EXHIBIT 10(o)
CLAIMS PROCESSING AND MANAGED CARE SERVICES CONTRACT
This Claims Processing and Managed Care Services Contract (the
"Agreement") is made this 1st day of June, 2001 by and between Fitzgeralds
Gaming Corporation on behalf of itself and each of its operating subsidiaries:
Fitzgeralds Mississippi, Inc., Fitzgeralds Reno, Inc., Fitzgeralds Las Vegas,
Inc., and 000 Xxxx Xxxxxx, LLC. (hereinafter, collectively, "Fitzgeralds" or
"Client"), and Meritage Employer Services, LLC (hereinafter "Company").
RECITALS
WHEREAS the Client has adopted the Self-Funded Employer Benefit Plan
(as attached hereto as Exhibit 2) (hereinafter "Benefit Plan") for the purpose
of providing benefits under its ERISA plan for certain of its employees and
their dependents; and
WHEREAS benefits payable under the provisions of the Benefit Plan
constitute liabilities of the Client; and
WHEREAS the Client wants the Company to furnish services necessary in
the administration of certain aspects of the Benefit Plan; and
WHEREAS the Company is willing to provide such services in accordance
with the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is agreed as follows:
AGREEMENT
I. EFFECTIVE DATE AND TERM OF AGREEMENT
The term of this Agreement shall commence on the 1st day of June, and,
subject to the good faith negotiations set forth in Section V below, will remain
in effect until resolution of all claims asserted in the Fitzgeralds bankruptcy
cases currently pending or against any Fitzgeralds liquidating trust or similar
entity formed to effectuate the liquidation of Fitzgeralds, unless this
Agreement is terminated by either party pursuant to the termination provision
contained herein.
II. COVERAGE AND BENEFITS ADMINISTRATION
The benefits to be administered are set forth in the Employee Benefit
Plan (the "Benefit Plan"), a copy of which is attached hereto as Exhibit 2. Such
services are for the Client's eligible employees and their family members
(hereinafter referred to as "Plan Participants") enrolled in the Benefit Plan.
SPECIAL SERVICES TO BE PROVIDED BY THE COMPANY
Company shall provide special administrative services to the Client for
Plan Participants enrolled in the Benefit Plan. The special administrative
services to be provided for Client by Company and the fees for such services are
specified in Exhibit 3.
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III. COMPENSATION INVOICING AND DEPOSIT
The basis for compensation of the Company, per NRS 683A.0883, is the
number of insured members, which has been agreed upon by the Company and the
Client. This compensation is not based on:
(a) The claim experience of the policies handled; or
(b) The savings realized by Company by adjusting, settling or paying
the losses covered by an insurer.
Upon execution of this Agreement and prior to the effective date of
services being rendered, the Client shall pay a deposit in advance, in the
amount of $26,000. Client shall pay Meritage annualized contracted fees prorated
monthly and payable in advance on the first day of the month for services to be
rendered that month as set forth in Exhibit 1 ("Contracted Fees").
Exhibit 1 provides the monthly fees per covered employee (fees are not
charged for family members, because they are based on employee units for
services rendered). See Exhibit 1 for details of aggregate annual costs for all
properties, based on specified conditions of approval. Should termination of
this Agreement occur prior to twelve (12) full months of service, there shall
not be any refund of fees. Should the Agreement continue for more than twelve
(12) months, and the aggregate of all property contracted standard service fees
for all subsidiaries is exceeded, then the Client shall remit additional fees at
the rates listed in Exhibit 1.
If the aggregate contracted fee level for all categories is not
expended based on number of employees covered and services performed, at the end
of twelve (12) months, Meritage will remit any overpayment back to the Client.
The Client may also have any overpayment offset against fees for ongoing
services. Client shall have general rights of offset and recoupment with respect
to all amounts payable under this Agreement and the other Risk Management
Contracts (hereinafter defined).
FEE DUE DATE AND PAYMENTS
A. If such payment is not made in full by Client on or prior to the fee
due date, a thirty (30) day grace period shall be granted to Client for
payment without interest charged. Fees outstanding subsequent to the
end of the grace period shall be subject to a late penalty charge of
one and one-half percent (1.5%) of the total fee amount due calculated
for each thirty (30) day period or portion thereof the amount due
remains outstanding.
B. If the Agreement is terminated for any reason, Client shall continue
to be held liable for all fee payments due and unpaid prior to the date
of termination.
IV. FEE ADJUSTMENTS
In the event that an employee enrolls in the Benefit Plan after the
first day of a month, no fee shall be due to Company for that month. However, if
an Employee dis-enrolls from the Benefit Plan after the first day of a month, a
full months fee shall be due to Company for that month.
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V. FEE SCHEDULE CHANGES
The fee schedule (as shown in Exhibit 1) is subject to three percent
(3%) annual increase on each anniversary of this Agreement, Further, the parties
hereby agree to engage in good faith negotiations to make reasonable adjustments
to the fees payable hereunder during the sixty (60) day period prior to each
sale of an operating subsidiary (or substantially all its assets) and during the
sixty (60) days prior to the consummation of any plan that would assign this
Agreement to any reorganized Fitzgeralds or any liquidating trust or similar
entity formed in Fitzgeralds' currently pending bankruptcy cases.
VI. ELIGIBILITY
Eligible employees and all eligible family members shall be those
persons who meet the criteria set forth in the Benefit Plan (see Exhibit 2).
VII. MEMBER EFFECTIVE DATES
Subject to Client's payment of applicable monthly fees, and other
provisions of the Agreement, the special services to be provided under the
Agreement shall become effective for Plan Participant(s) as set forth in the
Benefit Plan.
VIII. INELIGIBLE MEMBERS
If, upon a Plan Participant becoming ineligible, Client fails to notify
the Company of such Plan Participant's ineligibility and Client has made or
continues to make the fee payments specified herein for such Plan Participant,
such fee payment(s) will be credited by the Company to the Client, provided the
Client gives the Company notice of the ineligibility no later than sixty (60)
days after the date eligibility ceased and the Company has not paid claims for
services for the Plan Participant after the member's eligibility ceased and
before the Company received timely notice of ineligibility. In no event will
fees be refunded or credited to Client for any period prior to sixty (60) days
from the date the Company is notified that a Plan Participant was ineligible.
IX. SCOPE OF RELATIONSHIP
A. The Company shall be entitled to rely, to the extent reasonable,
upon any written or oral communication of the Client, and the agents
and employees thereof, which are believed by the Company to be genuine
and to have been presented by a person having the apparent authority to
do so.
B. The Agreement is between the Company and Client and does not create
any rights or legal relationships between the Company and any of the
Plan Participants or beneficiaries under the Benefit Plan.
X. RESPONSIBILITIES OF THE CLIENT
A. Furnish to the Company on a monthly basis, on Company approved
forms, by electronic transmission, or via the internet, such
information as might reasonably be required by the Company for the
administration of the program and coverage provided hereunder,
including any change in a Plan Participant's eligibility status. In
addition, the Company may, at reasonable times, examine Client's
records or Benefit Plan's pertinent records to verify eligibility
listings and fee payments hereunder.
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B. Distribute to Plan Participants and Providers at Client's expense,
if agreed upon in advance and included in administration cost, such
notices, identification cards, and any other materials as may be
reasonably requested by Company.
C. Furnish all membership change notifications to the Company on forms
approved by the Company, or via Internet access to MemberLink, if
applicable.
D. Fund covered medical, dental, pharmacy or vision claims for
terminated Plan Participants with dates of service within the period
where administrator has not been notified of the employee's termination
with the Company.
E. Be the final arbiter as to the interpretation of the Benefit Plan
(Exhibit 2), and as to the payment of benefits thereunder. Company
shall advise and consult with the Client when an extraordinary benefit
matter arises under the Benefit Plan.
F. Client agrees to indemnify and hold harmless the Company from any
lawsuit brought to recover a benefit alleged to be payable under the
Plan, where Client directed the Company in writing not to pay the claim
for such benefit, contrary to the written recommendation of the Company
that such claim was covered under both the terms of the Plan and the
Client's stop-loss coverage. Company agrees to indemnify, defend and
hold Client harmless from all claims, demands, costs, fees (including
reasonable attorneys' fees), judgments and liability asserted against
Client by a third party, which arises out of the negligence, gross
negligence or willful misconduct of the Company in the performance or
non-performance of this Agreement.
G. If the Client chooses to have drugs paid through the Prescription
Drug Program, Client agrees to pay any and all covered prescription
charges for valid covered members of the plan for prescriptions
dispensed in connection with the operation of the Prescription Drug
Program within fifteen (15) days after receipt of Prescription Drug
invoice.
H. Xxxx negotiation service is included service provided to the Client.
Client agrees to use Company as its exclusive negotiator of savings
discounts with each Non-Network Provider on a per case basis for health
care services and benefits to which Plan Participants are entitled
under the terms of the applicable Employee Benefits Plan.
i. On each business work day Company is to provide
information listing each Non-Network Provider Case for
which Company is to negotiate a savings discount.
ii. Client agrees to pay claims, in accordance with the
terms negotiated by the Company, and agreed to in
advance with each Non-Network Provider.
I. To implement the Plan, Client will establish a special account at a
financial institution to be selected at the sole discretion of the
Client. Benefits under the Plan will be paid by checks drawn by the
Company against that special account. Client funds in the special
account shall, to the fullest extent permitted by law, be and remain
assets of the Client and not the Plan.
J. Client will make deposits into the special bank account of such
amounts and at such intervals as required to discharge the Client's
liabilities under the Benefit Plan.
K. The identification of the special bank account, the nature and
frequency of reports on the activity of the account, details regarding
the mechanics of processing individual checks drawn against the account
and information to appear on such checks, and the retention of
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accepted checks, will be implemented by agreement between Client, the
Company, and the financial institutions selected.
L. During the term of this Agreement, Client will provide the Company
with the statistical information reasonably necessary for the
administration of the Plan in accordance with the provisions of this
Agreement. This information will be provided in such form and at such
intervals as are acceptable to the Client and the Company.
M. The Client shall establish and maintain a procedure by which the
Plan Participant has an opportunity to appeal a denied claim to the
Employee Benefit Plan. The procedure shall include the following
provisions:
1. The Plan Participant will have sixty (60) days
after receipt of written notification of denial
of a claim to request review of the decision.
2. A decision will be made upon sixty (60) days
from receipt by the Employee Benefit Plan for a
request for review, unless special
circumstances require an extension of time for
processing, in which case a decision shall be
rendered as soon as possible, but not later
than one hundred twenty (120) days after
receipt of a request for review.
3. The decision on review shall be in writing and
shall include specific reasons for the
decision, including specific references to the
pertinent Plan provisions on which the decision
is based.
4. Requests for appeal which do not comply with
this procedure and time limitations will not be
considered, except in cases of extraordinary
circumstances.
XI. DUTIES OF THE COMPANY
A. Administrative Services
a. Prepare and furnish the following reports summarizing
the financial experience of the Plan:
1. Bi-weekly or weekly summary of checks drawn,
dependent on the Client's selection of interval
for check printing.
2. Monthly listing of checks drawn, amount of
checks voided, refunds and checks paid.
3. Monthly and annual summaries of checks not
presented for payment, including checks that
were canceled.
4. Annual claim totals by line of coverage.
b. Assist in the preparation of Schedule A of IRS Form 5500
requirements.
c. Assist in establishing banking arrangements to provide
for the payment of benefits under the Plan. Client is
required to furnish their own account for payment of
benefits. Should this not be accomplished, and a
fiduciary account be necessary per NRS 683A.0877,
withdrawals be will handled per the following:
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1. All insurance charges and premiums collected by
the Company on behalf of an insurer and return
premiums received from an insurer are held by
the administrator in a fiduciary capacity.
2. Money must be remitted within fifteen (15) days
to the person or persons entitled to it, or be
deposited within fifteen (15) days in one or
more fiduciary accounts established and
maintained by the administrator in a bank,
credit union or other financial institution in
Nevada. The fiduciary accounts must be separate
from the personal or business accounts of the
administrator.
3. If charges or premiums deposited in an account
have been collected for or on behalf of more
than one insurer, the Company shall cause the
bank, credit union or other financial
institution where the fiduciary account is
maintained to record clearly the deposits and
withdrawals from the account on behalf of each
insurer.
4. The Company shall promptly obtain and keep
copies of the records of each fiduciary account
and shall furnish any insurer with copies of
the records which pertain to him upon demand of
the insurer.
5. The Company shall not pay any claim by
withdrawing money from his fiduciary account in
which premiums or charges are deposited.
6. Withdrawals must be made as provided in the
agreement between the insurer and the Company
for:
(a) Remittance to the insurer.
(b) Deposit in an account maintained in the
name of the insurer.
(c) Transfer to and deposit in an account
for the payment of claims.
(d) Payment to a group policyholder for
remittance to the insurer entitled to
the money.
(e) Payment to the Company of his
commission fees or charges.
(f) Remittance of return premiums to
persons entitled to them.
7. The Company shall maintain copies of all
records relating to deposits or withdrawals
and, upon the request of an insurer, provide
the insurer with copies of those records.
d. Prepare and maintain standard administrative manuals for
benefits enrollment and administration.
e. At the Client's expense, subject to the Client's review
and prior approval, arrange for and provide the printing
of special forms utilized in connection with the
administration of the Plan. In addition, at the Client's
request provide for
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Internet access and customization of Internet site for
Client's Plan Participants, providers, and for
enrollment and membership changes.
f. The Company agrees to generate and analyze appropriate
utilization reports, (refer to Managed Care Special
Services Agreement); otherwise information from another
utilization review organization can either be entered
into our system or transmitted electronically, which
will be maintained in the ordinary course of business,
on a quarterly or monthly basis as requested for the
benefit of Client, or if so directed, a broker or Client
involved with the Benefit Plan.
g. Establish and maintain a record-keeping system
concerning the services to be performed hereunder as per
NRS 683A.0873, which requires:
1. The Company shall maintain at its principal
office adequate books and records of all
transactions between the Company, the
insurer and the insured. The books and
records must be maintained in accordance
with prudent standards of record keeping for
insurance and with regulations of the
commissioner for a period of five (5) years
after the transaction to which they
respectively relate. After the five (5) year
period, the Company may remove the books and
records from the state, store their contents
on microfilm or return them to the
appropriate insurer.
2. The commissioner may examine, audit and
inspect books and records maintained by the
Company under the provisions of this section
to carry out the provisions of NRS 679B.230
to 679B.300, inclusive.
3. The names and addresses of insured persons
and any other material, which is in the
books and records of the Company are
confidential except when used in proceedings
against the Company.
4. The insurer may inspect and examine all
books and records to the extent necessary to
fulfill all contractual obligations to
insured persons, subject to restrictions in
the written agreement between the insurer
and Company.
All such records shall be available for inspection by
Client at any time during normal business hours at the offices
of the Company in Reno, Nevada, upon at least five (5) working
days notice to the Company. Copies can be made available of
any information that is permissible under HIPPA, which
outlines the patient privacy and medical record
confidentiality protection.
h. An administrator may advertise the insurance, which he
administers, only after he receives the approval of the
insurer who underwrites the business involved. (See NRS
683A.087)
i. Upon request by Client, the Company will participate in
educational presentations to Employees and COBRA
participants and provide a representative (bi-lingual)
to assist with the presentation.
j. Provide certificate of coverage to Plan Participants who
lose coverage under the Plan during the term of this
Agreement in compliance with COBRA and the
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Health Insurance Portability and Accountability Act of
1996, as it amended ERISA.
Accept certificate of prior credible coverage from Plan
Participants and credit prior creditable coverage
against the pre-existing limitation period in the
Company's Plan, if any, in accordance with HIPAA, as it
amended ERISA. The Company will make its best efforts to
determine the validity of prior coverage, but will not
be liable to the Client, or to any person or entity, for
action taken, or coverage credited, based upon a
certificate which is later determined to be false,
fraudulent, or erroneous.
B. Technical Services
a. Furnish an estimate of the open and unreported claim
liability at the close of each twelve (12) month period.
b. Furnish annually an estimate for budget purposes of
claim costs and fees for the following twelve (12) month
Period.
C. Claim Services
a. Furnish assistance in the development of procedures to
be followed for verification of employee and dependent
coverage and for submission of claims.
b. Provide standard forms necessary for submission and
processing of claims. At the request of Client and at
Client's cost, prepare and furnish specially designed
claim forms.
c. Evaluate claims submitted, including professional
evaluation by the Company's Medical Adjudication
Department when required.
d. Compute the amounts of benefits, and prepare and furnish
to each Employee a statement of explanation of benefits
(EOB).
e. Issue checks in payment of approved claims within a
timely manner in compliance with any statutory
requirements, to include both state and federal
regulations.
f. Maintain and update statistical data that will enable
the Client to direct the Company to administer the
Plan's "eligible medical expenses" fee basis for benefit
payment.
g. Make an examination of charges for medical services that
appear excessive and when appropriate, discuss disputed
charges for medical services that appear excessive with
providers of those services.
h. Provide utilization review for appropriate authorization
in connection with the payment of benefits for medical
services, if the Plan requires, as a condition of
payment.
i. When applicable, determine the amount of Plan benefits
payable, if any, when a claimant is eligible for
Medicare benefits.
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j. Each claim paid by the administrator from money
collected for or on behalf of an insurer must be paid by
a check or draft upon and as authorized by the insurer.
(See NRS 683A.088)
k. Generate 1099 reports to the Internal Revenue Service
and send separate statements to providers of medical
services furnishing information as required by the
Internal Revenue Code and Regulations thereunder
regarding amounts paid to these providers of medical
services.
l. Maintain levels of claim processing performance in
conformance within the following standards:
1. Turnaround time on ninety percent
(90%) of all claims not to exceed
state law;
2. Financial accuracy of ninety-eight
percent (98%) (dollars paid);
3. Procedural payment accuracy of
ninety-five (95%); which includes
compliance with the Plan Document,
Managed Care Program, and Medical
Adjudication at an accuracy level of
ninety-seven (97%). Should these
levels not be met, the Company has
thirty (30) days to bring
performance back to these levels,
during this thirty (30) day period,
the Client will receive a five
percent (5%) discount on fees.
m. Make payment of claims per NRS 683A.0879 for claims
relating to health insurance coverage, which provides:
1. Except as otherwise provided in subsection
2, the Company shall approve or deny a claim
relating to health insurance coverage within
thirty (30) days after the Company receives
the claim. f the claim is approved, the
Company shall pay the claim within thirty
(30) days after it is approved. If the
approved claim is not paid within that
period, the Company shall pay interest on
the claim at the rate of interest
established pursuant to NRS 99.040 unless a
different rate of interest is established
pursuant to an express written contract
between the Company and the provider of
health care. The interest must be calculated
from thirty (30) days after the date on
which the claim is approved until the claim
is paid.
2. If the Company requires additional
information to determine whether to approve
or deny the claim, the Company shall notify
the claimant of the request for the
additional information within twenty (20)
days after he receives the claim.
3. The Company shall notify the provider of
health care of all the specific reasons for
the delay in approving or denying the claim.
The Company shall approve or deny the claim
within thirty (30) days after receiving the
additional information.
4. If the claim is approved, the Company shall
pay the claim within thirty (30) days after
it receives the additional information. If
the approved claim is not paid within that
period, the Company shall pay interest on
the claim in the manner prescribed in
subsection 1.
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5. The Company shall not request a claimant to
resubmit information that the claimant has
already provided to the Company, unless the
Company provides a legitimate reason for the
request and the purpose of the request is
not to delay the payment of the claim,
harass the claimant or discourage the filing
of claims.
6. The Company shall not pay only part of a
claim that has been approved and is fully
payable.
7. A court shall award costs and reasonable
attorney's fees to the prevailing party in
an action brought pursuant to this section.
n. Notify claimants of declined claims and the reason of
the declination using the following guidelines:
If claim is wholly or partially denied, the Company
shall furnish notice of the decision to the Plan
Participant within thirty (30) days after receipt of the
claim. Company will provide to every Plan Participant
who is denied a claim for benefits written notice
setting forth in a manner calculated to be understood by
the Plan Participant the following:
1) The specific reason or reasons for denial;
2) Specific reference to pertinent Plan
provisions on which the denial is based;
3) A description of any additional material or
information necessary for the Plan
Participant to perfect the claim and an
explanation of why such material or
information is necessary; and
4) Appropriate information as to the steps to
be taken if the Plan Participant wishes to
submit his or her claim for review.
o. Administer the coordination of benefits provisions
pursuant to the Coordination of Benefits provisions of
the Benefit Plan.
p. To the extent permitted by law and when the claimant has
furnished an appropriate authorization if required by
law, furnish to the Client copies of explanation of
benefits for claims paid and prepared for claimants, or
provide access to the website thru the Company to
provide a copy of any worksheets as requested. Also, the
Client may access "StatusLink" for verification of any
claims paid. Reprints can be obtained through the
Internet.
q. At the request of the Client and at Client's expense,
provide special claim reports, which require
programming, otherwise reports will be provided at no
additional expense.
r. At the request of the Client and at Client's expense,
participate in plan adjustments due to mergers,
spin-offs, and extensions.
s. Perform claims submission to excess loss or stoploss
carrier as outlined in the agreement between the Client
and the excess risk or stoploss carrier.
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t. If any injury or illness is caused by any third party
and the Plan Participant has a right to recover
damages from that third party, the following
procedures will be followed by the Company:
1. Company will send the Plan Participant a
letter to be signed by the Plan Participant
notifying them of their obligation to
reimburse the Plan if he/she receives
payment for medical services and supplies
from a third party suit or settlement. The
Company may recommend the Client implement
additional language to change the method of
handling third party claims, which puts the
Plan as a secondary payor after the third
party has either paid or denied liability.
2. The Company, acting on behalf of the Client,
will actively seek recovery from the Plan
Participant or third party until all
recourses except legal action have been
exhausted. The Company may be requested by
the Client to initiate court proceedings to
collect any such funds.
3. Once reimbursement is obtained, the Company
will provide it to the Client for deposit in
the Plan's fund.
u. Recoveries of overpayments to plan participants,
providers, etc., will be attempted only for claim
payments of $10 or above. Company shall have no
responsibility for such overpayments.
v. Meritage will be solely responsible for complying with
all ERISA provisions applicable to the Company in
connection with this Agreement (such provisions include,
but are not necessarily limited to as timely and
accurate payment of claims, disclosure of any
information required by ERISA and any limitations under
ERISA relating to the Company's receipt of
compensation).
w. If the Client disputes a claim payment, it will have the
right to review at any time during regular business
hours the data that supports the Company's claim
payment.
x. The Company agrees to indemnify the Client and hold the
Client harmless from and against any and all damages,
claims, lawsuits, settlements, judgments, costs,
penalties, and expenses, of any kind or nature,
including reasonable attorneys' fees, arising out of (i)
any failure by the Company to comply with any applicable
law or regulation or provision of this Agreement, (ii)
any negligence on the Company's part, or (iii) any claim
that the Client is liable for the negligence of a health
care provider with whom the Company has, or is alleged
to have, a contractual relationship.
y. The Client agrees to indemnify, defend and hold the
Company harmless from all claims, demands, costs, fees
(including reasonable attorneys' fees), judgments and
liability asserted against Client by a third party,
which arise out of negligence, gross negligence or
willful misconduct of the company in the performance or
non-performance of this Agreement. Client must provide
written notification of the claim for indemnity that has
been asserted for Company to evaluate allegations an
validity of the claim arising solely as a result of
Company's actions.
z. The Client and the Plan will not be liable for any
claims or damages that result from the Company's failure
to comply with any laws or regulations, including but
not limited to Medicare secondary payor laws or
regulations. The Company
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agrees to hold the Client harmless for any charges or
losses (including attorney's fees) that may be assessed
against the Client or incurred by the Client at any time
due to the Company's failure to comply with any laws or
regulations, including but not limited to the Medicare
secondary payor provisions, if this information is
disclosed to the Company.
aa. Notwithstanding any provisions in this Agreement to the
contrary, the Company shall at all times perform its
services under this Agreement in accordance with the
same standard of care that a prudent person acting in a
like capacity and familiar with such matters would use
in the conduct of an enterprise of like character and
with like aims, and the Company shall be liable for any
loss or damages arising out of its failure to perform in
accordance with such standard of care.
bb. The Client shall have the right, from time to time, to
audit the Company's performance under this Agreement.
Such audit shall be performed by either the Client or
its agent and such audit may utilize samples or
statistical models or audit techniques selected by the
Client or its agent. The Company shall fully cooperate
in all such audits and shall provide any information
requested by the Client or its agents in connection with
such audit.
cc. In the event of any claim or payment under the Plan for
which there may be a right of reimbursement or a right
of subrogation, the Company shall promptly notify the
Client of any such claim or payment, and the Company
will fully cooperate with the Client in enforcing such
right of reimbursement or subrogation. The Company shall
not be entitled to any compensation in connection with
such subrogation or reimbursement without the Client's
prior written agreement to a specific amount of such
compensation for a specific subrogation or reimbursement
recovery.
dd. In the event this Agreement terminates for any reason,
the Company shall fully cooperate with the Client in
transferring the claims processing function to a
successor claims processor of the Client's selection and
the Company will provide such successor claims processor
with any information necessary to achieve a smooth and
efficient transfer to the successor claims processor.
ee. ERISA shall exclusively govern and control all matters
relating to the Plan (including, but not limited to,
this Agreement) and ERISA shall supersede and preempt
any and all state laws (including but not limited to,
those of Nevada) relating to the Plan and this
Agreement.
ff. Any financial reconciliation of charges owed to the
Company under this Agreement shall be performed by the
Company no later than ninety (90) days after the term of
this Agreement in which such charges were incurred. The
Client and the Plan will not be liable for any charges
due under this Agreement not included in that
reconciliation.
gg. Any actuarial, claim, underwriting, and/or
provider-related calculations or determinations by the
Company in connection with this Agreement (including,
but not limited to, the calculation of provider
discounts, incurred claims and trend factors) will be
reasonable, in good faith, and in accordance with
generally accepted underwriting and actuarial
principles. A detailed written explanation of all such
settlements, calculations and determinations will be
provided to the Client upon the Client's written
request.
hh. Coordinate activities set forth in Exhibit 3 with Client
and correspond with the
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Plan Participants and providers of services if
additional information is deemed necessary.
ii. Provide notice to Plan Participants as to the reason(s)
for denial and provide for the review of denied
authorizations as recommended by the Company, provided,
however, that such review shall be advisory to Client in
accordance with the Agreement and shall not be deemed to
be an exercise of discretion by the Company in
accordance with the Agreement;
jj. Generate and analyze appropriate utilization reports on
a monthly or periodic basis for the benefit of Client,
or if so directed, a broker or Client involved with
Employee Benefit Plan.
kk. The Company shall provide Client with a Monthly
Negotiated Savings Discount Report containing an
itemization of each negotiated cases within ten (10)
working days following the end of the month.
XII. TERMINATION
A. The Client may terminate the Agreement for any reason by giving
ninety (90) days written notice to the Company. In such event, benefits
hereunder shall terminate for all Plan Participants as of the effective
date of termination.
B. The Agreement may be terminated by the Company upon written notice,
if default by Client is not cured thirty (30) days after notice of
default;
C. The Agreement may be terminated by the Client:
1. Upon written notice, in the event of revocation of the
Company's Certificate of Authority in Nevada; or
2. In any event of the Company's material breach of any
other terms and provisions of the Agreement, upon prior
written notice to the Company. If the breach can be
cured within thirty (30) days and is not cured within
the thirty (30) day period, the Client shall be
permitted to terminate the Agreement upon ninety (90)
days prior written notice. If the breach cannot be cured
within thirty (30) days, but the Company begins to cure
such breach within the thirty (30) period and diligently
prosecutes such cure, the Company will not be in
default. If the breach cannot be cured within the thirty
(30) days and the Company either does not begin to cure
within the thirty (30) day period, or begins to cure but
does not diligently prosecute such cure, the Client can
terminate upon ninety (90) days prior written notice.
D. In the event of termination, Company agrees to perform contracted
services for a reasonable period to include run-out claims, only
through the time period for which it receives payments.
E. In the event of termination, the Company shall have the right to
charge the Client or designee reasonable transitional fees for reports
and claims history information required by the Client or designated
third party administrator. The amount of such fees are set forth in
Exhibit 1. Such fees are subject to adjustment based upon any increases
in cost associated with producing such reports.
Page 13 of 20
XIII. GENERAL PROVISIONS
A. This Agreement shall be governed by, and shall be construed in
accordance with the laws of the State of Nevada, except as such law is
superseded by any provision of ERISA.
B. In the event the Company overpays any person entitled to benefits
under the Plan or pays benefits to any person who is not entitled to
such benefits, the Company will make a reasonable effort on the
Client's behalf to recover the overpayment, but will not be required to
initiate court proceedings, unless directed by the Client. Such
recovered amount would then be payable to the Client.
Notwithstanding the foregoing the Company will not be liable for any
overpayment or for any loss incurred by Client unless it is the direct
result of negligent, dishonest, fraudulent or criminal acts on the part
of the Company or any of its directors, officers, or employees or any
person directly engaged or retained by the Company to discharge its
obligations under this Agreement. In the event the Company and Client
cannot agree as to the nature of the conduct involving the matter under
consideration, the question regarding the nature of such conduct shall
be settled by arbitration in accordance with the Rules of the American
Arbitration Association. In the event the Company reimburses Client for
an overpayment, the Company shall be subrogated to all rights of Client
with respect to recovery of the overpayment from any person so overpaid
and Client will provide reasonable cooperation to the Company in
connection with the recovery of the overpayment.
The Company's services, obligations and responsibilities under this
Agreement are extended only to Client. The Company assumes no
obligations or responsibilities and extends no covenants, direct or
indirect, express or implied, to any participants in the Plan or to any
other person except for any obligations it may have under ERISA.
C. The Company shall not be liable for any loss resulting from the
performance of its duties hereunder, except for losses resulting
directly from:
1. Negligent or willful misconduct of the Company including
the failure of the Company to follow the written
directions of Client; or
2. Negligent, fraudulent or criminal acts of the agents or
employees of the Company whether acting alone or in
concert with others.
D. The Company shall maintain with a Best Rated A+ carrier adequate
Error and Omissions coverage, and shall provide at the request of the
Client evidence of the coverage.
XIV. ENTIRE AGREEMENT
This Agreement together with its Exhibits, and the individual
applications to the extent as required by the Plan, of the Employees and Covered
Family Members, to the extent required and covered under the Plan, if any,
together with the Claims Processing and Managed Care Services Contract, the
Liability Claims Investigation, Adjustment and Management Agreement, the Workers
Compensation Service Agreement, and the Consulting Contract (this Agreement and
such agreements, collectively, the "Risk Management Contracts"), constitute the
entire agreement between the parties regarding the special services described.
XV. AMENDMENTS AND WAIVERS
Any amendments to the Agreement shall be in writing and must be
approved and executed by the President or a Vice-President or Officer of the
Client and the Company. No agent of the Client or
Page 14 of 20
Company has the authority to change the Agreement, waive any of its
provisions or restrictions or extend the time for making payment.
XVI. CLERICAL ERROR
Clerical error, whether of the Client or the Company in keeping any
record pertaining to the services under the Agreement, will not invalidate the
Agreement.
XVII. NOTICE
(i) Any notice hereunder to be given to Client shall be addressed to:
President Copy to General Counsel
Fitzgeralds Gaming Corporation Fitzgeralds Gaming Corporation
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000 Xxx Xxxxx, Xxxxxx 00000
General Manager General Manager
Fitzgeralds Reno, Inc Fitzgeralds Las Vegas, Inc
X.X. Xxx 00000 000 Xxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000 Xxx Xxxxx, Xxxxxx 00000
General Manager General Manager
000 Xxxx Xxxxxx LLC Fitzgeralds Mississippi, Inc.
000 Xxxxxxx Xxxxxx 000 Xxxxx Xxxx
X.X. Xxx X Xxxxxxxxxxxxx, Xxxxxxxxxxx 00000
Black Xxxx, Xxxxxxxx 00000
(ii) Any notice hereunder to be given to the Company shall be addressed
to:
PRESIDENT
Meritage Employers Services, LLC
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxx, Xxxxxx 00000
XVIII. BANKRUPTCY COURT APPROVAL
Company acknowledges and understands that the Client and each of the
operating subsidiaries commenced cases under Chapter 11 of the United States
Bankruptcy Code on December 5, 2000 and that such proceedings are still pending.
Company further acknowledges and understands that this Agreement shall not be
effective unless and until approved by the Bankruptcy Court.
Page 15 of 20
The Company agrees that this Agreement may be assigned by the Client to
any liquidating trust or similar entity formed to effect the liquidation of
Fitzgeralds, and hereby consents and agrees not to object to any assumption and
assignment of this Agreement to such an entity.
XIX. DISPUTES
If a dispute or grievance between the parties arises with respect to
the obligations of the parties under this Agreement or as a result of this
Agreement, and such dispute or grievance cannot be resolved in an informal
fashion, the parties hereby agree that all disputes arising our of or related to
this Agreement shall be subject to the exclusive jurisdiction of the United
States Bankruptcy Court for the District of Nevada, and each hereby waives trial
by jury and any assertion that such dispute is a non-core matter.
XX. REGULATORY REQUIREMENTS
Company acknowledges and agrees that Client is subject to the licensing
and regulatory control of the Nevada Gaming Control Board and various other
state, county and city gaming regulatory enforcement agencies (collectively the
"Gaming Authorities"). Said Gaming Authorities may request or require the Client
to obtain and report certain information regarding Company and its principals.
To the extent so required, Company agrees to fully and promptly cooperate and
comply with such requests for information, as authorized by the Client.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
FITZGERALDS GAMING CORPORATION MERITAGE EMPLOYER
SERVICES, LLC
/s/ XXXXXX X. XXXXXXXX /s/ XXXXXXXX XXXXXX
------------------------- ----------------------------
Xxxxxx X. Xxxxxxxx Xxxxxxxx Xxxxxx
President and CEO President
FITZGERALDS RENO, INC. FITZGERALDS LAS VEGAS, INC.
/s/ MAX L. PAGE /s/ XXXXXXX XXXXXX
------------------------- ----------------------------
Max L. Page Xxxxxxx Xxxxxx
Exec. Vice President and Vice President
General Manager and General Manager
FITZGERALDS MISSISSIPPI, INC. 000 XXXX XXXXXX, LLC
/s/ XXXXXXX XXXXXXXX /s/ XXX XXXXXXX
------------------------- ----------------------------
Page 16 of 20
Xxxxxxx Xxxxxxxx Xxx Xxxxxxx
Vice President and General Manager Vice President and General Manager
Page 17 of 20
EXHIBIT 1
Monthly Fee per Eligible Employee $12.00
2001 2002 2002 SERVICES ACCESSED
------ ------ ------ -------------------
Medical Claims WITH MULTIPLE
Administration $12.00 $12.60 YEAR X
CONTRACT
$12.00
---------------------------- ----------------- ---------------- ------------------ ----------------------
Dental Claims $2.00 $2.10 $2.00 X
Administration
---------------------------- ----------------- ---------------- ------------------ ----------------------
Flex Claims per enrolled $5.00 $5.00 $5.00 X
participant
---------------------------- ----------------- ---------------- ------------------ ----------------------
Pharmacy and Inc X X X
Vision Claims
Administration
---------------------------- ----------------- ---------------- ------------------ ----------------------
Managed Care Claims $2.00 $2.10 $2.00 X
Administration
---------------------------- ----------------- ---------------- ------------------ ----------------------
COBRA Notification Inc. X X X
---------------------------- ----------------- ---------------- ------------------ ----------------------
HIPAA Notification Inc. X X X
---------------------------- ----------------- ---------------- ------------------ ----------------------
CONTRACTED RATES
------------------------------------------------------------------------------
HEALTH BENEFITS
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Properties Covered Lives Monthly Annual
------------------------------------------------------------------------------
Black Hawk 240 3,699 44,387
------------------------------------------------------------------------------
Las Vegas 391 6,026 72,313
------------------------------------------------------------------------------
Reno 430 6,627 79,526
------------------------------------------------------------------------------
Tunica 610 9,401 112,816
------------------------------------------------------------------------------
Corporate 16 247 2,959
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Totals 1687 $ 26,000 $312,001
------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
CONTRACTED RATES BLACK HAWK LAS VEGAS RENO TUNICA CORPORATE TOTALS TOTALS
ANNUALIZED WITH
ABOVE NUMBER OF
COVERED LIVES ANNUAL MONTHLY
---------------------------------------------------------------------------------------------------------------------------
Employee Benefits 44,387 72,313 79,526 112,816 2,959 312,001 $26,000
---------------------------------------------------------------------------------------------------------------------------
Set-up Fee: Defer $5,000 set up fee on the following basis;
*Internet Access, laser checks and EOB costs will be discussed with client
examples of services supplied with proposal.
Page 18 of 20
Run-Out Claims. In the event of termination of this contract, the following
guidelines for processing of run-out claims apply. Run-out means any claim for a
date of service which occurred while the Agreement was in effect but not
processed until after the Agreement has been terminated. Run-out services begin
on _______________ .
The fee for processing run-out claims is $5.00 per claim. Such charge to apply
separately to any duplicate claims processed. Company will xxxx the Client for
the processing of run-out claims on a monthly basis. Payment for such processing
will be due in fifteen (15) days after the date the xxxx is received.
Transitional Fees. In the event of termination, there will be a charge of
mutually negotiated for any reports required.
Conversion of Data from another Administrator. The cost of conversion will be
the direct cost from RIMS to convert the data, or should your previous TPA be
able to provide the data in the format required by RIMS the cost of the data
restoration will be billed directly to the Client.
EXAMPLE 1
The Agreement with the Client continues for 12 months based on the contractual
agreed Rates and number of employees covered results in the following incurred
by Meritage on behalf of the Client:
Property Number of EES Annual Charges
Black Hawk 200 38,400
Las Vegas 300 57,600
Reno 450 86,400
Tunica 600 115,200
Corporate 10 1,920
-------------- --------------
TOTALS 1560 $ 299,520
==== =========
Meritage remits ($12,481) to Client. Client may choose to have next period fees
offset by the amount due from Meritage.
EXAMPLE 2
The Agreement with the Client continues for 8 months and is terminated upon the
sale of the assets of the Client with the following incurred by Meritage on
behalf of the Client:
Property # ees Eight Months
Black Hawk 200 25,600
Las Vegas 200 25,600
Reno 300 38,400
Tunica 330 42,240
Corporate 10 1,280
---- ---------
TOTALS 1040 $ 199,680
==== =========
THE CONTRACT BILLING FOR $26,000 WOULD INCLUDE PAYMENT FOR 8 MONTHS FEES PAID,
THERE WOULD BE A $8,320 OVERPAYMENT BY THE CLIENT.
There would be no adjustment to the monthly fee paid since the agreement was
terminated by the Client prior to 12 months.
Page 19 of 20
EXHIBIT 2
SPECIAL SERVICES AGREEMENT
ATTACHED
EMPLOYEE BENEFIT PLAN DESCRIPTIONS
Page 20 of 20
EXHIBIT 3
SPECIAL ADMINISTRATIVE SERVICES FOR EMPLOYEE BENEFIT PLAN
A. SERVICES Services Accessed
a. Prior authorization $2.00 PER COVERED EMPLOYEE/MONTH
-----------------------------------
i. Prior authorization of Inpatient Surgery
ii. Prior authorization of Outpatient Surgery
iii. Prior authorization of Major diagnostic & therapeutic services
iv. Determination of Medical Necessity for all of the above
v. Assign Initial Length of Stay
vi. Second Opinion Program
vii. Mental Health Services Review
viii. Reporting Analysis and Consultation
b. Concurrent Inpatient Review INC IN ABOVE $2.00/ EMPLOYEE/MONTH
---------------------
i. Determination of Medical Necessity During Inpatient Stay
ii. Assign & Monitor Length of Stay
iii. Discharge Planning
iv. Large Case Management/Home Health/Durable
v. Medical equipment management
vi. Second Opinion Program
vii. Medical record review of Large cases or questionable claims
viii. Xxxx Negotiation Services
c. Review of Prescription Drugs and prescribing patterns
i. Cost analysis
ii. Alternative medication recommendations
B. ADDITIONAL SERVICES
a. Claims Management
b. Employee Health Program
c. Medical Peer Review
d. Benefit Design
e. Consulting Services
C. CLAIMS RE-PRICING
Claims repricing is included in claims fees. Any claim to be priced is to be
delivered or sent to:
Meritage Employer Services, LLC Attention: Health Claims
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxx, Xxxxxx 00000
D. SPECIAL ADMINISTRATIVE SERVICES FOR EMPLOYEE BENEFIT PLAN
A. Xxxx Negotiation Services/ Minimum Case Contracts
Company shall undertake the negotiation of Plan Participant case (discounts for
Covered Services rendered by Non-network Providers as follows:
a. Services rendered by each Non-Network Provider that exceed FIVE hundred
dollars {$500) or when Plan Participant receives prior authorization for
outpatient courses of treatment (i.e.-. angioplasty, chemotherapy, radiation
therapy, rehabilitation, home health, renal dialysis, radiation therapy, etc,)
b. Facility (i.e.. Hospital, ambulatory surgery center, extended care facility,
mental health and/or substance abuse facility, etc.) charges that exceed one
thousand five hundred dollars ($1,500.00) or when a Plan Participant receives
prior authorization for admittance to a facility for a length of stay greater
than two (2) days.
Payment Client agrees to reimburse Company at the rate of the billed amount
less the actual discount negotiated off of the Non-Network Providers billed
charges. The Company will not accept any reimbursement for any negotiated
discounts, without the prior written approval of the Client.
Page 21 of 20
