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HomeMy WebLinkAbout12-22-20 City Commission Packet Materials - F4. Agreement w BMB Emergency Medicine LLC for FD EMS OpsMemorandum REPORT TO:City Commission SUBJECT:Authorize the City Manager to Sign an Agreement with BMB Emergency Medicine LLC for Medical Direction of Fire Department Emergency Medical Service (EMS) Operations MEETING DATE:December 22, 2020 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize City Manager’s signature on agreement. STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND: The fire department operates as an advance life support care provider via both emergency first response and secondary transport, thus it is necessary for the department to have medical direction from a license medical physician. The medical director is responsible for providing established protocols, oversight of medication purchasing and administration, documentation review, and overall guidance for medical response of the fire department. The agreement allows for Dr. Bret Birrer with BMB Emergency Medicine to continue to provide medical direction for the fire department. UNRESOLVED ISSUES:None ALTERNATIVES:As recommended by Commission FISCAL EFFECTS:Cost of medical direction are covered in Fire Department budget Attachments: BFD Medical Direction Contract.pdf BFD Exhibit A.pdf Report compiled on: December 8, 2020 1 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into by and between the City of Bozeman, a municipal corporation located at 121 N. Rouse Ave., Bozeman MT (“City”), and BMB Emergency Medicine LLC, Bret M. Birrer, M.D., with an address of 4554 Equestrian Lane, Bozeman MT 59718, (the “Medical Director”) effective as of January 1, 2021 (the “Effective Date”). WHEREAS, the Medical Director is duly qualified and licensed to practice medicine in the State of Montana; WHEREAS, the Medical Director has completed a Montana Board of Medical Examiners (“Board”) training program or has provided proof to the Board of a Board-approved exemption from the training; WHEREAS, the Medical Director acknowledges expertise in the field of emergency medical services and emergency medical services oversight; WHEREAS, Medical Director has a valid registration with the DEA, and is eligible to participate in federal health care payer programs; WHEREAS, the City Fire Department (“BFD”) provides emergency medical services and other related services and desires to obtain the services of a medical director; and WHEREAS, the Medical Director is willing to provide such services to the City. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties incorporate the above recitals and agree as follows: 1. Medical Director Services. The Medical Director shall provide the services to the City that are outlined in Exhibit “A” attached hereto and by this reference made a part hereof. 2. Time Commitment. The Medical Director shall be expected to provide approximately eight (8) hours per month to the above duties. 3. Compensation. As payment for the services rendered by Medical Director, the City shall pay to Medical Director the amount of $1000.00 per calendar month, payable to Medical Director bi-annually, January and July, for the previous six months of service. 2 4. Term. The term of this Agreement shall commence on the Effective Date and shall be for one (1) year. This Agreement shall automatically renew for subsequent one-year periods thereafter, subject to the termination rights herein. The initial term and all renewal periods shall be cumulatively referred to as the “Term”. 5. Termination. This Agreement may be terminated prior to the expiration of its Term as follows: a. Immediately upon written notice from the City upon the suspension, revocation, or restriction of Medical Director’s license to practice medicine or dispense medications, or exclusion from any federal or state payor program; b. Immediately upon written notice from the City if it determines in its reasonable discretion that continued provision of services by the Medical Director will jeopardize health or safety; or c. Without cause by either party by providing written notice to the other party of intent to terminate. Such termination shall become effective and this Agreement shall be terminated in its entirety on the 30th calendar day following receipt of the written notice of termination as herein described. 6. Relationship. In the performance of services under this Agreement, Medical Director and the City shall at all times be acting and performing as independent contractors. Nothing contained herein shall be deemed or construed to create any agency, partnership, joint venture, or employer- employee relationship between Medical Director and the City. The City shall not have direct supervision over the manner in which Medical Director performs his services pursuant to this Agreement. The City shall not be responsible for the payment of any applicable taxes or withholdings related to Medical Director’s services, and shall provide no benefits to Medical Director whatsoever. Medical Director will at the City’s request provide the City with an Independent Contractor Certificate or proof that Medical Director has worker’s compensation insurance as required by Montana law or for some other reason (e.g. an exception or exemption) is not required to obtain such a Certificate. 7. Right to Engage in Other Activities; Non-exclusivity. Nothing contained herein shall be deemed to restrict or prevent Medical Director from providing medical services, engaging in consultation services, or in any other business at such times, places, and in such manner as Medical Director shall determine in his discretion, during the Term of this Agreement and thereafter so long as Medical Director is able to carry out the provisions of this Agreement. Nothing herein shall be deemed to create an exclusive arrangement with Medical Director, and this Agreement will not restrict the City from acquiring similar services from other providers. 3 8. Standard of Care. Medical Director shall render services that are (1) in compliance with the accepted medical standard of care in the community and profession, (2) consistent with the protocols approved by the Montana department of public health and human services in licensing the emergency medical service, and (3) consistent with the level of licensure of the emergency medical services personnel supervised by the Medical Director. 9. Compliance with Laws. The parties will comply in all material respects with all applicable federal and state laws and regulations including, the federal Anti-kickback statute. Medical Director shall also maintain all licenses, certifications, or accreditations necessary to provide services hereunder. 10. Maintenance of Records. As applicable, each party will retain books and records respecting services rendered to patients for the time periods required under all applicable laws (including the requirements of the Secretary of Health and Human Services (“HHS”) and the records required for licensure as a medical director by the Board) and allow access to such books and records by duly authorized agents of the Secretary of HHS, the Comptroller General, and others to the extent required by law. Each of the parties shall have the right to obtain copies of relevant portions of patient records maintained by the other party to the extent necessary to defend against legal actions taken against such party or employees involved in the care of a patient. 11. Indemnification. To the fullest extent permitted by law, Medical Director agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of Medical Director; or (ii) any negligent, reckless, or intentional misconduct of any of the Medical Director’s agents. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). 4 Medical Director’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against Medical Director to assert its right to defense or indemnification under this Agreement or under the Medical Director’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines Medical Director was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Medical Director also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except responsibility for the City’s “own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. 12. Insurance. Medical Director represents that he has and will maintain during the Term (1) professional liability insurance in amounts of $1,000,000 per occurrence and $3,000,000 in the aggregate annually, and (2) automobile liability insurance in the amount of $500,000 property damage/bodily injury. Medical Director will provide evidence of coverage upon request by the City. The City, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on Medical Director’s professional liability insurance policy. The insurance and required endorsements must be in a form suitable to City and shall include no less than a sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements. Medical Director shall notify City within two (2) business days of his receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City may obtain and maintain risk management coverage up to the limitation and amounts provide in MCA section 2-9-108. Medical Director specifically recognizes and 5 agrees that any risk management coverage obtained by the City is secondary to Medical Director’s insurance. 13. HIPAA. Each party shall comply with the privacy and security provisions of the HIPAA and the HITECH ACT and the regulations thereunder (“HIPAA”), and with such other requirements of HIPAA that may become effective during the Term. Each party acknowledges and agrees that it is considered a covered entity under HIPAA. Accordingly, both parties are permitted to use and disclose Protected Health Information in accordance with HIPAA without an additional written authorization of the patient as long as both parties have a direct relationship with the patient. All patient medical records shall be treated as confidential so as to comply with all state and federal laws. 14. Notices. Any notice required or permitted by this Agreement shall be in writing and shallbe delivered as follows, with notice deemed give/received as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of delivery; (c) by facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the following addresses: If to Medical Director: BMB Emergency Medicine LLC Bret M. Birrer, MD 4554 Equestrian Lane Bozeman, MT 59718 If to the City: Josh Waldo Fire Chief, Bozeman Fire Department P.O. Box 1230 Bozeman, MT 59771-1230 15. Confidentiality. All information with respect to the operations and business of a party (including the rates charged hereunder) and any other information considered to be and treated as confidential by that party gained during the negotiation or Term of this Agreement will be held in confidence by the other party and will not be divulged to any unauthorized person without prior written consent of the other party, except for access required by law, regulation, and third party reimbursement agreements. 16. Non-Waiver. A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce 6 such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 17. Attorney’s Fees and Costs. That in the event it becomes necessary for either Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 18. Dispute Resolution. a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 19. Applicable Law. The parties agree that this Agreement is governed in all respects by the laws of the State of Montana and the parties expressly agree that venue will be in Gallatin County, Montana, and no other venue. 20. No Third-Party Beneficiary. This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 21. Headings. The headings used in this Agreement are for convenience only and are not to be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 22. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 23. Nondiscrimination and Equal Pay. The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental 7 disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 24. Miscellaneous. This Agreement (including the Exhibit hereto): a) constitutes the entire agreement between the parties with respect to the subject matter hereof, superseding all prior oral or written agreements with respect thereto; (b) may be amended only by written instrument executed by both parties; (c) may not be assigned by either party without the written consent of the other party, such consent not to be unreasonably withheld; (d) shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns; (e) may be executed in several counterparts each of which shall constitute an original and all of which when taken together, shall constitute one agreement; and (g) shall not be effective until executed by both parties. 25. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. IN WITNESS WHEREOF, the parties have hereto executed this Agreement as of the Effective Date. CITY OF BOZEMAN, MONTANA BMB EMERGENCY MEDICINE LLC. By________________________________ By_____________________________________ Jeff Mihelich, City Manager Print Name: __Bret M. Birrer Print Title: ___Medical Director 8 APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 9 1585433 1 EXHIBIT “A” MEDICAL DIRECTOR SERVICES a. Supervise clinical services delivered by BFD’s emergency medical services personnel; b. Review quality improvement reports, provided by BFD and identify deficiencies in patient care and make recommendations for improvement; c. Review and respond to problem cases or transports within twenty-four (24) hours of being notified; c. Make or direct the making of such reports and records relating to patient care as may be required by BFD and/or regulatory bodies, whether public or private; d. Direct, coordinate, and/or participate in remedial education of emergency medical services personnel in accordance with BFD’s policies; e. Instruct and inform governmental boards or agencies with jurisdiction to summarily limit, suspend, or withdraw clinical privileges of emergency medical service personnel; f. Advise and assist in the organization and implementation of an effective utilization review- program for BFD and perform utilization review services; g. Assist in the design and development of protocols, patient information forms, medical record forms, and consent forms for use in the field or for BFD’s purposes; h. Undertake activities, as reasonably requested by BFD, including but not limited to, professional contacts with physicians, hospitals, public health agencies, paramedic associations, nursing associations, governmental agencies, and state and local medical societies in order to apprise such individuals and groups of the nature and availability of facilities and services of BFD and facilitate the exchange of information on patient care, administration, medical policy, and utilization review; i. Use best effort to elevate the standing of BFD in the fields of emergency medicine and emergency medical services; 10 1585433 2 j. Give technical advice and assistance as may be requested to facilitate the installation of equipment, expansion of BFD’s services as well as general strategic planning; k. Authorize, supervise, and approve the purchase of necessary medications for pre-hospital use by BFD in accordance with the full scope of practice. Medical Director acknowledges and agrees that narcotics and controlled medications are specifically included within the definition of medications covered by this Agreement and Medical Director will be responsible for approving all local implementation plans for the ordering, distribution, and handling of controlled substances (to include oversight and sign-off on all controlled substance records and logs in a timely manner); l. Perform any other functions associated with the role of a medical director as may be appropriate and reasonably requested by BFD. 11