IPA SERVICE AGREEMENT
This Agreement is dated this 21st day of April, 1998 (the "Effective
Date"), by and between WELLCARE OF NEW YORK, INC., a New York business
corporation ("WellCare"), and ORANGE-XXXXXXXX HEALTH CARE ALLIANCE IPA, INC., a
New York business corporation ("IPA").
W I T N E S S E T H:
WHEREAS, WellCare is a health maintenance organization certified under
Article 44 of the New York Public Health Law and desires to make primary and
specialty physician services available to its IPA Members (as hereinafter
defined) in the Service Area (as hereinafter defined);
WHEREAS, WellCare and the professional service corporation listed on
Exhibit A-1 hereto (the "PC") have previously entered into the agreements listed
on Exhibit A-2 attached hereto (collectively, the "Prior Agreements"), under
which the PC has provided certain health services to Members;
WHEREAS, the PC has accumulated various liabilities scheduled on Exhibit
A-3 in connection with the performance of its obligations under Prior Agreements
(such liabilities, the "PC Liabilities");
WHEREAS, IPA is duly incorporated under the laws of the State of New York
as an independent practice association organized to arrange for the delivery of
certain primary and specialty health care services and has entered into a
written provider agreements with IPA Physicians (as hereinafter defined);
WHEREAS, WellCare and IPA, as a successor to PC, desire to enter into this
Agreement under which IPA shall arrange for the provision of, and be responsible
for the payment to IPA Physicians and all other providers who provide, primary
and certain specialty health care services to IPA Members; and
WHEREAS, as a condition to WellCare entering into this Agreement, IPA shall
assume the PC Liabilities.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Benefit Plan. A contract, certificate or other Evidence of Coverage
issued to each Employer Group and/or Member, that describes the obligations of
WellCare to deliver health care services to Members.
1.2 Coinsurance. A cost sharing arrangement in which the Member is required
to pay a specified percentage of the charge directly to the Participating
Provider, as specifically provided in the Evidence of Coverage.
1.3 Commissioner. The Commissioner of the Department of Health of the State
of New York.
1.4 Copayment. A cost sharing arrangement in which the Member pays a
specified amount for specific health services such as office visits, outpatient
prescriptions, and emergency room visits directly to the Participating
Providers, as specifically provided in the Evidence of Coverage. Copayment fees
are normally paid at the point of service when the service is rendered.
1.5 Covered Services. Those health care services that IPA Members are
entitled to receive in accordance with the terms and conditions set forth in the
applicable Member Benefit Plans. Services which are not Medically Necessary
shall not be deemed as Covered Services for purposes of this Agreement or the
Member Benefit Plans, except as otherwise provided herein.
1.6 Deductible. A cost sharing arrangement in which the Member is required
to pay a specified amount for Covered Services before WellCare is obligated to
pay, as permitted and as specifically provided in the Evidence of Coverage.
1.7 Emergency. A situation where medical services are required as the
result of a medical or behavioral condition the onset of which is sudden, that
manifests itself by symptoms of sufficient severity, including severe pain, that
a prudent layperson, who possesses an average knowledge of medicine and health,
could reasonably expect the absence of immediate medical attention to result in:
(i) placing the health of the person afflicted with such condition or another
individual in serious jeopardy; (ii) serious impairment to such person's bodily
functions; (iii) serious dysfunction of any bodily organ or part of such person;
or (iv) serious disfigurement of such person.
1.8 Employer Group. An organization, firm or governmental entity that has
contracted with WellCare to provide and/or arrange for the provision of health
care services for its employees and/or retirees and/or the spouses or children
of each.
1.9 Enrolled Population. The aggregate of all persons who are entitled to
receive health care services arranged to be provided by IPA or the other
independent practice associations managed by Primergy set forth on Attachment
1.9, annexed hereto and made a part hereof, for any one or
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more product lines (e.g., commercial, Medicaid) for which IPA agrees to arrange
for health care services hereunder.
1.10 Evidence of Coverage. The document evidencing covered health care
services which is issued to each Member.
1.11 FPA. FPA Medical Management, Inc., a Delaware business corporation.
1.12 Hospital Piece. Has the meaning ascribed to it in Section 4.1.
1.13 Hospital Services. Those Medically Necessary acute care inpatient and
outpatient services that are Covered Services.
1.14 Identification Card. Shall mean the card issued by WellCare to each
Member which sets forth the Member identification number, which is to be
included on any claim form submitted to WellCare for payment.
1.15 IPA Member. A Member who has selected a PCP as such individual's
primary care physician.
1.16 IPA Member Benefit Plan. A contract, certificate or other Evidence of
Coverage issued to each Employer Group and/or Member, that describes the
obligations of WellCare to deliver Covered Services to IPA Members, as listed on
Attachment 1.16, annexed hereto and made a part hereof, as amended by WellCare
from time to time.
1.17 IPA Member Panel. A list of IPA Members who have chosen a PCP.
1.18 IPA Physician. Those physicians and entities representing such
physicians that have entered into written agreements with IPA to provide
Physician Services to IPA Members as listed on Attachment 1.18, annexed hereto
and made a part hereof, as amended by IPA quarterly.
1.19 IPA Service Area. The County of New York State set forth on Attachment
1.19, annexed hereto and made a part hereof.
1.20 IPA Services. Those Medically Necessary Covered Services that are
performed, prescribed or directed by IPA Physicians, or other providers to the
extent provided herein, including, but not limited to, Medical Services rendered
in an Emergency, other than (i) those enumerated health care services set forth
on Attachment 1.20, annexed hereto and made a part hereof, and (ii) Hospital
Services.
1.21 Medically Necessary. Medical, surgical or other treatment which a
Member requires for the treatment of illness or bodily injury as determined by
WellCare, or its appropriately delegated medical management authority, and that
is in compliance with professional and technical standards adopted by the
Quality Assurance Committee of WellCare.
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1.22 Medical Services. Those Medically Necessary health care services,
other than Hospital Services, that are Covered Services.
1.23 Member. An individual entitled to receive health care services under a
Benefit Plan (including but not limited to commercial, New York State Child
Health Plus, Medicare and Medicaid lines of business).
1.24 Option. The option to cause Primergy to merge with and into FPA,
granted to FPA pursuant to the Option Agreement, made as of March 4, 1997,
between FPA and Primergy, as amended by agreement dated November 20, 1997.
1.25 Option Termination Event. The first to occur of (i) the date on which
FPA notifies Primergy that it relinquishes any and all rights to the Option and
(ii) June 30, 1998, if FPA has not provided Primergy with notice of FPA's desire
to exercise the Option prior thereto.
1.26 Participating Hospital. A licensed hospital that has entered into a
Participating Hospital Agreement with WellCare directly or indirectly.
1.27 Participating Physician. A fully licensed physician or entity
authorized to practice medicine who has entered into a Participating Physician
Agreement with WellCare directly or indirectly.
1.28 Participating Provider. Participating Physicians and Participating
Hospitals and other health care professionals, home health care agencies,
optometrists, pharmacies or other providers of health care services who have
entered into written agreements with WellCare directly or indirectly.
1.29 Payment Period. Has the meaning given to such term in Attachment 4.1
hereto.
1.30 PC. Has the meaning given such term in the recitals to this Agreement.
1.31 PC Liabilities. Has the meaning given such term in the recitals to
this Agreement.
1.32 PCP. An IPA Physician specializing in Family Practice, General
Practice, Internal Medicine or Pediatrics who has met the credentialing
standards of WellCare for designation as a primary care physician and provides
continuity of care to the Member who seeks his/her care by supervising,
coordinating and providing initial and basic care and initiating referrals for
Specialist care.
1.33 Policies and Procedures. WellCare's provider manual and all other
written standards, policies and procedures adopted by WellCare in connection
with the provision of Covered Services to IPA Members, including, but not
limited to, those that relate to quality improvement, utilization review
(including preauthorization), claims payment review, grievance procedures,
coordination of benefits and referral, admission and administrative procedures,
as amended from time to time in
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accordance with Section 2.2 hereof and which, together with all amendments
thereto, will be incorporated herein by reference.
1.34 Primergy. Primergy, Inc., a New York business corporation, that is the
sole shareholder of IPA and provides management services to IPA.
1.35 Prior Agreements. Has the meaning given such term in the recitals to
this Agreement.
1.36 Specialist. A Participating Physician who has contracted with WellCare
directly or through IPA to provide Specialty Services upon referral from a PCP,
which may also be known as a consultant.
1.37 Specialty Services. Those IPA Services usually and customarily
performed by a Specialist.
ARTICLE II
RIGHTS AND RESPONSIBILITIES OF WELLCARE
2.1 Marketing. WellCare shall use its best efforts to arrange to have
IPA Physicians' names, office addresses, telephone numbers and specialties and
other similar information included in WellCare's Provider Directory. WellCare
shall use its best efforts to market its products in the Service Area and to do
so in compliance with the requirements of applicable state and federal laws.
2.2 Operation of Programs. WellCare shall operate, or WellCare shall
delegate to a third party from time to time to the extent consistent with
applicable federal, state, local law and regulations and regulatory agency's
guidelines, utilization management, quality improvement, health service delivery
and preauthorization Policies and Procedures, in consultation with IPA, as well
as Member and Participating Provider grievance programs, to assure the delivery
of cost effective, quality health care services by IPA Physicians. WellCare
shall deliver to IPA simultaneously with the execution and delivery of this
Agreement all current Policies and Procedures reasonably necessary to keep IPA
Physicians abreast of the policies and programs of WellCare in which they
participate, which Policies and Procedures are, and all additions to and
amendments thereof shall be, incorporated herein by reference. Additionally,
WellCare shall provide IPA with any addition to or amendment of such Policies
and Procedures not less than thirty (30) days prior to the effective date of
such addition or amendment, during which period WellCare shall consult with IPA
regarding any reasonable concerns that IPA might have in connection therewith.
Additionally, WellCare shall deliver to IPA (i) copies of all IPA Member Benefit
Plans, simultaneously with the execution hereof and (ii) any amendments thereto,
not less than thirty (30) days prior to the effective date of such amendments.
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2.3 Member Identification Card. WellCare shall furnish to all IPA Members
an Identification Card that is to be presented to the Participating Providers
prior to the delivery of Covered Services.
2.4 Claims for Non-Members. In the event Medically Necessary services which
are authorized by WellCare are provided to an ineligible person, that ineligible
person shall be responsible for payment of such services.
2.5 IPA Member Panels for PCPs. WellCare shall provide IPA and PCPs with a
list of IPA Members for whom the PCPs are responsible and update such list on a
monthly basis.
2.6 Maintenance of Licensure. WellCare agrees to maintain, in good
standing, all current licenses and certifications required by applicable law,
including, without limitation, its certificate to operate an HMO. WellCare shall
immediately notify IPA in writing of any change in, or loss of insurance, or
action to suspend, revoke or limit any of its licenses or certification or of
other action which could reasonably prevent WellCare from performing its
obligations under this Agreement.
2.7 WellCare Right to Contract. It is expressly recognized and agreed by
and between the parties that WellCare shall retain its full right and ability to
establish, contract, or otherwise associate with any provider of health care
services; provided, however, that subject to Section 3.2(a) hereof, from the
Effective Date until termination of this Agreement pursuant to Article VI
hereof, WellCare agrees not to contract with any (i) primary care physician or
(ii) independent practice association that contracts with primary care
physicians or other organizational structure for a primary care physician
network, to provide IPA Services to IPA Members in the Service Area.
2.8 Credentialing Information. WellCare shall provide IPA with all
credentialing information that WellCare has obtained in connection with each IPA
Physicians; provided that each IPA Physician has consented to the release of
such information by WellCare to IPA in writing.
2.9 WellCare's Obligation to IPA Members. Notwithstanding Sections 3.16 or
4.1 hereof or any other provision of this Agreement, WellCare shall bear
ultimate responsibility for the care of the Members.
2.10 Consents. WellCare shall obtain from each IPA Member all releases and
consents that may be required to permit release of records to WellCare.
2.11 Assistance to Maintain Network. WellCare agrees to use its reasonable
efforts to assist IPA in maintaining a viable provider network for the Service
Area as set forth in Section 3.2 hereof, but shall not be responsible for
maintenance requirements set forth in Section 3.2 hereof.
2.12 Provision of Data. WellCare shall proivde to IPA data as mutually
agreed to in the format and frequency set forth in Attachment 2.12.
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ARTICLE III
RIGHTS AND RESPONSIBILITIES OF IPA AND IPA PHYSICIANS
3.1 Access to IPA Physicians. IPA represents and warrants that it is
authorized to contract with WellCare to arrange for IPA Services to be provided
by the IPA Physicians. IPA agrees that by executing this Agreement, the IPA
Physicians become Participating Providers and IPA Physicians agree to be bound
by the terms and conditions of this Agreement. IPA shall provide to WellCare a
list of all IPA Physicians containing the information set forth in Section 3.22
of this Agreement quarterly.
3.2 Network Maintenance and Expansion. (a) Subject to Section 3.2(b), it is
expressly recognized and agreed by and between the parties that IPA is intended
to be the foundation of the WellCare physician network in the Service Area.
Accordingly, IPA shall (i) use its best efforts to meet the PCP/IPA Member
ratios set forth on Attachment 3.2 hereof and (ii) contract with, at a minimum,
the same number and type of Specialists in the Service Area with which the
Departments require WellCare to so contract. Additionally, all physicians and
entities representing such physicians that contract with IPA, or a subsidiary or
an affiliate of IPA, to provide medical services shall be, subject to WellCare's
credentialing criteria, an IPA Physician.
(b) In the event that the ratio of PCPs as compared to IPA Members
falls below any of the ratios as listed on Attachment 3.2, WellCare shall
provide IPA a period of ninety (90) days to contract with primary care
physicians to meet such ratio(s). If IPA is unable to meet any of such ratios,
the limitations set forth in Section 2.7 shall be null and void and be of no
further force or effect.
(c) Subject to Section 4.2 hereof, it is expressly recognized and
agreed by and between the parties that IPA shall retain its full right and
ability to establish, contract or otherwise associate with any other individual
practice association, health maintenance organization or other entity without
being deemed in contravention or breach of this Agreement or any other
obligation to WellCare; provided that any contract or arrangement with any such
entity shall not materially interfere with or prevent IPA or any IPA Physician
from fulfilling his or her obligation under this Agreement.
3.3 Provision of IPA Services to IPA Members. IPA shall require that each
IPA Physician agree to provide IPA Services to IPA Members in accordance with
the terms of this Agreement. IPA hereby acknowledges, and shall require each IPA
Provider to acknowledge, that the presentation of an Identification Card by an
individual shall not be deemed conclusive evidence that such individual is a
Member. IPA acknowledges that WellCare, by this Agreement or otherwise, does not
guarantee to IPA, or to any IPA Physician, a minimum number of IPA Members.
3.4 WellCare Policies and Procedures. Except as expressly provided herein
to the contrary, IPA shall, to the extent applicable, and IPA shall require each
IPA Physician to (i) cooperate, participate, and comply with all Policies and
Procedures and National Committee on Quality Assurance ("NCQA") standards and
guidelines and (ii) abide by the determination of
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WellCare on all such matters set forth therein during the term of this
Agreement. IPA shall deliver to each IPA Physician a copy of the Policies and
Procedures, along with all additions to and amendments thereof, within five (5)
days after delivery by WellCare to IPA in accordance with Section 2.2 hereof.
3.5 Coverage. IPA shall use reasonable efforts to maintain arrangements
with an array of IPA Physicians to make IPA Services available and accessible
for all IPA Members as may be required by federal and/or state law. IPA shall
require that each PCP agree (i) (x) to provide IPA Services to IPA Members and
arrange for calls from IPA Members to be answered by a person hired, directly or
indirectly, by such PCP on a twenty-four (24) hour a day, seven (7) day a week
basis and (y) to return Emergency calls within thirty (30) minutes thereof, or
(ii) to arrange with a physician to provide such coverage to PCP's Member
patients in PCP's absence. Such covering physician shall be a Participating
Provider whenever possible. IPA shall require each PCP to use his or her best
efforts to have such covering Physician agree that he or she will (a) not xxxx
IPA Members or WellCare for Covered Services under any circumstances except for
Copayments, Coinsurance, and permitted Deductibles, (b) xxxx, charge, collect
payment from IPA for Covered Services provided to IPA Members, and (c) obtain
authorization from WellCare prior to all hospitalizations or referrals of IPA
Members, except for an Emergency.
3.6 Emergencies. IPA shall require each IPA Physician to agree to notify
WellCare of any admission relating to an Emergency within twenty-four (24) hours
of the admission or the next business day.
3.7 Standard of Care. IPA shall require each IPA Physician to provide IPA
Services and/or arrange for the provision of IPA Services or Covered Services in
order to provide a standard of care in a manner not less than generally accepted
medical practices in effect at the time of services and in a manner consistent
with the Policies and Procedures in effect for WellCare, which shall be
delivered by WellCare to IPA pursuant to Section 2.2 hereof.
3.8 Nondiscrimination. IPA shall require each IPA Physician to provide or
arrange for the provision of Covered Services to IPA Members in the same manner
and quality as services are provided to or arranged for all their other
patients. IPA Members shall not be discriminated against on the basis of age,
race, color, creed, ancestry, religion, gender, sexual orientation, national
origin, health status, marital status, disability, or source of payment.
3.9 Office Closure. IPA shall use its best efforts to require each PCP to
acknowledge and agree that such PCP may only close his or her practice to new
IPA Members if such PCP has closed his or her practice to new members covered
under benefit plans of all third-party payors with which such PCP directly or
indirectly contracts. IPA shall require each PCP to notify WellCare at least
sixty (60) days prior to closing his or her practice to new IPA Members, subject
to this Section 3.9; provided, that the effective date of such closure shall not
occur until the last day of the month in which such closure is to be effective;
and provided, however, that in the event such PCP is disabled or otherwise
incapacitated by illness, such notice shall be given when feasible.
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3.10 Continuity of Care. IPA shall require each PCP to meet the
credentialing standards of WellCare for designation as a PCP and to provide
continuity of care to the Member who seeks his or her care by supervising,
coordinating, and providing initial and basic care and initiating a referral for
Specialist care when Medically Necessary.
3.11 Maintenance of Licensure; Certification. IPA shall require each IPA
Physician to represent and warrant to IPA that he or she is a physician duly
licensed under applicable state law, or otherwise authorized to practice within
the scope of such license or authorization under applicable state law, and,
where appropriate, has obtained all other appropriate licenses, such as DEA
licenses, Medicare participation and, if such IPA Physician is a Specialist,
appropriate specialty board certification. IPA shall require each IPA Physician
to maintain in good standing all of the above.
3.12 Staff Privileges. IPA shall require each IPA Physician, except as
otherwise agreed to by WellCare, to represent and warrant to IPA that he or she
is an active member in good standing on the medical staff of a Participating
Hospital and that he or she shall maintain such status during the term of this
Agreement.
3.13 Health Care Programs. IPA shall require each IPA Physician to
represent and warrant to IPA that he or she (i) is in good standing to
participate in Medicare and Medicaid Programs and to covenant to WellCare that
he/she will continue to be so certified during the term hereof and (ii) has
never been excluded from participation in the Medicare program, Medicaid
program, or any other federal healthcare program.
3.14 Government Sanctions. IPA shall require each IPA Physician to
represent and warrant to IPA that he or she has never been sanctioned by the
Medicare program, Medicaid program, or any other federal or state agency for
Physician's failure to provide medical care of adequate quality or medically
necessary care.
3.15 Compliance with Law. IPA shall, and shall require each IPA Physician
to agree to, comply with all applicable federal, state, and local laws and
regulations or regulatory agency requirements and guidelines relating to the
provision of IPA Services. IPA shall immediately notify WellCare in writing of
any change in, or loss of insurance, or action to suspend, revoke or limit any
of its licenses or certification or of other action which could reasonably
prevent IPA from performing its obligations under this Agreement.
3.16 WellCare Hold Harmless. IPA shall require that each IPA Physician
agree that (i) he or she shall look solely to IPA for payment for any health
care services rendered to IPA Members and (ii) WellCare shall not be liable to
him or her for failure by IPA to pay such IPA Physician for any such services
because of insolvency of IPA or termination of this Agreement pursuant to
Article VI hereof. IPA expressly acknowledges and agrees and shall require each
IPA Physician to expressly acknowledge and agree that no specific payment is
being made directly or indirectly under this Agreement as an inducement to
reduce or limit medically necessary services provided with respect to a Member.
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3.17 Stop-Loss Insurance. To the extent required by federal and/or state
laws, regulations, or regulatory agency requirements or guidelines, IPA (i)
shall purchase and maintain, during the term of this Agreement, stop-loss
insurance, at IPA's sole cost and expense, for the benefit of IPA and (ii)
hereby covenants that at all times during the term hereof, the levels of such
insurance shall be, in compliance with applicable federal and state law and
regulations and state regulatory agency requirements and guidelines.
3.18 Billing Procedures for IPA Services. IPA shall require IPA Physicians
to agree that they shall not require advance payment or any form of deposit
payment from any Member receiving IPA Services covered by an IPA Member Benefit
Plan; provided, however, that an IPA Physician may apply his or her general
credit policies with respect to IPA Members who are financially responsible for
certain services not covered under an IPA Member Benefit Plan subject to Section
3.20 hereof; or charges for certain services such as Copayments, Coinsurance,
and permitted Deductibles. IPA agrees and shall require each IPA Physician to
agree not to claim payment in any form from the Department of Health and Human
Services or any state agency for items or services furnished to Medicaid
qualified beneficiaries in accordance with this Agreement except as approved by
HCFA or the New York Department of Social Services, or otherwise shift the
burden of such an agreement onto Medicaid, other payors, or individuals.
3.19 Coordination of Benefits. IPA shall require each IPA Physician to
agree to be bound by the coordination of benefits Policies and Procedures of
WellCare and to assist WellCare in identifying, billing, and collecting payments
due from primary payors.
3.20 Non-Medically Necessary Covered Services. IPA hereby acknowledges that
Members might request services of Participating Physicians that were not deemed
to be Medically Necessary by WellCare Quality Improvement/Utilization Management
programs as set forth in the Policies and Procedures and are, therefore, payable
by IPA Members. IPA hereby acknowledges and agrees, and shall require each IPA
Physician to acknowledge and agree, that WellCare shall not compensate IPA or
any IPA Physician, nor shall WellCare have any responsibility for charges
incurred by IPA Members for such services. Prior to charging any Member for
non-Medically Necessary Covered Services, the IPA Physician shall have obtained
a written acknowledgement from the Member that the proposed services are not
Medically Necessary and that the Member agrees to be fully responsible for
payment therefor. IPA acknowledges and shall require each IPA Physician to
acknowledge that if any IPA Physician does not obtain such written
acknowledgment, such IPA Physician may not charge any Member for any such
services.
3.21 IPA Member Hold Harmless. (a) Except as otherwise provided herein, IPA
shall require that each IPA Physician agree that in no event, including but not
limited to nonpayment to IPA Physician by IPA, nonpayment by WellCare to IPA,
insolvency of WellCare and/or IPA or breach of this Agreement, shall such IPA
Physician xxxx, charge, collect a deposit from, seek compensation, remuneration
or reimbursement from, or have any recourse against a Member or family members
or persons (other than recourse against IPA under Section 3.16 or otherwise)
acting on behalf of an IPA Member for services provided in accordance with this
Agreement. This provision does not prohibit an IPA Physician from collecting
permitted Deductibles, Coinsurance, or
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Copayments, as specifically provided in the applicable IPA Member Benefit Plan,
or fees for non- Medically Necessary Services in accordance with Section 3.22
hereof.
(b) IPA shall require that each IPA Physician agree that the above hold
harmless and continuation of benefit provisions supersede any oral or written
contrary agreement now existing or hereafter entered into between the Physician
and IPA Members or family members or persons acting on behalf of a Member
insofar as such contract agreement relates to liability for payment for, or
continuation of Covered Services provided under the terms and conditions of
these clauses.
(c) IPA agrees and each IPA Physician shall be required to agree that
this Section 3.21 shall survive the termination of this Agreement for authorized
Covered Services rendered prior to the termination of this Agreement, regardless
of the cause giving rise to termination and shall be construed to be for the
benefit of the Member. This provision is not intended to apply to services
provided after this Agreement has been terminated.
3.22 Authorization for Marketing. IPA shall obtain proper authorization
from each IPA Physician for WellCare to include the names, office addresses,
telephone numbers and specialties and other similar information of such IPA
Physician in WellCare's provider directory.
3.23 WellCare Contracts. IPA shall use its best efforts to encourage
each PCP to enter into a provider agreement with WellCare, in a form presented
by WellCare, to provide those health care services that primary care physicians
are required to provide in accordance herewith to Members, which agreement shall
become effective automatically, immediately upon termination of this Agreement
in accordance with Article VI hereof. Additionally, IPA shall use its best
efforts to encourage IPA Physicians, other than PCPs, to enter into provider
agreements with WellCare, in a form presented by WellCare, to provide (i)
certain health care services to Members, other than IPA Members, as well as to
individuals covered under benefit plans of WellCare of Connecticut, Inc., Agente
Benefit Consultants, Inc., or other WellCare affiliates during the term and upon
termination hereof and (ii) those health care services that such IPA Physicians
are required to provide in accordance herewith to Members immediately upon
termination of this Agreement in accordance with Article VI hereof. If any IPA
Physician has not entered into such provider agreement with WellCare, IPA shall
notify such IPA Physician, in accordance with federal and state laws and
regulations, sixty (60) days, or such other period as required by law, prior to
the expiration of his or her provider agreement with IPA and shall terminate him
or her after such period.
3.24 Reporting Requirements. IPA shall assist, and shall require each IPA
Physician to assist, WellCare in complying with federal, state, and local laws
and regulations and regulatory agency requirements relating to the provision of
IPA Services, including, but not limited to, complying with reporting
requirements pursuant thereto.
3.25 Financial Management and Reporting. IPA shall implement cash
management policies in keeping with sound financial management practices in
order to ensure timely and accurate payment to all providers who provide
Medically Necessary IPA Services to IPA Members, acknowledging that WellCare is
responsible for the final determination of benefit payments to be made under an
IPA
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Member Benefit Plan. Additionally, upon FPA's exercise of the Option, IPA shall
require FPA to guarantee the PC Liabilities, pursuant to a guarantee in form
reasonably satisfactory to WellCare. Within thirty (30) days of the end of each
calendar quarter during the term hereof, IPA shall deliver to WellCare (i)
balance sheet of IPA and (ii) IPA's statement of operations in connection with
IPA's obligations set forth herein for the calendar quarter then ended prepared
in accordance with generally accepted accounting principles ("GAAP") and fairly
representing the financial condition of IPA for the relevant quarter. Within
sixty (60) days of the end of each of IPA's fiscal years throughout the term
hereof, IPA shall deliver to WellCare (i) annual unaudited balance sheet of IPA
prepared in accordance with GAAP and (ii) IPA's statement of operations in
connection with the obligations of IPA set forth herein. IPA shall also provide
WellCare, upon a reasonable request, financial information and reports related
to IPA's performance of this Agreement, including encounter, utilization, and
cost reports as may be required by the New York State Department of Insurance
and New York State Department of Health (collectively, "Departments") or other
governmental agency and such and other financial reports and data as WellCare
may require to efficiently and effectively manage costs and utilization and to
provide quality medical care to IPA Members.
3.26 Complaints and Litigation. IPA shall, and shall require each IPA
Physician to, forward to WellCare, immediately upon receipt, of Members, the
Departments, and of any other government agency communications, complaints, and
inquiries, whether written or oral, regarding any claim or other business
concerning WellCare that is subject to this Agreement, together with IPA's or
such IPA Physician's, as the case may be, proposed response, if any, and all
information from its/his/her records to assist WellCare or its designee to
respond. Additionally, IPA shall, and shall require each IPA Physician to
forward to WellCare, immediately upon receipt, any legal process in which
WellCare has been named as a party or that arises out of any activities subject
to this Agreement. WellCare is the only party to this Agreement that is
authorized to defend WellCare against any legal process.
3.27 Notice of Change of Condition of IPA Physician. IPA shall require each
IPA Physician to notify IPA in writing within five (5) days of any change in, or
loss of insurance, or action to suspend, revoke or limit any of its licenses or
certification or of other action which could reasonably prevent IPA Physician
from performing his or her obligations under this Agreement. Each party hereto
shall notify the other party in writing immediately upon its receipt of a notice
of or of any information relating to a change of condition of any IPA Physician.
3.28 Effect of Termination of IPA Member - Continuation of Care. IPA
recognizes that WellCare must under certain circumstances, pursuant to certain
federal and state regulatory requirements, continue to arrange for the provision
of services for individuals whose status as IPA Members has terminated.
Accordingly, IPA agrees to continue arranging for the provision of, and shall
require that each IPA Physician shall agree to continue providing, IPA Services
to such individuals, just as WellCare is obligated to do, until the earlier of
(i) ninety (90) days from the date of notice to such IPA Member of the IPA's
disaffiliation with WellCare, (ii) if such IPA Member has entered the second
trimester of pregnancy at the time of such IPA Physician's disaffiliation with
WellCare, for a transitional period that includes the provision of post-partum
care directly related to the delivery, (iii) until WellCare, at its discretion
upon the consent of such IPA Member, makes reasonable and medically appropriate
provision for the assumption of such care by another provider,
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or (iv) until such time as WellCare coverage of such individuals is lawfully and
effectively terminated so that WellCare's obligation to such individuals is
recognized as ended by the applicable law and regulatory authorities. WellCare
shall continue to pay IPA at the agreed upon rate set forth on Attachment 4.1
hereto for each month for which premium payments are due and payable (including
any month for which such payments would have been due and payable but for
WellCare's agreement to waive all or a portion of such payments) from or on
behalf of any such IPA Member, whether or not WellCare receives any such
payment. If WellCare is legally obligated to continue to cover such individual
during any additional period following the months for which premiums are due and
payable (or following the months in which such premiums would have been due and
payable but for WellCare's agreement to waive such premiums in whole or in
part), WellCare shall not be obligated to pay IPA or any IPA Physician for any
services provided to such individual by any IPA Physician pursuant to this
Section 3.28.
3.29 Solicitation of Members. During the term of this Agreement or any
renewal thereof, and for a period of six (6) months after the date of
termination, IPA agrees, and shall require each IPA Physician to agree, that
it/he/she will not, within the Service Area, interfere with WellCare's contract
and/or property rights or advise or counsel any Member or Employer Group to
disenroll from WellCare. Informing a Member of other managed care organizations
with which IPA or an IPA Physician may participate nor solicitations addressed
to the employer or other group community shall not be deemed to be violations of
this Section 3.29.
3.30 Requirement of Insurance. IPA shall require each IPA Physician, other
than those IPA Physicians listed on Attachment 3.30, annexed hereto and made a
part hereof, to procure and maintain, and WellCare and IPA shall each procure
and maintain a policy of general liability, professional liability and other
insurance as may be necessary to protect against any claim for damages arising
by reason of personal injury or death of a Member. IPA shall require that each
such IPA Physician maintains each policy with minimum limits of coverage of one
(1) million dollars ($1,000,000) per occurrence and three (3) million dollars
($3,000,000) in the aggregate. IPA shall require each IPA Physician upon
termination of this Agreement or the termination of an IPA Physician pursuant to
Article VI hereof, to either continue his or her liability insurance policy or
purchase "tail" insurance covering the period that such IPA Physician provided
IPA Services to IPA Members in accordance herewith. Certificates of insurance
evidencing compliance with this provision shall be made available to WellCare
upon request.
3.31 Site Evaluations and Inspections. In accordance with the terms and
conditions of this Agreement and subject to applicable federal and state
confidentiality laws, IPA shall require each IPA Physician to permit (i)
WellCare or a designated representative, upon reasonable notification during
normal business hours, unless otherwise required by federal, state or local law,
regulation, or regulatory agency, and (ii) federal, state, and local regulatory
agencies, to the extent authorized by law, to conduct periodic site evaluations
of such IPA Physician's facilities, equipment, medical records of IPA Members to
monitor utilization review activities and to monitor the quality of professional
and ancillary medical care provided to IPA Members by such IPA Physician. IPA
shall further require each IPA Physician (i) to operate all office sites in
compliance with the criteria established by the WellCare Quality Assurance
Committee and quality assurance requirements of the Departments and
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the NCQA and (ii) to comply with any such agencies' reasonable recommendations,
if any, or to provide WellCare with a written response to any questions or
comments posed by any of the agencies or WellCare.
3.32 Access To Records. (a) IPA shall require each IPA Physician to
provide, in a timely manner, IPA Members' medical records, and such other
relevant records and other information, to WellCare and to IPA and/or their
designee(s), as permitted by law and in any reasonable manner, for the
performance of the Policies and Procedures for claims payment or any other
purposes, as reasonably required by WellCare and/or IPA, as the case may be.
Each IPA Physician shall also be required by IPA to obtain from IPA Members all
releases or consents which may be required to permit release of records to IPA.
(b) IPA shall require each IPA Physician to make available, subject to
applicable federal and state law, IPA Members' medical records to the
Departments for inspection and copying, at no cost to the Departments.
(c) IPA shall require each IPA Physician to retain and maintain
Member's medical records for the longer of (i) the year in which the Member was
discharged or treatment concluded, plus six (6) years, (ii) the year in which
the Member reaches majority, plus six (6) years, or (iii) such greater period
required by federal or state law. Such records shall be maintained in accordance
with prudent standards of insurance record keeping and with all applicable state
and federal laws and regulations.
(d) Additionally, IPA shall require IPA Physicians to provide WellCare
with encounter data (routine claims submissions) relating to all IPA Services
provided pursuant to this Agreement in a mutually agreed upon format monthly.
3.33 Access to Records for Medicare/Medicaid Programs. If the value or cost
of services provided under this Agreement will be $10,000 or more within a
twelve (12) month period, to the extent that the cost of such service is
reimbursable by the Medicare and/or Medicaid Programs, IPA agrees, and shall
require IPA Physicians to agree, to comply with the Access to Books, Documents
and Records of Subcontractor's provision of Section 952 of the Omnibus
Reconciliation Action of 1980 (P.L. 96-499), and 42 C.F.R. Part 420, Sub-part D,
Section 420.300 et seq. In accordance with these provisions, IPA will allow and
shall require IPA Physicians to allow the Comptroller General of the United
States, the Secretary of Health and Human Services, and their duly authorized
representatives access and to IPA's or the applicable IPA Physician's, as the
case may be, books, documents, and records necessary to certify the nature and
extent of such costs of Medicare reimbursable services provided hereunder. Such
access will be allowed, upon request, until the expiration of four (4) years
after Medicare and/or Medicaid reimbursable services are furnished hereunder. If
IPA carries out any of the duties of this Agreement through a subcontract with a
related party with a value or cost of $10,000 or more over a twelve (12) month
period, such subcontract shall contain a clause which requires the subcontractor
to comply with the above statutes and regulations.
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3.34 Confidentiality of Records. Any data or information obtained from IPA
or any IPA Physician pertaining to the diagnosis, treatment or health of a
Member shall be held confidential to the extent required by law. All parties
agree to maintain the confidentiality of information contained in the Member's
medical records. Notwithstanding the foregoing, subject to all laws regarding
confidentiality of medical records, the parties may disseminate such records to
authorized providers and consulting physicians, to governmental agencies if
required by law, to committees of the Participating Hospitals and WellCare
concerned with the quality of care and utilization, and to WellCare for purposes
of administration. This Article shall not be construed to prevent either party
from releasing information in a form that does not identify a Member to any
organization engaged in the collection and analysis of data.
3.35 Assumption of PC Liabilities. In consideration of WellCare's entering
into this Agreement, the payment of the Compensation to be paid to IPA
hereunder, and for other good and valuable consideration, the receipt and
sufficiency of all of which are hereby acknowledged, IPA hereby assumes from PC
all of the PC Liabilities.
3.36 Survival. Sections 3.15, 3.16, 3.21, 3.24, 3.26, 3.28, 3.33, 3.34, and
3.35 of this Article III shall survive the expiration or earlier termination of
this Agreement.
ARTICLE IV
BILLING PROCEDURES AND PAYMENT FOR SERVICES
4.1 Payment. (a) Except as otherwise provided in this Agreement, WellCare
shall pay, and IPA shall accept, the compensation, as set forth in Attachment
4.1, annexed hereto and made a part hereof (the "Compensation"), as payment in
full for IPA Services and any and all services performed by IPA pursuant to this
Agreement, including those set forth in Section 4.1(e) hereto. In return for the
Compensation, IPA agrees to arrange and pay for all of the IPA Services that
WellCare is obligated to arrange and pay for pursuant to the IPA Member Benefit
Plans. Such payments shall be made within the earliest of (i) 45 days following
submission of a "clean" claim for payment, unless this requirement is waived in
writing by WellCare, (ii) the last day within the period established by law, if
any, in which a payment by the IPA to an IPA Physician would not be subject to
interest thereon, or (iii) in the case of monthly capitation payments to
providers, within the first five (5) days of the applicable month. IPA shall be
obligated to pay all interest and any other penalties associated with any
failure to comply with all laws and regulations applicable to IPA relating to
prompt payment of claims, if any. Should IPA fail to comply with such laws and
regulations, WellCare may withhold amounts included within the Compensation
necessary to reimburse WellCare (i) for the payment of claims paid directly by
WellCare for IPA Services provided to IPA Members and (ii) for any interest and
penalties associated with such claims.
(b) WellCare and IPA each confirm that the manner of
calculating reductions in hospital utilization and the payments to the PC
therefor under the Prior Agreements, as set forth in Attachment 4.1(b), are
complete and accurate and that the amounts paid to the PC through March
15
31, 1997, relating to reductions in hospital utilization, as set forth in
Attachment 4.1(b), constitute full payment by WellCare of any and all
obligations relating to reductions in hospital utilization under the Prior
Agreements. WellCare waives any claim that it may have overpaid IPA relating to
those payments.
(c) The parties acknowledge that for the period since April 1, 1997, PC
has not been entitled to any further compensation for reductions in hospital
utilization, but in lieu thereof has been entitled to the monthly payments set
forth on Attachment 4.1(3).
(d) IPA and WellCare acknowledge that IPA is not entitled to any
compensation for reduction in hospital utilization. In lieu thereof, the
Compensation, however, shall include the monthly amount (the "Hospital Piece")
set forth in Section 3 of Attachment 4.1 for the period from the Effective Date
through February 28, 1999. Thereafter, the Compensation shall no longer include
the Hospital Piece but the parties shall negotiate in good faith to replace the
Hospital Piece with Compensation based upon quality and utilization, consistent
with the parameters set forth in Section 4 of Attachment 4.1.
(e) WellCare shall perform all claims processing on behalf of IPA, at
WellCare's sole cost and expense, in connection with IPA Services rendered in
accordance with this Agreement.
(f) IPA shall perform all claims adjudication of IPA Services rendered
in accordance with this Agreement.
4.2 Adjustments to Compensation Exhibit. (a) For so long as Members make up
fifty percent (50%) or more in the aggregate of the Enrolled Population, within
thirty (30) days of the effective date of any new contract or renewal or change
in payment terms of an existing contract between IPA and a third-party payor
other than WellCare, IPA shall certify in writing to WellCare that the payment
terms of such contract are not more favorable to such third-party payor than the
Compensation is to WellCare or shall certify that such payment terms are more
favorable to such third-party payor than the Compensation is to WellCare. Such
determination shall take into account the member composition of each Plan and
the health care services to be provided by IPA under each contract. By executing
and delivering this Agreement, IPA represents and warrants to WellCare that it
is not, as of the effective date of this Agreement, party to any contract with
any other third-party payor on payment terms more favorable to such third-party
payor than the Compensation is to WellCare.
(b) If WellCare shall dispute the representations made in any
certificate delivered under Section 4.2(a), in which IPA claims that the payment
terms under a contract with a third party are not more favorable to the third
party than the Compensation is to WellCare, WellCare may engage an actuary
chosen upon the mutual consent of WellCare and IPA, at WellCare's cost, to make
such determination, whose determination shall be binding upon the parties
hereto.
(c) So long as Members make up fifty percent (50%) or more in the
aggregate of the Enrolled Population, if IPA contracts with any third-party
payor on terms more favorable to such
16
third-party payor than the Compensation is to WellCare, for such period as any
such contract is in effect, the Compensation shall not give effect to the CPI
Adjustment (as defined in Attachment 4.1 hereto) in accordance with Section 2(a)
or (b) of Attachment 4.1 hereto.
ARTICLE V
INDEMNIFICATION; COOPERATIVE DEFENSE
5.1 Indemnification. (a) Each of the parties hereto shall indemnify the
other party and hold each other harmless against any and all claims, actions,
assessments, charges, and expenses, including court costs and reasonable
attorneys' fees, and against all liabilities, losses, damages of any nature, and
settlements, judgments, or awards, whether compensatory, extracontractual, or
punitive, (collectively, "Damages") that a party shall sustain or be put to by
reason of any act or omission of the other party or its agents, employees,
officers, and directors or any breach by the other party of the terms of this
Agreement.
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(b) Each party hereto entitled to indemnification under Section 5.1(a)
(each, an "Indemnified Party") hereby agrees to give the applicable party or
parties obligated to indemnify it under Section 5.1(a) (each, an "Indemnifying
Party") written notice of any event or assertion of which the Indemnified Party
obtains knowledge concerning any Damage and as to which the Indemnified Party
may request indemnification hereunder. The Indemnified Party shall cooperate
with the Indemnifying Party in determining the validity of any claim or
assertion requiring indemnity hereunder and in defending against third parties
with respect to the same. The defense of such litigation shall be within the
control of the Indemnifying Party, or, as the case may be, any Persons providing
indemnity and defense to such Indemnifying Party; provided, however, that an
Indemnifying Party's choice of counsel shall be reasonably satisfactory to the
Indemnified Party. The Indemnified Party may participate in the defense of any
claim or assertion requiring indemnity hereunder, and in such event, shall
cooperate fully in connection therewith. If an Indemnifying Party fails to
perform its obligations under this Article V, then the Indemnified Party may
directly assume the defense of the claim or assertion at issue, and such
Indemnifying Party shall promptly reimburse the Indemnified Party for all costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses), incurred in connection therewith. The Indemnified Party's failure to
give timely notice or to provide copies of documents or to furnish relevant data
in connection with any such third-party claim shall not constitute a defense (in
part or in whole) to any claim for indemnification by it. WellCare and IPA each
hereby agrees not to settle or compromise any such third-party suit, claim, or
proceeding without prior written consent of the applicable Indemnified Party,
which consent shall not be unreasonably withheld as to suits, claims and
proceedings at law.
(c) This Article V shall continue to be of full force and effect,
notwithstanding the termination of this Agreement, until all claims and
liabilities relating to a Member have been asserted, satisfied and released.
5.2 Cooperative Defense. The parties recognize that, during the term of
this Agreement and for some period thereafter, certain risk management issues,
claims, or actions may arise that involve or could potentially involve the
parties and their respective employees and agents. The parties further recognize
the importance of cooperating with each other in good faith when such issues,
claims, or actions arise to the extent that such cooperation does not violate
any applicable laws, cause breach of any duties created by any policies of
insurance, or otherwise compromise the confidentiality of communications of
information regarding the issues, claims, or actions. The parties shall
cooperate in good faith, using their best efforts, to address such risk
management and claims handling issues in a manner that strongly encourages full
cooperation between the parties. This Section 5.2 shall survive the termination
of this Agreement.
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ARTICLE VI
TERM AND TERMINATION
6.1 Term and Renewal. The term of this Agreement shall commence on the
Effective Date and shall continue for a period of ten (10) years therefrom,
unless terminated earlier pursuant to Section 6.2 hereof.
6.2 Termination. This Agreement may be terminated as follows:
(a) By mutual written agreement between WellCare and IPA.
(b) Upon written notice by one party (the "Terminating Party") to the
other party (the "Terminated Party") of the Terminating Party's
intention to terminate this Agreement by reason of the Terminated
Party's material breach of this Agreement. An event of material
breach hereunder shall occur if either party to this Agreement
shall fail to keep, observe, pay or perform any material
covenant, obligation, agreement, term, or provision of this
Agreement and such condition is not remedied within sixty (60)
days after receipt by one party from the other party of such
written notice.
(c) Subject to the terms of any written waiver that a party may have
received from the other party, upon written notice by the
Terminating Party to the Terminated Party of the Terminating
Party's intention to terminate this Agreement by reason of the
Terminated Party (i) becoming insolvent, as defined in Section
101(32) of Title 11 of the United States Code as amended, (ii)
generally cannot, or is unable to, or shall admit in writing to
its inability to pay debts as such debts become due, (iii) making
an assignment for the benefit of creditors, (iv) petitioning or
applying to any tribunal for, or other wise seeking, consent to
or acquiescence the appointment of a custodian, receiver, or
trustee for it or a substantial part of its assets, (v)
commencing, consenting to, or acquiescing in any proceeding under
any bankruptcy, reorganization, arrangement, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in
effect, or (vi) having had any such petition or application filed
or any such proceeding shall have been commenced against it in
which an adjudication or appointment is made or order for relief
is entered and that remains undismissed or unstayed for a period
of sixty (60) days or more.
(d) Upon written notice by WellCare to IPA of WellCare's intention to
terminate this Agreement by reason of (i) IPA's material breach
of any other agreement currently in force with WellCare or (ii)
Primergy's material breach of any agreement with WellCare
currenty in force. An event of material breach thereunder shall
occur if IPA and/or Primergy, as the case may be, shall fail to
keep, observe, pay or perform any material covenant, obligation,
19
agreement, term, or provision under any such agreement or
obligation and such condition is not remedied within the cure
period set forth therein and if no cure period is set forth
therein, within sixty (60) days after receipt by the appropriate
party from WellCare of such written notice.
(e) Upon written notice by WellCare to IPA of WellCare's intention to
terminate this Agreement effective sixty (60) days thereafter by
reason of the Change of Ownership. Change of Ownership shall
include the sale, exchange, assignment, transfer, issuance or
other conveyance or disposition, other than to FPA, of (i) more
than fifty percent (50%) of all of either IPA's or Primergy's
issued and outstanding shares of common stock at the time thereof
or (ii) of substantially all of IPA's or Primergy's assets;
provided such event occurs prior to the date on which the Option
is exercised by FPA or following an Option Termination Event.
6.3 Effect of Option Termination Event. Upon the occurrence of an Option
Termination Event, Wellcare and IPA each hereby agree to attempt in good faith
to negotiate an amendment to this Agreement to properly incorporate the effects
that such event has on the terms and conditions set forth herein. If the terms
and conditions to be set forth in such amendment have not been agreed to within
one hundred twenty (120) days of the Option Termination Event, this Agreement
may be terminated by either party at any time after such period; provided the
parties have not yet agreed to such amendment.
6.4 Effect of Termination of this Agreement. If either party terminates
this Agreement, IPA shall advise the IPA Physicians of the notice of termination
and the provider agreement entered into with WellCare pursuant to Section 3.23
hereof shall be effective as of the date of termination of this Agreement and
shall govern the rights and obligations of each IPA Physician to provide IPA
Services to IPA Members.
6.5 Termination and Suspension of IPA Physicians by IPA. Each party shall
notify the other party immediately upon its receipt of notice of any
circumstance that would constitute termination for "Good Reason" or "Immediate
Cause" as defined in Section 6.6 hereof or any termination or suspension from
the IPA Physician network.
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6.6 Termination and Suspension of IPA Physicians by WellCare.
(a) WellCare may terminate any IPA Physician and thereby prohibit such
IPA Physician from providing any IPA Services to any IPA Members in connection
herewith for "Good Reason" upon sixty (60) days' prior written notice to such
IPA Physician; provided, however, if such IPA Physician shall have requested a
hearing in accordance with this Section 6.6(a), termination by WellCare for
"Good Reason" shall be effective thirty (30) days after receipt by WellCare of
the hearing panel's decision of termination; provided, further, that if such
hearing panel renders a decision to reinstate such IPA Physician, such notice of
termination shall be void and shall have no effect as to this Agreement.
WellCare agrees to notify IPA directly of any dispute that arises between
WellCare and an IPA Physician. "Good Reason" shall include but not be limited
to:
(i) suspension of such IPA Physician's license, certificate, Drug
Enforcement Agency authorization to issue prescriptions or other legal
credential authorizing IPA Physician to provide medical services;
(ii) if such IPA Physician is a Medicaid/Medicare provider, he or she is
suspended from either or both of these programs;
(iii) the indictment or arrest for a felony of such IPA Physician or for
any criminal charge related to the rendering of medical services;
(iv) the cancellation or termination of the professional liability
insurance required by this Agreement with respect to such IPA Physician without
replacement coverage having been obtained;
(v) the failure of such IPA Physician to maintain admitting privileges with
one or more Participating Hospitals, except as otherwise agreed to by WellCare;
(vi) the failure of such IPA Physician to comply with any Policy or
Procedure or other requirements or is not supportive of the purposes an intent
of this Agreement; provided such IPA Physician has not cured any such failure
within thirty (30) days from its receipt of notification from WellCare;
(vii) if such IPA Physician becomes insolvent, bankrupt, files a voluntary
petition in bankruptcy, makes an assignment for the benefit of creditors, or
consents to the appointment of a trustee or receiver;
(viii) if IPA has a right to terminate an IPA Physician under the provider
agreement between IPA and such IPA Physician.
(ix) if such IPA Physician has engaged in conduct that poses an immediate
and material threat to the safety and/or well-being of any patient to whom such
IPA Physician has rendered or intends to render care.
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In addition, "Good Reason" shall expressly not include the occurrence of any of
the following events by such IPA Physician: (i) such IPA Physician's having
advocated on behalf of a Member; (ii) such IPA Physician's having filed a
complaint against WellCare; (iii) IPA Physician's having appealed a decision of
WellCare; (iv) such IPA Physician's having provided information or filed a
report under New York Public Health Law Section 4406-c regarding prohibitions by
plans; or (v) such IPA Physician's having requested a hearing or review pursuant
to this Section 6.6(a).
(b) Any notice of termination under Section 6.6(a) shall include (i)
the reasons for the proposed termination; (ii) notice that such IPA Physician
has the right to request a hearing or review, at such IPA Physician's
discretion, before a panel appointed by WellCare, which panel shall be composed
of persons meeting the standards set forth in Section 4406-d of the New York
Public Health Law; (iii) a time limit not less than thirty (30) days within
which such IPA Physician may request such a hearing; (iv) a time limit for a
hearing date that shall be held within thirty (30) days after the date of
receipt of a request for a hearing. The hearing process shall be consistent with
the provisions of Section 4406-d of the New York Public Health Law.
(c) In the event WellCare shall provide notice of termination for Good
Reason under Paragraphs (i), (ii), (iii), (iv), (v), (vii), or (ix) of Section
6.6(a) or for a similar occurrence or act, WellCare shall have the right to
suspend such IPA Physician from providing any IPA Services to IPA Members in
connection herewith during the period commencing with any notice given by
WellCare and the date of termination or reinstatement.
(d) WellCare may terminate any IPA Physician and thereby prohibit such
IPA Physician from providing any IPA Services to any IPA Members in connection
herewith immediately and without prior notice for "Immediate Cause." "Immediate
Cause" shall mean (i) a determination by WellCare in its sole discretion that
such IPA Physician shall have engaged in fraud, theft, embezzlement or other
financial misconduct; or (ii) a final disciplinary action by a state licensing
board or other governmental agency, the effect of which is to impair such IPA
Physician's ability to practice medicine.
6.7 Effect of Termination of IPA Physician or Agreement - Continuation of
Care. IPA shall require each IPA Physician to agree that, upon the effective
date of termination of this Agreement pursuant to Section 6.2 hereof or
termination of a Physician pursuant to Section 6.6(a) hereof, except as
otherwise required by federal or state law regulation, or regulatory agency, he
or she shall continue to provide necessary medical services to IPA Members who
retain eligibility and enrollment under an IPA Member Benefit Plan (i) pursuant
to the provider contracts entered into by such IPA Physician and WellCare in
accordance with Section 3.23 hereof, (ii) if such IPA Physician has not entered
into such contract, the earlier of (x) ninety (90) days from the date of notice
to such IPA Member of the IPA's disaffiliation with WellCare, (y) if such IPA
Member has entered the second trimester of pregnancy at the time of such IPA
Physician's disaffiliation with WellCare, for a transitional period that
includes the provision of post-partum care directly related to the delivery, and
(z) until WellCare, at its discretion upon the consent of such IPA Member, makes
reasonable and medically appropriate provision for the assumption of such care
by another provider, or (iii) until such
22
time as WellCare coverage of such individuals is lawfully and effectively
terminated so that WellCare's obligation to such individuals is recognized as
ended by the applicable law and regulatory authorities. Additionally, IPA shall
require each IPA Physician to agree to abide by the Policies and Procedures
during any such transitional period other than pursuant to a WellCare provider
agreement. WellCare shall pay IPA Physicians for IPA Services rendered pursuant
to this Section 6.7. This Section 6.7 shall survive the expiration or earlier
termination of this Agreement.
ARTICLE VII
DISPUTE RESOLUTION
7.1 Negotiation. WellCare and IPA agree to attempt in good faith to resolve
any dispute arising out of or relating to this Agreement promptly by negotiation
between the parties. If any such matter is not resolved within forty-five (45)
days of a party's request for negotiation, either party may initiate an
arbitration proceeding in accordance with Section 7.2 below.
7.2 Arbitration. If WellCare and IPA have not been able to resolve a
dispute by negotiation within forty-five (45) days pursuant to Section 7.1 as
set forth above, either party may submit such dispute to an arbitrator in New
York State subject to the commercial rules and regulations of the American
Arbitration Association. Both parties expressly covenant and agree that they
shall be bound by the decision of the arbitrator as a final determination of the
matter in dispute, subject to any right of appeal under New York law. WellCare
shall provide the Commissioner with notice of all issues submitted to
arbitration pursuant to this Section 7.2 and copies of all decisions related
thereto. Each party shall be solely responsible for its own expenses in
connection with the dispute resolution process; provided that the costs of the
arbitrator shall be divided equally between the parties hereto. Notwithstanding
anything in this Section 7.2, the parties hereto each hereby expressly
acknowledges that the Commissioner shall not be bound by any such arbitration
decision.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Amendment. This Agreement or any part, article, subsection, Attachment,
or Exhibit of it, may be amended as follows:
(a) If necessary to comply with a requirement of any state or
federal agency having jurisdiction to regulate WellCare, by
WellCare at any time during the term of the Agreement (i)
upon ten (10) days prior written notice to IPA and (ii) if
material, upon thirty (30) days prior written notice to the
Commissioner.
(b) Any and all other amendments to this Agreement or any part,
article, subsection or Attachment of it will only be
effective in the event that (i) they
23
have been agreed to by both parties, (ii) both the amendment
and such agreement have been reduced to writing, (iii) if
such Amendments are material, they have been approved by the
Commissioner after they have been submitted thereto at least
thirty (30) days prior to the anticipated effective date
thereof.
8.2 Assignment. Subject to prior notice to and approval by the
Commissioner, (i) the terms, covenants, conditions, provisions, and agreements
herein contained shall be binding upon and inure to the benefits of the parties
hereto, and their successors and assigns and (ii) WellCare may assign its rights
and obligations under this Agreement, in whole or in part, to a parent,
subsidiary, or an affiliate of WellCare, any entity into which WellCare is
merged or consolidated, or any entity that purchases substantially all of the
stock or assets of WellCare without IPA's prior approval. In the event that all
or substantially all of the stock or assets of a party is acquired by a third
party, that third party shall be bound to terms, covenants, conditions,
provisions, and agreements contained herein. Except as expressly set forth in
this Section 8.2, neither party may assign, delegate, or otherwise transfer this
Agreement without the prior written consent of the other party and of the
Commissioner.
8.3 Notices. All notices hereunder by either party to the other party shall
be in writing. All notices, demands, and requests shall be deemed given when
mailed, by registered or certified mail, postage paid, return receipt requested.
To WellCare: WellCare of New York, Inc.
X.X. Xxx 0000
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
To IPA: Orange-Xxxxxxxx Health Care Alliance IPA, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
or to such other address or to such other person as may be designated by written
notice given during the term of this Agreement by one party to the other.
8.4 Independent Contractors. The relationship among WellCare and IPA and
the IPA Physicians is a contractual relationship among independent contractors.
Neither IPA nor any IPA Physician is an agent or employee of WellCare nor is
WellCare or any of its employees an agent or employee of IPA or any IPA
Physician.
8.5 Material Agreements. WellCare, IPA, and Primergy, each hereby represent
and warrant that to such parties knowledge as of the date hereof, the agreements
listed on Attachment 6.2(d) are the only written or oral agreements between
either WellCare and IPA or WellCare and
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Primergy, as the case may be.
8.6 Impossibility of Performance. Neither party shall be deemed to be in
violation of this Agreement if it is prevented from performing any of its
obligations hereunder for any reasons beyond its control, including, but not
limited to, acts of God or of the public enemy, flood, or storm, strikes or
statutory regulations, rule or action of any federal, state or local government,
or any agency thereof.
8.7 Waiver of Breach. Any waiver by either party of a breach of any
provision of this Agreement shall not be deemed a waiver of any other breach of
the same or different provisions of this Agreement.
8.8 Governing Law. This Agreement shall be governed by the laws of the
State of New York.
8.9 Compliance with Law. Notwithstanding any other provision of this
Agreement, the parties hereto shall each comply with the provisions of the
Managed Care Reform Act of 1996 (Chapter 705 of the Laws of 1996) and all other
applicable federal, state, and local laws, policies, and procedures governing
the provision of IPA Services to IPA Members.
8.10 Severability. If any provision in this Agreement is held to be
invalid, void, or unenforceable, the remaining provisions shall nevertheless
continue in full force and effect without being impaired or invalidated in any
way.
8.11 Headings. The headings of Articles and Sections contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
8.12 Confidentiality. Each party agrees that it will not disclose to any
other entity confidential information obtained regarding the operations of the
other contracting party obtained as a result of entry into this Agreement. In
addition, unless such information is a matter of public record:
IPA and IPA Physicians agree not to use participation in WellCare to
exchange or share any information relating to costs of doing
business, including operating costs, salaries, benefits and
material supply costs with other providers.
IPA and IPA Physicians agree not to discuss, disclose or otherwise
communicate any information relating to the prices paid by
WellCare to IPA or IPA Physicians for the provision of services
to WellCare IPA Members.
IPA or IPA Physicians agree not to use participation in WellCare to
discuss, disclose or otherwise communicate any information
relating to participation in any other health plans with WellCare
or any other health care provider.
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8.13 Entire Agreement. This Agreement contains the entire agreement between
the parties hereto, supersedes the Prior Agreements and no representations or
agreements, oral or otherwise, between the parties not embodied herein or
attached hereto shall be of any force and effect. Any additions or amendments to
this Agreement subsequent hereto shall be of no force and effect unless in
writing, unless effected pursuant to Section 8.1 hereof and signed by the
parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement intending to
be bound from the date set forth in this Agreement.
ORANGE-XXXXXXXX HEALTH CARE WELLCARE OF NEW YORK, INC.
ALLIANCE IPA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, M.D. By: /s/ Xxxxxx X. Xxxx
---------------------------- --------------------
Name: Xxxxxxx X. Xxxxxxxxx, M.D. Name: Xxxxxx X. Xxxx
Title: President Title: President
ACKNOWLEDGED AND AGREED
AS TO SECTION 8.5 HEREOF:
PRIMERGY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, M.D.
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, M.D.
Title: Chief Executive Officer
27
