[DESCRIPTION] MATERIAL CONTRACTS
EX-10.57 Copy of Wellness Administrative Services
Agreement dated July 1, 1996, and Amendment
to said Agreement dated October 10, 1996,
between WellCare of New York, Inc. and
Bienestar, Inc.
WELLNESS ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
WELLCARE OF NEW YORK, INC.
AND
BIENESTAR, INC.
This Agreement is made and entered into as of this first day
of July 1996, by and between WellCare of New York, Inc., a New York
State for-profit health maintenance organization (HMO)(hereinafter
referred to as "WellCare"), and Bienestar, Inc., a for-profit
corporation organized under the laws of the State of Delaware
(hereinafter referred to as "Bienestar").
WHEREAS, WellCare currently provides health care coverage to
approximately 100,000 commercial, Medicaid (Healthy Choice), and
Medicare (Senior Health) members; and
WHEREAS, Bienestar is a wholly-owned subsidiary corporation of
WellCare engaged in the business of providing consulting and
educational services regarding wellness and integrative health
services to managed care entities, as described in the attached
Bienestar brochure; and
WHEREAS, WellCare desires to engage Bienestar to provide
wellness and integrative health care services to enrolled members on
the basis, terms, and conditions of this Agreement; and
WHEREAS, WellCare and Bienestar have duly authorized the
execution and performance of this Agreement, and this Agreement is
a valid and binding agreement subject to the approval of the New
York State Commissioner of Health.
NOW, THEREFORE, in consideration of the promises and the
mutual representations, covenants and agreements herein contained
and for other good and valuable consideration, the receipt and
sufficiency whereof is hereby acknowledged, and intending to be
legally bound, WellCare and Bienestar do hereby represent, covenant,
promise and agree as follows:
ARTICLE I
COMPENSATION TO WELLCARE
As compensation for services rendered, as set forth in Article 6,
WellCare shall pay to Bienestar the following:
1.1 A monthly fee of $1.25 per member per month (PMPM) for
commercial and Medicare (Senior Health) Members. The monthly
fee shall cover, but not be limited to, the services set forth
in Article 6 including the services of Bienestar executives,
Bienestar Wellness Representatives and the supervision of all
of the services described in Article 6.
1.2 All fees shall be due and payable on the first of each and
every month of the term of this Agreement. Any monthly fees
in arrears fifteen (15) days will begin accruing finance
charges of one percent (1%) a month.
ARTICLE 2
TERM AND CANCELLATION
2.1 Term. This Agreement is effective July 1, 1996, and shall
continue for a five (5) year term or through June 30, 2001.,
under the same terms and conditions unless so amended by both
parties.
2.2 Cancellation.
(a) If either party is dissolved or liquidated, or shall
apply for or consent to the appointment of a receiver, trustee
or liquidator of it or all or a substantial part of its
assets, file a voluntary petition in bankruptcy, make a
general assignment for the benefit of creditors, file a
petition or answer seeking its reorganization of an
arrangement with its creditors or to take advantage of an
insolvency law, or if an order, judgment or decree shall be
entered by any court of competent jurisdiction, on the
application of a creditor, adjudicating said party of
appointing a receiver, trustee or liquidator for said party or
all of a substantial part of its assets, and such order,
judgment or decree shall continue in effect for any period of
ninety (90) consecutive days, then in case of any such event,
this Agreement shall expire, at the other party-s option, on
five (5) days written notice, notwithstanding any other
provision in this Agreement.
(b) If WellCare or Bienestar shall fail to keep, observe or
perform any material covenant, agreement, term or provision of
this Agreement to be kept, observed, or performed by it, and
such default shall continue for a period the greater of thirty
(30) days or in cases where the alleged default is a result of
governmental action or inaction, such longer period as shall
be required to exhaust all procedural and substantive rights
available by law to cure same under applicable governmental or
third party payor laws or regulations, or, if other defaults
are curable but not within the thirty (30) day period, such
longer time as may be required shall be given to cure,
provided that the defaulting party begins to cure immediately
and thereafter proceeds diligently and without interruption
until the cure is completed, as written notice by the non-defaulting party
to the other specifying the default in question and requesting that the
default be cured, than in case of any such event and upon the
expiration of any period of grace applicable thereto the term of this
Agreement shall expire, at the option of the non-defaulting party, on
five (5) days written notice to the other party.
(c) Either party shall have the right to terminate this
Agreement at any time if the operating license of WellCare or
any substantial portion thereof is revoked or suspended for
more than sixty (60) consecutive days provided all procedural
and substantive rights available under law to reserve or
modify same shall have first been exhausted by WellCare if it
chooses to pursue such rights, in its sole discretion.
Notwithstanding foregoing, either party's right to terminate
hereunder shall be exercised only by delivery of written
notice to the other party no later than ten (10) days after
expiration of the aforementioned sixty (60) day period or the
exhaustion of all such procedural and substantive rights.
(d) Either party shall have the right to terminate this
Agreement at any time without cause upon a six (6) month
written notice sent by certified mail to the other party.
ARTICLE 3
ALLOCATION OF AUTHORITY AND RESPONSIBILITY
3.1 Medical and Professional Matters. All medical and
professional policy matters shall be the responsibility of
WellCare. Policy recommendations for the provision of
integrative health care services shall be formulated by a
medical advisory committee (MAC) consisting of: WellCare's
Medical Director, Director of CQI., Clinical Outcomes Programs
Development Manager, Manager of Program Development and Health
Promotion, one representative of Bienestar, and the Chief
Medical Officer as an ex officio.
3.2 Reports. Bienestar shall present to WellCare and its
Board of Directors quarterly written reports summarizing
Bienestar's management actions and results, other reports as
Bienestar may deem appropriate to keep WellCare informed as to
the status of the Bienestar program, and such other reports as
WellCare may reasonable request. Bienestar shall also provide
such reports as may be required by any regulatory agency
having jurisdiction over WellCare. WellCare shall notify
Bienestar of any and all correspondence and/or determination
of any regulatory agency immediately upon receipt thereof by
WellCare.
3.3 All parties agree to review success of relationship after a
twelve (12) month period of time to maintain high productivity
and to establish performance targets which shall provide
Bienestar a strong incentive to assist WellCare in reducing
escalating health care costs while improving the quality of
care to enrolled members.
ARTICLE 4
GOVERNMENT REGULATIONS
Bienestar shall comply with the requirements of any applicable
statute, ordinance, law, rule, regulation, or order of any
governmental or regulatory body having jurisdiction. Bienestar
shall notify WellCare of any and all correspondence or communication
from any such regulatory agency, and shall make such presentations
to the WellCare Board with regard to communications from regulatory
agencies as WellCare shall request.
ARTICLE 5
CONFIDENTIALITY AND OWNERSHIP OF RECORDS
Bienestar shall protect the confidentiality of the records of
WellCare and WellCare Members and shall comply with all applicable
federal, state, and local laws and regulations, and medical ethical
standards relating to the records of WellCare and WellCare Members.
Bienestar hereby acknowledges that any and all records maintained by
or on behalf of WellCare, no matter where such records are housed,
shall be deemed to be in the possession of WellCare and to be the
property of WellCare. Ownership of all records made by or on behalf
of WellCare shall be in WellCare, and physical custody of all
records shall be transferred immediately to WellCare in the event
this Agreement expires or is terminated for any reason.
ARTICLE 6
SERVICES TO BE PROVIDED BY BIENESTAR
Bienestar will be responsible for:
(a) Development of a total wellness program for WellCare to:
(1) Educate health care professionals and
WellCare Members to encourage Members to take an active
role in their own health care and to better understand
and effectively manage their health needs;
(2) Analyze data to identify Members' health
needs in order to assist in achieving better outcomes
and better cost management;
(3) Appreciate the cultural nuances of the
Member and apply this understanding to develop programs
which will enhance Members' total well-being; and
(4) Provide education to providers and Members
and to advocate on behalf of Members to make optimal use
of integrative health care benefits.
(b) Provision of consultative services to WellCare with
respect to the management of behavioral health care
benefits for its Members;
(c) Provision of consultative and technical assistance to
WellCare with respect to educational services for
Members, employers and providers;
(d) Assistant to WellCare in the development of Wellness
programs for employer groups; and
(e) Market research and development of Wellness services.
ARTICLE 7
LIABILITY INSURANCE
WellCare agrees that basic limits of professional malpractice
liability insurance will be maintained during this Agreement with
coverage in an amount of not less than $1,000,000 per occurrence and
$3,000,000 per annual aggregate, however, the policy shall in the
form and amounts of such coverage be not less than those required by
all applicable regulatory agencies and by other applicable New York
insurance laws and regulations. WellCare agrees to provide
Bienestar with certificates of insurance as evidence of coverage and
to provide written notice to Bienestar of any proposed
modifications, cancellation or termination of the above-referenced
insurance coverage at least thirty (30) days prior thereof.
ARTICLE 8
ARBITRATION
In the event that any dispute shall arise with regard to this
Agreement, all parties agree to submit the matter(s) in controversy
to a Board of Arbitrators consisting of three (3) members (one shall
be selected by each party to this Agreement and these members in
turn shall select a third member). The Board of Arbitrators so
constituted shall proceed under the rules and regulations of the
American Arbitration Association. All parties expressly covenant
and agree to be bound by the decision of the arbitrators and accept
any decision by a majority of the arbitrators as a final
determination of the matter(s) in dispute. The parties to the
Agreement shall share the cost of arbitration equally.
IN WITNESS WHEREOF, the parties have set their signatures
below.
WELLCARE OF NEW YORK, INC. BIENESTAR, INC.
By: /s/ Xxxxxx X. Xxxxxxx By:/s/ Xxxxxxx Xxxxxxxxx V.
Xxxxxx X. Xxxxxxx Xxxxxxx Xxxxxxxxx V.
Title: Chairman Title: CEO/President
Date: July 1, 1996 Date: July 1, 1996
Attachment
AMENDMENT TO
WELLNESS ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
WELLCARE OF NEW YORK, INC.
AND
BIENESTAR, INC.
THIS AMENDMENT is made and entered into as of this 10th day of
October, 1996 by and between WellCare of New York, Inc., a New York
State for-profit health maintenance organization (hereinafter
referred to as "WellCare") and Bienestar, Inc., a for-profit
corporation organized under the laws of the State of Delaware
(hereinafter referred to as "Bienestar").
WHEREAS, WellCare and Bienestar entered into a Wellness
Administrative Services Agreement (hereinafter referred to as "The
Agreement") dated as of the 1st day of July, 1996 by the terms of
which Bienestar is to provide wellness and integrative health care
services to enrolled members of WellCare; and
WHEREAS, WellCare and Bienestar have agreed to amend The
Agreement; and
WHEREAS, the Board of Directors of WellCare and the Board of
Directors of Bienestar have each duly authorized the execution and
performance of this Amendment and this Amendment is a valid and
binding agreement; and
WHEREAS, the parties wish to further amend The Agreement as
set forth below.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and conditions contained herein and other good and
valuable consideration, the parties agree as follows:
I. Article 1 of The Agreement shall be amended as follows:
Section 1.1 The fee paid to Bienestar will be $1.30 per
member per month for those new group members or current
members covered under group contracts as of October 1, 1996
who select the benefits offered by WellCare described on
Exhibit "A," provided that it is understood that the existing
compensation of $1.25 per member per month set forth in
Article 1.1 of The Agreement shall remain in effect for the
terms of all group contracts in effect at the time of this
Agreement until such time as those contracts are up for
renewal. Said compensation shall apply to commercial members
(group contracts), and Medicare members (Senior Health), and
is not applicable to other members.
Section 1.2 The compensation fee shall be paid based upon
WellCare's most current membership data. WellCare shall use
best efforts to reconcile any mistakes in payment or in
payment information retroactively within one hundred eighty
(180) days.
II. Article 2 of The Agreement shall be amended as follows:
Section 2.1 The term of The Agreement is changed to July 1,
1996 to November 8, 1997.
Section 2.2 In the event that The Agreement is terminated by
WellCare pursuant to Article 2.2(d) thereof, WellCare shall
immediately pay to Bienestar the monthly fees that would be
due to Bienestar for the remainder of the term of The
Agreement, based on the number of WellCare members then
receiving the Bienestar Rider or its equivalent or preexisting
contract, at the time notice of termination is given.
III. Article 3 of The Agreement shall be amended as follows:
Add to Section 3.2 Within thirty (30) days of the date hereof
Bienestar and WellCare will use best efforts to develop
standards by which to monitor Bienestar's peformance under The
Agreement. To assist in that task, the parties agree that
WellCare shall designate an individual to act as a liaison and
that Bienestar shall meet with such individual at such times
as necessary in order for a protocol to be developed in said
time frame. Development of such protocol is a material
inducement for WellCare to enter into this Amendment.
IV. Article 6 of The Agreement shall be amended as follows:
Add (f) Bienestar agrees not to subcontract with any third
parties without the express written consent of WellCare, which
consent may be withheld or denied in WellCare's sole
discretion. Bienestar agrees that any and all third parties
engaged by Bienestar to perform services set forth in The
Agreement will execute a subcontract with Bienestar which
shall acknowledge WellCare as a third party to the contract.
Bienestar shall require the subcontractors to abide by The
Agreement and this Amendment and will ensure that the terms of
The Agreement and Amendment are incorporated by reference in
the subcontract. Bienestar will make available, on request by
WellCare, all subcontracts that provide for services to
WellCare Members. Copies of subcontracts shall be made
available to WellCare in the requested time frame which in no
case shall exceed twenty (20) days after request of such
subcontracts.
V. Article 7 of The Agreement shall be amended as follows:
Bienestar shall obtain all insurance policies in the form and
amounts of coverage not less than those required by all
applicable regulatory agencies and by other applicable New
York insurance laws and regulations. Bienestar agrees to
provide WellCare with certificates of insurance as evidence of
coverage and to provide written notice to WellCare of any
proposed modifications, cancellation or termination of the
above-referenced insurance coverage at lease thirty (30) days
prior thereof.
VI. The Agreement shall be further amended to add an Article 9 as
follows:
OBLIGATIONS OF WELLCARE AND EXCLUSIVITY
During the term of The Agreement, WellCare shall be obligated
to offer to its Commercial members (group) and Senior Health
members the option to purchase the benefits which The
Agreement manages. During the term of The Agreement,
Bienestar shall be the exclusive provider of the services
listed in Article 6 as they relate to WellCare's provision of
the Bienestar Rider of The Agreement. Nothing contained
herein shall prevent WellCare from directly providing said
services, provided that it is understood that the fee paid to
Bienestar under Section 1.1 shall not be reduced if WellCare
chooses to provide any of said services directly during the
term of this Agreement.
IN WITNESS THEREOF, the parties have executed this Agreement
as of the date first above written.
WELLCARE OF NEW YORK, INC. BIENESTAR, INC.
By:/s/ Marystephanie Corsones By:/s/ Xxxxxx X. Xxxxxxx
Marystephanie Xxxxxxxx Xxxxxx X. Xxxxxxx
Treasurer President
Signed: December 17, 1996 Signed: December 11, 1996
