BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.
and
HEALTH OPTIONS, INC.
PRESCRIPTION DRUG AGREEMENT
with
Option Care Enterprises, Inc.
d/b/a Option Med
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.
and
HEALTH OPTIONS, INC.
PRESCRIPTION DRUG AGREEMENT
TABLE OF CONTENTS
I. DEFINITIONS AND PARTIES 1
II. INDEPENDENT RELATIONSHIP 4
III. SERVICE AVAILABILITY 4
IV. PROFESSIONAL JUDGEMENT 5
V. GENERIC SUBSTITUTION AND DRUG FORMULARY COMPLIANCE 5
VI. ON-LINE PROCESSING 5
VII. REPRESENTATIONS OF PHARMACY 6
VIII. TERM AND TERMINATION 6
IX. PAYMENT TO PHARMACY 7
X. COPAYMENTS; OTHER CHARGES 8
XI. MEMBER NON-LIABILITY 8
XII. COORDINATION OF BENEFITS 9
XIII. INSURANCE 9
XIV. COOPERATION WITH COMPANIES 9
XV. MEMBER GRIEVANCE RESOLUTION PROCEDURE(S) 10
XVI. DISPUTE RESOLUTION; ARBITRATION 10
XVII. LISTING, ADVERTISING AND PROMOTION 11
XVIII. MAINTENANCE AND INSPECTION OF RECORDS; CONFIDENTIALITY 11
XIX. ACCESS TO MEDICAL RECORDS 12
XX. ASSIGNMENT AND DELEGATION 12
XXI. YEAR 2000 COMPLIANCE WARRANTY AND INDEMNIFICATION 12
XXII. GENERAL PROVISIONS 13
XXIII. NOTICES 15
Exhibit "A" Pharmacy Locations
Exhibit "B" Performance Standards
BLUE CROSS AND BLUE SHIELD OF
FLORIDA, INC.
AND
HEALTH OPTIONS, INC.
PRESCRIPTION DRUG AGREEMENT
THIS
PRESCRIPTION DRUG AGREEMENT (the "Agreement", including by this
reference any attached Exhibits) is made and entered into on the date or dates
set forth on the signature page below by and between the parties described in
Article 1 of this Agreement.
WHEREAS Blue Cross and Blue Shield of
Florida, Inc. ("BCBSF") is operating
as a health insurance company and Health Options, Inc. ("HEALTH OPTIONS") is
operating as a state certified health maintenance organization in the state of
Florida in accordance with applicable laws; and
WHEREAS BCBSF and HEALTH OPTIONS offer certain Members programs for the
purchase of prescription drugs (the Program); and
WHEREAS, PHARMACY, is willing to participate in the Program as a supplier
to Members of BCBSF and HEALTH OPTIONS (which organizations may be referred to
collectively hereafter as "COMPANIES" or individually as "COMPANY") in
accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree to the following:
I. DEFINITIONS AND PARTIES
The parties to this Agreement are:
Blue Cross and Blue Shield of
Florida, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
a
Florida corporation, and
HEALTH OPTIONS, INC.
Corporate Offices at
0000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
a
Florida corporation, and
1
OptionCare Enterprises, Inc
d/b/a OptionMed
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
hereinafter referred to as "PHARMACY".
As used herein, the term "COMPANIES" shall be deemed to refer both to
BCBSF and HEALTH OPTIONS collectively, and to each of them individually,
unless specifically states or required by the context to be otherwise.
1.1 AVERAGE WHOLESALE PRICE (AWP) means the wholesale price of a drug or
supply at the time of purchase as defined by the latest edition of the
drug file utilized by the Designated Administrator. The price shall be
based on the National Drug Code (NDC) number of the container from
which the drug or supply was dispensed.
1.2 CHARGE; COPAYMENT means the amount(s) required to be paid by a Member
in accordance with the requirements set out in the applicable Health
Benefits Contract or Health Services Agreement.
1.3 COVERED PRESCRIPTION means a prescription of a Legend Drug or a supply
that a Member is entitled to receive under applicable Health Benefits
Contract or Health Services Agreement. The term "Covered Prescription"
does not include, and in no event will payment be made for, any
prescription to which a Member is not entitled to payment under the
applicable Health Benefits Contract or Health Services Agreement, and
endorsements thereto.
1.4 COVERED MEMBER, MEMBER, BCBSF MEMBER, AND HEALTH OPTIONS' MEMBER means
an individual or dependent of an individual who, as determined by
COMPANIES, is eligible to receive services from PHARMACY by virtue of
this Agreement and is properly enrolled: (a) under a Health Benefits
Contract or Health Services Agreement with COMPANIES, and/or affiliates
or subsidiary of either; (b) under a Health Benefits Contract or Health
Services Agreement with a health plan that is participating in a
national network of Blue Cross and Blue Shield organizations, including
health maintenance organizations; (c) under a self-insurance agreement
administered by COMPANIES, and/or an affiliate or a subsidiary of
either; (d) under a health plan entitling the individual to receive
benefits under the federal Medicare program and is approved by the
Health Care Financing Administration as being entitled to receive
benefits under a Medicare risk contract (in lieu of benefits otherwise
available under the federal Medicare program and under any supplemental
Medicare policies), and/or (e) in another health plan which has
reciprocity or an agreement with COMPANIES, and/or affiliates, or a
subsidiary of either, for the provision of health care services to its
Members by COMPANIES. PHARMACY shall be furnished Member eligibility
information by COMPANIES' Designated Administrator. Additionally, as
determined by COMPANIES, COVERED MEMBER, MEMBER, BCBSF' MEMBER, AND
HEALTH OPTIONS' MEMBER shall mean an individual who is eligible to
receive services from PHARMACY by virtue of this Agreement and his or
her status as an
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employee of a participating employer that has entered into a workers'
compensation managed care arrangement with COMPANIES, and/or affiliates
or a subsidiary of either.
1.5 COVERED QUANTITY means a quantity of a Covered Prescription which is
prescribed in accordance with the requirements set out in applicable
Health Benefits Contract or Health Services Agreement.
1.6 COVERED REFILLS means refills of a Covered Quantity of a Covered
Prescription as allowed by law and authorized by a prescribing
physician.
1.7 DESIGNATED ADMINISTRATOR means the entity with which COMPANIES contract
to perform various administrative services as such relates to
COMPANIES' programs for the purchase of prescription drugs.
1.8 DRUG FORMULARY means a select list of prescription drugs which are
available to Member(s) through the Participating Pharmacy in accordance
with the Health Benefits Contract or Health Services Agreement. The
Drug Formulary may be updated for time to time.
1.9 HEALTH BENEFITS CONTRACT means a Contract, endorsement, or other
agreement which, by its terms, provides coverage for health care
services and/or supplies to Members. This may include, but is not
limited to, group or individual Comprehensive, Preferred Provider
Organization ("PPO"), Point of Service, or Medicare Supplement
contracts.
1.10 HEALTH SERVICES AGREEMENT means a HEALTH OPTIONS Health Services
Agreement or other agreement which, by its terms, arranges for the
delivery of health care services and/or supplies to Members.
1.11 LEGEND DRUG means a drug which in accordance with federal law can be
dispensed only pursuant to a prescription and which is required by law
to bear the legend, "Caution - Federal law prohibits dispensing without
prescription," or other similar language.
1.12 MAXIMUM ALLOWABLE COST (MAC) PRICE means the upper limit reimbursement
for a multiple source prescription drug at the time of processing.
1.13 NEGOTIATED RATE means the cost of the covered prescription based on the
rate negotiated between COMPANIES and PHARMACY as stated in section IX.
1.14 OVER THE COUNTER (OTC) DRUG means a medication which by state or
federal law does not require a prescription.
1.15 PARTICIPATING PHARMACY means a pharmacy that has entered into an
agreement either with COMPANIES, or through an agreement with a third
party, to provide Covered Prescriptions to Members according to the
applicable Health Benefits Contract or Health Services Agreement.
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1.16 PARTICIPATING PHYSICIAN means a physician who is authorized to provide
medical services to Members pursuant to a written agreement with
COMPANIES, and their affiliates and/or subsidiaries.
1.17 USUAL AND CUSTOMARY CHARGE means the customary dollar amount charged
(including any applicable PHARMACY discount programs) for a covered
drug or supply to customers not covered under a third party payor
program in which PHARMACY participates.
II. INDEPENDENT RELATIONSHIP
2.1 In the performance of the obligations of this Agreement, regarding any
services rendered to, or performed on behalf of, Members by either
party or its agents, servants or employees, each party is at all times
acting and performing as an independent contractor with respect to the
other party, and no party shall have or exercise any control or
direction over the method by which the other party shall perform such
work or render or perform such services and functions. It is further
expressly agreed that no work, act, commission or omission of any
party, its agents, servants or employees, pursuant to the terms and
conditions of this Agreement, shall be construed to make or render any
party, its agents, servants or employees, an agent, servant,
representative, or employee of, or joint venturer with, the other
party.
2.2 PHARMACY hereby expressly acknowledges its understanding that this
Agreement constitutes a contract between PHARMACY and COMPANIES, that
BCBSF is an independent corporation operating under a license with Blue
Cross and Blue Shield Plans, permitting BCBSF to use the Blue Cross and
or Blue Shield Service Xxxx in the States of
Florida and Alabama, that
HEALTH OPTIONS is an independent corporation operating under a license
or sublicense with the Blue Cross and Blue Shield Association (the
"Association"), an association of independent Blue Cross and Blue
Shield Plans, permitting HEALTH OPTIONS to use the Blue Cross and/or
Blue Shield Service Xxxx in the States of
Florida and Alabama, and that
COMPANIES are not contracting as agents of the Association, PHARMACY
further acknowledges and agrees that it has not entered into this
Agreement based upon representations by any person other than COMPANIES
and that no person, entity, or organization other than COMPANIES shall
be held accountable or liable to PHARMACY for any of COMPANIES'
obligations to PHARMACY created under this Agreement. This paragraph
shall not create any additional obligations whatsoever on the part of
COMPANIES other than those obligations created under other provisions
of this agreement.
III. SERVICE AVAILABILITY
3.1 PHARMACY shall be a provider of pharmacy services restricted to
non-compounded member administered injectable medications to Covered
Members pursuant to the terms of this Agreement, and delivered to
location requested by member from THE LOCATIONS SHOWN ON EXHIBIT A.
PHARMACY shall notify COMPANIES in writing of significant changes in
operating hours of PHARMACY, or of locations, within a reasonable
period of time from occurrence.
3.2 In the event that an individual presents a prescription to be filled by
PHARMACY and shows evidence of being a Member, but the individual's
name does not appear on the most current
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eligibility information furnished to PHARMACY, PHARMACY will: (1) call
a designated COMPANIES office and request verbal confirmation, and if
confirmation is then received, COMPANIES will be responsible for
payment; or (2) if not so confirmed, collect cash and provide the
individual with a receipt; or (3) fill the prescription under the
Program, and assume the risk if the individual is determined to be
ineligible.
IV. PROFESSIONAL JUDGMENT
4.1 PHARMACY reserves the right to refuse to compound or dispense any
prescription in the exercise of its pharmacists' professional judgment;
provided, however, that PHARMACY shall remain solely liable to any and
all persons and/or entities resulting therefrom.
V. GENERIC SUBSTITUTION AND DRUG FORMULARY COMPLIANCE
5.1 PHARMACY will promote and, where not specifically prohibited by a
prescribing physician, utilize generic products to the greatest extent
possible. All generic products utilized must be in compliance with
applicable federal and state requirements including those of the
Federal Food and Drug Administration. COMPANIES will encourage
Participating Physicians to permit generic substitution as a means of
cost containment whenever, in the judgement of such physicians, such
substitution would not jeopardize the health of his or her patients. It
is acknowledged that, in addition to any other copayment amounts,
Members may be responsible for the difference between the price of the
generic drug and the price of the brand drug, as such may be required
in applicable Health Benefits Contracts or Health Services Agreements.
5.2 PHARMACY, when providing services under this Agreement, agrees to
utilize the COMPANIES Drug Formularies.
VI. ON-LINE PROCESSING
6.1 Pharmacy shall submit all claims for Covered Prescriptions provided
under this Agreement on-line (i.e. electronic) to the Designated
Administrator within 14 days of dispensing, including claims where the
Negotiated Rate or the Usual and Customary Charge is less than the
applicable copayment. On-line claims shall include the PHARMACY'S Usual
and Customary Charge.
6.2 PHARMACY shall utilize on-line processing capabilities that are
compatible with COMPANIES' Designated Administrator. Pharmacy shall
file all claims for any Member whose Health Benefits Contract contains
a Copayment arrangement for covered Prescriptions. Pharmacy shall
provide all Members whose Health Benefits Contract does not contain a
Copayment arrangement with a receipt containing all applicable
information required on COMPANIES' Drug Claim Form, including the
Pharmacy's Charge as defined by this agreement.
5
VII. REPRESENTATIONS OF PHARMACY
PHARMACY represents and agrees:
7.1 That it has and shall, during each term of this Agreement, maintain in
full force and effect, all licenses, permits, certifications, and other
approvals required under federal, state and/or local law in regard to
providing services in accordance with this Agreement.
7.2 That all personnel who are employed by PHARMACY, directly or
indirectly, to compound, dispense or otherwise provide Covered
Prescriptions or Covered Refills to Members possess any and all
licenses, permits, certifications and regulatory approvals required by
law; that all such personnel shall perform only those services which
they are legally authorized and permitted to perform; and that all such
personnel shall perform their duties in accordance with all local,
state and federal licensing requirements, as well as national, state
and county standards of professional ethics and practice as may be
applicable.
VIII. TERM AND TERMINATION
8.1 This Agreement shall become effective as of the effective date
appearing on the signature page hereof, and shall continue in effect
until the date shown on such signature page as the initial termination
date. Thereafter, this Agreement shall continue in effect from year to
year from such initial termination date unless terminated by the mutual
written agreement of the parties. Notwithstanding the foregoing, and
notwithstanding any other provisions of this Agreement, either party
may terminate this Agreement at any time by giving at least ninety (90)
days prior written notice of such termination to the other party.
8.2 Subject to the requirements of Sections 8.3 and 8.4 directly below,
COMPANIES or PHARMACY may terminate this Agreement immediately at any
time if the other party fails to have all applicable licenses or the
full amount of insurance coverage required under the provisions of
Section XIII ("Insurance"). In addition, either party may terminate
this Agreement immediately at any time for cause. For purposes of this
Agreement, "cause" shall include a material breach of an obligation to
be performed hereunder, or a finding that there was fraud, and/or a
conviction of a felony, by a party or any individual affiliated with
PHARMACY who provides or arranges the provision of services to Members.
Further, COMPANIES may terminate this Agreement immediately at any time
if COMPANIES determine that Member dissatisfaction exists with respect
to services provided by PHARMACY. Termination shall have no effect upon
the rights and obligations of the parties arising out of any
transactions occurring prior to the effective date of such termination.
8.3 RIGHT OF DEPARTMENT OF INSURANCE TO ORDER CANCELLATION. As required
under FLORIDA STATUTES Section 641.234, the Department of Insurance may
order HEALTH OPTIONS to cancel this Agreement, if it determines that
the fees to be paid by HEALTH OPTIONS are so unreasonably high as
compared with similar contracts entered into by HEALTH OPTIONS or as
compared with similar contracts entered into by other health
maintenance organizations in similar circumstances, such that this
Agreement is detrimental to the subscribers,
6
stockholders, investors, or creditors of HEALTH OPTIONS, This agreement shall be
canceled upon issuance of such order by the department pursuant to this section.
8.4 As required under FLORIDA STATUTES Section 641.315, PHARMACY shall
provide sixty (60) days' advance written notice to HEALTH OPTIONS and
the Department of Insurance at the addresses listed in the "Notice"
section of this Agreement before canceling this Agreement with HEALTH
OPTIONS for any reason. Nonpayment for goods or services rendered by
the PHARMACY to HEALTH OPTIONS or any of its Members shall not be a
valid reason for avoiding such 60-day advance notice of cancellation.
Upon receipt by HEALTH OPTIONS of a 60-day cancellation notice, HEALTH
OPTIONS may, if requested by the PHARMACY, terminate the contract in
less than sixty (60) days if HEALTH OPTIONS is not financially impaired
or insolvent.
8.5 As required under FLORIDA STATUTES Section 641.315, HEALTH OPTIONS
shall provide sixty (60) days' advance written notice to PHARMACY and
the Department of Insurance at the addresses listed in the "Notice"
section of this Agreement before canceling, without cause, this
Agreement with PHARMACY, except in such cases where a Member's health
is subject to imminent danger.
8.6 HEALTH OPTIONS and PHARMACY hereby acknowledge and agree that the
provisions of 8.4 and 8.5 above do not relieve either party of any of
its other obligations under this Agreement that are not inconsistent
with the foregoing, including without limitation any obligation either
party has to provide more than sixty (60) days' notice of cancellation
of this Agreement, to the other party.
IX. PAYMENT TO PHARMACY
9.1 COMPANIES PAYMENT. Subject to the restrictions set forth in this
Agreement, Pharmacy shall charge, and be paid by COMPANIES, for Members
enrolled in PPO, HMO, Point of Service, Comprehensive or Major Medical
Health Benefits Contract for each Covered Quantity of a Covered
Prescription or Covered Refill properly dispensed by PHARMACY the
lesser of: (i) PHARMACY'S Usual and Customary Charge; or (ii) as to
brand name products, the Average Wholesale Price (AWP) less 13%; as to
generic products, the COMPANIES MAC Price plus dispensing fee of $2.50,
less the Copayment or other charge liability of Member as set forth in
Section X of this Agreement. COMPANIES shall supply PHARMACY current
MAC Prices upon request. Any other pharmacy charges shall be agreed
upon by the parties in writing and may become an addendum to this
Agreement if so designated in writing. Payment to PHARMACY may be made
by COMPANIES through COMPANIES' Designated Administrator who shall have
the responsibility to process Member claims and who will make payment
to PHARMACY. Payment(s) by such Designated Administrator shall,
however, be conditioned upon Administrator's receipt from PHARMACY of
all information designated by COMPANIES or Administrator as a condition
precedent to payment to PHARMACY.
9.2 In the event of any overpayment, duplicate payment, or other payment of
an amount in excess of that to which PHARMACY is entitled, COMPANIES
may, in addition to any other remedy, recover the same by way of
offsetting the amounts overpaid against current and future amounts due
to PHARMACY and/or seeking an immediate refund of the amount deemed by
COMPANIES to be an overpayment from PHARMACY.
7
9.3 Pursuant to paragraph VI hereof, all claims must be submitted on-line
within fourteen (14) days of the date a covered prescription is
dispensed even if the prescription cost is less than the Copayment.
Failure to submit claims within fourteen (14) days shall result in
non-payment by COMPANIES. PHARMACY acknowledges that member shall not
be liable for payment for such claims which are not timely submitted.
X. COPAYMENTS; OTHER CHARGES
10.1 At the time of receipt of the Covered Prescription or Covered Refill, a
Member may be required, in accordance with applicable COMPANIES'
Agreements, to pay PHARMACY a Copayment or other charge(s) for each
Covered Quantity of a Covered Prescription or Covered Refill. The
amount of such Copayment or other charge(s) shall be the amount set out
in the applicable Health Benefits Contract or Health Services
Agreement. PHARMACY shall have full responsibility for the collection
of such Copayment(s) as well as any other charge(s) set out in the
applicable Health Benefits Contract or Health Services Agreement.
Any such payment shall not be affected by any discount, coupon, or
other promotional allowance that may be in existence at the time of
such payment. PHARMACY shall not receive any payment or credit for any
reduction of a Member's payment resulting from any discount, coupon, or
other promotional allowance. Members, in addition to Copayment
responsibility, also shall be responsible for charges for any items or
services that are not the responsibility of COMPANIES, including
charges for quantities of Covered Prescriptions or Covered Refills
which are (1) dispensed prior to a Member's satisfaction of his or her
deductible obligations as are set forth in the applicable Health
Benefits Contract or Health Services Agreement; or, (2) are in excess
of applicable Covered Quantities. PHARMACY shall not receive any
payment or credit from COMPANIES for charges for any items or services
that are dispensed contrary to this section.
XI. MEMBER NON-LIABILITY
11.1 PHARMACY hereby agrees that in no event including, but not limited to,
non-payment by COMPANIES, insolvency of COMPANIES, or breach of this
Agreement, shall PHARMACY xxxx, charge, collect a deposit from, seek
compensation, remuneration or reimbursement from, or have any recourse
against any Member or persons other than COMPANIES acting on the
Member's behalf, for services provided pursuant to this Agreement. This
provision shall not prohibit collection of supplemental charges or
Copayments in accordance with the terms of the applicable Health
Benefits Contract or Health Services Agreement.
11.2 PHARMACY further agrees that: (1) this provision shall survive the
termination of this Agreement regardless of the cause giving rise to
termination and shall be construed to be for the benefit of COMPANIES'
Members; and that, (2) this provision supersedes any oral or written
contrary agreement now existing or hereafter entered into between
PHARMACY and any Member or persons acting on such Member's behalf.
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XII. COORDINATION OF BENEFITS
12.1 Pharmacy agrees to cooperate fully with the coordination of benefits
procedures of COMPANIES then in effect.
XIII. INSURANCE
13.1 PHARMACY, at its sole cost and expense, shall procure and maintain such
policies of general and professional liability insurance and such other
insurance as shall be necessary to insure it and its employees against
any claim or claims for damages arising out of, or related to, alleged
personal injuries or death resulting from the performance or
non-performance of services and activities of PHARMACY or its
employees, or the use of any facilities, equipment or supplies provided
by PHARMACY. Each of such policies shall be in amounts acceptable to
COMPANIES. PHARMACY shall furnish COMPANIES reasonable proof of such
insurance as may be requested upon execution of this Agreement and/or
at any reasonable time thereafter, and shall notify COMPANIES in
writing at least thirty (30) days prior to the termination or any
reduction of such coverage. The failure to give such notice, or the
absence of such coverage, is grounds for immediate termination of this
Agreement.
XIV. COOPERATION WITH COMPANIES
14.1 PHARMACY agrees to cooperate with COMPANIES fully in connection with
the conducting by COMPANIES of their credentialing activities, peer
review activities, utilization management programs, drug use evaluation
programs, complaint resolution processes, and quality management
programs which COMPANIES establish to the extent that such programs
relate to pharmacy services and/or supplies to be provided in
accordance with this Agreement, and in connection with its regular
audit activities. In connection therewith, PHARMACY will allow
employees, agents, and/or independent contractors retained by COMPANIES
for the performance of such activities, access to records pertaining to
Members at reasonable times, consistent with applicable Florida law.
PHARMACY will comply with all reasonable requirements and policies of
COMPANIES used in administering such activities and/or programs and,
further, shall comply with administrative policies and procedures that
are used by COMPANIES in conducting their business operations.
COMPANIES shall not be subject to liability to PHARMACY as a result of
conducting such activities or programs, provided that COMPANIES have
acted in good faith.
14.2 PHARMACY agrees to comply with the specific Performance Standards set
out in Exhibit B.
14.3 PHARMACY and COMPANIES agree to make all reasonable efforts, consistent
with advice of counsel and the requirements of applicable insurance
policies and carriers, to coordinate the defense of all claims in which
the other is either a named defendant or has a substantial possibility
of being named.
XV. MEMBER GRIEVANCE RESOLUTION PROCEDURE(S)
9
15.1 PHARMACY acknowledges that COMPANIES, in and pursuant to their various
agreements with groups and individuals to provide prepaid health care,
have established a grievance resolution procedure which provides a
meaningful process for hearing and resolving disputes arising
thereunder, involving Members, COMPANIES, Participating Providers
and/or PHARMACY. A copy of the applicable grievance resolution
procedure will be made available to PHARMACY upon reasonable request.
The parties agree that any complaint, grievance or claim asserted
pursuant to such grievance resolution procedure shall be resolved in
accordance with such grievance resolution procedure and that they will
comply with reasonable requests from COMPANIES to assist in resolving
such disputes and will comply with all final determinations made
through the grievance procedure.
XVI. DISPUTE RESOLUTION; ARBITRATION
16.1 Both parties agree to meet and confer in good faith to resolve any
controversy or claim arising out of or relating to this Agreement or
the breach thereof; provided, however, that the foregoing shall in no
way be construed in a manner that would modify or limit the rights and
obligations of the parties under Section VIII above with respect to
termination of this Agreement. Unless otherwise prohibited by law, any
such controversy or claim which cannot be so resolved shall be
submitted to binding arbitration. Unless the parties agree in writing
to modify the procedure for such arbitration, the following procedure
shall be followed: Arbitration may be initiated by either party making
a written demand for arbitration on the other party within a reasonable
time from the date the claim, dispute, or controversy arose, but in no
event later than the date legal proceedings would be barred by the
applicable statute of limitations. The party making such demand shall
designate a competent and disinterested arbitrator in such written
demand. Within thirty (30) days of that demand, the other party shall
designate a competent and disinterested arbitrator and give written
notice of such designation to the party making the initial demand for
arbitration. Within thirty (30) days after such notices have been
given, the two arbitrators so designated shall select a third competent
and disinterested arbitrator and give notice of the selection to both
parties. If the two arbitrators designated by the parties are unable to
agree on a third arbitrator within thirty (30) days, then upon request
of either party such third arbitrator shall be selected by a Circuit
Judge in the county in which arbitration is pending. The arbitrators
shall then hear and determine the question or questions in dispute, and
the decision in writing of any two arbitrators shall be binding upon
the parties. The arbitration shall be held in the State of Florida at a
location to be designated by the party not making the initial demand
for arbitration. Unless the parties otherwise agree, the arbitration
shall be conducted in accordance with the rules governing procedure and
admission of evidence in the courts of the State of Florida. Each party
shall pay its chosen arbitrator and shall bear equally the expense of
the third arbitrator and all other expenses of the arbitration,
provided that attorney's fees and expert witness fees are not deemed to
be expenses of arbitration but are to be borne by the party incurring
them. Except as otherwise provided in this Agreement, arbitration shall
be governed by the provisions of the Florida Arbitration Code.
XVII. LISTING, ADVERTISING AND PROMOTION
17.1 PHARMACY agrees that COMPANIES may identify PHARMACY as a provider of
services to COMPANIES and also agrees that COMPANIES may advertise,
publicize, and otherwise
10
promote their relationship with PHARMACY to potential and existing
Members in accordance with COMPANIES' marketing program. COMPANIES
may list the name, address, telephone number of PHARMACY, and a
description of its facilities and services, in COMPANIES'
directories or other lists of providers of services. COMPANIES
further agree that, except as provided in the foregoing sentence,
the name, symbols, trademarks, trade names, and service marks of
each party, whether presently existing or hereafter established,
are proprietary; and each party reserves to itself the right to the
use and control thereof. In addition, except as provided in the
first sentence hereof, neither party shall use the other party's
name, symbols, trademarks or service marks in advertising or
promotional materials or otherwise without the prior written
consent of that party and shall cease any such usage immediately
upon written notice of the party or upon termination of this
Agreement, whichever is sooner.
XVIII. MAINTENANCE AND INSPECTION OF RECORDS; CONFIDENTIALITY
18.1 PHARMACY agrees to maintain adequate business and medical records in
English relating to the provision of Covered Services to Members during
the term of this Agreement for a period not less than seven (7) years
of the record's creation.
18.2 PHARMACY and COMPANIES agree that all Member medical records shall be
treated as confidential so as to comply with all state and federal laws
regarding the confidentiality of patient records. However, COMPANIES
and any COMPANIES Affiliate, subject to applicable laws, shall have
access to, and shall have the right upon request to inspect and, at its
own expense, copy, at all reasonable times, any accounting,
administrative, and medical records maintained by PHARMACY pertaining
to COMPANIES, relating to Covered Services provided to Members, and to
PHARMACY's participation hereunder. In addition, PHARMACY will allow
inspection of books and records related to PHARMACY's dealings with
COMPANIES by COMPANIES, by authorized state agencies, and by the
Department of Health and Human Services and the Comptroller General of
the United States or their duly authorized representatives; provided,
however, that, whenever feasible, PHARMACY shall notify COMPANIES prior
to releasing information to any agency or entity other than COMPANIES.
18.3 This section shall not be interpreted to place any obligation on
PHARMACY that would cause PHARMACY to act or otherwise be in violation
of applicable state or federal law.
18.4 Pharmacy shall maintain a signature log at each pharmacy location. Each
Covered Member or his or her authorized agent who receives a Covered
Prescription shall be required to sign the log, acknowledging the date
the Covered Prescription is received, the prescription number and
whether the prescription is for a work-related injury or illness, if so
required by state and/or federal regulation.
XIX. ACCESS TO MEDICAL RECORDS
19.1 Until expiration of six (6) years after the furnishing of services
pursuant to this Agreement, PHARMACY shall make available, upon written
request, to the Secretary of the Department of Health and Human
Services, to the Comptroller General, or to any other applicable
governmental authority, this Agreement and books, documents and records
of PHARMACY
11
that are required by such authorities in order to certify the
nature and extent of costs incurred with respect to any services
furnished for which payments may be made under the Medicare and
Medicaid programs. If PHARMACY carries out any of the duties of
this Agreement through a subcontract, having a value or a cost of
$10,000 or more over a twelve month period, such subcontract shall
incorporate by reference all terms and conditions required of such
a clause whereby, until expiration of six (6) years after the
furnishing of such services pursuant to such subcontract, the
related organization shall make available, upon written request, to
the Secretary of the Department of Health and Human Services, to
the Comptroller General, or to their duly authorized
representatives, the subcontract, and the books, documents and
records of such organization that are necessary to verify the
nature and extent of costs incurred with respect to any services
furnished for which payments may be made under the Medicare or
Medicaid programs. Further, PHARMACY specifically acknowledges
that, and agrees to inform any subcontractor who performs any of
the obligations of PHARMACY under this Agreement that, payments
received under this Agreement may, in whole or part, be Federal
funds.
XX. ASSIGNMENT AND DELEGATION
20.1 Neither party may assign any rights or delegate any duties or
obligations under this Agreement, or transfer this Agreement in any
manner, without the express written approval of a duly authorized
representative of the other party, and any such attempted assignment,
delegation or transfer in violation of this provision shall be void;
provided, however, that COMPANIES expressly reserve the right to assign
any and all of their rights, and to delegate any and all of their
duties and obligations hereunder, and to in any manner transfer this
Agreement, to a COMPANIES Affiliate, provided that COMPANIES shall
notify PHARMACY of any such assignment, delegation or transfer in
writing at least thirty (30) days prior thereto.
XXI. YEAR 2000 COMPLIANCE WARRANTY AND INDEMNIFICATION
21.1 PHARMACY specifically acknowledges that it has, or will have, in place
an appropriate management plan to, when necessary, modify, in order to
be "Year 2000 Ready", the operation of its computer systems and
equipment necessary for it to provide services to be delivered under
this Agreement and, as a consequence: (i) such systems and equipment
will not materially malfunction when transitioning from December 31,
1999 to January 1, 2000 or from twentieth century dates to twenty-first
century dates; and/or (ii) even if such systems and equipment
malfunction when making such date transition, PHARMACY will have in
place a contingency plan permitting it to continue to materially comply
with its obligations under this Agreement notwithstanding any such
computer system/equipment malfunction."
XXII. GENERAL PROVISIONS
22.1 AMENDMENT: This Agreement or any part of it may be amended at any time
during the term of the Agreement by mutual consent in writing of duly
authorized representatives of the parties except that COMPANIES may
unilaterally amend this Agreement by giving ninety (90) days written
notice of a proposed amendment to PHARMACY. If PHARMACY does not make a
written objection to COMPANIES within ninety (90) days after receipt of
notification of
12
proposed amendment, the amendment will be deemed acceptable. Provided,
however, that any change (including any addition and/or deletion) to
any provision or provisions of this Agreement that is required by duly
enacted federal or Florida legislation, or by a regulation or rule
finally issued by a regulatory agency pursuant to such legislation,
rule or regulation, will be deemed to be part of this Agreement without
further action required to be taken by either party to amend this
Agreement to effect such change or changes, for as long as such
legislation, regulation or rule is in effect.
22.2 APPLICABLE LAW: The validity of this Agreement and of any of its terms
and provisions, as well as the rights and duties of the parties
hereunder, shall be interpreted and enforced pursuant to and in
accordance with the laws of the State of Florida.
22.3 ATTORNEY FEES: ENFORCEMENT COSTS: Except in the case of arbitration
proceedings referred to above, or if the parties otherwise agree in
writing, if any permitted legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorney's fees, court
costs, and other reasonable expenses incurred in connection with
maintaining or defending such action or proceeding, as the case might
be, including any such attorney's fees, costs, or expenses incurred on
appeal, in addition to any other relief to which such party or parties
may be entitled.
22.4 BINDING EFFECT: This Agreement shall be binding upon and inure to the
benefit of the parties, their successors, and their permitted assigns,
unless otherwise set forth herein or agreed to by the parties in
writing.
22.5 CONFIDENTIALITY OF CONTRACT TERMS AND MEMBER LISTINGS: PHARMACY
acknowledges and agrees that the reimbursement rates paid by COMPANIES,
and other aspects of this Agreement, including, without limitation, any
and all membership listings provided to Provider by COMPANIES, are
competitively sensitive. PHARMACY will not disclose such rates,
membership listings, and other aspects of this Agreement, to third
parties, except upon the prior written authorization of COMPANIES.
22.6 ENFORCEABILITY: In the event any provision of this Agreement is
rendered invalid or unenforceable by a valid Act of Congress or of the
Florida Legislature or by any regulation duly promulgated by officers
of the United States or of the State of Florida acting in accordance
with law, or declared null and void by any court of competent
jurisdiction, the remainder of the provisions of this Agreement shall
remain in full force and effect.
22.7 ENTIRE AGREEMENT: SIGNATURES REQUIRED: This Agreement, which shall be
deemed to include all attachments, amendments, exhibits, addenda, and
schedules, if any, contains the entire Agreement between the parties.
Any prior agreements, promises, negotiations or representations, either
oral or written, relating to the subject matter of this Agreement and
not expressly set forth in this Agreement are of no force or effect.
This Agreement will be effective and binding on the parties only if the
duly authorized signatures of the parties are affixed hereto where
indicated on the signature page below, and not otherwise.
13
22.8 HEADINGS: The headings of sections contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
22.9 LIMITATIONS ON LIABILITY: Although this Agreement contemplates services
for Members, the parties reserve the right to amend or terminate this
Agreement without notice to, or consent of, any such Member. Subject to
the provisions of Section XI (Member Non-Liability for Payment), no
persons or entities except for COMPANIES and PHARMACY are intended to
be or are, in fact, beneficiaries of this Agreement; and its existence
shall not in any respect whatsoever increase the rights of any Member
or other third party, or create any rights on behalf of any Member or
other third party vis-a-vis either of the parties. Furthermore, nothing
in this Agreement shall impose upon COMPANIES any obligation to render
any health care services. COMPANIES shall not be responsible for any
act, omission, or default of any hospital, physician or other
independent contractor, or for any negligence, misfeasance, malfeasance
or nonfeasance of any other independent contractor. PHARMACY shall not
be responsible for any act, omission, or default of COMPANIES, or for
any negligence, misfeasance, malfeasance, or nonfeasance of COMPANIES.
No provision of this Agreement shall be deemed to constitute an
agreement by either party to indemnify or hold harmless any other
person or entity, whether or not a party hereto.
22.10 NON-DISCRIMINATION: In carrying out their obligations under this
Agreement, PHARMACY shall not discriminate against any Member on a
basis of race, color, religion, sex, national origin, marital status,
or physical or mental handicap; nor shall PHARMACY knowingly contract
with any person or entity which discriminates against any Member on any
such basis.
22.11 NON-EXCLUSIVITY: The parties hereby acknowledge that this Agreement is
not exclusive, and that each party may freely contract with any other
person, firm or entity concerning the subject matter hereof.
22.12 SURVIVAL OF PROVISIONS UPON TERMINATION: Any provision of this
Agreement which requires or reasonably contemplates the performance of
obligations by either party after the termination of this Agreement
shall survive such termination unless otherwise specifically provided
herein.
22.13 WAIVER OF BREACH: Waiver of a breach of this Agreement shall not be
deemed to be a waiver of any other breach and shall not bar any action
for subsequent breach thereof.
XXIII. NOTICES
23.1 Any notice required to be given pursuant to the terms and provisions of
this Agreement shall be in writing, postage prepaid, and shall be sent
(by certified or registered mail, return receipt requested, or by
federal express or other overnight mail delivery for which evidence of
delivery is obtained by the sender), to the address or addresses set
forth below unless the sender has been otherwise instructed in writing
or unless otherwise provided by law. The notice shall be
14
deemed to be effective on the date indicated on the return receipt or,
if no date is so indicated, then on the date of the notice.
TO PHARMACY:
Option Care Enterprises, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
TO DEPARTMENT OF INSURANCE
Bureau of Allied Lines
Room 637, Xxxxxx Building
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000-00
To BCBSF and HEALTH OPTIONS:
Blue Cross and Blue Shield of FL, Inc. and Health Options, Inc.
Attn: Director of Pharmacy
0000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
WITH A COPY TO:
Blue Cross and Blue Shield of FL, Inc. and Health Options, Inc.
Attn: Legal Affairs
0000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
15
IN WITNESS WHEREOF, by placing their duly authorized
signatures below, the parties hereby execute this Agreement and
agree to be bound by its terms.
Effective Date: 3/8/2000
Initial Termination Date: 3/8/2001
OPTION CARE ENTERPRISES, INC.
BCBSF, INC. AND HEALTH OPTIONS, INC. dba OPTION MED
------------------------------------ -----------------------------
PHARMACY (correct legal name)
By: /s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- ----------------------------
Name: Xxxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxx
----------------------------- --------------------------
(Print) (Print)
Title: VP Title: President & CEO
----------------------------- --------------------------
Date Signed: 3/8/00 Date Signed: March 6, 2000
----------------------- -------------------
00
XXXX XXXXX XXX XXXX XXXXXX XX XXXXXXX, INC.
AND
HEALTH OPTIONS, INC.
PRESCRIPTION DRUG AGREEMENT
EXHIBIT "A"
PHARMACY LOCATIONS
OptionCare, Inc.
0000 XX 00xx Xxxxxx, Xxxxx #000
Xxxxx, Xxxxxxx 00000
NABP # 1080340
Page 1 Exhibit "A"
*A Confidential Treatment Request pursuant to Rule 24(B)-2 under the
Securities Exchange Act Of 1934, as amended, for certain information in this
document has been filed with the Securities and Exchange Commission. The
information for which treatment has been sought has been deleted from such
exhibit and the deleted text replaced by an asterisk (*).
BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.
AND
HEALTH OPTIONS, INC.
BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.
AND
HEALTH OPTIONS, INC.
PRESCRIPTION DRUG AGREEMENT
EXHIBIT "B"
PERFORMANCE STANDARDS
*
Page 1 Exhibit "B"
