean claims, the interest on the remittance

belongs to our company, but wanted clarification and a definitive “yes” from you

that this is the case.

Interest payments from the MCO is considered administrative income and would belong

to the FMS provider.

4. The MCO’s have not subtracted client obligations from their payments to my

organization. This is not the case with all the MCO’s nor is it consistent on every case.

So, do I send back that money to the state as excess funds? Or can we have a clause

added to our FMS agreement to cover my company once you read the following

circumstances? We have tracked this in our system and several people have credits. The

problem is we have continued to talk with the MCO’s about collecting this, and a year

later they have not done so. My fear is they will wait another year or longer and all of a

sudden subtract it from a future remittance after I have sent the client obligation money

they haven’t collected back to the state.

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Medicaid dollars cannot be used to cover the consumer’s client obligations. The provider

must collect the client obligation from the consumer. Providers should continue to work

with the MCO to address incorrect client obligations. KDADS is working with KDHE to

address the issue of client obligation and incorrect payments with the MCOs as well.

5. Another issue with client obligations that has made it impossible for us to track and show

what is an overage, is that the MCO’s randomly decide to collect some of the client

obligations mentioned in the above bullet point. The MCO will take it from a future

remittance and take it from a payment for a person that does not have a client obligation.

CMS doesn’t allow Fiscal/Employer Agents to use a portion of one Participant’s payment

to cover bad debt incurred for a different Participant, so why is the MCO allowed to

withhold payment on a remittance for another participant’s client obligation? I would

appreciate any assistance the state can provide to fix this situation. My staff contact

them monthly about this.

KDADS is working with KDHE to address the issue of client obligation and incorrect

payments with the MCOs.

6. We bill the MCO’s for the services, so is the state wanting the excess funds sent back to

the respective MCO’s or to the state?

The excess funds should be returned to the State.

7. Unemployment concerns:

a. I have attached the letter I referenced when Gina and I spoke regarding the

Personal Assistance Retainer Policy. I know the state is looking to remove this

from the IDD waiver, but wanted to suggest it be added to all the waivers. My

reasoning is the unemployment costs. When a consumer goes into the hospital,

the DSW’s file for unemployment and always win. Has the state researched the

unemployment cost associated with this? If not, maybe we could research this to

see if leaving this in the IDD waiver and adding to the others would be a cost

savings to the state.

KDADS has proposed to remove the retainer policy from the IDD waiver and does not

have plans to add this to the other waivers.

b. Additional concerns were raised related to unemployment.

To address issues related to unemployment, KDADS is working to better

understand this issue and address related concerns. KDADS has adjusted the

timeline for responses related to returning excess funds to 180 days.

8. Can an FMS provider terminate a consumer who fails to pay his/her client obligation?

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The FMS can refuse to provide FMS service to consumer for failure to pay client

obligation with appropriate notice to the consumer and MCO in accordance with state

policies and procedures.

9. Under our current system, we would have to eat a second month of client obligation if we

are forced to give 30 days notice. We are generating statements on the 1st business day

of the month so by the time the client receives the notice, we could not terminate before

being charged for 2 months of client obligation loss.

a. Suggestion – could you propose language that we give a 20 day notice or a 10

day notice so that providers would not get charged with 2 months of client

obligation loss instead of 30 days?

KDADS will consider this recommendation and address the notification requirement in

the revised FMS policies and procedures.

10. Can we get direction on whether we could deny a new consumer based on having a client

obligation? Meaning we would not take them if they have a client obligation. Right now

we have 125 to 135 consumers that have client obligations that we are trying to collect

on.

The FMS can choose not to provide FMS service to a consumer for failure to pay client

obligation with appropriate notice to the consumer and MCO in accordance with state

and MCO policies and procedures.

III. CLARIFICATION REGARDING SPECIFIC CONTRACT PROVISIONS:

In addition to the Questions and Answers, the following memo addresses possible

concerns regarding various FMS contract provisions. The provisions appearing below are the

possible “new/revised” provisions with any changes appearing in red. Please contact me with

questions.

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Paragraph 1:

1. Compliance with Federal, State or Agency Authorities. Provider shall

strictly comply with any and all applicable Federal or State of Kansas statutes and/or

Administrative Regulations including HCBS waiver services.1 Provider shall further

strictly comply with State of Kansas Medicaid Waiver(s), as amended, and Financial

Management Services Policy and Procedure Manual, as amended, which relate or pertain

to the use of Medicaid/HCBS Waiver funds including the payment for services rendered

by Direct Service Workers.

1The Provider is obligated to comply with applicable Federal Law.(s). If, however, this becomes a compliance

issue, the KDADS will deal with the same on a case by case basis.

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New or revised KDADS’ policies affecting FMS and this contract shall be

promulgated pursuant to the agency’s policy approval process. New or revised policies,

including the FMS Manual, will be provided in advance and in writing to all FMS

Providers in compliance with the KDADS’ policy approval process and, in a non-

emergency/crisis situation, at least 10 business days prior to policy implementation.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Paragraphs 2 and 18:

Paragraphs 2 and 18: No changes need to be made to these two paragraphs, but

clarification will follow:

Paragraph 2:

Administrative Payment to Provider. The State, through the respective Managed

Care Organization, shall pay to Provider a per Consumer monthly administrative payment

(“Administrative Payment”) in the amount of $115.00. This payment is to cover the

Provider’s Administrative Costs with no part of such payment being used for the

Consumer’s Employee’s wages, tax payments or other required withholding amounts.

Should this payment change (increase or decrease), this change may be made by letter

from KDADS to the Provider and shall not require a formal amendment to this

Agreement.

This paragraph states that if the only item changed, most likely during a renewal, is the

amount of the per consumer administrative payment, e.g., it changed from $115.00 to

$125.00, that we could simply note such change with a letter versus a full blown contract

amendment. The intent was to simplify this for all parties in the event this would occur.

Paragraph 18: (Now Section 22)

Amendments; Modification; Waiver. The Agreement may not be modified,

superseded, extended, terminated, or amended and no provision hereto may be waived

except by a writing making specific reference hereto and signed by the Parties.

This paragraph would require a full blown amendment if there was a major or substantive

change to the agreement. As indicated in paragraph 2, simply changing the admin.

amount would not trigger this paragraph.

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Paragraph 6:

2. Consumer’s Employee: Assistance and Education. Following the hiring

of a Direct Service Worker by the Consumer, the Consumer’s Employee shall meet with

the Provider as a function of Information and Assistance to execute any and all payroll

records, to obtain information/education on use of the Authenticare System with regard

to payment for services rendered and submit information in order for the Provider to

perform a background check. Additionally, the Provider shall provide consumer with

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appropriate information and assistance as outlined in the FMS Provider Policies and

Procedures Manual that supports the consumer’s role in self-directing his/her care and

ensures the consumer is aware of all resources, rules, and responsibilities.

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Paragraph 7:

7. Agreement Non-Renewal, Termination, Default and Remedies:

a. Any Party may terminate this Agreement, other than as specified

herein below, by giving written notice of the termination or non-renewal at least ninety

(90) days prior to the date of termination stated in the written notice. In addition, the

Provider shall further provide to the Consumer and their respective MCO at least thirty

(30) calendar days advance written notice of its intent not to renew or to terminate, and

shall provide each Consumer with a list of FMS providers, including addresses and phone

numbers and shall assist the Consumer, if requested, in obtaining a new FMS provider; or

Note: Paragraph 31 will be deleted in its entirety.

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Section 10:

10. Annual Audit. Within six (6) months following end of the initial

Agreement2 term, and every third year thereafter, the Provider will have a Generally

Accepted Accounting Principles (“GAAP”) CPA-certified audit3. By way of example

and not of limitation, if a Provider’s initial Agreement would end on December 31, 2015,

the Provider would need to have a GAAP audit not later than June 30, 2016, for the

period January 1, 2015, through December 31, 2015. Similarly, if a Provider’s third

agreement term would end on December 31, 2018, the Provider would need to have a

GAAP audit not later than June 30, 2019 for the period January 1, 2018 through

December 31, 2018.

In addition, during the “off years” in which a GAAP/cash basis audit is not

required, the Provider shall have a Compliance Audit4 not later than June 30

th for the

prior contract year. Both the GAAP and Compliance Audit shall be at the Provider’s

expense.

2 For purposes of this Agreement, the term “Initial Agreement” shall mean the within Agreement commencing on

January 1, 2015, and ending on December 31, 2015, if not earlier terminated. 3 Provided, however, if the Provider is on a “cash” method of accounting, the Provider shall utilize those generally

accepted accounting /audit principles relevant to the cash accounting method. 4 For purposes of this Agreement, the term “Compliance Audit” shall mean an audit which complies with the terms

and provisions contained in the KDADS’ FMS Policy and Procedure Manual which includes accounting of funds

received and expended on a per Consumer basis identified per respective waiver.

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If, however, the Provider is not on a calendar accounting year, the audit dates

above shall be six (6) months following the end of the Provider’s respective fiscal year.

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Section 13:

13. Excess Funds. In the unlikely event Provider has Excess Funds remaining at

the end of the Agreement term, Provider shall account for the same in writing and remit

such Excess Funds to KDADS on either a semi-annual or annual basis (Provider may

chose the period, i.e., semi-annual or annual). Such remittance shall be due one hundred

eighty (180) calendar days following expiration of the remittance term, i.e., semi-

annually or on an annual basis. Failure of the Provider to strictly comply with such

requirements shall constitute a breach of this Agreement, and may warrant referral to the

U.S. Attorneys’ Office, Centers for Medicare and Medicaid Services and the State of

Kansas Attorney General’s office for alleged Medicaid fraud and/or criminal prosecution.

For purposes of this Agreement, the term “Excess Funds” means Direct Service Worker

Reimbursement Rate funds that are to compensate and pay required tax and other

withholdings (state and/or federal) for a Direct Service Worker/employee, that are

retained and not spent by the Consumer during the term of the Agreement.

Provided, however, a Provider who is a nonprofit organization entity who makes

the election contained in K.S.A. 44-710(e)(1) regarding payment of unemployment

claims, may retain such Excess Funds until it has determined that no unemployment

claim(s) have been made, but not in any event to exceed one hundred eighty days (180)

following the end of its fiscal year. If, during such period, it is paying on one or more

unemployment claims, the Provider shall report the same in writing with its remittance of

excess for consumers for which no unemployment claim has been made.

It is the Parties’ intent that Direct Service Worker Reimbursement Rate funds are

earmarked solely for the specific Consumer’s Direct Service Worker’s benefit and, shall

not, in any circumstance, be used by the Provider for administration, working capital,

other consumer’s workers, recruiting or other day-to-day business use. By way of

example, and not of limitation, if Consumer “A” had $1.50 remaining following payment

to his/her Direct Service Worker and the taxing authorities, the Provider could not use

such overage to pay Consumer B’s Direct Service Worker a higher wage rate.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Paragraph 29(c): (Now Section 15)

29. Provider Owned: Agency-Directed Service Agency. In the event that the

Provider owns, manages, controls or participates with a third party entity who provides

Agency HCBS attendant care services (the “Agency”), the Provider shall not:

a. Influence, directly or indirectly, a Consumer to select the Agency for the

provision of agency attendant care services; or

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b. Engage in any other conduct whatsoever with such Agency which might

create an actual or perceived conflict of interest; or

Funds received from agency-directed services shall be deposited by the Provider

in an account(s) in which such deposits may be traced to and accounted for the provision

of agency-directed services. In other words, while Agency and FMS funds may be

deposited into the same account, the Provider shall trace and account for such funds on a

consumer basis regarding both Attendant Care services and FMS services.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Paragraph 30: (Now Section 16)

30. Guardian Prohibition. The Parties further agree that the Provider, its employees

and/or agents, cannot be the Guardian of an HCBS Consumer that the Provider serves. In the

event this is currently the case, the Provider shall take immediate steps to facilitate the

appointment of a successor Guardian and, during the meantime, the Consumer shall be sent to a

different Provider for Financial Management Services. For example, owners-operators and

employees of the Provider may not serve as guardian or legal representative or direct the care of

a consumer served by the Provider. KDADS acknowledges the Provider may have guardians or

legal representatives of consumers serving as members of the board who are not affected by this

prohibition, but who may otherwise be required to disclose the potential conflict of interest to the

court and comply with applicable waiver requirements and mitigation procedures related to the

HCBS programs.

IV. ADDITIONAL SECTIONS:

8. Confidentiality. In accordance with U. S. Department of Health & Human

Services, Centers for Medicare and Medicaid Services Medicaid regulations, 42 C.F.R. 431.300

et seq., Provider shall maintain the confidentiality of information about individuals learned in

performing the duties required by this Agreement, including the individual’s name; address;

telephone number; past or present receipt of any state or federal program services; family, social,

or economic circumstances; medical data, including diagnoses and past history of disease,

impairment, or disability; income and other financial information; State agency evaluation of

personal or medical information; program eligibility; or third-party liability for payment for

program services to any person or entity. Provider shall not prepare and publish, or permit the

preparation and publication of, any electronic or written report disclosing confidential

information about any individual in a manner which permits the identification of that

individual. Contractor shall not disclose or permit the disclosure of any confidential information

about any individual without the prior informed consent of the individual or of the individual’s

representative, unless the disclosure is required by court order, to enable the delivery of services

for which the individual or the individual’s representative has requested or applied, for Medicaid

program administration, or by this Agreement. Provider shall further develop and maintain

policies and procedures, which protect the confidentiality of and guard against the unauthorized

disclosure of confidential information about individuals obtained through the performance of this

Agreement. Provider's policies and procedures shall be binding on their employees, agents, and

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independent Contractors and describe the penalties and sanctions imposed for violations of those

policies and procedures.

9. Health Insurance Portability and Accountability Act-Business Associates

Agreement. KDADS and various state entities are parties to a Business Associates Agreement

(“BA AGT”). On January 25, 2013, HHS promulgated new and final rules implementing the HI

TECH Act effective on or about September 23, 2013. A copy of KDADS’ revised BA AGT

addressing the new rules may be found at KDADS Business Associates Agreement Form. As a

condition precedent under this Agreement, and regardless of whether the Provider was a party to

an existing BA AGT, Provider shall complete the form, print, sign and mail the BA AGT to

KDADS “Legal Division.” Thereafter, a fully executed document will then be forwarded

electronically to the Provider. In the event that Provider receives protected health information, it

shall comply with the terms of the BA AGT, as it presently exists or as modified/amended, as if

the same were set forth in full herein. Provider may retain PHI with regard to any project that is

ongoing in nature; provided, however, that such permission is subject to strict adherence with the

terms of the within Agreement, HIPAA and the BA AGT. Any report required herein shall not

contain PHI or Confidential Information. If such information is found in such report(s), the same

shall be removed immediately. Notwithstanding such BA AGT, the Provider shall at all times

comply with HIPAA and the HI TECH ACT, as amended.

V. CONCLUSION:

Posted with this Clarification document is the modified FMS Contract. If you intend to be

an FMS provider, please print, sign and return the same the KDADS not later than close of

business on January 23, 2016. If you are a provider who has already signed and submitted your

contract, we would ask that you print, sign and re-submit the same.

Thank you for your anticipated assistance and cooperation in this matter.

END OF DOCUMENT

FMS FINAL CLARIFICATION MEMO: QUESTIONS & … · Gina Meier-Hummel, ... FMS FINAL CLARIFICATION...

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