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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 09/01/2020 - FIRST READING OF ORDINANCE NO. 108, 2020, AMENDING Agenda Item 8 Item # 8 Page 1 AGENDA ITEM SUMMARY September 1, 2020 City Council STAFF Lisa Rosintoski, Utilities Deputy Director, Customer Connections Jamie Gaskill, Sr. Supervisor, Project Management Cyril Vidergar, Legal SUBJECT First Reading of Ordinance No. 108, 2020, Amending Chapter 26 of the Code of the City of Fort Collins to Clarify Utility Accounts, Billing and Collections. EXECUTIVE SUMMARY The purpose of this item is to adopt changes to City Code to align with requirements in the 2020-2025 LEAP Vendor Agreement. Under current billing practices, utility bills are treated as a single customer account payment balance, and payments made to an account are applied equally across utility service products on that account. The Code changes will allow for Low-Income Energy Assistance Program (LEAP) payments to be applied only to electric service (as required in the 2020-2025 LEAP Vendor Agreement), even if a customer has other Fort Collins utility services (e.g., water, wastewater, stormwater and/or broadband). These Code changes will enable Fort Collins Utilities to remain a LEAP Vendor which benefits the 200+ income-qualified customers that receive LEAP in two ways: (1) they get a more accurate benefit amount because Fort Collins Utilities is able to provide Estimated Home Heating Costs (EHHC) from which LEAP bases benefit calculations, and (2) it is more convenient for the customer because LEAP payments are automatically applied to a customer’s utility account. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION LEAP Vendor Background Fort Collins Utilities became a Low-Income Energy Assistance Program (LEAP) Vendor in 2016 as part of the City’s efforts to start the Income-Qualified Assistance Program. Instead of requiring customers to complete a separate qualification threshold, the Income-Qualified Assistance Program uses LEAP enrollment as the qualification criteria for eligible customers to receive discounted rates on select utility services. Although being a LEAP Vendor is not a requirement for Fort Collins Utilities to access data about LEAP customers, it enables the City to provide a more streamlined and comprehensive portfolio of low-income programs. Background on Changes Needed to Maintain LEAP Vendor Status During the process to renew the LEAP Vendor Agreement between the Colorado Department of Human Services (CDHS) and Fort Collins Utilities, staff discovered several requirements in the renewal Agreement that require the City to revise Code and processes to ensure compliance. Prior to staff and CDHS preparing the renewal Agreement, a federal audit of the LEAP program also revealed a need for LEAP vendors to provide more specific assurances to CDHS regarding how customer benefits were being applied. According to Agenda Item 8 Item # 8 Page 2 the Agreement, LEAP benefit payments may only be applied to electric service products. To verify compliance with this requirement, City Code needs to be modified to state that 100% of LEAP payments may be applied to the electric service amounts due on a customer’s account, even if other utilities are received at a premise, and under the City’s general collection practices all monthly service fees are otherwise treated as a single payable amount. Staff recommends clarifying the Code and payment processing practices for several reasons: • Acting as a LEAP Vendor allows Fort Collins Utilities to offer a more comprehensive portfolio of low- income utility offerings. • By remaining a LEAP Vendor, Fort Collins Utilities enables customers who receive LEAP payments to receive more accurate benefit amounts because Fort Collins Utilities can provide LEAP with Estimated Home Heating Costs (EHHC) that are based on past utility use at the premise where a LEAP recipient resides. Without the EHHC, LEAP recipients receive payments based on a default formula that may not resemble actual use at the premise where they reside. • As a LEAP Vendor, Fort Collins Utilities applies LEAP payments directly to a customer’s utility account. If Fort Collins Utilities is no longer a LEAP Vendor, customers will receive LEAP benefits on an Electronic Benefits Transfer (EBT) card, which represents a form of payment not accepted by Fort Collins Utilities. In which case, customers must get cash out with the EBT card and then pay utility bills in-person, adding extra time and effort for the customer to pay utility bills using LEAP benefits, increasing barriers to program outcomes. CITY FINANCIAL IMPACTS This Code change will require staff time to execute. Under the separate LEAP Vendor Agreement, additional costs may be incurred to support manual processes until it is determined whether additional programming may be required for the new billing software to accommodate the requirement payment processes. There are no other known financial impacts to the City. BOARD / COMMISSION RECOMMENDATION The Energy Board reviewed the proposed Code changes at its regular August 13, 2020, meeting, and staff has incorporated the Board’s feedback. The Water Board was presented with the proposed Code changes via a Memorandum during the week of August 17, 2020, and staff has incorporated the Board’s feedback. ATTACHMENTS 1. LEAP Vendor Agreement (PDF) 2020-2025 APPROVED METERED FUEL VENDOR DATA INFORMATION 1. Enter the complete vendor/business name: ______________________________________________ _________________________________________________________________________________ 2. Enter the company FEIN (Federal Identification Number): ___________________________________ 3. Enter the business mailing address (including zip code): ____________________________________ _________________________________________________________________________________ 4. Enter the names direct phone numbers and email addresses of at least two contacts for your business: Name: _____________________ Email: _________________________ Phone: __________________ Name: ______________________ Email: ________________________ Phone: __________________ 5. Enter the business fax number(s) for contact: ______________________________________________________ 6. Enter the LEAP Vendor Number (provided by the State LEAP Office): _________________________________ Please place a check by the Colorado counties which your business serves: (01) Adams ___ (17) Dolores ___ (33) Lake ___ (49) Pitkin ___ (02) Alamosa ___ (18) Douglas ___ (34) La Plata ___ (50) Prowers ___ (03) Arapahoe ___ (19) Eagle ___ (35) Larimer ___ (51) Pueblo ___ (04) Archuleta ___ (20) Elbert ___ (36) Las Animas ___ (52) Rio Blanco ___ (05) Baca ___ (21) El Paso ___ (37) Lincoln ___ (53) Rio Grande ___ (06) Bent ___ (22) Fremont ___ (38) Logan ___ (54) Routt ___ (07) Boulder ___ (23) Garfield ___ (39) Mesa ___ (55) Saguache ___ (08) Chaffee ___ (24) Gilpin ___ (40) Mineral ___ (56) San Juan ___ (09) Cheyenne ___ (25) Grand ___ (41) Moffat ___ (57) San Miguel ___ (10) Clear Creek ___ (26) Gunnison ___ (42) Montezuma ___ (58) Sedgwick ___ (11) Conejos ___ (27) Hinsdale ___ (43) Montrose ___ (59) Summit ___ (12) Costilla ___ (28) Huerfano ___ (44) Morgan ___ (60) Teller ___ (13) Crowley ___ (29) Jackson ___ (45) Otero ___ (61) Washington ___ (14) Custer ___ (30) Jefferson ___ (46) Ouray ___ (62) Weld ___ (15) Delta ___ (31) Kiowa ___ (47) Park ___ (63) Yuma ___ (16) Denver ___ (32) Kit Carson ___ (48) Phillips ___ (80) Broomfield ___ 7. Please place a check by the type(s) of fuel service provided by your business: Natural Gas:____ Electric:____ ATTACHMENT 1 Page 1 of 7 LOW-INCOME ENERGY ASSISTANCE PROGRAM (LEAP) METERED FUEL VENDOR AGREEMENT Agreement made by and between the State of Colorado, Department of Human Services (hereinafter referred to as the State Department) and _____________________________________________________________________________________ (hereinafter referred to as the Vendor). Persons signing for the Vendor hereby swear and affirm that they are authorized to act on the Vendor’s behalf and acknowledge that the State is relying on their representations to that effect. By the signature below, the Vendor acknowledges that it has read, understands, and agrees to this Agreement. __________________________ ____________________________ __________________________ Vendor Representative Name Vendor Signature Date WHEREAS, the Low-Income Home Energy Assistance Act of 1981 (P.L. 97-35) provides for home energy assistance to eligible households; and WHEREAS, the purpose of Colorado’s Low-Income Energy Assistance Program (LEAP) is to help low- income Coloradans meet their winter home heating costs; and WHEREAS, the parties hereto desire to establish an arrangement to carry out the provisions of this Act and to assure that funds available under this Act are used in accordance therewith, NOW, therefore it is hereby mutually agreed: A. Offer/Acceptance. This LEAP Metered Fuel Vendor Agreement (“Agreement”) is between the State Department and the Vendor. This Agreement is effective upon the Vendor’s signature and performance shall start on or after October 1, 2020. B. The following definitions shall apply in the interpretation of this Agreement: 1. “County Department” means the County Department of Human/Social Services of a particular county as designated by the State Department. For the purposes hereof, when the County Department is so designated by the State Department, the Vendor may consider, interact, and deal with such County Department as the authorized agent of the State Department. 2. “Designee” means any County Department or contractor determining eligibility for the program. 3. “Electronic Funds Transfer” (EFT) is the method used to pay LEAP assistance benefits. 4. “Eligibility Period” means there shall be one eligibility period for the Basic Low-Income Energy Assistance Programs from November 1st through April 30th. If April 30th for a particular calendar year falls on a holiday or weekend, then the eligibility period shall be Page 2 of 7 extended until midnight the next business day. This program is contingent upon the continued availability of funds in accordance with 9 CCR 2503-7. 5. “Eligible Household” is a Household that has applied for and been approved for LEAP assistance benefits and for whom the Vendor has been notified by the County Department, the State Department, or its designee that payment will be made to the Vendor on behalf of the Household. 6. “Estimated Home Heating Costs (EHHC)” are the amount of the heating costs incurred during the previous heating season for the program applicant’s address at the time of application to be used as an estimate, or projection, of the anticipated heating costs for the current heating season (November 1st through April 30th). Such estimated heating costs shall not include payment arrearages, investigative charges, reconnection fees, or other such charges not related to residential fuel prices and consumption levels. EHHC may be provided if the Vendor has serviced the service address; it is not required that the Household applying for LEAP assistance benefits lived at the service address during the previous heating season. 7. “Good Faith Effort” is a documented attempt to reach Eligible Households through phone contacts, written correspondence and/or personal visits. 8. “Heat Related Arrearage” means any past due amounts for the primary heating fuel and/or supportive fuel. 9. “Home Heating Costs” are charges directly related to the primary heating source used in a residential dwelling. 10. “Household” means any individual or group of individuals who are living together as one economic unit for whom primary heating fuel is customarily purchased in common or who make undesignated payments for heat in the form of rent. 11. “Non-Bulk Fuel” or “Metered Fuel” is an energy source for home heating which is provided by a utility company and is regulated and metered by the utility company. Normally, non-bulk fuel includes natural gas and electricity. 12. “Overpayment” means a Household received benefits in excess of the amount due to that Household based on eligibility and payment determination in accordance with LEAP rules. 13. “Primary Heating Fuel” is the main type of fuel used to provide heat within the dwelling. 14. “Primary Heating Source” is the primary heating system that provides heat to the dwelling such as a furnace, wood burning stove or boiler. Temporary or portable heating sources are not considered a primary heating source and, therefore, are not eligible for LEAP assistance. 15. “Program Year” means from November 1st through April 30th for the Heating Fuel Assistance Program. If April 30th for a particular calendar year falls on a holiday or weekend, then the eligibility period shall be extended until midnight the next business Page 3 of 7 day. This program is contingent upon the continued availability of funds in accordance with 9 CCR 2503-7. 16. “Program Applicant” means a person or household that has applied for LEAP benefit assistance. 17. “State Department” means the Colorado Department of Human Services, Low-Income Energy Assistance Program or its designees. 18. “Supportive Fuel” means an energy source needed to operate the primary heating system in a residential setting. For example, electricity may be a supportive fuel required to operate a natural gas furnace. 19. “Tampering” or “Tampered Account” means unlawfully or unauthorized adjustment of fuel to the Household by altering equipment such as a gas or electric meter. C. The Vendor agrees to abide by the following provisions: 1. The Vendor shall notify the State Department at least 30 days prior to any change in business ownership, name, address, Vendor contact information and banking information. 2. The Vendor shall not treat a Household receiving assistance under the program adversely because of such assistance. 3. The Vendor shall not discriminate, either in the cost of the goods supplied or the services provided, against the Household on whose behalf payments are made. 4. The Vendor shall provide County Departments or their designees documented Estimated Home Heating Costs for the period of November 1st through April 30th of the previous year for any Household using their service. Such costs shall be based on historical usage and such costs shall be provided to the County Department or its designee within five (5) business days of the request. If the program applicant is without heat, the Vendor shall provide Estimated Home Heating Costs within 24 hours of the request. If the Vendor refuses to provide Estimated Home Heating Costs for a Household, the County Department or it designee shall make any payments to the Eligible Household instead of the Vendor, unless the Vendor documents that such data are not available. The State Department reserves the right to audit Vendor estimating procedures and to terminate the Vendor Agreement if estimates are found to be inaccurate or inappropriate. 5. Upon notification from the County Department or its designee that an application has been received for a Household pending service disruption, the Vendor shall not terminate services to the Household for ten (10) working days or until the Vendor is notified of the eligibility determination of the Household, whichever occurs first. 6. Upon receipt of LEAP assistance benefits from the State Department and on behalf of an Eligible Household, the Vendor shall credit the Eligible Household’s account promptly and no later than ten (10) business days after a payment is received. Credit will be reflected in the next normal billing. Page 4 of 7 7. Upon notification by the County Department, State Department, or its designee or discovery by the Vendor of incorrect payments or overpayments, the Vendor shall reimburse those payments to the County Department or its designee within ten (10) business days. The Vendor shall accompany all payments returned to the State Department with the Vendor name, the Household’s name, the Household account number, the amount returned on behalf of the Household and the date and reason for return by the Vendor. Checks returned to the State Department should be made out to “State of Colorado.” Checks returned to the County Department or its designee should be made out per the County Department or designee’s direction. 8. Once notified by the State Department, the County Department, or a designee (notification may include the Vendor verifying approvals by accessing the LEAP system website) that a Household has been approved for LEAP assistance benefits, the Vendor shall: i. Initiate, continue or restore service, whichever is applicable to the Eligible Household, within 24 hours of notification and continue utility services for at least sixty (60) days after such notification, unless: 1. the Eligible Household is in a pending shutoff situation and the Basic LEAP program year benefit is an amount less than 25% of the Household’s arrearage, or 2. the Eligible Household is shut off and the Basic LEAP program year benefit amount is less than 50% of the Household’s arrearage, or 3. The Eligible Household pre-pays for its electric service. In this case, the Vendor shall initiate, continue, or restore service, whichever is applicable to the Eligible Household, within 24 hours of notification and continue utility services until the LEAP assistance benefit has been exhausted. ii. If a LEAP assistance benefit is offered on an account that has been disconnected due to tampering of gas or electric service, the Vendor shall restore service only if the LEAP payment exceeds 70% of the past due amount. If a LEAP payment is offered on a tampered account and it is for less than 70% of the past-due amount, the Vendor reserves the right to not accept the LEAP assistance benefit for purposes of restoring service. If payment is not accepted for reconnection, the benefit will instead be provided to the Eligible Household as a direct client pay. The Vendor may accept a LEAP payment that is less than 70% of the past due amount but must as a condition of acceptance restore service and make arrangements with the Household to pay any remaining balance. iii. If the Vendor refuses to accept the LEAP program year benefit, the Vendor shall notify the State or its designee within three (3) business days and send written notice to the Eligible Household advising them the payment will not be accepted and no holds/reconnection will be offered. The benefit shall be paid to the Eligible Household as a direct client pay. 9. Death of a payee. If a LEAP program applicant dies and a benefit has been paid, the Vendor shall make any remaining LEAP credit balance available to any other member of Page 5 of 7 the LEAP program applicant Household for a period of 30 days. If the LEAP program applicant is the only Household member, the Vendor shall maintain any credit balance for a period of 30 days. The executor of the program applicant’s estate may claim the LEAP credit balance within this 30-day period. If the LEAP credit balance is not claimed within 30 days’ notice to the Vendor of the program applicant’s death, the Vendor shall notify the State Department and forward the credit balance to: State LEAP Office 1120 Lincoln Street, Suite 1007 Denver, CO 80203 10. The Vendor shall maintain confidentiality of information provided by the State Department, or its designee, about a Household’s benefit in accordance with applicable Federal and State Laws. 11. The Vendor shall return any payments that cannot be credited to an account within ten (10) business days to the County Department, or its designee. 12. The Vendor shall allow all LEAP credit balances to remain on the client’s account until the LEAP assistance benefit is exhausted, unless the Household no longer uses the originally approved Vendor. 13. When a Household no longer uses the originally approved Vendor, the Vendor shall make a Good Faith Effort to locate the Household. 14. If the Household is located, the Vendor shall forward the LEAP credit balance directly to the Household within ten (10) business days. 15. If the Household cannot be located within thirty (30) business days, the Vendor shall keep the funds available for the Household for the remainder of the current state fiscal year, which ends on June 30th. On July 1st, the Vendor shall forward any LEAP credit balance to the State Department at 1120 Lincoln Street, Suite 1007, Denver, CO 80203. These credits must be received by the State Department no later than July 10th. If a client moves or no longer uses the originally approved Vendor after June 30th, the Vendor shall forward any LEAP credit balance to the State Department on October 1st. These credits must be received by the State Department no later than October 10th. 16. Upon State Department request, or its designee’s request, the Vendor must return LEAP credit balances to the State Department within ten (10) business days of the request. 17. The Vendor shall accompany all payments returned to the State Department with a notification showing the Vendor name, the Household’s name, the Household’s account number, the amount returned on behalf of the Household and the date and reason for return by the Vendor. Checks returned to the State Department must be made out to “State of Colorado.” 18. If the Vendor has sent the LEAP credit balance funds to the Household, and a recovery is necessary, the County Department or its designee will recover from the Household, not the Vendor. Page 6 of 7 19. The Vendor shall report any financial fraud or abuse or misconduct in the administration of LEAP to the State Department. The Vendor shall cooperate with all State investigations of suspected fraud or abuse or misconduct. The Vendor may be prosecuted under applicable Federal and State laws for false claims, statements or documents or concealment of material fact. 20. All other requirements of Federal and State laws and regulations shall be adhered to. 21. The Vendor shall provide all customers subject to utility shutoff, who are financially unable to purchase fuel, or who request a LEAP application to the HEAT HELP telephone line (1-866-432-8435), or the State Department website at: colorado.gov/cdhs/leap. 22. The Vendor shall establish such fiscal control and fund accounting procedures as may be necessary to assure the proper use and accounting of funds under this Agreement. All records maintained by the Vendor relating to this Agreement shall be available on reasonable notice for inspection, audit or other examination and copying, by State Department representatives or their delegates. Such records shall show the amount of home energy delivered to each Eligible Household, the amount of payments made for home energy by such Eligible Households, the dollar value of credit received on behalf of each Eligible Household, the balance of available benefits and energy costs, and all documents and calculations in establishing the estimated Home Heating Costs. All records shall be maintained for a period of three (3) years following the termination of this Agreement. The State, or its designee, reserves the right to monitor the implementation of this Agreement by the Vendor. 23. The Vendor shall provide a monthly reconciliation report to the State Department verifying that each payment received on behalf of an Eligible Household is applied to the appropriate account within two weeks of the State Department payroll dates. 24. The Vendor shall provide annual natural gas/electric billing and consumption data for each Eligible Household who has resided at the same service address for the October 1 through September 30 reporting period, when applicable. 25. Non-compliance by the Vendor with any of the above assurances of this Agreement or applicable law or regulations shall be grounds for immediate termination of this Agreement. Such termination shall include termination of payments on behalf of Eligible Households and immediate return of credit balances or refunds owed to the State Department. Such termination is in addition to all other legal remedies available to the State Department, including investigation or prosecution of fraud in connection with this agreement. 26. All Vendors shall establish an account with a financial institution to receive payments via direct deposit through electronic funds transfer (EFT). The Vendor shall inform the State Department of any changes in banking information immediately upon the change. 27. All Vendors shall establish internet access to retrieve LEAP program applicant approval information and LEAP assistance benefit payment data from the State LEAP system website. Page 7 of 7 28. LEAP assistance benefit payments shall not be made to the Vendor on behalf of an Eligible Household if: i. The Eligible Household does not pay the Vendor directly for its home heating costs; or ii. This Agreement has not been executed or has expired or been terminated; or iii. The Eligible Household’s Vendor cannot be determined or feasibly paid on behalf of the Eligible Household. 29. By signature of this Agreement, the Vendor agrees to abide by the HIPAA Business Associate Agreement, attached as Exhibit A. D. The State Department shall itself or through the County Department, or its designee, as the case may be: 1. Promptly advise the Vendor of the name, address, account number, if any, and amount to credit to the account of each Eligible Household and provide the Vendor with a password to retrieve payroll information from the LEAP system website; 2. Notify all Eligible Households of the amount of LEAP assistance benefits to be made on their behalf to the Vendor; 3. Make timely payments to the Vendor for credit to Eligible Households for home energy supplied in accordance with the terms of this Agreement; and 4. Promptly notify the Vendor of all pertinent changes in this program caused by changes in applicable law, regulations, or technology. E. General Provisions: 1. The term of this Agreement shall be October 1, 2020 (or upon signed approval of this Agreement by the Vendor, whichever is later) through September 30, 2025. 2. This Agreement is subject to and contingent upon the continuing availability of federal funds. If insufficient funds, as determined by the State Department, are available for this program, the State Department may immediately terminate this Agreement. 3. This Agreement may be terminated by either party upon 30 days prior written notice to the other party sent by certified or registered mail. 4. The Vendor may not assign this Agreement without the prior written consent of the State Department. 5. The Vendor shall comply with all applicable Federal and State laws and regulations, including confidentiality of all records, termination and restoration of home energy service, and discrimination. The Vendor certifies that it has all licenses, insurance, and so on required by law for the provision of services hereunder. 6. If a situation arises that is not clearly covered by the terms of this Agreement, the Vendor shall seek guidance from the State Department. Page 1 of 9 HIPAA BAA Revised August 2018 EXHIBIT A - HIPAA BUSINESS ASSOCIATE AGREEMENT This HIPAA Business Associate Agreement (“Agreement”) between the State and Contractor is agreed to in connection with, and as an exhibit to, the Contract. For purposes of this Agreement, the State is referred to as “Covered Entity” and the Contractor is referred to as “Business Associate”. Unless the context clearly requires a distinction between the Contract and this Agreement, all references to “Contract” shall include this Agreement. 1. PURPOSE Covered Entity wishes to disclose information to Business Associate, which may include Protected Health Information ("PHI"). The Parties intend to protect the privacy and security of the disclosed PHI in compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191 (1996) as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) enacted under the American Recovery and Reinvestment Act of 2009 (“ARRA”) Pub. L. No. 111–5 (2009), implementing regulations promulgated by the U.S. Department of Health and Human Services at 45 C.F.R. Parts 160, 162 and 164 (the “HIPAA Rules”) and other applicable laws, as amended. Prior to the disclosure of PHI, Covered Entity is required to enter into an agreement with Business Associate containing specific requirements as set forth in, but not limited to, Title 45, Sections 160.103, 164.502(e) and 164.504(e) of the Code of Federal Regulations (“C.F.R.”) and all other applicable laws and regulations, all as may be amended. 2. DEFINITIONS The following terms used in this Agreement shall have the same meanings as in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use. The following terms used in this Agreement shall have the meanings set forth below: a. Business Associate. “Business Associate” shall have the same meaning as the term “business associate” at 45 C.F.R. 160.103, and shall refer to Contractor. b. Covered Entity. “Covered Entity” shall have the same meaning as the term “covered entity” at 45 C.F.R. 160.103, and shall refer to the State. c. Information Technology and Information Security. “Information Technology” and “Information Security” shall have the same meanings as the terms “information technology” and “information security”, respectively, in §24-37.5-102, C.R.S. Capitalized terms used herein and not otherwise defined herein or in the HIPAA Rules shall have the meanings ascribed to them in the Contract. 3. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE a. Permitted Uses and Disclosures. i. Business Associate shall use and disclose PHI only to accomplish Business Associate’s obligations under the Contract. Page 2 of 9 HIPAA BAA Revised August 2018 i. To the extent Business Associate carries out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate shall comply with any and all requirements of Subpart E that apply to Covered Entity in the performance of such obligation. ii. Business Associate may disclose PHI to carry out the legal responsibilities of Business Associate, provided, that the disclosure is Required by Law or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that: A. the information will remain confidential and will be used or disclosed only as Required by Law or for the purpose for which Business Associate originally disclosed the information to that person, and; B. the person notifies Business Associate of any Breach involving PHI of which it is aware. iii. Business Associate may provide Data Aggregation services relating to the Health Care Operations of Covered Entity. Business Associate may de-identify any or all PHI created or received by Business Associate under this Agreement, provided the de-identification conforms to the requirements of the HIPAA Rules. b. Minimum Necessary. Business Associate, its Subcontractors and agents, shall access, use, and disclose only the minimum amount of PHI necessary to accomplish the objectives of the Contract, in accordance with the Minimum Necessary Requirements of the HIPAA Rules including, but not limited to, 45 C.F.R. 164.502(b) and 164.514(d). c. Impermissible Uses and Disclosures. i. Business Associate shall not disclose the PHI of Covered Entity to another covered entity without the written authorization of Covered Entity. ii. Business Associate shall not share, use, disclose or make available any Covered Entity PHI in any form via any medium with or to any person or entity beyond the boundaries or jurisdiction of the United States without express written authorization from Covered Entity. d. Business Associate's Subcontractors. i. Business Associate shall, in accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any Subcontractors who create, receive, maintain, or transmit PHI on behalf of Business Associate agree in writing to the same restrictions, conditions, and requirements that apply to Business Associate with respect to safeguarding PHI. ii. Business Associate shall provide to Covered Entity, on Covered Entity’s request, a list of Subcontractors who have entered into any such agreement with Business Associate. iii. Business Associate shall provide to Covered Entity, on Covered Entity’s request, copies of any such agreements Business Associate has entered into with Subcontractors. e. Access to System. If Business Associate needs access to a Covered Entity Information Technology system to comply with its obligations under the Contract or this Agreement, Business Associate shall request, review, and comply with any and all policies applicable to Covered Entity regarding such Page 3 of 9 HIPAA BAA Revised August 2018 system including, but not limited to, any policies promulgated by the Office of Information Technology and available at http://oit.state.co.us/about/policies. f. Access to PHI. Business Associate shall, within ten days of receiving a written request from Covered Entity, make available PHI in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. 164.524. g. Amendment of PHI. i. Business Associate shall within ten days of receiving a written request from Covered Entity make any amendment to PHI in a Designated Record Set as directed by or agreed to by Covered Entity pursuant to 45 C.F.R. 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. 164.526. ii. Business Associate shall promptly forward to Covered Entity any request for amendment of PHI that Business Associate receives directly from an Individual. h. Accounting Rights. Business Associate shall, within ten days of receiving a written request from Covered Entity, maintain and make available to Covered Entity the information necessary for Covered Entity to satisfy its obligations to provide an accounting of Disclosure under 45 C.F.R. 164.528. i. Restrictions and Confidential Communications. i. Business Associate shall restrict the Use or Disclosure of an Individual’s PHI within ten days of notice from Covered Entity of: A. a restriction on Use or Disclosure of PHI pursuant to 45 C.F.R. 164.522; or B. a request for confidential communication of PHI pursuant to 45 C.F.R. 164.522. ii. Business Associate shall not respond directly to an Individual’s requests to restrict the Use or Disclosure of PHI or to send all communication of PHI to an alternate address. iii. Business Associate shall refer such requests to Covered Entity so that Covered Entity can coordinate and prepare a timely response to the requesting Individual and provide direction to Business Associate. j. Governmental Access to Records. Business Associate shall make its facilities, internal practices, books, records, and other sources of information, including PHI, available to the Secretary for purposes of determining compliance with the HIPAA Rules in accordance with 45 C.F.R. 160.310. k. Audit, Inspection and Enforcement. i. Business Associate shall obtain and update at least annually a written assessment performed by an independent third party reasonably acceptable to Covered Entity, which evaluates the Information Security of the applications, infrastructure, and processes that interact with the Covered Entity data Business Associate receives, manipulates, stores and distributes. Upon request by Covered Entity, Business Associate shall provide to Covered Entity the executive summary of the assessment. Page 4 of 9 HIPAA BAA Revised August 2018 ii. Business Associate, upon the request of Covered Entity, shall fully cooperate with Covered Entity’s efforts to audit Business Associate’s compliance with applicable HIPAA Rules. If, through audit or inspection, Covered Entity determines that Business Associate’s conduct would result in violation of the HIPAA Rules or is in violation of the Contract or this Agreement, Business Associate shall promptly remedy any such violation and shall certify completion of its remedy in writing to Covered Entity. l. Appropriate Safeguards. i. Business Associate shall use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI to prevent use or disclosure of PHI other than as provided in this Agreement. ii. Business Associate shall safeguard the PHI from tampering and unauthorized disclosures. iii. Business Associate shall maintain the confidentiality of passwords and other data required for accessing this information. iv. Business Associate shall extend protection beyond the initial information obtained from Covered Entity to any databases or collections of PHI containing information derived from the PHI. The provisions of this section shall be in force unless PHI is de-identified in conformance to the requirements of the HIPAA Rules. m. Safeguard During Transmission. i. Business Associate shall use reasonable and appropriate safeguards including, without limitation, Information Security measures to ensure that all transmissions of PHI are authorized and to prevent use or disclosure of PHI other than as provided for by this Agreement. ii. Business Associate shall not transmit PHI over the internet or any other insecure or open communication channel unless the PHI is encrypted or otherwise safeguarded with a FIPS- compliant encryption algorithm. n. Reporting of Improper Use or Disclosure and Notification of Breach. i. Business Associate shall, as soon as reasonably possible, but immediately after discovery of a Breach, notify Covered Entity of any use or disclosure of PHI not provided for by this Agreement, including a Breach of Unsecured Protected Health Information as such notice is required by 45 C.F.R. 164.410 or a breach for which notice is required under §24-73-103, C.R.S. ii. Such notice shall include the identification of each Individual whose Unsecured Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, or disclosed during such Breach. iii. Business Associate shall, as soon as reasonably possible, but immediately after discovery of any Security Incident that does not constitute a Breach, notify Covered Entity of such incident. Page 5 of 9 HIPAA BAA Revised August 2018 iv. Business Associate shall have the burden of demonstrating that all notifications were made as required, including evidence demonstrating the necessity of any delay. o. Business Associate’s Insurance and Notification Costs. i. Business Associate shall bear all costs of a Breach response including, without limitation, notifications, and shall maintain insurance to cover: A. loss of PHI data; B. Breach notification requirements specified in HIPAA Rules and in §24-73-103, C.R.S.; and C. claims based upon alleged violations of privacy rights through improper use or disclosure of PHI. ii. All such policies shall meet or exceed the minimum insurance requirements of the Contract or otherwise as may be approved by Covered Entity (e.g., occurrence basis, combined single dollar limits, annual aggregate dollar limits, additional insured status, and notice of cancellation). iii. Business Associate shall provide Covered Entity a point of contact who possesses relevant Information Security knowledge and is accessible 24 hours per day, 7 days per week to assist with incident handling. iv. Business Associate, to the extent practicable, shall mitigate any harmful effect known to Business Associate of a Use or Disclosure of PHI by Business Associate in violation of this Agreement. p. Subcontractors and Breaches. i. Business Associate shall enter into a written agreement with each of its Subcontractors and agents, who create, receive, maintain, or transmit PHI on behalf of Business Associate. The agreements shall require such Subcontractors and agents to report to Business Associate any use or disclosure of PHI not provided for by this Agreement, including Security Incidents and Breaches of Unsecured Protected Health Information, on the first day such Subcontractor or agent knows or should have known of the Breach as required by 45 C.F.R. 164.410. ii. Business Associate shall notify Covered Entity of any such report and shall provide copies of any such agreements to Covered Entity on request. q. Data Ownership. i. Business Associate acknowledges that Business Associate has no ownership rights with respect to the PHI. ii. Upon request by Covered Entity, Business Associate immediately shall provide Covered Entity with any keys to decrypt information that the Business Association has encrypted and maintains in encrypted form, or shall provide such information in unencrypted usable form. Page 6 of 9 HIPAA BAA Revised August 2018 r. Retention of PHI. Except upon termination of this Agreement as provided in Section 5, below, Business Associate and its Subcontractors or agents shall retain all PHI throughout the term of this Agreement, and shall continue to maintain the accounting of disclosures required under Section 3.h, above, for a period of six years. 4. OBLIGATIONS OF COVERED ENTITY a. Safeguards During Transmission. Covered Entity shall be responsible for using appropriate safeguards including encryption of PHI, to maintain and ensure the confidentiality, integrity, and security of PHI transmitted pursuant to this Agreement, in accordance with the standards and requirements of the HIPAA Rules. b. Notice of Changes. i. Covered Entity maintains a copy of its Notice of Privacy Practices on its website. Covered Entity shall provide Business Associate with any changes in, or revocation of, permission to use or disclose PHI, to the extent that it may affect Business Associate’s permitted or required uses or disclosures. ii. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of PHI to which Covered Entity has agreed in accordance with 45 C.F.R. 164.522, to the extent that it may affect Business Associate’s permitted use or disclosure of PHI. 5. TERMINATION a. Breach. i. In addition to any Contract provision regarding remedies for breach, Covered Entity shall have the right, in the event of a breach by Business Associate of any provision of this Agreement, to terminate immediately the Contract, or this Agreement, or both. ii. Subject to any directions from Covered Entity, upon termination of the Contract, this Agreement, or both, Business Associate shall take timely, reasonable, and necessary action to protect and preserve property in the possession of Business Associate in which Covered Entity has an interest. b. Effect of Termination. i. Upon termination of this Agreement for any reason, Business Associate, at the option of Covered Entity, shall return or destroy all PHI that Business Associate, its agents, or its Subcontractors maintain in any form, and shall not retain any copies of such PHI. ii. If Covered Entity directs Business Associate to destroy the PHI, Business Associate shall certify in writing to Covered Entity that such PHI has been destroyed. iii. If Business Associate believes that returning or destroying the PHI is not feasible, Business Associate shall promptly provide Covered Entity with notice of the conditions making return or destruction infeasible. Business Associate shall continue to extend the protections of Page 7 of 9 HIPAA BAA Revised August 2018 Section 3 of this Agreement to such PHI, and shall limit further use of such PHI to those purposes that make the return or destruction of such PHI infeasible. 6. INJUNCTIVE RELIEF Covered Entity and Business Associate agree that irreparable damage would occur in the event Business Associate or any of its Subcontractors or agents use or disclosure of PHI in violation of this Agreement, the HIPAA Rules or any applicable law. Covered Entity and Business Associate further agree that money damages would not provide an adequate remedy for such Breach. Accordingly, Covered Entity and Business Associate agree that Covered Entity shall be entitled to injunctive relief, specific performance, and other equitable relief to prevent or restrain any Breach or threatened Breach of and to enforce specifically the terms and provisions of this Agreement. 7. LIMITATION OF LIABILITY Any provision in the Contract limiting Contractor’s liability shall not apply to Business Associate’s liability under this Agreement, which shall not be limited. 8. DISCLAIMER Covered Entity makes no warranty or representation that compliance by Business Associate with this Agreement or the HIPAA Rules will be adequate or satisfactory for Business Associate’s own purposes. Business Associate is solely responsible for all decisions made and actions taken by Business Associate regarding the safeguarding of PHI. 9. CERTIFICATION Covered Entity has a legal obligation under HIPAA Rules to certify as to Business Associate’s Information Security practices. Covered Entity or its authorized agent or contractor shall have the right to examine Business Associate’s facilities, systems, procedures, and records, at Covered Entity’s expense, if Covered Entity determines that examination is necessary to certify that Business Associate’s Information Security safeguards comply with the HIPAA Rules or this Agreement. 10. AMENDMENT a. Amendment to Comply with Law. The Parties acknowledge that state and federal laws and regulations relating to data security and privacy are rapidly evolving and that amendment of this Agreement may be required to provide procedures to ensure compliance with such developments. i. In the event of any change to state or federal laws and regulations relating to data security and privacy affecting this Agreement, the Parties shall take such action as is necessary to implement the changes to the standards and requirements of HIPAA, the HIPAA Rules and other applicable rules relating to the confidentiality, integrity, availability and security of PHI with respect to this Agreement. ii. Business Associate shall provide to Covered Entity written assurance satisfactory to Covered Entity that Business Associate shall adequately safeguard all PHI, and obtain Page 8 of 9 HIPAA BAA Revised August 2018 written assurance satisfactory to Covered Entity from Business Associate’s Subcontractors and agents that they shall adequately safeguard all PHI. iii. Upon the request of either Party, the other Party promptly shall negotiate in good faith the terms of an amendment to the Contract embodying written assurances consistent with the standards and requirements of HIPAA, the HIPAA Rules, or other applicable rules. iv. Covered Entity may terminate this Agreement upon 30 days’ prior written notice in the event that: A. Business Associate does not promptly enter into negotiations to amend the Contract and this Agreement when requested by Covered Entity pursuant to this Section; or B. Business Associate does not enter into an amendment to the Contract and this Agreement, which provides assurances regarding the safeguarding of PHI sufficient, in Covered Entity’s sole discretion, to satisfy the standards and requirements of the HIPAA, the HIPAA Rules and applicable law. b. Amendment of Appendix. The Appendix to this Agreement may be modified or amended by the mutual written agreement of the Parties, without amendment of this Agreement. Any modified or amended Appendix agreed to in writing by the Parties shall supersede and replace any prior version of the Appendix. 11. ASSISTANCE IN LITIGATION OR ADMINISTRATIVE PROCEEDINGS Covered Entity shall provide written notice to Business Associate if litigation or administrative proceeding is commenced against Covered Entity, its directors, officers, or employees, based on a claimed violation by Business Associate of HIPAA, the HIPAA Rules or other laws relating to security and privacy or PHI. Upon receipt of such notice and to the extent requested by Covered Entity, Business Associate shall, and shall cause its employees, Subcontractors, or agents assisting Business Associate in the performance of its obligations under the Contract to, assist Covered Entity in the defense of such litigation or proceedings. Business Associate shall, and shall cause its employees, Subcontractor’s and agents to, provide assistance, to Covered Entity, which may include testifying as a witness at such proceedings. Business Associate or any of its employees, Subcontractors or agents shall not be required to provide such assistance if Business Associate is a named adverse party. 12. INTERPRETATION AND ORDER OF PRECEDENCE Any ambiguity in this Agreement shall be resolved in favor of a meaning that complies and is consistent with the HIPAA Rules. In the event of an inconsistency between the Contract and this Agreement, this Agreement shall control. This Agreement supersedes and replaces any previous, separately executed HIPAA business associate agreement between the Parties. 13. SURVIVAL Provisions of this Agreement requiring continued performance, compliance, or effect after termination shall survive termination of this contract or this agreement and shall be enforceable by Covered Entity. Page 9 of 9 HIPAA BAA Revised August 2018 APPENDIX TO HIPAA BUSINESS ASSOCIATE AGREEMENT This Appendix (“Appendix”) to the HIPAA Business Associate Agreement (“Agreement”) is s an appendix to the Contract and the Agreement. For the purposes of this Appendix, defined terms shall have the meanings ascribed to them in the Agreement and the Contract. Unless the context clearly requires a distinction between the Contract, the Agreement, and this Appendix, all references to “Contract” or “Agreement” shall include this Appendix. 1. PURPOSE This Appendix sets forth additional terms to the Agreement. Any sub-section of this Appendix marked as “Reserved” shall be construed as setting forth no additional terms. 2. ADDITIONAL TERMS a. Additional Permitted Uses. In addition to those purposes set forth in the Agreement, Business Associate may use PHI for the following additional purposes: i. Reserved. b. Additional Permitted Disclosures. In addition to those purposes set forth in the Agreement, Business Associate may disclose PHI for the following additional purposes: i. Reserved. c. Approved Subcontractors. Covered Entity agrees that the following Subcontractors or agents of Business Associate may receive PHI under the Agreement: i. Reserved. d. Definition of Receipt of PHI. Business Associate’s receipt of PHI under this Contract shall be deemed to occur, and Business Associate’s obligations under the Agreement shall commence, as follows: i. Reserved. e. Additional Restrictions on Business Associate. Business Associate agrees to comply with the following additional restrictions on Business Associate’s use and disclosure of PHI under the Contract: i. Reserved. f. Additional Terms. Business Associate agrees to comply with the following additional terms under the Agreement: i. Reserved. -1- ORDINANCE NO. 108, 2020 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS TO CLARIFY UTILITY ACCOUNTS, BILLING AND COLLECTIONS WHEREAS, the City Council is empowered and directed by Article XII, Section 6, of the City Charter to fix, establish, maintain and provide for the collection of such rates, fees or charges for utility services furnished by the City as will produce revenues sufficient to pay the costs, expenses and other obligations of the electric utility, as set forth therein; and WHEREAS, Chapter 26 of the City Code regulates and governs the provision of utility services; and WHEREAS, Chapter 26, Article XII, of the City Code sets forth the procedures and conditions for billing and collection of fees and charges for utility services, including resolution of delinquent balances and service disconnection, and terms for assessing and collecting fees and charges due for delivery of specified utility services; and WHEREAS, such provisions require updating and modification from time to time, for purposes of clarification, correction of errors and to ensure the Code remains a dynamic document capable of responding to issues identified by staff, customers, and public assistance agencies, and changes in technology for delivering utility services; and WHEREAS, Fort Collins Utilities staff has identified provisions of Chapter 26 of the City Code where clarification of procedures and conditions for billing and collection are required to better inform customers and align with current utility practices coinciding with delivery of utility services to qualified customers on whose behalf the City receives Colorado Low-Income Energy Assistance Program (LEAP) and other restricted utility program assistance funds; and WHEREAS, on August 13, 2020, the Energy Board reviewed and provided feedback to staff regarding the proposed City Code revisions clarifying billing and collection practices; and WHEREAS, on August 20, 2020, the Water Board reviewed and provided feedback to staff regarding the proposed City Code revisions clarifying billing and collection practices; and WHEREAS, the City Council has determined it is desirable to maintain appropriate utility service billing and collection practices, and that clarification of such practices in the City Code, as set forth herein, is in furtherance of the benefits provided by the City to its utility ratepayers. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. -2- Section 2. That Subsection 26-711(a) of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-711. - Definitions; application. (a) The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in § 26-1 and this Section: Financial Officer shall mean the head of the Financial Administration Unit or the designated representative of the Financial Officer. Program assistance funds shall mean monies received through local, state, or federal grants, credits, reimbursements, or other programs that provide financial support for qualified public utility customers served by the City. . . . Section 3. That Subsection 26-712(a) of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-712. - Utility bill and account charges authorized; procedures. (a) The fees and charges established by this Code for services from the electric, stormwater, water and wastewater utilities may be billed together in one (1) utility bill with such fees and charges separately itemized and shall be billed to utility users not less than once each month. Service fees and charges for telecommunication facilities and services may be billed separately or included on a combined utility bill with other utility services, and such amounts shall be itemized separately and be payable in addition to all combined utility fees and charges. The Financial Officer shall collect, receive and disburse all such fees and charges for the separate utility funds in accordance with the Charter and related provisions of this Code. Other than when applying program assistance funds restricted to specific utility products or services delivered to qualified customers, customer utility payments shall be applied uniformly to all combined non- telecommunication utility service fees and charges due. . . . Section 4. That Subsections 26-713 (c) and (e) of the Code of the City of Fort Collins are hereby amended to read as follows: Sec. 26-713. - Due date; delinquency. . . . (c) In case the user of any non-telecommunication services utility fails to pay a utility bill by the due date or fails to pay any other utility fee, charge, deposit or assessment prescribed by this Code, the City may disconnect either or both of the user's water and electric services to the -3- property and has the right to enter upon private property to accomplish this purpose. Such disconnections shall nevertheless be conditioned upon the terms associated with program assistance funds received by the City on behalf of qualified customers. . . . (e) Unless otherwise required by terms associated with program assistance funds received by the City on behalf of qualified customers, tThe terminated utility service will be restored after the customer or subscriber has paid in full all delinquent fees and charges, plus collection costs, together with the expenses of discontinuing and restoring service, including costs of after-hours labor and materials and specified fees, as provided in this Article. . . . Introduced, considered favorably on first reading, and ordered published this 1st day of September, A.D. 2020, and to be presented for final passage on the 15th day of September, A.D. 2020. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 15th day of September, A.D. 2020. __________________________________ Mayor ATTEST: _______________________________ City Clerk