EXHIBIT 10.2
MANAGED PRESCRIPTION DRUG PROGRAM AGREEMENT
This Managed Prescription Drug Program Agreement is entered into as of the
31st day of December, 1995, by and between Express Scripts, Inc., a Delaware
corporation ("ESI"), and WellPath Community Health Plan, Inc., a North Carolina
corporation ("Sponsor").
RECITALS
1. ESI is in the business of providing, managing and administering
prescription drug programs, including the maintenance of a nationwide network of
pharmacies, claims administration, mail service dispensing and delivery of
prescription drugs, generation of prescription drug management and utilization
reports and other pharmacy management services.
2. Sponsor is engaged in the business of arranging for the provision of
health care services pursuant to applicable federal and state laws, including
but not limited to the Employee Retirement Income Security Act of 1974, as
amended (29 U.S.C. Sec. 1001 et. seq.) and the Health Maintenance Organization
Act of 1973, as amended (42 U.S.C. Section 300e ET SEQ.), the applicable laws of
the State of North Carolina and the rules and regulations promulgated thereunder
(such rules, laws and regulations, collectively, the "HMO Laws"), to persons
enrolled in Sponsor's prepaid health care plans or who participate in
employee-funded health plans administered by Sponsor.
3. Sponsor and ESI desire to enter into an agreement concerning the terms
and conditions under which ESI will provide, manage and administer a
prescription drug program for Sponsor.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the premises and mutual covenants herein
contained, and intending to be legally bound thereby, the parties hereto hereby
agree as follows:
SECTION I
DEFINITIONS
The following capitalized terms used in this Agreement shall have the
meanings set forth below:
"Agreement," "hereof" and "hereunder" and words of similar import,
refer to this Managed Prescription Drug Program Agreement, including
all exhibits hereto, as it may be amended from time to time in
accordance herewith.
"Average Wholesale Price" or "AWP" means the average wholesale price of
a prescription drug as determined by the most current issue of First
DataBank Services; provided, however, that should such pricing service
not be reasonably commercially available at any time, the AWP shall be
determined from a mutually agreed upon alternative source generally
recognized in the retail drug industry.
"Copayment" means that portion of the charge for each prescription for
a Covered Drug, after the Member's Deductible has been satisfied, that
is the responsibility of the Member. The Copayment shall be determined
as set forth on EXHIBIT B hereto.
"Covered Drug" means those prescription drugs, supplies and other items
that are covered under the Prescription Drug Program, as indicated on
EXHIBIT A hereto.
"Deductible" means the aggregate annual amount the Member is required
to pay for Covered Drugs before becoming entitled to the benefits under
the Prescription Drug Program, in addition to Copayments, as set forth
on EXHIBIT B.
"Effective Date" means October 1, 1995.
"Eligibility Reports" means the reports issued by Sponsor to ESI
pursuant to Section 2.2 hereof, which shall indicate the name of each
current Member as of the date of such report and such other information
as ESI may reasonably request.
"Extended Day Supply" means a supply of Covered Drugs dispensed by
certain Participating Pharmacies that have contracted with ESI to
dispense a quantity of Covered Drugs in excess of a 30 day supply but
not to exceed a 90 day supply based on applicable statutory
requirements. A list of such Participating Pharmacies shall be provided
to HMO in accordance with the terms hereof.
"Formulary" means a list of prescription drugs and preferred products
that physicians are encouraged to prescribe, consistent with their
professional medical judgment and applicable medical and pharmacy laws
and procedures.
"Identification Card" means a printed identification card issued by
Sponsor to a Member containing specific information about such Member
and the Plan benefits to which he or she is entitled, provided that,
upon Sponsor's request, ESI will issue Identification Cards to selected
out-of-area Members.
"MAC" means the maximum allowable cost of a prescription drug as
determined by the United States Health Care Financing Administration,
which is established for certain prescription drugs.
"Mail Service Pharmacy" means a duly licensed pharmacy operated by ESI
which dispenses Covered Drugs to Members via the United States Postal
Service, United Parcel Service, or other delivery service.
"Member" is a subscriber or dependent of a subscriber who is enrolled
in or participates in a health benefits plan issued or administered by
Sponsor, and who is covered by a Rider or similar outpatient
prescription drug benefit.
"Member Submitted Claim Form" means the claim form provided by ESI that
the Member must submit to ESI or Sponsor in order to qualify for
reimbursement of certain claims under the Prescription Drug Program, as
set forth in Section 2.5 hereof.
"Metropolitan Area" means a city and all of its suburbs within a
reasonable commuting distance.
"MRA" means the average price per generic drug established generally by
ESI for certain clients using a variety of factors, including but not
limited to the First DataBank's published baseline price and the MAC.
ESI periodically updates the MRA from time to time to reflect changes
in generic drug prices over time, in its sole discretion.
"Non-Participating Pharmacy" means any pharmacy that does not have an
agreement with ESI to provide Covered Drugs to Members pursuant to the
Prescription Drug Program.
"Non-Participating Pharmacy Claim" shall have the meaning specified in
Section 2.5 hereof.
"Participating Pharmacy" means any pharmacy which has executed an
agreement with ESI to provide Covered Drugs to Members pursuant to the
Prescription Drug Program.
"Plan" means the Member's health benefits plan that includes the
Prescription Drug Program.
"Prescription Drug Program" means the prescription drug services and
benefits specified by Sponsor which are provided to Members under this
Agreement.
"Rider" means a supplement to a Plan under which Members are entitled
to the prescription drug benefits described in such supplement.
"Usual and Customary" means the usual and customary retail price to the
general public in a cash transaction at the pharmacy dispensing the
Covered Drug on the date such Covered Drug is dispensed.
SECTION II
PRESCRIPTION DRUG SERVICES
2.1 ELIGIBILITY OF MEMBERS
Sponsor shall provide ESI with an Eligibility Report, in a format agreed
upon by the parties, of the Members of each Plan at least ten (10) days prior to
the effective date of such Plan. From time to time thereafter, but no less
frequently than monthly, Sponsor shall provide ESI with an updated Eligibility
Report notifying ESI of a Member's addition to or termination from a Plan. Not
less than three (3) business days after ESI has received this notification in
computer readable form or five (5) business days after ESI has received this
notification in writing, ESI shall enter the eligibility data into its computer
and thereafter shall (i) deny all claims for Covered Drugs dispensed to Members
after the effective date of termination from a Plan and (ii) accept all claims
for Covered Drugs dispensed to new Members after the effective date of their
eligibility for a Plan.
2.2. MAIL SERVICE PHARMACY
Members may present prescriptions for Covered Drugs to the Mail Service
Pharmacy. After presentation of such prescription, ESI shall determine whether
the Member is eligible for prescription drug benefits, using the Eligibility
Reports provided by Sponsor, and whether the prescription is for a Covered Drug.
If the prescription and applicable law do not prohibit substitution of a generic
drug equivalent to the prescribed drug, or if ESI obtains the consent of the
prescriber, ESI shall dispense the generic substitute to the Member. If the
prescription and applicable law permit substitution of a generic substitute and
ESI fails to dispense the generic substitute, Sponsor shall only be responsible
for the generic drug ingredient cost, and not the brand drug ingredient cost.
All prescriptions received by the Mail Service Pharmacy will be reviewed prior
to filling for potential allergies disclosed to ESI by Member or interactions
with other drugs dispensed by the Mail Service Pharmacy or a Participating
Pharmacy. If, in the opinion of the dispensing pharmacist, a potentially harmful
allergy or drug interaction may exist, the dispensing pharmacist will contact
the prescriber to obtain the prescriber's oral consent to fill such
prescription. No prescriptions will be refilled without authorization from both
the Member and the prescriber. ESI will use its best efforts to fill a
prescription within 48 hours of receipt of the prescription at the Mail Service
Pharmacy.
Covered Drugs will be dispensed from the Mail Service Pharmacy in the
quantity prescribed by the prescriber, but not to exceed a ninety (90) day
supply. ESI shall charge and each Member shall pay the applicable Copayment for
each Covered Drug dispensed after any Deductible is satisfied. ESI shall
determine when the Deductible is satisfied in accordance with the rates set
forth in EXHIBIT C. All prescriptions received by the Mail Service Pharmacy
prior to the effective date of termination of the Agreement shall be paid for by
Sponsor in accordance with the terms hereof.
2.3 PARTICIPATING PHARMACIES
(a) NETWORK. Members may fill prescriptions for Covered Drugs through a
network of Participating Pharmacies maintained by ESI. EXHIBIT C identifies the
ESI network for Sponsor's Prescription Drug Program. ESI shall provide Sponsor
with an initial list of the Participating Pharmacies and will notify Sponsor of
additions to and deletions from its network of Participating Pharmacies from
time to time, but no less frequently than quarterly. Additions to and deletions
from the network shall be mutually agreed to by ESI and Sponsor. ESI shall
require each Participating Pharmacy to have all licenses and permits required by
law for dispensing prescription drugs in the states in which such pharmacy
operates, and to comply with all standards and procedures set by ESI with
respect to the quality of services provided pursuant to this Agreement.
(b) CREDENTIALING FILES. ESI shall maintain credentialing files for each
participating Pharmacy. These files are established when a pharmacy becomes a
Participating Pharmacy. These files shall contain evidence of licensure and
insurance as required by ESI, and in accordance with this Agreement. These files
shall also contain records of any complaints received by ESI concerning
Participating Pharmacies and any investigation or other action taken by ESI in
response to such complaints. Any other materials prepared or maintained by ESI
with respect to the quality of service provided by Participating Pharmacies,
including reports of any audits pursuant to Section 2.3(e) below, shall also be
included in the credentialing files. Each Participating Pharmacy shall (i) be
duly licensed in good standing in the state in which it dispenses prescriptions,
and (ii) maintain all certifications required by the official and professional
boards or bodies having authority over the practice of pharmacy in the
applicable states. ESI shall require additional evidence of licensure and
insurance from a Participating Pharmacy when a state pharmacy board publication
indicates that such pharmacy has had disciplinary action taken against it. ESI
shall receive copies of state pharmacy newsletters from all states in which
Participating Pharmacies are located and review these newsletters for
disciplinary action. Sponsor shall have the right to audit ESI's credentialing
files during regular business hours at Sponsor's cost, upon reasonable prior
notice to ESI.
(c) FILLING A PRESCRIPTION. To fill a prescription for a Covered Drug at a
Participating Pharmacy, the Member shall present a valid Identification Card and
the prescription at a Participating Pharmacy. The Participating Pharmacy will be
required to verify the Member's eligibility through ESI's designated on-line
computer system. Participating Pharmacies will be required to dispense Covered
Drugs to Members in the amount specified by the prescriber, but not to exceed a
thirty (30) day supply, provided that this dispensing limit may be adjusted by
Sponsor from time to time, in its sole discretion, upon reasonable notice to
ESI, and further provided, that those Participating Pharmacies who have
contracted with ESI to dispense an Extended Day Supply shall be permitted to
dispense certain maintenance medications in the amount specified by the
prescriber, but not to exceed a ninety (90) day supply. After each Member has
met his or her Deductible, Participating Pharmacies shall be required to charge
the Member and collect the applicable Copayment for each Covered Drug dispensed.
(d) CLAIMS PROCESSING. ESI shall provide the following claims processing
services through its on-line computer system for all claims submitted for
approval by Participating Pharmacies.
- Verification of the eligibility of the Member and any applicable
Copayments or Deductibles
- Verification that the prescriber is an authorized prescriber under
the Prescription Drug Program, if Sponsor requests
- Verification that the claim is for Covered Drugs
- Verification that the claim is in compliance with the Formulary,
if applicable
In all cases Sponsor shall have the final authority to determine whether any
rejected or disputed claim shall be allowed.
(e) PARTICIPATING PHARMACY AUDITS. ESI shall maintain a set of criteria for
establishing when a Participating Pharmacy shall be audited and the type of
audit that shall be conducted, whether written or on-site, conducted by ESI's
internal auditors or its outside auditor. Such audit shall determine the
pharmacy's compliance with its agreement with ESI. Sponsor may request that ESI
audit a particular individual or chain pharmacy which is a Participating
Pharmacy, which request shall be considered by ESI as one of the audit criteria.
Such requests shall be directed to ESI's Provider Relations Department. If
Sponsor has a reasonable basis for believing that a Participating Pharmacy may
be non-compliant with any quality, quality assurance or quality-of-care
standards of ESI, or that the Participating Pharmacy may be engaged in
fraudulent activities, Sponsor may require that ESI conduct an audit of the
Participating Pharmacy. ESI shall provide Sponsor with a copy of a summary of
the audit report produced as a result of such audit on a timely basis.
2.4 PRESCRIPTION DRUG FORMULARIES
(a) DEVELOPMENT AND PROMOTION. ESI will develop and maintain certain
Formularies for use by Sponsor, which will apply to Members who obtain Covered
Drugs from both the Mail Service Pharmacy and Participating Pharmacies. These
Formularies will be revised from time to time, and periodic newsletters will be
prepared at ESI's sole cost for Sponsor to distribute to physicians. In
addition, at no additional cost to Sponsor, ESI will meet periodically with
Sponsor regarding Formulary matters and, as reasonably requested by Sponsor,
meet periodically with physicians to encourage Formulary compliance. ESI will
also assist Sponsor in developing and promoting Riders which encourage Formulary
compliance. ESI shall have representation on any committee of Sponsor's which
evaluates the Formularies developed by ESI.
Sponsor shall assist in the development and promotion of the Formularies,
which shall include the following:
(i) If appropriate, staff of Sponsor shall participate in
the Pharmacy & Therapeutics ("P&T") Committee
established by ESI, which will develop and
periodically review and revise the Formularies;
(ii) Develop methodologies for informing physicians
concerning the Formularies and encouraging Formulary
compliance, including distribution of the
Formularies, a quarterly newsletter and other
communications concerning the Formularies.
(b) DISEASE MANAGEMENT PROGRAMS SPONSORED BY PHARMACEUTICAL MANUFACTURERS.
Sponsor and ESI shall jointly evaluate any disease management program provided
by any pharmaceutical manufacturer to ensure consistency with the Formularies
developed by ESI prior to the time Sponsor agrees to or enters into any such
program with a pharmaceutical manufacturer.
2.5 CLAIMS PROCESSING INVOLVING NON-PARTICIPATING PHARMACIES
Upon submission of claims in accordance with the terms hereof, ESI shall
process claims on behalf of Members for Covered Drugs dispensed by pharmacies
other than Participating Pharmacies ("Non-Participating Pharmacy Claims") as
provided in Section 2.3(d) hereof. Non-Participating Pharmacy Claims shall also
include claims from Members who have obtained prescriptions from Participating
Pharmacies without using their Identification Cards. For such a claim to be
processed, the Member must submit a hard-copy Member Submitted Claim Form
directly to ESI. ESI shall use reasonable efforts to process such claims in
accordance with Section 2.3(d) hereof and send a reimbursement to the Member
with five (5) business days of the date the completed claim is received.
2.6 MANAGEMENT INFORMATION REPORTS
On a quarterly basis at no additional charge, ESI shall provide Sponsor
with certain management information reports which shall include the information
set forth below by employer or covered group:
- The Top 100 Drugs Dispensed.
- The Number of Generic Drugs Dispensed
- Exception Reports for Heavy Utilization
- The Average Cost of Prescriptions Filled
- Cost by Member number
ESI will also provide Sponsor with certain standard drug utilization review
reports that ESI also provides to other clients, upon Sponsor's request and at
no additional charge. As of the date hereof, these reports include the reports
set forth on EXHIBIT D hereto.
2.7 CONSULTING SERVICES
ESI will, for no additional compensation, upon Sponsor's reasonable
request, provide quarterly management letters that include interpretation of
Management Information Reports and cost analysis of the Prescription Drug
Program.
2.8 QUALITY MANAGEMENT/IMPROVEMENT
ESI agrees to cooperate and require Participating Pharmacies to cooperate
with Sponsor's and ESI's quality improvement and quality management programs
that are consistent with the managed care industry standards, including but not
limited to providing information on quality matters and assisting in the
implementation of corrective action plans, provided that Sponsor has provided
ESI with copies of such programs.
2.9 COMPLAINTS AND GRIEVANCES
Any complaints or grievances Sponsor receives from Members with respect to
services provided pursuant to this Agreement will be resolved in accordance with
Sponsor's procedures; provided, however, that Sponsor agrees to solicit ESI's
views in a timely manner on any grievance or complaint concerning ESI or a
Participating Pharmacy. ESI agrees to cooperate and require Participating
Pharmacies to cooperate in the resolution of Member complaints and grievances.
ESI shall provide Sponsor with information concerning Member complaints and
grievances and assist in the implementation of corrective action plans.
2.10 RECORDS AND SOFTWARE
(a) OWNERSHIP OF RECORDS. All records prepared and maintained by ESI or
Sponsor in the course of their respective operations, including but not limited
to all books of account, enrollment records, administrative records and records
pertaining to Plans and Members, shall be and remain the sole property of such
entity.
(b) INSPECTION AND CONFIDENTIALITY OF RECORDS. Sponsor shall have the
right, upon reasonable request and at its cost, to inspect during regular
working hours any accounting, enrollment, administrative or medical records ESI
maintains pursuant to this Agreement regarding Sponsor or any Member to the
extent such inspection is permitted by applicable law. Sponsor and ESI shall
adopt procedures that seek to preserve the confidentiality of each other's
records, and will comply with all applicable laws and regulations regarding such
records. Sponsor shall be responsible for maintaining the confidentiality of
information available to Sponsor through Sponsor's access to ESI's computer
system. Neither Sponsor nor ESI shall disclose information from prescription
records of individual Members or information received from the Member's
physician pursuant to the physician-patient relationship without such Member's
consent, except as required or permitted by applicable law.
(c) COMPUTER PROGRAMS AND SOFTWARE. The parties agree that any and all
computer programs and software and related information, including but not
limited to reporting packages, system formats and other system information and
user documentation, developed by a party shall remain the property of the party
which developed it and the other party will not use such programs, software, and
related information, or disclose it to any third party, at any time during or
after the term of this Agreement, without the express written consent of the
party which developed it. Upon termination of this Agreement, all such programs,
software and related information, along with systems, manuals, procedures and
equipment provided by one party to the other, shall be returned immediately to
the party which provided it.
2.11 ADDITIONAL ESI SERVICES
(a) ELIGIBLE PRESCRIBER REVIEW. Upon written request of Sponsor with
respect to a particular Plan, ESI (with respect to Mail Service Pharmacy
prescriptions) and the Participating Pharmacies (with respect to prescriptions
Members submit to them) shall verify that the prescriber is a member of
Sponsor's closed panel for such Plan based on the most recent eligibility report
of prescribers submitted by Sponsor to ESI. If the prescriber is not an eligible
prescriber, such claim shall be denied. The eligibility report shall be provided
in a mutually acceptable form. Sponsor shall be solely responsible for ensuring
the accuracy of the eligibility report provided to ESI, and ESI may rely on such
report in processing claims under Section 2.3(d).
(b) TOLL-FREE CUSTOMER LINE. ESI shall maintain toll-free customer inquiry
telephone capability for Members to request the status of their prescriptions
and for other purposes.
(c) ON-CALL PHARMACIST. ESI shall provide a twenty-four (24) hour on-call
pharmacist for emergency medical situations.
(d) ON-LINE ACCESS. ESI shall provide Sponsor with on-line access to ESI's
prescription drug claims data base regarding Members for the purpose of
permitting Sponsor to look up claims data and make prior authorization
determinations with respect to prescription drug claims. All telecommunications
related costs as a result of such access shall be borne by Sponsor. Sponsor
shall comply with any and all security policies and procedures established by
ESI regarding such access. At ESI's request, Sponsor shall execute, and cause
specified employees to execute, a security access form. If, as a result of such
access, Sponsor obtains any confidential information, Sponsor agrees to keep
such information confidential and use it only as permitted by this Agreement,
provided that this requirement shall not apply to information that Sponsor
possessed prior to receiving it from ESI, or that Sponsor obtains from a third
party.
SECTION III
FEES; BILLING AND PAYMENT
3.1 FEES.
The fees for the Prescription Drug Program provided hereunder shall consist
of the fees specified in EXHIBIT C of this Agreement.
3.2 BILLING AND PAYMENT
ESI will xxxx Sponsor as follows:
(i) no more often than weekly for all Covered Drugs
sent to Members from the Mail Service Pharmacy,
less applicable Copayments and Deductibles;
(ii) no more often than weekly, for Covered Drugs
dispensed to Members by Participating Pharmacies and
for Non-Participating Pharmacy Claims (less
applicable Copayments and Deductibles); and
(iii) bi-weekly or monthly, at ESI's option, for all other
fees specified in EXHIBIT C of this Agreement.
The xxxxxxxx shall be in the form of a readable computer printout or a
magnetic tape in a mutually agreed upon format or such other method mutually
agreed to by the parties. Sponsor shall pay ESI by wire transfer within one (1)
business day of Sponsor's receipt of an ESI xxxx, except for that portion of the
billed amount that is disputed in good faith. Sponsor will give ESI the
telephone number and name of the contact person for purposes of the wire
transfer. Any disputes regarding billed amounts must be handled in accordance
with the provisions of Section 6.9 hereof. Any amount not paid by the due date
thereof, including disputed amounts that are subsequently determined to be due,
shall bear interest at the prime rate until paid in full; provided that in the
case of amounts disputed in good faith in accordance with the procedures set
forth in Section 6.9 hereof, interest on disputed amounts which are ultimately
paid shall not accrue until the day after ESI disputes in writing Sponsor's
adjudication results as presented to ESI in the explanation of benefits.
3.3 LIMITATION ON COLLECTIONS
Except with respect to Deductibles and Copayments, which are solely the
responsibility of the Member, ESI shall look solely to Sponsor for compensation
for Covered Drugs and other services provided to Members pursuant to this
Agreement. In no event, including but not limited to nonpayment by Sponsor or
Sponsor's insolvency or breach of this Agreement, shall ESI xxxx, charge,
collect a deposit from, seek compensation, remuneration or reimbursement from,
or have any recourse against Members or persons acting on their behalf (other
than Sponsor) for services provided pursuant to the Agreement. ESI shall,
however, xxxx Members directly for all non-covered drugs and services, and
Deductibles and Copayments. ESI further agrees that (a) this provision shall
survive the termination of this Agreement regardless of the cause giving rise to
Termination and shall be construed for the benefit of the Member, and (b) this
provision supersedes any oral or written agreement to the contrary now existing
or hereafter entered into between ESI and Members or any persons acting on their
behalf. Any modifications, additions or deletions to the provisions of this
section shall become effective on a date no earlier than thirty (30) days after
the Commissioner for Insurance for the jurisdiction in question has received
written notice of such proposed changes. ESI represents and warrants that ESI's
agreement with each Participating Pharmacy shall also contain limitations on
such provider substantially identical to those imposed on ESI as set forth in
this Section 3.3.
SECTION IV
INSURANCE; INDEMNIFICATION; COMPLIANCE WITH APPLICABLE LAW
4.1 INSURANCE
(a) ESI INSURANCE. ESI shall maintain, at its sole expense, such policies
of general liability, professional liability and other insurance of the types
and in amounts customarily carried by pharmacies of comparable size with respect
to their operations. Upon Sponsor's request, ESI shall provide certificates
evidencing such insurance coverage. Such coverage shall include, at a minimum,
comprehensive general and professional liability insurance coverage in an amount
of not less than ten million dollars ($10,000,000) per occurrence and as an
annual aggregate, including without limitation, pharmacist's professional
liability coverage for such claims for bodily injury as may arise from operation
of the Mail Services Pharmacy under this Agreement.
(b) SPONSOR INSURANCE. Sponsor shall maintain, at its sole expense, such
policies of general liability, professional liability and other insurance of the
types and in the amounts customarily carried by health maintenance
organizations. Upon ESI's request, Sponsor shall provide certificates evidencing
such insurance coverage.
(c) NOTICES OF CHANGES IN INSURANCE. Each policy obtained pursuant to
Section 4.1(a) and (b) hereof shall provide for at least thirty (30) days
advance written notice of cancellation or non-renewal to the insured. ESI and
Sponsor shall each notify the other in writing promptly if it receives such
notice or otherwise learns that its insurance coverage is to be terminated or
coverage is to be material reduced but in any event, within the period required
by the applicable state law for such notice.
(d) PARTICIPATING PHARMACY AGREEMENTS. ESI's agreement with each
Participating Pharmacy shall require each such pharmacy to maintain
comprehensive general and professional liability insurance coverage in an amount
of not less than one million dollars ($1,000,000) per occurrence and as an
annual aggregate, or, when deemed acceptable by ESI, to have in place an
equivalent self-insurance program. ESI shall verify that the Participating
Pharmacies have the required insurance coverage during the process of
credentialing as described in Section 2.3(b) above.
(e) NO PARTICIPATING PHARMACY INSURANCE. It is understood and agreed that
nothing in this Agreement shall be interpreted to mean that ESI holds or is
required to hold liability insurance on behalf of any Participating Pharmacy.
4.2 INDEMNIFICATION
(a) DEFINITIONS:. As used in this Section 4.2:
(i) "Claims" means civil, administrative and criminal actions,
claims, suits and legal proceedings of any kind, arising in connection with the
performance of this Agreement by Sponsor and ESI, that are brought against an
Indemnitee by a third party unaffiliated with such Indemnitee.
(ii) "Costs" means damage, settlements, judgement, losses,
expenses, interest, penalties, reasonable legal fees and disbursements
(including without limitation fees and costs for investigators, expert witnesses
and other litigation advisors) and other actual costs incurred by an Indemnitee
to investigate, defend or settle a Claim, except that no settlement payment
shall be included in Costs unless the Indemnitor has given prior, express
written consent to the settlement.
(iii) "Indemnitee" means a person or entity entitled to
indemnification in accordance with this Section 4.2.
(iv) "Indemnitor" means a person or entity who is required to
indemnify an Indemnitee in accordance with this Section 4.2.
(b) INDEMNIFICATION BY SPONSOR. Subject to and in accordance with Section
4.2(d) below, Sponsor shall indemnify and hold harmless ESI, its directors,
officers and employees (the "ESI Indemnitees") from and against Claims and Costs
resulting from the grossly negligent acts or omissions or intentional misconduct
of Sponsor, its directors, officers, employees or authorized agents in
connection with the performance of this Agreement: provided, however, that
Sponsor shall not be obligated to indemnify or hold harmless ESI Indemnitees to
the extent that such Claims or Costs arise from any grossly negligent acts or
omissions or intentional misconduct by ESI Indemnitees or persons or entities
acting on their behalf, including without limitation the acts or omissions by
Participating Pharmacies.
(c) INDEMNIFICATION BY ESI. Subject to and in accordance with Section
4.2(d) below, ESI shall indemnify and hold harmless Sponsor, its directors,
officers, employees and affiliates (the "Sponsor Indemnitees") from and against
Claims and Costs resulting from the grossly negligent acts or omissions or
intentional misconduct of ESI, its directors, officers, employees or authorized
agents in connection with the performance of this Agreement; provided, however,
that ESI shall not be obligated to indemnify or hold harmless Sponsor
Indemnitees to the extent that such Claims and Costs arise from (i) any grossly
negligent acts or omissions or intentional misconduct by Sponsor Indemnitees or
persons or entities (other than ESI) acting on their behalf, or (ii) the acts or
omissions of Participating Pharmacies or persons or entities (other than ESI)
acting on their behalf.
(d) OTHER CONDITIONS OF INDEMNIFICATION. After receiving written notice of
any Claim for which indemnification would be available under this Section 4.2,
the Indemnitee shall give written notice thereof to the Indemnitor, except that
the Indemnitee need not give such notice if the Indemnitor has otherwise
received written notice of the Claim. The Indemnitor may at any time, in its
sole discretion, assume the defense of the Claim by giving written notice to the
Indemnitee. Beginning at the point when the Indemnitor assumes the defense of
the Claim, all future Costs relating to the Claim shall be borne by the
Indemnitor, provided that the Indemnitee cooperates with the Indemnitor in the
defense of the Claim. If the Indemnitor elects to assume the defense of the
Claim, the Indemnitee shall be represented by legal counsel chosen by the
Indemnitor. This may be the same counsel representing the Indemnitor, unless the
parties cannot appropriately be represented by the same counsel due to actual or
potential conflict of interest, in which case the Indemnitor shall choose
separate counsel for the Indemnitee.
Except to the extent the Indemnitor elects to assume the defense of the
Claim as provided in this Section 4.2(d), the Indemnitee shall defend the Claim
at its own expense, subject to reimbursement by the Indemnitor in accordance
with this Section 4.2. The timing of such reimbursement shall be determined by
agreement of the parties; if they are unable after good faith negotiations to
agree, the issue shall be handled in accordance with Section 6.9 below.
Notwithstanding any other provision of this Section 4.2, no indemnification
shall be available hereunder (i) for any settlement to which the Indemnitor did
not give prior, express written consent, (ii) for any Claim of which Indemnitor
did not receive notice as provided in this Section 4.2(d) or (iii) if the
Indemnitee fails to cooperate with the Indemnitor in the defense of the Claim.
Nothing in this Section 4.2 shall change or diminish in any way the
statutory or common law rights of any Indemnitee to contribution from any
Indemnitor.
(e) SURVIVAL. With respect to Claims arising during the life of this
Agreement, this Section 4.2 shall survive termination (including expiration) of
the Agreement for a period of five (5) years following such termination,
provided that if the Indemnitee has given the Indemnitor written notice of a
potential Claim within such five (5) year period, the indemnification for such
Claim provided hereunder shall survive such termination.
4.3 COMPLIANCE WITH LAW
Sponsor and ESI each hereby acknowledge that it has sole and exclusive
responsibility for its obligations under all relevant federal, state and local
statutes, ordinances, rules and regulations, and common law obligations,
notwithstanding the existence of this Agreement. Sponsor and ESI shall each
perform their duties and exercise their rights in accordance with the standards
of the managed health care industry applicable to their operations.
SECTION V
TERM AND TERMINATION
5.1 TERM
The initial term of this Agreement shall begin on the Effective Date and
extend through and including December 31, 1999, and may be renewed for
additional one (1) year terms as provided herein. At least ninety (90) days
prior to the end of the initial term or any renewal term, should either Sponsor
or ESI desire not to continue this Agreement beyond the end of such term, such
party shall so notify the other party in writing. Should neither party so notify
the other, this Agreement shall continue with the same terms, covenants, and
conditions as are herein contained for an additional one (1) year term.
5.2 CURE PERIOD FOR ALLEGED BREACHES OR DEFAULTS
In the event either ESI or Sponsor materially breaches or defaults in
performance of any of its obligations under this Agreement (other than payment
obligations) and good faith efforts to cure such breach or default have not
begun within thirty (30) days after the breaching or defaulting party receives
written notice thereof, or if good faith efforts to cure have begun within such
thirty (30) day period but such cure is not complete within sixty (60) days
after receipt of such notice if such breach or default could reasonably be cured
within such period, the other party shall have the right by further written
notice to pursue the dispute resolutions procedures set forth in Section 6.9
hereof.
5.3 EFFECT OF TERMINATION
Notwithstanding termination (including expiration) pursuant to Section 5.2
hereof, the rights and obligations of the parties arising as a result of
services provided prior to such termination shall remain in full force and
effect for period of one (1) year following termination provided that the
parties' rights to indemnification under Section 4.2 shall survive as set forth
in Section 4.2 hereof. ESI shall complete the processing of prescriptions and
claims received by it or by a Participating Pharmacy prior to the effective date
of termination of the Agreement.
SECTION VI
MISCELLANEOUS
6.1 NOTICE
Any notice which may or must be given under the terms of this Agreement
must be in writing and shall be deemed effective upon receipt. Such notice must
be (i) sent certified or registered mail, return receipt requested, postage
prepaid, or (ii) sent by recognized overnight delivery service, in any case and
properly addressed to ESI or Sponsor at the address set forth below, or at such
other address as either party shall designate by like notice to the other party.
To Sponsor at:
WellPath Community Health Plans, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Attn: Vice President, Network Management
and to ESI at:
Express Scripts, Inc.
00000 Xxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: President
Any notice given in the manner specified herein shall be deemed received on the
date evidenced by the return receipt card or, in the case of overnight delivery
service, other proof of delivery.
6.2. INDEPENDENT PARTIES
No provision of this Agreement is intended to create or shall be construed
to create any relationship between ESI and Sponsor other than that of
independent entities contracting with each other solely for the purpose of
effecting the provisions of this Agreement. Neither party, nor any of their
respective representatives, shall be construed to be the partner, agent,
employee, or representative of the other and neither party shall have the right
to make any representations concerning the duties, obligations or services of
the other except as consistent with the express terms of this Agreement or as
otherwise authorized in writing by the party about which such representation is
made.
6.3 SUCCESSORS AND ASSIGNMENTS
The words ESI and Sponsor as used herein include, apply to, bind and
benefit the successors and permitted assigns of ESI and Sponsor. Neither party
may assign this Agreement or any of its rights or obligations hereunder without
the express written consent of the other party (which consent may not be
unreasonably withheld, qualified or delayed), except that either party may
without the other party's consent, assign this Agreement or any of its rights or
obligations hereunder to a corporate affiliate of such party; provided, however,
that (i) the affiliated assignee or delegatee shall agree, in writing, to be
bound by the provisions set forth in Section 6.9 hereof regarding dispute
resolution, (ii) no such assignment or delegation shall relieve the party so
assigning its rights or delegating its obligations hereunder from its
obligations under this Agreement without the written consent of the other party
to this Agreement.
6.4 AMENDMENTS
No modification, alteration, or waiver of any term, covenant, or condition
of this Agreement shall be valid unless in writing and signed by both parties or
the agents of the parties who are authorized in writing.
6.5 CHOICE OF LAW
This Agreement shall be construed and governed in all respects according to
the internal laws in the State of Missouri.
6.6 WAIVER
No waiver of a breach of any covenant or condition shall be construed to be
a waiver of any subsequent breach. No act, delay or omission done, suffered, or
permitted by the parties shall be deemed to exhaust or impair any right, remedy
or power of such party hereunder.
6.7 VALIDITY
Should for any reason any clause or provision of this Agreement (other than
Section III) be held or ruled unenforceable or ineffective under the law, such a
ruling will in no way affect the validity or enforceability of any other clause
or provision of this Agreement.
6.8 THIRD PARTY BENEFICIARY EXCLUSION
Except as set forth in Section 3.3 hereof, this Agreement is not a third
party beneficiary contract and shall not, in any manner whatsoever, increase the
rights of any Member or any other person with respect to Sponsor or ESI or the
duties of Sponsor or ESI to any Member or any other person or create any rights
on behalf of any Member or any other person with respect to ESI or Sponsor.
Sponsor and ESI reserve the right to amend or terminate this Agreement without
notice to, or consent of, any Member or any other person.
6.9 ARBITRATION
If ESI and Sponsor are unable to resolve any dispute arising under this
Agreement, such dispute shall be resolved by binding arbitration, which, unless
the parties otherwise agree in writing shall be conducted in accordance with the
following rules:
(a) INITIATION OF ARBITRATION. Either party may initiate arbitration
hereunder by written notice to the other describing in detail the nature of the
default or other dispute to be resolved.
(b) SELECTION OF ARBITRATOR. Unless the parties agree on the selection of
the arbitrator within 15 days after initiating the arbitration proceeding, each
of ESI and Sponsor shall select its own representative and the two
representatives so selected shall select the arbitrator. Each representative and
the arbitrator shall be (i) a person with not less than 5 years experience at a
senior management level in the managed health care industry, or (ii) an attorney
with not less than 10 years experience in managed healthcare law. Neither the
representatives nor the arbitrator shall have any present or past affiliation
with ESI or Sponsor, or any major shareholder or any member of the senior
management or board of directors of ESI of Sponsor.
(c) TIME AND PLACE OF ARBITRATION. Unless the parties agree otherwise, the
arbitration shall occur on a date to be set by the arbitrator, which shall be no
more than 30 days after the selection of the arbitrator, and shall be held in
New York City.
(d) EXPENSE OF ARBITRATION. The parties shall bear equally the arbitrator's
fee and other costs of arbitration such as rental of the hearing room and costs
of a court reporter, and each party shall bear its own costs (including
attorneys' fees) incurred in preparation for the arbitration; PROVIDED, HOWEVER,
that the arbitrator may award costs and attorneys' fees, in whole or in part, to
the prevailing party in his/her discretion.
(e) TRANSCRIPT. A transcript of the proceedings will be prepared by a
licensed court reporter selected by the arbitrator. A copy of the transcript
will be made available to the parties prior to any briefing of the issues that
the arbitrator may request.
(f) REMEDIES GENERALLY. The arbitrator shall grant such relief to the
non-defaulting party as shall be necessary to put such party in the position
such party would have been in absent default. Such relief may include, without
limitation, awarding monetary damages for breach, or relieving the
non-defaulting party from any further obligation under this Agreement. No
punitive damages shall be awarded.
(g) RULES OF ARBITRATION APPEAL. Except as otherwise provided in this
Section, any arbitration will be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (but not under the
auspices of such organization). The arbitrator's award shall be issued within 30
days of the conclusion of the arbitration proceeding and shall be accompanied by
written findings of fact and conclusions of law. The arbitrator's award and
opinion shall be final and binding on all parties.
6.10. EFFECT OF AGREEMENT.
This Agreement supersedes in its entirety any and all written or oral
agreements between the parties with respect to the subject matter hereof as to
any transactions occurring or circumstances arising after the Effective Date.
IN WITNESS WHEREOF, the undersigned have executed this Managed Prescription
Drug Program Agreement as of the day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION
PROVISION THAT MAY BE ENFORCED BY THE PARTIES.
EXPRESS SCRIPTS, INC. WELLPATH COMMUNITY HEALTH PLAN, INC.
By: /S/ XXXXXX XXXXXXX By: /S/ XXXX X. XXXX
Name: XXXXXX XXXXXXX Name: XXXX X. XXXX
Title: EXECUTIVE VICE PRESIDENT Title: PRESIDENT/CEO
EXHIBIT A
COVERED AND EXCLUDED DRUGS
A. Covered Drugs:
See applicable Rider or similar description of outpatient prescription
drug benefit.
B. Excluded Drugs:
See applicable Rider or similar description of outpatient prescription
drug benefit.
EXHIBIT B
COPAYMENTS AND DEDUCTIBLES
1. Copayments per prescription:
PARTICIPATING PHARMACIES COPAYMENT:
Branded Drugs $______*
Generic Drugs $______*
MAIL SERVICE PHARMACY COPAYMENT:
Branded Drugs $______*
Generic Drugs $______*
MEMBER SUBMITTED CLAIM COPAYMENT
Branded Drugs $______*
Generic Drugs $______*
ESI's agreements with Participating Pharmacies shall require that where the
amount of the Copayment exceeds the Participating Pharmacy's Usual and Customary
retail price of the Covered Drug at the time the prescription is filled, such
pharmacy shall charge such retail price as full compensation for filling that
prescription.
2. Annual Deductibles
For Member's Deductibles, see applicable Rider or similar description of
outpatient prescription drug benefit.
-----------------------------
* See applicable Rider or Plan provisions.
EXHIBIT C
EXPRESS SCRIPTS PRESCRIPTION DRUG PROGRAM FEES
I. Prescription Drugs dispensed by Participating Pharmacies in the
PERxSelecttm Network:
A. INGREDIENT COST
Brand Drugs: [*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS
DOCUMENT AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT*] plus
applicable sales or excise tax or other
governmentalsurcharge, if any.
Generic Drugs: [*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM
THIS DOCUMENT AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT*]
plus applicable sales or excise tax or other
governmental surcharge, if any.
B. DISPENSING FEE
[*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS DOCUMENT AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT*]
C. CLAIMS ADMINISTRATION FEE
[*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS DOCUMENT
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT*]
II. Prescription Drugs dispensed by ESI's Mail Service Pharmacy:
A. INGREDIENT COST
Brand Drugs: [*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS
DOCUMENT AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT*] plus
applicable sales or excise tax or other
governmental surcharge, if any.
Generic Drugs: [*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM
THIS DOCUMENT AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT*] plus
applicable sales or excise tax or other
governmental surcharge, if any.
B. DISPENSING FEE
[*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS DOCUMENT
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT*]
C. CLAIMS ADMINISTRATION FEE
[*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS DOCUMENT
AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT*]
III. Extended Day Supply dispensed at Participating Pharmacies:
A. INGREDIENT COST
Brand Drugs: [*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS
DOCUMENT AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT*] plus
applicable sales or excise tax or other
governmental surcharge, if any.
Generic Drugs: [*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM
THIS DOCUMENT AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT*] plus
applicable sales or excise tax or other
governmental surcharge, if any.
B. DISPENSING FEE
[*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS DOCUMENT
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT*]
C. CLAIMS ADMINISTRATION FEE
[*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS DOCUMENT
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT*]
IV. Member Submitted Claims:
A. PRESCRIPTION COST:
Actual amount paid by Member for the Covered Drug
less the applicable Copayment, and/or Deductible.
B. CLAIMS ADMINISTRATION FEE:
[*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS DOCUMENT
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT*]
V. Implementation fees:
[*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS DOCUMENT AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT*] for
implementation of the Express Scripts program if Sponsor
provides ESI with initial Member eligibility on electronic
medium in ESI's format. If ESI must create a Member
eligibility file by manually entering the data, there will be
a [*CONFIDENTIAL TERMS HAVE BEEN OMITTED FROM THIS DOCUMENT
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT*]
implementation fee.
EXHIBIT D
DRUG UTILIZATION REVIEW (DUR) REPORTS
1. PCP Analysis
2. Prescriber Analysis
3. Drug Ranking - Number of Scripts by Therapy Class
4. Drug Ranking - Amount Paid by Therapy Class
5. Drug Ranking Report on YTD Claim Amount
Includes Alphabetical Drug List
6. Top 40 Prescribers for a Specific Drug
7. Pharmacy Dispensing Report
8. High Utilization Member Activity Report
9. Controlled Substance - High Utilization Member Activity Report
10. Network to Mail Order Movement
11. Member Ranking Report
12. Group and Rider Stratification Report
13. Group Claim Activity Report
14. Rider Recap by Group
15. Rider Recap by Site
16. Summary of Prescription Drug Utilization
17. Summary of Drug Utilization by Therapy Class
18. Controlled Substance Prescribing Physician Analysis Report
Ranked by # of Rxs
19. Top __ Drugs by Generic Class Name - Based on Ingredient Cost
20. Top __ Drugs by Generic Class Name - Based on # of Rxs
21. Pharmacy DUR Performance Report
ADDENDUM ONE
MEDICARE SERVICES ADDENDUM
This Medicare services addendum ("Medicare Addendum") supplements the
Managed Prescription Drug Program Agreement (the "Agreement") between WellPath
Select, Inc., formerly WellPath Community Health Plan, Inc. ("WellPath") and
Express Scripts, Inc. ("ESI") to which it is annexed.
WHEREAS, WellPath intends to enter into an agreement ("Medicare Contract")
with the Health Care Financing Administration ("HCFA"), under which WellPath has
agreed to provide pre-paid coverage for certain health care services to be
provided to Medicare beneficiaries who are members of the WellPath 65 Health
Plan; and
WHEREAS, WellPath and ESI desire to give members of the WellPath 65 Health
Plan access to Covered Drugs provided or arranged for by ESI pursuant to the
Agreement; and
WHEREAS, WellPath and ESI desire to incorporate this Medicare Addendum into
the Agreement, so as to permit ESI to provide or arrange for Covered Drugs to
members of the WellPath 65 Health Plan pursuant to the Agreement as supplemented
by this Medicare Addendum.
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS. Terms used in this Medicare Addendum that are defined in
the Agreement shall have the definitions contained in the Agreement. Additional
terms used in this Medicare Addendum are defined as follows:
COMMERCIAL MEMBER means a Member who is not a Medicare Member.
MEDICARE-CERTIFIED or MEDICARE CERTIFICATION, as applied to a
physician, hospital or other provider of health care services,
means that the provider has been approved by HCFA to
participate in the Medicare program.
MEDICARE MEMBER means a member of the WellPath 65 Health Plan,
enrolled pursuant to WellPath's Medicare Contract with HCFA.
Except as specified in this Medicare Addendum, all provisions
of the Agreement applicable to Members shall apply to Medicare
Members.
2. SERVICES. ESI shall provide or arrange for the provision of Covered
Drugs to Medicare Members in accordance with the Agreement as supplemented by
this Medicare Addendum. ESI shall and shall require in its provider agreements
with Participating Pharmacies that they not discriminate against Medicare
Members because of race, color, national origin, ancestry, religion, sex,
marital status, sexual orientation, age, health status, source of payment, or by
reason of the fact that they are Medicare Members.
3. PAYMENT FOR SERVICES. WellPath shall compensate ESI for services
rendered to Medicare Members in accordance with Section III of the Agreement.
ESI shall be responsible for paying Participating Pharmacies for providing and
arranging to provide Covered Drugs to Medicare Members, and shall require
Participating Pharmacies to look solely to ESI for such payment. Payment of
Claims for services rendered to Medicare Members may not be delayed pending
receipt of information regarding coordination-of-benefits when WellPath is the
secondary plan.
4. REPORTS AND OTHER INFORMATION
4.1 REQUIRED REPORTS. WellPath shall prepare and submit to HCFA or
any other duly authorized agent of the federal government all
legally required reports concerning the provision of Covered
Drugs to Medicare Members. ESI shall cooperate with WellPath
in the preparation of such reports by providing to WellPath,
on a timely basis, all documents, information, data and other
materials that ESI is obligated to provide under the
Agreement. Any additional documents, information, data or
other materials shall be provided at ESI's standard rates.
4.2 PATIENT RECORDS. WellPath and ESI shall require in the
provider agreements with Participating Pharmacies that
Participating Pharmacies shall, in accordance with state and
federal laws and regulations regarding the confidentiality of
patient records, comply with valid requests by HCFA or any
other duly authorized agent of the federal government to
review and copy records pertaining to the diagnosis, treatment
and health of Medicare Members.
4.3 RECORD RETENTION AND ACCESS. As required by federal law, until
the expiration of four (4) years after the provision of any
services to Medicare Members under this Medicare Addendum, ESI
shall and shall require in its provider agreements with
Participating Pharmacies that Participating Pharmacies will
make available for inspection, evaluation and audit, upon
written request of the Secretary of Health and Human Services
or the Comptroller General of the United States or any of
their duly authorized representatives, copies of the
Agreement, this Medicare Addendum and any books, documents,
records and other data of ESI pertaining to any aspect of such
services that may be necessary to evaluate the quality,
appropriateness and timeliness of such services and certify
the nature and extent of costs incurred by WellPath or ESI in
connection with such services to the extent require by law. If
ESI performs any of his/her obligations pertaining to Medicare
Members under this Medicare Addendum through a subcontract
with a related entity, as defined in 42 C.F.R '417.484, ESI
will cause such subcontract to contain a clause to the effect
that, until the expiration of four (4) years after the
provision of any services pursuant to such subcontract, the
subcontractor will make available, upon written request of the
Secretary of Health and Human Services or the Comptroller
General of the United States or any of their duly authorized
representatives, copies of said subcontract and any books,
documents, records and other data of such subcontractor that
may be necessary to evaluate the quality, appropriateness and
timeliness of such services and certify the nature and extent
of costs incurred by WellPath or ESI in connection with such
services to the extent required by law.
5. TERM AND TERMINATION. This Medicare Addendum will take effect
("Effective Date") on the later of the date this Medicare Addendum is signed by
all parties to this Agreement or the effective date of HCFA's approval of HMO's
operation as a Medicare Risk contractor, and shall remain in effect until the
termination or expiration of the Medicare Contract, the Agreement or this
Medicare Addendum, whichever comes first. WellPath shall give ESI notice of the
termination or expiration of the Medicare Contract. This Medicare Addendum may
be terminated by either party in accordance with the provisions for termination
contained in the Agreement. Upon the termination of this Medicare Addendum, the
Agreement shall remain in full force and effect with respect to Commercial
Members, unless the Agreement has also terminated or expired;
The termination of this Medicare Addendum shall not prejudice the rights or
obligations of either party that accrued before such termination.
6. ALL OTHER TERMS OF AGREEMENT TO REMAIN UNCHANGED. This Medicare Addendum
shall supplement the Agreement and apply solely to Covered Drugs for Medicare
Members. Except as specified herein, the terms of the Agreement shall remain in
full force and effect and shall govern the provision of Covered Drugs to
Medicare Members as if fully set forth herein.
IN WITNESS WHEREOF, the parties have executed and delivered this Addendum
as of April 7, 1997.
WELLPATH SELECT, INC. EXPRESS SCRIPTS, INC.
/S/ XXXX X. XXXX /S/ XXXXXX XXXXXXX
Authorized Signature Authorized Signature
XXXX X. XXXX XXXXXX XXXXXXX
Print Name Print Name
PRESIDENT/CEO EXECUTIVE VICE PRESIDENT
Title Title
APRIL 3, 1997 APRIL 7, 1997
Date Signed Date Signed
