DIABETIC SUPPLIES AGREEMENT
THIS AGREEMENT is entered into by and between Certified Medical Supplies, Inc.,
a Delaware corporation, Certified Diabetic Supplies, Inc. (both referred to
herein as "CDS"), a Delaware corporation, and, Benefit Plan Administrator, Inc.
(BPA), a New York corporation.
Whereas, BPA desires to engage CDS to provide diabetic supplies to Participants
in Plans, and CDS agrees to accept the engagement and provide diabetic supplies
to Participants.
Both parties agree as follows:
I. DEFINITIONS
1.1. Co-insurance or Co-payment means an amount a Participant is required to
pay to a Participating Provider for Covered Diabetic Supplies under a
Participant's Plan. Co-insurance is calculated as a percentage of the
contracted Reimbursement Rate of such services.
1.2. Covered Diabetic Supplies means those Medically Necessary diabetic
supplies as described by a Plan which CDS will provide to Participants in
accordance with the terms and conditions set forth in this Agreement.
Except as may otherwise be provided in this Agreement, diabetic supplies
which are not Medically Necessary are not Covered Diabetic Supplies.
1.3. Deductible means the amount a Participant must pay before a Client will
make any payments under the terms of a Plan.
1.4. Insurer means an insurance company providing health insurance or an
employer providing health benefits through an employee benefit plan which
has contracted with BPA to use the managed care network provided by BPA.
1.5. Medically Necessary means necessary as certified or prescribed by a
physician to treat and/or monitor diabetes.
1.6. Participant means an enrolled employee, beneficiary or insured or the
enrolled eligible spouse or dependent of the employees who is entitled to
receive benefits provided under a Plan.
1.7. Participating Provider means any physician, hospital, vendor or other
health care provider who has entered or will enter into a contractual
agreement, either directly or indirectly, to participate in the BPA
network.
1.8. Plan means the written health benefit plan, service or product which is
either insured, administered, underwritten, provided by, associated with
or offered by a Client. The Medical Plan includes the terms and
provisions of the health benefit plan and any schedule of benefits or
riders or other official attachments to it.
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1.9. Reimbursement Rate means the rate for medical services negotiated between
CDS and BPA and incorporated into this Agreement as Exhibit A.
1.10. Utilization Review means the written procedures and criteria used to
determine whether the medical care, goods and services ordered for or
provided to Participants are Medically Necessary.
II. CDS OBLIGATIONS
CDS shall:
2.1. Comply with the Utilization Review requirements communicated by BPA and
accept as payment in full from BPA for all Covered Diabetic Supplies
rendered pursuant to this Agreement the Reimbursement Rate.
2.2. Provide services for Participants even though there may be liability to
another party; shall xxxx the appropriate responsible party; shall
provide information to BPA to enable BPA to pursue other responsible
parties; and shall provide to BPA, upon request, a summary of all
co-payments, all Coordination of Benefit revenues and any other revenues
CDS receives from Participants or on behalf of Participants from any
person or party other than BPA; and
2.3. Be properly certified as a durable medical equipment supplier for the
Medicare program. Furthermore, CDS shall at all times abide by and
conform to all applicable laws, statutes, rules, regulations, orders, of
whatever nature.
III. PRICING
3.1. [Section deleted in entirety.]
3.2. Reimbursement Rate. The Reimbursement Rate as set forth in Exhibit A is
based upon the Health Care Financing Administration's ("HCFA")
periodically published list of acceptable prices. If, during the term
of this Agreement, HCFA's published rate for diabetic supplies changes,
then Exhibit A will be amended to reflect those new rates.
IV. ADMINISTRATION
4.1. Participant Status.
a. CDS is responsible for verifying a person's status as a
Participant under a Plan in accordance with BPA procedures
communicated to CDS by BPA. BPA shall maintain updated
Participant status files and shall verify Participant status
by telephone during regular business hours.
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b. If an individual is no longer a Participant, it is BPA's
responsibility to inform CDS of such individual's change in
status not less than 30 days prior to the effective date of
such a change.
4.2. Xxxxxxxx.
a. The Plan is solely responsible for all payments due to CDS for
Covered Diabetic Supplies. Any Co-payments, Co-insurance
and/or Deductibles, as specified in the Plan, shall be paid by
Participants directly to CDS.
b. CDS will not xxxx, charge, collect a deposit from, seek
compensation from, seek remuneration from, surcharge or have
recourse against Participants, except for expenses which are
not for Covered Diabetic Supplies and except for Co-insurance,
Co-payments and/or Deductibles as specified in the Plan or as
otherwise permitted for Coordination of Benefits. This Section
shall survive termination of this Agreement, regardless of the
cause of termination, and shall be construed to be for the
benefit of the Participants. This provision supersedes any
oral or written agreement, hereinafter entered into between
CDS and Participant or persons acting on Participant's behalf,
insofar as such agreement related to payment for services
provided under the terms and conditions of this Agreement.
c. CDS shall xxxx BPA for Covered Diabetic Supplies supplied to
Participants on a UB-92/HCFA 1500 billing form, or CDS shall
xxxx BPA electronically using a system agreed upon by the
parties. CDS shall provide such information as BPA may
reasonably require and communicate to CDS from time to time
for the processing of claims. BPA shall make payment for
Covered Diabetic Supplies to CDS within thirty (30) days of
receipt of a complete and accurate claim.
d. CDS agrees to submit claims to BPA for Covered Diabetic
Supplies provided to Participants no later than ninety (90)
days following the delivery of such diabetic supplies. In the
event CDS is unable to submit claims within the time specified
herein because of circumstances beyond CDS's control or due to
BPA's status as a secondary payor, the time for submission of
such claims shall be extended as is reasonably necessary.
e. When Client, under the applicable Plan, is the primary payor
under the appropriate Coordination of Benefit rules, BPA shall
pay the amounts due under this Agreement reduced by
Co-payments, Co-insurance and/or Deductibles. When Client is
not the primary payor under the appropriate Coordination of
Benefit rules, CDS shall submit its xxxx to the primary payor,
and BPA shall pay only those amounts which, when added to
amounts received by CDS from other sources pursuant to the
appropriate Coordination of Benefit rules, equal one hundred
(100%) of the amount CDS is due in accordance with the
Reimbursement Rates established by this Agreement.
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f. CDS shall submit bills to BPA at the address set forth in
Section 8.8 hereof.
4.3. Record Keeping
a. CDS shall maintain complete and accurate books and records of
all transactions subject to this Agreement. These books and
records shall be maintained in accordance with prudent
standards of record keeping and with all applicable
professional rules and state and federal laws and regulations.
b. BPA and its employees or authorized representatives shall have
continuing access to audit and copy all such files and records
of its Participants or pertaining to this Agreement. The right
to have access to CDS's records shall be subject to all
applicable laws and regulations concerning confidentiality of
records. Such audits and copying shall be conducted during
regular business hours and at BPA's expense, after reasonable
notice to CDS.
c. CDS and BPA agree that the data and information collected with
respect to the CDS, a Plan and/or a Participant shall be kept
in confidence and will not be disclosed in an identifiable
form except to parties authorized through function of
law or through specific release by the Participant and CDS.
4.4. Use of Name. BPA may use CDS's name and list the supplies offered by
CDS in publications to inform current and potential Participants of
CDS's participation. CDS may publicize its association with BPA.
Neither CDS nor BPA shall use any advertisement and/or other printed
materials which includes the other's name or which described or
referred to the other's products, unless such advertisement has been
approved in writing by the other party in advance of its use or
distribution.
V. UTILIZATION REVIEW
BPA and CDS acknowledge that Utilization Review and patient management services
are integral parts of some of the Plans and agree as follows:
5.1. BPA or its designee shall perform Utilization Review for services
provided by Participating Providers.
5.2. Utilization Review certification and/or identification of benefits does
not guarantee or confirm benefits. Benefits are subject to Participant
eligibility at the time charges are actually incurred, and other terms,
provisions, and exclusions of the Plan. BPA or its designee is
responsible for the final determination of benefit payments to be made
under a Plan.
5.3. BPA has no control over the provider-patient relationship and any final
decisions regarding treatment or confinement remains with the provider
and the patient.
5.4. BPA reserves the right to change, upon sixty (60) days advance written
notice, the entity performing Utilization Review.
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VI. COMPLAINTS, LITIGATION AND CONTRACTUAL DISPUTES
6.1. Arbitration. All disputes and differences between the parties on which
an agreement cannot be reached will be decided by the process of
binding arbitration under the rules of the American Arbitration
Association, regardless of the insolvency of either party, unless the
conservator, receiver, liquidator, or statutory successor is
specifically exempted from an arbitration proceeding by applicable
state or federal law.
6.2. Notice of Lawsuits. Immediately upon receipt, CDS shall forward to BPA
any legal process to which BPA or CDS have been named as a party or
which arises out of any activities subject to this Agreement. BPA is
the only party to this Agreement which is authorized to defend BPA
against any legal process.
6.3. Indemnification. BPA shall protect, indemnify, and hold CDS and the
directors, officers, and employees of CDS harmless from and against any
and all liability and expense of any kind arising from injuries or
damages to persons or property in connection with this Agreement unless
such liability resulted from the negligence or willful misconduct of
CDS or its respective employees or agents, in the services performed by
such party pursuant to this Agreement, except to the extent such
damages are covered by and paid by insurance. CDS shall protect,
indemnify, and hold BPA harmless from and against any and all liability
and expense of any kind, arising from injuries or damages to persons or
property in connection with activities undertaken pursuant to this
Agreement as a result of the negligence or willful misconduct of CDS,
its employees or agents, except to the extent such damages are covered
by and paid by insurance.
VII. TERM AND TERMINATION
7.1. Term. The term of this Agreement shall end five years from the
Effective Date and shall be automatically renewed for a two-year
period.
7.2. Events of Default. This Agreement shall terminate immediately upon the
occurrence of any of the following events:
a. The revocation of any license or certification required to be
maintained by either party under applicable federal, state or
local law.
b. The revocation of CDS's certification as a supplier under
title XVII (Medicare) of the Social Security Act.
c. Upon filing, by either party, of a petition or declaration in
bankruptcy, receivership or assignment for the benefit of
creditors. This paragraph shall also apply if such disability
is the result of an involuntary petition or other third party
suit. This paragraph may be temporarily abrogated by specific
amendment to this Agreement, created and duly executed as
provided for herein.
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7.3. Termination for Breach. This Agreement may be terminated in the event
of a material breach by either party, provided, however, that the
breaching party shall be given thirty (30) days to cure the breach
after receipt of written notice. Any written notice of termination for
cause must specify the reasons and causes justifying the termination.
Correction or cure of any and all potential breaches within the
specified time period shall, for the purpose of this Agreement,
abrogate the potential breach. The failure by either party to perform,
keep or fulfill any material covenant, undertaking, obligation or
condition set forth in this Agreement and the continuance of any such
potential reach for a period of thirty (30) days after written notice
of such failure to cure shall constitute a breach of this Agreement.
7.4. Available Remedies. Except as provided in Section 6.1, the rights
granted under this Agreement shall not be in substitution of, but shall
be in addition to, any and all other rights and remedies for breach of
contract available to the non-breaching party under applicable law.
7.5. Rights upon Termination. Upon termination of this Agreement, the rights
of each party hereunder shall terminate. However, the termination of
this Agreement shall not relieve either BPA or CDS of the obligations
imposed with respect to services furnished prior to the date of
termination.
VIII. GENERAL PROVISIONS
8.1. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties, relating to the subject matter of this Agreement,
and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection with the subject matter of
this Agreement.
8.2. Amendment. No supplement, modification or amendment of this Agreement
will be binding unless executed in writing by the parties to this
Agreement.
8.3. Severability. If any part, term, or provision of this Agreement is held
void, illegal, or unenforceable, the validity of the remaining portions
or provisions will remain in full force and effect.
8.4. Mutuality of Agreement. The terms and conditions of this Agreement are
mutually agreed upon and may not be construed against any party upon
the ground that such party was responsible for the preparation of this
Agreement or of any provision of this Agreement.
8.5. Independent Contractors. The relationship of the parties to this
Agreement is that of independent contractors. Nothing herein is
intended or may be construed to establish any agency, employment,
partnership, or joint venture relationship between the parties. Each
party shall be solely responsible for the direction, control and
management of its agents and employees.
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8.6. No Authority to Bind Other Party. Except as provided in this Agreement,
neither party may act on behalf of the other party nor may either party
bind or execute a release on behalf of the other party, except as
authorized in writing by the other party.
8.7. Cooperation. BPA and the CDS agree to work together to market products
together during the course of this Agreement.
8.8. Notice. Any notice, demand or other communication required or permitted
under this Agreement shall be in writing and personally delivered or
deposited in the United States Mail, first class, registered or
certified mail, with postal prepaid, and addressed as follows:
Benefit Plan Administrators, Inc.
Xxx Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxxx, XX 00000
If to CDS, addressed to: If to BPA, addressed to:
_____________________________ ______________________________
_____________________________ ______________________________
_____________________________ ______________________________
_____________________________ ______________________________
or to such other persons or addresses as any party request by written
notice as aforesaid. Notices shall be deemed given at the time of
personal delivery or three (3) days after the date mailed in the manner
set forth above.
8.9. Choice of Laws. The validity of this Agreement and of any of its terms
or provisions, as well as the rights and duties of the parties
hereunder, shall be interpreted and construed pursuant to and in
accordance with the laws of the State of Missouri.
8.10. Waiver. Waiver by either party of any rights under the terms of this
Agreement shall not be construed to operate as a waiver of any other or
further rights, either under the same terms, conditions or covenants
contained in this Agreement or in its Attachments.
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8.11. No Third Party Beneficiaries. This Agreement is solely for the benefit
of the parties to this Agreement and shall not confer any benefit upon
any other legal entities or persons.
8.12. Section Headings. The section headings contained in this Agreement and
the attached Exhibits are inserted for convenience of reference only
and will not affect the meaning or interpretation of this Agreement.
All capitalized terms defined herein are equally applicable to both the
singular and plural forms of such terms.
8.13. Effective Date. The effective date of this Agreement is July 1, 1997.
IN WITNESS WHEREOF, the parties hereto have affixed their signatures as of the
date first written above.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
CERTIFIED DIABETIC SUPPLIES, INC. BENEFIT PLAN ADMINISTRATORS
By: /s/ ILLEGIBLE By: /S/ ILLEGIBLE
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Title: PRES/CEO Title: EXECUTIVE VICE PRESIDENT
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Date: 7/2/97 Date: 7/1/97
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BPA:
Exhibit A Reimbursement Rate Schedule
*
--------------------
* Confidential treatment requested. Portions of this document have been
omitted by blocking out the relevant text pursuant to an Application for
Confidential Treatment. Such blocked out omissions have been filed
separately with the Securities and Exchange Commission. The Registrant
shall furnish all omitted schedules and exhibits to this document upon the
request of the Securities and Exchange Commission.
