[Those portions of this agreement
that have been omitted and filed separately with the U.S.
Securities and Exchange Commission pursuant to HealthSpring,
Inc.’s application requesting
confidential treatment are marked “ [***] ” herein.]
AMENDED & RESTATED MANAGEMENT
SERVICES AGREEMENT
THIS AMENDED &
RESTATED MANAGEMENT SERVICES AGREEMENT (“MSA”),
effective as of January 1, 2009 (“Effective
Date”), is between Argus Health Systems, Inc., a Delaware
corporation having its principal place of business at 1300
Washington Street, Kansas City, Missouri 64105-1433
(“Argus”), and HealthSpring of Tennessee, Inc., a
Tennessee corporation; HealthSpring of Tennessee, Inc., a Tennessee
corporation d/b/a HealthSpring of Illinois; Texas HealthSpring,
LLC, a Texas limited liability company; HealthSpring Life &
Health Insurance Company, Inc., a Texas insurance company;
HealthSpring of Florida, Inc., a Florida corporation; and
HealthSpring of Alabama, Inc., an Alabama corporation (individually
and collectively referred to herein as
“Customer”).
WHEREAS ,
Customer either (a) provides plans or programs under which
eligible members (and their qualified dependents) receive certain
healthcare benefits such as prescription drugs and healthcare
related products and services, or (b) has contracted to
process or participates in providing services to plans or programs
that offer such benefits; and
WHEREAS ,
Argus has established certain databases and services that support
customer obligations in connection with such plans or programs;
and
WHEREAS ,
Customer desires to engage Argus to provide such
support.
In consideration
of the mutual promises and agreements contained in this MSA, Argus
and Customer agree as follows:
1.
DEFINITIONS . The
capitalized terms as used in this MSA shall have the meanings
stated in the body of this MSA, in Exhibit A, or in any
Addendum to this MSA.
2.
TERM . This MSA shall
remain in full force and effect for a period of three
(3) years from the Effective Date. This MSA shall
automatically renew for successive one year periods unless either
party provides written notice of its intent not to renew at least
one hundred-eighty (180) days prior to the end of the
then-current initial or renewal term.
3.
EXCLUSIVITY . During the
term of this MSA, Customer shall exclusively utilize Argus for the
type of services which the parties have agreed Argus is to provide
hereunder. Argus may provide services to other customers. The
aforementioned exclusivity shall only apply to HealthSpring product
lines or services currently under this Agreement. Exclusivity
provisions will not apply relative to (i) the addition of new
product lines, services or governmental programs that would require
processes not currently in effect between the parties without prior
mutual agreement of the parties, and (ii) HealthSpring of
Florida, Inc. except as it relates to the provision of services in
Escambia and Santa Rosa counties. Customer hereby agrees to put
forth good faith
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 1
efforts to
utilize Argus for the type of services provided hereunder that are
not covered by the exclusivity provisions noted above.
4.
ARGUS’ SPECIFIC PERFORMANCE OBLIGATIONS
. Argus shall provide to Customer
the services set forth in each Services Addendum attached hereto
from the effective date of the addendum and for the remainder of
the initial and any renewal terms of this MSA. Argus’
obligations set forth in each Services Addendum and in
Section 14 hereto (Confidentiality) constitute Argus’
Specific Performance Obligations under this MSA.
5.
INFORMATION OBTAINED THROUGH ARGUS SERVICES . Customer acknowledges and agrees that (a)
information in Argus databases is derived from third party sources
and is not independently developed by Argus, and Argus utilizes
industry materials and the advice and resources of outside vendors
and healthcare professionals to provide Argus services,
(b) the usefulness of the information provided by Argus is
necessarily limited by the amount of information received by Argus
from Customer and others, and the thoroughness and accuracy of such
information, (c) Argus’ databases do not contain all
currently available information on healthcare or pharmaceutical
practices, (d) Argus is not responsible for failing to include
information in databases that is not specifically requested by
Customer or required by this MSA, for the actions or omissions of
contributors of information to Argus or for misstatements or
inaccuracies in industry materials utilized by Argus, and
(e) all warranty disclaimers and exclusions made by
contributors of information or data to Argus shall apply to the
Argus services provided hereunder.
6. SYSTEMS,
DATA AND SECURITY .
A. Access
to Systems . With respect to each service Argus is to provide
to Customer allowing Customer access to an Argus system or
database, Argus shall provide Customer with Access Information. If
Argus requires, Customer shall inform Argus of the identity of
authorized users, of additions and deletions to the list of users,
and of access rights of individual users and shall ensure that
Access Information is not provided to users not designated to
Argus. Passwords will expire periodically, which will require entry
of a new password for each user on a regular interval defined by
Argus. Customer shall provide at its expense, the equipment,
software and communications network transmission capabilities
necessary to access Argus databases and systems.
B. Customer Data Provided for Input . If Customer is
providing data to Argus, Customer shall keep the source of all such
data. If any media furnished by Customer are damaged due to
Argus’ equipment or performance of services, Argus will
replace such media, but not the data on such media, at Argus’
expense. Argus shall not be liable for the loss of any data on
Customer media, but shall be responsible for all Customer data
created and maintained on the Argus systems including but not
limited to prior authorization data, prescription data and step
edit criteria.
C. Internet Security . Customer acknowledges that the
Internet is not a secure or reliable environment and that the
ability of Argus to deliver Internet services is dependent upon the
Internet and equipment, software, systems, data and services
provided by various telecommunications carriers, equipment
manufacturers, firewall
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 2
providers and
encryption system developers and other vendors and third-parties.
Customer acknowledges that use of the Internet in conjunction with
Argus’ services entails confidentiality and other risks that
may be beyond Argus’ reasonable control. Argus agrees to
maintain and make available written and commercially reasonable
encryption and other protocols to protect against unauthorized
interception, corruption, use of or access to Proprietary
Information that it receives and/or disseminates over the Internet
(“Internet Protocol”). Argus may, but shall not be
required to, modify the Internet Protocol from time to time to the
extent it believes in good faith that such modifications will not
diminish the security of Argus’ systems.
7.
CUSTOMER’S PAYMENT OF ARGUS’ INVOICES
. Customer acknowledges and agrees
that it has carefully reviewed Exhibit C hereto and shall pay
all charges and fees set forth therein for services Customer has
selected as of the Effective Date and for Argus’ reasonable
expenses, including without limitation those reasonable expenses
set forth in Exhibit C. Notwithstanding the foregoing, the
parties agree that Customer’s accounts payable and audit
processes may identify incorrect charges and fees, which may result
in credits to Customer as appropriate. In addition, Argus agrees to
provide Customer with a Paid Claims File (“PCT”) that
includes unaltered claims data as submitted by the Pharmacy, all
relevant PDE fields, as agreed, and all payment fields for
reconciliation of Part D claims, to accompany every invoice.
Invoices that do not have accompanying data for complete payment
and reconciliation by Customer Accounts Payable or its contractors
will not be considered payable by Customer. For services not
selected by Customer at the Effective Date but later selected by
Customer (“Additional Services”), Customer shall pay
Argus at the rates set forth on Exhibit C for such Additional
Services or at such other rates as are reflected in a modified
Exhibit C to which Argus and Customer have agreed in writing
prior to the rendering of the Additional Services.
Customer shall
pay Argus within fifteen (15) calendar days of the receipt of
each invoice (the “Invoice Payment Date”). Prior to the
application of any late charges or the event of a default as
defined under this MSA, Customer shall be entitled to a fifteen
(15) day grace period. In the event of a payment dispute
Customer shall provide adequate written notice and documentation of
such dispute to Argus no later than the Invoice Payment Date.
Customer shall work diligently with Argus to promptly resolve such
dispute. Within fifteen (15) calendar days of the resolution
of such dispute (the “Dispute Payment Date”), Customer
shall remit to Argus the agreed-upon amount. For any amounts that
are due hereunder and are not received by Argus by the Invoice
Payment Date or the Dispute Payment Date, Customer shall pay to
Argus a late charge at the lesser of one percent (1%) per month or
the maximum rate of interest allowed by law until such invoice is
paid in full. Customer acknowledges that Argus may utilize a
lockbox account to manage fees and expenses received by Customer
and that financial institutions that provide lockbox services may
refuse to review or to advise Argus of notations on payment
instruments. Customer therefore agrees not to attempt to effect an
accord or satisfaction through a payment instrument or accompanying
written communication and not to conditionally or restrictively
endorse a payment instrument, and Argus shall not be bound by any
such attempt or endorsement. Customer shall reimburse Argus for its
expenses, including attorneys’ fees, in enforcing this
Section 7 if such expenses arise as a result of fault on the
part of Customer.
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 3
8. MUTUAL
COOPERATION AND NOTICE OF ERRORS . Each party shall reasonably cooperate with the
other party during implementation of services and throughout the
term of the Agreement as necessary for the performance of the
parties’ respective obligations hereunder. As soon as
necessary for Argus to fulfill its obligations under this MSA, and
otherwise within a reasonable period of time, Customer shall
respond to any requests by Argus for information or determinations
needed by Argus to perform the services set forth herein. Customer
shall provide to Argus valid, correct, properly formatted and
transmitted data and any other information necessary for Argus to
fulfill its obligations to Customer. Argus agrees to provide to
Customer the policies and procedures for Argus testing to verify
that data provided by Customer is properly loaded and tested prior
to its implementation. When Customer and Argus have agreed that
Customer shall conduct testing of or review the testing results of
a process or method, Customer shall have an obligation to promptly
notify Argus of any error in the process or method. In the event an
error is identified in either the testing or subsequent audit or
review process Argus agrees to take prompt action to mitigate
damages from further errors and re-perform the service as provided
in Section 9.B. Customer shall advise Argus of any Argus
error, failure in performance, or inconsistency within a prompt
period of time after discovery and in any event no later than the
earlier of one year from the occurrence or sixty (60) days
after termination or expiration of the Agreement. Argus shall have
no responsibility to make adjustments with respect to and shall not
be liable for errors about which Customer failed to give such
notice to Argus.
9.
PERFORMANCE WARRANTY .
A. Warranty . Argus shall at all times use reasonable
commercial efforts to fulfill its obligations under each Services
Addendum to this MSA; provided, however, Argus’ commercial
efforts shall not be deemed unreasonable to the extent Argus’
ability to perform was affected by Customer’s breach of its
obligations hereunder or Argus was complying with Customer’s
instructions. Notwithstanding the above Argus warrants to its
actual knowledge as of the date Argus executes this MSA that the
use by Customer of the software and systems as described herein
will in no way constitute an infringement or other violation of any
copyright, trade secret, trademark, patent, invention, proprietary
information, non-disclosure, or other rights of any third party.
Argus will notify Customer if a court decides that an infringement
or other violation exists (now or later) and will take action to
mitigate damage caused by the infringement or violation.
B. Re-Performance Obligations . In the event of any
claim by Customer that Argus has not performed its obligations to
provide services as required by this MSA, the sole obligation of
Argus shall be to re-perform any service which does not conform to
this MSA at Argus’ expense, provided that such failure to
perform is not due to an act or omission by Customer.
Notwithstanding the foregoing, Customer acknowledges that certain
situations, including but not limited to, insolvency or dissolution
of a Contracted Pharmacy may preclude Argus’ ability to fully
re-perform its obligations in accordance with this MSA. In those
situations, Argus agrees to utilize best efforts in all cases to
complete its re-performance obligations within
commercially
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 4
reasonable
limits so that such obligations are re-performed to the fullest
extent possible under the circumstances.
C. Disclaimers. EXCEPT AS PR OVI DED IN THIS
SECTION 9, NOTWITHSTANDING ANY OTHER TERM OF THIS MSA, ARGUS’
SERVICES AND ALL SYSTEMS AND DATABASES DESCRIBED IN THIS MSA ARE
PROVIDED “AS-IS” ON AN “AS AVAILABLE”
BASIS, AND ARGUS SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS
AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING SERVICES PROVIDED
HEREUNDER, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND
NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE.
10.
LIMITATION OF LIABILITY .
EACH PARTY’S LIABILITY TO THE OTHER HEREUNDER SHALL IN NO
EVENT EXCEED THE ACTUAL PROXIMATE LOSSES OR DAMAGES CAUSED BY
BREACH OF THIS AGREEMENT, AND ARGUS’ AGGREGATE CUMULATIVE
LIABILITY TO ALL OF THE “CUSTOMER” ENTITIES SHALL IN NO
EVENT EXCEED THE AMOUNT SET FORTH IN EXHIBIT B. NOTWITHSTANDING ANY
TERM OF THIS MSA, IN NO EVENT WILL EITHER PARTY TO THIS MSA BE
LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL,
EXEMPLARY, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOSS OF
PROFITS) OR PUNITIVE DAMAGES ARISING FROM THE RELATIONSHIP OF THE
PARTIES OR THE CONDUCT OF BUSINESS UNDER THIS MSA (EVEN IF THE
RESPONSIBLE PARTY HAS BEEN ADVISED OF OR HAS FORESEEN THE
POSSIBILITY OF SUCH DAMAGES).
Argus services
are intended as an aid to, and not a substitute for, the knowledge,
expertise, skill and judgment of Prescribers, Pharmacies or other
healthcare professionals. Pharmacies, Prescribers, other healthcare
professionals, and Customer are individually responsible for acting
or not acting upon information generated and transmitted by Argus,
and Argus does not control or intervene in the healthcare or
Program decisions made or actions taken by Pharmacies, Prescribers,
other healthcare professionals, Customer or Members, and Argus is
not responsible therefore.
Notwithstanding
any other provision of this MSA, in no event will Argus have any
liability to Customer if Argus has not directly caused such
liability by breaching this MSA or for damages and expenses of any
kind arising from any of the following: (a) Customer’s
negligence or failure to perform its obligations in this MSA or
abide by laws and regulations applicable to Customer’s
business, (b) Customer made or directed changes or
instructions, or use of data, (c) the provision of data or
information to Argus by Customer or third parties, or the lack by
Customer or others of a right to forward data or information to
Argus, (d) medical, scientific, business, or Program judgments
made as a result of services provided by Argus or as a result of or
after consultation with Argus staff, (e) the stopping of
payment on stale checks, complying with the instructions of
Customer or a Pharmacy with respect to the issuance and handling of
checks, and any bank’s issuance and handling of checks,
(f) the unauthorized
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 5
interruption,
corruption, use of or access through the Internet of Customer
information except to the extent Customer Proprietary Information
was accessible as a direct result of Argus’ failure to follow
in all material respects its Internet Protocol, (g) the
failure of healthcare providers to act in accordance with medical,
pharmacy, or health-care laws, regulations and standards,
(h) if Customer requests Argus to exercise discretion on its
behalf, exercising such discretion, except to the extent Argus has
failed to use reasonable care with respect to the exercise of such
discretion.
In addition,
notwithstanding any other term of this MSA, in no event will Argus
be liable in contract, tort, or otherwise arising from the
relationship of the parties or the conduct of business under this
MSA, for an amount exceeding in the aggregate the amount set forth
in Exhibit B hereto.
A. Argus’ Indemnity to Customer . Subject to
Section 10 of this MSA, Argus shall indemnify Customer and its
shareholders, officers, directors, employees, affiliates and
agents, and the successors, representatives and assigns thereof,
for, and hold them harmless from and against, any and all
liability, loss, damage and expense, including attorneys’
fees, arising directly or indirectly from third party claims
against Customer that are the direct result of Argus’ breach
of this MSA.
B. Customer’s Indemnity to Argus . Customer shall
indemnify Argus and its shareholders, officers, directors,
employees, affiliates and agents, and the successors,
representatives and assigns thereof, for, and hold them harmless
from and against, any and all liability, loss, damage and expense,
including attorneys’ fees, arising directly or indirectly
from the contents of a Program or from the performance of services
for Customer except to the extent such loss, damage, or expense is
the direct result of Argus’ failure to perform its
obligations under this MSA. Because Argus has costs associated with
the retrieval of archived data and is keeping data on
Customer’s behalf, Customer shall reimburse Argus for the
expenses and attorneys’ fees Argus incurs in responding to
subpoenas, garnishments, or other legal processes involving
requests for Customer information or property, provided that
(except for instructions to redirect disbursements from one
Pharmacy to another due to a Pharmacy assignment of assets,
Pharmacy bankruptcy or other Pharmacy transaction) Argus has
notified Customer of the request prior to complying, provides a
written estimate of the anticipated expenses and receives
Customer’s written approval, which approval shall not be
unreasonably withheld, prior to proceeding.
C. Indemnity Procedures . Each party’s obligation
to indemnify shall apply only if the party to be indemnified has
given the party providing the indemnity (“Indemnifying
Party”) prompt written notice of the claim within thirty
(30) calendar days of becoming aware of a potential claim,
provides all reasonable information and assistance to the
Indemnifying Party for the Indemnifying Party to settle or defend
the action, and grants the Indemnifying Party the sole authority to
control the defense and settlement of the claim.
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 6
A. Termination for Material Breach . If there is any
material default by either party in the performance of the terms
and conditions of this MSA, the non-defaulting party may terminate
this MSA upon forty-five (45) days’ prior written
notice; provided, however, that the defaulting party has not cured
such default within ten (10) days prior to the end of such
forty-five (45) day period. If either party defaults under
this MSA, the other party will use reasonable efforts to mitigate
damages caused by such default.
B. Obligations Upon Termination . Upon expiration or
termination of this MSA (a) Customer will pay
contemporaneously with the expiration or termination date all
amounts due Argus; (b) Customer will timely pay all subsequent
invoices (1) for services performed and expenses incurred on
or prior to the expiration or termination date, and (2) for
expenses associated with the return to Customer at Customer’s
request of (i) on-line data transferred to electronic media at
Argus’ discretion and archived media stored by Argus, and
(ii) direct member reimbursement and other paper Claim forms;
(c) Argus will deliver to Customer within forty-five
(45) business days of the expiration or termination date the
balance of any funds delivered by Customer to Argus for the payment
on Customer’s behalf of Claims Processed through IPNS
® , less all sums outstanding which are owed by
Customer to Argus; and (d) Argus shall not be required to
continue to perform services hereunder, including without
limitation making adjustments to Transactions, or, unless Customer
and Argus otherwise agree, providing ongoing storage and
maintenance of records.
C. Termination for Insolvency/Bankruptcy . Either party
may terminate this Agreement effective immediately without
liability upon written notice to the other if any one of the
following events occurs: (i) the other files a voluntary
petition in bankruptcy or an involuntary petition is filed against
it, (ii) the other is adjudged as bankrupt, (iii) a court
assumes jurisdiction of the assets of the other under federal
reorganization act (iv) a trustee or receiver is appointed by
a court for all or a substantial portion of the assets of the
other, (v) the other becomes insolvent, or (vi) the other
makes an assignment of its assets for the benefit of its
creditors.
D. Termination for Change of Control . Either Party may
terminate this MSA upon 60 days’ written notice if 50%
or more of the other party’s common stock or more than 50% of
its assets (such other party being the “Affected
Party”) are acquired or purchased by an entity other than a
current owner or affiliate of the Affected Party or any of its
owners in a transaction that is not a public offering of the
Affected Party’s stock (a “Change of Control
Event”); provided, however that a party may exercise such
right only if a reasonable person believes the successor in
interest will be unable to fulfill the contractual obligations of
the other party under this MSA as a direct result of the Change of
Control Event.
E. Termination for Transparency/Auditing/Network
Pricing . Notwithstanding provisions set forth above, the
parties agree that Customer may terminate this MSA effective
[***] in the event Customer reasonably determines in good
faith that Argus has not materially met the requirements for
[***] . Customer shall make this determination no earlier
than [***] and no later than [***] and shall provide
Argus with written notice of any desired termination within fifteen
(15) business days after such
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 7
determination
is made, but in no event later than [***] . In the event a
termination notice is provided by Customer to Argus as provided
herein, Argus shall have a right to cure the breach within thirty
(30) days of receipt of the notice by taking reasonable steps
to provide the required information reflecting that Argus was in
compliance with the provisions relating to [***]
Argus agrees
(i) to be fully transparent when providing services to
Customer as provided in this MSA, (ii) that the administrative
fees provided in Exhibit C (except for postage increases as
provided therein) will not be modified during the initial term of
the MSA unless mutually negotiated and agreed to by the parties,
(iii) all other expenses that may be considered a fee
(including pharmacy network rates) shall be [***] auditable
as provided in Section 16 below, (iv) that all edits will
contain explicit criteria that are measurable when compared to the
supporting invoices, (v) that upon request, the Argus account
team designated for Customer shall meet with Customer monthly
during the first quarter and quarterly thereafter, (vi) prior to
appointing a new account manager for Customer, Argus shall allow
Customer to approve the individual as long as such determination by
Customer is reasonable and made in good faith, and (vii) to
provide Customer with the list of [***] within 30 days
of the execution of this MSA and throughout the term of this MSA as
list materially changes. The parties hereby agree to mutually
develop a plan to allow manual, paper and DMR Claims to be
Processed in accordance with this Addendum. As mutually agreed upon
by the parties, Customer may obtain an updated list of [***]
.
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 8
F.
Termination for Material Change in Reimbursement Rates.
Notwithstanding provisions set forth
above, the parties agree that Customer may terminate this MSA
effective on [***] in the event that Customer reasonably
determines in good faith that the [***]. Customer shall
provide Argus with written notice of any desired termination within
fifteen (15) business days after such determination is made.
In the event a termination notice is provided by Customer to Argus
as provided herein, the parties shall work together in good faith
to mutually agree upon the overall impact to Customer and Argus
shall have a right to cure the breach within thirty (30) days
of such determination by taking reasonable steps [***]
.
13. PRIVACY
AND SECURITY COMPLIANCE.
A.
In rendering the services described herein, Argus may receive from
or transmit to Customer individually identifiable health
information of members which is “protected health
information” (“HIPAA PHI”) within the meaning of
the regulations promulgated pursuant to the Health Insurance
Portability and Accountability Act (“HIPAA”) and
codified at 45 CFR Parts 160 and 164 as amended from time to time
(the “HIPAA Privacy Rules”) or which is non-public
personal information (“NPPI”) within the meaning of the
regulations promulgated by a state with jurisdiction over this MSA
in response to the privacy provisions of the Gramm Leach Bliley Act
(“GLBA Privacy Rules”). For purposes of this
Section 13, any HIPAA PHI and NPPI received from or
transmitted to Customer shall be referred to collectively as
Protected Information (“PI”).
B.
If Argus engages in a pattern of activity or practice that
constitutes a material breach of this section and the breach is not
cured under the procedures set forth in Section 12(A), the
Customer may terminate this MSA under the procedures set forth in
Section 12.
C.
Argus agrees not to use or disclose PI which has not been
de-identified except (i) in conjunction with the services
described in the MSA; (ii) as covered entities are permitted
with or without consent by the HIPAA and GLBA Privacy Rules;
(iii) to provide data aggregation related to the health care
operations of Customer; (iv) to fulfill its present or future
legal responsibilities; or (v) for its proper management or
administration. Within a reasonable period of time under the
circumstances of discovery, Argus agrees to report to Customer any
use or disclosure of the PI not provided for in this
subsection.
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 9
D.
Argus agrees to use appropriate safeguards to prevent the use or
disclosure of PI which is contrary to the uses or disclosures
authorized in Subsection (C) of this
Section 13.
E.
Argus agrees to hold agents and subcontractors that have access to
HIPAA PHI to the same standards as set forth in this
Section 13. Argus agrees to enter into written agreements
imposing equivalent requirements on any non-affiliate
subcontractors that have access to HIPAA PHI.
F.
Upon reasonable notice and during normal business hours, Argus
agrees to make its internal practices, books, and records relating
to the use and disclosure of PI received from, or created on behalf
of, Customer available to the Secretary of the Federal Department
of Health and Human Services for purposes of determining
Customer’s compliance with the HIPAA Privacy
Rules.
G.
Argus shall maintain an information security program to implement,
maintain, and use administrative, technical, and physical
safeguards that reasonably and appropriately protect the
confidentiality, integrity, and availability of electronic HIPAA
PHI (“e-PHI”) that Argus creates, receives, maintains,
or transmits on Customer’s behalf.
H.
Argus will, at termination or expiration of the MSA, in compliance
with the recordkeeping provisions of this MSA, return or destroy
all PI received from, or created by Argus on behalf of, Customer
which Argus still maintains in any form, and, in compliance with
the recordkeeping provisions of this MSA, will not retain any
copies of such information. If such return or destruction is not
feasible or is not in accordance with the recordkeeping provisions
of this MSA, Argus will extend the protections of Subsections
(A)-(G) of this Section 13 to the PI and will limit further
uses and disclosures to those purposes that make the return or
destruction of the PI infeasible.
I.
Pursuant to the following parameters, Argus will report to Customer
(a) any successful unauthorized access, use, disclosure,
modification, or destruction of Customer’s e-PHI of which
Argus becomes aware or (b) unauthorized interference with
system operations in Argus’ Information System of which Argus
becomes aware:
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Not
more than twenty-four (24) hours after Argus learns of any
such incident, Argus will notify Customer’s Privacy Office
(or Privacy Official). The notification will identify the nature of
the incident, and to the extent possible, identify the e-PHI
affected by the incident.
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•
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Not
more than forty-eight (48) hours after Argus learns of any
such incident, Argus will provide a report to Customer’s
Privacy Office (or Privacy Official). The report will identify the
e-PHI affected by the incident and the corrective actions Argus
took or will take to correct the incident.
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Not
more than five (5) days after Argus learns of any such
incident, Argus will provide a report to Customer’s Privacy
Office (or Privacy Official). The report will identify actions
Argus will take to prevent future incidents.
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Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 10
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Argus will in a reasonable time
provide such other information, including a written report, as
Customer may reasonably request in writing.
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For
the purposes of this Addendum, contact with Customer will be on
normal business days, Monday through Friday, 8:00 a.m. through 5:00
p.m. of Customer’s time zone, unless Customer provides
emergency contact information to the Argus Privacy
Officer.
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J.
Within forty-five (45) days of receipt of a request by
Customer for access to a Member’s HIPAA PHI contained in a
Designated Record Set (as such set is then defined by HIPAA
regulation), Argus shall, at Customer’s cost if the data is
archived, make available to Customer such HIPAA PHI for so long as
such information is maintained in the Designated Record Set as set
forth in 45 C.F.R. § 164.524 provided that Customer does not
have a copy of such information. Argus and Customer will discuss
sharing the cost in some manner if the cost is material. In the
event any Member requests access to HIPAA PHI directly from Argus,
Argus shall, as soon as reasonably practicable, forward such
request to Customer. Any responses to or denials of access to the
HIPAA PHI requested shall be the responsibility of
Customer.
14.
CONFIDENTIALITY .
Proprietary Information shall include the terms of this MSA (but
not the existence thereof), its terms and all information disclosed
by each party to the other pursuant to negotiations between the
parties. When used with respect to Customer, Proprietary
Information shall mean all information pertaining to Program
Specifications and to Protected Information (as defined in
Section 13 hereof). When used with respect to Argus,
Proprietary Information shall mean: (a) all information
pertaining to Argus’ business and services, (b) Argus
databases, software, layouts, designs, formats, procedures in any
form of expression, processes, tags, applications, systems,
interfaces, interface formats and protocols, and technology and all
elements thereof, (c) files, compilations, analyses,
publications, edits, protocols, documents and reports, both
internal and available to customers, Providers, and others,
including without limitation information, analyses, and
recommendations provided by Argus, and (d) developments,
changes, modifications, new features or functionality made at the
request or expense or both of Customer.
The term
“Proprietary Information” does not include information
which (1) has been or may in the future be published or is now
or may in the future be otherwise in the public domain through no
fault of the receiving party; (2) prior to disclosure pursuant
to this MSA, or during negotiations therefore, is property within
the legitimate possession of the receiving party;
(3) subsequent to disclosure pursuant to this MSA is lawfully
received from a third party having rights in the information
without restriction of the third party’s right to disseminate
the information and without notice of any restriction against its
further disclosure; (4) is independently developed by the
receiving party through its agents who have not had access to such
Proprietary Information; or (5) is obligated to be produced
under order of a court of competent jurisdiction or other similar
requirement of a governmental agency.
Each party
represents and warrants that it has the right to disclose its
Proprietary Information to the other party. Each party acknowledges
and agrees that the other party’s Proprietary Information
constitutes confidential material and trade secrets of
the
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 11
other party.
Customer acknowledges and agrees that from time to time:
(1) Argus uses certain information which is not identifiable
by Member or Argus customer to report industry trends, benchmarks
and the like (“Blind Reporting”), 2) Argus may provide
Member or other Customer information to state or federal bodies (or
their parties acting on behalf of such bodies) that request it for
Medicaid or Medicare subrogation or for other purposes the agencies
represent is allowed by law (“Required Reporting”), and
(3) Argus discloses Customer Proprietary Information to
Contracted Pharmacies as Argus deems necessary to operate the Argus
Network or Customer Network and to Pharma Companies as Argus deems
necessary to provide rebate services as applicable. Each party
agrees to hold the other party’s Proprietary Information in
confidence, to use and reproduce such Proprietary Information only
to accomplish the intent of this MSA, and to use reasonable care to
avoid unauthorized disclosure or use of the Proprietary
Information; provided, however, that Argus may use Customer’s
Proprietary Information as set forth herein.
All Proprietary
Information, unless otherwise agreed in writing, remains the
exclusive property of the disclosing party. For purposes of this
MSA, the existence of a copyright notice or claim will not cause or
be construed to cause any part of the Proprietary Information to be
published in the public domain. The parties agree that immediately
upon termination of this MSA, without regard to the reason for
termination, the parties shall return to one another all written
materials containing Proprietary Information that is the property
of the other party.
If Customer is
required to file this MSA or any portion thereof with, or to
provide any information pertaining to this MSA to, any state or
federal agency or regulatory body, it shall notify Argus
sufficiently in advance for Argus to work in good faith with
Customer to redact such provisions and to keep confidential such
information as Argus deems sensitive. Customer acknowledges that at
a minimum Argus considers Exhibits B and C as confidential, as well
as any Argus pharmacy network disbursement schedules and other
monetary amounts contained in any addendum. Customer shall use its
best efforts to advance Argus’ position with the governmental
agency or regulatory body that such provisions or information
should not be provided or should not be made publicly available,
and Customer shall keep Argus apprised of any decision by the
agency or regulatory body in this regard. Customer shall provide
Argus with copies of all written communications with the agency or
regulatory body pertaining to the services to be provided hereunder
or with respect to this MSA. Notwithstanding the foregoing, the
parties hereby agree that if Customer reasonably determines, in its
sole discretion, that this MSA is a material contract for Customer,
as defined by the SEC, the parties will mutually agree in good
faith to provisions that should be redacted prior to submission to
the SEC and any amendments to this Section of the MSA that are
desirable to supplement the submission to the SEC. Any such
submissions shall be subject to compliance with the notice and
cooperation provisions provided above. Argus acknowledges that
Customer is not the deciding party regarding whether certain
information is granted confidential treatment as
requested.
The parties
agree that monetary damages will be difficult to ascertain in the
event of any breach of this Section 14 or of Section 15
and that monetary damages alone would not suffice to compensate a
party for such breach. The parties agree that in the event of
violation of this Section 14 or of Section 15, without
limiting any other rights and
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 12
remedies, an
injunction may be brought against any party who has breached or
threatened to breach this Section 14 or of Section 15. In any
proceeding upon a motion for equitable relief, a party’s
ability to answer as to damages shall not be interposed as a
defense to the granting of such equitable relief.
15.
OWNERSHIP, USE OF NAME, PRESS RELEASES . Each party shall retain full and exclusive
ownership and all rights over its respective Proprietary
Information, and the programming, conception, development or
enhancement thereof, and over its publications, trade secrets,
copyrights, trademarks and patents, and the other party shall not
purport to have ownership thereof. Customer shall not copy, reverse
engineer, decompile or disassemble or otherwise attempt to create
or derive the source code of any Argus software or system. Customer
agrees not to take any action which would mask, delete or otherwise
alter any Argus on-screen disclaimers or copyright, trademark and
service notifications provided by Argus from time to time, or any
“point and click” features relating to acknowledgement
and acceptance of such disclaimers and notifications. Customer
acknowledges that Argus’ software, systems, products,
services and related documentation may contain trade secrets of
Argus or third parties and may be patented or copyrighted. Customer
agrees not to make or distribute any copies of the foregoing
without Argus’ consent. Neither party shall release
information to the press or, except as necessary to perform its
obligations hereunder, over the Internet referring to the other
party without the express written consent of the other
party.
16. RIGHT TO
AUDIT . Customer may
conduct on-site audits reasonable in scope at reasonable times,
during regular business hours and upon reasonable advance notice of
the records, information and [***] pertaining to services
Argus provides to Customer. The content of such audits may include,
but shall not be limited to, applicable policy and procedure
review, process validation, reporting to demonstrate compliance
with contractual and regulatory requirements, [***] as
provided above, financial audit support, [***] and such
other documents as are reasonably necessary to complete a
comprehensive audit of the services rendered under this MSA.
Customer-designated auditors shall execute confidentiality
agreements satisfactory to Argus. Argus shall allow regulators to
audit services provided hereunder as required by regulations
applicable to Customer, and Customer shall give Argus prompt
written notice upon learning that any such regulatory audit is to
occur. [***]. Argus will comply with Customer’s
request for all information relative to the activities noted above
consistent with CMS and Part D audit guidelines. Argus will
respond promptly to Customer’s information request, as well
as, respond with corrective action as mutually agreed and as
identified by compliance audit consistent with CMS and Part D
guidelines. From time to time, as a result of audit findings,
Customer may make recommendations which may require Argus to add or
revise drug classifications or drug coding. In particular, audit
findings may reveal adverse impact on the member. In the event the
adverse impact is determined to be in violation of applicable CMS
requirements in effect currently or as may be amended from time to
time, the parties will agree to cure these situations as
appropriate.
17. FORCE
MAJEURE . Any
party’s delay in, or failure of, performance under this MSA
(other than Customer’s failure to pay the fees and expenses
due Argus for services performed or to reimburse Argus for
disbursements) shall be excused where such delay or failure is
caused by an act of nature, fire, act of war or terrorist act, or
other
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 13
catastrophe;
electrical, computer, software, transmission, power, communications
or mechanical failure; work stoppage, delays or failure to act of
any carrier or agent; direction or effect of an order from a court
or government agency or body; functions or malfunctions of the
Internet, telecommunications services (including wireless),
firewalls, encryption systems or security devices; or any other
cause beyond a party’s reasonable control.
18.
COMPLIANCE WITH LAWS .
Argus represents and warrants that it will comply with the laws,
regulations, and governmental policies, guidelines and instructions
applicable to its provision of services under this MSA
(“Governmental Obligations”) within a reasonable period
of time after Argus becomes aware of the Government Obligations,
except as provided in the following paragraph, provided that
Customer complies with its obligations and has satisfied the
representations and warranties in this Section. Customer represents
and warrants that the Specific Performance Obligations referred to
in Section 4 of this MSA set forth all of Argus’
performance obligations, including without limitation formats for
data transmission and time periods for disbursements, required by
such Governmental Obligations on the Effective Date. Customer
agrees to promptly notify Argus of any Governmental Obligations
(regardless of whether they existed on the Effective Date) that
impact or add to Argus’ Specific Performance Obligations
hereunder (“Additional Obligations”) as soon as
practical after Customer has become aware of the same, including
without limitation any changes to the Specific Performance
Obligations required by any addendum the parties may execute or
attach hereto.
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 14
If Argus is
notified by Customer or otherwise that Argus’ Specific
Performance Obligations or this MSA should be added to or altered
as a result of Additional Obligations, Argus shall make such
changes as the structure of IPNS ® allows at Argus’ then current rates unless
otherwise mutually agreed to by Customer and Argus. If in
Argus’ reasonable discretion Additional Obligations have a
materially adverse financial effect on Argus’ interest in
this MSA, Argus and Customer cannot come to agreement on fees and
implementation schedules for the Additional Obligations, and
Customer is not interested in having or cannot legally have Argus
perform its obligations hereunder unless it also performs the
Additional Obligations, then Argus may terminate the Agreement
[***] advance written notice to Customer. Customer shall not
assert any claim against Argus for monetary damages or equitable
relief or otherwise for Argus’ failure to perform the
Additional Obligation from the date of notice to Argus of the
Additional Obligation through the date agreed to by the parties for
implementation of such obligation, or, if Argus exercises a right
to terminate the Agreement, through the termination
date.
Customer agrees
to comply with all laws, regulations, and governmental policies,
guidelines and instructions applicable to receipt from Argus of
services hereunder; provided however, that this obligation shall
not relieve Customer of its obligations in this Section or
elsewhere in the Agreement.
The terms of
this Section 18 relating to Argus’ right to terminate
this MSA if the parties do not reach agreement respecting
Additional Obligations and Customer’s agreement not to assert
claims against Argus if Argus exercises its termination right (set
forth in the second and third sentences of the second paragraph of
this Section 18) apply to this MSA, including any exhibits,
schedules, appendices or addenda to this MSA and those provisions
in this Section 18 are not modified, preempted or affected in
any manner by a provision in an exhibit, schedule, appendix or
addendum that provides that the terms of that exhibit, schedule,
appendix or addendum govern or control in the event of conflicting
provisions.
19.
DIRECT/INDIRECT REMUNERATION REPORTING. Argus agrees to report to Customer on a
quarterly basis all Direct/Indirect Remuneration (DIR) which
includes discounts, chargebacks or rebates, cash discounts, free
goods contingent on a purchase agreement, up-front payments,
coupons, goods in kind, free or reduced-price services, grants, or
other price concessions or similar benefits from manufacturers,
pharmacies or similar entities obtained by Argus, regardless of
whether the Argus retains all or a portion of the direct and
indirect remuneration or passes the entire direct and indirect
remuneration to Customer. In addition, Argus agrees to provide
Customer an annual attestation that all amounts which could be
considered DIR, as defined above have been reported to Customer as
required.
20. DISPUTE
RESOLUTION . The parties
will resolve issues, disputes and controversies as described on
Exhibit E to this MSA.
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 15
A. Notices . All notices, demands and other
communications given or delivered under this MSA must be in writing
and will be deemed to have been given when (a) delivered
personally to the recipient, (b) sent to the recipient by
reputable overnight courier service (charges prepaid), (c) mailed
to the recipient by registered or certified mail, return receipt
requested and postage prepaid, or (d) sent by facsimile with
confirmation of transmission by the transmitting equipment (except
that notice delivered by facsimile will only be effective if the
notice is also delivered by hand, sent by reputable overnight
courier service (charges prepaid) or mailed, postage prepaid,
registered, certified or express mail, within two (2) business
days after its delivery by facsimile). These notices, demands and
other communications must be sent to the parties at the following
addresses (or to another address that a party may specify by notice
given to the other party under this provision):
Argus Health
Systems, Inc.
1300 Washington Street
Kansas City, Missouri 64105-1433
Attn: Contracts and Compliance
Department
Fax: (816) 435-7465
General
Counsel
DST Systems, Inc.
333 W 11th Street
Kansas City, MO 64105
Fax: (816) 435-8630
HealthSpring
44 Vantage Way, Suite 300
Nashville, TN 37228
Attn: Chief Operating Officer
Fax: (615) 291-7011
General
Counsel
HealthSpring
2900 North Loop West
Suite 1300
Houston, TX 77092
Fax: (832) 553-3584
B. Assignment . This MSA and the rights and obligations
hereunder shall not be assigned by either party without prior
written consent of the other party; provided,
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 16
however, that
such consent shall not be required in the event this MSA, or any
rights or obligations hereunder, are assigned by a party as a
result of the sale of substantially all of the party’s
business or assets or as a result of a reorganization, merger or
business consolidation involving the assigning party. This MSA
shall be binding upon and inure to the benefit of the respective
successors, permitted assigns and legal representatives of the
parties hereto.
C. Counterparts . This MSA may be executed in
counterparts, all of which together shall be deemed one and the
same agreement.
D. Governing Law . Except as provided below, this MSA
shall be governed by and construed in accordance with the laws of
the State of Texas for services rendered to Texas HealthSpring,
LLC; in accordance with Alabama law for services rendered to
HealthSpring of Alabama, Inc., in accordance with Illinois law for
services rendered to HealthSpring of Tennessee, Inc. d/b/a
HealthSpring of Illinois, in accordance with Tennessee law for
services rendered to HealthSpring of Tennessee Inc. and in
accordance with Florida law for services rendered to HealthSpring
of Florida, Inc. without regard to its principles of conflicts of
law. Notwithstanding the foregoing, for services rendered to any of
the aforementioned parties relative to the Medicare Advantage
program this Agreement shall be governed by and construed in
accordance with applicable Federal law. In addition this Agreement
shall incorporate by reference the applicable laws and regulations
for all applicable state and federal law. Notwithstanding the first
sentence, the provisions of this MSA relating to Argus’
liability (including the provisions limiting the amount of
Argus’ liability under this MSA) shall always be governed by
and construed in accordance with Missouri law.
E. Independent Contracto r. Customer and Argus shall be
considered independent of each other at all times. Nothing in this
MSA shall be construed to constitute the existence of any agency,
joint venture, partnership or fiduciary relationship between the
parties. Argus shall choose the means to be employed and the manner
of carrying out its obligations in this MSA.
F. Entire
Agreement . This MSA, together with the exhibits and addenda
hereto, constitutes the entire understanding of the parties with
respect to the subject matter of this MSA and supersedes and
replaces all prior or contemporaneous responses to requests for
proposals or information, marketing literature, negotiations,
understandings and representations, whether oral or written. No
supplement, modification or amendment of this MSA shall be binding
unless contained in a writing signed by each of the parties to this
MSA. No agent of any party hereto is authorized to make any
representation, promise or warranty inconsistent with the terms
hereof. That certain agreement between the parties dated
January 1, 2006 and all amendments to that agreement regarding
the same or similar services (the “Original Agreement”)
is hereby terminated and replaced by this MSA with the
understanding that certain terms will survive the termination in
accordance with Section 20K of the Original
Agreement.
G. Validity . If an arbitrator, court or administrative
agency determines any provision of this MSA invalid, the provision
shall be interpreted to the greatest extent permitted by law to
give effect to the parties’ intentions, and the determination
shall not affect the enforceability of any other
provision.
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 17
H. Waiver . The waiver by any party of any breach of
any provisions of this MSA shall not operate, or be construed, as a
waiver of any subsequent breach.
I. No
Third Party Beneficiaries . This MSA is intended solely for the
benefit of the parties. In no event will any third party, including
without limitation any Program Sponsor, Pharmacy, Prescriber,
Member, bank, governmental entity, or contractor or client of
Customer, have any rights under or right to enforce the terms of
this MSA.
J. Binding Effect . This MSA shall be binding upon each
party’s successors and permitted assigns and shall inure to
the benefit of and be enforceable by each party’s successors
and permitted assigns.
K. Survival . Sections 7 (Customer’s Payment
of Argus’ Invoices), 8 (Mutual Cooperation), 9 (Performance
Warranty), 10 (Limitation of Liability), 11 (Indemnity), 12
(Termination), 13 (Privacy and Security Compliance) 14
(Confidentiality), 15 (Ownership), 16 (Right to Audit) and 21
(Miscellaneous) shall survive termination or expiration of this
MSA; provided, however, that Argus’ obligation in
Section 9(B) to re-perform shall not survive for longer than
six (6) months after termination or expiration of the
MSA.
L. Headings . The headings in this MSA are for
convenience only and shall not be used to construe the meaning of
the provisions in or to interpret this MSA.
M. Other
Business . Argus may participate in claim verification programs
involving certain public benefits (i.e., governmental relief
programs), health plans, pharmaceutical manufacturers and other
parties that are utilized to facilitate instant rebates, coupons or
instant savings at the point of sale. Argus will not sponsor these
programs and will only provide its traditional back office
infrastructure and administrative services (claims processing,
retail network and reporting) to support these programs. Argus will
process these claims for secondary funding eligibility and
available secondary funding may be credited to the patient
electronically at the point of sale and applied to amounts not
covered by the primary payor, including co-payments. Authorized
pharmacy reimbursements may be funded by the applicable party that
contracts with Argus for these services. The claim verification
programs will not involve Member data or information on the primary
payor, even if such payor is an Argus client, and Argus will be
unable to verify formulary status of submitted secondary
claims.
[SIGNATURES ON THE FOLLOWING
PAGES]
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 18
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ARGUS HEALTH
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HEALTHSPRING
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/s/ Jonathan
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Gerald V.
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President
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Secretary
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February 26, 2009
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HEALTHSPRING
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February 26,
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TEXAS
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HEALTHSPRING
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HEALTHSPRING
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Secretary
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HEALTHSPRING
LIFE & HEALTH
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Coil
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Secretary
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Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
HealthSpring/Argus
Page 19
EXHIBIT A TO MSA:
DEFINITIONS
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1.1
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ACCESS INFORMATION
. The unique identifier,
password and related information necessary for Customer’s
on-line users to have the electronic capability to view and modify
IPNS® files or to use RxFocus®.
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1.2
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ADJUSTED CLAIM
. The final result after
at least one critical data element in a Claim has been changed and
the Claim has been re-Processed.
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1.3
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ARGUS FORMAT . With respect to Claims submitted
or Claims history provided on electronic or magnetic media, the
NCPDP or other industry standard format specified or accepted and
machine readable by Argus and containing Required Information. With
respect to Claims submitted or Claims history provided on paper, a
UCF Form and Argus transmittal form containing legible, complete
and identifiable information and forwarded to an Argus designated
post office box. With respect to IPNS® file information,
complete, legible, and identifiable information in the record
layout specified or approved by Argus.
|
|
1.4
|
|
ARGUS NETWORK.
A group of Argus
Pharmacies that have agreed to participate in an Argus Network
under a Participating Pharmacy agreement.
|
|
1.5
|
|
ARGUS NETWORK AGREEMENT
(ANA) . The
applicable Disbursement schedule elected by Argus Pharmacies by
executing a schedule for an Argus Network.
|
|
1.6
|
|
AVERAGE WHOLESALE PRICE
(AWP) . The
benchmark price in IPNS® for a given pharmaceutical product.
IPNS® has a benchmark price established and reported by First
DataBank or such other nationally recognized third party pricing
source as selected by Argus in its sole discretion (“Pricing
Source”). Argus will confer with Customer should it determine
that a change in the Pricing Source is warranted. Such pricing will
be updated in IPNS® by Argus on no less than a weekly basis (or
more frequently in Argus’ sole discretion, except as noted
below) or as otherwise required by law with data received from the
Pricing Source; provided, however, Argus receives usable and
acceptable data from such Pricing Source, which if not received
timely could result in delays. Pricing will be based on the
11-digit NDC for the actual package size of the pharmaceutical
product dispensed. AWP does not represent a wholesale price, but
rather is a fluctuating benchmark provided by third party pricing
sources such as First DataBank. Argus agrees that AWP as published
by the Pricing Source (currently First DataBank) shall not be
altered prior to its use in determining reimbursements to
Participating Pharmacies.
|
|
1.7
|
|
ARGUS PHARMACY or ARGUS
PHARMACIES .
A Pharmacy that has elected, either independently or through an
Intermediary, to participate in an Argus Network which Customer is
utilizing.
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit A — Definitions
HealthSpring/Argus
Page 1
EXHIBIT A TO MSA:
DEFINITIONS
|
1.8
|
|
CHECK REGISTER
. For a Financ
i
al Cycle, a listing of
checks to be issue d to Participating Pharmacies in
Customer Networks.
|
|
1.9
|
|
CLAIM . The request in Argus Format of a
Contracted Pharmacy for amounts due under a Program to the
Contracted Pharmacy or Member subsequent to the Contracted
Pharmacy’s provision of prescription drugs or of certain
other healthcare-related products or services to a
Member.
|
|
1.10
|
|
CLIENTS . Customers of Argus for which Argus
performs Claims Processing.
|
|
1.11
|
|
CONTRACTED PHARMACY or CONTRACTED
PHARMACIES .
All Argus Pharmacies and Participating Pharmacies.
|
|
1.12
|
|
COPAYMENT . That portion of a Contracted
Pharmacy charge which a Member is required to pay the Contracted
Pharmacy in accordance with the applicable Program. For purposes of
the Medicare Part D Prescription Drug Programs and commercial
programs offered by Customer, zero balance logic shall not apply
and the copayment Argus provides to a Contracted Pharmacy at POS
will equal the lower of the network reimbursement (e.g., AWP
discount or MAC plus dispensing fee), standard copayment (including
that which applies to Members qualifying for the low-income
subsidy) or the Contracted Pharmacy’s Usual and Customary
Charge. Claims processed under a Customer established benefit plan
requiring 100% Member copayment will receive the Argus-contracted
network reimbursement (e.g., the lesser of the Contracted
Pharmacy’s Usual and Customary Charge and the discounted
reimbursement rate).
|
|
1.13
|
|
COVERED MEDICATIONS
. Those prescription
drugs, injectables, compounds, supplies, and other items which are
legally prescribed by an authorized, licensed Prescriber and are
covered by a Program.
|
|
1.14
|
|
CUSTOMER NETWORK
. A group of
Participating Pharmacies that have agreed to participate in a
Network under an agreement with Customer.
|
|
1.15
|
|
DENIED CLAIM . A Claim that contains sufficient
accurate information to allow Processing but for which no payment
is made to a Member or Contracted Pharmacy due to Program
edits.
|
|
1.16
|
|
DISBURSEMENT . An amount due a Contracted
Pharmacy under a Contracted Pharmacy Agreement and paid to the
Contracted Pharmacy during a Financial Cycle pursuant to the terms
of the Services Addendum to MSA for Claims Processing and Related
Services.
|
|
1.17
|
|
DISPENSE AS WRITTEN
(DAW) CODE . The code promulgated by the NCPDP
used to indicate the reason for dispensing a multi-source
brand-named medication, and must comply with Customer
benefits.
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit A — Definitions
HealthSpring/Argus
Page 2
EXHIBIT A TO MSA:
DEFINITIONS
|
1.18
|
|
DRUG UTILIZATION REVIEW
(DUR) MESSAGE . An on-line message that alerts a
Contracted Pharmacy of a potential interaction and/or potential
resulting therapeutic implications of various drugs.
|
|
1.19
|
|
DUPLICATE CLAIM
. A category indicating
that a Claim with identical data is already on file for the
member.
|
|
1.20
|
|
ELIGIBLE . A Member entitled to Pharmacy
Services under a Program.
|
|
1.21
|
|
FINANCIAL CYCLE(S)
. The interval of time
between payment by Customer, Argus or others to Pharmacies or
Members of amounts due under a Program in compliance with
applicable prompt payment requirements as required by state or
federal law, rule or regulations.
|
|
1.22
|
|
FORMULARY . A list of preferred drug items
developed, published, and periodically revised by Customer, which
licensed Prescribers are encouraged to prescribe and Contracted
Pharmacies are encouraged to fill, consistent with their
professional medical judgment and applicable Laws, Pharmacy
Standards, and procedures, and could also mean information about
the cost-effectiveness of such drugs.
|
|
1.23
|
|
FORMULARY BENEFIT DESIGN
(FBD) . The
way in which Customer has designed coverage to Members for their
use of pharmaceutical products. Customer can design benefits so
that (1) prescribers are encouraged to prescribe products listed in
the Formulary but the Member has the same coverage regardless of
whether an On-Formulary product is dispensed, (2) there is a
co-pay differential that incents the Member to obtain On-Formulary
products, or (3) there is coverage only for closed Formulary
products.
|
|
1.24
|
|
FORMULARY COMPLIANCE
OBLIGATIONS .
To the extent applicable, the terms in each Pharma Company
Agreement that define formulary status requirements for each
product On-Formulary and criteria for determining whether
Customer’s utilization of a Pharma Company’s products
is eligible for rebates.
|
|
1.25
|
|
IDENTIFICATION CARD
. A printed card that is
issued by Argus or Customer to a Member and that is used to
identify the Member and covered dependents (but not to guarantee
Program coverage of a particular Pharmacy Service).
|
|
1.26
|
|
INTEGRATED PHARMACY NETWORK SYSTEM
(“IPNS®”) . Argus’ system for the
electronic processing of prescription and certain other Claims
submitted under Programs.
|
|
1.27
|
|
INTERMEDIARY . A pharmacy services administrative
organization or an owner or operator of a Contracted
Pharmacy.
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit A — Definitions
HealthSpring/Argus
Page 3
EXHIBIT A TO MSA:
DEFINITIONS
|
1.28
|
|
LAWS . All local, state and federal laws,
regulations, constitutions, charters, acts, statutes, ordinances,
codes, rules, orders, decrees, judgments, or other legislative,
judicial, or administrative actions applicable to Contracted
Pharmacy.
|
|
1.29
|
|
MANAGEMENT SERVICE AGREEMENT
(MSA) . This
Agreement and exhibits and addenda thereto.
|
|
1.30
|
|
MARKET RATES . Argus’ rates in effect at
the time the definition is applied.
|
|
1.31
|
|
MAXIMUM ALLOWABLE COST
(MAC) . The
maximum allowable cost of a drug pursuant to a list that
establishes an upper limit reimbursement price for certain
multiple-source drugs dispensed without regard to the specific
manufacturer whose drug is dispensed. Argus will update the Argus
MAC listing no less frequently than monthly to reflect changes in
marketplace pricing of generic products. [***].
|
|
1.31
|
|
MEMBER . An Eligible person who is enrolled
in the Program, meets all of the eligibility requirements for
membership in such Program and is entitled to the
healthcare-related benefits of the Program.
|
|
1.32
|
|
MSA . This Agreement and exhibits and
addenda thereto.
|
|
1.33
|
|
NATIONAL COUNCIL FOR PRESCRIPTION
DRUG PROGRAMS (NCPDP) . A pharmaceutical-industry trade
association that has developed a format used for the transmission
between Pharmacies and claims processors on electronic or magnetic
media of pharmacy Claim data and issues NPI numbers.
|
|
1.34
|
|
NATIONAL DRUG CODE (NDC)
. An identifier for a
prescription drug published by the pharmaceutical
industry.
|
|
1.35
|
|
NATIONAL PROVIDER IDENTIFIER
(NPI) . A
unique identification number issued by NCPDP for use by covered
health care providers to identify Prescribers as required by the
Health Insurance Portability and Accountability Act
(HIPAA) Administrative Simplification Standard.
|
|
1.36
|
|
NETWORK . A group of Contracted Pharmacies
that have agreed to participate in an Argus Network or a Customer
Network.
|
|
1.37
|
|
PAID CLAIM . A Claim that has been found to
represent a covered healthcare-related benefit and requires
reimbursement by the Plan.
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit A — Definitions
HealthSpring/Argus
Page 4
EXHIBIT A TO MSA:
DEFINITIONS
|
1.38
|
|
PARTICIPATING PHARMACIES
. Any person or entity
authorized to act as a pharmacy and properly licensed to dispense
prescription drugs which has a written agreement with Customer, or
its network pharmacy administrator, to provide Products and
services to Members.
|
|
1.39
|
|
PAYMENT REGISTER
. For a Financial Cycle,
a listing of payments due each Contracted Pharmacy in an Argus
Network resulting from Argus’ Processing Claims on behalf of
Customer.
|
|
1.40
|
|
PHARMACY . A pharmacy or other provider of
healthcare-related products and services that participates in
rendering to Members of a Program certain products and services
covered under a Program.
|
|
1.41
|
|
PHARMACY SERVICES
. Those pharmacy
services provided through a Network, including the dispensing of
Covered Medications and related counseling and product
consultation.
|
|
1.42
|
|
PHARMACY STANDARDS
. Standards that meet
the greater of (a) the pharmaceutical care, skill and
diligence that is customarily rendered by pharmacies in the United
States (if measurable, or if not measurable, that is customarily
rendered in the largest geographical area for which it is
measurable), or (b) the pharmaceutical care, skill and
diligence that is customarily rendered by Contracted Pharmacies as
a group.
|
|
1.43
|
|
PRESCRIBER . A physician or other healthcare
professional who legally prescribes a healthcare-related product or
service to Members and such person’s agents and has obtained
an NPI number from NCPDP.
|
|
1.44
|
|
PROCESS(ING) . The review of Claims to determine
whether and to what extent they meet Program Specifications, and,
if Customer requests, the determination of amounts due a Contracted
Pharmacy or, if applicable, a Member under a Program.
|
|
1.45
|
|
PROCESSING MESSAGES
. Messages sent
electronically by Argus pertaining to Network or Program
information, including without limitation step therapy protocol and
Formulary information.
|
|
1.46
|
|
PRODUCT . Any pharmaceutical product of a
Pharma Company for which such Pharma Company is willing to make a
Reimbursement.
|
|
1.47
|
|
PROGRAM . The contractual provision by an
entity other than Argus of healthcare benefits to Members pursuant
to which the Contracted Pharmacies and, if applicable, Members,
receive funds for prescription drugs, durable medical equipment,
and other healthcare-related goods and services as determined by a
unique combination of factors including without limitation coverage
specifications, reimbursement criteria and methods, and eligibility
requirements.
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit A — Definitions
HealthSpring/Argus
Page 5
EXHIBIT A TO MSA:
DEFINITIONS
|
1.48
|
|
PROGRAM SPECIFICATIONS
. The IPNS®
specifications agreed to by Customer and Argus that reflect the
combination of Program and healthcare industry factors that
determine amount due to Contracted Pharmacies and, if applicable,
Members, under a Program.
|
|
1.49
|
|
PROGRAM SPONSOR
. The entity that
contracts for the provision of healthcare benefits to
Members.
|
|
1.50
|
|
PROPRIETARY INFORMATION
. This term is defined
in Section 14 of the MSA.
|
|
1.51
|
|
REBATE FORMULA
. The formula pursuant
to which Reimbursements will be paid by Pharma
Companies.
|
|
1.52
|
|
REBATE REIMBURSEMENT
. The amount determined
by the Rebate Formula.
|
|
1.53
|
|
REBATE REIMBURSEMENT
CYCLE . The
specific calendar period, but no less than quarterly, for which a
Reimbursement is to be paid by a Pharma Company to Argus on behalf
of Customer as specified in the Pharma Company Agreement. All
rebates earned will be collected within three cycles.
|
|
1.54
|
|
REGULATORY FEE
. The meaning set forth
in Section 2.7 of this Addendum.
|
|
1.55
|
|
REQUIRED INFORMATION
. Means complete,
identifiable (and if submitted on paper, legible) Claim information
required by Argus. Required Information may include without
limitation (a) Member’s identification number; (b) valid
NPI, (c) DEA, (d) State license Number, (e) NDC of
the medication prescribed; (c) the bottle size from which the
medication is dispensed; (f) quantity of the medication dispensed;
(e) estimated days of medication supply; (g) the correct
DAW code for brand name medications; (h) a Pharmacy
identification number specified by Argus; (i) codes and cost
information as designated by Argus for compound prescriptions;
(j) sales tax amounts, (k) calculated members copayment
based on benefit, (l) formulary tier based on CMS guidelines,
(m) Transition drug flags, (n) CMS disaster overrides,
(o) mail order flags, (p) MAC Pricing ID or pricing
schedule.
|
|
1.56
|
|
REVERSED CLAIM
. A Paid Claim that has
gone through a process that voids the original
prescription.
|
|
|
|
|
|
1.57
|
|
SALES TAX REMITTANCES
. Amounts Argus
(a) has based on information obtained from Contracted
Pharmacies regarding any federal, state or local taxes payable with
respect to any sales of Covered Medications to Members
and
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit A — Definitions
HealthSpring/Argus
Page 6
EXHIBIT A TO MSA:
DEFINITIONS
|
|
|
determined to be reasonable,
(b) has collected from Customer, and (c) has remitted
with Disbursements to Contracted Pharmacies.
|
|
|
|
|
|
1.58
|
|
SPECIFIC PERFORMANCE
OBLIGATIONS .
Argus’ obligations set forth in each services addendum and in
Section 14 to the MSA.
|
|
1.59
|
|
SUBMITTED CLAIM
. Any Claim type that is
identified as submitted on behalf of the Customer and requires
processing by ARGUS.
|
|
1.60
|
|
UNIVERSAL CLAIMS FORM
(UCF) . A
form developed by NCPDP that is the accepted format for
non-electronic submission of Claims by a Provider to a Claims
processor.
|
|
1.61
|
|
UNIVERSAL PRODUCT CODE
(UPC) . A
manufacturer’s unique, universally recognizable code for a
product.
|
|
1.62
|
|
USUAL AND CUSTOMARY CHARGE
(U&C) .
The lowest price the Contracted Pharmacy would charge to a cash
paying customer for an identical prescription on the date and at
the location that the prescription is dispensed, including any
special promotions or discounts available to the public on such
date of dispensing.
|
|
1.63
|
|
UTILIZATION. The quantity of Product obtained by
Eligible Members in a Reimbursement Cycle.
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit A — Definitions
HealthSpring/Argus
Page 7
EXHIBIT B TO MSA: LIMITATION OF
LIABILITY
The sum of
[***] , based upon the [***] , except for internal
costs incurred by Argus and for which Argus shall be responsible in
connection with the re performing of services under Section 9.
If this MSA has been in effect less than [***] , the
[***] period described in the previous sentence will be
replaced with the [***] during which this MSA is in effect.
Any penalties applied during the first year of this MSA as a result
of the [***] shall not be limited in accordance with this
provision.
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit B — Limitation of Liability
HealthSpring/Argus
Page 1
EXHIBIT C TO MSA: FEES AND
EXPENSES
|
|
|
|
|
|
|
|
|
Claims
Processing
|
|
|
|
|
|
Electronic
Claims Processing (includes standard financial reports)
|
|
|
|
|
|
|
|
|
|
Claim Volume Tiers
|
|
Per Paid
Claim Fee
|
|
|
|
[***]
|
|
[***]
|
|
|
|
[***]
|
|
[***]
|
|
|
|
[***]
|
|
[***]
|
|
|
|
[***]
|
|
[***]
|
|
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
Universal Claim
Form (UCF) entered by Argus
|
|
[***]
|
|
|
|
Direct Member
Reimbursement (DMR)
|
|
[***]
|
|
|
|
processing
|
|
|
|
|
|
entered by
Argus
|
|
|
|
|
|
Adjustments to
prior processed claims-
|
|
[***]
|
|
|
|
customer
ordered
|
|
|
|
|
|
IPNS on-line
access fee
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Disbursements
|
|
|
|
|
|
Pharmacy
Checks
|
|
[***]
|
|
|
|
Pharmacy
Reconciliation Reports
|
|
[***]
|
|
|
|
Member Checks,
Explanation of checks
|
|
[***]
|
|
|
|
(EOC’s)
(includes postage*)
|
|
|
|
|
|
|
|
|
|
|
|
Reporting
|
|
|
|
|
|
RxFocus II (Ad
Hoc reporting)
|
|
|
|
|
|
Set up fee (one
time)
|
|
[***]
|
|
|
|
Per
claim
|
|
[***]
|
|
|
|
Access fee
— License &
|
|
[***]
|
|
|
|
Maintenance
|
|
|
|
|
|
Additional
users
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Argus Standard
Management Reports-
|
|
[***]
|
|
|
|
Electronic
media
|
|
|
|
|
|
Paid Claims
Data/Transmissions (PCT) in
|
|
[***]
|
|
|
|
existing Argus
format- 1 per financial cycle
|
|
|
|
|
|
Paid Claims
Data/Transmissions (PCT) in
|
|
[***]
|
|
|
|
existing Argus
format — each additional
|
|
|
|
|
|
|
|
|
|
|
|
Custom
Reporting
|
|
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit C — Fees and Expenses
HealthSpring/Argus
Page 1
EXHIBIT C TO MSA: FEES AND
EXPENSES
|
|
|
|
|
|
|
|
|
All custom
Management & Financial Reports; all PCT’s outside of
existing Argus format; all custom RxFocusII and Rebate
reports.
|
|
|
|
|
|
|
|
|
|
Development of
report
|
|
[***]
|
|
|
|
Production of
report- Electronic media
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Rebates
Administration
|
|
|
|
|
|
Rebate
Processing tool and reporting
|
|
[***]
|
|
|
|
(quarterly
reconciliation)
|
|
|
|
|
|
|
|
|
|
|
|
Clinical
Programs
|
|
|
|
|
|
DUR
|
|
[***]
|
|
|
|
Administrative
Prior Authorizations)
|
|
[***]
|
|
|
|
Clinical
Authorizations
|
|
[***]
|
|
|
|
Step
Therapy
|
|
[***]
|
|
|
|
Clinical
services — quarterly benchmark reports
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Pharmacy
Networks
|
|
|
|
|
|
Use of Argus
Pharmacy Networks
|
|
[***]
|
|
|
|
Desk Top
Audits
|
|
[***]
|
|
|
|
On-site
Pharmacy Audits
|
|
[***]
|
|
|
|
Argus
MAC
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Provider
and Member Support
|
|
|
|
|
|
Pharmacy Call
Center — non-dedicated line
|
|
[***]
|
|
|
|
Member Call
Center support
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Tier I calls- 5
minute handling time
|
|
[***]
|
|
|
|
Tier II calls-
6 minute handling time
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Member Portal-
Drug Pricing, Pharmacy Locator, and Claim Search
|
|
|
|
License and
maintenance
|
|
[***]
|
|
|
|
Per
pre-adjudication
|
|
[***]
|
|
|
|
All other
Member Portal components priced on an ad hoc basis
|
|
|
|
|
|
|
|
|
|
ePrescribing
|
|
|
|
|
|
Monthly
Maintenance Fee
|
|
[***]
|
|
|
|
Transaction
fee
|
|
[***]
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit C — Fees and Expenses
HealthSpring/Argus
Page 2
EXHIBIT C TO MSA: FEES AND
EXPENSES
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Training
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As part of
Implementation
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[***]
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Additional
Training
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Standard
Classes
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[***]
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Special/Custom
Training
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[***]
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Other
Services
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Professional
Fees/Programming/Conversions
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[***]
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Part D
Services (not specified
elsewhere in this exhibit)
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Incremental
claims processing fee
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[***]
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CMS
Reporting
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[***]
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CMS
Testing
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[***]
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PDE
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[***]
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Incremental
claims processing fee-
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[***]
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LICS claim
adjustment
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LICS Additional
Financial
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[***]
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DMR
Letters
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[***]
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EOB’s
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EOB Data
File
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[***]
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(available if
Argus is not providing EOB services)
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Transition
Letters
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Print/mail- up
to 2 pages/4 images (daily as required)
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[***]
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Additional
pages
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[***]
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Transition
Claims Data File
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[***]
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Out of
Pocket Expenses
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[***]
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Including
but not limited to:
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• Postage for mailing Management
and Financial Reports, Paid Claims Tapes, Inserts, etc.
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• Airfreight/overnight
letters
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• Mailings, inserts
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• Stop payment or other
fees/bank charges
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• Archival retrieval of Claim
information
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• Maintenance fees for direct
access communication lines, VPN support and maintenance
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• Travel and expenses related to
training beyond implementation days
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• Non- electronic media
creation
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• Mailing to Providers, Clients
of Customer
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Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit C — Fees and Expenses
HealthSpring/Argus
Page 3
EXHIBIT C TO MSA: FEES AND
EXPENSES
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MONTHLY
MINIMUM
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[***]
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CLAIMS
PROCESSING FEE
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*
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Effective
January 1 of the year following the first calendar year in which
Argus EOB’s/Transition Letters/DMR Letters/Pharmacy
Checks/Member Checks are produced and each January 1 thereafter,
the fee will increase by an amount equal to any increase in the
applicable postage rate during the prior calendar year.
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**
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Subject to
change as described in Section 5 of E-Prescribing Services
Addendum.
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Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit C — Fees and Expenses
HealthSpring/Argus
Page 4
EXHIBIT D TO MSA: PERFORMANCE
STANDARDS
From the
Effective Date of the MSA, Argus shall comply with this
Exhibit D. This exhibit does not apply to requests received
prior to the first day of the initial Calendar Quarter Reporting
Period which begins the first day of the calendar quarter month
following execution of this MSA. The performance standards set
forth in Exhibit D of the Prior MSA shall continue to apply
through the last day of the calendar quarter month prior to the
execution of this MSA .
Capitalized
terms herein are either defined in Section 3 of this
Exhibit D or in the body of the MSA. Customer shall have the
right to audit Argus’ performance of the standards herein as
described in Section 16 of the MSA.
Argus shall use
reasonable commercial efforts to meet the standards described
below; provided, however, Argus’ commercial efforts shall not
be deemed unreasonable, and payment of a penalty shall not be due,
to the extent that (i) Argus’ ability to perform was
affected by Customer’s acts or omissions or Customer’s
breach of its obligations hereunder or under the MSA or
(ii) Argus was complying with Customer’s instructions.
Except to the extent that (i) Argus’ ability to perform
was affected by Customer’s acts or omissions or
Customer’s breach of its obligations hereunder or under the
MSA or (ii) Argus was complying with Customer’s
instructions, failure to meet a described standard will result in
the payment of the described penalty by Argus to Customer after
Customer’s timely written demand as provided in
Section 2 hereof.
All performance
standards provided herein are subject to the Aggregate Maximum
Penalty provided below and any such penalties shall be the sole
remedy of Customer and the sole liability of Argus for failure to
meet the standards provided herein.
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit D — Performance Standards
HealthSpring/Argus
Page 1
1.
Description of Performance Standards, Measurements, and
Penalties
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Standard
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Measurement
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Penalty
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System
Response Time
In a Quarterly Reporting Period, POS average processing time shall
be no more than [***] .
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Processing time
begins when a POS claim reaches POS and ends when a POS reply is
initiated to the Provider. The tool to measure performance of this
standard shall be an internal tracking methodology.
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[***] received by Argus during the Quarterly Reporting
Period for failure to meet either or both Standard 1A or 1B for the
Quarterly Reporting Period.
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System
Availability
In a Quarterly Reporting Period, POS availability shall be at least
[***].
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Any regularly
scheduled downtime for POS shall not be considered unavailable
time. The tool to measure performance of this standard shall be an
internal tracking methodology.
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Accuracy in
Paid Claims Processing
In a Quarterly Reporting Period, accuracy in paid claims processing
shall be at least [***].
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Argus will
determine the accuracy rate by auditing a random sample of claims
processed during the reporting period across the Customer’s
client and Plan code case and assessing whether the following
claims processing rules were followed in accordance with
Customer’s Plan Designs when adjudicating the claims:
Pricing, Pharmacy, DUR, Deductible, Preauthorization, Duplicate
Claim, Member, Prescriber, NDC, Drug Coverage, and Customer and
Client claim edits. The number of samples is calculated based on
the total claims processed for the reporting and the following
criteria: A desired confidence level of [***]. The specific
function used for determining the Sample Size is documented by the
American Society for Quality and available in Microsoft
Excel.
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[***] received by Argus during the Quarterly Reporting
Period for failure to meet the standard for that Quarterly
Reporting Period.
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Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit D — Performance Standards
HealthSpring/Argus
Page 2
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Standard
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Measurement
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Penalty
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Pharmacy
Average Speed of Answer
In a Quarterly Reporting Period, [***] of Pharmacy line
calls shall be answered within [***] , measurement begins
when caller selects to speak with a call center
associate.
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The tools to
measure this standard shall be reports generated through tracking
software licensed by Argus. Only calls received during hours Argus
is to receive call under the MSA apply to these
measurements.
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[***] received by Argus during the Quarterly Reporting
Period for failure to meet either or both Standard 3A or 3B for the
Quarterly Reporting Period.
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Pharmacy
Abandonment Rate
In a Quarterly Reporting Period, the pharmacy line call Abandonment
Rate shall not exceed [***] ; measurement begins when caller
selects to speak with a call center associate. Calls abandoned
within [***] are excluded from measurement.
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Service
Response for Trouble Notifications
In a Quarterly Reporting Period, upon notification received by
Argus of a potential issue with claims processing from Customer
during Argus Business Hours on Argus Business Days:
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Investigation Initiation
Argus shall begin investigation and resolution within [***]
of the time, with the goal of resolving any issue in claims
processing within [***] .
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Using an agreed
upon process, the tools to measure performance of this standard
shall be an internal tracking methodology.
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[***] received by Argus during the [***] for
failure to meet either or all 3 standards 4A, 4B, 4C provided
however, the penalty shall not be assessed if for that standard,
the service response time is not met due to a single
failure.
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Potential
Claims Processing Resolution
Argus resolution of a potential claims processing issue shall not
exceed [***] of the time, unless additional time is allowed
by mutual agreement between customer’s originator of the
notification and the designated Argus representative.
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Same as
above
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Same as
above
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Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a trade secret, privileged or
confidential information, as such terms are interpreted under the
Freedom of Information Act and applicable case law.
Amended & Restated MSA
Exhibit D — Performance Standards
HealthSpring/Argus
Page 3
|
|
|
|
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|
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|
|
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Standard
|
|
Measurement
|
|
Penalty
|
|
|
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(Resolution is
defined as identifying and if reasonably possible, correcting the
issue for processing future claims.) In such an instance,
compliance with this standard shall be determined according to the
mutual agreement. Trouble notifications may include online benefit
and pharmacy changes and other changes that do not require hard
coding that were entered incorrectly. In addition, all corrective
coding related to these issues will be in place and in production
within [***] of issue resolution.
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Resolution
of Critical Service Failure
Argus representative shall contact Customer providing a status, and
if available, estimated time for resolution of a potential claims
processing issue for critical service failure. Argus agrees to use
best efforts to resolve a potential claims processing issue for a
critical service failure within [***] , however, such
resolution shall not exceed [***] unless additional time is
allowed by mutual agreement. Trouble notifications for a critical
service failure may include, but are not limited to the inability
to process POS claims and/or maintain the availability of IPNS
applications that are under Argus control.
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Same as
above
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Same as
above
|
Copyright 2009
by Argus Health Systems, Inc. All Rights Reserved. All of the
information on this page constitutes a
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