Western Medical Group Inc - Medical Review Officers (2005) 1
PROFESSIONAL SERVICES AGREEMENT TO PROVIDE
MEDICAL REVIEW OFFICER SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT TO PR VIDE MEDICAL
REVIEW OFFICER SERVICES is made and entered into this Y
a of 1 'c -tk
2005, by and between CITY OF RANCHO PALOS VERDES hereinafter referred to as
"CITY", and Western Medical Group, Inc., hereafter referred to as "MRO".
RECITALS
A. CITY has adopted a substance abuse and drug testing policy for
prospective CITY personnel, and desires to utilize the services of MRO as an
independent contractor to provide medical review officer services in connection with
substance abuse and drug testing of prospective CITY personnel.
B. MRO provides medical review officer services to companies and public
agencies to support workplace drug testing programs and policies.
C. MRO represents that it is fully qualified to perform such services by virtue
of its experience and the training, education and expertise of its principals and
employees.
D. CITY desires to retain MRO and MRO desires to serve CITY to perform
these services, subject to the terms contained herein.
NOW, THEREFORE, IN CONSIDERATION of the covenants hereinafter set
forth, the parties hereto mutually agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Description of Services
(a) In accordance with federal regulations, the primary role of the
medical review officer under this Agreement is to review and interpret test results
obtained though CITY's substance abuse and drug testing policy.
(b) MRO shall provide medical review officer services in connection
with substance abuse and drug testing of prospective CITY personnel, in a competent,
professional and satisfactory manner in accordance with the standards prevalent in the
industry and applicable state and federal law. The preliminary scope of services is
described in the Protocol attached hereto as Exhibit "A" and incorporated herein by this
reference.
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(c) In the event of any inconsistency or conflict between any provision
of this Agreement (including but expressly not limited to, the preliminary Protocol
attached as Exhibit "A"), and any applicable federal or state law, the terms of the federal
or state law shall prevail. MRO and CITY shall comply with all applicable provisions of
federal and state law, as such laws exist as of the effective date of this Agreement, and
as such laws may be amended from time to time.
(d) The primary medical review officer responsibilities and duties under
this Agreement shall be carried out by Paz Eliat, M.D.
1.2 Schedule of Work
Upon receipt of written Notice to Proceed from CITY, MRO shall perform
with due diligence the services requested by CITY on an as-needed basis.
1.3 Standard of Performance
(a) MRO shall perform all services under this Agreement in accordance
with the standard of care generally exercised by like professionals under similar
circumstances and in a manner reasonably satisfactory to CITY.
(b) MRO represents that MRO, including but not limited to Dr. Eilat and
any person performing services under this Agreement, each has all necessary
credentials, qualifications and training to perform services under this Agreement as
required by applicable provisions of federal and state law, including but expressly not
limited to, Title 49 Code of Federal Regulations ("CFR"), Part 40 (Sections 40.1, et
seq.). MRO shall provide, upon reasonable request by CITY, any and all documents
reflecting the credentials and qualifications of MRO and its personnel, and any other
person performing services on behalf of MRO, needed to perform the medical review
officer services required under this Agreement, as required under any applicable
provisions of federal and/or state law.
1.4 Confidentiality
(a) MRO acknowledges and understands the confidential nature of
substance abuse and drug testing (including but expressly not limited to urine specimen
testing). MRO agrees to take all reasonable steps necessary to ensure that information
concerning substance abuse and drug testing is not disclosed without any prior written
authorization or consent of the affected prospective employee required under any
applicable federal and/or state law, and to otherwise comply with any applicable
confidentiality provisions of federal and/or state law, including but expressly not limited
to, Title 49 Code of Federal Regulations ("CFR"), Part 40 (Sections 40.1, et seq.), the
Health Insurance and Portability Act of 1996 ("HIPAA"), and the Confidentiality of
Medical Information Act, California Civil Code Sections 56, et seq.
(b) MRO further covenants that all data, documents, discussion, or
other information developed or received by MRO or provided for performance of this
Agreement, whether written or oral, are deemed confidential and shall not be disclosed
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by MRO to any person or entity without prior written authorization or consent of CITY.
CITY shall timely grant such authorization or consent if disclosure is required by law.
(c) MRO's covenants under this Section 1.4 shall survive the
termination of this Agreement.
ARTICLE 2
COMPENSATION
2.1 Fee
(a) CITY agrees to compensate MRO the sum of eight dollars ($8.00)
per positive MRO test report as discussed between MRO and CITY.
(b) In addition to the charges set forth in Section 2.1(a), CITY agrees to
pay MRO additional charges (at the rate of$300.00/hour or pro-rated at quarter hour
increments)for time actually incurred by MRO in program-related issues including
audits by CITY and/or any governmental agency such as the U.S. Department of
Transportation ("DOT"), consultation with CITY on drug testing issues, and support of
arbitration, grievance and appeal proceedings.
(c) Should any legal action be brought between CITY and any third
party other than MRO pertaining to or involving the services provided under this
Agreement, which such legal action requires the testimony of MRO and there is no
allegation that MRO was negligent, willful or otherwise wrongful, CITY shall compensate
MRO for its testimony and preparation to testify at the MRO's hourly rates as set forth in
subdivision (b) of this Section 2.1.
2.2 Payment Address
All payments due MRO shall be paid to:
Western Medical Group, Inc.
21081 S. Western Avenue, Ste 150
Torrance, Ca., 90501
2.3 Terms of Compensation
(a) MRO shall submit invoices monthly for services provided in the
previous month. CITY agrees to pay all undisputed invoice amounts within thirty (30)
days of receipt of the invoice. CITY agrees to use its best efforts to notify MRO of any
disputed invoice amounts or claimed completion percentages within ten (10) days of the
receipt of each invoice. However, CITY's failure to timely notify MRO of a disputed
amount of claimed completion percentage shall not be deemed a waiver of CITY's right
to challenge such amount or percentage.
(b) Additionally, in the event CITY fails to pay any undisputed amounts
due MRO within forty-five (45) days after invoices are received by CITY then CITY
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agrees that MRO shall have the right to consider said default a total breach of this
Agreement, which may be terminated by MRO without liability to MRO upon ten (10)
working days advance written notice.
2.4 Additional Services
(a) CITY may request in writing that MRO perform additional services
not covered by the specific Scope of Work set forth in this Agreement, and upon MRO's
acceptance of such request, MRO shall perform such services and will be paid for such
additional services in accordance with MRO's current standard schedule of hourly rates.
All such additional work must be authorized in writing by the City Manager or his/her
designee prior to commencement of additional work.
ARTICLE 3
INDEMNIFICATION
3.1 Indemnification
(a) MRO is skilled in the professional calling necessary to perform the
services and duties agreed to be performed under this Agreement, and CITY, not being
skilled in such matters, is relying upon the skill and knowledge of MRO to perform such
services and duties.
(b) MRO agrees, at its sole cost and expense, to indemnify, defend
and hold harmless CITY, and its elected and appointed officials, officers, attorneys,
council, commissions, boards, agents, employees, designated volunteers, successors
and assigns, from any and all claims, liability or loss of any kind whatsoever, including
but not limited to damages, penalties, legal expenses and costs of expert witnesses and
MROs, resulting from any suits, claims, losses or actions brought by any person or
persons, by reason of injury to persons or property to the extent caused by, or claimed
to be caused by, directly or indirectly, the negligent or willful acts, errors or omissions of
MRO, including its officers, agents, employees, subcontractors or any person employed
by MRO. Provided that, this provision shall not require MRO to defend or indemnify
CITY for any alleged liability arising out of CITY's sole negligence or willful misconduct.
(c) MRO agrees that MRO's covenants under this Section 3.1 shall
survive the termination of this Agreement. This indemnity provision is in addition to any
other remedies which CITY may have under the law.
ARTICLE 4
INSURANCE
4.1 General Liability Insurance
MRO shall at all times during the term of the Agreement carry, maintain,
and keep in full force and effect, a policy or policies of Commercial General Liability
Insurance, with minimum limits of One Million ($1,000,000.00) Dollars for each
occurrence and in the aggregate, combined single limit, against any personal injury,
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death, loss or damage resulting from the wrongful or negligent acts by MRO. Said
policy or policies shall be issued by an insurer admitted to do business in the State of
California and rated in A.M. Best's Insurance Guide with a rating of A VII or better.
4.2 Professional Liability Insurance
MRO shall at all times during the term of this Agreement, carry, maintain,
and keep in full force and effect a policy or policies of professional liability insurance
with a minimum limit of one million ($1,000,000.00) dollars. Said policy or policies shall
be issued by an insurer admitted to do business in the State of California and rated in
A.M. Best's Insurance Guide with a rating of A VII or better.
4.3 Worker's Compensation
(a) MRO agrees to maintain in force at all times during the
performance of work under this Agreement Worker's Compensation Insurance as
required by the law. MRO shall require any subcontractor or sub-MRO similarly to
provide such Worker's Compensation Insurance for their respective employees.
(b) In the event MRO has no employees requiring MRO to provide
Workers' Compensation Insurance, MRO shall so certify to CITY in writing prior to
CITY's execution of this Agreement. CITY and its personnel shall not be responsible for
any claims in law or equity occasioned by failure of the MRO to comply with this section
or with the provisions of law relating to workers' compensation.
4.4 Notice of Cancellation
All insurance policies shall provide that the insurance coverage shall not
be canceled by the insurance carrier without thirty (30) days prior written notice to CITY.
MRO agrees that it will not cancel or reduce said insurance coverage.
4.5 Certificate of Insurance
At all times during the term of this Agreement, MRO shall maintain on file
with the City Clerk a certificate of insurance showing that the aforesaid policies are in
effect in the required amounts. The commercial general liability and professional liability
policy or policies shall contain endorsements naming CITY, its officers, agents and
employees as additional insureds.
4.6 Primary Coverage
The insurance provided by MRO shall be primary to any coverage
available to CITY. The insurance policies (other than workers' compensation and
professional liability) shall include provisions for waiver of subrogation.
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4.7 Deductibles and Self-Insured Retention
Any deductibles and self-insured retentions must be declared to and
approved by CITY. At the option of CITY, MRO shall either reduce or eliminate the
deductibles or self-insured retentions with respect to CITY, or MRO shall procure a
bond guaranteeing payment of loss and expenses.
4.8 Failure to Maintain Insurance
MRO agrees that if it does not keep the aforesaid insurance in full force
and effect, or if MRO fails to obtain such insurance within 10 (ten) days after delivery of
written notice from CITY that such insurance is not in effect, CITY may in its sole
discretion either immediately terminate this Agreement or, if insurance is available at a
reasonable cost, CITY may take out the necessary insurance and pay, at MRO's
expense, the premium thereon. As used in this Section 4.8, notice shall be deemed
delivered on the third calendar day after deposit of such written notice in the mail; if
notice is given by facsimile, notice shall be deemed immediately effective upon CITY's
receipt of faxed confirmation; and notice by personal delivery shall be deemed effective
immediately upon date and time of actual delivery to MRO. The determination whether
to terminate the Agreement or take out the necessary insurance, shall be at CITY's sole
discretion.
4.9 Subcontractors
MRO shall require that each of its subcontractors or sub-MROs maintain
insurance coverage which meets all of the requirements of this Agreement.
ARTICLE 5
TERMINATION
5.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without
cause, by either party upon thirty (30) days prior written notice. Notice shall be deemed
served three (3) calendar days after deposit in the United States Mail of a certified or
registered letter, postage prepaid, return receipt requested, addressed to the other
party, or immediately upon personal service of such notice to the other party, at the
address set forth in Article 7.17 of this Agreement.
(b) In the event of termination or cancellation of this Agreement by
MRO or CITY, due to no fault or failure of performance by MRO, MRO shall be paid
compensation for all services performed by MRO, in an amount to be determined as
follows: for work done in accordance with all of the terms and provisions of this
Agreement, MRO shall be paid an amount equal to the percentage of services
performed prior to the effective date of termination or cancellation in accordance with
the work items; provided, in no event shall the amount of money paid under the
foregoing provisions of this paragraph exceed the amount which would have been paid
to MRO for the full performance of the services described in Article 2.1.
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ARTICLE 6
OWNERSHIP OF DOCUMENTS
6.1 Ownership of Documents and Work Product
(a) Except as otherwise expressly provided by law, all records shall
remain the property of CITY, and CITY shall have free access at all reasonable times as
to such records, including but expressly not limited to the right to examine and audit the
same, and to make transcripts therefrom, and to inspect all program data, documents,
proceedings and activities.
6.2 Retention of Records
(a) MRO shall maintain full and accurate records in accordance with
this Section 6.2.
(b) MRO shall maintain full and accurate records with respect to all
matters covered under this Agreement, for a minimum of five (5) years from date of
creation of each record. In addition, MRO shall retain such records in accordance with
the following requirements:
i. Where any applicable provision of federal and/or state law
requires retention of records for a period of time longer than five (5) years, MRO shall
maintain full and accurate records for such longer period of time required by such
federal or state law.
ii. If such records relate to any administrative proceeding or
litigation, MRO shall retain relevant records during any period of litigation and/or
administrative proceeding, until final disposition of such litigation and/or administrative
proceeding, or five (5) years, whichever is longer. As used herein, the term
"administrative proceeding" shall include any grievance process, any arbitration, and
any administrative proceeding before CAL-OSHA, the California Department of Fair
Employment and Housing, the California Workers Compensation Appeals Board,
OSHA, the U.S. Equal Employment Opportunity Commission, or any other local, state
and/or federal agency of any nature whatsoever.
iii. MRO shall retain such records for the longer of either five (5)
years or termination of this Agreement.
(c) Notwithstanding any other provision of this Agreement, at the end
of the retention period required by this Section 6.2, MRO shall turn over all records to
CITY, shall deliver the records to a third party, or shall destroy them, as directed by
CITY in writing.
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ARTICLE 7
GENERAL PROVISIONS
7.1 Representation
A CITY representative shall be designated by the City Manager and a
MRO representative shall be designated by MRO as the primary contact person for
each party regarding performance of this Agreement.
7.2 Non-Discrimination and Equal Employment Opportunity
In the performance of this Agreement, MRO shall not discriminate against
any employee, subcontractor, or applicant for employment because of race, color,
creed, religion, sex, marital status, national origin, ancestry, age, physical or mental
handicap, physical disability, mental disability, medical condition, marital status, sex, or
sexual orientation. MRO shall take affirmative action to ensure that subcontractors and
applicants are employed, and that employees are treated during employment, without
regard to their race, color, creed, religion, sex, marital status, national origin, ancestry,
age, physical or mental handicap, physical disability, mental disability, medical
condition, marital status, sex, or sexual orientation. MRO shall comply with all
applicable provisions of the California Fair Employment Practices Act (California
Government Code Sections 12940-12948) and the applicable equal employment
provisions of the Civil Rights Act of 1964 (42 U.S.C. 200e-217), and the Americans with
Disabilities Act of 1992 (42 U.S.C. § 11200, et seq.).
7.3 Personnel
MRO represents that it has, or shall secure at its own expense, all
personnel required to perform MRO's services under this Agreement. All of the services
required under this Agreement will be performed by MRO or under its supervision, and
all personnel engaged in the work shall be qualified to perform such services. Any
person who performs professional services pursuant to this Agreement shall be licensed
by the State of California and in good standing. MRO may associate with or employ
associates, subcontractors or sub-MROs in the performance of its services under this
Agreement, but at all times shall be responsible for their services and performance of
this Agreement.
7.4 Conflicts of Interest
MRO agrees not to accept any employment or representation during the
term of this Agreement or within twelve (12) months after completion of the work under
this Agreement which is or may likely make MRO "financially interested" (as provided in
California Government Code Sections 1090 and 87100) in any decisions made by CITY
on any matter in connection with which MRO has been retained pursuant to this
Agreement.
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7.5 Compliance with Laws
MRO and CITY shall comply with all applicable federal, state and local
laws, ordinances, codes and regulations in the performance of this Agreement.
7.6 Applicable Law
This Agreement will be construed in accordance with the laws of the State
of California, and all federal statutes and regulations governing the services provided
herein.
7.7 Venue
Any action to enforce or interpret the terms of this Agreement shall be
subject to the exclusive jurisdiction of the courts in the County of Los Angeles, State of
California.
7.8 Construction
This Agreement is deemed to have been prepared by each of the parties
hereto, and any uncertainty and ambiguity herein shall not be interpreted against the
drafter, but rather, if such uncertainty or ambiguity exists, shall be interpreted according
to the applicable rules of interpretation of contracts under the laws of the State of
California.
7.9 Attorney's Fees
If any action is brought to enforce or interpret any and/or all of the
provisions of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other relief to
which that party may be entitled.
7.10 Assignment and Sub-contractinq
(a) This Agreement shall not be assignable by either party without the
prior written consent of the other party.
(b) MRO may use the services of persons and entities not in MRO'S
direct employ, when it is appropriate and customary to do so. Such persons and
entities include, but are not necessarily limited to specialized MROs, and testing
laboratories. MRO's use of any subcontractor or sub-MRO shall not relieve MRO from
any responsibilities or requirements of this Agreement, and MRO shall continue to be
fully responsible for performance of all services under this Agreement.
7.11 Independent Contractor
MRO is and shall at all times remain, as to CITY, an independent
contractor. Neither CITY nor any of its agents shall have control over the conduct of
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MRO or any of the MRO's employees, subcontractors or sub-M ROs, except as herein
set forth. MRO expressly warrants not to, at any time or in any manner, represent that
it, or any of its agents, servants, employees, subcontractors or sub-MROs are in any
manner agents, servants or employees of CITY, it being distinctly understood that MRO
is, and shall at all times remain to CITY, a wholly independent contractor and MRO's
obligations to CITY are solely such as are prescribed by this Agreement. MRO shall not
have any control of CITY's personnel policies or interaction with the personnel of CITY.
7.12 Waiver
Waiver by either party of any one or more of the conditions of performance
under this Agreement shall be in writing, and shall not be a waiver of any other condition
of performance under this Agreement. In no event shall the making by CITY of any
payment to MRO constitute or be construed as a waiver by CITY of any breach of
covenant, or any default which may then exist on the part of MRO, and the making of
any such payment by CITY shall in no way impair or prejudice any right or remedy
available to CITY with regard to such breach or default.
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7.13 Cooperation
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In the event any claim or action is brought against CITY by any third party
other than MRO relating to or arising out of this Agreement, MRO shall render any
reasonable assistance and cooperation which CITY might require. Any testimony
provided by MRO shall be compensated in accordance with Section 2.1(c).
7.14 Notices
All notices pertaining to this Agreement shall be in writing and addressed
as follows:
If to MRO:
Western Medical Group, Inc.
21081 S. Western Ave., Ste. 150
Torrance, Ca., 90501
If to CITY:
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
Attn:
7.15 Headings And Titles
The headings, subheadings and numbering of the different paragraphs of
this Agreement are inserted for convenience and for reference only and shall not be
considered for any purpose in construing this Agreement.
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7.16 Entire Agreement
This Agreement, and any other documents incorporated herein by specific
reference, represent the entire and integrated agreement between MRO and CITY.
This Agreement supersedes all prior oral or written negotiations, representations or
agreements. This Agreement may not be amended, nor any provision or breach hereof
waived, except in a writing signed by the parties which expressly refers to this
Agreement.
7.17 Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to constitute one
and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date•and year first above written.
Dated: 9 -I/a -05 Western Me.' - 9oup, Inc.
BY:
Gary :dr";, M.D.
TITLE: President
Dated: CITY OF RANCHO PALOS VERDES
A Municipal Corporation
BY:4IK ._� • .,
City of ' - ho Palos Verdes
ATTEST:
CITY CLE
APPROVED AS TO FORM:
Richards, Watson & Gershon P.C.
Carol Lynch, City Attorney
By:
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EXHIBIT "A"
SCOPE OF WORK— PRELIMINARY PROTOCOL
MRO shall conduct alcohol abuse and substance abuse testing (including but expressly
not limited to drug and alcohol screening)for prospective CITY personnel as assigned
by CITY. MRO shall be responsible for providing the findings of requested testing
and/or further substance abuse testing when appropriate; and information to assist
CITY in determining whether prospective CITY employees are able to safely perform
essential job duties.
Services provided under this Agreement shall be provided in accordance with the
following preliminary protocol. In the event of any inconsistency or conflict between this
preliminary protocol and applicable federal and/or state law, MRO shall perform
services under this Agreement in accordance with applicable federal and/or state law.
MRO shall be responsible for monitoring any changes to federal and state law, and for
modifying its procedures to ensure compliance with applicable law in the performance of
services under this Agreement.
In the event of any conflict or inconsistency between the Scope of Work set forth in this
Exhibit "A" and the Agreement, the terms of the Agreement shall prevail.
ARTICLE I. STATEMENT OF WORK
SECTION 1. SCOPE OF SERVICES
A. The primary medical review officer responsibilities shall be carried out by Paz
Eilat, M.D.
B. The primary role of the medical review officer is to review and interpret confirmed
positive test results obtained though CITY's testing program. In caring out this
responsibility, the MRO shall examine alternative medical explanations for any
positive test results. Any tested individual who is alleged to be medically
unqualified by reason of a confirmed positive test result shall have available as
an affirmative defense, to be proven by the individual through clear and
convincing evidence to the MRO, that his/her use of a controlled substance was
prescribed by a health care professional who is familiar with the individual's
medical history and assigned safety-sensitive functions.
SECTION 2. MRO INTERVIEW
A. The MRO will conduct a medical interview and review of the individual's medical
history, or review of any other relevant biomedical factors.
B. The MRO will review all medical records made available by the tested individual
when a confirmed positive test could have resulted from legally prescribed
medication.
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C. In accordance with the DHHS (U.S. Department of Health and Human Services)
guidelines, the MRO will not declare as positive opiate-positive urine without
"clinical evidence." The MRO may perform limited physical examinations,
seeking, for example needle tracks in determining whether clinical signs of drug
abuse are present.
SECTION 3. INITIAL CONTACT OF EMPLOYEES
A. The MRO will make reasonable efforts to contact the tested individual and make
available the opportunity to discuss a laboratory confirmed positive test result. A
staff person or MRO Assistant working on the staff of the MRO may make the
initial contact.
B. If the MRO is unable to contact a tested individual, after making and
documenting all reasonable efforts, the MRO shall contact a designated
management official of CITY to arrange for the individual to contact the
appropriate representative of MRO.
C. The MRO may verify a positive test without having communicated with the tested
individual if:
i. The individual expressly declines the opportunity, or
ii. Within five (5) days after a documented contact by CITY to the tested
individual to contact the MRO, the individual has not done so.
D. All tests reported to CITY by the MRO as a verified positive in which the MRO did
not discuss the results with the tested individual shall be so noted and shall be
accompanied by complete documentation of the MRO's efforts to contact the
tested individual including contacts with the CITY's designated management
official.
SECTION 4. OBTAINING ADDITIONAL LABORATORY TESTS, REANALYSIS, AND
INFORMATION
A. SPLIT SAMPLE RETEST PROTOCOL: In situations in which the CITY uses the
split sample method of collection, if the employee requests an analysis of the
split sample within seventy-two (72) hours of having been informed of a verified
positive test (or a longer period, if provided in a DOT agency regulation), the
MRO will direct, in writing, the laboratory to provide the split sample to another
DHHS-certified laboratory for analysis. If the analysis of the split sample fails to
reconfirm the presence of the drug(s) or drug metabolite(s) found in the primary
specimen, or if the split sample is unavailable, inadequate for testing or
untestable, the MRO will cancel the test and report the reasons for the
cancellation to DOT.
B. SINGLE SAMPLE RETEST PROTOCOL: In a situation in which the CITY has
used the single sample method of collection, the MRO will direct, in writing, a
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reanalysis of the original sample if requested to do so by the employee within
seventy-two (72) hours of the employee s having been informed of a verified
positive test. The MRO may also direct, in writing, such a reanalysis if the MRO
questions the accuracy or validity of any test result. Only the MRO may authorize
such a reanalysis, and such a reanalysis may take place only at laboratories
certified by DHHS. If the reanalysis fails to reconfirm the presence of the drug or
drug metabolite, the MRO will cancel the test and report the reasons for the
cancellation to DOT.
C. The MRO may independently order a reanalysis of a sample.
D. The MRO may order additional laboratory separation and quantitation of d- and (-
isomers of methamphetamine and amphetamine when necessary.
E. The MRO may order additional laboratory tests for the purposes of determining
adulteration.
F. The MRO may request, if needed, a quantitative description of test results and
maintain same in appropriate files.
G. The MRO will receive and maintain a certified copy of the original custody and
control form, which should include a daytime telephone number where the
applicant or employee may be reached.
H. The MRO may consult with the laboratory director and representatives
concerning laboratory results.
I. The MRO may cancel laboratory results that do not comply with DOT or DHHS
guidelines.
J. The MRO will provide assistance in arbitration and litigation, including expert
witness testimony.
SECTION 5. REPORTING RESULTS TO CITY
A. The MRO may report to the CITY using any communications device, but in all
instances a signed written notification will be forwarded upon completion of the
MRO's review.
B. The MRO written report to the CITY will include the following:
i. The name of the individual for whom the test results are being reported
and the individual's CITY;
ii. The laboratory performing the test;
iii. The date and location of the test collection;
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iv. The identities of the persons or entities performing the collection, analysis
of the specimens and serving as the MRO for the specific test;
v. The verified results of a controlled substances test, either positive or
negative, and if positive, the identity of the controlled substance(s) for
which the test was verified positive.
C. All positive tests reported to the CITY by the MRO in which the MRO did not
discuss the results with the tested individual shall be so noted.
SECTION 6. CONFIDENTIALITY
A. In accordance with DOT regulations the MRO will not disclose to any third party
medical information provided by the individual to the MRO as a part of the testing
verification process except the MRO may disclose such information to the CITY
when:
The MRO has informed the employee, before obtaining medical information from
the employee, that such information may be disclosed to third parties; and
i. An applicable DOT regulation permits or requires such disclosure; or
ii. In the MRO's reasonable medical judgment, the information could result in
the employee being determined be medically unqualified under an
applicable DOT agency rule; or
iii. In the MRO's reasonable medical judgment the information indicates that
continued performance by the employee could pose a significant safety
risk.
iv. Disclosure is requested by the employee and MRO is provided with a
written request and release from the employee.
SECTION 7. MRO RECORD KEEPING AND RECORD RETENTION
A. The MRO shall be the sole custodian of the individual's test results. The MRO
shall maintain all dated records and notifications, identified by individual, for a
minimum of five (5) years for verified positive test results, and shall retain such
records for any additional period(s) of time required under the terms of the
Agreement of which this preliminary Protocol is a part.
B. The MRO will not release individual test results to any person, without first
obtaining specific written authorization from the tested individual. Nothing in this
paragraph shall prohibit the MRO from releasing, to the CITY, its agent or to
officials of the Secretary of Transportation, any DOT agency, or any State or
local information delineated in Article I, Section 5(B) of this Agreement.
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SECTION 8. CITY RESPONSIBILITIES
A. When the MRO reports to the CITY that the MRO is unable to contact a tested
individual for an interview, the CITY will contact the individual as soon as
practicable and request the individual to contact the MRO within 24 hours.
B. The CITY will provide the MRO with the most recent Drug and Alcohol Policy and
Procedures of the CITY.
C. The CITY will designate a CITY representative and an alternate to whom the
MRO will report test results verbally and in writing.
D. The CITY will designate a CITY representative and alternate whom the MRO will
contact in cases where the MRO is unable to contact the employee for an
interview.
E. The CITY will notify the MRO of any responsibilities with regard to the CITY's
Employee Assistance Program as it relates to drug and alcohol testing.
F. The CITY represents that the means of obtaining results from the MRO (such as
electronic or fax) will be secure and confidential, and that all results and
information obtained from the MRO will be maintained confidentially. Such results
and information will only be disclosed to individuals with a business need for the
information.
G. If the CITY selects the provider of drug testing collections, the CITY is
responsible for ensuring the collection practice meets all DOT requirements for
drug testing.
H. If the CITY selects the testing laboratory, the CITY will be responsible to assure
that the laboratory is currently certified by the DHHS for urine drug testing, and
arrange for all testing result to be sent directly to the MRO.
I. The CITY is responsible for all additional laboratory costs for reanalysis and
additional tests.
J. In accordance with DOT guidelines the following rules will be followed where the
MRO or the laboratory has canceled a test.
i. An individual, whose urine specimen was submitted for testing for pre-
employment/pre-duty or return-to-duty controlled substances testing under
FHWA regulations, which is canceled by the laboratory or the MRO, shall
resubmit a urine specimen for testing when the individual continues to
seek employment or continued employment with the CITY.
ii. An individual whose urine specimen was submitted for testing for post-
accident or random controlled substances testing under FHWA regulations
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which is canceled by the laboratory or the MRO shall not resubmit a urine
specimen for testing.
iii. An individual whose urine specimen was submitted for testing for
reasonable suspicion controlled substances testing under FHWA
regulations which is canceled by the laboratory or the MRO shall not
resubmit a urine specimen for testing, unless the specific, articulable,
contemporaneous, observations concerning the appearance, behavior,
speech or body odors of the individual continue to be present and
documentation of the individual's conduct is prepared and signed by the
witnesses within 24 hours of the observed behavior or before the results of
the new tests are release, whichever is earlier.
ARTICLE II. GENERAL TERMS AND CONDITIONS
SECTION 1. RESPONSIBILITY FOR CITY POLICY AND PROGRAM
The parties understand and agree that MRO does not make any employee decisions for the
CITY such as hiring of applicants termination, discipline or retention of any employee or
former employee.
SECTION 2. COMPLIANCE WITH FEDERAL AND STATE LAW
CITY and MRO each agree to comply with and shall be responsible for all requirements
of Federal, State and local laws and regulations relating to substance abuse testing.
SECTION 3. SIGNIFICANT CHANGES
If during the term of this agreement there is a significant change in the requirements of
the MRO, or other services covered under this agreement as the result of regulatory
changes, or changes mandated by federal or state law, both parties agree to
renegotiate the services and fees provided herein.
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