STATE OF NEW MEXICO COUNTY OF DONA ANA THIRD JUDICIAL DISTRICT COURT NEW MEXICO IN DEPTH, a New Mexico Corporation; and LAS CRUCES SUN NEWS, a DBA of New Mexico-Texas Medianews Group, Inc., Plaintiffs, v. IUDGE DRIGGERS NEW MEXICO HUMAN SERVICES DEPARTMENT, Defendant. RESPONSE TO BRIEF CONCERNING THE PROTECTION OF DOCUMENTS UNDER THE INSPECTION OF PUBLIC RECORDS ACT COMES NOW Plaintiffs, by and through undersigned counsel, and enter the following response to Defendant's Brief Concerning the Protection of Documents Under the Inspection of Public Records Act: FACTUAL BACKGROUND On February 5, 2013, Defendant New Mexico Human Services Department (hereinafter entered into a contract with Public Consulting Group, Inc. (hereinafter a corporation whose principal place of business is in Boston, Massachusetts. A copy of the contract between and PCG is attached hereto as Exhibit A. The contract is seventeen (l 7) pages in length and lays out the duties and responsibilities of the parties to that contract. In exchange for three millions dollars PCG was to conduct an audit of Medicaid payments rendered to private health care providers in New Mexico. The scope of work establishing standards for financial and IT/Policy audits, leading audit teams, coordinating audits I with MCO and/or State staff, leading interviews of provider staff and/or others, as appropriate and producing the final audit reports. Conspicuously absent from any part of the seventeen page contract is any mention of investigating fraud, conducting a criminal investigation, or the involvement of law enforcement or prosecuting agencies in receiving or compiling the audit. In June, 2013, the completed audit by PCG was transmitted to Nl\zfliSD. Plaintiffs, by and through their respective journalist employees, filed numerous requests for disclosure of information with Said requests for disclosure were denied by which cited the law enforcement exception to the New Mexico Public Records Act, NMSA 1978 14-2-l, et. seq. For more information on specific dates of the requests by Plaintiffs and denials by Defendant, please see the Plaintiffs Complaint and Defendant's Answer. Plaintiffs filed suit on August 27, 2013, to enforce IPRA and compel disclosure of the audit. ARGUIVIENT AND AUTHORITY I. THE NEW MEXICO HUMAN SERVICES DEPARTMENT IS NOT A LAW ENFORCEIVIENT OR PROSECUTING AGENCY is not a law enforcement agency or a prosecuting agency. Therefore, NMSA 14- does not apply. The New Mexico Human Services Department is a department of the executive branch of the government of the State of New Mexico. The laws promulgating its creation and operation are contained in NMSA 1978 9-8-1, et. seq. NMI-ISD's purpose, as definedb statute is' "The purpose of the Human Services Department is to estabiish a single, unified department to administer laws and exercise fimctions relating to human services and formerly administered and exercised by the 2 administrative services unit, the state welfare and social services agencies of the health and social services department and the committee on children and youth." NMSA 1978 9-8-3 All powers and authority of NMI-ISD lie with the Secretary of the Human Services Department, whose duties and general powers are described in NMSA 1978 9-8-6. There is no provision, express or implied, that the New Mexico Human Services Department investigates or prosecutes violations of any criminal law of the State of New Mexico. At best, it can claim some civil enforcement power in the context of specific state statutes, such as to enforce to child support payments, however it is not a law enforcement or prosecuting agency under IPRA. For purposes of IPRA, Plaintiffs concede that the Attorney General of New Mexico fits the definition of a law enforcement or prosecuting agency as used in the statute. This would also include any local district attorney, the New Mexico State Police and any other state or local law enforcement agency g. the Las Cruces Police Departrnent) as these entities are specifically designated and authorized by law to conduct criminal investigations and prosecute violators of criminal statutes. As Defendant points out in its brief, there is no New Mexico case directly on point and Defendant asks this Court to rely on Griffith Laboratories v. Metropolitan Sanitary District of 168 Ill.App.3d 341, 522 744 (1988) for guidance on this issue. In an Illinois appellate court held that a subdivision of Illinois state government, Metropolitan Sanitary District of Chicago (MSDC), properly withheld public records from disclosure because the records sought to be disclosed were reasonably contemplated for use in an enforcement proceeding under the User Charge Statute, which is a specific statute authorizing MSDC to prosecute or enforce that specific statute, as provided by Illinois law. I_d. 522 N.E. 744 at 748. In the instant case at bar, the Medicaid Fraud Act, NMSA 1978 30--44--3 limits any investigation and enforcement of criminal violations to the Attorney General and the individual district attorneys of the State of New Mexico. It specifically grants limited authority to to investigate and seek civil remedies, not to investigate and enforce potential criminal violations of the Medicaid Fraud Act, the legal authority for such actions being delegated to the New Mexico Attorney General or any of New Mexico's district attorneys. Defendant asks that this Court disregard NMSA 1978 30-44-3 and hold that civil investigatory powers fall under the law enforcement exception to IPRA, despite the fact that the New Mexico Legislature specifically worded the law enforcement exception and used "criminal investigation or prosecution" and made no distinction for state agencies authorized by law to undertake civil, non-criminal investigations. _G_r_i_fl has no application under the facts of this case and should be disregarded by this Court in deciding the issues in the case at bar. The Defendant argues in its brief that it ultimately does not matter that this Court decide whether Defendant is a law enforcement or prosecuting agency under IPRA because "[the law enforcement exception] must cover information that comes to a law enforcement agency from a third party." Of course, if the New Mexico Legislature intended for that to be the effect of IPRA, it could have easily provided for that in the statute's language. The Defendant cannot pick and choose the language of the IPRA statute it wants to apply in this case. The Defendant argues that by the very virtue of the audit being handed over to the New Mexico Attorney General, it becomes protected by the law enforcement exception to IPRA should a state officer so decide. However, any rational and true reading of the language in l4--2--l requires that any evidence This Court cannot pick and choose words in the statute as Defendant asks it to in its brief, but must View the audit in the entire context of IPRA and the law enforcement exception to disclosure. The Defendant again cites a case from outside New Mexico as legal authority for this argument, Citv of Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. App. 1994). In this case, an author requested records irorn a Florida police department regarding an officer involved shooting. During its investigation, the police department in which the records were created supplied the records to another police department in Florida. The author, Barfield, argued that disclosure of the records by the original police department to the second police department constituted a waiver of any exception in the law which might have prevented disclosure. The Florida Appellate Court denied the appeal and found that because the records remained within the possession of sister law enforcement agencies--two local police departn'1ents--that the exception applied and that disclosure of the records fi'om one agency to the other did not destroy the exception. "Simply put, the transfer from one criminal agency to another do es nothing to change the character of the I_d. at 1137. In the instant case, the New Mexico Human Services Department is not a law enforcement or prosecuting agency. City of Rivera Beach provides no guidance for this Court and should be disregarded. The argument of Defendant taken to its logical conclusion is a terrifying proposition for IPRA and how it could be applied in the filture by state officers. For instance, under the Defendant's reasoning, any public record, upon delivery to any state law enforcement agency- the New Mexico Attomey General, any of the individual District Attorneys found throughout the because then the document would fall under the protection of NMSA 1978 14-2-1 should an executive officer decide. For example, if a government entity which falls under the purview of the Open Meetings Act is alleged to have violated of the Open Meetings Act, the entity could deliver all of its agendas and minutes which could be evidence of an Open Meetings Act violation to a law enforcement agency and then refiise to disclose them under the IPRA law enforcement exception. Or, in the event that campaign contributions for an election are questioned regarding their legality, the Secretary of State could deliver all records of campaign contributions to the Attorney General or New Mexico State Police and then refilse to disclose the records under the IPRA law enforcement exception. This flies in the face of the stated policy declaration of IPRA, that "all persons are entitled to the great possible information regarding the affairs or government and the official acts of public officers and employees." NMSA 1978 14-2-5. Given the far reaching effects of the criminal law into so ciety, if a determined state officer decides against non- disclosure of a public record for any reason, that state officer would find a legal safe harbor in which to keep that document away from the prying eyes of the public--the law enforcement exception to the New Mexico Inspection of Public Records Act. This could lead to unprecedented and unforeseen secrecy in New Mexico state government. There is no public record that would be safe from exemption. The Plaintiffs submit the following statutory analysis they feel the Court should utilize in deciding whether the audit is protected from disclosure: The Law Enforcement Exception to disclosure under the New Mexico Public Records Act is composed of three distinct elements which must be satisfied to justify exemption from disclosure: 2. A criminal investigation or prosecution (by) 3. A law enforcement or prosecuting agency In applying this analysis, if the Court finds "no" as to any of the elements, then the law enforcement exception do es not apply and the audit should be released. There is no statutory authority, no caselaw, no court rule which supports the proposition that is a law enforcement or prosecuting agency. Thus, the Court should find that is not a law enforcement or prosecuting agency and that the law enforcement exception to IPRA does not apply in the case at bar. II. THE AUDIT WAS NOT RECEIVED OR COMPILED IN CONNECTION WITH A CRIMINAL INVESTIGATION OR PROSECUTION. Undeniably, the audit was created from the contract entered into between and PCG. Therefore, the contract between those two parties should be the primary piece of evidence used by this Court to decide the issues in the case at bar. In reviewing the contract, it should be noted that the entire seventeen pages of the contract are completely devoid of the words "fraud," "criminal," "investigation," or "prosecution." The contract do es not even cite the New Mexico Medicaid Fraud Act. The Defendant has presented no evidence that the audit was compiled in connection with a criminal investigation or prosecution at the time the contract was executed on February 5, 2013. The Attorney General's Office was not a party to the contract, nor was any other law enforcement or prosecuting agency. There is no evidence of a criminal investigation or prosecution at the time of the execution of the contract. There 15 no evidence of a investigation or prosecution at the tune received the completed audit in June, 2013. Using the analysis Plaintiffs provided in the preceding section of this brief, this Court should find that the audit was not received or compiled in connection with a criminal investigation or prosecution. Plaintiffs hereby restate the arguments made in the preceding section and additionally submit that the contract entered into by and PCG did not contemplate the use of the audit in any criminal investigation or prosecution. Changing the facts around for an illustrative hypothetical is particularly helpful. If the PCG audit had been contracted for and requested by the New Mexico Attorney General's Office in connection with a criminal investigation or prosecution, the audit would most definitely fall under the law enforcement exception to IPRA. However, that is not what happened in the instant case. There is no evidence in the case at bar that the audit was compiled or even received in connection with a criminal investigation, but rather pursuant to civil authority to administer Medicaid payments to health care providers and, thus, an essential element of the law enforcement exception to disclosure under IPRA is not met. For the foregoing reasons, this Court should find that the PCG audit was not received or compiled in connection with a criminal investigation or prosecution. FEDERAL REGULATIONS DO NOT PROHIBIT DISCLOSURE OF THE AUDIT. Defendant argues that the "catch-all" exception of IPRA, l4-2-l applies and that a small and obscure portion of the Code of Federal Regulations prohibits disclosure of the audit. of the CFR pertains to notice requirements to Medicaid providers when payments are suspended due to a credible allegation of fiaud. This provision of the federal code permits a state regulating agency for Medicaid payments g. the New Mexico Human Services Department) to withhold specific information concerning an ongoing investigation. Conversely, the CFR provision permits disclosure of specific information by the state regulating agency, in its own discretion. The language is permissive, not mandatory, and certainly does not fall within the purview of NMSA 1978 For these reasons, the Defendant's argument fails and must be disregarded. IV. THE LAW ENFORCEMENT EXCEPTION TO DISCLOSURE UNDER IPRA IS A LIMITED EXCEPTION AND ANY REDACTION SHOULD BE NARROWLY TAILORED TO ACHIEVE PURPOSE. The law enforcement exception to the New Mexico Inspection of Public Records Act is a narrowly defmed exception to disclosure of public records. The exception is not a total prohibition of disclosure of all law enforcement records, but only law enforcement records which reveal confidential sources, methods, information or individuals accused but not charged with a crime. Because Plaintiffs have not had the benefit to directly review the audit, the Plaintiffs cannot state with any specificity if the redactions are limited to narrowly defined objects which are exempt from disclosure, but should this Coult rule that New Mexico Human Services Department is a law enforcement or prosecuting agency and that the audit was compiled in connection with a criminal investigation or prosecution, then this Court must still narrow the not directly fall within information explicitly protected by IPRA: confidential sources, methods, information or individuals accused but not charged with a crime. CONCLUSION The first question for this court to address is whether New Mexico Human Services Department is a law enforcement or prosecuting agency under IPRA. If the court determines it is, then it 1nust then consider the question of whether the audit was received or compiled in connection with a criminal investigation. If the Court determines the audit was received or compiled in connection with a law enforcement investigation, it must still thoroughly examine the redacted portions of the audit to determine if the redacted information is explicitly exempted under IPRA and, if not, the redacted information contained in the audit should be released to the extent the court determines any information is not covered by IPRA. For the foregoing reasons, this court should find that Defendant New Mexico Human Services Department is not a law enforcement agency or prosecuting agency under IPRA and that the PCG audit was not received or compiled in connection with a criminal investigation. The Plaintiffs respectfully request that this Court order Defendant New Mexico Human Services Department to disclose the PCG audit in its entirety. is intended to ensure that the public servants of New Mexico are accountable to the people they serve." San Juan Agric. Water Users Ass'n v. KNME--TV, 1[ 16. "The citizen's right to know is the rule and secrecy is the exception." Newsorne v. Alarid. 90 N.M. 790, 797, 568 P.2d 123 6, 1243 (1977). 10 Submitted, JOHNSON MCELHINNEY, P.C. C. J. M'EE1hinney Attorney for the Plaintiff 3850 Foothills Rd Suite 12 Las Cruces, NM 88011 (575) 993-5963 (575) 993-5964 (FAX) cjm.jmclawfirm@g1nail.com CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading was delivered to opposing counsel via email (Scott Fuqua,Esq. sfi.1qua@nmag.gov) (Larry Heyeck larIy.heyeck@nm.state.us) on this 12th day of November, 2013. 11 PSC I3-630-8000-0026 CFDA 93.778 STATE OF NEW MEXICO HUMAN SERVICES DEPARTMENT PROFESSIONAL SERVICES CONTRACT THIS AGREEMENT is made and entered into by and between the State of New Mexico, Human Services Department, hereinafter referred to as the and Public Consulting Group, Inc. hereinafter referred to as the "Contractor," and is effective upon the last signature of either of the Parties. IT IS AGREED BETWEEN THE PARTIES: 1. Scope of Work. The Contractor shall perform all services detailed in Exhibit A, Scope of Work, attached to this Agreement, and in accordance with the New Mexico State Price Agreement 30-6304 3- 23326. 2. Compensation. A. The I-ISD shall pay to the Contractor in full payment for services satisfactorily performed pursuant to the Price Agreement referenced above, such compensation not to exceed three million dollars including gross receipts tax, if applicable. This amount is a maximum based on services to be provided under Exhibit A, Scope of Work and is not a guarantee that the work assigned to be performed by the Contractor under this Agreement shall equal the amount stated herein. The parties do not intend for the Contractor to continue to provide services without compensation when the total compensation amount is reached. Contractor is responsible for notifying the HSD when the services provided under this Agreement reach the total compensation amount. In no event will the Contractor be paid for services provided in excess of the total compensation amount without this Agreement being amended in writing prior to those services in excess of the total compensation amount being provided. B. Payment is subject to availability of funds pursuant to the Appropriations Paragraph set forth below and to any negotiations between the parties from year to year pursuant to Paragraph 1, Scope of Work. All invoices MUST BE received by the I-ISD no later than fifteen (15) days after the termination of the Fiscal Year in which the services were delivered. Invoices received after such date WILL NOT BE PAID. C. Contractor must submit a detailed statement accounting for all services performed and expenses incurred. If the HSD finds that the services are not acceptable, within thirty days after the date of receipt of written notice from the Contractor that payment is requested, it shall provide the Contractor a letter of exception explaining the defect or objection to the services, and outlining steps the Contractor may take to provide remedial action. Upon certification by th .1.. 1.--. .- E?niua??{o} ??JmI{n' Eri??r kiifdite are flattering. at i;;y}i1e}i{ is iriade -mail, tie payment shall be deemed tendered on the date it is postmarked. However, the agency shall not Page I ofl7 3 EXHIBIT 3 PSC I3 630 8000-0026 incur late charges, interest, or penalties for failure to make payment within the time specified herein. 3. Term. THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL SIGNED BY the HSD. This Agreement shall tenninate on December 31, 2013, unless terminated pursuant to paragraph 4 (Termination), or paragraph 5 (Appropriations). In accordance with Section 150 NMSA 1978, no contract term for a professional services contract, including extensions and renewals, shall exceed four years, except as set forth in Section l3--1--]5O NMSA 1978. 4. Termination. A. Grounds. The HSD may terminate this Agreement for convenience or cause. The Contractor may only terminate this Agreement based upon the i-lSD's uncured, material breach of this Agreement. B. Notice; HSD Opportunity to Cure. 1. Except as otherwise provided in Paragraph the HSD shall give Contractor written notice of termination at least thirty (30) days prior to the intended date of termination. 2. Contractor shall give HSD written notice of termination at least thirty (30) days prior to the intended date of termination, which notice shall identify all the 1~lSD's material breaches of this Agreement upon which the termination is based and (ii) state what the HSD must do to cure such material breaches. Contractor's notice of termination shall only be effective if the HSD does not cure all material breaches within the thirty (30) day notice period or (ii) in the case of material breaches that cannot be cured within thirty (30) days, the HSD does not, within the thirty (30) day notice period, notify the Contractor of its intent to cure and begin with due diligence to cure the material breach. 3. Notwithstanding the foregoing, this Agreement may be terminated immediately upon written notice to the Contractor if the Contractor becomes unable to perform the services contracted for, as determined by the (ii) if, during the term of this Agreement, the Contractor is suspended or debarred by the State Purchasing Agent; or the Agreement is terminated pursuant to Paragraph 5, "Appropriations", of this Agreement. C. Liability. Except as otherwise expressly allowed or provided under this Agreement, the sole liability upon termination shall be to pay for acceptable work performed prior to the Contractofs receipt or issuance of a notice of termination; provided, however that a notice of termination shall not nullify or otherwise affect either party's liability for pre-termination defaults under or breaches of this Agreement. The Contractor shall submit an invoice for such work within thirty (30) days of receiving or sending the notice of termination. THIS PROVISION IS NOT EXCLUSIVE AND DOES NOT THE AGENCY OTHER LEGAL RIGHTS AND REMEDIES CAUSED Bl' THE CONTRACTORS DEFA CH OF THIS AGREEMENT. D. Termination Management. Immediately upon receipt by either the HSD or the Contractor of notice of termination of this Agreement, the Contractor shall: 1) not incur any further obligations for salaries, services or any other expenditure of funds under this Agreement - .5 . .. notice of termination as to the performance of wor under this Agreement; 3) take such action as the HSD shall direct for the protection, preservation, retention or transfer of all property 0 .- Page 2 of 17 PSC 13 630 titled to the HSD and records generated under this Agreement. Any non-expendable personal property or equipment provided to or purchased by the Contractor with contract fiinds shall become property of the HSD upon termination and shall be submitted to the agency as soon as practicable. 5. Appropriations. The terms of this Agreement are contingent upon sufficient appropriations and authorization being made by the Legislature of New Mexico for the performance of this Agreement. If sufficient appropriations and authorization are not made by the Legislature, this Agreement shall terminate immediately upon written notice being given by the HSD to the Contractor. The decision as to whether sufficient appropriations are available shall be accepted by the Contractor and shall be final. If the HSD proposes an amendment to the Agreement to unilaterally reduce funding, the Contractor shall have the option to terminate the Agreement or to agree to the reduced funding, within thirty (30) days of receipt of the proposed amendment. 6. Status of Contractor. The Contractor and its agents and employees are independent contractors performing professional services for the HSD and are not employees of the State of New Mexico. The Contractor and its agents and employees shall not accrue leave, retirement, insurance, bonding, use of state vehicles, or any other benefits afforded to employees of the State of New Mexico as a result of this Agreement. The Contractor acknowledges that all sums received hereunder are reportable by the Contractor for tax purposes, including without limitation, self-employment and business income tax. The Contractor agrees not to purport to bind the State of New Mexico unless the Contractor has express written authority to do so, and then only within the strict limits of that authority. 7. Assignment. The Contractor shall not assign or transfer any interest in this Agreement or assign any claims for money due or to become due under this Agreement without the prior written approval of the HSD. 8. Subcontracting. The Contractor shall not subcontract any portion of the services to be performed under this Agreement without the prior written approval of the I-ISD. No such subcontract shall relieve the primary Contractor from its obligations and liabilities under this Agreement, nor shall any subcontract obligate direct payment from the Proeuring Agency. 9. Release. Final payment of the amounts due under this Agreement shall operate as a release of the its officers and employees, and the State of New Mexico from all liabilities, claims and obligations whatsoever arising from or under this Agreement. Page 3 of l7 PSC 13 630 8000-0026 10. Confidentiality. Any confidential information provided to or developed by the Contractor in the performance of this Agreement shall be kept confidential and shall not be made available to any individual or organization by the Contractor without the prior written approval of the HSD. 11. Product of Service - Copyright. All materials developed or acquired by the Contractor under this Agreement shall become the property of the State of New Mexico and shall be delivered to the HSD no later than the termination date of this Agreement. Nothing developed or produced, in whole or in part, by the Contractor under this Agreement shall be the subject of an application for copyright or other claim of ownership by or on behalf of the Contractor. 12. Conflict of Interest; Governmental Conduct Act. A. The Contractor represents and warrants that it presently has no interest and, during the term of this Agreement, shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance or services required under the Agreement. B. The Contractor further represents and warrants that it has complied with, and, during the term of this Agreement, will continue to comply with, and that this Agreement complies with all applicable provisions of the Govemmental Conduct Act, Chapter 10, Article 16 NMSA 1973. Without in anyway limiting the generality of the foregoing, the Contractor specifically represents and warrants that: 1) in accordance with Section l0--16--4.3 NMSA 1978, the Contractor does not employ, has not employed, and will not employ during the term of this Agreement any I-ISD employee while such employee was or is employed by the HSD and participating directly or indirectly in the l-iSD's contracting process; 2) this Agreement complies with Section 10-l6-7(A) NMSA 1978 because the Contractor is not a public officer or employee of the State; (ii) the Contractor is not a member of the family of a public officer or employee of the State; the Contractor is not a business in which a public officer or employee or the family of a public officer or employee has a substantial interest; or (iv) if the Contractor is a public officer or employee of the State, a member of the family of a public officer or employee of the State, or a business in which a public officer or employee of the State or the family of a public officer or employee of the State has a substantial interest, public notice was given as required by Section l0-16-7(A) NMSA 1978 and this Agreement was awarded pursuant to a competitive process; 3) in accordance with Section NMSA 1978, the Contractor is not, and has not been represented by, a person who has been a public officer or employee of the State within the preceding year and whose official act directly resulted in this Agreement and (ii) the Contractor is not, and has not been assisted in any way regarding this transaction by, a former public officer or employee of the State whose official act, while in State employment, directly resulted in the making this Agreement; 4) this Agreement complies with Section 10--l6--9(A) NMSA 1978 because 3 5 family; the Contractor is not a business in which a legislator or a legislator's family has a substantial interest; or (iv) if the Contractor is a legislator, a member of a Page 4 of 17 PSC 13 630 3000-0026 legislator"s family, or a business in which a legislator or a legislator's family has a substantial interest, disclosure has been made as required by Section l0-l6-9(A) NMSA 1978, this Agreement is not a sole source or small purchase contract, and this Agreement was awarded in accordance with the provisions of the Procurement Code; 5) in accordance with Section 10-16-13 NMSA 1978, the Contractor has not directly participated in the preparation of specifications, qualifications or evaluation criteria for this Agreement or any procurement related to this Agreement; and 6) in accordance with Section l0-16-3 and Section 10-16-13.3 NMSA 1978, the Contractor has not contributed, and during the term of this Agreement shall not contribute, anything of value to a public officer or employee of the HSD. C. Contractor's representations and warranties in Paragraphs A and of this Article 12 are material representations of fact upon which the HSD relied when this Agreement was entered into by the parties. Contractor shall provide immediate written notice to the HSD if, at any time during the term of this Agreement, Contractor learns that Contractor's representations and warranties in Paragraphs A and of this Article 12 were erroneous on the effective date of this Agreement or have become erroneous by reason of new or changed circumstances. If it is later determined that Contractor's representations and warranties in Paragraphs A and of this Article 12 were erroneous on the effective date of this Agreement or have become erroneous by reason of new or changed circumstances, in addition to other remedies available to the HSD and notwithstanding anything in the Agreement to the contrary, the HSD may immediately terminate the Agreement. D. All terms defined in the Govemmental Conduct Act have the same meaning in this Article 12(8). 13. Amendment. A. This Agreement shall not be altered, changed or amended except by instrument in writing executed by the parties hereto and all other required signatories. B. If the HSD proposes an amendment to the Agreement to unilaterally reduce fiinding due to budget or other considerations, the Contractor shall, within thirty (30) days of receipt of the proposed Amendment, have the option to terminate the Agreement, pursuant to the termination provisions as set forth in Article 4 herein, or to agree to the reduced funding. 14. Merger. This Agreement incorporates all the Agreements, covenants and understandings between the parties hereto concerning the subject matter hereof, and all such covenants, Agreements and understandings have been merged into this written Agreement. No prior Agreement or understanding, oral or otherwise, of the parties or their agents shall be valid or enforceable unless embodied in this Agreement. 15. Penalties for violation of law. and criminal penalties for its violation. In addition, the New Mexico criminal statutes impose felony penalties for illegal bribes, gratuities and kickbacks. Page 5 of}? PSC 13 630 8000-0026 16. Equal Opportunity Compliance. The Contractor agrees to abide by all federal and state laws and rules and regulations, and executive orders of the Govemor of the State of New Mexico, pertaining to equal employment opportunity. In accordance with all such laws of the State of New Mexico, the Contractor assures that no person in the United States shall, on the grounds of race, religion, color, national origin, ancestry, sex, age, physical or mental handicap, or serious medical condition, spousal affiliation, sexual orientation or gender identity, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed under this Agreement. If Contractor is found not to be in compliance with these requirements during the life of this Agreement, Contractor agrees to take appropriate steps to correct these deficiencies. 17. Applicable Law. The laws of the State of New Mexico shall govern this Agreement, without giving effect to its choice of law provisions. Venue shall be proper only in a New Mexico court of competent jurisdiction in accordance with Section 38-3-1 (G) NMSA 1978. By execution of this Agreement, Contractor acknowledges and agrees to the jurisdiction of the courts of the State of New Mexico over any and all lawsuits arising under or out of any term of this Agreement. 18. Workers Compensation. The Contractor agrees to comply with state laws and rules applicable to workers compensation benefits for its employees. If the Contractor fails to comply with the Workers Compensation Act and applicable rules when required to do so, this Agreement may be terminated by the HSD. 19. Records and Financial Audit. The Contractor shall maintain detailed time and expenditure records that indicate the date; time, nature and cost of services rendered during the Agreement's term and effect and retain them for a period of five (5) years from the date of final payment under this Agreement. The records shall be subject to inspection by the I-ISD, the Department of Finance and Administration and the State Auditor. The HSD shall have the right to audit billings both before and alter payment. Payment under this Agreement shall not foreclose the right of the I-ISD to recover excessive or illegal payments. 20. Indemnification. The Contractor shall defend, indemnify and hold harmless the I-ISD and the State of New Mexico from all actions, proceeding, claims, demands, costs, damages, attorneys' fees and all other liabilities and expenses of any kind from any source which may arise out of the performance of this Agreement, caused by the negligent act or failure to act of the Contractor, its officers, employees, servants, subcontractors or agents, or if caused by the actions of any client of the Contractor resulting in injury or damage to persons or property during the time when the Contractor or any officer, agent, employee, servant or subcontractor thereof has or is performing 3 t: services performed by the Contractor or any officer, agent, employee, servant or subcontractor under this Agreement is brought against the Contractor, the Contractor shall, as soon as Page 6 of 17 PSC 13 630 8000-0026 practicable but no later than two (2) days after it receives notice thereof, notify the legal counsel of the HSD and the Risk Management Division of the New Mexico General Services Department by certified mail. 21. New Mexico Employees Health Coverage. A. if Contractor has, or grows to, six (6) or more employees who work, or who are expected to work, an average of at least 20 hours per week over a six (6) month period during the term of the contract, Contractor certifies, by signing this agreement, to have in place, and agree to maintain for the term of the contract, health insurance for those employees and offer that health insurance to those employees if the expected annual value in the aggregate of any and all contracts between Contractor and the State exceed $250,000 dollars. B. Contractor agrees to maintain a record of the number of employees who have accepted health insurance; declined health insurance due to other health insurance coverage already in place; or declined health insurance for other reasons. These records are subject to review and audit by a representative of the state. C. Contractor agrees to advise all employees of the availability of State publicly financed health care coverage programs by providing each employee with, as a minimum, the following web site link to additional information: 22. Employee Pay Equitv Reporting Contractor agrees if it has ten (10) or more New Mexico employees OR eight (8) or more employees in the same job classification, at any time during the term of this contract, to complete and submit the fonn on the annual anniversary of the initial report subrnittal for contracts up to one (1) year in duration. If contractor has (250) or more employees contractor must complete and submit the PE250 form on the annual anniversary of the initial report submittal for contracts up to one (1) year in duration. For contracts that extend beyond one (1) calendar year, or are extended beyond one (1) calendar year, contractor also agrees to complete and submit the 0-249 or PE250 form, whichever is applicable, within thirty (30) days of the annual contract anniversary date of the initial submittal date or, if more than 180 days has elapsed since submittal of the last report, at the completion of the contract, whichever comes first. Should contractor not meet the size requirement for reporting at contract award but subsequently grows such that they meet or exceed the size requirement reporting, contractor agrees to provide the required report within ninety (90 days) of meeting or exceeding the size requirement. That submittal date shall serve as the basis for submittals required thereafter. Contractor also agrees to levy this requirement on any subcontractor(s) performing more than 10% of the dollar value of this contract if said subcontractor(s) meets, or grows to meet, the stated employee size thresholds during the term of the contract. Contractor further agrees that, should one or more subcontractor not meet the size requirement for reporting at contract award but subsequently grows such that they meet or exceed the size requirement for reporting, contractor will submit the required report, for each such subcontractor, within ninety (90 days) of that subcontractor meeting or exceeding the size requirement. Subsequent report submittals, on submittal. Contractor shall submit the required forrn(s) to the State Purchasing Division of the General Services Department, and other departments as may be determined, on behalf of the Page 7 of]? PSC 13 630 8000-0026 applicable subcontractor(s) in accordance with the schedule contained in this paragraph. Contractor acknowledges that this subcontractor requirement applies even though contractor itself may not meet the size requirement for reporting and be required to report itself. Notwithstanding the foregoing, if this Contract was procured pursuant to a solicitation, and if Contractor has already submitted the required report accompanying their response to such solicitation, the report does not need to be re-submitted with this Agreement. 23. Invalid Term or Condition. If any term or condition of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected and shall be valid and enforceable. 24. Enforcement of Agreement. A party's failure to require strict performance of any provision of this Agreement shall not waive or diminish that party's right thereafter to demand strict compliance with that or any other provision. No waiver by a party of any of its rights under this Agreement shall be effective unless express and in writing, and no effective waiver by a party of any of its rights shall be effective to waive any other rights. 25. Notices. Any notice required to be given to either party by this Agreement shall be in writing and shall be delivered in person, by courier service or by US. mail, either first class or certified, return receipt requested, postage prepaid, as follows: To the I-ISD: Larry Heyeck, Esq., Program Manager New Mexico Human Services Department Ofiice of General Counsel P.O. Box 2348 Santa Fe, NM 87504-2348 Larrv.heveck@state.nm.us To Contractor: Thomas Aldridge 148 State Street, 10th Floor Boston, MA 02109 26. Authorigg. If Contractor is other than a natural person, the individual(s) signing this Agreement on behalf of Contractor represents and warrants that he or she has the power and authority to bind Contractor, and that no further action, resolution, or approval from Contractor is necessary to enter into a binding contract. 27. Debarment and Suspension A. Consist In with either 7 C.F.R. Part 3017 or 45 C.F R. Part 76 as applicable and 8 . PSC, that it and its principals, to the best of its knowledge and belief: (1) are not debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Page 8 of 17 PSC 13 630 8000-0026 Federal department or agency; (2) have not, within a three--year period preceding the effective date of this PSC, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state, or local) contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property; (3) have not been indicted for, or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with, commission of any of the offenses enumerated above in this Paragraph (4) have not, within a three-year period preceding the effective date of this PSC, had one or more public agreements or transactions (Federal, State or local) terminated for cause or default; and (5) have not been excluded from participation from Medicare, Medicaid or other federal health care programs pursuant to Title XI ofthe Social Security Act, 42 U.S.C. l320a--7. B. The Contractor's certification in Paragraph A, above, is a material representation of fact upon which the HSD relied when this PSC was entered into by the parties. The Contractor's certification in Paragraph A, above, shall be a continuing term or condition of this PSC. As such at all times during the performance of this PSC, the Contractor must be capable of making the certification required in Paragraph A, above, as if on the date of making such new certification the Contractor was then executing this PSC for the first time. Accordingly, the following requirements shall be read so as to apply to the original certification of the Contractor in Paragraph A, above, or to any new certification the Contractor is required to be capable of making as stated in the preceding sentence: (1) The Contractor shall provide immediate written notice to the Program Manager ifi at any time during the term of this PSC, the Contractor learns that its certification in Paragraph A, above, was erroneous on the effective date of this PSC or has become erroneous by reason of new or changed circumstances. (2) If it is later determined that the Contractor's certification in Paragraph A, above, was erroneous on the effective date of this PSC or has become erroneous by reason of new or changed circumstances, in addition to other remedies available to the I-ISD, the HSD may terminate the PSC. C. As required by statute, regulation or requirement of this PSC, and as contained in Paragraph A, above, the Contractor shall require each proposed first-tier subcontractor whose subcontract will equal or exceed $25,000, to disclose to the Contractor, in writing, whether as of the time of award of the subcontract, the subcontractor, or its principals, is or is not dcbarred, suspended, or proposed for by any Federal department or agency. The Contractor shall make such disclosures available to the HSD when it requests subcontractor approval from the HSD. if the subcontractor, or its principals, is debarred, suspended, or proposed for debarment by any Federal, state or local department or agency, the I-ISD may refuse to approve the use of the subcontractor Page 9 of I7 PSC 13 630 8000-0026 28. Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions A. The applicable definitions and exceptions to prohibited conduct and disclosures contained in 31 U.S.C. 1352 and 45 C.F.R. Part 93 or Subparts and of? C.F.R. Part 3018, as applicable, are hereby incorporated by reference in subparagraph (B) of this certification. B. The Contractor, by executing this PSC, certifies to the best of its knowledge and belief that: (1) N0 Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on his or her behalf in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan, or cooperative agreement; and (2) If any funds other than Federal appropriated funds (including profit or fee received under a covered Federal transaction) have been paid, or will be paid, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on his or her behalf in connection with this solicitation, the offeror shall complete and submit, with its offer, OMB standard form Disclosure of Lobbying Activities, to the Contracting Officer. C. The Contractor shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. D. This certification is a material representation of fact upon which reliance is placed when this PSC is made and entered into. Submission of this certification is a prerequisite for making and entering into this PSC imposed under 31 U.S.C. 1352. It shall be a material obligation of the Contractor to keep this certification current as to any and all individuals or activities of anyone associated with the Contractor during the pendency of this PSC Any person who makes an expenditure prohibited under this provision or who fails to file or amend the disclosure form to be filed or amended by this provision, shall be subject to: (1) a civil penalty of not less than $10,000 and not more than $100,000 for such failure; and/or (2) at the discretion of the HSD, termination of the PSC. 29. A. The Contractor agrees to comply fully with Title VI of the Civil Rights Act of 1964, as amended; the Rehabilitation Act of 1973, Public Law 93-112, as amended?w>;ov discrimination against any employee who is employed in the performance of this PSC, or against any applicant for such employment, because of age, color, national origin, ancestry, race, Page l0ofl7 PSC 13 630 8000-0026 religion, creed, disability, sex, or marital status. B. This provision shall include, but not be limited to, the following: employment, promotion, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training including apprenticeship. C. The Contractor agrees that no qualified handicapped person shall, on the basis of handicap, be excluded from participation or be denied the benefits of, or otherwise be subjected to discrimination under any program or activity of the Contractor. The Contractor finther agrees to insert similar provisions in all subcontracts for services allowed under this PSC under any program or activity. D. The Contractor agrees to provide meaningful access to services for individuals with Limited English Proficiency (LEP) in accordance with Executive Order 13166, "Improving Access to Services for Persons with Limited English Proficiency." 39. Drug Free Workplace A. Definitions, As used in this "Controlled substance" means a controlled substance in schedules I through of section 202 of the Controlled Substances Act, 2] U.S.C 812, and as further defined in regulation at 21 CFR 1308.11 1308.15. "Conviction" means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes. "Criminal drug statute" means a Federal or non--Federal criminal statute involving the manufacture, distribution, dispensing, possession, or use of any controlled substance. "Drug-free worl