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HomeMy WebLinkAboutCOLORADO IN MOTION - CONTRACT - AGREEMENT MISC - COLORADO IN MOTION (2)AMENDMENT NO. 01 TO AGREEMENT THIS AMENDMENT NO. 01 TO AGREEMENT (“Amendment No. 01”) is by and between Colorado Physical Therapy Specialists, LLC dba Colorado In Motion, a Colorado limited liability company located at 210 West Magnolia, Suite 110 Fort Collins CO 80521 (“Service Provider”) and the City of Fort Collins (“City”), collectively (the “Parties”). WHEREAS: The Parties entered into a Services Agreement (“Agreement”) effective May 1, 2017 for functional employment testing as a part of the City’s work injury and disability management program, to, among other reasons, effectuate a reduction of on-the-job injuries by trying to determine if an applicant or employee can safely perform the essential functions of the job. WHEREAS: The Service Provider has licensed with the ©WorkSTEPS® proprietary functional employment testing program (“WorkSTEPS”) that the City desires to utilize for its functional employment testing program, and WHEREAS: The Service Provider desires to assist the City in implementing the WorkSTEPS functional employment-testing program, WHEREAS: The Parties wish to amend the Agreement to clarify certain elements of the “WorkSTEPS” program. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE MUTUAL PROMISES HEREIN CONTAINED, THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS: 1. Job Analyses. Job analyses is the foundation of the City’s functional employment testing program. A job analyses is a measurement of the physical demands and requirements of the essential functions of a specific job. Accurate and current job analyses are the City’s responsibility. Job Specific Authorization Forms that document essential function requirements must be executed by the City’s representative and provided to WorkSTEPS before testing can begin. Service Provider agrees to provide City-approved Job Specific Authorization Forms to WorkSTEPS on the City's behalf. The Service Provider recommends the City use professionals experienced in assisting with job analyses or other trained and certified ergonomic assessment specialists to assist in the preparation of job analyses and documentation of essential functions. The job analyses should be based on a close, careful examination of the specific job by an individual trained and competent in making the physical measurements of the essential functions of the specific job. The job analyses provides specific job content validity to City’s functional employment testing program, which seeks to simulate the specific physical demands necessary to perform essential job functions. Accurate and up-to-date job analyses help ensure that employment decisions are based on objective, sound, individual, and job specific information. Likewise, accurate and up-to-date job analyses helps ensure that no individual or group of individuals is discriminated against. Service Provider warrants it has the experience and competence to prepare job analyses and documentation of essential job functions in accordance with the foregoing. Accordingly, the City and Service Provider agree that Service Provider shall perform job analysis, as further described in Exhibit "1", attached hereto and incorporated herein by this reference. 2. Ownership. All data and information generated by the WorkSTEPS Functional Employment Testing Program for the City shall be the property of WorkSTEPS and the City. The Service Provider and WorkSTEPS shall use best efforts to keep such data or information in a legally compliant manner pursuant to all state or federal laws affecting such data or information. The City may keep copies of data or information for use in its normal course of business, but the City hereby agrees that should it have possession of any WorkSTEPS materials, forms, procedures, protocols, or information, that is marked proprietary or confidential the City shall not disclose such 1 DocuSign Envelope ID: FEBD45B9-B30D-433E-8459-1450B0D19BC8 information, except as otherwise required by law. The City shall use reasonable efforts to see that such is not utilized for any purpose that would reasonably be deemed in competition with WorkSTEPS. Notwithstanding, the obligations of this Section shall be limited to the extent required by the Colorado Open Records Act. C.R.S. § 24-72-200.1, et seq. 3. Confidentiality. The Service Provider shall keep all information or materials received from the City strictly confidential, and shall not divulge any such information or materials without the express written consent of City. 4. Release of Data. Notwithstanding any prohibition contained within this Section, WorkSTEPS, Service Provider or the City may release data or information as contemplated herein should a state or federal court of law require it. WorkSTEPS may also release data or information received from the testing of City’s employees for any legitimate business purpose, provided that (i) any personal information is redacted, (ii) any reference to the City is redacted; and (iii) that all state and federal laws regarding such data or information are strictly followed. 5. Proprietary Marks. The City acknowledges that it has been advised that WorkSTEPS believes the WorkSTEPS name, and its marks and proprietary software, protocols and testing process are federally trademarked and copyrighted. The City agrees that WorkSTEPS proprietary software, protocols, processes, procedures, including modifications thereto, are, and shall be considered “proprietary” and “confidential information.” WorkSTEPS confidential and proprietary information will be provided to City for the sole purpose of having the Services Provider provide functional employment testing services to the City. The City acknowledges, agrees and confirms that the City’s disclosure or misappropriation of WorkSTEPS proprietary information could cause irreparable injury to WorkSTEPS, and City hereby expressly agrees that it will not use the confidential and proprietary information provided to City, except for the express purposes described in this Agreement. 6. Protected Health Information. The Service Provider may receive from the City health information that is protected under applicable state and/or federal law, including without limitation, protected health information (“PHI”) as defined in the regulations at 45 C.F.R. Parts 160 and 164 (the “Privacy Standards”) promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The Service Provider agrees not to use or disclose (or permit the use or disclosure of) PHI in a manner that would violate the requirements of the Privacy Standards if the PHI were used or disclosed by the City in the same manner. The Service Provider shall use appropriate safeguards to prevent the use or disclosure of PHI other than as expressly permitted under this Agreement. 7. Use of PHI. The Service Provider will use PHI solely for the City’s benefit and only (i) for the purpose of performing services for City and (ii) as necessary for the proper management and administration of the City or to carry out its legal responsibilities, provided that such uses are permitted under federal and state law. The City shall retain all rights in the PHI not granted herein. 8. Disclosure of PHI. The Service Provider may disclose PHI as necessary to perform its obligations under this Agreement and as permitted by law, provided that Provider shall in such case: (a) obtain reasonable assurances from any person to whom the information is disclosed that it will be held confidential and further used and disclosed only as required by law or for the purpose for which it was disclosed to the person or entity; (b) agree to immediately notify the City of any instances of which it is aware that PHI is being used or disclosed for a purpose that is not otherwise provided for in this Agreement or for a purpose not expressly permitted by the Privacy Standards; and (c) ensure that all disclosures of PHI are subject to the principle of “minimum and necessary use and disclosure,” i.e., only the minimum PHI that is necessary to accomplish the intended purpose may be disclosed. If the Service Provider discloses PHI received from the City, or created or received by the Service Provider on behalf of the City, to agents, including a subcontractor (collectively, “Recipients”), the Service Provider shall require Recipients to agree in 2 DocuSign Envelope ID: FEBD45B9-B30D-433E-8459-1450B0D19BC8 writing to the same restrictions and conditions that apply to the Service Provider under this Agreement. 9. Remedies. The Parties agree that (i) the covenants and restrictions contained herein are of material consideration to the Agreement and are reasonable and necessary to protect and preserve the interest of both Parties; (ii) irreparable loss and damage will result from any breach hereof; (iii) monetary damages will not be sufficient to compensate a Party for any such default or breach by the other Party; and (iv) in addition to all other remedies provided at law or in equity, a Party shall be entitled to seek and obtain temporary, preliminary and permanent injunctive relief in a court of law to prevent and restrain any breach or contemplated or threatened breach of and to specifically enforce the provisions of this Section. Such remedies shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which a Party is or may be entitled at law or in equity or under this Agreement. 10. Performance of the Test. The City acknowledges and understands that the tests are to be performed by medical providers that are independent contractors that have been licensed by WorkSTEPS to perform the tests identified. 11. Non-solicitation of Employees. The City acknowledges that the Service Provider has invested considerable time and financial resource in the training, education, and certification of the professional staff necessary to deliver the services set forth on Attachment "2", attached hereto and incorporated into this Agreement. During the term of this Agreement, and for a period of one year after its termination, City agrees that it shall not actively or knowingly solicit or make an offer of employment to any of Providers’ employees. 12. Use of Information after Termination. Without limiting the generality of this Section, the Parties agree that after the termination or expiration of the Agreement, such Parties will not use the proprietary, confidential information of the other Party to provide the same or similar services to any person (unless and until such information ceases to be proprietary and confidential through no fault of the Party seeking to use the same), however, nothing in this Section shall prohibit the City or its affiliates, after termination of the Agreement, from providing a service to the City similar to the services provided by the Service Provider hereunder as long as neither City nor its affiliates uses the proprietary, confidential information of WorkSTEPS in so doing. 13. Employment Decision. City acknowledges and understands that this Agreement contemplates the functional employment testing of prospective employees and/or actual employees of City. That City, as employer of the individuals tested, has a significant role, both before and after the test, including, but not limited to, selection of the essential functions of the applicable job, the writing of job descriptions, if any, in communicating with the individuals to be tested in a consistent manner, in making appropriate employment decisions based on test results and in properly processing and advising those individuals tested. 14. Adherence to Laws. The Parties agree to follow state and federal employment laws, regulations and practices including, but not limited to, appropriate procedures related to employment testing as set forth in the Americans’ With Disabilities Act and any and all applicable laws. The City further acknowledges that the City, not the Provider, nor WorkSTEPS is responsible for making employment decisions concerning any post-employment candidates’ or current employees’ suitability for employment or continued employment and for making decisions concerning reasonable accommodations. Except as expressly amended by this Amendment No. 01, all other terms and conditions of the Agreement shall remain unchanged and in full force and effect. In the event of a conflict between the terms of the Agreement and this Amendment No. 01, this Amendment No. 01 shall prevail. 3 DocuSign Envelope ID: FEBD45B9-B30D-433E-8459-1450B0D19BC8 IN WITNESS WHEREOF, the parties have executed this Amendment No. 01 the day and year show. COLORADO PHYSICAL THERAPY SPECIALISTS, LLC dba COLORADO IN MOTION CITY OF FORT COLLINS, COLORADO By, By, Industrial Health Director/Colorado In Motion Title Dona J Leonard OT MS Printed Signature ATTEST: ______________________ APPROVED AS TO FORM: ______________________ 4 DocuSign Envelope ID: FEBD45B9-B30D-433E-8459-1450B0D19BC8 Assistant City Attorney Purchasing Director Gerry Paul City Clerk Exhibit "1" Services For Job Analysis City understands that a job analysis must be completed so that Colorado In Motion (“Service Provider”) may perform post-offer and post-employment testing pursuant to Service Provider employment testing protocols. The Service Provider must conduct a job analysis of the positions for which employment tests are performed to ensure that the employment test is measuring the candidate’s or employee’s ability to perform essential job functions. It is imperative that the City provides accurate information to the Service Provider regarding the essential job functions for specific job positions. The EEOC provides a discussion relating to the identification of essential job functions in its Technical Assistance Manual. (EEOC ADA Technical Assistance Manual II at 13-22). The City acknowledges that the City is responsible for familiarizing itself with this section of the ADA Technical Assistance Manual and providing the Provider accurate information concerning essential job functions. Service Provider shall perform a separate job analysis for each position for which the City desires to utilize employment testing. The job analysis may include filming, weighing, and measuring tasks for the selected major job positions for the City. The City understands that the evaluation usually takes between one (1) and six (6) hours to complete depending on the complexity of the job and is billed at $150.00 per hour. The City hereby authorizes Provider to provide said job analysis for each job position for which the City will be requesting employment testing at the above referenced rate. 5 DocuSign Envelope ID: FEBD45B9-B30D-433E-8459-1450B0D19BC8 Exhibit "2" Description of Services WorkSTEPS Post Offer Testing to Include: Medical History – The job candidate is asked to complete a comprehensive medical history administered by an occupational healthcare professional that has been trained and certified in the Service Provider and WorkSTEPS program. This history includes information gathering on previous injuries and/or surgeries, previous physical therapy/chiropractor visits, etc. The employee also signs a statement that falsification of the information he/she has provided could result in the withdrawal of the conditional job offer. Musculoskeletal Examination – A WorkSTEPS certified clinician completes this portion of the exam. The exam looks at all major joints and muscle groups. Thirty (30) baseline measurements are documented. The muscle groups are checked for strength as well as any atrophy. The shoulders, elbows, wrists, back, ankles, knees and hips are checked for signs of crepitus as well as ligament stability. In addition, the lumbar and the cervical spine is also checked. Flexion, extension, side bending and twisting are all measured. Visual inspection of the spine for signs of surgery is performed. Deep tendon reflexes of the biceps, triceps, patellar tendon and Achilles tendon are performed to further check for spinal cord problems. Shoulder range of motion is checked and measured as well for movement in the internal and external rational planes. The rotator cuff is also thoroughly checked. Static Grip - This portion of the tests measures grip strength and gathers baseline strength readings on the employee. Dynamic Lifting - This portion of the test gathers baseline, full motion, and strength readings. The employee is asked to lift a NIOSH box from 4 different positions. These 4 positions are lifting the box from floor to knuckle height, 12 inches off the floor to knuckle height, knuckle height to shoulder and shoulder to overhead. With each of these lifts, the employee is asked to lift the box. After the lift, they are asked if they can safely handle more weight. The employee is asked at the beginning to try and lift their maximum safe lift. The employee is shown and instructed on the proper lifting techniques for each of these lifting positions. Job Specific Tasks - This portion tests assesses the job candidate’s ability to perform the essential functions of the job he/she is applying for. The essential functions for a job description are created through job analysis that is performed by Service Provider. The employer is obligated to participate in the job analysis process by approving and verifying that the essential functions have been properly identified and are accurate. Fit For Duty Testing As Part Of A Return To Work (“RTW”) Program To Include: Service Provider will be conducting Fit-for-Duty (Post-Injury RTW) Tests on existing employees to include the following: • Any reported injury, illness, or condition that gives the employer reasonable belief that the employee’s ability to perform essential job functions will be impaired or create a direct threat to health and safety. • This category may also include testing at the request of the employer because, although there has been no formal injury or medical condition reported, the employer has observed current performance problems or has received reliable reports of performance problems indicating that the employee may not be able to perform essential job functions, or may pose a direct threat to the health and safety of the employee or others. 6 DocuSign Envelope ID: FEBD45B9-B30D-433E-8459-1450B0D19BC8 • Even if the employee has fully “recovered” from injury or illness and no longer considers him or herself “injured”, for documentation purposes the test should be identified as a “post-injury” fit for duty, or an injured worker, because that was the trigger for the test. • When testing an employee post-injury or illness the Service Provider will: o Use the Provider Fit for Duty Physical Capacity Consent Form o Use the Provider Post Injury Fit for Duty Medical History Interview o Not perform “routine” medical measures, including heart rate and blood pressure, that are not related to the injury or condition for which the employee is being seen, or that are not contributing to a job related functional deficit. o Not perform the standard “baseline” tests such as step test, Sorenson’s or grip if they are not related to the injured area. o Perform only the dynamic lift postures that are considered qualifying criteria. o Perform any and all standard job specific tasks for the position, and expand to include any additional essential function tasks that could be impacted by their injury or condition. 7 DocuSign Envelope ID: FEBD45B9-B30D-433E-8459-1450B0D19BC8