AGREEMENT

Agency Agreement

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WELLCARE HEALTH PLANS, INC.

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Title: AGREEMENT
Date: 7/17/2008
Industry: INSACC Sector: FINANC

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Back to Form 8-K

Exhibit 10.1

APPENDIX X

[Amendment Number 3]

Agency Code 12000	Contract Number CO21236
Period 1/1/08 — 12/31/09	Funding Amount for Period Based on approved capitation rates

This is an AGREEMENT between THE STATE OF NEW YORK, acting by and through The New York State Department of Health, having its principal office at Corning Tower, Room 2001, Empire State Plaza, Albany NY 12237, (hereinafter referred to as the STATE), and WellCare of New York, Inc., (hereinafter referred to as the CONTRACTOR), to modify Contract Number CO21236 as set forth below as set forth below and to extend the contract period through December 31, 2009. The effective date of these modifications is January 1, 2008.

Amend Section 19.1 of the "Table of Contents for Model Contract," to read, "Section 19.1 Maintenance of Contractor Performance Records, Records Evidencing Enrollment Fraud and Documentation Concerning Duplicate CINs."

Amend Section 3.6, "SDOH Right to Recover Premiums," to read as follows:

3.6 SDOH Right to Recover Premiums

The parties acknowledge and accept that the SDOH has a right to recover premiums paid to the Contractor for Enrollees listed on the monthly Roster who are later determined for the entire applicable payment month to have been disenrolled from the Contractor's Medicare Advantage Product; to have been in an institution; to have been incarcerated; to have moved out of the Contractor's service area subject to any time remaining in the Enrollee's Guaranteed Eligibility period; or to have died. In any event, the State may only recover premiums paid for Medicaid Enrollees listed on a Roster if it is determined by the SDOH that the Contractor was not at risk for provision of Benefit Package services for any portion of the payment period. Notwithstanding the foregoing, the SDOH always has the right to recover duplicate Medicaid Advantage premiums paid for persons enrolled under more than one Client Identification Number (ON) in the Contractor's Medicaid Advantage product whether or not the Contractor has made payments to providers.

Amend Section 19.1, "Maintenance of Contractor Performance Records," to read as follows:

19.1

Maintenance of Contractor Performance Records, Records Evidencing Enrollment Fraud and Documentation Concerning Duplicate ClNs

The Contractor shall maintain and shall require its subcontractors, including its Participating Providers, to maintain appropriate records relating to Contractor performance under this Agreement, including:

records related to services provided to Enrollees, including a separate Medical Record for each Enrollee;

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ii)

all financial records and statistical data that SDOH and DHHS and any other authorized governmental agency may require, including books, accounts, journals, ledgers, and all financial records relating to capitation payments, third party health insurance recovery, and other revenue received, any reserves related thereto and expenses incurred under this Agreement;

iii)

all documents concerning enrollment fraud or the fraudulent use of any CIN;

iv)

all documents concerning duplicate CINs;

appropriate financial records to document fiscal activities and expenditures, including records relating to the sources and application of funds and to the capacity of the Contractor or its subcontractors, including its Participating Providers, if applicable, to bear the risk of potential financial losses.

The record maintenance requirements of this Section shall survive the termination, in whole or in part, of this Agreement.

Amend Section 19.3, "Access to Contractor Records," to read as follows:

	19.3	Access to Contractor Records
		The Contractor shall provide SDOH, the Comptroller of the State of New York, DHHS, the Comptroller General of the United States, and their authorized representatives with access to all records relating to Contractor performance under this Agreement for the purposes of examination, audit, and copying (at reasonable cost to the requesting party). The Contractor shall give access to such records on two (2) business days prior written notice, during normal business hours, unless otherwise provided or permitted by applicable laws, rules, or regulations. Notwithstanding the foregoing, when records are sought in connection with a "fraud" or "abuse" investigation, as defined respectively in 10 NYCRR §98.1.21 (a) (1) and (a) (2), all costs associated with production and reproduction shall be the responsibility of the Contractor.

Amend Section 22.7 "Recovery of Overpayments to Providers" to read as follows:

	22.7	Recovery of Overpayments to Providers

		Consistent with the exception language in Section 3224-b of the Insurance Law, the Contractor shall have and retain the right to audit participating providers' claims for a six year period from the date the care, services or supplies were provided or billed, whichever is later, and to recoup any overpayments discovered as a result of the audit. This six year limitation does not apply to situations in which fraud may be involved or in which the provider or an agent of the provider prevents or obstructs the Contractor's auditing.

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Amend Section 31.2 "Indemnification by SDOH" to read as follows:

	31.2	Indemnification by SDOH

		Subject to the availability of lawful appropriations as required by State Finance Law § 41 and consistent with § 8 of the State Court of Claims Act, SDOH shall hold the Contractor harmless from and indemnify it for any final judgment of a court of competent jurisdiction to the extent attributable to the negligence of SDOH or its officers or employees when acting within the course and scope of their employment. Provisions concerning the SDOH's responsibility for any claims for liability as may arise during the term of this Agreement are set forth in the New York State Court of Claims Act, and any damages arising for such liability shall issue from the New York State Court of Claims Fund or any applicable, annual appropriation of the Legislature for the State of New York.

The attached Appendix D, "New York State Department of Health Medicaid Advantage . Marketing Guidelines," is substituted for the period beginning January 1, 2008.

The attached Appendix H, "New York State Department of Health Guidelines for the Processing of Medicaid Advantage Enrollments and Disenrollments" is substituted for the .period beginning January 1, 2008.

The attached Appendix K, "Medicare and Medicaid Advantage Products and Non-Covered Services," is substituted for the period beginning January 1, 2008.

10.

The attached Appendix L, "Approved Capitation Payment Rates," is substituted for the period beginning January 1, 2008.

All other provisions of said AGREEMENT shall remain in full force and effect.

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IN WITNESS WHEREOF, the parties hereto have executed or approved this AGREEMENT as of the dates appearing under their signatures.

CONTRACTOR SIGNATURE	STATE AGENCY SIGNATURE
By: /s/ Heath Schiesser	By: /s/ Vallencia Lloyd
Heath Schiesser (Print name)	Vallencia Lloyd___ (Print name)
Title: President and CEO	Title: Deputy Director, DMC
Date: 5/12/08	Date: 6/3/08
	State Agency Certification: In addition to the acceptance of this contract, I also certify that original copies of this signature page will be attached to all other exact copies of this contract.

STATE OF FLORIDA

County of Hillsborough

On the 12 th day of May 20008, before me personally appeared Heath Schiesser, to me known, who being by me duly sworn, did depose and say that he resides at Tampa, Florida, that he is the President & CEO o WellCare of New York, Inc., the corporation described herein which executed the foregoing instrument; and that he/she signed his/her name thereto by order of the board of the directors of said corporation.

/s/ Sara Gallo

(Notary)

Approved: / s/ Lorraine Remo ATTORNEY GENERAL	Approved: /s/ name illegible Thomas P. DiNapoli STATE COMPTROLLER
Title: Associate Attorney	Title:
Date: June 10, 2009	Date: June 17, 2008

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Appendix D

New York State Department of Health

Medicaid Advantage Marketing Guidelines

Medicaid Advantage Contract Amendment

Appendix D

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D-1

MEDICAID ADVANTAGE MARKETING GUIDELINES

I. Purpose

The purpose of these guidelines is to provide an operational framework for the Medicaid managed care organizations (MCOs) in the development of marketing materials and the conduct of marketing activities for the Medicaid Advantage Program. The marketing guidelines set forth in this Appendix do not replace the CMS marketing requirements for Medicare Advantage Plans; they supplement them.

II. Marketing Materials

A. Definitions

Marketing materials generally include the concepts of advertising, public service announcements, printed publications, and other broadcast or electronic messages designed to increase awareness and interest in a Contractor's Medicaid Advantage product. The target audience for these marketing materials is Eligible Persons as defined in Section 5.1 of this Agreement living in the defined service area.

For purposes of this Agreement, marketing materials include any information that references the Contractor's Medicaid Advantage Product and which is intended for distribution to Dual Eligibles, and is produced in a variety of print, broadcast, and direct marketing mediums. These generally include: radio, television, billboards, newspapers, leaflets, informational brochures, videos, telephone book yellow page ads, letters, and posters. Additional materials requiring marketing approval include a listing of items to be provided as nominal gifts or incentives.

B. Marketing Material Requirements

In addition to meeting CMS' Medicare Advantage marketing requirements and guidance on marketing to individuals entitled to Medicare and Medicaid:

Medicaid Advantage marketing materials must be written in prose that is understood at a fourth-to sixth-grade reading level except when the Contractor is using language required by CMS, and must be printed in at least twelve (12) point font.

The Contractor must make available written marketing and other informational materials (e.g., member handbooks) in a language other than English whenever at least five percent (5%) of the Prospective Enrollees of the Contractor in any county of the service area speak that particular language and do not speak English as a first language. SDOFI will inform the LDSS and LDSS will inform the Contractor when the 5% threshold has been reached. Marketing materials to be translated include those key materials, such as informational brochures, that are produced for routine distribution, and which are included within the MCO's marketing plan. SDOH will determine the need for other than English translations based on county specific census data or other available measures.

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The Contractor shall advise potential Enrollees, in written materials related to enrollment, to verify with the medical services providers they prefer, or have an existing relationship with, that such medical services providers participate in the selected managed care provider's network and are available to serve the participant.

C. Prior Approvals

The CMS and SDOH will jointly review and approve Medicaid Advantage marketing videos, materials for broadcast (radio, television, or electronic), billboards, mass transit (bus, subway or other livery) and statewide/regional print advertising materials in accordance with CMS timeframes for review of marketing materials. These materials must be submitted to the CMS Regional Office for review. CMS will coordinate SDOH input in the review process just as SDOH will coordinate LDSS input in the review process.

CMS and SDOH will jointly review and approve the following Medicaid Advantage marketing materials:

Scripts or outlines of presentations and materials used at health fairs and other approved types of events and locations;

All pre-enrollment written marketing materials – written marketing materials include brochures and leaflets, and presentation materials used by marketing representatives;

All direct mailing from the Contractor specifically targeted to the Medicaid market.

The Contractor shall electronically submit all materials related to marketing Medicaid Advantage to Dually Eligible persons to the CMS Regional Office for prior written approval. The CMS Medicare Regional Office Plan Manager will be responsible for obtaining SDOH input in the review and approval process in accordance with CMS timeframes for the review of marketing materials. Similarly, SDOH will be responsible for obtaining LDSS input in the review and approval process.

The Contractor shall not distribute or use any Medicaid Advantage marketing materials that the CMS Regional Office and the SDOH have not jointly approved, prior to the expiration of the required review period.

Medicaid Advantage Contract Amendment

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Approved marketing materials shall be kept on file in the offices of the Contractor, the LDSS, the SDOH, and CMS.

D. Dissemination of Outreach Materials to LDSS

Upon request, the Contractor shall provide to the LDSS and/or Enrollment Broker, sufficient quantities of approved Marketing materials or alternative informational materials that describe coverage in the LDSS jurisdiction.

The Contractor shall, upon request, submit to the LDSS or Enrollment Broker, a current provider directory, together with information that describes how to determine whether a provider is presently available.

III. Marketing Activities

A. General Requirements

The Contractor must follow the State's Medicaid marketing rules and the requirements of 42 CFR 438.104 to the extent applicable when conducting marketing activities that are primarily intended to sell a Medicaid managed care product (i.e., Medicaid Advantage). Marketing activities intended to sell a Medicaid managed care product shall be defined as activities which are conducted pursuant to a Medicaid Advantage marketing program in which a dedicated staff of marketing representatives employed by the Contractor, or by an entity with which the Contractor has subcontracted, are engaged in marketing activities with the primary purpose of enrolling recipients in the Contractor's Medicaid Advantage product.

Marketing activities that do not meet the above criteria shall not be construed as having a primary purpose of intending to sell a Medicaid managed care product and shall be conducted in accordance with Medicare Advantage marketing requirements. Such activities include but are not limited to plan sponsored events in which marketing representatives not dedicated to the marketing of the Medicaid Advantage product explain Medicare products offered by the Contractor as well as the Contractor's Medicaid Advantage product.

B. Marketing at LDSS Offices

With prior LDSS approval, MCOs may distribute CMS/SDOH approved Medicaid Advantage marketing materials in the local social services district offices and facilities.

C. Responsibility for Marketing Representatives

Individuals employed by the Contractor as marketing representatives and employees of marketing subcontractors must have successfully completed the Contractor's training

program including training related to an Enrollee's rights and responsibilities in Medicaid Advantage. The Contractor shall be responsible for the activities of its marketing

representatives and the activities of any subcontractor or management entity.

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D. Medicaid Advantage Specific Marketing Requirements

The requirements in Section D apply only if marketing activities for the Medicaid Advantage Program are conducted pursuant to a Medicaid Advantage marketing program in

which a dedicated staff of marketing representatives employed by the Contractor or by an entity with which the Contractor has a subcontract are engaged in marketing

activities with the sole purpose of enrolling recipients in the Contractor's Medicaid Advantage product.

Approved Marketing Plan

The Contractor must submit a plan of Medicaid Advantage Marketing activities that meet the SDOH requirements to the SDOH.

The SDOH is responsible for the review and approval of Medicaid Advantage Marketing plans, using a SDOH and CMS approved checklist.

Approved Marketing plans will set forth the terms and conditions and proposed activities of the Medicaid Advantage dedicated staff during the contract period. The following must be included: description of materials to be used, distribution methods; primary types of marketing locations and a listing of the kinds of community service events the Contractor anticipates sponsoring and/or participating in during which it will provide information and/or distribute Medicaid Advantage marketing materials.

An approved marketing plan must be on file with the SDOH and each LDSS in its contracted service area prior to the Contractor engaging in the Medicaid Advantage specific marketing activities.

The plan shall include stated marketing goal and strategies, marketing activities, and the training, development and responsibilities of dedicated marketing staff.

The Contractor must describe how it is able to meet the informational needs related to marketing for the physical and cultural diversity of its potential membership. This may include, but not be limited to, a description of the Contractor's other than English language provisions, interpreter services, alternate communication mechanisms including sign language, Braille, audio tapes, and/or use of Telecommunications Devices for the Deaf (TTY) services.

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The Contractor shall describe measures for monitoring and enforcing compliance with these guidelines by its Marketing representatives including the prohibition of door to door solicitation and cold-call telephoning; a description of the development of pre-enrollee mailing lists that maintains client confidentiality and honors the client's express request for direct contact by the Contractor; the selection and distribution of pre-enrollment gifts and incentives to prospective enrollees ; and a description of the training, compensation and supervision of its Medicaid Advantage dedicated Marketing representatives.

	2.	Prohibition of Cold Call Marketing Activities
		Contractors are prohibited from directly or indirectly, engaging in door to door, telephone, or other cold-call marketing activities.

	3.	Marketing in Emergency Rooms or Other Patient Care Areas
		Contractors may not distribute materials or assist prospective Enrollees in completing Medicaid Advantage application forms in hospital emergency rooms, in provider offices, or other areas where health care is delivered unless requested by the individual.

	4.	Enrollment Incentives
		Contractors may not offer incentives of any kind to Medicaid recipients to join Medicaid Advantage. Incentives are defined as any type of inducement whose receipt is contingent upon the recipients joining the Contractor's Medicaid Advantage product.

E. General Marketing Restrictions

The following restrictions apply anytime the Contractor markets its Medicaid Advantage product:

	1.	Contractors are prohibited from misrepresenting the Medicaid program, the Medicaid Advantage Program or the policy requirements of the LDSS or SDOH.

	2.	Contractors are prohibited from purchasing or otherwise acquiring or using mailing lists that specifically identify Medicaid recipients from third party vendors, including providers and LDSS offices, unless otherwise permitted by CMS. The Contractor may produce materials and cover their costs of mailing to Medicaid recipients if the mailing is carried out by the State or LDSS, without sharing specific Medicaid information with the Contractor.

	3.	Contractors may not discriminate against a potential Enrollee based on his/her current health status or anticipated need for future health care. The Contractor may not discriminate on the basis of disability or perceived disability of any Enrollee or their family member. Health assessments may not be performed by the Contractor prior to enrollment. The Contractor may inquire about existing primary care relationships of the applicant and explain whether and how such relationships may be maintained. Upon request, each potential Enrollee shall be provided with a listing of all participating providers and facilities in the MCO's network. The Contractor may respond to a potential Enrollee's question about whether a particular specialist is in the network. However, the Contractor is prohibited from inquiring about the types of specialists utilized by the potential Enrollee.

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	4.	Contractors may not require participating providers to distribute plan prepared communications to their patients, including communications which compare the benefits of different health plans, unless the materials have the concurrence of all MCOs involved, and have received prior approval by SDOH, and by CMS, if Medicare Advantage is referenced.

	5.	Contractors are responsible for ensuring that their Marketing representatives engage in professional and courteous behavior in their interactions with LDSS staff, staff from other health plans and Medicaid clients. Examples of inappropriate behavior include interfering with other health plan presentations or talking negatively about another health plan.

	6.	The Contractor shall not market to enrollees of other health plans. If the Contractor becomes aware during a marketing encounter that an individual is enrolled in another health plan, the marketing encounter must be promptly terminated, unless the individual voluntarily suggests dissatisfaction with the health plan in which he or she is enrolled.

	7.	The Contractor shall not offer compensation including salary increases or bonuses, based solely on the number of individuals enrolled by Marketing Representatives who are licensed to offer Medicare products only, including Medicaid Advantage, and who also market Medicaid, Family Health Plus and Child Health Plus. However, the Contractor may base compensation of these Marketing Representatives on periodic performance evaluations which consider enrollment productivity as one of several performance factors during a performance period, subject to the following requirements:

"Compensation" shall mean any remuneration required to be reported as income or compensation for federal tax purposes;

The Contractor may not pay a "commission" or fixed amount per enrollment;

The Contractor may not award bonuses more frequently than quarterly, or for an annual amount that exceeds ten percent (10%) of a Marketing Representative's total annual compensation;

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Sign on bonuses for Marketing Representatives are prohibited;