Contracts - Sched · Contract Types Contracts Worth a Second Look . Standard Terms

Contracts Worth a Second Look

AGRIP, March 7, 2018

Robyn Sykes, MCIT Executive

Director [email protected]

Jennifer Wolf, MCIT Staff Counsel

for Risk Control [email protected]

THE INFORMATION CONTAINED IN THIS HANDOUT IS

INTENDED FOR GENERAL INFORMATION PURPOSES ONLY

AND DOES NOT CONSTITUTE LEGAL OR COVERAGE ADVICE

ON ANY SPECIFIC MATTER.

Today’s Agenda Contracts worth a second look

Today’s Agenda

Discuss policy and practices for contracts

regarding

Governance

Professional Services

Technology

Association Agreements

Types of Contracts Contracts Worth A Second Look

Governance Contracts

Contracts that typically involve pool

operations that rise to Board level

Reinsurer

Investment

Actuary

Outside General Counsel

Broker

Third Party Administrator

Technology Contracts

Software

Firewall

Encryption

Cloud providers

Building security

HVAC

Professional Services

Pharmacy Benefit Manager/PBM

Bill Review

Independent Medical Exam Providers

Independent Adjusters

Outside counsel (not GC)

Association Relationships

Embedded

Sponsored

Understood

To Have or Not to Have a

Contract Policy Contracts Worth a Second Look

Contract Policy

Value in having one?

Contract Policy

Consider delineating roles and

responsibilities

Board role

Subject matter expert

Legal—when to retain outside counsel

Contract Policy

Requests for Proposals (RFP)

Required by statute or policy

If required by policy:

Purpose for requirement

How often required

Which contracts

Build in flexibility

Contract Policy Consider putting in RFP

Required Contract Terms

Insurance

Indemnification

Subcontractors

Access to Data

Security

Confidentiality/Sunshine law

Review all responses for “exceptions” to the RFP

Contract Policy- Terms

Policy can establish key terms:

Minimum/Types Insurance Requirements

Recommended Indemnification language

Assignment/Subcontractors

Legally Required provisions:

Audit,

anti-discrimination,

sunshine laws

Venue/Choice of Law

Contract Policy

Build in flexibility

Who gives permission for exceptions from

recommended standards

Considerations for All

Contract Types Contracts Worth a Second Look

Standard Terms

Terms

Scope of Service

Deliverables/Reports to Pool

Length of Contract

Exit/Termination Provision

Insurance

Even if not “technology” provisions for

breach, sunshine laws, security of data

Standard Terms

Indemnification

Assignment/Subcontract

Legally mandated provisions/obligations

of Pool

Breach of contract and remedies

Standard Terms

If access to data (physical and virtual):

Ownership

Storage

Security

Breach

Insurance

Records Retention/Destruction

Standard Terms

Things to watch out for:

Limitation of liability

Cap on types and amounts of damage

Special Considerations Contracts Worth a Second Look

Governance

To bid or not bid

Length of contract

TPAs

Reinsurance

Confidentiality

Technology Contract Limitations on Liability

Security

Audit Reports

Technology Contracts

Service Level Agreement

Service Availability

Scheduled downtime

Unscheduled downtime

Compensation for non-compliance

License agreements

Ensuring use matches license

Technology Contracts

Termination/Wind Down

Data held by vendor

Information known to vendor

Security clauses survive contract

Assistance with new vendor

Litigation holds

Professional Services

Master Professional Services Agreement

Frequently used services

How frequent to renegotiate

Term/Exit provisions

Reinsurer

Treaty sufficient?

How frequently going to bid

Associational Agreements

Best to identify relationship in writing

Consideration

Discussion Contracts Worth a Second Look