The DD Reform Act provides for a system of contracting that allows "open and equitable negotiation" between the contracting parties. In addition, K.A.R. 30-64-32 provides for a dispute resolution process between CDDOs and their affiliates, or providers that desire to become affiliates. The SRS/CDDO Policy on Reimbursement outlines the timelines for affiliation, and the ability of affiliates to utilize the dispute resolution process. All of these allow for community service providers to negotiate affiliate agreements with the CDDOs with which they want to affiliate.

Upon receiving a proposed affiliate agreement, CSPs should carefully review the agreement to determine the terms they wish to accept or negotiate. The following is a suggested list of provisions CSPs should specifically look for and review:

Effective Date of the Agreement: Most affiliate agreements will start on the date that you sign the agreement, and end on or around June 30 of the following year (the end of the State's fiscal year). However some CDDOs have started utilizing multi-year agreements, or ending their affiliate agreements in July or August of the following year, after the new SRS/CDDO contract is executed.

If your CDDO proposes a multi-year agreement, you will want to look for provisions in the agreement that allow you to renegotiate the agreement. If a major change occurs within the system, or to the CDDO/SRS contract, and the change affects some provision of your existing agreement, you will want the ability to renegotiate.

Documents Incorporated as Part of the Agreement: You will want to pay attention to what external documents the CDDO incorporates as part of the affiliate agreement. Typically these include the SRS/CDDO contract, the DD Reform Act and regulations, SRS/CDDO policies, the MR/DD waiver handbook, the TCM manual, and local CDDO policies. If you are not familiar with the documents incorporated into the agreement, specifically local CDDO policies, you will want to become familiar with them and make sure you are comfortable with them being a part of the agreement.

If the CDDO incorporates local CDDO policies into the agreement, the CDDO may include language indicating that any new or revised CDDO policies adopted during the term of the agreement also become part of the agreement. If this language is included, make sure the language of the agreement states that any new or revised CDDO policies are adopted in accordance with K.A.R. 30-64-21 which indicates how additions or changes can be made to CDDO policies.

Termination Clause(s): Many affiliate agreements will have a specific section on how the agreement can be terminated. Some agreements have termination provisions throughout the agreement. You should review each of these carefully to determine how either you or the CDDO can terminate the agreement. K.A.R. 30-64-22 addresses how a CDDO can either refuse to enter into an affiliate agreement, or terminate an existing agreement. Many CDDOs will also add termination provisions that allow the CDDO to terminate the agreement if the affiliate loses its license to provide services. You will want to make sure that the agreement does not allow the CDDO to terminate the agreement without cause. And, that if the CDDO desires to terminate the agreement for cause, there is a dispute resolution process that the CSP can utilize. You will also want to make sure you are comfortable with the timelines within which you can terminate the agreement.

Sharing of Information: Most affiliate agreements require that the affiliate provide documentation regarding services to the CDDO, at the request of the CDDO. You may want to consider asking the CDDO to include language indicating they will give you reasonable notice for providing this information.

Marketing of Services: Some CDDOs have tried to include provisions within their affiliate agreements that prohibit CSPs from marketing their own services. Remember that the CDDO is responsible for insuring that consumers have information about all service provider options, however the CDDO cannot prohibit a CSP from marketing its own services under the existing free enterprise system.

Governing Law: Most agreements have a section indicating that the agreement will be governed and enforced under the laws of Kansas. You will want to make sure that any claims are not limited to state court, and that you maintain the right to file in either state or federal court if you so choose.

Fees for CDDO Services: Frequently CDDOs will include language that allows them to charge fees for services provided to a CSP. You will want to make sure the fees are either stated, or that you have the ability to negotiate them. You do not want to enter into an agreement that allows the CDDO to charge fees, that they solely determine, for services that you must receive from the CDDO.

Appeals regarding Recoupment of TCM Payments: Within the TCM agreement there should be a section that addresses recoupment of disallowed TCM payments. The language may indicate that only the CDDO can appeal to SRS a recoupment decision. If so, you need to decide whether you are comfortable with the CDDO making such decisions. You may want to request that the CDDO allow you to appeal to SRS any recoupments against your CSP. You may want to offer to cover the cost of the appeal and to keep the CDDO involved throughout the process.

Payment for TCM Services: As the sole Medicaid provider of TCM, the CDDO may set a payment for local TCM services. You may wish to attempt to negotiate this payment rate, especially if the CDDO is charging a large sum for administration. You may want to work with other local affiliates to negotiate a reasonable payment rate for TCM for the CDDO area.

CDDO Responsibilities: The SRS/CDDO Contract outlines the responsibilities of the CDDO as defined in regulation. Sometimes CDDO's will inadvertently pass along CDDO responsibilities to CSPs within the language of the affiliate agreement. You should thoroughly read through your agreement to make sure that no CDDO responsibilities or liabilities are passed along to your organization.

Capacity: K.A.R. 30-64-25 protects community service providers from any requirement to serve more persons than they can effectively serve. In addition, the DD Reform Act states that community service providers are not required to make expenditures that are not in compliance with contracts or agreements entered into by the governing board of the provider. Thus, you will want to make sure that there are no provisions within the affiliate agreement that require your organization to serve more persons than your established capacity, and/or that require you to make expenditures outside of what you are being paid to provide.

Disclaimer: This document contains only suggestions of what CSPs should consider when reviewing their affiliate agreements. It is not all inclusive of the provisions or potential issues of concern within such agreements. CSPs should consult legal counsel if they have concern about their individual agreements with CDDOs.