Common use of Subcontractual Relationships and Delegation Clause in Contracts

Subcontractual Relationships and Delegation. If the MCP’s responsibilities or services under this Agreement are delegated to any first tier, downstream, or related entity (collectively, the other entities are “FDR” and any such agreement with an FDR is the “FDR agreement”), the MCP shall ensure it has a written agreement with the FDR to perform administrative services as defined below on the MCP’s behalf. The following requirements apply to all FDR agreements. Additional FDR requirements specific to Pharmacy Benefit Manager agreements are described in Appendix R of this Agreement. a. Parties to administrative services arrangements are defined as: i. First tier entity: any party that enters into a written arrangement, acceptable to ODM, with the MCP to provide administrative services for Ohio Medicaid eligible individuals. ii. Downstream entity: any party that enters into a written arrangement, acceptable to ODM, with a first tier or related entity or below the level of a first tier or related entity to provide administrative services for Ohio Medicaid eligible individuals. These arrangements continue down to the level of the ultimate provider of the administrative services. iii. Related entity: any party related to the MCP by common ownership or control, and under an oral or written arrangement performs some of the administrative services under the MCP’s contract with ODM. b. The following provisions apply and shall be followed before any FDR agreement is executed or renewed: i. At least 30 days prior to the MCP executing any FDR agreement (hereinafter referred to as “the FDR agreement review period”), the MCP shall provide the proposed FDR agreement to ODM for review. ODM, in its sole discretion, can agree to a shorter FDR agreement review period. ii. During the FDR agreement review period, ODM has the right to ask questions and request information from the MCP and the FDR about any provisions in the proposed FDR agreement. iii. The MCP and the FDR shall promptly respond to and provide complete answers and information to ODM in response to ODM’s questions and requests. iv. ODM has the right and authority to designate the FDR agreement, or any portion thereof, as incompatible with this Agreement, incompatible with ODM’s state plan amendment (SPA), incompatible with federal, state, or local regulations and laws, or unacceptable to ODM for any other reason, without limitation. If ODM determines that any provision of the proposed FDR agreement (or the FDR agreement as a whole) is unacceptable or incompatible as state above, the MCP shall either revise the proposed FDR agreement to ODM’s satisfaction or otherwise the MCP will seek a new proposed FDR agreement. The new proposed FDR agreement, and any thereafter, will be subject to an FDR agreement review period. v. The MCP shall not execute the proposed FDR agreement until ODM has stated in writing that the FDR agreement is acceptable. ODM’s approval does not need to be made within 30 days of receiving the proposed FDR agreement. vi. In addition to the provision above in subsections i. through v., ODM also has the right to forego the FDR agreement review period for any proposed FDR agreement. In such cases, ODM shall notify the MCP in writing that the MCP can execute the proposed FDR agreement without ODM conducting a review. c. ODM shall have the right to review the terms of any FDR arrangement upon request, and such arrangements shall include terms requiring the FDR to grant ODM access to documents and other records relevant to the FDR’s performance thereunder. d. Unless otherwise specified by ODM, administrative services include: care management, marketing, utilization management, quality improvement, enrollment, disenrollment, membership functions, claims administration, licensing and credentialing, provider network management, and coordination of benefits. e. Before the MCP enters into an arrangement with an FDR to perform an administrative function not listed above that could impact a member’s health, safety, welfare or access to Medicaid covered services, the MCP shall contact ODM to request a determination of whether or not the function should be included as an administrative service that complies with the provisions listed herein. f. Upon request, the MCP shall disclose to ODM all financial terms and arrangements for payment of any kind that apply between the MCP, or the MCP’s FDR, and any provider of a Medicaid service, except where federal and state law restricts disclosing the terms and arrangements. ODM acknowledges that such information may be considered confidential and proprietary and thus shall be held confidential by ODM as specified in Article VII of this Agreement. g. If applicable, the MCP and FDR shall narrowly designate portions of any FDR agreement as proprietary information. Portions of any FDR agreement designated as proprietary information shall be limited to the following: i. Portions of the FDR agreement that meet the definition of proprietary information in Article VII.B of this Agreement; and ii. Portions of the FDR agreement that consist of unique business or pricing structures that a competitor may or would likely use to gain an unfair market advantage over the FDR. Proprietary designations in every FDR agreement shall be limited consistent with the foregoing. Every portion of an FDR agreement that is not designated as proprietary will be deemed to be a public record. h. All FDR agreements shall include the following enforceable provisions: i. A description of the administrative services to be provided by the FDR and any requirements for the FDR to report information to the MCP. ii. The beginning date and expiration date or automatic renewal clause for the arrangement, as well as applicable methods of extension, renegotiation and termination. iii. Identification of the service area and Medicaid population, either “non-dual” or “non- dual and dual” the FDR will serve. iv. A provision stating that the FDR shall release to the MCP and ODM any information necessary for the MCP to perform any of its obligations under the MCP’s provider agreement with ODM, including but not limited to compliance with reporting and quality assurance requirements. v. A provision that the FDR’s applicable facilities and records will be open to inspection by the MCP, ODM, its designee or other entities as specified by the Ohio Medical Assistance Provider Agreement or in OAC rule. vi. A provision that the agreement is governed by and construed in accordance with all applicable state or federal laws, regulations and contractual obligations of the MCP. The arrangement shall be automatically amended to conform to any changes in laws, regulations and contractual obligations without the necessity for written amendment. vii. A provision that Medicaid eligible individuals and ODM are not liable for any cost, payment, copayment, cost-sharing, down payment, or similar charge, refundable or otherwise for services performed, including in the event the FDR or the MCP cannot or will not pay for the administrative services. This provision does not prohibit waiver entities from collecting patient liability payments from MCP members as specified in OAC rule 5160:1-6-07.1. viii. The procedures to be employed upon the ending, nonrenewal or termination of the arrangement including at a minimum to promptly supply any documentation necessary for the settlement of any outstanding claims or services. ix. A provision that the FDR will abide by the MCP’s written policies regarding the False Claims Act and the detection and prevention of fraud, waste, and abuse. x. A provision that the FDR, and all employees of the FDR, are subject to the applicable provider qualifications in OAC rule 5160-26-05. xi. For an FDR providing administrative services that result in direct contact with a Medicaid eligible individual, a provision that the FDR will identify, and where indicated, arrange pursuant to the mutually agreed upon policies and procedures between the MCP and FDR for the following at no cost to the individual or ODM: 1. Sign language services; and 2. Oral interpretation and oral translation services. xii. For an FDR providing licensing and credentialing services of medical providers, a provision that: 1. The credentials of medical professionals affiliated with the party or parties will be reviewed by the MCP; or 2. The credentialing process will be reviewed and approved by the MCP and the MCP will audit the credentialing process on an ongoing basis. xiii. For an FDR providing administrative services that result in the selection of providers, a provision that the MCP retains the right to approve, suspend, or terminate any such selection. xiv. A provision that permits ODM or the MCP to seek revocation or other remedies, as applicable, if ODM or the MCP determines that the FDR has not performed satisfactorily, or the arrangement is not in the best interest of the MCP’s members. xv. A provision stating that all provisions in an FDR agreement must conform to and be consistent with all of the provisions of the Ohio Medical Assistance Provider Agreement. xvi. A provision that all of the provisions applicable to the FDR of the Ohio Medical Assistance Provider Agreement supersede all applicable provisions in an FDR agreement. If a provision in an FDR agreement contradicts or is incompatible with any applicable provision in the Ohio Medical Assistance Provider Agreement, the applicable provision in the FDR agreement is rendered null and void, unenforceable, and without effect. xvii. A provision stating that all FDRs shall fully assist and cooperate with the MCP in fulfilling the MCP’s obligations under the Ohio Medical Assistance Provider Agreement. xviii. A provision that allows the MCP to obtain and gather data, documents, and information from FDRs for the purpose of any audit conducted by the Auditor of the State of Ohio per ORC Chapter 117. i. The MCP is ultimately responsible for meeting all contractual obligations under the MCP’s provider agreement with ODM. The MCP shall: i. Ensure the performance of the FDR is monitored on an ongoing basis to identify any deficiencies or areas for improvement; ii. Impose corrective action on the FDR as necessary; and iii. Maintain policies and procedures that ensure there is no disruption in meeting its contractual obligations to ODM, if the FDR or the MCP terminates the arrangement between the FDR and the MCP. j. Unless otherwise specified by ODM, all information required to be submitted to ODM shall be submitted directly by the MCP. k. Information regarding changes to or termination of FDR arrangements shall be reported to ODM no less than 15 calendar days prior to it taking effect. l. Delegation requirements do not apply to care management arrangements between the MCP and a Comprehensive Primary Care Practice or Patient Centered Medical Home as cited in Appendix K. m. In accordance with 42 CFR 438.602, the MCP shall post on its website the name and title of individuals included in 42 CFR 438.604(a)(6). For the purposes of this requirement, the term “subcontractor” is defined as any individual or entity that has a contract with the MCP that relates directly or indirectly to the performance of the MCP’s obligations under this Agreement, not including a network provider.

Subcontractual Relationships and Delegation. If the MCP’s responsibilities or services under this Agreement are delegated to any first tier, downstream, or related entity (collectively, the other entities are “FDR” and any such agreement with an FDR is the “FDR agreement”), the MCP shall ensure it has a written agreement with the FDR to perform administrative services as defined below on the MCP’s behalf. The following requirements apply to all FDR agreements. Additional FDR requirements specific to Pharmacy Benefit Manager agreements are described in Appendix R of this Agreement. a. Parties to administrative services arrangements are defined as: i. First tier entity: any party that enters into a written arrangement, acceptable to ODM, with the MCP to provide administrative services for Ohio Medicaid eligible individuals. ii. Downstream entity: any party that enters into a written arrangement, acceptable to ODM, with a first tier or related entity or below the level of a first tier or related entity to provide administrative services for Ohio Medicaid eligible individuals. These arrangements continue down to the level of the ultimate provider of the administrative services. iii. Related entity: any party related to the MCP by common ownership or control, and under an oral or written arrangement performs some of the administrative services under the MCP’s contract with ODM. b. The following provisions apply and shall be followed before any FDR agreement is executed or renewed: i. At least 30 days prior to the MCP executing any FDR agreement (hereinafter referred to as “the FDR agreement review period”), the MCP shall provide the proposed FDR agreement to ODM for review. ODM, in its sole discretion, can agree to a shorter FDR agreement review period. ii. During the FDR agreement review period, ODM has the right to ask questions and request information from the MCP and the FDR about any provisions in the proposed FDR agreement. iii. The MCP and the FDR shall promptly respond to and provide complete answers and information to ODM in response to ODM’s questions and requests. iv. ODM has the right and authority to designate the FDR agreement, or any portion thereof, as incompatible with this Agreement, incompatible with ODM’s state plan amendment (SPA), incompatible with federal, state, or local regulations and laws, or unacceptable to ODM for any other reason, without limitation. If ODM determines that any provision of the proposed FDR agreement (or the FDR agreement as a whole) is unacceptable or incompatible as state above, the MCP shall either revise the proposed FDR agreement to ODM’s satisfaction or otherwise the MCP will seek a new proposed FDR agreement. The new proposed FDR agreement, and any thereafter, will be subject to an FDR agreement review period. v. The MCP shall not execute the proposed FDR agreement until ODM XXX has stated in writing that the FDR agreement is acceptable. ODM’s approval does not need to be made within 30 days of receiving the proposed FDR agreement. vi. In addition to the provision above in subsections i. through v., ODM also has the right to forego the FDR agreement review period for any proposed FDR agreement. In such cases, ODM shall notify the MCP in writing that the MCP can execute the proposed FDR agreement without ODM conducting a review. c. ODM shall have the right to review the terms of any FDR arrangement upon request, and such arrangements shall include terms requiring the FDR to grant ODM access to documents and other records relevant to the FDR’s performance thereunder. d. Unless otherwise specified by ODM, administrative services include: care management, marketing, utilization management, quality improvement, enrollment, disenrollment, membership functions, claims administration, licensing and credentialing, provider network management, and coordination of benefits. e. Before the MCP enters into an arrangement with an FDR to perform an administrative function not listed above that could impact a member’s health, safety, welfare or access to Medicaid covered services, the MCP shall contact ODM to request a determination of whether or not the function should be included as an administrative service that complies with the provisions listed herein. f. Upon request, the MCP shall disclose to ODM all financial terms and arrangements for payment of any kind that apply between the MCP, or the MCP’s FDR, and any provider of a Medicaid service, except where federal and state law restricts disclosing the terms and arrangements. ODM acknowledges that such information may be considered confidential and proprietary and thus shall be held confidential by ODM as specified in Article VII of this Agreement. g. If applicable, the MCP and FDR shall narrowly designate portions of any FDR agreement as proprietary information. Portions of any FDR agreement designated as proprietary information shall be limited to the following: i. Portions of the FDR agreement that meet the definition of proprietary information in Article VII.B of this Agreement; and ii. Portions of the FDR agreement that consist of unique business or pricing structures that a competitor may or would likely use to gain an unfair market advantage over the FDR. Proprietary designations in every FDR agreement shall be limited consistent with the foregoing. Every portion of an FDR agreement that is not designated as proprietary will be deemed to be a public record. h. All FDR agreements shall include the following enforceable provisions: i. A description of the administrative services to be provided by the FDR and any requirements for the FDR to report information to the MCP. ii. The beginning date and expiration date or automatic renewal clause for the arrangement, as well as applicable methods of extension, renegotiation and termination. iii. Identification of the service area and Medicaid population, either “non-dual” or “non- dual and dual” the FDR will serve. iv. A provision stating that the FDR shall release to the MCP and ODM any information necessary for the MCP to perform any of its obligations under the MCP’s provider agreement with ODM, including but not limited to compliance with reporting and quality assurance requirements. v. A provision that the FDR’s applicable facilities and records will be open to inspection by the MCP, ODM, its designee or other entities as specified by the Ohio Medical Assistance Provider Agreement or in OAC rule. vi. A provision that the agreement is governed by and construed in accordance with all applicable state or federal laws, regulations and contractual obligations of the MCP. The arrangement shall be automatically amended to conform to any changes in laws, regulations and contractual obligations without the necessity for written amendment. vii. A provision that Medicaid eligible individuals and ODM are not liable for any cost, payment, copayment, cost-sharing, down payment, or similar charge, refundable or otherwise for services performed, including in the event the FDR or the MCP cannot or will not pay for the administrative services. This provision does not prohibit waiver entities from collecting patient liability payments from MCP members as specified in OAC rule 5160:1-6-07.1. viii. The procedures to be employed upon the ending, nonrenewal or termination of the arrangement including at a minimum to promptly supply any documentation necessary for the settlement of any outstanding claims or services. ix. A provision that the FDR will abide by the MCP’s written policies regarding the False Claims Act and the detection and prevention of fraud, waste, and abuse. x. A provision that the FDR, and all employees of the FDR, are subject to the applicable provider qualifications in OAC rule 5160-26-05. xi. For an FDR providing administrative services that result in direct contact with a Medicaid eligible individual, a provision that the FDR will identify, and where indicated, arrange pursuant to the mutually agreed upon policies and procedures between the MCP and FDR for the following at no cost to the individual or ODM: 1. Sign language services; and 2. Oral interpretation and oral translation services. xii. For an FDR providing licensing and credentialing services of medical providers, a provision that: 1. The credentials of medical professionals affiliated with the party or parties will be reviewed by the MCP; or 2. The credentialing process will be reviewed and approved by the MCP and the MCP will audit the credentialing process on an ongoing basis. xiii. For an FDR providing administrative services that result in the selection of providers, a provision that the MCP retains the right to approve, suspend, or terminate any such selection. xiv. A provision that permits ODM or the MCP to seek revocation or other remedies, as applicable, if ODM or the MCP determines that the FDR has not performed satisfactorily, or the arrangement is not in the best interest of the MCP’s members. xv. A provision stating that all provisions in an FDR agreement must conform to and be consistent with all of the provisions of the Ohio Medical Assistance Provider Agreement. xvi. A provision that all of the provisions applicable to the FDR of the Ohio Medical Assistance Provider Agreement supersede all applicable provisions in an FDR agreement. If a provision in an FDR agreement contradicts or is incompatible with any applicable provision in the Ohio Medical Assistance Provider Agreement, the applicable provision in the FDR agreement is rendered null and void, unenforceable, and without effect. xvii. A provision stating that all FDRs shall fully assist and cooperate with the MCP in fulfilling the MCP’s obligations under the Ohio Medical Assistance Provider Agreement. xviii. A provision that allows the MCP to obtain and gather data, documents, and information from FDRs for the purpose of any audit conducted by the Auditor of the State of Ohio per ORC Chapter 117. i. The MCP is ultimately responsible for meeting all contractual obligations under the MCP’s provider agreement with ODM. The MCP shall: i. Ensure the performance of the FDR is monitored on an ongoing basis to identify any deficiencies or areas for improvement; ii. Impose corrective action on the FDR as necessary; and iii. Maintain policies and procedures that ensure there is no disruption in meeting its contractual obligations to ODM, if the FDR or the MCP terminates the arrangement between the FDR and the MCP. j. Unless otherwise specified by ODM, all information required to be submitted to ODM shall be submitted directly by the MCP. k. Information regarding changes to or termination of FDR arrangements shall be reported to ODM no less than 15 calendar days prior to it taking effect. l. Delegation requirements do not apply to care management arrangements between the MCP and a Comprehensive Primary Care Practice or Patient Centered Medical Home as cited in Appendix K. m. In accordance with 42 CFR 438.602, the MCP shall post on its website the name and title of individuals included in 42 CFR 438.604(a)(6). For the purposes of this requirement, the term “subcontractor” is defined as any individual or entity that has a contract with the MCP that relates directly or indirectly to the performance of the MCP’s obligations under this Agreement, not including a network provider.

Subcontractual Relationships and Delegation. If the MCP’s responsibilities or services under this Agreement are delegated to any first tier, downstream, or related entity (collectively, the other entities are “FDR” and any such agreement with an FDR is the “FDR agreement”), the MCP shall ensure it has a written agreement with the FDR to perform administrative services as defined below on the MCP’s behalf. The following requirements apply to all FDR agreements. Additional FDR requirements specific to Pharmacy Benefit Manager agreements are described in Appendix R of this Agreement. a. Parties to administrative services arrangements are defined as: i. First tier entity: any party that enters into a written arrangement, acceptable to ODM, with the MCP to provide administrative services for Ohio Medicaid eligible individuals. ii. Downstream entity: any party that enters into a written arrangement, acceptable to ODM, with a first tier or related entity or below the level of a first tier or related entity to provide administrative services for Ohio Medicaid eligible individuals. These arrangements continue down to the level of the ultimate provider of the administrative services. iii. Related entity: any party related to the MCP by common ownership or control, and under an oral or written arrangement performs some of the administrative services under the MCP’s contract with ODM. b. The following provisions apply and shall be followed before any FDR agreement is executed or renewed: i. At least 30 days prior to the MCP executing any FDR agreement (hereinafter referred to as “the FDR agreement review period”), the MCP shall provide the proposed FDR agreement to ODM for review. ODM, in its sole discretion, can agree to a shorter FDR agreement review period. ii. During the FDR agreement review period, ODM has the right to ask questions and request information from the MCP and the FDR about any provisions in the proposed FDR agreement. iii. The MCP and the FDR shall promptly respond to and provide complete answers and information to ODM in response to ODM’s questions and requests.and iv. ODM has the right and authority to designate the FDR agreement, or any portion thereof, as incompatible with this Agreement, incompatible with ODM’s state plan amendment (SPA), incompatible with federal, state, or local regulations and laws, or unacceptable to ODM for any other reason, without limitation. If ODM determines that any provision of the proposed FDR agreement (or the FDR agreement as a whole) is unacceptable or incompatible as state above, the MCP shall either revise the proposed FDR agreement to ODM’s satisfaction or otherwise the MCP will seek a new proposed FDR agreement. The new proposed FDR agreement, and any thereafter, will be subject to an FDR agreement review period. v. The MCP shall not execute the proposed FDR agreement until ODM XXX has stated in writing that the FDR agreement is acceptable. ODM’s approval does not need to be made within 30 days of receiving the proposed FDR agreement. vi. In addition to the provision above in subsections i. through v., ODM also has the right to forego the FDR agreement review period for any proposed FDR agreement. In such cases, ODM shall notify the MCP in writing that the MCP can execute the proposed FDR agreement without ODM conducting a review. c. ODM shall have the right to review the terms of any FDR arrangement upon request, and such arrangements shall include terms requiring the FDR to grant ODM access to documents and other records relevant to the FDR’s performance thereunder. d. Unless otherwise specified by ODM, administrative services include: care management, marketing, utilization management, quality improvement, enrollment, disenrollment, membership functions, claims administration, licensing and credentialing, provider network management, and coordination of benefits. e. Before the MCP enters into an arrangement with an FDR to perform an administrative function not listed above that could impact a member’s health, safety, welfare or access to Medicaid covered services, the MCP shall contact ODM to request a determination of whether or not the function should be included as an administrative service that complies with the provisions listed herein. f. Upon request, the MCP shall disclose to ODM all financial terms and arrangements for payment of any kind that apply between the MCP, or the MCP’s FDR, and any provider of a Medicaid service, except where federal and state law restricts disclosing the terms and arrangements. ODM acknowledges that such information may be considered confidential and proprietary and thus shall be held confidential by ODM as specified in Article VII of this Agreement. g. If applicable, the MCP and FDR shall narrowly designate portions of any FDR agreement as proprietary information. Portions of any FDR agreement designated as proprietary information shall be limited to the following: i. Portions of the FDR agreement that meet the definition of proprietary information in Article VII.B of this Agreement; and ii. Portions of the FDR agreement that consist of unique business or pricing structures that a competitor may or would likely use to gain an unfair market advantage over the FDR. Proprietary designations in every FDR agreement shall be limited consistent with the foregoing. Every portion of an FDR agreement that is not designated as proprietary will be deemed to be a public record. h. All FDR agreements shall include the following enforceable provisions: i. A description of the administrative services to be provided by the FDR and any requirements for the FDR to report information to the MCP. ii. The beginning date and expiration date or automatic renewal clause for the arrangement, as well as applicable methods of extension, renegotiation and termination. iii. Identification of the service area and Medicaid population, either “non-dual” or “non- dual and dual” the FDR will serve. iv. A provision stating that the FDR shall release to the MCP and ODM any information necessary for the MCP to perform any of its obligations under the MCP’s provider agreement with ODM, including but not limited to compliance with reporting and quality assurance requirements. v. A provision that the FDR’s applicable facilities and records will be open to inspection by the MCP, ODM, its designee or other entities as specified by the Ohio Medical Assistance Provider Agreement or in OAC rule. vi. A provision that the agreement is governed by and construed in accordance with all applicable state or federal laws, regulations and contractual obligations of the MCP. The arrangement shall be automatically amended to conform to any changes in laws, regulations and contractual obligations without the necessity for written amendment. vii. A provision that Medicaid eligible individuals and ODM are not liable for any cost, payment, copayment, cost-sharing, down payment, or similar charge, refundable or otherwise for services performed, including in the event the FDR or the MCP cannot or will not pay for the administrative services. This provision does not prohibit waiver entities from collecting patient liability payments from MCP members as specified in OAC rule 5160:1-6-07.1. viii. The procedures to be employed upon the ending, nonrenewal or termination of the arrangement including at a minimum to promptly supply any documentation necessary for the settlement of any outstanding claims or services. ix. A provision that the FDR will abide by the MCP’s written policies regarding the False Claims Act and the detection and prevention of fraud, waste, and abuse. x. A provision that the FDR, and all employees of the FDR, are subject to the applicable provider qualifications in OAC rule 5160-26-05. xi. For an FDR providing administrative services that result in direct contact with a Medicaid eligible individual, a provision that the FDR will identify, and where indicated, arrange pursuant to the mutually agreed upon policies and procedures between the MCP and FDR for the following at no cost to the individual or ODM: 1. Sign language services; and 2. Oral interpretation and oral translation services. xii. For an FDR providing licensing and credentialing services of medical providers, a provision that: 1. The credentials of medical professionals affiliated with the party or parties will be reviewed by the MCP; or 2. The credentialing process will be reviewed and approved by the MCP and the MCP will audit the credentialing process on an ongoing basis. xiii. For an FDR providing administrative services that result in the selection of providers, a provision that the MCP retains the right to approve, suspend, or terminate any such selection. xiv. A provision that permits ODM or the MCP to seek revocation or other remedies, as applicable, if ODM or the MCP determines that the FDR has not performed satisfactorily, or the arrangement is not in the best interest of the MCP’s members. xv. A provision stating that all provisions in an FDR agreement must conform to and be consistent with all of the provisions of the Ohio Medical Assistance Provider Agreement. xvi. A provision that all of the provisions applicable to the FDR of the Ohio Medical Assistance Provider Agreement supersede all applicable provisions in an FDR agreement. If a provision in an FDR agreement contradicts or is incompatible with any applicable provision in the Ohio Medical Assistance Provider Agreement, the applicable provision in the FDR agreement is rendered null and void, unenforceable, and without effect. xvii. A provision stating that all FDRs shall fully assist and cooperate with the MCP in fulfilling the MCP’s obligations under the Ohio Medical Assistance Provider Agreement. xviii. A provision that allows the MCP to obtain and gather data, documents, and information from FDRs for the purpose of any audit conducted by the Auditor of the State of Ohio per ORC Chapter 117. i. The MCP is ultimately responsible for meeting all contractual obligations under the MCP’s provider agreement with ODM. The MCP shall: i. Ensure the performance of the FDR is monitored on an ongoing basis to identify any deficiencies or areas for improvement; ii. Impose corrective action on the FDR as necessary; and iii. Maintain policies and procedures that ensure there is no disruption in meeting its contractual obligations to ODM, if the FDR or the MCP terminates the arrangement between the FDR and the MCP. j. Unless otherwise specified by ODM, all information required to be submitted to ODM shall be submitted directly by the MCP. k. Information regarding changes to or termination of FDR arrangements shall be reported to ODM no less than 15 calendar days prior to it taking effect. l. Delegation requirements do not apply to care management arrangements between the MCP and a Comprehensive Primary Care Practice or Patient Centered Medical Home as cited in Appendix K. m. In accordance with 42 CFR 438.602, the MCP shall post on its website the name and title of individuals included in 42 CFR 438.604(a)(6). For the purposes of this requirement, the term “subcontractor” is defined as any individual or entity that has a contract with the MCP that relates directly or indirectly to the performance of the MCP’s obligations under this Agreement, not including a network provider.

Subcontractual Relationships and Delegation. If the MCP’s responsibilities or services under this Agreement are delegated MCP delegates to any first tier, downstream, or downstream and related entity (collectively, the other entities are “FDR” and any such agreement with an FDR is the “FDR agreement”), the MCP they shall ensure it has a written agreement an arrangement with the FDR to perform administrative services as defined below on the MCP’s behalf. The following requirements apply to all FDR agreements. Additional FDR requirements specific to Pharmacy Benefit Manager agreements are described in Appendix R of this Agreement. a. Unless otherwise specified by ODM, administrative services include: care management, marketing, utilization management, quality improvement, enrollment, disenrollment, membership functions, claims administration, licensing and credentialing, provider network management, and coordination of benefits. b. Parties to administrative services arrangements are defined as: i. First tier entity: any party that enters into a written arrangement, acceptable to ODM, with the MCP to provide administrative services for Ohio Medicaid eligible individuals. ii. Downstream entity: any party that enters into a written arrangement, acceptable to ODM, with a first tier or related entity or below the level of a first tier or related entity to provide administrative services for Ohio Medicaid eligible individuals. These arrangements continue down to the level of the ultimate provider of the administrative services. iii. Related entity: any party related to the MCP by common ownership or control, and under an oral or written arrangement performs some of the administrative services under the MCP’s contract with ODM. b. The following provisions apply and shall be followed before any FDR agreement is executed or renewed: i. At least 30 days prior to the MCP executing any FDR agreement (hereinafter referred to as “the FDR agreement review period”), the MCP shall provide the proposed FDR agreement to ODM for review. ODM, in its sole discretion, can agree to a shorter FDR agreement review period. ii. During the FDR agreement review period, ODM has the right to ask questions and request information from the MCP and the FDR about any provisions in the proposed FDR agreement. iii. The MCP and the FDR shall promptly respond to and provide complete answers and information to ODM in response to ODM’s questions and requests. iv. ODM has the right and authority to designate the FDR agreement, or any portion thereof, as incompatible with this Agreement, incompatible with ODM’s state plan amendment (SPA), incompatible with federal, state, or local regulations and laws, or unacceptable to ODM for any other reason, without limitation. If ODM determines that any provision of the proposed FDR agreement (or the FDR agreement as a whole) is unacceptable or incompatible as state above, the MCP shall either revise the proposed FDR agreement to ODM’s satisfaction or otherwise the MCP will seek a new proposed FDR agreement. The new proposed FDR agreement, and any thereafter, will be subject to an FDR agreement review period. v. The MCP shall not execute the proposed FDR agreement until ODM has stated in writing that the FDR agreement is acceptable. ODM’s approval does not need to be made within 30 days of receiving the proposed FDR agreement. vi. In addition to the provision above in subsections i. through v., ODM also has the right to forego the FDR agreement review period for any proposed FDR agreement. In such cases, ODM shall notify the MCP in writing that the MCP can execute the proposed FDR agreement without ODM conducting a review. c. ODM shall have the right to review the terms of any FDR arrangement upon request, and such arrangements shall include terms requiring the FDR to grant ODM access to documents and other records relevant to the FDR’s performance thereunder. d. Unless otherwise specified by ODM, administrative services include: care management, marketing, utilization management, quality improvement, enrollment, disenrollment, membership functions, claims administration, licensing and credentialing, provider network management, and coordination of benefits. e. Before the MCP enters into an arrangement with an FDR to perform an administrative function not listed above that could impact a member’s health, safety, welfare or access to Medicaid covered services, the MCP shall contact ODM to request a determination of whether or not the function should be included as an administrative service that complies with the provisions listed herein. f. d. Upon request, the MCP shall disclose to ODM all financial terms and arrangements for payment of any kind that apply between the MCP, or the MCP’s first tier, downstream and related entity (FDR), and any provider of a Medicaid service, except where federal and state law restricts disclosing the terms and arrangements. ODM acknowledges that such information may be considered confidential and proprietary and thus shall be held strictly confidential by ODM as specified in Article VII of this Agreement. g. If applicable, the e. The MCP and FDR shall narrowly designate portions of any FDR agreement as proprietary information. Portions of any FDR agreement designated as proprietary information shall be limited to the following: i. Portions of the FDR agreement that meet the definition of proprietary information in Article VII.B of this Agreement; and ii. Portions of the FDR agreement that consist of unique business or pricing structures that enters into a competitor may or would likely use to gain an unfair market advantage over the FDR. Proprietary designations in every FDR agreement shall be limited consistent written arrangement with the foregoing. Every portion of an FDR agreement that is not designated as proprietary will be deemed to be a public record. h. All FDR agreements shall include the following enforceable provisions: i. A description of the administrative services to be provided by the FDR and any requirements for the FDR to report information to the MCP. ii. The beginning date and expiration date or automatic renewal clause for the arrangement, as well as applicable methods of extension, renegotiation and termination. iii. Identification of the service area and Medicaid population, either “non-dual” or “non- non-dual and dual” the FDR will serve. iv. A provision stating that the FDR shall release to the MCP and ODM any information necessary for the MCP to perform any of its obligations under the MCP’s provider agreement with ODM, including but not limited to compliance with reporting and quality assurance requirements. v. A provision that the FDR’s applicable facilities and records will be open to inspection by the MCP, ODM, its designee or other entities as specified by the Ohio Medical Assistance Provider Agreement or in OAC rule. vi. A provision that the agreement arrangement is governed by by, and construed in accordance with all applicable state or federal laws, regulations and contractual obligations of the MCP. The arrangement shall be automatically amended to conform to any changes in laws, regulations and contractual obligations without the necessity for written amendment. vii. A provision that Medicaid eligible individuals and ODM are not liable for any cost, payment, copayment, cost-sharing, down payment, or similar charge, refundable or otherwise for services performed, including in the event the FDR or the MCP cannot or will not pay for the administrative services. This provision does not prohibit waiver entities from collecting patient liability payments from MCP members as specified in OAC rule 5160:1-6-07.105. viii. The procedures to be employed upon the ending, nonrenewal or termination of the arrangement including at a minimum to promptly supply any documentation necessary for the settlement of any outstanding claims or services. ix. A provision that the FDR will abide by the MCP’s written policies regarding the False Claims Act and the detection and prevention of fraud, waste, waste and abuse. x. A provision that the FDR, and all employees of the FDR, are subject to the applicable provider qualifications in OAC rule 5160-26-05. xi. For an FDR providing administrative services that result in direct contact with a Medicaid eligible individual, a provision that the FDR will identify, and where indicated, arrange pursuant to the mutually agreed upon policies and procedures between the MCP and FDR for the following at no cost to the individual or ODM: 1. Sign language services; and 2. Oral interpretation and oral translation services. xii. For an FDR providing licensing and credentialing services of medical providers, a provision that: 1. The credentials of medical professionals affiliated with the party or parties will be reviewed by the MCP; or 2. The credentialing process will be reviewed and approved by the MCP and the MCP will audit the credentialing process on an ongoing basis. xiii. For an FDR providing administrative services that result in the selection of providers, a provision that the MCP retains the right to approve, suspend, or terminate any such selection. xiv. A provision that permits ODM or the MCP to seek revocation or other remedies, as applicable, if ODM or the MCP determines that the FDR has not performed satisfactorily, or the arrangement is not in the best interest of the MCP’s members. xv. A provision stating that all provisions in an FDR agreement must conform to and be consistent with all of the provisions of the Ohio Medical Assistance Provider Agreement. xvi. A provision that all of the provisions applicable to the FDR of the Ohio Medical Assistance Provider Agreement supersede all applicable provisions in an FDR agreement. If a provision in an FDR agreement contradicts or is incompatible with any applicable provision in the Ohio Medical Assistance Provider Agreement, the applicable provision in the FDR agreement is rendered null and void, unenforceable, and without effect. xvii. A provision stating that all FDRs shall fully assist and cooperate with the MCP in fulfilling the MCP’s obligations under the Ohio Medical Assistance Provider Agreement. xviii. A provision that allows the MCP to obtain and gather data, documents, and information from FDRs for the purpose of any audit conducted by the Auditor of the State of Ohio per ORC Chapter 117. i. The MCP is ultimately responsible for meeting all contractual obligations under the MCP’s provider agreement with ODM. The MCP shall: i. Ensure the performance of the FDR is monitored on an ongoing basis to identify any deficiencies or areas for improvement; ii. Impose corrective action on the FDR as necessary; and iii. Maintain policies and procedures that ensure there is no disruption in meeting its contractual obligations to ODM, if the FDR or the MCP terminates the arrangement between the FDR and the MCP. j. Unless otherwise specified by ODM, all information required to be submitted to ODM shall be submitted directly by the MCP. k. Information regarding changes to or termination of FDR arrangements shall be reported to ODM no less than 15 calendar days prior to it taking effect. l. Delegation requirements do not apply to care management arrangements between the MCP and a Comprehensive Primary Care Practice or Patient Centered Medical Home as cited in Appendix K. m. In accordance with 42 CFR 438.602, the MCP shall post on its website the name and title of individuals included in 42 CFR 438.604(a)(6). For the purposes of this requirement, the term “subcontractor” is defined as any individual or entity that has a contract with the MCP that relates directly or indirectly to the performance of the MCP’s obligations under this Agreement, not including a network provider.