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14-9
Resolution No. 14-9 RESOLUTION AUTHORIZING EXECUTION OF A FLEXIBLE BENEFITS PLAN ADMINISTRATION AGREEMENT WITH GENESIS EMPLOYEE BENEFITS, INC. FOR FLEXIBLE SPENDING PROGRAM ADMINISTRATIVE SERVICES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Sean R. Stegall, City Manager, be and is hereby authorized and directed to execute a flexible benefits plan administration agreement on behalf of the City of Elgin with Genesis Employee Benefits, Inc. for flexible spending program administrative services, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 12, 2014 Adopted: February 12, 2014 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk Genesis FLEXIBLE BENEFITS PLAN Genesis_ Flex Employee Benefits_ ADMINISTRATION AGREEMENT Effective March 1, 2014 between Genesis Employee Benefits, Inc. ("Claims Administrator") and City of Elgin ("Adopting Employer"&"Plan Administrator") WHEREAS, City of Elgin ("Adopting Employer") has heretofore adopted the City of Elgin Flexible Benefits Plan (the"Plan"); and WHEREAS, the Plan is a cafeteria plan within the meaning of Section 125 of the Code; WHEREAS, the Plan names Adopting Employer as Plan Administrator and appoints Plan Administrator to act on behalf of the Plan; and WHEREAS, Adopting Employer is a governmental entity and, therefore, no portion of the Plan is an employee welfare benefit plan subject to the Employee Retirement Income Security Act of 1974 ("ERISA"); and WHEREAS, portions of the Plan are a "covered entities" subject to the privacy and security provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"); and WHEREAS, the Plan Administrator is the entity capable of acting on behalf the Plan for purposes of HIPAA; and WHEREAS, the Claims Administrator performs services (directly and indirectly) with respect to operating, administering, and providing recordkeeping for programs of the type of the Plan; and WHEREAS, the Plan Administrator desires that the Claims Administrator furnish certain services described in this Agreement in the operation and administration of the Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and the exhibits and addenda, if any, attached hereto, effective March 1, 2014, the Plan Administrator and the Claims Administrator hereby agree as follows: I. Definitions The following Definitions shall apply to this Agreement: A. Administrative Services - means those services relating to the establishment, maintenance, and administration of the Plan to be performed by the Claims Administrator as set forth in this Agreement. B. Adopting Employer— means City of Elgin. C. Adoption Agreement — means the Basic Plan Document Adoption Agreement for Adopting Employer, on effective date above. D. Agreement - means this Administration Agreement and any exhibits and addenda attached hereto and any outside agreements specifically incorporated by reference. E. Claims Account — means the checking account established by the Claims Administrator from which benefits under the Plan shall be paid. ©2013 Genesis Employee Benefits,Inc. 1 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) G , 1• F. Claims Administrator — means Genesis Employee Benefits, Inc., an independent contractor designated to perform certain administrative services pursuant to this Agreement with respect to the Plan. G. COBRA - means the Consolidated Omnibus Budget Reconciliation Act of 1985 (as it appears in the Code and the Public Health Services Act) and regulations thereunder, as amended from time to time. H. Code - means the Internal Revenue Code of 1986 and regulations thereunder, as amended from time to time. I. Effective Date - means the date upon which this Agreement is first effective as indicated above. J. HIPAA - means the Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended from time to time. K. Participant — means an individual who is participating in the Plan, including those on continuation coverage required under COBRA. L. Plan - means the City of Elgin Flexible Benefits Plan, consisting of the Plan Document and the Adoption Agreement. M. Plan Administrator— means the entity as defined in the Plan. N. Plan Document — means the document through which the Plan is established, the Genesis Employee Benefits, Inc. Flexible Benefits Plan Basic Plan Document. 0. PHI — means Protected Health Information for purposes of HIPAA. P. PPACA — means the Patient Protection and Affordable Care Act and regulations thereunder, as amended from time to time. Q. Summary Description — means the written document distributed directly or indirectly to Participants explaining the Plan. II. Plan Establishment& Maintenance A. Generally. Adopting Employer shall establish the Plan. The Plan Administrator shall be responsible for the operation and administration of the Plan. In accordance with this Agreement, the Claims Administrator shall provide administrative services to Adopting Employer and Plan Administrator in connection with the establishment of, the operation of, the administration of, and the recordkeeping for the Plan. B. Documents. Adopting Employer and Plan Administrator shall have ultimate responsibility for all aspects of the Plan documentation, including, but not limited to, the Plan Document, Summary Description, Plan amendments, and Summary Description updates. The Claims Administrator shall provide the Adopting Employer with services related to the initial preparation and periodic revision of the Plan Document, Summary Description, and related documentation. Final adoption and approval of all aspects of the Plan documentation, including, but not limited to, the Plan Document, Summary Description, Plan amendments, and Summary Description shall be in the Adopting Employer's sole discretion. Unless Adopting Employer, Plan Administrator and the Claims Administrator mutually agree otherwise, the Plan Administrator shall deliver to all Participants all appropriate and necessary documents and materials, including, but not limited to, the Plan Document, Plan amendments, Summary Descriptions, enrollment ©2013 Genesis Employee Benefits,Inc. 2 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) �� 1' r forms, and application and notice forms, as may be necessary for the operation of the Plan or to satisfy the requirements of state or federal laws and regulations. C. Plan Amendment & Termination. The Plan Document may be amended or terminated in accordance with the provisions of the Plan, respectively. If the Adopting Employer amends the Plan Document, the Adopting Employer agrees to notify the Claims Administrator (1) before the later of the effective date of the amendment or the date of adoption of the amendment, or (2) as soon as administratively feasible. The Claims Administrator is responsible for providing services pursuant to such amended Plan Document only upon its consent which shall be evidenced by an amendment to this Agreement. Such consent shall not be unreasonably withheld but may be conditioned upon Adopting Employer's agreement to pay increased administrative fees. III. Claims Administrator Responsibilities A. Status of the Claims Administrator. Adopting Employer shall not (1) name the Claims Administrator as the Plan Administrator in any documents applicable to the Plan, nor (2) hold out to other parties or third parties that the Claims Administrator serves in such capacity. In addition, the Claims Administrator does not intend to assume any of the administrative duties or responsibilities commensurate with such designation. B. Capacity of Claims Administrator. In fulfilling its duties and obligations under this Agreement, the Claims Administrator: (i) shall act as the administrative agent of the Plan; (ii) does not intend to be a an Adopting Employer or Plan Administrator (as such terms are defined under the Plan) of the Plan or with respect to the Plan assets; and (iii) does not have any discretionary authority, control, or responsibility with respect to administration of the Plan or with respect to conformity of the Plan with any applicable federal or state law. In addition, the Claims Administrator shall not be required to participate in or act in a manner that aids or assists a breach of a fiduciary's duty. C. Limited Responsibilities. The Claims Administrator agrees to provide only the Administrative Services specifically described in this Agreement. Any responsibility with respect to establishment, maintenance, and administration of any benefit plan or program sponsored by Adopting Employer not specifically delegated to the Claims Administrator herein shall remain the responsibility of Adopting Employer. D. Processing of Claims. Subject to Article IV and Section VI.C., the Claims Administrator shall process, adjust and settle claims of Participants received by the Claims Administrator for benefits under the Plan in accordance with the terms and conditions of the Plan. The Claims Administrator shall make available (including via the web) to all Participants the claim forms necessary for submitting claims. Where the terms and conditions of the Plan are not clear, the Claims Administrator reserves the right to request direction from the Plan Administrator. When a claim is approved, the Claims Administrator or its designee shall pay the claim from the Claims Account. E. Account Servicing. The Claims Administrator shall provide account management services. The Claims Administrator shall make available to the Adopting Employer a client service representative to respond to questions regarding general administrative issues and plan design. F. Employee Communication. The Claims Administrator shall provide standard communication materials to Participants as agreed upon by the parties. The Claims Administrator shall provide general administrative services to assist persons with general information about the Plan and answer routine questions from persons concerning coverage status, claims status, complaint administration, and other inquiries related to the Plan. Notwithstanding the preceding, the Claims Administrator shall: (i) be under no ©2013 Genesis Employee Benefits,Inc. 3 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) 4' r obligation to meet with individual plan participants regarding their claims; and (ii) not offer any investment or securities advice to any Participant. G. Recordkeeping. The Claims Administrator shall keep all Plan records related to the Administrative Services, including records relating Participant claims, payments, and account balances. H. Accountings. At such regular periodic intervals as Adopting Employer and the Claims Administrator agree upon and specify in Exhibit A, the Claims Administrator shall provide the Adopting Employer with reporting regarding the Plan. I. Participant Access to Information. The Claims Administrator shall provide Participants with "24 hour" access to the website, but does not guarantee immediate or uninterrupted access at any time. The Claims Administrator will use reasonable efforts to keep the website properly maintained, but cannot be held responsible for circumstances beyond its reasonable control such as, but not limited to, natural disasters, damage resulting from unauthorized use of a Participants personal identification number, or failure of the system for any other reason outside of the Claims Administrator's control. The Claims Administrator shall also provide Participants with account statements at least annually. Such statements shall be provided directly to the Plan Administrator for distribution to the Participants. J. Assistance with Reporting and Notifications. Unless applicable law imposes such responsibility solely on the Claims Administrator, the Claims Administrator shall not have any responsibility related to: (1) determining what reporting and notification requirements apply to the Plan and the benefits provided through the Plan; (2) preparing and filing any tax return, report, or other document required to be provided to any local, State or Federal government or agency thereof with respect to the Plan or any benefit provided through the Plan (e.g., Form 5500, various reports required under PPACA, etc.); or (3) preparing and distributing any notification required to be provided to any participant of the Plan or any benefit provided through the Plan under applicable law (e.g., Summary Annual Report, various notifications required by PPACA, etc.). Such responsibility for preparing, filing, and/or distributing all tax returns, reports, notifications, or other documents shall be that of the Adopting Employer or Plan Administrator. Notwithstanding the foregoing, the Claims Administrator may assist Adopting Employer and Plan Administrator with its reporting and notification obligations if the Claims Administrator agrees, in writing, to do so and if Adopting Employer and/or Plan Administrator agree to pay any additional fees chargeable by the Claims Administrator for such additional service. K. Nondiscrimination Testing. If chosen by the Plan Administrator as an optional service as listed in Exhibit B, the Claims Administrator shall perform such nondiscrimination tests (required under the Code or other applicable law) as selected by the Plan Administrator at such time(s) agreed upon by the Claims Administrator and Plan Administrator. The Adopting Employer shall provide all information necessary to complete such testing. Should the Plan fail any applicable nondiscrimination tests, the Claims Administrator may provide suggestions (consistent with the Plan language) regarding how to correct the situation. The responsibility for making a decision regarding how to correct the situation shall be that of the Adopting Employer or Plan Administrator. L. Compliance with Applicable Law. The Claims Administrator shall comply with all federal and state laws and regulations applicable to the Claims Administrator's responsibilities under this Agreement. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement that the Claims Administrator shall comply with all applicable Federal, State, Adopting Employer and Plan Administrator and other requirements of law, including, but not limited to, any applicable requirements regarding ©2013 Genesis Employee Benefits,Inc. 4 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Claims Administrator hereby certifies, represents and warrants to the Adopting Employer and Plan Administrator that all Claims Administrator's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. Claims Administrator shall also at its expense pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The Adopting Employer and Plan Administrator shall have the right to audit any records in this possession or control of the Claims Administrator to determine Claims Administrator's compliance with the provisions of this section. In the event the Adopting Employer and Plan Administrator proceed with such an audit, the Claims Administrator shall make available to the Adopting Employer and Plan Administrator the Claims Administrator's relevant records at no cost to the Adopting Employer and Plan Administrator. The Claims Administrator shall pay any and all costs associated with any such audit. M. Insurance. The Claims Administrator shall maintain professional liability and errors and omissions insurance in the amount of$2,000,000.00. N. Subcontractors. The Claims Administrator may hire subcontractors to perform any of the services required of it under this Agreement and to act as its designee for purposes of this Agreement. O. Debit Card Services. If an administrative fee for debit card services is reflected in Exhibit B to the Agreement, the Claims Administrator will provide the following services with respect to the use of debit cards to obtain reimbursements under the Plan's flexible spending accounts ("FSAs"), including both health flexible spending accounts and dependent care flexible spending accounts: 1. Obtain all information necessary for issuance of debit cards to FSA participants. The Claims Administrator is entitled to rely upon the accuracy and completeness of all information provided by the Adopting Employer. 2. Through its subcontractor, the debit card vendor, issue debit cards, and process debit card transactions. 3. Assist the Adopting Employer with establishing a bank account to fund the debit card payments. 4. Provide communications to the Adopting Employer, Plan Administrator, and FSA participants regarding use of debit cards. 5. Provide substantiation of claims reimbursed via use of the debit card in accordance with applicable IRS rules. 6. Assist the Plan Administrator with recouping improper debit card reimbursements to the extent required by IRS rules. Notwithstanding the foregoing, it shall be the Plan Administrator's ultimate responsibility for recouping such reimbursements in accordance with applicable IRS rules. IV. Duties of Adopting Employer and Plan Administrator A. FMLA Determinations. The Adopting Employer shall make determinations regarding FMLA, including, but not limited to, whether FMLA applies. The Claims Administrator shall not make determinations regarding FMLA. Furthermore, the Claims Administrator shall be entitled to rely upon the information provided by the Adopting Employer and is under no obligation to independently verify such information. ©2013 Genesis Employee Benefits,Inc. 5 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) • 1 B. Eligibility Determination & Information. The Adopting Employer shall provide the Claims Administrator with a listing of all persons participating in the Plan and their elections thereunder. The Adopting Employer shall also provide the Claims Administrator with written notice of any addition or deletion of Participants, any change in Participant elections and any further information necessary for the Claims Administrator to provide its services hereunder. The Adopting Employer is responsible for reviewing and approving the documentation of such information. The Adopting Employer may provide such information in any written method mutually acceptable to the Adopting Employer and the Claims Administrator, including, but not limited to, electronic transmissions. The Claims Administrator may rely on the most current information in its possession regarding eligibility of a Participant in paying claims and providing other services under this Agreement. C. Election Changes. The Adopting Employer shall determine the appropriateness of all requests by Participants to change their elections under the Plan. D. Claims Account Funding. All funds provided for the purpose of paying benefits shall be made available by the Adopting Employer through the Claims Account. The Adopting Employer shall make funds available through the Claims Account at a sufficient level to permit payment of benefits due Participants under the Plan. The Adopting Employer shall make such funds available no later than the day on which the Claim Administrator performs each claims run. The Claims Administrator shall provide reasonable notice to the Adopting Employer of the required level of funding and the date of each claims run. The Adopting Employer acknowledges that the Claims Administrator has no obligation to pay claims for benefits and shall not advance its own funds in the event the Adopting Employer provides insufficient funds for such payment. If the Claims Administrator has notified the Adopting Employer as required herein and the Adopting Employer fails to fully fund the Claims Account in a timely manner, the Claims Administrator may terminate this Agreement in accordance with Section VII.0 as its sole and exclusive remedy. E. Medical Child Support Order Compliance. The Adopting Employer shall be responsible for all aspects of compliance with state law and the Child Support Performance and Incentive Act of 1998 regarding medical child support orders. Adopting Employer shall provide notice to the Claims Administrator of any Participants who become covered under the Plan by virtue of a medical child support order and of any Participants who cease to be covered under the Plan by virtue of the expiration of a medical child support order. The Claims Administrator shall be entitled to rely upon the information provided by the Adopting Employer pertaining to such medical child support order. F. Nondiscrimination Testing. Unless otherwise provided in Exhibit B, the Adopting Employer and the Plan Administrator are responsible for performing any nondiscrimination tests that may be required under the Code. Should the Plan fail any applicable nondiscrimination tests, the Claims Administrator may provide suggestions (consistent with the Plan language) regarding how to correct the situation. The responsibility for making a decision regarding how to correct the situation shall be that of the Adopting Employer or Plan Administrator. G. Payment of Administrative Services Fees. In consideration of Claims Administrator's performance of the services described in this Agreement, Adopting Employer shall pay the Claims Administrator's administrative fees as described in Exhibit B. 1. Minimum Fees. A minimum monthly fee of $125 shall apply if the standard claims processing fees does not exceed the minimum fee. ©2013 Genesis Employee Benefits,Inc. 6 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) ...--4 2. Failure to Pay. If Adopting Employer has not paid an invoice within sixty (60) days after the date on which Adopting Employer receives the invoice or the date on which the services to which the invoice relates were received, whichever is later, Claims Administrator may either (i) suspend performance of its services under this Agreement until such time as Adopting Employer pays the invoice (or Claims Administrator agrees, in writing, that Adopting Employer need not pay such invoice); or (ii) terminate this Agreement in accordance with Section VII.C. 3. Increases. The administrative fees identified in Exhibit B shall increase upon reasonable notice in the event of and in direct proportion to any rate increases implemented by the United States Postal Service. Such increases shall be effective on the effective date or the first of the month next following the effective date of the postage rate increase. The Claims Administrator also reserves the right to charge additional fees for repeating, or expanding the scope of, its services due to inaccurate, incomplete, or unusable data supplied by the Adopting Employer. 4. Fees for Additional Services. In the event additional services that are not part of the normal plan administrative services contemplated by this Agreement, or chosen by Plan Administrator on Exhibit B, are required, such additional services and any additional fees related thereto shall be provided only pursuant to a written amendment to this Agreement by the parties hereto. H. HIPAA Portability. Unless mutually agreed otherwise, Claims Administrator shall not provide any services related to HIPAA Portability, including, but not limited to providing certificates of creditable coverage to Participants upon termination of coverage under this Plan or upon request by a Participant within two (2) years of termination of coverage. I. Regulatory Compliance. Adopting Employer and Plan Administrator shall be responsible for compliance with applicable laws and regulations pertaining to the Plan. Adopting Employer and Plan Administrator shall be responsible for any governmental or regulatory charges resulting from the Adopting Employer's establishment and operation of the Plan. This provision does not relieve the Claims Administrator from any statutory or agency requirements placed directly on it as a result of performing services under this Agreement. J. Plan Design. Adopting Employer possesses and exercises ultimate authority and responsibility for the design of the Plan. The Adopting Employer has consulted its legal and/or accounting advisors concerning the tax advantages and consequences of sponsoring the Plan and shall not rely on the Claims Administrator for such guidance. K. Plan Interpretation. Plan Administrator possesses and exercises ultimate authority and responsibility for determining benefits under the Plan, making decisions regarding eligibility for participation, termination of participation, and payment of benefits. This includes, but is not limited to, review of claim denials. L. Other Information. Adopting Employer or Plan Administrator (including a designee) shall comply with all requests for information made by the Claims Administrator reasonably necessary for the Claims Administrator to fulfill its duties under this Agreement. Any documentation received by the Adopting Employer or Plan Administrator (including a designee) that should have been provided to the Claims Administrator pursuant to this Agreement shall be promptly forwarded to the Claims Administrator. Such documentation includes, but is not limited to, claims forms. M. Review of Reports and Forms. The Adopting Employer shall be responsible to review all accounting reports, compliance testing, government returns, and any other reports prepared by or on behalf of the Claims Administrator (collectively the "Reports") and to ©2013 Genesis Employee Benefits,Inc. 7 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) 4 notify the Claims Administrator of any errors or omissions in the Reports within sixty (60) days of receipt of them. If no errors or omissions are asserted within sixty (60) days, (1) the Claims Administrator shall be released and relieved of all liability arising from or related to any errors or omissions in the Reports that Adopting Employer would have discovered by using reasonable diligence to review such Reports, and (2) the Adopting Employer shall indemnify Claims Administrator with respect to any actions taken pursuant to this Agreement based upon any errors or omissions in such Reports that Adopting Employer would have discovered by using reasonable diligence to review such Reports. N. Review of Communication Materials. The Adopting Employer shall review all communication products and materials prepared by the Claims Administrator to ensure consistency of the materials with the terms of the Plan. 0. Authorized Representatives. Until otherwise advised in writing by the Adopting Employer, the Claims Administrator may accept the authority and rely upon the instructions of, or documents signed by, any representatives of the Adopting Employer listed in Exhibit C. Additional documentation, specifying persons authorized for various purposes, may also be executed by the parties from time to time, and the Claims Administrator shall be entitled to rely upon such documentation without question, unless it has actual knowledge that such person's authority has been revoked. P. Legal Obligations. Adopting Employer or Plan Administrator (including a designee), shall possess ultimate responsibility and authority for the operation of the Plan and for its compliance with all applicable laws and regulations pursuant to the provisions of the Plan. V. Records&Information A. Maintenance and Access. Claims Administrator and Plan Administrator shall maintain adequate records relating to the terms and operation of the Plan for at least the plan year to which the records relate and for an eight (8) year period thereafter. Each party shall have access to the records relating to the Plan maintained by the other party during normal business hours and upon reasonable notice and request and subject to applicable laws and regulations. The parties shall maintain the confidentiality of any information relating to Participants, the Plan in accordance with applicable laws and regulations. B. Record Use. The Claims Administrator, Adopting Employer and Plan Administrator agree that the medical records, names, addresses, telephone numbers, Social Security numbers and other personal information relating to Participants, which the Claims Administrator may obtain as a result of performing administrative services may be collected, maintained and used by the Claims Administrator and the Plan Administrator as necessary to administer the Plan. The Claims Administrator and the Plan Administrator may use patient specific and individually identifiable information, as necessary to properly administer the Plan, to defend any claim related to the Plan or to the provision of services under this Agreement, or as otherwise may be permitted by state or federal law. All parties agree that such information shall be considered confidential and protected as required under applicable law. C. Transfer of Records. When this Agreement ends, the Claims Administrator shall transfer to Adopting Employer, Plan Administrator and/or any successor administrator all records relating to administration of the Plan. The Claims Administrator shall provide the Plan Administrator an opportunity to review its records and obtain copies of any such records in addition to any records the Claims Administrator has identified as necessary for a smooth transition or otherwise transferred. The details of such transfer, including but not limited to the means, method and timing, shall be agreed to by the parties. The Adopting Employer shall pay the reasonable costs for copying any such records, pursuant to the agreement of the parties. In addition, the Claims Administrator shall provide ©2013 Genesis Employee Benefits, Inc. 8 Non-ERISA Flex Administration Agreement '/...:) (No. 13.1.2.0(IL)) electronic copies of any such records requested by the Adopting Employer where such electronic records are available at no cost to the Adopting Employer. D. HIPAA Business Associate. The Claims Administrator acknowledges its role as a business associate for purposes of the privacy and security standards under HIPAA. Exhibit D reflects the business associate contractual requirements. VI. Indemnification and Limitation of Liability A. Funding. The Claims Administrator shall have no responsibility, risk, liability, or obligation for the funding of Plan benefits. The responsibility and obligation for funding Plan benefits shall be solely and completely the responsibility of the Adopting Employer. B. Claim Processing Errors. The Claims Administrator shall be liable for the recovery of claim processing errors arising from the Claims Administrator's performance pursuant to the terms of this Agreement. The Claims Administrator shall use diligent efforts toward the recovery of such losses. C. Indemnification by the Plan Administrator for Claims Decisions. If the Plan Administrator reverses a claim payment decision made by the Claims Administrator, the Plan Administrator shall notify the Claims Administrator in writing of such decision and shall indemnify, hold harmless, and defend the Claims Administrator from and against any and all liabilities, losses, damages, claims, lawsuits, causes of action, costs, and expenses the Claims Administrator may incur because of any such reversal. D. No Guarantee of Benefits. The Claims Administrator does not assume any responsibility, risk, liability or obligation for the general policy direction of the Plan, the adequacy of funding thereof, or any act or omission or breach of duty by parties other than Claims Administrator. The Claims Administrator is not and shall not be deemed a guarantor with respect to any benefits payable under the Plan. E. Indemnification for Plan Design/Interpretation. The Claims Administrator is not engaged in the practice of law. The resolution of any legal issues concerning the Plan, its coverage, or its interpretation is the responsibility of the Plan Administrator and/or the Adopting Employer and their legal counsel. The Plan Administrator and Adopting Employer shall indemnify, hold harmless, and defend the Claims Administrator from and against any and all liabilities, losses, damages, claims, lawsuits, or causes of action, and any costs and expenses associated therewith (but not including any attorneys' fees the Claims Administrator may incur or be asked to pay), arising, directly or indirectly, out of the Plan Administrator's or Adopting Employer's design and/or interpretation of the Plan, including, but not limited to, any liability, losses, damages, claims, lawsuits, or causes of action and any costs and expenses associated therewith (including any attorneys' fees the Claims Administrator may incur or be asked to pay) arising under any state, federal or local law or regulation. F. General Indemnification. The Plan Administrator and Adopting Employer shall indemnify, hold harmless, and defend the Claims Administrator and its directors, officers, employees, and agents from and against any and all liabilities, losses or damages arising out of any claims, lawsuits, or causes of action, and any costs and expenses associated therewith (but not including any attorneys'fees the Claims Administrator may incur or be asked to pay), which arise, directly or indirectly, from the Plan Administrator's or Adopting Employer's act or omission to act in its administration of the Plan, including, but not limited to, any liability, losses, damages, claims, lawsuits, or causes of action and any costs and expenses associated therewith (but not including any attorneys' fees the Claims Administrator may incur or be asked to pay) arising under any law. ©2013 Genesis Employee Benefits,Inc. 9 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) G. Indemnification for Prior Administration. If a party other than the Claims Administrator previously provided administration or recordkeeping services to the Plan, the Plan Administrator and Adopting Employer shall indemnify, hold harmless, and defend the Claims Administrator and its directors, officers, employees, and agents from and against any and all liabilities, losses or damages arising out of any claims, lawsuits, or causes of action, and any costs and expenses associated therewith (but not including any attorneys' fees the Claims Administrator may incur or be asked to pay), which arise, directly or indirectly, from such prior administration or recordkeeping, including, but not limited to, any liability, losses, damages, claims, lawsuits, or causes of action and any costs and expenses associated therewith (but not including any attorneys' fees the Claims Administrator may incur or be asked to pay) arising under any law. H. Claims Administrator's Duty to Indemnify. To the fullest extent permitted by law, Claims Administrator agrees to and shall indemnify, defend and hold harmless the Adopting Employer and Plan Administrator, their officers, employees, boards and commissions from and against any and all claims, suits, judgments, costs, damages or any and all other relief or liability (but not including any attorneys' fees the Adopting Employer and/or Plan Administrator may incur or be asked to pay) arising out of or resulting from or through or alleged to arise out of any acts or omissions of Claims Administrator or Claims Administrator's officers, employees, agents or subcontractors in the performance of this Agreement, including but not limited to, all goods delivered or services or work performed hereunder, or out of any breach of this Agreement. In the event of any action against the Adopting Employer and/or Plan Administrator, their officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend or hold harmless, such action shall be defended by legal counsel of the Adopting Employer and Plan Administrator's choosing. Limitation of Claims Administrator's Liability. The Claims Administrator shall exercise, in the performance of its duties, reasonable care. The Claims Administrator shall not be liable for the processing of Plan activity that is delayed due to circumstances beyond its reasonable control, including, but not limited to, national, state, or city disaster, acts of God, severe weather, or any similar circumstances that would affect the Claims Administrator or its trading platforms, software, voice response systems, or Internet systems. J. Reliance on Data & Direction. Notwithstanding any provision of this Agreement to the contrary, the Claims Administrator is not responsible or liable for any acts or omissions made pursuant to any direction, consent or other request reasonably believed by the Claims Administrator to be genuine and from an authorized representative of Adopting Employer and Plan Administrator, as identified in Exhibit C. The Claims Administrator is not responsible or liable for acts or omissions made in reliance on erroneous data provided by Adopting Employer or Plan Administrator to the extent the Claims Administrator's acts or omissions are attributable to the erroneous data, or for the failure of Adopting Employer or Plan Administrator to perform their obligations under this Agreement. VII. Term and Termination A. Term. This Agreement shall continue for a period of twelve (12) consecutive months beginning on the Effective Date with four one year options to renew at the Adopting Employer and Plan Administrator's sole discretion, unless this Agreement is replaced by a new agreement or is terminated pursuant to Sections VII.B. or C. below. If this Agreement is not terminated or replaced by a new agreement, this Agreement will renew under the terms and provisions of the Agreement as provided herein and any authorized written amendments thereto. Notwithstanding the foregoing, this Agreement will not renew if either the Adopting Employer, Plan Administrator, or Claims Administrator determines that a material breach existed on the scheduled renewal date. ©2013 Genesis Employee Benefits, Inc. 10 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) B. Termination. This Agreement may be terminated by either party at any time by written notice of intention to terminate given to the other party to be effective as of a specified date not less than fourteen (14) days from the date such notice is received. Notwithstanding the foregoing, in the event the Plan Administrator terminates this Agreement pursuant to this Section VII.B. for reasons other than termination for cause, as described in Section VII.C. below, the Plan shall pay to the Claims Administrator such transition reporting fees incurred by the Claims Administrator to transfer administration to successor claims administrator in accordance with Section V.0 herein. C. Termination For Cause. 1. Either party shall have the right to immediately terminate the Agreement upon the material breach of the terms of this Agreement, by either the Claims Administrator or the Adopting Employer, including failure to remit service fees due the Claims Administrator, if such material breach is not corrected within ten (10) days of receipt of written notice specifying the nature of the breach to the satisfaction of the non-breaching party. 2. The Adopting Employer and Plan Administrator shall° have the right to immediately terminate the Agreement upon the following events of default under this Agreement: a) any material misrepresentation made by the Claims Administrator to the Adopting Employer and/or Plan Administrator, b) any failure by the Claims Administrator to perform any of its obligations under this Agreement including, but not limited to, the following: (i) failure to commence performance of this Agreement at the time specified in this Agreement due to a reason or circumstance within the Claims Administrator's reasonable control, (ii) failure to perform this Agreement with sufficient personnel and equipment or with sufficient material to ensure the completion of this Agreement within the specified time due to a reason or circumstance within the Claims Administrator's reasonable control, (iii) failure to perform this Agreement in a manner reasonably satisfactory to the Adopting Employer and Plan Administrator, (iv) failure to promptly re-perform within reasonable time the services that were rejected by the Adopting Employer and Plan Administrator as erroneous or unsatisfactory, (v) failure to comply with a material term of this Agreement, including, but not limited to the Affirmative Action requirements, and (vi) any other acts specifically and expressly stated in this Agreement as constituting a basis for termination for cause. 3. Either party shall have the right to immediately terminate the Agreement upon the bankruptcy or insolvency of Adopting Employer or the Claims Administrator. 4. Either party shall have the right to immediately terminate the Agreement upon the enactment of any law, promulgation of any regulation or action of any State or Federal agency or authority which makes or declares illegal the continuance of this Agreement or the performance of any of the services of the Claims Administrator hereunder. D. Appropriations. The fiscal year of the Adopting Employer is the 12 month period ending December 31. The obligations of the Adopting Employer under any contract for any fiscal year are subject to and contingent upon the appropriation of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of the contract. If, for any fiscal year during the term of the Agreement, sufficient funds for the discharge of the Adopting Employer's obligations under the contract are not appropriated and authorized, then the Agreement shall terminate as of the last day of the preceding fiscal year, or when such appropriated and authorized funds are exhausted, whichever is later, without liability to the Adopting ©2013 Genesis Employee Benefits,Inc. 11 Non-ERISA Flex Administration Agreement 1 (No. 13.1..1.2.0(IL)) ::) Employer or Plan Administrator for damages, penalties or other charges on account of such termination. E. Responsibility for Claims Administration After Termination of Agreement. Upon termination of this Agreement, the Claims Administrator shall cease to act on behalf of Adopting Employer and Plan Administrator. Adopting Employer and Plan Administrator shall be responsible for the processing and payment of all eligible benefit claims payable on or after the date of termination pursuant to the terms of this Plan. The Claims Administrator reserves the right to notify any Participants that the Claims Administrator no longer acts on behalf of Adopting Employer and Plan Administrator. F. Post-Termination Obligations. Claims Administrator may, as mutually agreed upon in writing by Adopting Employer, Plan Administrator and Claims Administrator, provide certain administrative services following the termination of this Agreement. VIII. Miscellaneous A. Agreement Amendment. This Agreement may be amended only in writing by mutual agreement executed by all parties. B. Notices. Any notice given under this Agreement shall be in writing and shall be deemed to have been given when hand delivered or deposited in the U.S. mail, certified or registered, return receipt requested to the address set forth below, or to such other address set forth in a notice given in the manner herein provided. All such notices, requests, information or other communications shall be deemed to have been given (i) when delivered if personally delivered, (ii) three business days after having been placed in the mail, if delivered by registered or certified mail, (iii) the business day after having been placed with a nationally recognized overnight carrier, if delivered by nationally recognized overnight carrier, and (iv) the business day after transmittal by facsimile if transmitted with electronic confirmation of receipt. If to Adopting Employer and Plan Administrator: City of Elgin Attn: City Manager 150 Dexter Court Elgin, IL 60120 Telephone: If to the Claims Administrator: Genesis Employee Benefits, Inc. Attn: President One Braemar Office Park 8000 West 78th Street, Suite 320 Minneapolis, MN 55439-2506 Telephone: 888-308-8322 Fax: 866-680-0614 Upon the occurrence of a change in any of the above address information, each party shall notify the other party(ies) of such change within five (5) business days of the effective date of the change. C. Severability. The provisions of this Agreement are severable. If any provision of this Agreement is held invalid by a court of law or other tribunal, the invalidity of any provision will not affect any other provision of this Agreement. ©2013 Genesis Employee Benefits,Inc. 12 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) fg D. Survival. The rights and obligations described in Sections V., VI, and VII shall survive termination of this Agreement. E. No Waiver of Rights. Nothing in this Agreement shall be deemed to limit or abrogate any right or remedy available under law. The failure of any party to insist upon the strict observation or performance of any provision of this Agreement or to exercise any right or remedy shall not impair or waive any such right or remedy. F. Copyrighted Works. The Adopting Employer acknowledges that the Claims Administrator and its agents are the sole copyright owners of all plan documentation, administrative guides and forms, content of the web site, and all other materials provided under the terms of this Agreement and that such materials are proprietary to the Claims Administrator. The Claims Administrator grants the Adopting Employer a nonexclusive, nontransferable right to copy such materials. The Adopting Employer and Plan Administrator shall have the right to utilize, solely for their own benefit, all such work product during and after the term of this Agreement. Other materials provided by the Claims Administrator shall not be copied or reproduced by the Adopting Employer without the Claims Administrator's prior written consent. G. Non-Assumption of Liabilities. Unless specifically provided in this Agreement, the parties do not assume the existing or future obligations, liabilities or debts of the other party. H. Entire Agreement. This Agreement shall supersede and replace any and all other agreements between the parties relating to the same subject matter. This Agreement contains the entire agreement and understanding of the parties relating to the subject matter hereof, except as otherwise provided in this Agreement. This Agreement embodies the whole agreement of the parties. There shall be no promises, terms, conditions or obligations other than those contained therein, and this agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the parties. Authority. This Agreement is in the best interests of the Adopting Employer and Plan Administrator and is authorized by law. This Agreement is the valid and binding obligation of the Adopting Employer and Plan Administrator, enforceable in accordance with its terms. The execution and performance of this Agreement has been duly authorized by all necessary action of the Adopting Employer's governing body. The Adopting Employer and Plan Administrator have the full legal right, power and authority to enter into and perform the Agreement. Each party represents that this Agreement has been executed by a duly authorized representative. J. Governing Law. This Agreement is made subject to all the laws of the State of Illinois and the ordinances of the Adopting Employer and if any such clause herein does not conform to such laws or ordinances, such clause shall be void (the reminder of the contract shall not be affected) and the laws or ordinances shall be operative in lieu thereof. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this Agreement shall be in the Circuit Court of Kane County, Illinois. K. Independent Contractors. This Agreement shall not be construed so as to create a joint venture, partnership, employment or other agency relationship between the parties hereto, except as may be specifically provided for herein. The Claims Administrator shall be construed to be acting as an independent contractor and not as an employee of Adopting Employer or Plan Administrator. The Claims Administrator, Adopting Employer and the Plan Administrator shall not have the power or authority to act for or on behalf of, or to bind the other party, except as set forth in this Agreement. ©2013 Genesis Employee Benefits,Inc. 13 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) L. Third Party Beneficiaries. The obligations of each party to this Agreement shall inure solely to the benefit of the other signatory party(ies). Except as expressly provided in this Agreement, no person or entity is intended to be or shall be construed or deemed to be a third party beneficiary of this Agreement. M. Successors and Assigns. This Agreement shall be binding on any successors, assigns and subcontractors of the parties authorized under this Agreement, provided that the Claims Administrator shall not assign, sell or transfer any interest in this Agreement without prior written consent of the Adopting Employer and Plan Administrator. N. Audit Rights. The parties agree to cooperate in all reasonable audits. Audit fees shall be payable by the party initiating the audit. Audits shall be conducted using procedures mutually agreed upon by the parties. Results of the audit may be shared with the party being audited at the sole discretion of the party initiating the audit. 0. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. P. Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement arising out of a cause beyond its control or without its fault or negligence. Such causes may include, but are not limited to, fires, floods, and natural disasters. Q. Affirmative Action. The Claims Administrator will not discriminate against any employee or applicant for employment because of race, color, religion, sex, ancestry, national origin, place of birth, age or physical handicap which would not interfere with the efficient performance of the job in question. The contractor will take affirmative action to comply with the provisions of Elgin Municipal Code Section 3.12.100 and will require any subcontractor to submit to the Adopting Employer and Plan Administrator a written commitment to comply with those provisions. The Claims Administrator will distribute copies of this commitment to all persons who participate in recruitment, screening, referral and selection of job applicants and prospective subcontractors. R. PUBLICITY. The Claims Administrator may not use, in any form, or medium, the name of the City of Elgin for public advertising unless prior written permission is granted by the Adopting Employer and Plan Administrator. S. Acceptance of Agreement. Payment to Claims Administrator by Adopting Employer (either through direct check or electronic funds transaction) made at least seven (7) days following receipt of this Agreement for services described in this Agreement will signify Adopting Employer's and Plan Administrator's acceptance of all terms, conditions, and obligations of this Agreement. Acceptance will be effective on the Effective Date. ©2013 Genesis Employee Benefits, Inc. 14 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the effective date indicated above. ADOPTING EMPLOYER & PLAN ADMINISTRATOR CLAIMS ADMINISTRAT• By: By: /� eaa<Ft. Gall I! g Aut : i epresentative of Genesis Employee Title: City Manager Be efits, Inc. Date: February 12, 2014. Title: Public Markets, Senior Vice President ©2013 Genesis Employee Benefits,Inc. 15 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) . • LIST OF EXHIBITS A Reports B Administrative Fees C Authorized Representatives D Business Associate Agreement ©2013 Genesis Employee Benefits, Inc. 16 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) EXHIBIT A Reports Plan Sponsor • Enrollment Report—summary of participants enrolled in each plan • Claim Reimbursement Notifications—weekly summary of claims to be paid in a reimbursement cycle • Account Balance Report (Forfeiture)—Annual summary of claims paid, ending balances, and cash balances by participant. Provided annually at the end of the runout period. Participant • Claim Confirmations—verification sent via email that a claim was entered into the system • Advice of Deposits—email notice that a deposit will be made to a participant bank account • Receipt Reminders—email or letter sent at 5 and 20 days after an online claim is filed to remind participants of outstanding receipts due • Denial & Repayment Notifications—email or letter notifying a participant of a denied claim and repayment (if required) ©2013 Genesis Employee Benefits,Inc. 17 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) a • EXHIBIT B Administrative Fees STANDARD SERVICES Description of Standard Service Fee Standard communication materials, provided electronically (some materials will reflect actual plan provisions, but no custom fonts, wording, logos, etc.; customization is available — see N/C below for optional services and fees) Genesis OneCard Debit Cards N/C Plan Document&Summary Plan Description N/C Annual participant statements N/C Discrimination Testing N/C Standard administrative fee (claim processing occurs no more frequently than weekly, per $3.50 PPPM participant OTHER FEES(as applicable) Check re-issue fee (charged to participant) $25 Fee to correct erroneous data provided by Adopting Employer or Plan Administrator $150/hour Custom file formatting $150/hour Wire transfer fee(ACH deposits, no additional fee) $20 Plan amendments/restatements requested by Adopting Employer $2502 Per month per participant with a balance to administer run-out period for prior year in first year $3.50 PPPM of Genesis administration; $125.00 monthly minimum fee for this service Rush Implementation (less than 30 days until start date) $250 Minimum monthly fee (FSA minimum is $125, but monthly minimum across all products with $125/month Genesis is$250) OPTIONAL SERVICES Initial to Authorize Description of Optional Service Fee Optional Service Mailing of statements to participants' homes (fee per participant per $1.00 statement; includes postage) Additional participant statements mailed to employer or participants' $1.00 homes(fee per participant per statement; includes postage) Consulting to correct failed discrimination tests $150/hour Employee meetings(per meeting, plus travel expenses) $275 Multi-site billing and accounting (per site) $25 Customized communication materials, provided electronically (e.g., $150/hr+ custom fonts, wording, logos, etc.) (annual fee) production costs + .25C PPPM 1 A one-time fee of$10 per card is charged to the Participant for replacement cards and a one-time fee of$5 per card is charged to the Participant for each spouse and dependent card. Participants are provided with 2 cards at enrollment at no charge. 2 Fee charged by Hitesman&Wold, P.A. ©2013 Genesis Employee Benefits,Inc. 18 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) EXHIBIT C Authorized Representatives Name: Edmundo Gamboa Jr. Signature: i Name: Sean R. Stegall Signature: I ∎_//, Name: Signature: Name: Signature: ©2013 Genesis Employee Benefits,Inc. 19 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) CJ . a EXHIBIT D BUSINESS ASSOCIATE AGREEMENT [reflecting HITECH under ARRA] I. Purpose A. This Exhibit D - Business Associate is contractually obligated to provide certain services related to one or more "covered entities" as that term is defined and regulated under HIPAA. The parties to this Agreement acknowledge that (1) Business Associate is a "business associate" as that term is defined and regulated under the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"); and (2) Business Associate provides services to one of more"covered entities" as that term is defined and regulated under HIPAA. B. This Agreement is intended to constitute a "business associate" agreement between the Plan, as a Covered Entity, and the Business Associate, as required under the privacy and security provisions of HIPAA, as amended. Portions of HIPAA apply directly to Business Associate as provided in the Heath Information Technology for Economic and Clinical Health Act ("HITECH"), part of the American Recovery and Reinvestment Act of 2009 ("ARRA"). Business Associate's obligations under this Agreement may be the same as, or in some cases in addition to, Business Associate's own obligations under HIPAA as provided in HITECH. IL Special Definitions The following definitions are used by this Agreement: A. Agreement — means this Exhibit D - Business Associate Agreement, which is an agreement required under 45 C.F.R. Section 164.314(a)(2) between a Business Associate and a Covered Entity. B. ARRA— means the American Recovery and Reinvestment Act of 2009. C. Breach — means the unauthorized acquisition, access, use, or disclosure of Protected Health Information regarding a Covered Individual that compromises the security or privacy of the Protected Health Information as determined in accordance with 45 C.F.R. Section 164.402. Notwithstanding the foregoing, a Breach does not include: (1) any unintentional acquisition, access, or use of Protected Health Information by an employee or individual acting under the authority of Covered Entity or Business Associate and in the scope of the employment or relationship between the employee or individual and Covered Entity or Business Associate, provided such information is not further acquired, accessed, used, or disclosed by any person without authorization; (2) any inadvertent disclosure by an individual who is authorized to access Protected Health Information at Covered Entity's or Business Associate's facility to another similarly situated individual at the same facility, provided such information is not further acquired, accessed, used, or disclosed by any person without authorization; and (3) a disclosure of Protected Health Information in a situation in which Business Associate has a good faith belief that the person(s) to which the unauthorized disclosure was made would not reasonably have been able to retain such information. D. Business Associate — means Genesis Employee Benefits, Inc., a person described in 45 C.F.R. Section 160.103 who performs certain functions on behalf of a Covered Entity. E. Covered Electronic Transactions — shall have the meaning given to the term "transaction" in 45 C.F.R. Section 160.103. F. Covered Entity— means The Plan, an entity described in 45 C.F.R. Section 160.103. ©2013 Genesis Employee Benefits, Inc. 20 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) G. Covered Individual — means a person who is eligible for payment of certain services or supplies rendered or sold to the person or the person's eligible dependents under the terms, conditions, limitations, and exclusions of the Plan. H. Data Aggregation — means, with respect to Protected Health Information created or received by Business Associate in its capacity as a business associate (as that term is defined in 45 C.F.R. Section 160.103) of the Plan, the combining of such Protected Health Information by Business Associate with the Protected Health Information received by Business Associate in its capacity as a business associate of another covered entity (as those terms are defined in 45 C.F.R. Section 160.103), to permit data analyses that relate to the health care operations of the respective covered entities. I. Designated Record Set — means a group of records maintained by or for Covered Entity that is (1) the medical records and billing records about Individuals maintained by or for a covered health care provider, (2) the enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for Covered Entity, or (3) used, in whole or in part, by or for Covered Entity to make decisions about Individuals. As used herein, the term "Record" means any item, collection, or grouping of information that includes Protected Health Information and is maintained, collected, used or disseminated by or for Covered Entity. 3. Effective Date — means the effective date of the effective date of the Administration Agreement, unless specifically noted otherwise herein. K. Electronic Health Record — means an electronic record of health-related information regarding an Individual that is created, gathered, managed, and consulted by authorized health care clinicians and their staff. L. Electronic Protected Health Information — shall have the same meaning as the term "electronic protected health information" in 45 C.F.R. 160.103, limited to the information created, received, maintained, or transmitted by Business Associate from or on behalf of Covered Entity. M. HITECH — means Heath Information Technology for Economic and Clinical Health Act. N. HHS— means the United States Department of Health and Human Services. 0. Including — means"including but not limited to." P. Individual — shall have the same meaning as the term "individual" in 45 C.F.R. Section 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. Section 164.502(g). Q. Limited Data Set — shall have the same meaning as the term "limited data set" in 45 C.F.R. Section 164.514(e)(2). R. Plan — means the portions of the Adopting Employer's Flexible Benefits Plan that are subject to the Privacy Rule and Security Rule. S. Privacy Rule — means the Standards and Privacy of Individually Identifiable Health Information at 45 C.F.R. Part 160 and Part 164, subparts A and E and the privacy provisions of HIPAA, as amended. T. Protected Health Information — shall have the same meaning as the term "protected health information" in 45 C.F.R. 160.103, limited to the information created, received, maintained, or transmitted by Business Associate from or on behalf of Covered Entity. ©2013 Genesis Employee Benefits,Inc. 21 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) Protected Health Information specifically includes Electronic Protected Health Information. U. Provider — means a hospital or professional practitioner duly certified or licensed to provide health care services to Covered Individuals. V. Required By Law — shall have the same meaning as the term "required by law" in 45 C.F.R. Section 164.103. W. Secretary — means the Secretary of the Department of Health and Human Services or his/her designee. X. Security Incident — shall have the same meaning as the term "security incident" in 45 C.F.R. Section 164.304, unless defined differently in Covered Entity's policies and procedures for compliance with the Security Rule, which shall be provided to the Business Associate. Y. Security Rule — means the Security Standards and Implementation Specifications at 45 C.F.R. Part 160 and Part 164, subpart C and the security provisions of HIPAA, as amended. Z. Standards for Electronic Transactions Rule - means the final regulations issued by HHS concerning standard transactions and code sets under the Administrative Simplification provisions of HIPAA, 45 C.F.R. Part 160 and Part 162. AA. Subcontractor— means an agent of a Business Associate described in 45 C.F.R. Section 165.103 to whom the Business Associate provides protected health information that the Business Associate creates, receives, maintains, or transmits on behalf of a Covered Entity. BB. Unsecured Protected Health Information — means Protected Health Information that has not been rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary. As of August 24, 2009, the Secretary has specified the following technologies and methodologies that will render Protected Health Information unusable, unreadable, and indecipherable (i.e., secured Protected Health Information): (1) encryption as described in the Secretary's guidance and determined by the National Institute of Standard and Technology to meet the standards described in such guidance, or (2) destruction, in accordance with the procedures identified in the Secretary's guidance, of the media on which the Protected Health Information was stored or recorded. III. Privacy Provisions A. Introduction. Business Associate, on behalf of Covered Entity, performs or assists in the performance of functions and activities that may involve the use, disclosure, receipt and/or creation of Protected Health Information. The "business associate" provisions of the Privacy Rule govern the terms and conditions under which the Business Associate may use or disclose Protected Health Information. In general, Business Associate agrees and intends to act such that (1) Covered Entity can fulfill its responsibilities under HIPAA; and (2) Business Associate can fulfill its contractual obligations under this Agreement. In addition, Business Associate specifically acknowledges its direct liability for the failure to comply with certain portions of the Privacy Rule as provided under HITECH and the regulations issued thereunder. ©2013 Genesis Employee Benefits, Inc. 22 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) B. Permitted Uses and Disclosures by Business Associate. 1. Except as otherwise limited in this Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity pursuant to any services agreement with the Business Associate and as permitted or required by this Agreement or as Required by Law. 2. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information for the proper management and administration of its business or to carry out its legal responsibilities. 3. Except as otherwise limited in this Agreement, Business Associate may disclose Protected Health Information for the proper management and administration of its business, if: i) the disclosures are Required by Law, or ii) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will be held confidentially and will be used or further disclosed only as Required by Law or for the purpose for which it was disclosed to such person, and the person will notify the Business Associate of any instances of which the person is aware in which the confidentiality of the information has been breached. 4. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by 45 C.F.R. Section 164.504(e)(2)(i)(B). 5. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with 45 C.F.R. Section 164.502(j)(1). 6. Business Associate will limit the use, disclosure, or request of Protected Health Information, to the extent practicable, (i) to the Limited Data Set, or (ii) if needed by Business Associate, to the minimum necessary (as determined by Business Associate) to accomplish the intended purpose of such use, disclosure, or request, except to the extent a broader use, disclosure, or request of Protected Health Information is allowed by the Privacy Rule. Business Associate's ability to satisfy the requirement of this Paragraph III.B.6 by use of the Limited Data Set shall be available until the effective date of subsequent guidance issued by the Secretary regarding what constitutes "minimum necessary," at which time Business Associate will take reasonable efforts to limit the use, disclosure, or request of Protected Health Information to the minimum necessary (as defined by such Secretary's guidance) to accomplish the intended purpose of such use, disclosure, or request, except to the extent a broader use, disclosure, or request of Protected Health Information is allowed by the Privacy Rule. 7. Except as otherwise authorized by the Privacy Rule, Business Associate shall not directly or indirectly receive remuneration (whether financial or nonfinancial) in exchange for any Protected Health Information of a Covered Individual unless Covered Entity has received a valid authorization from the Covered Individual that includes a specification of whether the Protected Health Information can be further exchanged for remuneration by the entity receiving Protected Health Information of that Covered Individual. ©2013 Genesis Employee Benefits,Inc. 23 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) 401 8. Except as otherwise allowed by the Privacy Rule, Business Associate may not use or disclose Protected Health Information regarding a Covered Individual with respect to a communication about a product or service that encourages recipients of the communication to purchase or use the product or service unless Covered Entity receives no direct or indirect payment in exchange for making such communication and the communication is made to the Covered Individual: (i) to describe a health-related product or service (or payment for such product or service) that is provided by, or included in, the Plan, including communications about the entities participating in a health care provider network or health plan network, replacement of, or enhancements to, the Plan, and health-related products or services available only to Covered Individuals that add value to, but are not part of, the Plan; (ii) for treatment of the Covered Individual; or (iii) for case management or care coordination for the Covered Individual, or to direct or recommend alternative treatments, therapies, health care providers, or settings of care to the Covered Individual. Notwithstanding the foregoing, Business Associate may use or disclose Protected Health Information regarding a Covered Individual with respect to a communication about a product or service that encourages recipients of the communication to purchase or use the product or service if the communication relates to a prescription drug that is currently being prescribed for a Covered Individual and any financial remuneration received by Covered Entity in exchange for making the communication is reasonably related to Covered Entity's cost of making the communication. C. Limitations on Business Associate's Uses and Disclosures. With respect to Protected Health Information that Business Associate creates, receives, maintains, or transmits on behalf of Covered Entity, Business Associate will not use or further disclose the Protected Health Information other than as permitted or required by this Agreement (including, but not limited to, any restrictions described in Section III.E.4) or as Required by Law. D. Additional Obligations of Business Associate. Except as otherwise specified in this Agreement, the provisions of this Paragraph III.D. apply only to Protected Health Information that Business Associate creates, receives, maintains, or transmits on behalf of Covered Entity. 1. Safeguards. Business Associate will use appropriate safeguards to prevent the improper use of, disclosure of, and tampering with Protected Health Information and to reasonably and appropriately protect the confidentiality, integrity, and availability of the Protected Health Information. 2. Reporting and Mitigation. Business Associate will report to Covered Entity any acquisition, access, use, or disclosure of Protected Health Information of which Business Associate becomes aware, or that is reported to Business Associate by an agent or Subcontractor, that is in violation of this Agreement. Such report shall be made within ten (10) business days of its discovery (as that term is defined in 45 C.F.R. Section 164.410(a)(2)) by Business Associate. Business Associate agrees to promptly mitigate, to the extent practicable, any harmful effect that is known to Business Associate of an acquisition, access, use, or disclosure in violation of this Agreement. This obligation includes, but is not limited to, any acquisition, access, use, or disclosure of Unsecured Protected Health Information that may constitute a Breach. The determination of whether a Breach has occurred, and of the resultant action, shall be the responsibility of Covered Entity. 3. Agents and Subcontractors. Business Associate will enter into a written contract with any agent or Subcontractor who creates, receives, maintains, or transmits Protected Health Information on behalf of Business Associate that ©2013 Genesis Employee Benefits,Inc. 24 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) requires such agent or Subcontractor to comply with the same restrictions and conditions that apply by and through this Agreement to Business Associate with respect to such information. 4. Access to Protected Health Information. Within fifteen (15) days of a request by Covered Entity for access to Protected Health Information about a Covered Individual, Business Associate shall make available to Covered Entity or, as directed by Covered Entity, a Covered Individual such Protected Health Information contained in a Designated Record Set. If the Protected Health Information requested by Covered Entity is maintained in a Designated Record Set electronically, Business Associate shall make available, within the time period specified above, a copy of such information in the electronic form and format specified by Covered Entity, provided such information is readily producible in such form and format. If the information is not readily producible in such form and format, Business Associate shall make the information available in a readable electronic form and format as agreed to by the parties. In the event any Covered Individual requests access to Protected Health Information directly from Business Associate, Business Associate shall within five (5) days forward such request to Covered Entity. Notwithstanding anything herein to the contrary, Covered Entity shall be ultimately responsible for providing access to the requested Protected Health Information or making the determination to deny access to requested Protected Health Information. 5. Amendment of Protected Health Information. Within fifteen (15) days of receipt of a request from Covered Entity or a Covered Individual for the amendment of Protected Health Information or a record regarding a Covered Individual contained in a Designated Record Set, Business Associate shall (i) provide such information to Covered Entity for amendment, and (ii) incorporate any such amendments in the Protected Health Information as required by 45 C.F.R. Section 164.526. It shall be Covered Entity's responsibility to promptly notify Business Associate of the request for an amendment. Notwithstanding anything herein to the contrary, Covered Entity shall be ultimately responsible for determining whether the requested amendment shall be made and, if the request is denied, in whole or in part, complying with 45 C.F.R. Section 164.526. 6. Disclosure Accounting. Business Associate agrees to track such disclosures of Protected Health Information and information related to such disclosures as is necessary to enable Covered Entity to respond to a request by a Covered Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. Section 164.528. Within fifteen (15) days of receipt of notice from Covered Entity that it has received a request for an accounting of disclosures of Protected Health Information regarding a Covered Individual, Business Associate shall make available to Covered Entity such information as is in Business Associate's possession and is required for Covered Entity to make the accounting required by 45 C.F.R. Section 164.528. At a minimum, Business Associate shall provide Covered Entity with the following information: (i) the date of the disclosure; (ii) the name of the entity or person who received the Protected Health Information, and if known, the address of such entity or person; (iii) a brief description of the Protected Health Information disclosed; and, (iv) a brief statement of the purpose of such disclosure which includes an explanation of the basis for such disclosure. Business Associate hereby agrees to implement an appropriate record keeping process to enable it to comply with the requirements of this section and applicable law. It shall be Covered Entity's responsibility to promptly notify Business Associate of the request for an accounting, and to prepare and deliver any such accounting requested. In addition to the forgoing, Business Associate shall track other disclosures and/or make available to Covered Entity such information as is necessary for Covered ©2013 Genesis Employee Benefits,Inc. 25 Non-ERISA Flex Administration Agreement G (No. 13.1.2.0(IL)) `% Entity to comply with any additional accounting requirements effective as of the compliance date applicable under final regulations implementing such requirements. Notwithstanding anything herein to the contrary, Covered Entity shall be ultimately responsible for providing the disclosure accounting to the Covered Individual. 7. Access to Business Associate's Internal Records. Business Associate shall make its internal practices, books, and records relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to Covered Entity or the Secretary, for the purposes of the Secretary's determining compliance with HIPAA for Covered Entity and/or Business Associate. 8. Electronic Transactions. In the event the Business Associate transmits or receives any Covered Electronic Transaction on behalf of Covered Entity, it shall comply with all applicable provisions of the Standards for Electronic Transactions Rule to the extent Required by Law, and shall ensure that any agents and Subcontractors that assist Business Associate in conducting Covered Electronic Transactions on behalf of Covered Entity agree in writing to comply with the Standards for Electronic Transactions Rule to the extent Required by Law. E. Obligations and Rights of Covered Entity. 1. Notice of Privacy Practices. Covered Entity shall provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 C.F.R. Section 164.520, as well as any changes to such notice. 2. Requests by Covered Entity. Covered Entity shall not request or direct Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity. This includes, but is not limited to, requests or directions for disclosure of Protected Health Information to the Plan sponsor in a capacity other than acting on behalf of the Plan as Covered Entity. To the extent a dispute or difference of opinion exists between the Business Associate and Covered Entity regarding whether a use or disclosure is permissible, Business Associate may disclose the Protected Health Information under objection pursuant to the specific, written direction of Covered Entity. Any disclosures made pursuant to such specific, written direction shall be subject to the indemnification provisions of the Agreement. 3. Changes in Permission. Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate's use or disclosure of Protected Health Information. 4. Restrictions. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information to which Covered Entity has agreed in accordance with 45 C.F.R. Section 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information. Such restrictions include, but are not limited to, a Covered Individual's request not to disclose Protected Health Information for purposes of payment or health care operations where the Protected Health Information relates solely to a health item or service for which the health care provider has been paid in full out-of-pocket by, or on behalf of, the Covered Individual. 5. Agreement Breaches by Business Associate. If Covered Entity obtains knowledge of a pattern of activity or practice of Business Associate that ©2013 Genesis Employee Benefits,Inc. 26 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) 7° constitutes a material breach or violation of Business Associate's obligations under this Agreement, Covered Entity will take reasonable steps to cure such breach or end such violation. If Covered Entity cannot successfully cure the breach or end the violation, Covered Entity shall terminate the Agreement in accordance with Section VI.B if feasible. IV. Electronic Security Provisions A. Introduction. This section applies where Business Associate, on behalf of Covered Entity, performs or assists in the performance of functions and activities that may involve the creation, maintenance, receipt, or transmission of Electronic Protected Health Information. This Section IV along with the other sections of the Business Associate Agreement are (1) intended to meet the requirements of the "business associate" provisions of Security Rule, and (2) govern the terms and conditions under which the Business Associate may create, maintain, receive, and transmit Electronic Protected Health Information on behalf of Covered Entity. In general, Business Associate agrees and intends to act such that (1) Covered Entity can fulfill its responsibilities under HIPAA; (2) Business Associate can fulfill its responsibilities under HIPAA; and (3) Business Associate can fulfill its contractual obligations under this Agreement. B. Obligations of Business Associate. In accordance with the Security Rule, Business Associate agrees to: 1. Conduct a security risk assessment (in accordance with 45 C.F.R. Section 164.308(a)(1)(ii)(A)) and adopt and implement policies and procedures designed to ensure compliance with the Security Rule and this Agreement including, but not limited to, identifying a security officer and training personnel. 2. Implement administrative, physical and technical safeguards (including written policies and procedures) that reasonably and appropriately protect the confidentiality, integrity, and availability of the Electronic Protected Health Information that Business Associate creates, maintains, receives, or transmits on behalf of Covered Entity; 3. Report to Covered Entity any Security Incident of which Business Associate becomes aware within ten (10) business days of its discovery by the Business Associate; 4. Promptly mitigate, to the extent practicable, any harmful effect of a Security Incident that is known to Business Associate; and 5. Enter into a written contract with any agent or Subcontractor to whom Business Associate provides Electronic Protected Health Information that requires such agent or Subcontractor to comply with the same restrictions and conditions that apply under this Section IV to Business Associate, including, but not limited to, implementing reasonable and appropriate safeguards to protect such information. C. Obligations of Covered Entity. Covered Entity shall not request or direct Business Associate to create, maintain, receive, or transmit Electronic Protected Health Information in any manner that would not be permissible under the Security Rule. V. Breach Notification Requirements If Business Associate accesses, maintains, retains, modifies, records, stores, destroys, or otherwise holds, uses, or discloses Unsecured Protected Health Information, Business Associate shall notify Covered Entity of a Breach of such Unsecured Protected Health Information without unreasonable delay, but no later than sixty (60) days following discovery of the Breach. Such notice shall include an identification of each Covered Individual whose Unsecured Protected ©2013 Genesis Employee Benefits,Inc. 27 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, or disclosed during such Breach and any other available information needed by Covered Entity to enable it to comply with its notification obligations under the Privacy Rule and Security Rule. For purposes of this Section V, a Breach is deemed to have been discovered by Business Associate upon the first day on which such Breach is known, or by exercising reasonable diligence would have been known, to Business Associate (including any person, other than the individual committing the Breach, that is an employee, officer or agent of Business Associate (determined in accordance with the Federal common law of agency)). VI. Term and Termination A. Term. The Term of this Agreement will begin and become effective on the Effective Date and shall terminate when all of the Protected Health Information created or received by Business Associate on behalf of Covered Entity is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section VI. B. Termination. In the event that a party (the "non-breaching party") discovers and determines that the other party (the "breaching party") materially breached or violated any of its obligations under this Agreement, the non-breaching party will notify the breaching party of such breach in writing and may immediately terminate the Agreement upon notice to the breaching party or may provide the breaching party with an opportunity to take reasonable steps to cure the breach or end the violation, as applicable, within a mutually agreed upon period of time. If the breaching party's attempts to cure the breach or end the violation are unsuccessful within that period, without limiting the rights of the parties under the Agreement, the non-breaching party may immediately terminate the Agreement upon notice to the breaching party. C. Effect of Relationship Termination. 1. Except as provided in paragraphs (b) and/or (c) of this sub-section, upon termination of the Agreement, for any reason, Business Associate shall return or destroy all Protected Health Information created or received by it on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of Business Associate and/or its Subcontractors or agents. Business Associate will not retain any copies of Protected Health Information. 2. In the event that Business Associate determines that returning or destroying Protected Health Information is infeasible, Business Associate will notify Covered Entity of the conditions that make return or destruction infeasible. Upon mutual agreement of the parties that return or destruction of Protected Health Information is infeasible, Business Associate will extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information. 3. Should Covered Entity notify Business Associate that the information necessary to comply with the recordkeeping requirements under other applicable law includes the Protected Health Information, Business Associate shall return or provide to Covered Entity such information, including Protected Health Information. ©2013 Genesis Employee Benefits, Inc. 28 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) 1 VII. General Provisions A. Regulatory References. A reference in this Agreement to a section in the Privacy Rule or the Security Rule means the section as in effect or as amended. B. Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity and/or Business Associate to comply with the requirements of the Privacy Rule, the Security Rule, and the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191. C. Interpretation. Any ambiguity in this Agreement shall be resolved to permit each party to comply with the Privacy Rule and the Security Rule, if applicable. D. Survival. The respective rights and obligations under this Agreement shall survive the termination of this Agreement and any related agreement, Including a services agreement. E. Indemnity. Each party will indemnify, hold harmless, and defend the other party and its affiliates, officers, directors, employees or agents from and against any claim, cause of action, liability, damage, cost or expense, including attorneys' fees and court or proceeding costs, arising out of or in connection with any non-permitted or violating use or disclosure of Protected Health Information or other breach of this Agreement by such party or any Subcontractor, agent, person or entity under such party's control. F. No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties hereto, any rights obligations, or liabilities whatsoever. G. Conformance with Law. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for the parties to comply with the requirements of HIPAA as they apply to each party. H. Action. For purposes of this Agreement, whenever action is required by a party to this Agreement, such action must be taken by a person or persons with authority to act on behalf of such party to this Agreement. I. Governing Law. This Agreement shall be governed by the law of Illinois, except to the extent preempted by federal law. J. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. K. Notices. All notices and communications required by this Agreement shall be in writing. Such notices and communications shall be given in one of the following forms: (i) by delivery in person, (ii) by a nationally-recognized, next-day courier service, (iii) by first- class, registered or certified mail, postage prepaid; or (iv) by electronic mail to the address that each party specifies in writing. L. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral, with regard to this same subject matter. Notwithstanding the foregoing, this Agreement is intended to supplement (rather than supersede) the agreement between Business Associate and the sponsor of the Plan related to the services that Business Associate provides with respect to administration of the Plan. ©2013 Genesis Employee Benefits,Inc. 29 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL)) . 4 t M. Counterparts. This Agreement may be executed in counterparts, each of which so executed shall be construed to be an original, but all of which together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Transmission by facsimile or electronic mail of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart. This Agreement and any amendment or modification may not be denied legal effect or enforceability solely because it is in electronic form, or because an electronic signature or electronic record was used in its formation. ©2013 Genesis Employee Benefits,Inc. 30 Non-ERISA Flex Administration Agreement (No. 13.1.2.0(IL))