3.10. SR 12-01-2008REQUEST FOR ACTION
ver
To Item Number
Ci Council 3.10.
Agenda Section Meeting Date Prepared by
Consent December 1, 2008 Lauren Wipper, Human Resource
Re resentative
Item Description Reviewed by
Commercial Driver's License Random Drug and Alcohol
Testing Agreement Reviewed by
Action Requested
Approve the attached Agreement and Amendment which allows for FirstLab to provide services to the
City for its Commercial Driver's License (CDL) Random Drug and Alcohol Testing Program.
Background/Discussion
For the past several years, the City has contracted with Minnesota Counties Insurance Trust (MCIT) to
provide required random drug and alcohol testing fox our 25 CDL drivers. MCIT contracted with
FirstLab to do the random selection, billing and other required elements of this program. The increased
demand in program administration has taken more of MCIT's time than they can give so they have
decided to discontinue their drug and alcohol testing program effective December 31, 2008.
FirstLab has agreed to continue to provide service to MCIT's members under a new contract. This
contract has been review by MCIT as well as the City's attorney which resulted in the attached
amendment.
Financial Impact
The City paid $250.00 per year membership to participate in MCIT's pool. Although the cost per
random testis increasing, I expect the increase to be offset by the $250.00 membership savings.
Attachments
^ FirstLab Service Agreement
^ November 25, 2008 Amendment
Action Motion by Second by Vote
Follow Up
FmSTLAB SERVICE AGREEMENT
Consortium Member
(C7ieut)
Contact Name/DER
.~~rst.Lab°
Email
Address
City, State, Zip
Telephone Fax
ARTICLE I.
Services To Be Provided By FIItSTLAB
1.1 FiRSTLAS agrees to provide the following services to CLIENT:
1.1(a) Policy and Procedure Development
FIRSTLAB shall assist CLIENT in reviewing and revising its existing drug testing policy and program or in developing its drug
and breath alcohol testing policy and program in a manner that conforms to federal, state, and local regulations, if applicable.
1.1(b) Specimen Collection
FI1tSTLAS will assist CLIEtvT in locating collection sites that offer services by qualified specimen collectors and Breath
Alcohol Technicians (BATS) meeting all DOT regulations, as amended. FirstLab will monitor the work conducted at
the collection sites to ensure that all chain-of-custody procedures aze appropriately completed.
1.1(c) Breath Alcohol Testing
FIRSTLAB will receive copies of all breath alcohol test results performed on behalf of CLIENT and provide CLIENT with
access to consolidated statistical and monitoring reports via FmsTLAS's Internet site.
1.1(d) Laboratory Testing
If CLIENT desires FIRSTLAB will provide CLIENT with testing of specimens by subcontractor laboratories certified by the
Department of Health and Human Services (DHHS).
1.1(e) Reporting
FIxSTLAB will provide CLIENT with web-enabled result reporting of all verified results to aid in the drug screening process
and for use as a management tool. In addition, FirstLab will provide CLIENT with the ability to generate and/or access
statistical and employee reports on drug and alcohol testing via the Internet.
1.1(f) Proficiency Testing
If desired, FIItsTLAB will provide CLIENT with blind proficiency specimens which FirstLab will submit to the testing
laboratory on behalf of CLIENT for the purpose of establishing and maintaining quality assurance and quality control of lab
results and to comply with federal regulations, if applicable.
1.1(g) Random Testing Selection
FIxSTLAS will provide CLIENT with a random testing selection system, if appropriate, to provide for compliance with federal
regulations, if applicable.
1.1(h) Expert Witness Services
FIxsTLas will provide CLIENT with expert witness services in the event of any litigation or arbitration wherein the provision
of expert testimony by FIxSTLAB is appropriate. The availability of experts is subject to change. FutsTLAB cannot
guazantee that personnel involved in the testing of a particulaz individual will remain available to provide testimony. Fees
charged for Expert Witness Services shall apply to time spent preparing testimony, travel time, waiting time, and time spent
actually giving testimony. Fees charged shall be at the rate currently in effect at the time the testimony is required. The
current fees aze set forth in ARTICLE II of this agreement and may be subject to change.
1.1(j) Telephone Consultation
FixSTLAB shall make its staff of trained specialists and experts available to CLIENT by telephone for consultation on any
substance abuse testing issues that may arise during FmSTLAB's performance hereunder.
1.1(k) Customer Support
FixSTLAB will provide an appropriate number of personnel, well trained in drug and alcohol testing technical and
regulatory requirements, to provide assistance to the CLIENT when necessary. This includes, but is not limited to,
a) After-hours emergency support for locating collection facilities and/or personnel to perform post
accident and reasonable suspicion testing.
b) Assistance in finding and setting up one-time specimen collection and breath alcohol testing facilities using
the FirstRequest® Internet system.
1.2 Medical Review Officer (MRO) Services
FIxSTLAB shall provide MRO services to CLIENT in accordance with the following terms and conditions:
1.2(a) MRO Qualifications
The MRO shall be a licensed physician who has knowledge of substance abuse disorders and has appropriate
medical training to interpret and evaluate drug test results in accordance with applicable federal regulations. The MRO
shall meet the qualification training standards established by the DOT and DHHS.
1.2(b) MRO Duties
The MRO's duties will be (i) the review of drug test results, (ii) the contact and interviewing of applicants and
employees whose test results are reported asnon-negative (e.g. positive, adulterated, substituted, and invalid)
(iii) the determination of alternative medical explanations for the results, as appropriate and (iv) the reporting of verified
results to designated representatives of CLIENT.
1.2(c) Confidentiality
In carrying out the foregoing duties, the MRO may become aware of such sensitive medical information as an
individual's medical condition, medications, medical diagnosis, and medical history. Such information will be kept in
strictest confidence by the MRO and will not be released or used for any purpose not related to the MRO's duties.
Medical information deemed to affect the employee's medical qualification status or to affect workplace or public safety
will be reported to the CLIENT'S designated representative in accordance with applicable federal or state regulations..
1.2(d) Receipt and Review of Drug Test Results:
The MRO shall receive drug test results from the laboratory via secure electronic download or facsimile. For all non-
negative laboratory results, the MRO shall require a copy of the laboratory test result signed by the laboratory certifying
scientist. In addition for all DOT-regulated drug tests, the MRO shall require a copy of the federal custody and control
form containing the applicantlemployee's signature. The MRO shall perform a review of these documents prior to
verifying and reporting the final test result determination. If the documents require correction or completion, the MRO
shall request same from the collection site or the laboratory as appropriate and in accordance with applicable federal
regulations. The MRO shall contact the laboratory scientists as appropriate to discuss atypical test results, to request
additional information, or to order additional analysis of the specimen as required by applicable federal regulations.
1.2(e) Donor Interview and Interpretation ofNon-Negative Results.
The MRO shall contact the specimen donor (applicant or employee) via telephone using the numbers provided by the
donor at the time of the test. If the MRO is unsuccessful in wntacting the donor after multiple tries in a 24 hour period, the
MRO shall contact the CLIENT designated representative for assistance. Non-negative test results will be reported to the
CLIENT without an interview with the donor only in circumstances pemutted under applicable federal regulations.
The MRO shall conduct a telephonic interview with the donor, offering the donor the opportunity to present documentation
of an alternative medical explanation for the test result. After receipt and review of such documentation and its
acceptability to the MRO, the MRO will verify the test as negative or cancelled depending on the circumstances. The
MRO's interpretation and verification of non-negative results will follow the dictates of applicable federal regulations. If
there is no acceptable medical explanation for the laboratory findings, the MRO will report the results to the CLIENT as a
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non-negative result. All non-negative verified test results will be signed and reported by the MRO. In circumstances of a
verified positive, adulterated or substituted test result, the MRO shall notify the donor of his/her right to have the split
specimen reconfirmed in accordance with applicable federal regulations.
1.2(f) Reporting and retrieval of Verified Test Results
Once the MRO verifies anon-negative test result, the C1,IINT may access all results through the FirStLab Result Retrieval
System in a secure and confidential manner. For all non-negative verified results, The C[.iErr~' will receive a call from a
member of the FirstLab MRO Staff or their FirstLab Account Manager to alert them that a verified non-negative test result
is being released to the FirstLab Result Retrieval System.
ARTICLE II
2.1 Compensation
The following Drug Testing services aze included in the per-test fee:
Specimen Collection at Approved Sites*
All Chain-of-Custody and Specimen Collection Supplies
Transportation of Specimens to the Laboratory
DHHS Laboratory Testing
GC/MS Confirmation of all Positive Drug Screening Results
MRO Review of Results
Emergency After-Hours Testing Support
Tracking of Breath Alcohol Testing Statistics
Random Generation
Audit Support
Internet Result Retrieval System & Internet Reports
Unlimited Telephone Consultation
24 Hour aDay/Seven Day a Week Toll-Free Hotline
Consolidated Billing
Drug Testing
When collected at an agreed upon facility $39.00* per test
Alcohol Testing
When collected at an agreed upon facility $ 35.00 per test
On-Site Drue Testine
Minimum of 5 donors per on-site event $ 42.50** per test
On-Site Alcohol Testing
Minimum of 5 donors per on-site event $ 35.00** per test
Additional Services
Reanalysis or split specimen analysis
by alternate DHHS Laboratory
DOT D/A Background Check
Supervisor Training Video and Manual
Supervisor Video, Manual and Training Session
Employee Drug Awazeness Manual
Review of Existing Policy & Procedures
Policy & Procedures Development
Expert Witness Services (FirstLab Personnel)
$125.00 each
$ 25.00 each
$250.00 each
$400.00 + travel and expenses
$ 8.00 per manual
$100.00/hour billed in %: hour increments
$400.00
$150.00/hr plus expenses not to
Exceed $1500/day
Expert Witness (Lab or Collector Personnel) Pass through of charges + $25.00
FirstLab set up fee per witness
Litigation Package Pass through of Lab Fees plus an admin. Fee
of $25.00
IT Development Time To Be Determined
FirstLab believes it has assembled a uniquely comprehensive menu of reports. However if the client requires
customization of functions or reports outside our current standazd offerings, FirstLab may charge for development
time. Each project will be examined on a case by case basis to determine pricing.
* Your per test pricing may not the standazd listed above due to the use of Third Party Sites that chazge higher
collection fees. Pricing above is based on collections performed at laboratory Patient Service Centers (PSCs),
Concentra, EMSI or US Healthworks nationwide. All other third party collection sites aze priced on a case-by-case
basis if needed.
2.2 **Additional Fees for On-Site Services
In cases where FirstLab is asked to coordinate after-hours or on-site testing services, additional fees MAY BE
incurred due to circumstances beyond FirstLab's control. If FirstLab is billed by the collector for these additional
fees, they will be reflected on the Client's bill as a direct pass through. The fees listed below represent potential
fees that may be chazged under the circumstances indicated. These fees may vary depending on available
resources. In most cases, pass through fees will be .less than the indicated fees. FirstLab will ALWAYS strive to
find the most cost effective solution to client's needs.
Emergency Collection Fee
(Less than 72 hours prior notice)
Mileage Fee for Collector's Travel
To On-Sites
Waiting Time (On-Site Collections)
No Shows (On-Site Collections)
Set Up Fees (On-Site Collections)
$200/hour/collector
(portal to portal)
$ 0.50/mile
(portal to portal)
$50.00/hour
$25 per collection missed
$50.00
ARTICLE III
General Terms and Conditions
3.1. Payment Terms
FIxSTLAB will bill CLIErrT for all services provided on a monthly basis. Payment shall be due within thirty (30) days of the
date of FIItsTLAB's bill. FirstLab shall have the right to charge interest on any and all unpaid amounts at the rate of
1.5% per month
3.2. Independent Contractors
Both parties to this Agreement are independent contractors, and nothing contained herein shall be construed to place
the parties in the relationship of partners, joint ventures, principal-agent or employer-employee. Neither party shall have
the power to obligate or bind the other whatsoever beyond the terms of this Agreement. As an independent contractor,
CLIENT agrees to comply with and shall be responsible for all requirements of federal, state, and local laws and
regulations relating to testing.
3.3. Term and Termination
This Agreement shall exist for an initial period of one yeaz from the date of execution of this Agreement and shall be
automatically renewed for additional one year periods on each anniversary of that execution unless eazlier terminated
pursuant to the terms hereof. Either party may cancel this Agreement at any time for any reason by giving written
notice of termination to the other party, such termination to become effective sixty (60) days after receipt by a party of
the notice of termination.
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3.4. Significant Changes
If, during the term of this Agreement, there is a significant change in the requirements applicable to the provision of MRO
services, or other services covered under this Agreement as the result of regulatory changes, or changes mandated by federal
or state law or FirstLab incurs significant price increases from its sub-contractors, both parties agree to renegotiate the
services and fees provided herein upon sixty (60) days written notice.
3.5. Indemnification
FixSTLAB hereby agrees to defend, hold harmless, and indemnify the CI.,IIIVT against and from any and all demands, claims,
suits, actions, and/or damages arising, or alleged to arise, from the conduct, acts, and/or omissions of FIItSTLAB or its
subcontractors. FmSTLAS shall not defend, hold harmless and/or indemnify the Ci.iEtv'r against any demands, claims, suits,
actions, and/or damages arising or alleged to arise, out of the acts, conduct and/or omissions, in whole or in part, of the
CLiErrr or any testing laboratory or collection facility designated by the Cr.IEN'r to conduct drug tests on behalf of the
CLIENT not previously approved by FIRSTLAB.
The CLiEtvT agrees to defend, hold harmless, and indemnify FIxSTLAS against and from any and all demands, claims, suits,
actions, and/or damages arising, or alleged to arise, from the conduct, acts, and/or omissions of the CLIENT or any testing
laboratory or collection facility designated by the CLIENT to conduct drug tests on behalf of the CLIENT not previously
approved by FIRSTLAB.
3.6. Insurance
FIRSTLAB and CLIENT shall each procure and maintain, during the term of this Agreement, policies of general liability
insurance in the amounts of $1,000,000 per occurrence and $3,000,000 aggregate annual coverage. Such insurance shall be
with an insurer licensed to do business in the Commonwealth of Virginia and having an A.M. Best's rating of B+ or better.
Each party shall provide the other with a certificate of such coverage upon written request.
3.7. No Third Party Beneficiaries
Nothing in this Agreement shall entitle any person other than the undersigned parties to any claim, cause of action, remedy
or right of any kind.
3.8. Law to Govern
This Agreement shall be executed, construed, performed and enforced in accordance with the substantive laws of the
Commonwealth of V irginia without reference to conflict-of--laws principles.
3.9. Sections and Other Headings
The section headings contained in this Agreement aze for reference purposes only and shall not, in any way, affect the
meaning or interpretation of this Agreement.
3.10. No Assignment
This Agreement is not assignable without the written consent of both parties. Notwithstanding the foregoing, FutSTLAs
reserves the right to assign this Agreement to a related entity. The foregoing shall not be construed to preclude FIItSTL.AB
with subcontracting to duly qualified testing laboratories.
3.11. Notice
Any notices permitted or required by this Agreement shall be deemed made on the day personally delivered in
writing or mail by certified mail, first-class postage prepaid, to the other party at the address set forth below or to
such other persons and address as either party may designate in writing.
To FIxSTLAS: Dennis J. Bennett
President
1364 Welsh Road, Suite C-2
North Wales, PA 19454-1913
With a Copy to: Mary Ellen Petti
Chief Development Officer
1364 Welsh Road, Suite C-2
North Wales, PA 19454-1913
3.12. Severability
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any
other provision.
3.13. Amendment
Any amendment to this Agreement shall be effective only if in writing and signed by authorized agents of the parties hereto.
3.14. Entire Agreement
Notwithstanding any prior Agreements or understandings, written or oral, this Agreement constitutes the entire
Agreement of the parties with respect to the subject matter hereof.
3.15. No Waiver
No waiver of a breach of any provision of this Agreement shall be construed as a waiver of any breach of any other
provision. No delay in acting, or failure to act, with regard to any breach of any provision of this Agreement shall be
construed to be waiver of such breach.
3.16. Authorization for Agreement
The execution and performance of this Agreement by FIItsTLAS and CLIENT have been duly authorized by all
necessary laws, resolutions or corporate action and this Agreement constitutes the valid and enforceable obligations of
FIxsTLAB and CLIENT in accordance with its terms.
In Witness Thereof, the parties hereto have caused this agreement to be executed as of the day and yeaz executed below:
FOR CLIENT
Signature
Printed Name
Company
Title
Date
FOR FIRSTLAB
Signature
Printed Name Marv Ellen Petti
Title Chief Development Officer
Date October 13, 2008
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~'`~-~~
FirstLab
November 26, 2008
Dear MCIT Member:
On September 17, 2008, MCIT sent a letter to its member counties proposing changes to the service
agreement between FirstLab and the individual MCIT member counties which was sent to all members
9/10/08.
Accordingly, FirstLab wishes to amend the current contract language as follows:
SEC. # SECTION HEADER PROPOSED AMENDMENT LANGUAGE
1.1 (b) Specimen Collection FirstLab will endeavor, wherever possible to provide collections
at laboratory-owned and operated Patient Service Centers
(PSCs), Concentra, EMSI or US Healthworks clinics. The
pricing provided in this contract would include all of the above.
It is FirstLab's intention to provide collections at facilities that
are mutually acceptable to FirstLab and the Client. Per test fees
have been calculated based on an average of the fees charged by
various collection sites.
If, however, the Client chooses to utilize a clinic or 3rd party
physician's office whose pricing falls outside the average used
to calculate the "standard" fee offered to MCIT's members,
FirstLab reserves the right to negotiate a fee specific to the use
of that facility by a specific Client.
The clinic currently in use by the city of Elk River is Fairview
Northland Clinics. The costs for utilizing this clinic for
drug and alcohol testing will be as follows:
Drug Testing $46.00 uer test
Alcohol Testing $52.00 per test
1.1 (e) Reporting FirstLab will provide all data to the Client in a manner that is
convenient to the Client. FirstLab agrees to abide by the
applicable provisions of the Minnesota Data Practices Act,
Minnesota Statutes, Chapter 13, HIPAA requirements and all
other applicable state or federal rules, regulations or orders
pertaining to privacy or confidentiality. FirstLab understands
that all of the data created, collected, received, stored, used,
maintained or disseminated by FirstLab in performing those
functions that Client would perform as a government entity, is
subject to the requirements of Chapter 13, and FirstLab will
comply with those requirements as if it were a government
entity. This does not create a duty on the part of FirstLab to
provide the public with access to public data if the public data is
available from the government entity, except as required by the
terms of this contract.
1.1 (h) Expert Witness Services FirstLab will provide expert testimony, when requested by the
Client.
3.1 Payment Terms In making payments to FirstLab, the Client will comply with the
timeline for counties & cities to pay bills, as detailed in
Minnesota Statute 471.425 (the prompt pay statute).
3.3 Term and Termination Either party may cancel this Agreement at any time for any reason by
giving written notice of termination to the other party, such
termination to become effective ninety (90) days after receipt by a
party of the notice of termination.
3.5 Indemnification FirstLab warrants that its drug and alcohol testing policies,
procedures and practices do and will at all times during the term
of this Agreement comply with state and federal laws, rules and
regulations. In consideration of the Client using FirstLab's drug
and alcohol testing program, FirstLab agrees to defend,
indemnify and hold the Client or its officials, officers,
employees, volunteers or agents harmless from any and all
liability, claims, suits, losses, damages, punitive or otherwise,
costs, expenses and attorney's fees which Client or its officials,
officers, employees, volunteers or agents may sustain, incur or
be required to pay during or after the term of this Agreement by
reason of the failure of FirstLab's drug and alcohol testing
policies, procedures and practices to comply with any applicable
state or federal law, rule or regulation.
FirstLab also agrees to defend, indemnify and hold Client and its
officials, officers, employees, volunteers or agents harmless
from any and all liability, claims, suits losses, damages, punitive
or otherwise, costs, expenses and attorney's fees which Client or
its officials, officers, employees, volunteers or agents may
sustain, incur or be required to pay during or after the term of
this Agreement by reason of any negligent act or omission or
intentional act of FirstLab, its agents, employees or
subcontractors, which causes bodily or personal injury, death, or
property damage or loss to another or others. In the case of any
actions or proceedings brought against Client by reason of any
such claim, upon notice from Client, FirstLab covenants to
defend the action or proceeding by counsel satisfactory to
Client.
First Lab will not defend, hold harmless, and/or indemnify
Client against any demands, claims, suits, actions and/or
damages arising or alleged to arise, out of the acts, conduct
and/or omissions, in whole or in part, of Client or any testing
laboratory or collection facility designated by Client to conduct
drug test on behalf of Client not approved by FirstLab.
1364 Welsh Road, Suite C-2, North Wales, PA 19454-1913 ~ (800) 732-3784
International (215) 540-1651 ~ Fax (215) 641-4959 ~ www.fustlab.com
Client agrees to indemnify, defend and hold FirstLab and its
directors, officers, agents and employees harmless from any
loss, cost and expense (including court costs and attorneys' fees)
to FirstLab, arising out of or resulting from Client's performance
of its obligations under this Agreement.
3.6 Insurance Insurance coverage with MCIT will satisfy Client's obligations
under this provision, regardless of stated limits, and nothing in
this Agreement shall be construed to waive any governmental
tort caps and/or immunities applicable to Client.
3.8 Law to Govern This Agreement shall be executed, construed, performed and
enforced in accordance with the substantive laws of the State
of Minnesota without reference to conflict-of--laws principles.
Any suits arising out of this Agreement will be venued in
Sherburne County in the State of Minnesota,
3.11 Notice Any notices permitted or required by this Agreement shall be
deemed made on the day personally delivered in writing or mail
by verified mail, first-class postage prepaid, to the other party at
the address set forth below or to such other persons and address
as either party may designate in writing.
To FirstLab: Dennis J. Bennett
President
1364 Welsh Road, Suite C-2
North Wales, PA 19454-1913
With a Copy to: Mary Ellen Petti
Chief Development Officer
1364 Welsh Road, Suite C-2
North Wales, PA 19454-1913
To Client: Lauren Wipper
Human Resource Representative
13065 Orono Parkway
Elk River, MN 55330
All other fees, terms and conditions of the main FirstLab service agreement shall continue in full force
and effect.
To execute this Amendment, please print and sign 2 copies. Keep one copy for your files and return one
to me at FirstLab's North Wales, PA address along with a fully executed copy of your FirstLab contract.
Thank you very much for your continued confidence in FirstLab. We look forward to working with you
on this project.
1364 Welsh Road, Suite C-2, North Wales, PA 19454-1913 ~ (800) 732-3784
International (215) 540-1651 ~ Fax (215) 641-4959 ~ www.firstlab.com
For FirstLab
For
Signature: *~ Signature:
Name: Mary Ellen Petti Name:
Title: Chief Development Officer Title:
Date: November 26, 2008 Date:
Lori Johnson
City Administrator
December 1, 2008
1364 Welsh Road, Suite C-2, North Wales, PA 19454-1913 ~ (800) 732-3784
International (215) 540-1651 ~ Fax (215) 641-4959 ~ www.firstlab.com