1478 - Foley & Lardner LLP(�q�
SANFORD FIRE DEPARTMENT
MEMORANDUM
TO: Norton N. Bonaparte, Jr., City anager
FROM Jerry Ransom, Fire Chief
DATE: January 5, 2012
RE: Signature request
Please execute the attached documents where indicated and forward to the City Clerk's
along with the attached transmittal memorandum.
I have attached the consent agenda item which was approved at the December 12, 2011
Commission meeting.
Thank you.
pin%1
(INSERT YOUR DEPT. NAME HERE)
T RANSMITTAL MEMORANDUM
To: City Clerk
RE: Request for Services
The item(s) noted below is /are attached and forwarded to your office for the following action(s):
Development Order
Final Plat (original mylars)
Letter of Credit
Maintenance Bond
Ordinance
Performance Bond
Resolution
Mayor's signature
/ ("0
Rendering
Safe keeping (Vault) 1 1VA 7
Once completed, please:
Return original
/J9 G )w
Special Instructions:
Please adv' if you have any questions regarding the above.
Thank yo !
From
1�
Date
T: \Dept_forms \City Clerk Transmittal Memo - 2009.doe
M e . WS RM X
� Item No.
CITY COMMISSION MEMORANDUM 1 1-
DECEMBER 12, 201 1 AGENDA
TO: Honorable Mayor and Members of the City Commission
PREPARED BY Gerard Ransom, Fire Chief
SUBMITTED BY Norton N. Bonaparte Jr., City Manager
S UBJECT: Engagement Letter Agreement with Foley & Lardner LLP.
SYNOPSIS:
Request approval of engagement letter with Foley & Lardner LLP (law firm for ADPI - Intermedix).
FISCAL/STAFFING STATEMENT:
There is no cost to this agreement. Costs will be paid by ADPI - Intermedix (a City contractor). However,
should the appeal discussed below not be successful, the City could be required to repay approximately
$4,071 to the Florida Medicaid system
BACKGROUND:
The City utilizes ADPI - Intermedix as its billing company for Fire Department medical transport billing
collections. The Florida Medicaid system has asserted that the City was overpaid for certain patient
transports and is demanding repayment of approximately $4,071. ADPI - Intermedix has retained the
services of Foley & Lardner LLP to appeal the State's determination. This is a joint effort by ADPI-
Intermedix, on behalf of its clients to whom it similar services are provided ADPI - Intermedix legal counsel
argue that the Medicaid system did not follow State law when requiring repayment.
LEGAL REVIEW:
This document has been reviewed by the City Attorney. It is noted that the documents may need to be
modified to some degree after approval by the City Commission, as determined by the City Attorney, but
any changes will be made in a manner that will not deviate in a substantial manner from the approval of the
City Commission relative to the scope of approval authority vested in the City Commission.
RECOMMENDATION:
Staff recommends that the City Commission approve the engagement letter agreement with Foley &
Lardner LLP, law firm for ADPI - Intermedix, on the consent agenda.
SUGGESTED MOTION:
"Move to approve the consent agenda"
Attachment:
Engagement letter agreement
CONFIDENTIALITY AND COMMON INTEREST AGREEMENT
This Confidentiality and Common Interest Agreement ( " Agreement ") is entered into by and
among Advanced Data Processing, Inc. dba Intermedix, a Florida corporation located at 6451 N.
Federal Highway, Suite 1000, Ft. Lauderdale, FL 33308 ( " Intermedix "), and the Florida local
public agencies who are signatories below, as well as the parties' undersigned legal counsel.
Intermedix and the Florida local public agencies who are signatories below are referred to
collectively herein as the "Parties" or individually as a "Party," through and including their
respective undersigned legal counsel.
WHEREAS, the Parties, excluding Intermedix, are in the business of providing
emergency medical transportation services to patients, including Medicaid recipients; and
WHEREAS, Intermedix provides Medicaid billing services to emergency transportation
companies, including the Parties to this Agreement; and
WHEREAS, the Florida Agency for Health Care Administration ( "AHCA ") has issued
notices of intent to recoup certain alleged Medicaid overpayments from the Parties; and
WHEREAS, this Agreement memorializes the Parties' already existing understanding
with respect to their common interests in opposing AHCA's recoupment attempt by filing a
consolidated petition and seeking a formal administrative hearing (the " Proceedings "); and
WHEREAS, the Proceedings present certain legal and factual issues of common interest
to the Parties, thus warranting joint efforts in exchanging information and confidences, including
information and confidences which are subject to the attorney- client privilege, the work product
doctrine, the self - critical examination privilege, the trade secret doctrine, the common interest
doctrine, or any other privilege, doctrine or protection, including but not limited to Florida
Statutes section 90.502 (collectively the " Privilege '); and
WHEREAS, the Parties have undertaken, and will continue to undertake, factual and
legal research and analysis and believe it to be in their best common interest and the best interest
of each of them to exchange information, pool their individual work product and cooperate in a
joint investigation and assessment; and
WHEREAS, the Parties have all engaged Foley & Lardner LLP as legal counsel to
collectively represent them in the Proceedings; and
WHEREAS, the Parties agree that the sharing of communications and the exchange of
information between them is necessary to accomplish each Party's purpose and is essential to the
effective representation of the Parties concerning the Proceedings and any defense related
thereto, and their communications and exchanges of information are consistent with the purposes
of securing legal advice and for protecting the Privilege and their legal counsel's work product;
and
WHEREAS, the purpose of this Agreement is to maintain the protections afforded by the
Privilege to certain privileged communications, documents and other materials ( " Confidential
Information "), which the Parties agree are reasonably necessary for the accomplishment of the
4840 - 8231 - 1181.1
Parties' acts relating to the Proceedings, such that any disclosure among the Parties and their
counsel of Confidential Information does not waive or otherwise alter any such Privilege.
NOW, THEREFORE, the Parties hereby agree as follows:
Oral Communications The undersigned counsel and Parties agree there is a mutuality
of interest in the Proceedings. Except as provided under Paragraph 3 below, any past
and future oral and written communications among the undersigned counsel for the
Parties, and among any of the undersigned counsel, experts hired by the Parties or
associated with counsel for the Parties, and any of the Parties themselves, and joint
interviews of prospective witnesses in connection with the Proceedings undertaken
under this Agreement, shall be treated and maintained by each of them as Confidential
Information privileged and protected from disclosure to any Third Party (defined
below) by the attorney - client, work product, and /or other Privilege. The Parties have
treated, and shall continue to treat and maintain, such communications as Confidential
Information privileged and protected from disclosure.
2. Documentary Materials and Information Except as provided in Paragraph 3 below, all
information, documents, materials, technical reports and analyses, client and witness
statements, interviews, memoranda of law, debriefing memoranda, factual
summaries, transcript digests, documents, and such other material and information,
recorded in whatever media, including electronically stored or electronically readable text
or other data, that is otherwise protected from disclosure to a Third Party (defined below)
may be exchanged by the undersigned Parties in connection with the Proceedings and
shall be treated and maintained by each of them as Confidential Information privileged
and protected from disclosure to any Third Party (defined below). The Parties have
treated, and shall continue to treat and maintain, such information and documents as
Confidential Information privileged and protected from disclosure.
Non - Disclosure Any Confidential Information obtained or exchanged pursuant to this
Agreement shall not be disclosed to any Third Party (defined below), except as
provided for in this Agreement, without the prior consent of the Party that made the
information available in the first instance. Confidential Information that is the product
of joint efforts of the Parties may not be disclosed without the written consent of all
Parties or their legal counsel who jointly produced the Confidential Information.
Moreover, except as may be required by law or valid process or as otherwise provided
herein, no Party to this Agreement may disclose the existence of this Agreement or its
contents to any Third Party (defined below) without the prior written consent of the other
Parties to this Agreement.
For purposes of this Agreement,
Parties mean all persons and
government agencies, who are
with the sole exception of-
2
the terms " Third Party and " Third
entities, including without limitation,
not signatories to this Agreement,
4840 - 8231 - 1181.1
I) the Parties themselves, including their respective inside and
outside counsel and office staff acting under such counsel's
direction; or
2) outside consultants retained by and acting under the direction and
control of a Party (or its counsel) in connection with the
Proceedings, provided that:
a) no such consultant shall at any time be designated as a
potential testifying expert witness by any Party who did
not retain that consultant; and
b) the identity and work product of each such consultant
heretofore undisclosed to Third Parties be at all times
regarded and maintained as the attorney work product of
the Party retaining such consultant; and
C) any such consultant execute a written agreement
providing that any Confidential Information and
material provided to him in the course of his work, and all
work product generated or prepared by him, shall be
maintained in confidence, subject to the terms of this
Agreement, and shall not be disclosed to others.
b. It is expressly understood that nothing contained herein shall preclude any
receiving Party or its counsel from using documents or information that:
1) the receiving Party can demonstrate, by clear and convincing
evidence, was already in that receiving Party's possession or the
possession of its counsel, provided such information is not known
by the receiving Party, after reasonable inquiry, to be subject to
another confidentiality agreement with, or obligation of secrecy to,
the disclosing Party; or
2) is or becomes generally available to the public (other than as a
result of a disclosure by the receiving Party or its counsel or other
representatives); or
3) becomes available to a Party or its counsel on a nonconfidential
basis from a source other than the disclosing Party or one of its
representatives, provided that such source is not known by the
receiving Party, after reasonable inquiry, to be bound by a
confidentiality agreement with or obligation of secrecy to the
disclosing party; or
4) the receiving Party can demonstrate, by clear and convincing
evidence, has been independently developed by the receiving
Party or its counsel without use of, or reference to, information
3
4840 - 8231 - 1181.1
provided by the other Party pursuant to this Agreement (other
than information described in clauses (1) — (3) of this paragraph).
4. Legal Compulsion /Requests for Production If a Third Party seeks Confidential
Information subject to this Agreement, whether by discovery request, subpoena or
otherwise, such Confidential Information shall not be disclosed except as ordered by a
court of competent jurisdiction or as the disclosing Party and Foley & Lardner LLP
otherwise agrees.
a. Whenever a Party receives a request (e.g., by deposition, interrogatory,
request for documents, civil investigative demand, civil, criminal or
administrative subpoena, or similar process) to disclose this Agreement
or any of the Confidential Information provided pursuant to this
Agreement, the Party who receives the request shall give prompt written
notice to all Parties, directly or through legal counsel, as soon as
practicable to permit each Party an opportunity to object to the
production, seek a protective order or other appropriate remedy, and /or
waive compliance with the terms of this Agreement. The Party
proposing to make such disclosure shall cooperate in seeking such a
protective order or other confidential treatment of such information.
b. To the extent such request is in writing, the receiving Party or its counsel
shall provide promptly each of the undersigned counsel with a copy of the
written request. With respect to any such request that includes
Confidential Information that originated from another Party, the Party and
its counsel receiving such a request shall also: a) assert any applicable
Privilege that may reasonably be asserted, b) object to the request in any
reasonable manner, c) not waive any Privilege without the advance written
consent of all Parties that have standing to raise any applicable Privilege,
d) provide all reasonable cooperation to counsel for the Party from whom
such information originated in any proceeding relating to the disclosure of
Confidential Information, and, e) undertake all reasonable efforts to
prevent or limit disclosure of the requested information.
Expert Access to Information Any expert retained by a Party or counsel or
otherwise consulted by a Party or its counsel in connection with the Proceedings who
shall be given access to Confidential Information subject to this Agreement shall be
advised that the Confidential Information is being disclosed pursuant to and subject to
the terms of this Agreement and may not be disclosed other than pursuant to the
terms hereof. Each such expert shall acknowledge, in writing, through an Accession
Agreement in a form acceptable to the Parties, his/her acceptance and understanding
that the Confidential Information is subject to the terms of this Agreement.
6. Restriction on Use of Information Subject to Paragraphs 3 and 4 the
Confidential Information exchanged pursuant to this Agreement may be used by any
other Party, consistent with the maintenance of the privileged and confidential status of
those materials, only for purposes of pursuing the Proceedings, including but not
4
4840 - 8231- 1181.1
limited to taking appropriate corrective actions regarding the Party's personnel or
policies, and shall not be used for any other purpose without the prior written consent
of the Party providing the information. The existence of this Agreement and of the
Parties' joint efforts in connection with the Proceedings, along with any Confidential
Information shared pursuant to this Agreement, shall not be used in any fashion against
the signatories to this Agreement other than in connection with enforcing rights
expressly provided in this Agreement. By way of example and not limitation, neither
the existence of this Agreement nor the Parties' joint efforts in connection with the
Proceedings shall: (i) be used offensively or defensively in any litigation between
signatories to this Agreement (other than in connection with enforcing rights expressly
provided by this Agreement) involving any issue relating to or deriving from the
Proceedings; nor, (ii) be a basis on which to seek to disqualify counsel for any of the
Parties hereto in any proceeding.
7. No Obligation to Exchange Confidential Information Nothing contained herein
obligates any party to divulge, communicate, or exchange any Confidential Information.
Nothing contained in this Agreement shall obligate any Party or their legal counsel to
disclose any Confidential Information to the other Party or to any other person or entity.
No duty to disclose information is created by this Agreement, provided however that no
Party shall partially disclose information to another Party in such a way that such partial
disclosure is materially misleading by virtue of the fact that such disclosure is
incomplete.
8. Inadvertent Production The inadvertent production of any Confidential Information
covered by this Agreement shall be without prejudice to any claim that such material is
protected under the applicable Privilege, and no Party shall be held to have waived any
rights by such inadvertent production. In the event that any Confidential Information
covered by this Agreement is inadvertently produced, the Party that inadvertently
received the Confidential Information shall return the Confidential Information together
with all copies of the Confidential Information to the producing party promptly after it
receives a written notice from the producing party that the Confidential Information was
produced inadvertently.
9. Unpermitted Disclosures If any Confidential Information is divulged, disclosed, or
provided to any person or entity other than a Party or their legal counsel, except as
otherwise provided in this Agreement, the disclosure shall be a violation of this
Agreement but shall not serve as or constitute a waiver of any applicable Privilege or
protection. Nor will such a disclosure constitute a waiver of Privilege or protections on
any other communications, documents or information.
10. Withdrawal Any Party may withdraw from this Agreement upon five (5) days' prior
written notice to all other signatories, in which case this Agreement shall no longer be
operative as to the withdrawing Party but shall continue to protect all Confidential
Information disclosed to and received from the withdrawing Party (and its counsel,
including, to the extent applicable, any experts) prior to its withdrawal. A withdrawing
Party (and its counsel, including, to the extent applicable, any experts) shall
immediately return (or, upon the permission of the other Party, destroy) all
5
4840 - 8231- 1181.1
Confidential Information received pursuant to this Agreement and all copies thereof.
Notwithstanding the foregoing, the withdrawing Party (and its counsel, including, to the
extent applicable, any experts) shall continue to be bound by this Agreement with
regard to any Confidential Information learned or obtained prior to withdrawal.
11. Conclusion of the Proceedinas At the conclusion of the Proceedings, all Confidential
Information subject to this Agreement (including all copies thereto in the possession
of the receiving Party, its counsel or any experts) shall, upon request of the disclosing
Party, be either destroyed or returned within thirty (30) days and the non - disclosing Party
will not retain any copies, extracts or other reproductions in whole or in part of such
tangible material provided by the other Party. Any such destruction shall be certified in
writing to the disclosing Party by an authorized person supervising the same.
12. Injunctive Relief The Parties acknowledge that disclosure of any Confidential
Information in violation of this Agreement will cause the Parties hereto to suffer
irreparable harm for which there is no adequate legal remedy. Each Party acknowledges
that immediate injunctive relief is an appropriate and necessary remedy for any
violation or threatened violation of this Agreement and agrees to waive any requirements
for the securing or posting of any bond in connection with such remedy. Each Party also
agrees that any action for equitable or injunctive relief will be conducted under seal to
the maximum extent permitted or available.
13. Caveats Nothing in this Agreement shall be construed to create an attorney- client
relationship between any attorney and anyone other than the client of that attorney. The
fact that any attorney has entered this Agreement shall not in any way preclude that
attorney from representing any interest that may be construed to be adverse to any other
Party to this Agreement or be used as a basis of a claim of conflict of interest or for
seeking to disqualify any counsel from representing any party in this or any other
proceeding. No attorney who has entered into this Agreement shall be disqualified
from examining or cross - examining any Party's employee, former employee, expert,
consultant, representative or agent who testifies at any proceeding, whether under a grant
of immunity or otherwise, because of such attorney's participation in this Agreement. In
the event of any conflict between this Agreement and any legal services engagement
agreement between a Party and Foley & Lardner LLP, the terms of the legal services
engagement agreement shall control.
14. Effective Date and Prior Communications and Exchanges This Agreement memorializes
the Parties' currently existing understanding and agreements regarding matters that may
arise in connection with the Proceedings between or among any of the undersigned
counsel and /or their clients. Subject to Paragraph 3 , all previous privileged
communications, and all privileged and confidential material previously exchanged,
between and among the Parties relating to the Proceedings are subject to this Agreement.
This Agreement shall be effective as of November 1, 2011.
15. Notices Any and all notices required under this Agreement shall be provided by Federal
Express to the addresses and contact information listed for each party in the signature
4840 - 8231- 1181.1
blocks at the end of this Agreement, provided that all notices also send a copy to the
following:
Nathaniel Lacktman
Foley & Lardner LLP
100 N. Tampa Street, Suite 2700
Tampa, FL 33602
813.225.4127 (tel)
nlacktman(a)foley.com
Intermedix
6451 N. Federal Highway, Suite 1000
Ft. Lauderdale, FL 33308
16. From the date this Agreement is fully executed and thereafter, each Party agrees to use its
reasonable best efforts to label all Confidential Information that it discloses pursuant to
this Agreement, whether in print or electronic format, "Privileged and Confidential."
17. This Agreement constitutes the entire agreement among the Parties with respect to the
subject of the Agreement and, with the exception of any legal services engagement
agreements between a Party and Foley & Lardner LLP, supersedes all prior
representations and understandings with respect to this Agreement.
18. No amendment, modification, waiver or termination of this Agreement shall be binding
unless executed in writing by all the signatories to this Agreement.
19. The recitals set forth above shall be incorporated into this Agreement as though set forth
fully herein.
20. If any provision of this Agreement is determined to be invalid or unenforceable, the
remaining provisions shall continue to be fully operative and enforceable.
21. This Agreement is governed by the laws of the state of Florida and any issue relating to
this Agreement shall be brought in a court in Florida with proper jurisdiction. Venue
shall be proper in Hillsborough County, Florida.
22. This Agreement may be signed in counterparts, each of which shall be deemed an
original and all of which shall constitute one instrument. Executed versions of this
Agreement may be delivered to the other Parties by facsimile or electronic mail, which
versions shall have the same force and effect as an original.
23. Notwithstanding anything herein to the contrary, this Agreement shall not prohibit a
Party from complying with any applicable legal obligation imposed under Chapter 119,
Florida Statutes (Florida's Public Records Law), or any other applicable law, regulation
or order.
7
4840 -8231- 1181.1
WIIEREFORE, having fully read and understood the terms of this Agreement, the undersigned
Parties and legal co sign their names below with the intention that they shall be bound by it.
Lacktman
R. ichael Scarano
f Foley & Lardner LLP
unsel for the Parties
Date
Notices to be sent to:
Nathaniel Lacktman
Foley & Lardner LLP
100 N. Tampa Street, Suite 2700
Tampa, FL 33602
813.225.4127 (tel)
nlacktlnan mfole .coin
Sign
Print name
for Intermedix
i I `',C' C..C. i
Date
Notices to be sent to:
Interrnedix
6451 N. Federal Highway, Suite 1004
Ft. Lauderdale, FL 33308 .
4840 - 8231 - 1181.1
WHEREFORE, having fully read and understood the terms of this Agreement, the undersigned
Parties and legal counsel sign their names below with the intention that they shall be bound by it.
January 10, 2012
Signed Date
Norton N. Bonaparte, Jr.
Print name
for City of Sanford
Notices to be sent to:
City of Sanford
P.O. Box 1788
Sanford, FL 32772
13
4840 -8231- 1181.1
intermedix
TO: City of Sanford
FROM: Intermedix Corporation
RE: Florida Medicaid Recoupments
As you are aware, the Florida Medicaid program has initiated recoupments of
funds which the State asserts were improperly paid for certain dually eligible Medicaid
beneficiaries. Although the recoupment notices issued by the State did not offer providers any
appeal rights, we believe that the State's action is appealable, and that there are good arguments
in support of an appeal. To summarize, the basis for our appeal is as follows:
Under Florida law, the State "is prohibited from demanding repayment from [a] provider
in any instance in which the Medicaid overpayment is attributable to error of the
department in the determination of eligibility of a recipient." Fla. Stat. § 409.907(5)(b).
Here, we believe the alleged overpayments at issue are attributable to erroneous
determinations by the State regarding the eligibility of certain Medicaid beneficiaries for
Medicaid benefits.
When the State Medicaid program seeks to make recoupments, Florida law requires that
the state prepare and issue an audit report showing the calculation of the alleged
overpayments. See Fla. Stat. § 409.913(21). The State failed to do so in connection with
the recoupments at issue.
The State may not reject our petition on the grounds that it was not filed within 21 days
because the State failed to provide notice of the providers' appeal rights in the
recoupment notice, as required by law.
Based on these arguments, as a service to our clients, we intend to file a petition
on their behalf seeking to overturn the recoupments. The purpose of this memorandum is to
determine whether you would like to be included in that appeal. We have retained the law firm of
Foley & Lardner LLP ( "Foley "), at our expense, to represent our clients who wish to participate
in the appeal.
If you are interested in participating, it will be necessary for you review, sign and
return to us the enclosed engagement letter prepared by Foley. That letter will authorize Foley to
represent your agency as part of our group. Because time is of the essence in filing the petition,
we request that you sign and return the letter no later than Wednesday, November 23, if you
would like to be included in the appeal.
If you would prefer not to be included in our petition, but your agency would like
to bring its own appeal, please let us know and we are happy to share a copy of our draft petition
with you.
4821 - 8139- 0606.1
www.intermedix.com
If you have any
questions about Foley's letter,
Lacktman at 813- 229 -2300.
questions, please do not hesitate to contact me. If you have any
please feel free to contact Mike Scarano at 858- 847 -6712 or Nate
4821 - 8139- 0606.1
FOLEY
FOLEY & LARDNER LLP
November 15, 2011
City of Sanford
P.O. Box 1788
Sanford, FL 32772
Re:
Engagement Letter Agreement
ATTORNEYS AT LAW
3579 VALLEY CENTRE DRIVE, SUITE 300
SAN DIEGO, CA 92130 -3302
858.847.6700 TEL
858.792.6773 FAX
foley.com
CLIENT /MATTER NUMBER
092865
Thank you for selecting Foley & Lardner LLP (the "Firm ") to represent City of Sanford ( "the
Agency "). Although we regret the length and formality of this Engagement Letter Agreement
( "Agreement "), it is important that we have a clear understanding of our working relationship going
forward. Please do not hesitate to contact us if you have any concerns.
1. Scope of Engazement
This Agreement confirms the terms of this matter. As we discussed, the scope of our
engagement will be to represent the Agency in a petition to overturn a recoupment by the Florida
Medicaid program (the "Matter "). We have also offered to represent 17 other public agencies
(collectively, the "Agencies ") and intend to file a consolidated petition on behalf of all the Agencies.
a. One way to proceed with the Matter is for each of the Agencies to have
separate counsel. There are issues where the Agencies may have potential conflicts such
as, for example, if the parties disagree regarding strategy. Nevertheless, the Agencies may
want us to represent all of them in order to, among other things, reduce legal costs. We do
not believe that there are currently any conflicts in the Agencies' position and, as a result,
we do not believe our representation of one agency will be affected by our representation
of the others.
b. If the Agencies disagree on any issue, we will not be able to represent any
one of you with respect to that issue if you are not able to resolve it. If the differences are
serious enough, we may be required by the applicable ethical rules to withdraw from the
Matter completely, in which case each of the Agencies will each have to seek other
counsel.
C. In order to facilitate our joint representation, you agree that the Firm may
disclose and discuss confidential or otherwise privileged information obtained in the
course of its representation with each of the Agencies being represented by the Firm in the
Matter. However all confidential information from each of the parties being represented
by the Firm in the Matter shall be treated as confidential with respect to any third party,
and all communications between the Firm and each of the parties it represents in the
Matter shall be deemed protected from disclosure to third parties by various privileges and
immunities as applicable, including, without limitation, the attorney - client privilege and
BOSTON
JACKSONVILLE
MILWAUKEE
SAN DIEGO
SILICON VALLEY
BRUSSELS
LOS ANGELES
NEW YORK
SAN DIEGO /DEL MAR
TALLAHASSEE
CHICAGO
MADISON
ORLANDO
SAN FRANCISCO
TAMPA
DETROIT
MIAMI
SACRAMENTO
SHANGHAI
TOKYO
WASHINGTON, D.C.
4813- 7470 - 6446.1
:FOLEY
FOLEY & LARDNER LLP
November 15, 2011
Page 2
the doctrines of attorney work product, joint defense, and community of interest, or any
other protections which would normally exist with respect to any third party.
d. Given the scope of our engagement, we expect that you may provide us
with "Protected Health Information" under the Health Insurance Portability and
Accountability Act ( "HIPAA "). To comply with HIPAA, we have attached a Business
Associate Agreement ( "BAA ") to this engagement letter. We ask that you please return
an executed BAA with your signed engagement agreement, or contact us with any
questions or concerns.
2. Staffin
Nate Lacktman and I will have primary responsibility for the Matter, but will utilize other
Firm attorneys and paraprofessionals when that is appropriate and cost effective. We will keep the
Agency informed of our progress, and will utilize our best efforts to respond to the Agency as
promptly as possible. In return, the agency agrees to keep us informed of any developments that
affect the Matter as soon as the agency becomes aware of them, and to be available when we need to
consult with the agency.
3. Conflicts of Interest
We have checked our records based on the information the agency has provided to us at this
time. Our search also included the names of business entities, if any, about which you have
informed us of an affiliation that could give rise to significant concerns if we should be involved in
matters for other clients directly adverse to such business entities. We have determined that there is
no conflict of interest that prevents us from working on the Matter.
This Agreement creates an attorney /client relationship only between the Firm and the agency.
Therefore, the agency agrees that this engagement does not create an attorney /client relationship
between the Firm and any business entities with which you are affiliated unless subject to a separate
engagement Agreement. The agency will not provide the Firm with any confidential information
about any of its other subsidiaries or affiliates, and the Firm will not provide services to the
Agency's subsidiaries or affiliates unless the Firm represents such subsidiary or affiliate. The
Agency agrees that our representation of the agency will not create any conflicts of interest in the
event that other clients of the Finn are adverse to a subsidiary or affiliate of the Agency (unless that
subsidiary or affiliate also is represented by the Firm).
4. Advance Waiver of Conflict
a. The Agency agrees that the Firm may represent current or new clients in
work directly adverse to the Agency, provided such work is not substantially related to the
Matter and the Firm does not use any of the Agency's confidential information in
representing such clients. This consent includes our being trial counsel in litigation
adverse to the Agency. In addition, the Agency agrees that, even though the Firm
4813- 7470 - 6446.1
0
FOLEY
FOLEY & LARDNER LLP
November 15, 2011
Page 3
represents the Agency in this Matter, the Firm may represent in the future other parties
who are adversely involved in the Matter, or who may later become involved in the
Matter, as long as that representation of other parties is substantially unrelated to the
Matter. By way of examples only, and assuming such representations are not substantially
related to the Matter, we may represent one or more parties in bankruptcy cases that may
have interests adverse to the Agency, we may represent clients with regard to intellectual
property rights that may be adverse to those of the Agency, or we may represent clients in
contract or other business disputes adverse to the Agency. The Finn agrees that it will not
use any of the Agency's confidential information in representing such other clients and,
when needed, we will establish an ethical wall to assure that confidential information is
not exchanged between those working on the Matter and those working for such other
clients.
b. Our Firm policy requires that any advance waiver of future conflicts be in
writing, and by signing and returning a copy of this Agreement, the Agency agrees to this
advance waiver.
5. Fees and Billing
The Agency has asked the Firm to accept payment from Intermedix Corporation, for whom
we serve as counsel in other matters, for the services incurred on the Agency's behalf regarding the
Matter. Intermedix Corporation has agreed pay such fees under the same terms as set forth in its
engagement arrangement with the Firm. The Firm is willing to accept such payment, on condition
that the Agency expressly waives any conflict or claim against the Firm related to the payment of the
Agency's legal fees and costs by Intermedix Corporation.
6. Limitations of Liability
Foley & Lardner LLP is a limited liability partnership under the laws of Wisconsin. This
means the Agency's right to recover damages in a legal malpractice action that may exceed our
insurance and Firm assets is limited to the personal assets of the attorneys whose acts or omissions
gave rise to the Agency's claim.
7. Termination of Representation
a. Either of us may terminate this Agreement at any time for any reason by
written notice. The Firm is subject to applicable rules of professional conduct when
terminating a client engagement. If we terminate the engagement, the Finn will take all
reasonable and practical steps to protect the Agency's interests in the Matter and, at its
request, suggest possible new counsel. We will provide new counsel with any papers the
Agency has given us. If permission from the court is necessary for withdrawal, we will
promptly apply for it, and the Agency will engage new counsel to represent the Agency.
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b. Unless previously terminated, our representation of the Agency in the
Matter will end when we send our final invoice. After the Matter ends, there might be
changes in laws or regulations that might affect the Agency's future rights and liabilities,
but the Finn does not have an obligation to continue to advise the Agency about future
legal developments, unless the Agency engages us to do so.
8. Disaosition of Files and Records
a. Following the conclusion of the Matter, we will maintain the
confidentiality of any of the Agency's confidential information provided us in accordance
with applicable rules of professional conduct. Any documents provided by the Agency, or
provided by a third party, will be returned to the Agency unless the Agency authorizes
destruction of them.
b. We will retain our own files pertaining to the Matter, including material
prepared by or for the internal use of our attorneys. These include the Firm's
administrative records, time and expense reports, personnel and staffing materials, credit
and accounting records, internal attorneys' work product (such as drafts, notes, internal
memoranda and legal and factual research), written and electronic communications,
pleadings, and investigative reports. The Firm has internal policies that determine the
retention periods for closed representation files. Therefore, if the Agency does not request
return of this file material, the Firm reserves the right to destroy it at the end of the defined
retention period. Upon the Agency's reasonable request, the Firm will provide such
portions of these file materials to the Agency as required by the applicable rules of
professional responsibility or other legal requirements. Unless applicable rules of
professional responsibility require an earlier return, we may retain such file material
pending receipt of payment of any outstanding fees or costs.
9. Communication
a. We often send to our clients information about the Firm or legal matters we
think might be of interest to them. The Agency agrees that we may send the Agency this
material, either by electronic mail or other means. The Agency also agrees that we may
communicate with the Agency about this Matter by electronic mail on an unencrypted
basis.
b. Either at the beginning or during representation, we might express opinions
or beliefs concerning the Matter and the results that might be anticipated. Any such
statement made by us is an expression of opinion only and is not a promise or guarantee of
results.
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10. Arbitration
Any dispute over fees and/or costs (a "Dispute ") will be submitted to and settled exclusively
by binding arbitration, in accordance with the provisions of this section, subject only to any
applicable requirement of law that the parties engage in a preliminary non - binding mediation or
arbitration regarding fee disputes. Binding arbitration shall be conducted in accordance with the
Judicial Arbitration and Mediation Service Streamlined Rules & Procedures (the "JAMS Rules ").
Arbitration shall be held in the county of Hillsborough, before an arbitrator selected pursuant to the
JAMS Rules who will have no personal or pecuniary interest, either directly or indirectly, from any
business or family relationship with either of the parties. All decisions of the arbitrator will be final,
binding, and conclusive on the parties.
The parties will equally share the costs of the arbitrator and the arbitration fee (if any). Each
party will bear that party's own attorneys' fees and costs, and the prevailing party will not be entitled
to reimbursement by the other party of any of its fees or costs incurred in connection with the
arbitration hereunder, regardless of any rule to the contrary in the applicable arbitration rules. Either
party may seek confirmation of the arbitration award in a court of competent jurisdiction in, and
each party hereby consents to, the exclusive jurisdiction and venue of the Superior Court in
Hillsborough County any claim or action arising hereunder. By signing this Agreement containing
this provision, the Agency agrees to waive any and all rights to a jury trial regarding any Dispute.
Before you sign this agreement you should consider consulting with another lawyer about the
advisability of making an agreement with mandatory arbitration requirements. Arbitration
proceedings are ways to resolve disputes without the use of the court system. By entering into
agreements that require arbitration as the way to resolve fee disputes, you give up (waive) your right
to go to court to resolve those disputes by a judge or jury. These are important rights that should not
be given up without careful consideration.
Please confirm the Agency's approval of this Agreement by signing and returning the
enclosed duplicate copy in the envelope provided. If the Agency has any questions, or if this
Agreement does not accurately set forth our arrangement, please let me know.
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We look forward to working with you on this Matter.
Very truly yours,
FOLEY & LARDNER LLP
i
R. Michael Scarano, Jr.
Enclosures
AGREED AND ACCEPTED:
City of Sanford
BY:
(Authorized ignatur
N N. aparte, Jr.
(Title)
January 10, 2012
(Date)
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LAW FIRM BUSINESS ASSOCIATE
HEALTH INFORMATION PRIVACY AGREEMENT
This Agreement, effective 1'2,/ / L / /I , is entered into by and between Foley &
Lardner LLP ( "Business Associate "), and City of Sanford ( "Client "), (each a "Party" and
collectively the "Parties ").
Business Associate is a law firm and Client is either a "Covered Entity" as defined by
the Standards for Privacy of Individually Identifiable Health Information ( "Privacy Regulations ")
and the Security Standards for Electronic Protected Health Information ( "Security Regulations ")
under the Health Insurance Portability and Accountability Act of 1996 ( "HIPAA "), Public Law
104 -191, as amended by the Health Information Technology for Economic and Clinical Health Act,
as incorporated in the American Recovery and Reinvestment Act of 2009, and its implementing
regulations and guidance issued by the Secretary, all as amended from time to time (the " HITECH
Act ") (the Privacy Regulations, the Security Regulations, HIPAA and the HITECH Act defined
collectively as the "Standards ") or if not a Covered Entity itself, is the sponsor of a Group Health Plan
that is a Covered Entity. As such, Client is required to have this Agreement in effect with Business
Associate.
Client has retained Business Associate to provide legal services (the "Services ") and
Discloses Protected Health Information to Business Associate in connection with such Services. This
Agreement sets forth the terms and conditions pursuant to which Client and Business Associate will
handle Protected Health Information that is received by Business Associate from, or created or
received by Business Associate on behalf of, Client or, in the case of a Group Health Plan sponsored by
Client, the Group Health Plan ( "PHI "). The Parties agree as follows:
1. DEFINITIONS Unless otherwise provided in this Agreement, capitalized terms used in
this Agreement have the same meaning as set forth in the Standards.
2. PERMITTED USES AND DISCLOSURES OF PHI
a. Provision of Services Business Associate provides legal services to Client, including
but not limited to, litigation and counseling, that may involve the Use or Disclosure of
PHI. Business Associate recognizes and agrees that it is obligated by law to comply
with the applicable provisions of the Standards, including the HITECH Act. Except
as otherwise specified herein, Business Associate may Use and Disclose PHI: (a) to
provide such services or perform its obligations to Client, (b) as Required by Law,
and (c) as provided by sections 2.2 and 2.3 below. Disclosures permitted hereunder
include disclosures to Client and disclosures made to third parties at Client's
direction. All Uses and Disclosures not authorized by this Agreement are prohibited.
b. Authorizations Business Associate may Use and Disclose PHI as authorized
pursuant to the terms and conditions of any authorization that Business Associate
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determines is valid and complies with the requirements of the Standards for
authorizations.
C. Business Activities of Business Associate Business Associate may:
i. Use PHI in its possession for its own proper management and administration,
or to carry out its legal responsibilities.
ii. Disclose PHI in its possession to third parties for the purpose of its own
proper management and administration, or to carry out legal responsibilities of
Business Associate, provided that:
(1) The Disclosure is Required by Law; or
(2) Business Associate has received from the third party
reasonable assurances that:
(a) the information will be held confidentially, and Used or
further Disclosed only as Required by Law or for the purpose for
which it was Disclosed to the third party; and
(b) the third party will notify Business Associate of any
breach of confidentiality of such PHI of which the third party becomes
aware.
3. RESPONSIBILITIES OF BUSINESS ASSOCIATE
a. Prohibition on Unauthorized Use or Disclosure Business Associate shall Use or
Disclose PHI only as permitted or required by this Agreement or as otherwise
Required by Law.
b. Safeguards and Security Business Associate shall implement and maintain such
safeguards as are reasonable and appropriate to ensure that PHI is not Used or
Disclosed by Business Associate, except as is provided in this Agreement, or as
otherwise Required by Law. Business Associate shall: (a) implement and maintain
administrative safeguards as required by 45 CFR § 164.308, physical safeguards as
required by 45 CFR § 164.310 and technical safeguards as required by 45 CFR
§ 164.312; (b) implement and document reasonable and appropriate policies and
procedures as required by 45 CFR § 164.316; and (c) be in compliance with all
requirements of the HITECH Act related to security and applicable as if Business
Associate were a Covered Entity. Business Associate shall use its best efforts to
implement and maintain technologies and methodologies that render PHI unusable,
unreadable or indecipherable to unauthorized individuals as specified in the HITECH
Act.
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Reporting
i. Business Associate shall report to Client any Use or Disclosure of PHI
that is not permitted or required by this Agreement of which Business Associate
becomes aware, as well as each Security Incident of which Business Associate
becomes aware. "Security Incident" means the attempted or successful unauthorized
access, use, disclosure, modification, or destruction of information in, or interference
with system operations of, an Information System which contains Electronic
Protected Health Information. The Parties agree that Business Associate shall not be
required to notify Client of Security Incidents involving attempts to access an
Information System that are not reasonably considered by Business Associate to
constitute an actual threat to the Information System; rather, this paragraph shall be
deemed to constitute notice by Business Associate to Client of any such Security
Incident.
ii. In the event of any Breach of Client's Unsecured PHI by Business
Associate, its agents or subcontractors, Business Associate shall notify Client of such
Breach in writing within thirty (30) days of the date Business Associate Discovers
such Breach. To the extent the information is available to Business Associate,
Business Associate's written notice shall include the information required by 45 CFR
§164.410. Client shall have sole control over the timing and method of providing
notification of such breach to the affected individual(s) or others as required by the
HITECH Act. Business Associate shall reimburse Client for its reasonable costs and
expenses in providing the notification, including, but not limited to, any
administrative costs associated with providing notice, including printing and mailing
costs. In addition, if Client reasonably determines that, given the type of information
involved in the Breach, Client must purchase credit monitoring services or identify
theft insurance for the affected individual(s) in order to mitigate the damage caused
by the Breach, then Business Associate shall also reimburse Client's costs of
obtaining such credit monitoring services or identity theft insurance (not to exceed
one year) for affected individuals whose PHI has or may have been compromised as a
result of the Breach. In order to be reimbursed by Business Associate, Client must
provide to Business Associate a written accounting of Client's actual costs and, to the
extent applicable, copies of receipts or bills with respect thereto.
d. Subcontractors Business Associate shall require all of its subcontractors (including
local counsel) and agents that receive or Use, or have access to, PHI to agree, in
writing, to adhere to the same restrictions and conditions on the Use or Disclosure of
PHI and implementation of reasonable and appropriate safeguards, including of
Electronic Protected Health Information, that apply to Business Associate under this
Agreement.
e. Inspection of Books and Records Subject to the provisions contained in Section 5 of
this Agreement, Business Associate shall make available all records, books,
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agreements, policies and procedures relating to the Use or Disclosure of PHI, and the
safeguarding of Electronic Protected Health Information, to the Secretary of the
United States Department of Health and Human Services (the "Secretary ") for
purposes of determining Client's compliance with the Standards.
f. Access Subject to the provisions contained in Section 5 of this Agreement, upon the
written request of Client, Business Associate shall provide an individual access to any
PHI that relates to such individual and is part of Client's Designated Record Set in the
time, form and manner instructed by Client, including in an electronic format in
compliance with the HITECH Act if Business Associate is deemed to maintain an
Electronic Health Record on behalf of Client. Client and Business Associate do not
anticipate that any PHI in Business Associate's custody or control will be part of
Client's Designated Record Set, nor will such PHI be maintained by Business
Associate in an Electronic Health Record. Accordingly, Client and Business
Associate do not anticipate that Business Associate will be called upon to provide the
access to PHI required under this Section 3.6.
g. Accounting Subject to the provisions contained in Section 5 of this Agreement, upon
the written request of Client, Business Associate shall document such Disclosures of
PHI that Client would be required to account for in accordance with the Standards,
and provide to Client, within thirty (30) days of receiving such request from Client,
such documentation as is requested by Client to permit an accounting of such
Disclosures. If Business Associate is deemed to use or maintain an Electronic Health
Record on behalf of Client with respect to PHI, then Client may not respond to an
individual's request for an accounting of disclosures made through an Electronic
Health Record by providing the requesting individual with a list of all business
associates acting on behalf of Client, and naming Business Associate in such list.
Client and Business Associate do not anticipate that Business Associate will be
deemed to use or maintain an Electronic Health Record on behalf of Client. In
addition, Client and Business Associate anticipate that all of Business Associate's
Uses and Disclosures of PHI will be for the Health Care Operations of providing, or
arranging for the provision of, the Services or for other purposes not subject to an
accounting under the Standards. Accordingly, Client and Business Associate do not
anticipate that Business Associate will have to provide any documentation or
accounting required under this Section 3.7 as to the provision of Services. However,
Business Associate must provide the documentation and the accounting required by
this Section 3.7 with respect to each unauthorized Disclosure by Business Associate.
h. Amendment of PHI Subject to the provisions contained in Section 5 of this
Agreement, Business Associate shall incorporate, within thirty (30) days of receiving a
written request from Client, any amendments to PHI in the possession or control of
Business Associate that constitutes a part of Client's Designated Record Set. Such
amendments shall be incorporated in the time, form and manner instructed by Client.
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Client and Business Associate do not anticipate that Business Associate will hold or
control any PHI that is a part of Client's Designated Record Set. Accordingly, Client
and Business Associate do not anticipate that Business Associate will have to amend
PHI as required under this Section 3.8.
i. Remuneration for PHI Business Associate agrees that it shall not, directly or
indirectly, receive remuneration in exchange for any PHI of Client except as is
otherwise permitted by the HITECH Act.
j. Limited Use of PHI To the extent required by the HITECH Act, Business Associate
shall limit its Use, Disclosure or request of PHI to the Limited Data Set or, if needed,
to the minimum necessary to accomplish the intended Use, Disclosure or request,
respectively.
k. Limitations on Use of Protected Health Information for Marketing Purposes
Business Associate shall not Use or Disclose PHI for the purpose of making a
communication about a product or service that encourages recipients of the
communication to purchase or use the product or service, unless such communication:
(a) complies with the requirements of subparagraph (i), (ii) or (iii) of paragraph (1) of
the definition of marketing contained in 45 CFR § 164.501, and (b) complies with the
requirements of subparagraphs (A), (B) or (C) of Section 13406(a)(2) of the HITECH
Act and implementing regulations or guidance that may be issued or amended from
time to time. Client and Business Associate do not anticipate that Business Associate
will Use or Disclose PHI for the purpose of making a communication about a product
or service that encourages recipients of the communication to purchase or use the
product or service.
4. RESPONSIBILITIES OF CLIENT
a. Limited Disclosure of PHI Client will disclose to Business Associate only the
minimum necessary as is necessary to enable Business Associate to perform the
Services.
b. Changes Affecting Authorization Client will inform Business Associate of any
changes in, or withdrawal of, the authorization provided to Client by an individual, to
the extent such changes may impact in any manner the Use or Disclosure of PHI by
Business Associate under this Agreement.
C. Restrictions Affecting Use or Disclosure of PHI Client will-notify Business
Associate, in writing and in a timely manner, of any arrangements that are binding on
Client that may impact in any manner the Use or Disclosure of PHI by Business
Associate under this Agreement. Such arrangements may include, but are not limited
to any restrictions on Uses or Disclosures requested by an individual and agreed to by
Client. If Client is required to comply with a restriction on the disclosure of PHI
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pursuant to Section 13405 of the HITECH Act, then Client shall, to the extent needed
to comply with such restriction, provide written notice to Business Associate of the
name of the individual requesting the restriction and the PHI affected thereby.
Business Associate shall, upon receipt of such notification, not Disclose the identified
PHI to any health plan for the purposes of carrying out Payment or Health Care
Operations, except as otherwise required by law. Client and Business Associate do
not anticipate that performance of the Services will require Business Associate to
Disclose PHI to any health plan for purposes of carrying out Payment or Health Care
Operations. Accordingly, Client and Business Associate do not anticipate that Client
will need to notify Business Associate of its obligation to comply with a restriction
pursuant to Section 13405 of the HITECH Act.
5. ATTORNEY CLIENT RELATIONSHIP Notwithstanding anything to the contrary
contained herein, the Parties, recognizing that Business Associate serves as an attorney for
Client, hereby agree that nothing contained in this Agreement:
i. Waives the attorney - client, work - product, or any other privilege that may be
invoked by, or is applicable to, either Party;
ii. Imposes any duties or obligations on Business Associate that are inconsistent
with Business Associate's duties and obligations to Client as a client of
Business Associate, including, without limitation, any obligation of
confidentiality or other obligation imposed on Business Associate under
ethical rules applicable to the Parties' attorney - client relationship or otherwise
at law; or
iii. Limits either Party's right or ability to adequately conduct discovery in any
arbitration or litigation proceeding.
It is the intention of the Parties that this Agreement shall be narrowly construed and that
nothing contained in this Agreement shall impact any aspect of the attorney - client
relationship that does not involve the Use or Disclosure of PHI.
6. TERM AND TERMINATION
a. Term This Agreement shall become effective upon the signature of both Parties and
shall continue in effect until all obligations of the Parties have been met, subject to
the Parties' right of termination.
b. 'Termination of this Agreement Subject both to Business Associate's ethical
obligations to Client, and any other agreement between the Parties, either Party may
immediately terminate the Parties' attorney - client relationship, and this Agreement.
If Business Associate knows of a pattern of activity or practice of Client that
constitutes a material breach or violation of Client's obligations under the Agreement,
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then Business Associate shall: (a) notify Client in writing of the breach or violation
and provide the Client with a reasonable period to cure such breach or end such
violation, if possible; or (b) if a cure of the breach or violation is either not possible or
is unsuccessful, upon written notice to Client, terminate the attorney - client
relationship with Client to the extent such relationship involves the Use or Disclosure
of PHI; or (c) if such termination is not feasible, report the breach or violation to the
Secretary, unless the regulations promulgated under the HITECH Act exempt
Business Associate from such reporting requirement.
C. Effect of Termination The Parties hereby acknowledge and agree that, except in
certain limited circumstances, in the event of the termination of the attorney- client
relationship between Client and Business Associate, it will not be feasible for
Business Associate to return to Client or destroy PHI held by Business Associate on
behalf of Client. Business Associate and its agents or subcontractors, if any, shall
follow the restrictions of this Agreement regarding PHI retained by them,
respectively, and shall limit further Uses and Disclosures to those purposes that make
return or destruction infeasible.
d. Survivability The respective rights and obligations of the Parties with respect to PHI
shall survive termination of this Agreement for so long as Business Associate retains
custody or control of PHI.
7. GENERAL PROVISIONS
a. Amendments: Waiver This Agreement may not be modified, nor shall any provision
hereof be waived or amended, except in a writing duly signed by authorized
representatives of the Parties.
b. No Third Party Beneficiaries Nothing express or implied in this Agreement is
intended to confer, nor shall anything herein confer, upon any person other than the
Parties and the respective successors or assigns of the Parties, any rights, remedies,
obligations, or liabilities whatsoever.
C. Disputes If any controversy, dispute or claim arises between the Parties with respect
to this Agreement, the Parties shall make good faith efforts to resolve such matters in
a manner that allows each Party to comply with the Standards.
d. Counterparts This Agreement may be executed in any number of counterparts, each
of which will be deemed an original, but all of which will constitute one and the same
instrument.
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly
executed in its name and on its behalf effective as of i U I U 1
CITY OF O
By: � --
Print Name: Nor on N. Bonapa
Print Title
City Manager
UTUR
FOLEY & LAR P
+ /
B
Jr Print Name:
Print Title:
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