Common use of Failure to Meet Contract Requirements Clause in Contracts

Failure to Meet Contract Requirements. The MCO must comply with all requirements and performance standards set forth in this Contract. The MCO agrees that failure to comply with all provisions of the Contract may result in the assessment of remedies and/or termination of the Contract, in whole or in part, in accordance with this Article. The MCO agrees and understands that the Department may pursue contractual remedies for non-performance under the Contract. At any time and at its discretion, the Department may impose or pursue one or more remedies for each item of non-performance and will determine remedies on a case-by-case basis. The Department is entitled to monetary damages in the form of actual, consequential, direct, indirect, special, and/or Liquidated Damages resulting from the MCO’s non-performance under this Contract. In some cases, the actual damage to the Department as a result of the MCO’s failure to meet any aspect of the responsibilities of the Contract and/or to meet specific performance standards set forth in the Contract will be difficult or impossible to determine with precise accuracy. Therefore, in the event of non-performance under this Contract, the Department will impose Liquidated Damages in writing against the MCO. In the event of non- performance the Department will assess Liquidated Damages against the MCO regardless of whether the non- performance is the fault of the MCO (including the MCO's Subcontractors, agents and/or consultants), provided the Department has not materially caused or contributed to the non-performance. The Liquidated Damages prescribed in this Contract are not intended to be in the nature of a penalty, but are intended to be reasonable estimates of the Department’s projected financial loss and damage resulting from the MCO’s non-performance. Accordingly, in the event the MCO fails to perform in accordance with the Contract, the Department may assess Liquidated Damages as provided in this Section and in Appendix G of this Contract. Monetary penalties imposed under this Contract will not exceed the amounts established under 42 CFR §438.704. Any Liquidated Damages assessed by the Department will be due and payable within thirty (30) calendar days after the MCO’s receipt of the notice of damages, regardless of any dispute in the amount or interpretation which led to the notice, or an appeal of the notice filed by the MCO. If MCO fails to pay assessed damages within thirty (30) calendar days, the amount of damages will be deducted against capitation payments due to the MCO or that become due at any time after assessment of the Liquidated Damages. The Department will make deductions until the full amount payable by the MCO is collected. All Liquidated Xxxxxxx imposed pursuant to this Contract, whether paid or due, must be paid by the MCO out of administrative costs and profits. Per 42 CFR 438.704(c), if the Department imposes Liquidated Damages on the MCO for charging premiums or charges in excess of the amounts permitted under the Contract, the Department will deduct the amount of the overcharge from the Liquidated Damage and return it to the affected enrollee. If at any time the Department determines the MCO has not met any aspect of the responsibilities of the Contract and/or the specific performance standards due to mitigating circumstances, the Department reserves the right to waive all or part of the Liquidated Damages. All such waivers must be in writing, contain the reasons for the waiver, and be signed by the representative of the Department. Neither the occurrence of an event constituting an alleged MCO non-performance of this Contract nor the pending status of any claim for non-performance of Contract is grounds for the suspension of performance, in whole or in part, by the MCO of any duty or obligation with respect to the performance of this Contract. The MCO is responsible for any damages, penalties, or disallowances imposed on the State or MCO arising from any non-compliance or non-performance related to the delivery of the covered services or deliverables under this Contract by the MCO, its Subcontractors or agents.

Failure to Meet Contract Requirements. The MCO must comply with all requirements and performance standards set forth in this Contract. The MCO agrees that failure to comply with all provisions of the Contract may result in the assessment of remedies and/or termination of the Contract, in whole or in part, in accordance with this Article. The MCO agrees and understands that the Department may pursue contractual remedies for non-performance under the Contract. At any time and at its discretion, the Department may impose or pursue one or more remedies for each item of non-performance and will determine remedies on a case-by-case basis. The Department is entitled to monetary damages in the form of actual, consequential, direct, indirect, special, and/or Liquidated Damages resulting from the MCO’s non-performance under this Contract. In some cases, the actual damage to the Department as a result of the MCO’s failure to meet any aspect of the responsibilities of the Contract and/or to meet specific performance standards set forth in the Contract will be difficult or impossible to determine with precise accuracy. Therefore, in the event of non-performance under this Contract, the Department will impose impose, in writing, Liquidated Damages in writing against the MCO. In the event of non- performance the The Department will assess Liquidated Damages against the MCO regardless of whether the non- non-performance is the fault of the MCO (including or the MCO's Subcontractors, agents and/or consultants), provided the Department has not materially caused or contributed to the non-performance. The Department will provide 15 days’ notice of its intent to assess Liquidated Damages against the MCO. The MCO will have 10 days from receipt of the Letter of Intent to assess Liquidated Damages to appeal the sanction. The Liquidated Damages prescribed in this Contract are not intended to be in the nature of a penalty, but are intended to be reasonable estimates of the Department’s projected financial loss and damage resulting from the MCO’s non-performance. Accordingly, in the event the MCO fails to perform in accordance with the Contract, the Department may assess Liquidated Damages as provided in this Section and in Appendix G F of this Contract. Monetary penalties imposed under this Contract will not exceed the amounts established under 42 CFR §438.704. Any Liquidated Damages assessed by the Department will be due and payable within thirty (30) calendar days after the MCO’s receipt of the notice of damages, regardless of any dispute in the amount or interpretation which led to the notice, or an appeal of the notice filed by the MCO. If MCO fails to pay assessed damages within thirty (30) calendar days, the amount of damages will be deducted against capitation payments due to the MCO or that become due at any time after assessment of the Liquidated Damages. The Department will make deductions until the full amount payable by the MCO is collected. All Liquidated Xxxxxxx imposed pursuant to this Contract, whether paid or due, must be paid by the MCO out of administrative costs and profits. Per 42 CFR 438.704(c), if the Department imposes Liquidated Damages on the MCO for charging premiums or charges in excess of the amounts permitted under the Contract, the Department will deduct the amount of the overcharge from the Liquidated Damage and return it to the affected enrollee. If at any time the Department determines the MCO has not met any aspect of the responsibilities of the Contract and/or the specific performance standards due to mitigating circumstances, the Department reserves the right to waive all or part of the Liquidated Damages. All such waivers must be in writing, contain the reasons for the waiver, and be signed by the representative of the Department. Neither the occurrence of an event constituting an alleged MCO non-performance of this Contract nor the pending status of any claim for non-performance of Contract is grounds for the suspension of performance, in whole or in part, by the MCO of any duty or obligation with respect to the performance of this Contract. The MCO is responsible for any damages, penalties, or disallowances imposed on the State or MCO arising from any non-compliance or non-performance related to the delivery of the covered services or deliverables under this Contract by the MCO, its Subcontractors or agents.

Failure to Meet Contract Requirements. The MCO must comply with all requirements and performance standards set forth in this Contractcontract. The MCO agrees that failure to comply with all provisions of the Contract this contract may result in the assessment of remedies and/or termination of the Contractcontract, in whole or in part, in accordance with this Article. The MCO agrees and understands that the Department may pursue contractual remedies for non-non- performance under the Contractcontract. At any time and at its discretion, the Department may impose or pursue one or more remedies for each item of non-performance and will determine remedies on a case-by-case basis. The Department is entitled to monetary damages in the form of actual, consequential, direct, indirect, special, and/or Liquidated Damages resulting from the MCO’s non-performance under this Contractcontract. In some cases, the actual damage to the Department as a result of the MCO’s failure to meet any aspect of the responsibilities of the Contract contract and/or to meet specific performance standards set forth in the Contract contract will be difficult or impossible to determine with precise accuracy. Therefore, in the event of non-performance under this Contractcontract, the Department will impose Liquidated Damages in writing against the MCO. In the event of non- performance the Department will assess Liquidated Damages against the MCO regardless of whether the non- performance is the fault of the MCO (including the MCO's Subcontractorssubcontractors, agents and/or consultants), provided the Department has not materially caused or contributed to the non-performance. The Liquidated Damages prescribed in this Contract contract are not intended to be in the nature of a penalty, but are intended to be reasonable estimates of the Department’s projected financial loss and damage resulting from the MCO’s non-performance. Accordingly, in the event the MCO fails to perform in accordance with the Contractcontract, the Department may assess Liquidated Damages as provided in this Section and in Appendix G Exhibit H of this Contract. Monetary penalties imposed under this Contract will not exceed the amounts established under 42 CFR §438.704contract. Any Liquidated Damages assessed by the Department will be due and payable within thirty (30) calendar days after the MCO’s receipt of the notice of damages, regardless of any dispute in the amount or interpretation which led to the notice, or an appeal of the notice filed by the MCO. If MCO fails to pay assessed damages within thirty (30) calendar days, the amount of damages will be deducted against capitation payments due to the MCO or that become due at any time after assessment of the Liquidated Damages. The Department will make deductions until the full amount payable by the MCO is collected. All Liquidated Xxxxxxx imposed pursuant to this Contract, whether paid or due, must be paid by the MCO out of administrative costs and profits. Per 42 CFR 438.704(c), if the Department imposes Liquidated Damages on the MCO for charging premiums or charges in excess of the amounts permitted under the Contract, the Department will deduct the amount of the overcharge from the Liquidated Damage and return it to the affected enrollee. If at any time the Department determines the MCO has not met any aspect of the responsibilities of the Contract and/or the specific performance standards due to mitigating circumstances, the Department reserves the right to waive all or part of the Liquidated Damages. All such waivers must be in writing, contain the reasons for the waiver, and be signed by the representative of the Department. Neither the occurrence of an event constituting an alleged MCO non-performance of this Contract nor the pending status of any claim for non-performance of Contract is grounds for the suspension of performance, in whole or in part, by the MCO of any duty or obligation with respect to the performance of this Contract. The MCO is responsible for any damages, penalties, or disallowances imposed on the State or MCO arising from any non-compliance or non-performance related to the delivery of the covered services or deliverables under this Contract by the MCO, its Subcontractors or agents.thirty

Failure to Meet Contract Requirements. The MCO must comply with all requirements and performance standards set forth in this Contract. The MCO agrees that failure to comply with all provisions of the Contract may result in the assessment of remedies and/or termination of the Contract, in whole or in part, in accordance with this Article. The MCO agrees and understands that the Department may pursue contractual remedies for non-performance under the Contract. At any time and at its discretion, the Department may impose or pursue one or more remedies for each item of non-non- performance and will determine remedies on a case-by-case basis. The Department is entitled to monetary damages in the form of actual, consequential, direct, indirect, special, and/or Liquidated Damages resulting from the MCO’s non-performance under this Contract. In some cases, the actual damage to the Department as a result of the MCO’s failure to meet any aspect of the responsibilities of the Contract and/or to meet specific performance standards set forth in the Contract will be difficult or impossible to determine with precise accuracy. Therefore, in the event of non-performance under this Contract, the Department will impose Liquidated Damages in writing against the MCO. In the event of non- performance the Department will assess Liquidated Damages against the MCO regardless of whether the non- performance is the fault of the MCO (including the MCO's Subcontractors, agents and/or consultants), provided the Department has not materially caused or contributed to the non-performance. The Liquidated Damages prescribed in this Contract are not intended to be in the nature of a penalty, but are intended to be reasonable estimates of the Department’s projected financial loss and damage resulting from the MCO’s non-performance. Accordingly, in the event the MCO fails to perform in accordance with the Contract, the Department may assess Liquidated Damages as provided in this Section and in Appendix G H of this Contract. Monetary penalties imposed under this Contract will not exceed the amounts established under 42 CFR §438.704. Any Liquidated Damages assessed by the Department will be due and payable within thirty (30) calendar days after the MCO’s receipt of the notice of damages, regardless of any dispute in the amount or interpretation which led to the notice, or an appeal of the notice filed by the MCO. If MCO fails to pay assessed damages within thirty (30) calendar days, the amount of damages will be deducted against capitation payments due to the MCO or that become due at any time after assessment of the Liquidated Damages. The Department will make deductions until the full amount payable by the MCO is collected. All Liquidated Xxxxxxx imposed pursuant to this Contract, whether paid or due, must be paid by the MCO out of administrative costs and profits. Per 42 CFR 438.704(c), if the Department imposes Liquidated Damages on the MCO for charging premiums or charges in excess of the amounts permitted under the Contract, the Department will deduct the amount of the overcharge from the Liquidated Damage and return it to the affected enrollee. If at any time the Department determines the MCO has not met any aspect of the responsibilities of the Contract and/or the specific performance standards due to mitigating circumstances, the Department reserves the right to waive all or part of the Liquidated Damages. All such waivers must be in writing, contain the reasons for the waiver, and be signed by the representative of the Department. Neither the occurrence of an event constituting an alleged MCO non-performance of this Contract nor the pending status of any claim for non-performance of Contract is grounds for the suspension of performance, in whole or in part, by the MCO of any duty or obligation with respect to the performance of this Contract. The MCO is responsible for any damages, penalties, or disallowances imposed on the State or MCO arising from any non-compliance or non-performance related to the delivery of the covered services or deliverables under this Contract by the MCO, its Subcontractors or agents.thirty

Failure to Meet Contract Requirements. The MCO must comply with all requirements and performance standards set forth in this Contract. The MCO agrees that failure to comply with all provisions of the Contract may result in the assessment of remedies and/or termination of the Contract, in whole or in part, in accordance with this Article. The MCO agrees and understands that the Department BMS may pursue contractual remedies for non-performance under the Contract. At any time and at its discretion, the Department BMS may impose or pursue one (1) or more remedies for each item of non-performance and will determine remedies on a case-by-case basis. The Department BMS is entitled to monetary damages in the form of actual, consequential, direct, indirect, special, and/or Liquidated Damages resulting from the MCO’s non-performance under this Contract. In some cases, the actual damage to the Department BMS as a result of the MCO’s failure to meet any aspect of the responsibilities of the Contract and/or to meet specific performance standards set forth in the Contract will be difficult or impossible to determine with precise accuracy. Therefore, in the event of non-performance under this Contract, the Department BMS will impose impose, in writing, Liquidated Damages in writing against the MCO. In the event of non- performance the Department BMS will assess Liquidated Damages against the MCO regardless of whether the non- non-performance is the fault of the MCO (including or the MCO's Subcontractors, agents and/or consultants), provided the Department BMS has not materially caused or contributed to the non-non- performance. The Liquidated Damages prescribed in this Contract are not intended to be in the nature of a penalty, but rather, are intended to be reasonable estimates of the Department’s BMS’ projected financial loss and damage resulting from the MCO’s non-performance. Accordingly, in the event the MCO fails to perform in accordance with the Contract, the Department BMS may assess Liquidated Damages as provided in this Section and in Appendix G F of this Contract. Monetary penalties imposed under this Contract will not exceed the amounts established under 42 CFR §438.704. Any Liquidated Damages assessed by the Department BMS will be due and payable within thirty (30) calendar days after the MCO’s receipt of the notice of damages, regardless of any dispute in the amount or interpretation which led to the notice, or an appeal of the notice filed by the MCO. If MCO fails to pay assessed damages within thirty (30) calendar days, the amount of damages will be deducted against capitation payments due to the MCO or that become due at any time after assessment of the Liquidated Damages. The Department BMS will make deductions until the full amount payable by the MCO is collected. All Liquidated Xxxxxxx imposed pursuant to this Contract, whether paid or due, must be paid by the MCO out of administrative costs and profits. Per 42 CFR §438.704(c), if the Department BMS imposes Liquidated Damages on the MCO for charging premiums or charges in excess of the amounts permitted under the Contract, the Department BMS will deduct the amount of the overcharge from the Liquidated Damage and return it to the affected enrollee. If at any time the Department BMS determines the MCO has not met any aspect of the responsibilities of the Contract and/or the specific performance standards due to mitigating circumstances, the Department BMS reserves the right to waive all or part of the Liquidated Damages. All such waivers must be in writing, contain the reasons for the waiver, and be signed by the representative of the Department. Neither the occurrence of an event constituting an alleged MCO non-performance of this Contract nor the pending status of any claim for non-performance of Contract is grounds for the suspension of performance, in whole or in part, by the MCO of any duty or obligation with respect to the performance of this Contract. The MCO is responsible for any damages, penalties, or disallowances imposed on the State or MCO arising from any non-compliance or non-performance related to the delivery of the covered services or deliverables under this Contract by the MCO, its Subcontractors or agents.

Failure to Meet Contract Requirements. The MCO must comply with all requirements and performance standards set forth in this Contract. The MCO agrees that failure to comply with all provisions of the Contract may result in the assessment of remedies and/or termination of the Contract, in whole or in part, in accordance with this Article. The MCO agrees and understands that the Department may pursue contractual remedies for non-performance under the Contract. At any time and at its discretion, the Department may impose or pursue one or more remedies for each item of non-performance and will determine remedies on a case-by-case basis. The Department is entitled to monetary damages in the form of actual, consequential, direct, indirect, special, and/or Liquidated Damages resulting from the MCO’s non-performance under this Contract. In some cases, the actual damage to the Department as a result of the MCO’s failure to meet any aspect of the responsibilities of the Contract and/or to meet specific performance standards set forth in the Contract will be difficult or impossible to determine with precise accuracy. Therefore, in the event of non-performance under this Contract, the Department will impose impose, in writing, Liquidated Damages in writing against the MCO. In the event of non- performance the The Department will assess Liquidated Damages against the MCO regardless of whether the non- non-performance is the fault of the MCO (including or the MCO's Subcontractors, agents and/or consultants), provided the Department has not materially caused or contributed to the non-performance. The Department will provide 15 days’ notice of its intent to assess Liquidated Damages against the MCO. The MCO will have 10 days from receipt of the Letter of Intent to assess Liquidated Damages to appeal the sanction. The Liquidated Damages prescribed in this Contract are not intended to be in the nature of a penalty, but are intended to be reasonable estimates of the Department’s projected financial loss and damage resulting from the MCO’s non-performance. Accordingly, in the event the MCO fails to perform in accordance with the Contract, the Department may assess Liquidated Damages as provided in this Section section and in Appendix G F of this Contract. Monetary penalties imposed under this Contract will not exceed the amounts established under 42 CFR §438.704. Any Liquidated Damages assessed by the Department will be due and payable within thirty (30) calendar days after the MCO’s receipt of the notice of damages, regardless of any dispute in the amount or interpretation which led to the notice, or an appeal of the notice filed by the MCO. If MCO fails to pay assessed damages within thirty (30) calendar days, the amount of damages will be deducted against capitation payments due to the MCO or that become due at any time after assessment of the Liquidated Damages. The Department will make deductions until the full amount payable by the MCO is collected. All Liquidated Xxxxxxx imposed pursuant to this Contract, whether paid or due, must be paid by the MCO out of administrative costs and profits. Per 42 CFR §438.704(c), if the Department imposes Liquidated Damages on the MCO for charging premiums or charges in excess of the amounts permitted under the Contract, the Department will deduct the amount of the overcharge from the Liquidated Damage and return it to the affected enrollee. If at any time the Department BMS determines the MCO has not met any aspect of the responsibilities of the Contract and/or the specific performance standards due to mitigating circumstances, the Department BMS reserves the right to waive all or part of the Liquidated Damages. All such waivers must be in writing, contain the reasons for the waiver, and be signed by the representative of the Department. Neither the occurrence of an event constituting an alleged MCO non-performance of this Contract nor the pending status of any claim for non-performance of Contract is grounds for the suspension of performance, in whole or in part, by the MCO of any duty or obligation with respect to the performance of this Contract. The MCO is responsible for any damages, penalties, or disallowances imposed on the State or MCO arising from any non-compliance or non-performance related to the delivery of the covered services or deliverables under this Contract by the MCO, its Subcontractors or agents.

Failure to Meet Contract Requirements. The MCO must comply with all requirements and performance standards set forth in this Contract. The MCO agrees that failure to comply with all provisions of the Contract may result in the assessment of remedies and/or termination of the Contract, in whole or in part, in accordance with this Article. The MCO agrees and understands that the Department may pursue contractual remedies for non-non- performance under the Contract. At any time and at its discretion, the Department may impose or pursue one or more remedies for each item of non-performance and will determine remedies on a case-by-case basis. The Department is entitled to monetary damages in the form of actual, consequential, direct, indirect, special, and/or Liquidated Damages resulting from the MCO’s non-performance under this Contract. In some cases, the actual damage to the Department as a result of the MCO’s failure to meet any aspect of the responsibilities of the Contract and/or to meet specific performance standards set forth in the Contract will be difficult or impossible to determine with precise accuracy. Therefore, in the event of non-performance under this Contract, the Department will impose Liquidated Damages in writing against the MCO. In the event of non- non-performance the Department will assess Liquidated Damages against the MCO regardless of whether the non- performance is the fault of the MCO (including the MCO's Subcontractors, agents and/or consultants), provided the Department has not materially caused or contributed to the non-performance. The Liquidated Damages prescribed in this Contract are not intended to be in the nature of a penalty, but are intended to be reasonable estimates of the Department’s projected financial loss and damage resulting from the MCO’s non-performance. Accordingly, in the event the MCO fails to perform in accordance with the Contract, the Department may assess Liquidated Damages as provided in this Section and in Appendix G of this Contract. Monetary penalties imposed under this Contract will not exceed the amounts established under 42 CFR §438.704. Any Liquidated Damages assessed by the Department will be due and payable within thirty (30) calendar days after the MCO’s receipt of the notice of damages, regardless of any dispute in the amount or interpretation which led to the notice, or an appeal of the notice filed by the MCO. If MCO fails to pay assessed damages within thirty (30) calendar days, the amount of damages will be deducted against capitation payments due to the MCO or that become due at any time after assessment of the Liquidated Damages. The Department will make deductions until the full amount payable by the MCO is collected. All Liquidated Xxxxxxx imposed pursuant to this Contract, whether paid or due, must be paid by the MCO out of administrative costs and profits. Per 42 CFR 438.704(c), if the Department imposes Liquidated Damages on the MCO for charging premiums or charges in excess of the amounts permitted under the Contract, the Department will deduct the amount of the overcharge from the Liquidated Damage and return it to the affected enrollee. If at any time the Department determines the MCO has not met any aspect of the responsibilities of the Contract and/or the specific performance standards due to mitigating circumstances, the Department reserves the right to waive all or part of the Liquidated Damages. All such waivers must be in writing, contain the reasons for the waiver, and be signed by the representative of the Department. Neither the occurrence of an event constituting an alleged MCO non-performance of this Contract nor the pending status of any claim for non-performance of Contract is grounds for the suspension of performance, in whole or in part, by the MCO of any duty or obligation with respect to the performance of this Contract. The MCO is responsible for any damages, penalties, or disallowances imposed on the State or MCO arising from any non-compliance or non-performance related to the delivery of the covered services or deliverables under this Contract by the MCO, its Subcontractors or agents.

Failure to Meet Contract Requirements. The MCO must comply with all requirements and performance standards set forth in this Contract. The MCO agrees that failure to comply with all provisions of the Contract may result in the assessment of remedies and/or termination of the Contract, in whole or in part, in accordance with this Article. The MCO agrees and understands that the Department may pursue contractual remedies for non-non- performance under the Contract. At any time and at its discretion, the Department may impose or pursue one or more remedies for each item of non-performance and will determine remedies on a case-by-case basis. The Department is entitled to monetary damages in the form of actual, consequential, direct, indirect, special, and/or Liquidated Damages resulting from the MCO’s non-performance under this Contract. In some cases, the actual damage to the Department as a result of the MCO’s failure to meet any aspect of the responsibilities of the Contract and/or to meet specific performance standards set forth in the Contract will be difficult or impossible to determine with precise accuracy. Therefore, in the event of non-performance under this Contract, the Department will impose Liquidated Damages in writing against the MCO. In the event of non- performance the Department will assess Liquidated Damages against the MCO regardless of whether the non- performance is the fault of the MCO (including the MCO's Subcontractors, agents and/or consultants), provided the Department has not materially caused or contributed to the non-performance. The Liquidated Damages prescribed in this Contract contract are not intended to be in the nature of a penalty, but are intended to be reasonable estimates of the Department’s projected financial loss and damage resulting from the MCO’s non-performance. Accordingly, in the event the MCO fails to perform in accordance with the Contract, the Department may assess Liquidated Damages as provided in this Section and in Appendix G H of this Contract. Monetary penalties imposed under this Contract will not exceed the amounts established under 42 CFR §438.704. Any Liquidated Damages assessed by the Department will be due and payable within thirty (30) calendar days after the MCO’s receipt of the notice of damages, regardless of any dispute in the amount or interpretation which led to the notice, or an appeal of the notice filed by the MCO. If MCO fails to pay assessed damages within thirty (30) calendar days, the amount of damages will be deducted against capitation payments due to the MCO or that become due at any time after assessment of the Liquidated Damages. The Department will make deductions until the full amount payable by the MCO is collected. All Liquidated Xxxxxxx imposed pursuant to this Contract, whether paid or due, must be paid by the MCO out of administrative costs and profits. Per 42 CFR 438.704(c), if the Department imposes Liquidated Damages on the MCO for charging premiums or charges in excess of the amounts permitted under the Contract, the Department will deduct the amount of the overcharge from the Liquidated Damage and return it to the affected enrollee. If at any time the Department determines the MCO has not met any aspect of the responsibilities of the Contract and/or the specific performance standards due to mitigating circumstances, the Department reserves the right to waive all or part of the Liquidated Damages. All such waivers must be in writing, contain the reasons for the waiver, and be signed by the representative of the Department. Neither the occurrence of an event constituting an alleged MCO non-performance of this Contract nor the pending status of any claim for non-performance of Contract is grounds for the suspension of performance, in whole or in part, by the MCO of any duty or obligation with respect to the performance of this Contract. The MCO is responsible for any damages, penalties, or disallowances imposed on the State or MCO arising from any non-compliance or non-performance related to the delivery of the covered services or deliverables under this Contract by the MCO, its Subcontractors or agents.thirty

Failure to Meet Contract Requirements. The MCO must comply with all requirements and performance standards set forth in this Contract. The MCO agrees that failure to comply with all provisions of the Contract may result in the assessment of remedies and/or termination of the Contract, in whole or in part, in accordance with this Article. The MCO agrees and understands that the Department may pursue contractual remedies for non-performance under the Contract. At any time and at its discretion, the Department may impose or pursue one or more remedies for each item of non-performance and will determine remedies on a case-by-case basis. The Department is entitled to monetary damages in the form of actual, consequential, direct, indirect, special, and/or Liquidated Damages resulting from the MCO’s non-performance under this Contract. In some cases, the actual damage to the Department as a result of the MCO’s failure to meet any aspect of the responsibilities of the Contract and/or to meet specific performance standards set forth in the Contract will be difficult or impossible to determine with precise accuracy. Therefore, in the event of non-performance under this Contract, the Department will impose impose, in writing, Liquidated Damages in writing against the MCO. In the event of non- performance the The Department will assess Liquidated Damages against the MCO regardless of whether the non- non-performance is the fault of the MCO (including or the MCO's Subcontractors, agents and/or consultants), provided the Department has not materially caused or contributed to the non-performance. The Department will provide fifteen (15) days’ notice of its intent to assess Liquidated Damages against the MCO. The MCO will have ten (10) days from receipt of the Letter of Intent to assess Liquidated Damages to appeal the sanction. The Liquidated Damages prescribed in this Contract are not intended to be in the nature of a penalty, but are intended to be reasonable estimates of the Department’s projected financial loss and damage resulting from the MCO’s non-performance. Accordingly, in the event the MCO fails to perform in accordance with the Contract, the Department may assess Liquidated Damages as provided in this Section section and in Appendix G F of this Contract. Monetary penalties imposed under this Contract will not exceed the amounts established under 42 CFR §438.704. Any Liquidated Damages assessed by the Department will be due and payable within thirty (30) calendar days after the MCO’s receipt of the notice of damages, regardless of any dispute in the amount or interpretation which led to the notice, or an appeal of the notice filed by the MCO. If MCO fails to pay assessed damages within thirty (30) calendar days, the amount of damages will be deducted against capitation payments due to the MCO or that become due at any time after assessment of the Liquidated Damages. The Department will make deductions until the full amount payable by the MCO is collected. All Liquidated Xxxxxxx imposed pursuant to this Contract, whether paid or due, must be paid by the MCO out of administrative costs and profits. Per 42 CFR §438.704(c), if the Department imposes Liquidated Damages on the MCO for charging premiums or charges in excess of the amounts permitted under the Contract, the Department will deduct the amount of the overcharge from the Liquidated Damage and return it to the affected enrollee. If at any time the Department BMS determines the MCO has not met any aspect of the responsibilities of the Contract and/or the specific performance standards due to mitigating circumstances, the Department BMS reserves the right to waive all or part of the Liquidated Damages. All such waivers must be in writing, contain the reasons for the waiver, and be signed by the representative of the Department. Neither the occurrence of an event constituting an alleged MCO non-performance of this Contract nor the pending status of any claim for non-performance of Contract is grounds for the suspension of performance, in whole or in part, by the MCO of any duty or obligation with respect to the performance of this Contract. The MCO is responsible for any damages, penalties, or disallowances imposed on the State or MCO arising from any non-compliance or non-performance related to the delivery of the covered services or deliverables under this Contract by the MCO, its Subcontractors or agents.