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09/28/2005 AgreementDANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: November 18, 2005 TO: Maria Z. Fernandez, Administrator Group Insurance/Worker's Compensation FROM: Pamela G. HT !f Deputy Clerk At the September 28, 2005, Board of County Commissioner's meeting the Board granted approval of a three year contract joinder for prescription benefit management services with Walgreens Health Initiatives (WHP) through Keys Physician - Hospital Alliance (KPHA) and waiver of bid policy. Current Contract terminates September 30, 2005. Enclosed is a duplicate original of the above - mentioned for your handling. Should you have any questions please do not hesitate to contact this office. cc: County Attorney Finance File✓ PRESCRIPTION SERVICE AGREEMENT PRESCRIPTION SERVICE AGREEMENT This Prescription Service Agreement ( " Agreement") is entered into this 1" day of October, 2005 by and between LOWER FLORIDA KEYS PHYSICIAN/Hospital ORGANIZATION, INC., a Florida not for profit corporation doing business as Keys Physician- Hospital Alliance ( "KPHA "), and Walgreens Health Initiatives, INC., an Illinois corporation, ( "WHI "). RECITALS WHEREAS, KPHA operates a provider network which, as its primary objective, arranges for the delivery of health care services to persons enrolled in health care plans; WHEREAS, KPHA has entered or will enter into agreements (all referred to as "Payor Agreements ") with managed care plans such as health maintenance organizations, self - insured employers, third party administrators, or preferred provider organizations (individually and collectively referred to as "Plan(s) ") to provide health services to Members of such Plans; and WHEREAS, WHI manages prescription benefit programs that include the dispensing of prescription drugs by and through its network of retail community pharmacies (hereinafter "Participating Pharmacy(ies) ") and arranges for prescription benefit management and claim processing services for Plans; and WHEREAS, WHI also manages a prescription benefit that includes the dispensing of prescription drugs by mail service pharmacy (hereinafter "Participating Mail Service Pharmacy "); and WHEREAS, KPHA desires to arrange for the provision of Prescription Services to Plan Members (and their eligible dependents) through WHI's network of Participating Pharmacies and by Participating Mail Service Pharmacy (collectively referred to as "Pharmacy" or "Pharmacies "), as well as prescription benefit management and claim processing services by and through WHI; and WHEREAS, WHI is willing to make available Prescription Services to Members through its network of Participating Pharmacies and by Participating Mail Service Pharmacy and to provide pharmacy benefit management and claim processing services to Plans upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth in this Agreement, and other good and valuable consideration, the parties to this Agreement agree as follows: IF, DEFINITIONS For purposes of this Agreement, the following words and phrases shall have the meaning specified. 1.1 "Agreement" means this Prescription Service Agreement between KPHA and WHL 1.2 "Average Wholesale Price" or "AWP means the price defined and distributed by First Data Bank for each drug in the database. This price is based on the 11 -digit NDC number submitted for the dispensed medication. Such AWP prices will be updated in the claims processing system on at least a weekly basis to reflect current AWP pricing. WHI CONTRACT RENEWAL REVISION 20051 1.3 "Certificate of Coverage" means the description of Plan Benefits for a particular Plan 1.4 " Copayment" means those charges collected directly by Pharmacy from a Member as additional payments for Covered Services. 1.5 "Covered Services" means those properly authorized Prescription Services that are expressly covered under the Members' Plan. 1.6 "Group Service Contract" means an agreement between a Plan and an employer, including, but not limited to, an administrative services only type agreement, under which Subscribers and eligible dependents, if any, are entitled to become Members of the Plan in accordance with the terms of such agreement. 1.7 "Individual Subscriber "or "Subscriber" means an individual who has entered into an Individual Subscription Agreement with a Plan. 1.8 "Individual Subscription Agreement" means an agreement between a Plan and an Individual Subscriber by which such individual and his or her eligible dependents, if any, are entitled to become Members of the Plan in accordance with the terms of such agreement. Individual Subscription Agreements shall include agreements between a Plan and a Subscriber entitled to benefits under Title XVIII of the Social Security Act, as amended. 1.9 "MAC List" or "Maximum Allowable Cost List" means WHI's proprietary list of generic drugs and their associated prices at which Plan will pay WHI for dispensing services provided by Participating Pharmacies and the Participating Mail Service Pharmacy hereunder. The MAC List is subject to periodic review and modification by WHI. 1.10. "Member means an eligible subscriber and his or her eligible dependents that have been enrolled in a Plan under a Group Service Contract or an Individual Subscription Agreement, and whose enrollment, copayment and benefit coverage are communicated by KPHA and/or Plan to WHI in accordance with the terms of this Agreement. 1.11 "Participating Physician" means any physician licensed to practice in the State of Florida who satisfies the participation criteria established by KPHA and who has entered into a contractual arrangement with, or is otherwise engaged by, KPHA to provide Covered Services to Members. 1.12 " Payor Agreement" means an agreement by and between a Plan and KPHA under which KPHA agrees to provide or arrange for the provision of certain health care services, and/or provide or arrange for the provision of other non - health care services, including, for example, utilization review and quality assurance programs, for the benefit of Subscribers. 1.13 "Plan" means a health maintenance organization, preferred provider organization, insurer, employer and/or other third party payor for health care services, which entity has entered into a Payor Agreement with KPHA. 1.14 "Plan Benefits" means the medical services or supplies to which Members are entitled pursuant to an Individual Subscription Agreement or a Group Service Contract and which are described in a Certificate of Coverage. 1.15 "Prescription Services" means dispensing of medications, general support and consultative services regarding pharmacy benefit design and implementation, administrative and claims processing WHI CONTRACT RENEWAL REVISION 20051 4 services, standard reporting packages, marketing, quality management and utilization management functions, as applicable to pharmacy benefits. 2. PRESCRIPTION SERVICES ENGAGEMENT 2.1 Provision of Services. KPHA hereby engages WHI, and WHI hereby agrees to be engaged, to provide or arrange for the provision of Prescription Services pursuant to this Agreement. WHI shall provide all Covered Services that are Prescription Services to Members. For all Members, WHI agrees to: (i) coordinate the provision of Covered Services; and (ii) monitor all Covered Services received by Members, all in accordance with and subject to the terms of this Agreement, each Plan's rules and regulations, and each Plan's utilization management program. All Covered Services provided by WHI to Members shall be within the limits of WHI's competence and shall meet the applicable community standards of care. WHI shall maintain adequate personnel and facilities to fulfill the contractual obligations hereunder. WHI is not licensed or otherwise authorized to practice pharmacy and nothing herein shall require WHI to directly perform services for which a pharmacy license is required; provided, however, that to the extent this Agreement requires the provision of services which require a pharmacy license, WHI shall arrange for the provision of those services through a Participating Pharmacy or the Participating Mail Service Pharmacy. 2.2 Responsibilities of WHI. (a) WHI shall provide Prescription Services described in this Agreement and/or otherwise mutually agreed to by the parties in writing, including, but not necessarily limited to, general support and consultative services regarding pharmacy benefit design and implementation, administrative and claims processing services, standard reporting packages, marketing, quality management and utilization management functions. Upon request, WHI will provide personnel to participate in quarterly meetings to review drug utilization and quality assurance. In addition, WHI may develop and implement certain additional clinical intervention programs that may be desired by KPHA and respective Plans, subject to terms and conditions to be agreed in writing between the parties. Notwithstanding the foregoing or any termination rights set forth in this Agreement, WHI may immediately terminate or refrain from implementing any formulary management or other clinical program services in any geographic area (in their entirety or for specific drugs only) if, in WHI's sole determination, the implementation or continued provision of such services is or may be in violation of applicable laws, rules, or regulations governing the practice of pharmacy or prescription benefits management, or may otherwise present an issue related to the practice of pharmacy or prescriptions benefits management. (b) WHI shall provide its standard WHI identification card and introductory materials for issuance to Members. Upon a Plan's request and a mutual written consent of the parties, WHI shall provide customized identification cards and/or introductory materials for a mutually agreeable fee, prior to providing such cards and /or materials. (c) WHI shall provide to Participating Pharmacies and Participating Mail Service Pharmacy via the Online Eligibility System (as defined in Section 2.4 (a)) at the time of dispensing all information necessary for Pharmacies to provide prescription services to Members upon the following terms and conditions: (1) Upon presentation by a Member or his/her agent of the Identification (as defined in Section 2.4 (b)) at retail, and receipt of appropriate prescriptions and any required copayment, Participating Pharmacies or Participating Mail Service Pharmacy, whichever the case may be, shall compound and dispense all qualified prescriptions and covered drugs pursuant to the pharmacy benefit information provided by the Plan to WHI and communicated to Pharmacies via WHI CONTRACT RENEWAL REVISION 2005 the Online Eligibility System at the time of dispensing, subject to legal restrictions and professional ethics and professional judgment. (2) Participating Pharmacies shall collect any applicable copayment fee or deductible from each Member or dependent for each covered prescription, as indicated by the Online Eligibility System at the time of dispensing, except when the reimbursement rate set forth in Attachment A is less than applicable copayment. In such cases, Participating Pharmacies shall collect the lesser of the usual and prevailing retail charge or the Member's copayment. In the case of mail order prescription services, each Member shall transmit with the order to the Participating Mail Service Pharmacy the applicable copayment fee for each prescription or refill covered by this Agreement. (3) Participating Pharmacies and/or Participating Mail Service Pharmacy may withhold prescription services to a Member for good cause, including, but not necessarily limited to, Plan's nonpayment for prescription services provided to Members; the Member's failure to pay for services rendered (e.g., copayment); requests by Member for quantities of drugs in excess of prescribed amounts or refill limitations pursuant to the pharmacy benefit information; or where, in the professional judgment of the dispensing pharmacist, the prescription should not be filled. (4) Mail Order prescriptions will be sent to Members from the Participating Mail Service Pharmacy facility via United Parcel Service, United States Postal Service or any other method the Participating Mail Service Pharmacy may select. Risk of loss or damage to covered drugs provided hereunder shall be on the Participating Mail Service Pharmacy until said drugs have been delivered to Member. The cost of shipping shall be borne by the Participating Mail Service Pharmacy, except for the following costs: (i) Plan will pay for any increased shipping costs occurring after the effective date of this Agreement as a result of rate increases by the United States Postal Service or private mail package handlers; and (ii) Members shall pay Participating Mail Service Pharmacy additional expense due to expedited delivery requested by Member. (5) Participating Pharmacies and Participating Mail Service Pharmacy shall be (and WHI shall cause them to agree to be) bound by and subject to the obligations required by WHI of Participating Pharmacies in WHI's network agreements. (6) The Participating Pharmacy and /or Participating Mail Service Pharmacy will attempt to dispense generic drugs in lieu of prescribed brand name drugs if commercially available and consistent with the dispensing pharmacist's professional judgment and state and federal law. (d) WHI shall be responsible for the reasonable costs associated with its development and printing of standard marketing materials that WHI provides to Plan in connection with this Agreement provided, however, that all costs associated with the distribution of such materials to Members shall be the sole responsibility of Plan. (e) WHI may add or terminate Participating Pharmacies to or from its network in its sole discretion; subject to the requirement that Participating Pharmacies be conveniently available to Members on a countywide basis in Monroe County, Florida. 2.3 Discrimination Prohibited WHI agrees to provide Prescription Services to Members in the same manner, in accordance with the same standard of care, and with the same promptness with which WHI provides Prescription Services to members of other health plan clients. In addition, WHI shall not discriminate against a Member on the basis of such Member's age, race, creed, national origin, sex or sexual preference. WHI CONTRACT RENEWAL REVISION 2005 2.4 Responsibility of Plans. (a) Each Plan will provide WHI with its benefit design summary and all other information required by WHI for the implementation of services under this Agreement at least 30 days prior to their implementation or upon such other timefi as may be agreed between the parties in writing. Such information will be in a format acceptable to WHI and will include, without limitation: Member enrollment, eligibility and benefit coverage information such as copayment, deductible limits, covered drugs, days' supply, and Participating Physicians. Each Plan is further obligated, during the term of this Agreement, to provide updates to the foregoing benefit design summary and other information promptly following each change thereto. This information will be transmitted by WHI to Participating Pharmacies and the Participating Mail Service Pharmacy at the time of dispensing through the online electronic transmission link maintained between WHI and Participating Pharmacies and the Participating Mail Service Pharmacy ( "Online Eligibility System "). Each Plan is solely responsible for the accuracy, completeness, reliability, and timeliness of all information provided to WHI and acknowledges WHI's reliance thereupon. Any errors or omissions in the information are the sole responsibility of each Plan. No Plan may deny claims submitted by any Pharmacy for payment subsequent to such Pharmacy receiving approval via the Online Eligibility System. No Plan may deny claims submitted by any Pharmacy for payment subsequent to such Pharmacy receiving approval via the Online Eligibility System. (b) Each Plan will provide all Members with a standard identification card issued by WHI (hereinafter "Identification "), which shall contain, but not necessarily be limited to, the Member's identification number and full name of Member. Eligibility to receive the prescription benefit is established at the time of dispensing through the Online Eligibility System. Each Plan shall be responsible for collecting the Identification from the Member upon termination of the Member's eligibility or upon termination of this Agreement. (c) Each Plan authorizes WHI, as its prescription benefit manager, to perform formulary management' and other services described in this Agreement, subject to the following terms and conditions: (1) Plan represents that it has adopted WHI's formulary as part of its prescription benefit plan design and that its benefit plan design in no way prohibits Plan from implementing formulary management services performed by WHI, the Participating Pharmacies, or the Participating Mail Service Pharmacy hereunder, such as, but not necessarily limited to, generic or therapeutic prescription drug substitutions and any other measures that may be appropriate to effectuate formulary management. Notwithstanding the foregoing, the parties acknowledge that the prescribing Participating Physician has ultimate authority to determine which drug is prescribed to a Member. Plan will notify WHI in advance of any benefit plan design changes that may materially affect WHI's ability to perform formulary management and/or other services described in this Agreement. Plan may not sell, distribute, or otherwise provide WHI's formulary to any third party without WHI's prior written consent, except that Plan will ensure that WHI's formulary is distributed to Members and Participating Physicians, either directly or by requiring Members to provide the formulary to their physicians. (2) Plan acknowledges that, as a result of the formulary management services referenced above, WHI may receive rebates or other incentive payments from certain drug manufacturers or Formulary management at a minimum shall consist of WHI providing on -line messages at the time of dispensing to Participating Pharmacies and Participating Mail Service Pharmacies concerning preferred medications. Any additional formulary management services will be performed in accordance with the mutual agreement of the parties hereto. WHI CONTRACT RENEWAL REVISION 2005 7 others, either directly or indirectly, in connection with prescription drugs dispensed hereunder and reported by WHI to such manufacturers or others ( "Rebates "). Plan hereby appoints WHI as Plan's exclusive agent, and certifies that WHI is authorized to act on Plan's behalf, for the purpose of negotiating and arranging, either directly or indirectly, Rebate opportunities in connection with prescription drugs dispensed to Members under this Agreement. Accordingly, Plan: (i) represents that it has have no direct or indirect arrangements, either oral or written, with drug manufacturers or others for rebates, discounts, or other incentive payments on prescription drugs dispensed to Members pursuant to this Agreement and agrees not to enter into any such arrangement during the term of this Agreement; and (ii) agrees to cooperate fully with WHI and execute any documents in addition to this Agreement that may reasonably be necessary for WHI, KPHA, or Plan to participate in any Rebate arrangements. (3) Plan represents that to the extent funding for the provision of prescription services to Members is received from Medicaid, Medicare, or any other state or federal health care program, such funding is in accordance with the risk or capitation contract provisions of the Social Security Act or comparable state health care programs. In the event circumstances arise in which either Members' drug utilization is required to be reported for manufacturer rebate, discount, or other incentive payment purposes, by an entity other than WHI or Members' prescription claims are to be filed for reimbursement with Medicaid, Medicare, or any other state or federal health care program, Plan will immediately notify WHI, clearly identifying all involved Members. Plan agrees that to the extent WHI has received any Rebates improperly as a result of Plan's failure to provide such notice, Plan will pay WHI, upon request, the full amount of any Rebates to be refunded and any penalties resulting therefrom. (4) KPHA and Plan acknowledge and agree that WHI may retain any and all Rebates received as part of the reasonable compensation for pharmacy benefit management services; provided, however, that WHI will make WHI Payments (as defined in Attachment A) to Plan, subject to the terms and conditions set forth in this Section 2.4 (c) and in Attachment A. KPHA and Plan further acknowledge that such rates and other service charges set forth in Attachment A reflect the agreed upon compensation due WHI for the services provided. KPHA and Plan understand that in obtaining Rebates on behalf of its clients, WHI may utilize the services of a claims aggregator where in WHI's judgement as a prescription benefit manager such services may be more advantageous to its clients. To that extent, there may be a fee charged by the claims aggregator for such services, and the Rebates received by WHI will be reduced by the amount of such claims aggregator fees. (5) KPHA and Plan acknowledge that the amount of WHI Payments described in Attachment A is based upon the value of Rebates WHI expects to receive as a result of (i) Plan and KPHA's adoption and use of WHI's formulary and any benefit design requirements associated therewith (such as, but not limited to, therapeutic substitution programs, multi- tiered copay structures, etc.), and (ii) current marketplace conditions, including drug patent status. Accordingly, to the extent WHI determines that any changes to Plan's benefit design or the formulary utilized (whether such changes are requested by Plan or KPHA or made by WHI in response to changing marketplace conditions, including drug patent status) may adversely impact the value of Rebates WHI is likely to receive hereunder, WHI will initiate renegotiations with KPHA, and /or Plan, as applicable, of the WHI Payment amount. Notwithstanding anything to the contrary elsewhere in this Agreement, if no agreement can be reached within 30 days, WHI Payments will immediately cease accruing to Plan and WHI will have no obligation to continue making WHI Payments thereafter, including any WHI Payments that have accrued, but have not yet been paid. WHI CONTRACT RENEWAL REVISION 2005 (6) Notwithstanding any provision herein to the contrary, WHI Payments will immediately cease accruing to Plan upon the occurrence of any of the following: (i) breach by Plan or KPHA of any obligations set forth in this Agreement in which case Plan expressly authorizes WHI to retain any and all accrued but not yet paid Rebates and /or WHI Payments; (ii) termination of this Agreement by either party or receipt by WHI of notice from KPHA that Plan intends to terminate any portion hereof which in WHI's sole discretion may adversely impact the value of Rebates WHI receives hereunder; (iii) WHI's exercise of its right to terminate any clinical program services, including formulary management, under Section 2.2(a), above, if, in WHI's sole discretion, such termination may adversely impact the value of Rebates WHI receives hereunder; and (iv) any change in the pharmaceutical industry practices or marketplace conditions that may affect the payment of Rebates. (7) For those clinical programs that may require certain medical claims information (such as, but not necessarily limited to, retrospective drug utilization review), and subject to Section 6.1., below, Plan, through KPHA, will provide to WHI and /or its designee all complete and accurate Member - related medical claims and record information that WHI reasonably requests, in a format and time frame mutually acceptable to the parties. (d) Subject to Section 8.2., below, Plan will accurately describe and represent the role of WHI and the Participating Pharmacies and the Participating Mail Service Pharmacy in providing services hereunder in all communications, including marketing and advertising materials, to Members and potential Members. (e) To the extent WHI has provided KPHA or Plan with access to the Online Eligibility System, the system on which WHI files KPHA's or Plan's management reports, and/or any other electronic system maintained or operated by WHI (all such foregoing systems, hereinafter collectively referred to as the "System "), the following terms and conditions will apply. For purposes of this paragraph, the term "access" means the ability of KPHA or Plan, as agreed to by WHI, to view, enter, and/or manipulate information residing on the System. KPHA and plan acknowledge that as a condition precedent to receiving or continuing to receive access to the System, they will (i) comply with the manuals and other instructions provided by WHI for such access; (ii) safeguard the access code(s) and any downloads of information; (iii) comply with applicable laws, regulations, and their own policies and procedures concerning the protection of patient information; (iv) notify WHI immediately if any information accessed online is inconsistent with Plan's benefit design; (v) supervise all employees and/or third -party agents accessing such systems on Plan's behalf ( "Users ") and administer all passwords to ensure there is no misuse or abuse of the access rights granted herein; and (vi) inform all Users of the requirements set forth in this paragraph. KPHA or Plan, as applicable, is solely responsible for the accuracy, completeness, reliability, and timeliness of all information it enters into the System. Any errors or omissions in the information are the sole responsibility of KPHA or Plan, as applicable. KPHA or Plan, as applicable, is further responsible for providing, at its own expense, any hardware and/or software that may be necessary to effectuate access to the System, and for paying all telecommunication access fees. 3. COMPENSATION 3.1 WHI's Compensation. WHI's compensation for Prescription Services rendered to Members shall be as set forth in Attachment A to this Agreement. WHI CONTRACT RENEWAL REVISION 2005 3.2 No Recourse Against Members; Collection of Covayments and Deductibles WHI shall not bill, charge, collect a deposit from, seek compensation, remuneration or reimbursement from, or have any recourse against Members, Plans or any persons or entities other than the Plans for Covered Services unless otherwise specified in any amendments hereto. This provision shall not prohibit WHI's, Participating Pharmacies' or Participating Mail Service Pharmacies' collection of copayments and deductibles permitted under the Plan or the collection of payment for any Prescription Services delivered to a Member if such service is not a Covered Service, unless such services are not Covered Services because of WHI's failure to comply with this Agreement or KPHA's or each Plan's rules and regulations (subject to notice as provided in Section 4.1 hereof). WHI agrees to use reasonable efforts to collect from Members applicable copayments, and upon request from a Plan, WHI will prepare reports regarding copayments billed and collected, on forms developed by WHI and reasonable acceptable to KPHA and the Plans. WHI further agrees that: (i) the provisions of this Section 3.2 shall survive the termination of this Agreement regardless of the cause giving rise to such termination and shall be construed for the benefit of Members; and (ii) the provisions of this Section 3.2 supersede any oral or written agreement to the contrary now existing or hereafter entered into between WHI and any Member or persons acting on any Member's behalf. 3.3 Refunds. WHI shall refund to a Plan any and all sums collected by WHI from Members to which WHI agrees it was not entitled under this Agreement, provided that Plans shall provide prior (or if a refund is recovered by setoff then contemporaneous) written documentation of the basis for the claimed refund due. Such refunds shall take the form of cash payments or setoffs against amounts owed to WHI by a Plan. When appropriate, the Plan shall return to the Member such sums improperly charged by WHL At no time may Plan withhold payment for services provided by WHI, Participating Pharmacies, or Participating Mail Service Pharmacy hereunder nor pay an amount less than that billed by WHI. 3.4 Billing Procedure. WHI shall comply with all billing and reporting procedures established by KPHA and the Plans as set forth in the Agreement or the attachments hereto and in each Plan's rules and regulations as promulgated from time to time, subject to notice in accordance with Section 4 hereof. 3.5 Payment. Each Plan shall be solely responsible for payment for Prescription Services provided by Participating Pharmacies and Participating Mail Service Pharmacy to Members, in addition to the administrative fees and other costs and charges set forth in Attachment A to this Agreement. (a) WHI shall invoice each Plan following the close of each twice - monthly billing cycle. Said invoices shall include, but not necessarily be limited to, prescription claims, administrative fees and/or any other costs and charges specified in this Agreement. (b) Each Plan shall pay all complete, undisputed invoices sent to it within fifteen (15) days of WHI's issuance thereof. Payment dates as used in this Agreement shall mean the date payment is to be delivered to the location designated in this Agreement as follows: Walgreens Health Initiatives, Inc. P.O. Box 93741 Chicago, IL 60673 -3741 All sums owed by a Plan shall bear interest of one and one -half percent (1 -1/2 %) per month from the date payment is due until paid; however, in no event shall such interest rate be greater than the rate permitted by law. (c) Subject to the notice and cure provisions of Section 9.3 hereof, in the event that a Plan defaults on any payment obligation specified in this Agreement WHI shall have the right, at its sole option, to WHI CONTRACT RENEWAL REVISION 20051 10 suspend and /or terminate all prescription benefits and services provided to such Plan and its Members. WHI may notify Participating Pharmacies and Participating Mail Service Pharmacy on -line that prescription services to such Plan and its Members have been suspended or terminated, as the case may be, due to Plan's failure to meet its payment obligations as set forth in this Agreement. Upon such notification, Participating Pharmacies and Participating Mail Service Pharmacy may cease providing prescription services to such Plan and its Members and shall have the right, along with WHI, to pursue any legal remedy directly against such Plan for any breach of said Plan's payment obligations. Plan will be solely responsible for any and all costs associated with WHI's collection of any delinquent amounts. 4. COMPLIANCE WITH RULES AND REGULATIONS 4.1 KPHA and Plan Rules WHI agrees to be bound by and comply with KPHA and Plan policies, procedures and rules as promulgated from time to time, which, as now in effect and as hereafter adopted and amended, are incorporated in this Agreement for all purposes; provided that KPHA and Plans must give WHI sixty (60) days prior written notice of such policies, procedures and rules (unless such notice is waived in writing by WHI). Such policies, procedures and rules shall not be interpreted to require WHI to provide additional services to KPHA or Plans which are not expressly set forth in or otherwise required to be provided by WHI under this Agreement. To the extent any such policy, procedure, or rule imposes on WHI or Pharmacy any obligations greater than those assumed under this Agreement, such policy, procedure, or rule is not binding upon WHI or Pharmacy. 5. NOTIFICATION OF WHI STATUS WHI shall notify KPHA in writing as soon as reasonably possible upon the occurrence of any of the following events: (a) The pharmacy license of any Participating Pharmacy or the Participating Mail Service Pharmacy in the State of Florida is suspended, revoked, terminated, or subject to terms of probation or other restrictions to the extent any such action materially affects WHI's ability to provide services under this Agreement. (b) there is a change in WHI's business address; (c) any act of nature or any event beyond WHI's reasonable control likely to interrupt all or a portion of the WHI's practice for a period of sixty (60) consecutive calendar days, or which may have a material adverse effect on the WHI's ability to perform his obligations for this period; (d) any change in the nature or extent of services rendered by WHI which could be relevant to the performance of obligations by WHI hereunder; (e) any material change or addition to the information and disclosures submitted by WHI as part of the application for a contract with KPHA to provide Covered Services to Members; (f) any other act, event, occurrence or the like that might materially affect WHI's ability to carry out its duties and obligations to Members. 6. MEDICAL RECORDS AND FACILITIES 6.1 Confidentiality of Member Health Information and Proprietary Business Information WHI CONTRACT RENEWAL REVISION 2005 11 (a) The parties, including each Plan, will maintain the confidentiality of all medical, prescription, and other patient - identifiable health information specifically relating to Members ( "Member Health Information ") in accordance with all applicable federal and state laws and regulations, including the privacy regulations promulgated under the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time ( "HIPAA" ). Plan represents and warrants that it is in compliance with all requirements and obligations applicable to Plan and its health plan under HIPAA, including but not limited to the requirement to secure written assurances from its "business associates" (as such term is defined in Title 45, Section 160.103, of the Code of Federal Regulations) regarding the protection of Member Health Information. Plan acknowledges that WHI, as a business associate of Plan (or its health plan), will have access to Member Health Information in order to provide the pharmacy benefit management services described herein and/or perform the obligations undertaken hereunder. Plan further acknowledges that Member Health Information may be obtained from and/or distributed to KPHA, Plan, Participating Pharmacies, Participating Mail Service Pharmacies, and/or any other third party in connection with services provided hereunder, including any and all disclosures made by WHI, such as, but not limited to those disclosures (i) made to obtain Rebates, to conduct operational assessments or in connection with provider audits conducted by WHI or its agents or service providers; and (ii) at Plan and /or KPHA's request, such as, but not limited to, those made to third party administrators or to a new vendor upon transition of services following termination of this Agreement. Plan also acknowledges that WHI intends to make Member Health Information available to (i) the subject Member via its website, using WHI's customized online registration process for each Member; and (ii) KPHA and Plan or other permitted third parties via the Internet or other electronic medium. Plan will promptly provide WHI with written notice if it desires to limit any such communications described herein. Plan acknowledges that certain management reports, reporting packages, utilization data, prescription claims information and /or clinical or formulary- related programs may contain Member Health Information. Plan further acknowledges that (i) its request to WHI to disclose Member Health Information to any third party (e.g., broker, healthcare consultant, and/or third party administrator) constitutes Plan's direction and authorization to disclose such information to the third party; and (ii) WHI will disclose such information pursuant to Plan's direction until such time as WHI receives written notice from Plan to cease further disclosures. Plan hereby authorizes and directs WHI to disclose Member Health Information to KPHA as needed to perform WHI's services hereunder. In the event of a conflict between the provisions of this Section 6.1 (a) and the provisions of a fully executed business associate agreement between Plan and WHI, the fully executed business associate agreement will control. (b) This Section 6.1. will survive the termination of this Agreement 6.2 Sharing of Records. WHI shall cooperate with and support KPHA's utilization review and management, and quality control programs, subject to applicable confidentiality requirements, subject to Sections 4.1 and 6. 1, above. 6.3 Regulatory Compliance. WHI shall maintain and provide to Plans, the Florida Department of Insurance or the Florida Department of Health and Rehabilitative Services all necessary records and information which may be required for compliance by Plans with applicable state law, including, without limitation, the Florida HMO Act, Chapter 641, Florida Statutes, and the regulations promulgated thereunder, and to Plans and the Department of Health and Human Services as may be required for compliance by Plans with applicable federal law including, with limitation, 42 U. S.C. 3 00e, et seq., Section 1876 of the Social Security Act, as amended, and 42 CFR Part 417. Specifically, since the value or cost of services provided under this Agreement may be $10,000 or more within a twelve -month period, then, to the extent that the cost of such services is reimbursable by the Medicare program, WHI agrees to comply with the Access to Books, Documents and Records of Subcontractors provision of Section 952 of the Omnibus Budget Reconciliation Act of 1980 (PL 96 -499) WHI CONTRACT RENEWAL REVISION 20051 12 and 42 CFR Part 420, Subpart D, Section 420.300 et seq. In accordance with these provisions, WHI will, upon proper written notice, allow the Comptroller General of the United States, the Secretary of Health and Human Services, and their duly authorized representatives access to this Agreement and to the WHI's books, documents and records necessary to certify the nature and extent of costs of Medicare reimbursable services provided under this Agreement. Such access will be allowed, upon request, until the expiration of four (4) years after the Medicare reimbursable services are furnished pursuant to this Agreement. If WHI carries out any of the duties of this Agreement through a subcontract with a related party with a value or cost of $10,000 or more over a twelve (12) month period, such subcontract shall contain a clause which requires the subcontractor to comply with the above statutes and regulations. 6.4 Inspection of Facilities KPHA and Plans shall, upon prior written notice, have reasonable access to Participating Pharmacy and Participating Mail Service Pharmacy facilities at reasonable times convenient to KPHA, Plans, and Pharmacies within two (2) weeks of such request, unless a later date is mutually agreed on, to allow the designated representatives to inspect Pharmacies' facilities, to confirm that these facilities are in keeping with generally accepted pharmacy standards in the relevant community and applicable state law, or standards that may reasonably be established by KPHA, provided that standards established by KPHA shall be reasonably acceptable to WHI, Participating Pharmacies and Participating Mail Service Pharmacy and consistent with applicable state law. 6.5 Inspection of Records WHI will maintain records relating to its responsibilities under this Agreement for a period of one year from the date of service or such longer period as may be required under applicable law. KPHA and each Plan will maintain records relating to its responsibilities under this Agreement for a period of one year from the date of service, or such longer period as may be required under applicable law, including, but not necessarily limited to, eligibility records for Members and payment information regarding services provided by WHI hereunder and prescription services rendered by Participating Pharmacies and Participating Mail Service Pharmacy to Members. KPHA, Plans, and WHI shall have the right, upon request and during normal business hours, to inspect and to copy at their expense books, records (including any accounting, administrative and prescription records) maintained by each other pertaining to claims for Prescription Services under this Agreement. WHI shall make its books and records relating to Members or relating in any way to KPHA and Plans available to representatives of federal, state or local regulatory authorities pursuant to any examination of Plans by such authorities. Plans warrant that each has the authority from Members (and their eligible dependents) for Plans and KPHA to obtain and possess prescription information, which may be deemed confidential. 7. INSURANCE AND NOTICE OF CLAIMS 7.1 Notice of Claims WHI agrees to notify KPHA as soon as reasonably possible of any claim or cause of action by a Member filed against WHI following WHI's receipt of notice that such a claim or cause of action has been filed. WHI shall provide KPHA with any information regarding such claim or cause of action reasonably requested by KPHA, subject to applicable laws regarding patient confidentiality which prohibit the release of such information. 7.2 Insurance. WHI will self - insure through its parent corporation or maintain commercial insurance in amounts consistent with industry standards, for general and professional liability and such other insurance as may be necessary to insure WHI, its employees and agents against any claim or claims for damages arising out of or in connection with its duties and obligations under this Agreement. In addition, WHI will require Participating Pharmacies and Participating Mail Service Pharmacy either to self - insure or to acquire and maintain, at their sole expense, professional and malpractice liability insurance, as well as comprehensive general liability insurance to insure against any claim for damages arising by reason of Participating Pharmacies' or Participating Mail Service Pharmacy's provision of prescription services to Members hereunder. WHI CONTRACT RENEWAL REVISION 2005 13 8. ADMINISTRATION 8.1 Grievance and Disputes. Subject to Section 4. 1, above, WHI agrees to cooperate with KPHA in resolving any Member grievances related to the provision of Covered Services. KPHA shall notify WHI concerning all Member complaints involving WHI, and WHI shall notify KPHA and the applicable Plan of any complaints, and in consultation with KPHA and the applicable Plan shall use WHI's best efforts to resolve any complaints in a fair and equitable manner. Subject to the provisions of Section 4 hereof, WHI agrees to participate in and cooperate with KPHA's and Plan's Member grievance procedures and comply with all final determinations rendered in accordance with those procedures. 8.2 Advertising. For those Plans with which KPHA has Payor Agreements, KPHA may include WHI's name, address, telephone number and type of service in a roster of Participating Providers, it being understood by the parties that this roster may be inspected by and is intended for the use of current and prospective Members, Subscribers, Participating Providers, and other providers. KPHA and each Plan represent and warrant that any and all descriptions and representations concerning WHI and the services provided hereunder as communicated to Members and potential Members are true, accurate, and consistent with the terms of this agreement. KPHA and each Plan will use due diligence to ensure the accuracy of the information herein described and will immediately correct incomplete or inaccurate information whether by its own discovery or at W 11's direction. Any other reference to WHI, Participating Pharmacies, or Participating Mail Service Pharmacy in any KPHA materials must be pre - approved in writing, by WHI. WHI shall not engage in any direct marketing activities with respect to a Plan with which KPHA has a Payor Agreement and shall not use the trademarks and trade names employed by KPHA or Plans with which KPHA has Payor Agreements without the prior written approval of KPHA or such Plans, respectively; provided, however, that WHI may reference KPHA's or Plan's name or service mark to inform Members and the general public (i) of WHI's role in providing Prescription Services and (ii) that Participating Pharmacies and Participating Mail Service Pharmacy are participating providers to KPHA, Plan and Members. 8.3 Signs and Displays. Participating Pharmacies may (but shall not be required to) display in a visible and prominent place any reasonable card, plaque or similar identifying logo provided by KPHA or Plans to identify such pharmacies as Participating Pharmacies hereunder to Subscribers. 8.4 Coordination of Benefits. Subject to Section 4, above, WHI shall cooperate in the effective implementation of any provisions of the Plan relating to coordination of benefits and other third party claims. WHI shall bill, when requested by KPHA, any third party payor for services provided to Members. WHI shall, when permitted by law, reimburse KPHA in the event that payments are received from such payors for Covered Services provided to Members, or assign to KPHA all payments owed by such payors, and execute any further documents that reasonably may be required or appropriate to permit KPHA to bill and process forms for any third party on WHI's behalf or to bill such payors directly, as determined by KPHA. KPHA and Plans shall notify WHI of their respective policies and procedures regarding coordination of benefits, which shall be subject to the provisions of Section 4 hereof. 9. TERM AND TERMINATION 9.1 Term The initial term of this Agreement shall commence on October 1, 2005, and shall continue in effect for one (1) year from the date hereof, unless and until terminated pursuant to this Section 9. Upon expiration of the initial term, this Agreement shall automatically renew for two additional successive one (1) year terms, unless otherwise terminated by either party for any reason by written notice to the other party delivered at least ninety (90) days prior to the end of the then current WHI CONTRACT RENEWAL REVISION 20051 14 term. This Section 9.1 is subject to the remaining provisions of this entire Section 9 and any other termination rights that may be stated elsewhere in this Agreement 9.2 Immediate Termination KPHA, in its absolute discretion, may terminate this Agreement immediately in the event that the pharmacy license of any Participating Pharmacy or the Participating Mail Service Pharmacy in the State of Florida is revoked or if WHI is convicted of a felony or any crime related to the practice of medicine or pharmacy, but with respect to revocation of a pharmacy license, only in the event that the revocation of such license results in inadequate geographic network coverage or an inability to conveniently serve the needs of Members. 9.3 Termination for Cause KPHA or WHI may terminate this Agreement for cause upon thirty (30) days written notice (with the exception of non payment), with an opportunity to cure, which notice shall set forth the grounds for termination. "Cause" shall mean for purposes of this Agreement: (i) a material breach of any provision of this Agreement; and (ii) commission of an act of fraud or theft against the other party. Notwithstanding the foregoing, in the event of nonpayment by a Plan in accordance with the terms hereof, which is not cured within ten (10) days after notice by WHI to KPHA and such Plan, WHI may terminate this Agreement as to such Plan only, upon notice to KPHA and such Plan. 9.4 Termination Without Cause. KPHA or WHI may terminate this Agreement or any Amendment hereto for any reason upon sixty (60) days' prior written notice to the other party. Notwithstanding the foregoing or any termination rights set forth in this Agreement, WHI may immediately terminate or refrain from implementing any formulary management or other clinical program services in any geographic area (in their entirety or for specific drugs only) if, in WHI's sole determination, the implementation or continued provision of such services is or may be in violation of applicable laws, rules, or regulations governing the practice of pharmacy or prescription benefits management, or may otherwise present an issue related to the practice of pharmacy or prescriptions benefits management. 9.5 Endangerment of Members KPHA may terminate this Agreement effective upon written notice to WHI upon a determination in good faith by KPHA that the continuation of the Agreement may result, or is resulting, in imminent danger to the health safety and welfare of any Member. 9.6 Obligations Upon Termination. In the event of termination of this Agreement or termination of WHI by KPHA, the rights and obligations of each party hereunder shall cease unless otherwise provided by this Agreement. In the event of termination of this Agreement for any reason, WHI will use WHI's best efforts to cooperate with transition of Members to ensure continuity of care. 9.7 Department of Insurance Order This Agreement shall be cancelable upon the issuance of an order by the Department of Insurance pursuant to Section 641.234, Florida Statutes, or any successor statute. 9.8 Additional Termination Rights. In addition to termination rights contained elsewhere in this Agreement, each of the following acts or omissions by either party will be considered a default, and will give the nondefaulting party the rights herein contained: if either party to this Agreement voluntarily files a petition in or for bankruptcy, reorganization, or an arrangement with creditors; if either party makes a general assignment for the benefit of creditors; if either party fails to pay, or admits in writing its inability to pay, debts as they become due; if a trustee, receiver, or other custodian is appointed for either party; or, if any other case or proceeding under any bankruptcy is commenced in respect to either party, then the nondefaulting party may immediately terminate this Agreement and all further rights and obligations hereunder (except as otherwise provided in Section 9.6. or elsewhere in this Agreement) by giving written notice to the other party. WHI CONTRACT RENEWAL REVISION 2005 15 10. RELATIONSHIP OF PARTIES 10.1 Independent Contractors. In the performance of their responsibilities, duties and obligations under this Agreement, KPHA, WHI, and Plans are at all times performing as independent contractors. No act, work commission, or omission by either party, its agents, servants, contractors, or employees, pursuant to the terms and conditions of this Agreement shall be construed to make or render KPHA, WHI, or Plans an agent, servant, employee of, or joint venture with, the other. 10.2 Indemnity. WHI, KPHA and Plans shall indemnify, defend and hold harmless the others, including their respective shareholders, directors, officers, employees, agents, representatives, parent and affiliated companies from and against any liability arising from the sole negligence of WHI, KPHA or Plans, as the case may be, in carrying out its respective duties and obligations under this Agreement. KPHA and Plans acknowledge and agree that neither WHI nor its shareholders, directors, officers, employees, agents, representatives, parent and affiliated companies shall have any liability whatsoever to KPHA, Plans or Members for the acts or omissions of any Participating Pharmacy and /or Participating Mail Service Pharmacy in connection with such pharmacies' provision of services to KPHA, Plans and Members, including, but not necessarily limited to, any of the following: (i) any actual or alleged malpractice, negligence or misconduct of said pharmacies; or (ii) the sale, compounding, dispensing, failure to sell, manufacture or use of any drug dispensed to a Member hereunder. WHI and Plans acknowledge and agree that neither KPHA nor its shareholders, directors, officers, employees, agents, representatives, parent and affiliated companies shall have any liability whatsoever to WHI or Plans for the acts or omissions of any Plan or provider in KPHA's provider network, including, but not necessarily limited to, any of the following: (i) nonpayment by a Plan of any amounts becoming due hereunder; or (ii) any actual or alleged malpractice, negligence or misconduct of said Plans and/or providers. This Section 10.2 shall survive the termination of this Agreement for any reason. 10.3 WHI is the sole and exclusive provider of prescription benefit programs, prescription benefit management, and claim processing services to and on behalf of Members covered under this Agreement. Neither KPHA nor Plan may enter into or be a party to any agreement with any party or entity (other than WHI) for the provision of prescription benefit programs, prescription benefit management, and claim processing services or any other services referenced in this Agreement during the term of this Agreement or any renewal hereof. Plan and KPHA's printed materials, including, but not necessarily limited to, direct mailings, brochures and newsletters may not reference any other provider of prescription benefit programs, prescription benefit management, and claims processing services. Nothing contained in this Agreement, however, will prohibit or limit WHI's right to participate in other health care or prescription programs or to otherwise provide prescription benefit programs, prescription benefit management, or claim processing services to other third parties. 11. TRADE SECRETS, SOLICITATION OF SUBSCRIBERS 11.1 Non - disclosure of Trade Secrets and Proprietary Information The parties hereto acknowledge that certain proprietary and /or confidential technical and business information may be disclosed between the parties hereto. Such information may include, without limitation, databases, trade secrets, reporting packages and formats, utilization and management reports, client specific prescription claims information, manuals, computer programs, software and clinical or formulary- related operations or programs (hereinafter collectively referred to as "Confidential Information "). The parties acknowledge and agree that the value of such Confidential Information may be lost if the receiving party does not maintain the proprietary nature or confidentiality of the information. Accordingly, each party hereto will maintain the confidentiality of all Confidential Information, including, without limitation, implementing those precautions said party employs with respect to its own proprietary and confidential information and disclosing it only to those employees who have a need to know in order to effectuate the purpose(s) of WHI CONTRACT RENEWAL REVISION 20051 16 this Agreement, and only after such employees have agreed to be bound by the terms of this Section 11.1. In no event will either party use any Confidential Information to benefit itself or others, except to the extent expressly authorized by this Agreement. Notwithstanding the foregoing, the obligations of confidentiality shall not apply to any Confidential Information which is or becomes known generally known within the relevant industry (except as a result of a breach by a party hereto of its obligations under this Agreement); or is required to be disclosed by deposition, interrogatory, request for documents, subpoena or court order. Furthermore, the parties acknowledge and agree that the term "Confidential Information" as used in this paragraph shall not include aggregated and/or non - client specific information that is maintained and /or disclosed by either party in the normal course of their business operations. This Section 11.1. will survive the termination and/or expiration of this Agreement. 11.2 Solicitation of Subscribers. During the term of this Agreement WHI shall not take any action or make any communication to Subscribers which undermines or could undermine the confidence of Subscribers or the public in the Plans, or KPHA. During the effective term of this Agreement and any of its amendments, and for a period of one (1) year following the termination or non - renewal of this Agreement or any of its amendments for any reason, WHI shall not directly and intentionally cause any Subscriber to disenroll from a Plan. 12. MISCELLANEOUS 12.1 Notices. Any notice required or permitted to be given hereunder to either party shall be deemed given if sent by registered or certified mail, return receipt requested, or by overnight mail delivery for which evidence of delivery is obtained by the sender, to such party at: KPHA: Keys Physician - Hospital Alliance 5900 College Road Key West, Florida 33040 Attention: President WHI: Walgreens Health Initiatives, Inc. ATTN.: Client Services 1417 Lake Cook Road, MS 468 Deerfield, IL, 60615 cc: WHI Legal (at the same address) 12.2 Limitation of Assignment. This Agreement shall not be assigned by either party without the prior express written consent of the other party, which consent shall not be unreasonably withheld. 12.3 Binding on Successors in Interest. The provisions of, and obligations arising under, this Agreement shall extend to, be binding upon and inure to the benefit of the successors and assigns of each party. 12.4 Severability; Changes in Law. If any part of this Agreement is determined to be invalid, illegal, inoperative, or contrary to law or professional ethics, the part shall be reformed, if possible, to conform to law and ethics; the remaining parts of this Agreement shall be fully effective and operative to the extent reasonably possible. If any restriction contained in this Agreement is held by any court to be unenforceable or unreasonable, a lesser restriction shall be enforced in its place and the remaining restrictions shall be enforced independently of each other. 12.5 Conformance With Law. Each party agrees to carry out all activities undertaken by it pursuant to this Agreement in conformance with all applicable federal, state, and local laws, rules, and regulations. Will CONTRACT RENEWAL REVISION 2005 17 Notwithstanding the foregoing, KPHA and Plan acknowledge that WHI has no responsibility to advise KPHA or Plan regarding KPHA's or Plan's compliance with any applicable law, statutes, rules or regulations relating to the services provided hereunder. Furthermore, WHI makes no representation or warranty that KPHA's or Plan's benefit plan design is in compliance with applicable law. Each Plan retains complete discretionary, binding and final authority to construe the terms of its health plan, to interpret ambiguous plan language, to make factual determinations regarding the payment of claims or provisions of benefits, to review denied claims, and to resolve Member complaints. Each party will cooperate with reasonable requests by the other party for information that the requesting party may need for its compliance with applicable laws, rules, and /or regulations. If a change in applicable law imposes a material financial, legal, or operational burden on WHI's performance of services hereunder, WHI will propose and forward to KPHA an amendment to address such material burden. The amendment will become effective on the date stipulated, unless prior to the indicated effective date a written objection from KPHA is received by WHI. If KPHA objects to an amendment, the amendment may not go into effect; provided, however, that WHI, in its sole discretion, may terminate this Agreement within 30 days of its receipt of KPHA's written objection (notwithstanding Section 9.1. of this Agreement). 12.6 Liaison Each party agrees to use its best efforts in the implementation of this Agreement, to establish and use channels of communication with the other party and with representatives of Members and Plans, and to maintain effective liaison with each other, Members and Plans all to the end that the provisions of this Agreement may be carried out in the most efficient manner possible. 12.7 Time of the Essence Time shall be of the essence with respect to each and every term, covenant, and condition of this Agreement. 12.8 Entire Agreement /Amendment This Agreement, including the Attachments, Exhibits and Schedules now and hereafter incorporated herein, supersedes all previous contracts related to the subject matter hereof including the Prescription Services Agreement entered into between WHI and KPHA effective October 1, 2002, and constitutes the entire agreement between the parties. Oral statements or prior written materials not specifically incorporated in this Agreement shall not be of any force and effect. In entering into and executing this Agreement, the parties rely solely upon the representations and agreements contained in the Agreement and no others. No changes in or additions to this Agreement shall be recognized unless and until made in writing and signed by an authorized officer or agent of WHI and KPHA. 12.9 Attachments. The following attachments are incorporated into and made a part of this Agreement by reference: Attachment A: Fee Schedule of Prescription Services Attachment B: Plan Joinder Agreement 12.10 Governing Law This Agreement has been executed and delivered and shall be construed and enforced in accordance with the laws of the State of Florida. Any action by any party whether at law or in equity, shall be commenced and maintained and venue shall exclusively be in Monroe County, Florida. 12.11 Third Party Beneficiaries. This Agreement is not a third -party beneficiary contract. No provision of this Agreement is intended to create or may be construed to create any third -party beneficiary rights in any person, including, but not limited to, any provider or Member. 12.12 Waiver of Breach. No provision of this Agreement shall be deemed waived unless evidenced by a written document signed by an authorized officer or agent of WHI and KPHA. The waiver by either WHI CONTRACT RENEWAL REVISION 2005 18 party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision of this Agreement. 12.13 Section and Other Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 12.14 Cumulative Remedies. Remedies provided for in this Agreement shall be in addition to and not in lieu of any other remedies available to either party and shall not be deemed waivers or substitutions for any action or remedy the parties may have under law or equity. 12.15 Gender and Number When the context of this Agreement requires, the gender of all words shall include the masculine, feminine, and neuter, and the number of all words shall include the singular and plural. 12.16 Execution This Agreement and any amendments may be executed in multiple originals, each counterpart shall be deemed an original, but all counterparts together shall constitute one and the same instrument. 12.17 Force Maieure. Neither party shall be liable nor deemed to be in default for any delay or failure in performance under this Agreement or other interruption of service or employment deemed resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, failure of transportation, strikes or other work interruptions by either party's employees, or any similar or dissimilar cause beyond the reasonable control of either party; provided, however, in the event the provision of Covered Services is substantially interrupted, KPHA shall have the right to terminate this Agreement upon ten (10) days prior written notice to WHL 12.18 Authority Each signatory to this Agreement represents and warrants that he possesses all necessary capacity and authority to act for, sign, and bind the respective entity on whose behalf he is signing. 12.19 Enforcement In the event either party or a Plan files suit in any court, or commences arbitration as herein provided, to enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable costs incurred in connection therewith, including reasonable attorneys' fees. In addition, the parties and Plans agree that any dispute as to amounts due hereunder may, with the consent of the parties and involved Plan be submitted to binding arbitration in accordance with the rules and procedures of the National Health Lawyers Association, Alternative Dispute Resolution Service, Rules of Procedure for Arbitration, and judgment on the decision of the arbitrator may be entered in any court of competent jurisdiction. 12.20 Public Entity Crime Statement. A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 12.21 Conflicting Documents In the event of a conflict between the terms of this Agreement and any Plan or KPHA benefit contract, Member enrollment form/contract or Member brochure, the terms of this WHI CONTRACT RENEWAL REVISION 20051 19 Agreement will control. Such contract, enrollment or brochure may not impose any greater obligations upon any Pharmacy for the provision of prescription services than those obligations set forth in this Agreement and to the extent such document does, they are of no force or effect. 12.21 Disclosure of Relationships KPHA and Plan acknowledge that WHI has business relationships with certain manufacturers to develop products and services, such as clinical initiatives, disease management programs and general population research studies. KPHA and Plan further acknowledge that from time to time, WHI may receive grants or funding from manufacturers to help offset the costs associated with certain services including, but not limited to, non - product specific disease descriptions, patient and physician education materials and treatment information. WHI may also receive funding from manufacturers to help support clinical residency programs that may be under the auspices of an educational institution and in accordance with WHI's approved residency guidelines. KPHA and Plan acknowledge that WHI's business relationships with manufacturers, as described above, are not directly related to Members. In the event such business relationships are deemed related to or associated with Members, KPHA and Plan agree that such relationships and any funding derived therefrom are not considered Rebates under the terms of this Agreement. IN WITNESS WHEREOF the parties have caused this Agreement to be executed by their duly authorized officers or agents. E WALGREENS HEALTH INITIATIVES, INC. KEYS PHYSICIAN - HOSPITAL ��' ORGANIZATION, INC. c� DB /A KEYS PHYSICIAN- HOSPITAL ALLIANCE By: Z¢. -r-.�a (Signature) Name Printed: Vi Tkm oz*� Title. . lq&yn - i — Car4u wog o Date: /0 —) ?"d S By: — ' w w 4 _ (Signature) Name Printed: Li �__ I A) Title: �t��, �Q4, Date: 1 A�11_404S WHI CONTRACT RENEWAL REVISION 20051 20 ATTACHMENT A Pricing Arrangements I. RATES FOR SERVICES. The rates set forth in this Article I apply for dispensing and administrative services provided hereunder. Relevant definitions are listed in Article III, below. A. RATES FOR CLAIMS BY PARTICIPATING PHARMACIES: For each retail pharmacy prescription or refill covered by this Agreement, Plan will pay WHI at the rates set forth in this Section I.A., reduced by the applicable copayment fee received: 1. Brand Name Drugs: the lesser of (i) AWP - 15% plus a dispensing fee of $2.25; or (ii) the dispensing Participating Pharmacy's usual retail charge. 2. Generic Drugs: the lowest of (a) AWP - 15% plus a dispensing fee of $2.50; (b) as applicable, the MAC plus a dispensing fee of $2.50; or (c) the dispensing Participating Pharmacy's usual retail charge. 3. Notwithstanding the rates set forth in Paragraphs 1 and 2 of this Section I.A., and for plans requiring Member copayments only, if the total of the discounted AWP or MAC, when applicable, plus the dispensing fee is less than the Member copayment fee, Participating Pharmacy will receive, at a minimum, the lesser of the Member copayment fee or the dispensing Participating Pharmacy's usual retail charge. B. RATES FOR CLAIMS BY ADVANTAGE 90 PARTICIPATING PHARMACIES FOR 84 OR GREATER DAYS' SUPPLY: For each retail pharmacy prescription or refill covered by this Agreement and dispensed at an Advantage 90 Participating Pharmacy for 84 or greater days' supply, Plan will pay WHI at the rates set forth in this Section I.B., reduced by the applicable copayment fee received: 1. Brand Name Drugs: the lesser of (i) AWP - 21% plus a dispensing fee of $1.00; or (ii) the dispensing Participating Pharmacy's usual retail charge. 2. Generic Drugs: the lowest of (a) AWP - 50% plus a dispensing fee of $1.00; (b) as applicable, the MAC plus a dispensing fee of $1.00; or (c) the dispensing Participating Pharmacy's usual retail charge. 3. Notwithstanding the rates set forth in Paragraphs 1 and 2 of this Section I.B., and for plans requiring Member copayments only, if the total of the discounted Average Wholesale Price plus the dispensing fee is less than the Member copayment fee, Participating Pharmacy will receive as reimbursement, at a minimum, the lesser of the Member copayment fee or the dispensing Participating Pharmacy's usual retail charge. C. RATES FOR CLAIMS BY PARTICIPATING MAIL SERVICE PHARMACY: For each mail service pharmacy prescription or refill covered by this Agreement, Plan will pay WHI at the rates set forth in this Section I.C., reduced by the applicable copayment fee received: 1. Brand Name Drugs: AWP - 21% plus a dispensing fee of $1.00. 2. Generic Drugs: AWP - 50% plus a dispensing fee of $1.00. WHI CONTRACT RENEWAL REVISION 2005 21 3. Notwithstanding the rates set forth in Paragraphs 1 and 2 of this Section I.C. ( "Mail Contract Rates "), if the Mail Contract Rate is less than the Member copayment, the Member will pay a copayment equal to the Mail Contract Rate, subject to a minimum amount of $11.99 or such other amount as may be agreed to in writing between the parties. D. ADMINISTRATIVE FEES AND ASSOCIATED COSTS OR CHARGES. For services provided hereunder, Plan will pay WHI an administrative fee of $0.25 per paid net transaction. If requested by Plan, WHI will provide the following additional services at the rates indicated, provided that such rates are subject to change at any time after the initial year of this Agreement: SERVICE BILLABLE AMOUNT REPORTS Reports — Ad Hoc $100 per hour, $500 min Reports — Customized $100 per hour, $500 minimum each, after formatted WHI - generated queries $100 per hour, $500 min ID CARD INITIAL RUN (options include 2 id cards) ID Cards with Letter Carriers (w /WHI formulary) $1.30 + postage Postage for Mailing to Members $1.10 per mailing ID CARD — RE- ISSUANCE (options include 2 ID cards) ID Cards with Replacement Carrier $0.80 + postage Postage for Mailing to Members $1.10 per mailing MISCELLANEOUS SERVICES DMR Claims $2.00 per submitted claim Prior Authorizations $1.00 per authorization Manual Eligibility Updates $0.75 per update Customer Billing Transmission (CBT) — unless via FTP $125 per transmission Customized Letters to members $1.50 per letter, including po stage Annual Summary of Benefits (ASB) $1.50 per letter, including po stage; $250 set up fee HIPAA- Access to PHI/Accounting of Disclosures (actual data or account provided) $2.50 per request per member HIPAA - General Correspondence -other than Access to PHI/Accounting of Disclosures (responses to request outside of WHI's pharmacy data) $1.50 per request per member MANAGEMENT REPORTS On -line Mgt. Reports $50 per user ID per month; max of 4 ID's; one ID free 2" set of Mgt. Reports (paper copy). This $100.00 fee also applies if a Plan wants on -line report access AND paper copies $100 per month ON -LINE PBS PRODUCTS On -line PBS Access (If additional required, groups of 4 minimum) $50 per user ID per month; max of 4 ID's; two ID's free WHI CONTRACT RENEWAL REVISION 20051 22 CLINICAL PROGRAMS Reference Clinical Program Billing Sheet Medication Management See Article Vl. Any other additional services may incur additional charges. WHI is not required to supply any additional reports or information unless and until it has been agreed to in writing by both parties. D. PAYMENTS TO PHARMACIES. KPHA and Plan acknowledge that WHI has contracts with Participating Pharmacies and Participating Mail Service Pharmacy for the provision of, and payment for, prescription drug services provided to Members pursuant to this Agreement at agreed upon reimbursement rates. KPHA and Plan further acknowledges that in certain circumstances there may be a differential between payments made to such pharmacies for prescription drug services provided to Members and the payments received by WHI from the applicable client based upon negotiated pharmacy reimbursement rates. II. SPECIALTY PHARMACY DRUGS. KPHA and Plan acknowledges that certain drugs available on the market will not be subject to the rates set forth in Article I, above, due to reasons such as, but not limited to, nonstandard administration, necessity for case management, limited availability, unique shipping or handling requirements, and specialized manufacturer process and/or purchase arrangements. Such drugs are referred to herein as "Specialty Pharmacy Drugs." Examples of Specialty Pharmacy Drugs include biotechnology drugs and certain compounds. The rates for the dispensing of any Specialty Pharmacy Drugs will be as set forth below in this Article II, assuming no more than a 30 -day supply, or as otherwise agreed in writing between the parties. KPHA and Plan further acknowledges that the dispensing of Specialty Pharmacy Drugs may be limited to the Participating Mail Service Pharmacy, other subcontracted mail service provider, or certain Participating Pharmacies only. To the extent WHI is required to enter into a unique arrangement with a pharmacy for the dispensing of certain Specialty Pharmacy Drugs due to reasons such as, but not necessarily limited to, limited distribution or days' supply availability, Plan will pay WHI at the then current rates at which WHI pays the dispensing pharmacy. For all Specialty Pharmacy Drugs, Plan will pay WHI at the following rates, reduced by the applicable copayment fee received: A. Retail: The rates set forth in Section I.A., above. B. Mail: The rates set forth in Section I.A., above, provided that there is no "usual retail charge" comparison at mail. Notwithstanding the foregoing, if the rate set forth in this Article H is less than the Member copayment fee, WHI will receive as reimbursement, at a minimum, the lesser of the Member copayment fee or the dispensing pharmacy's usual retail charge. III. MULTI - SOURCE PRODUCTS. The dispensing Participating Pharmacy and the Participating Mail Service Pharmacy will dispense multi- source products using the inventory customarily maintained; the terms of reimbursement and the dispensing by the Participating Pharmacy or the Participating Mail Service Pharmacy of such multi- source products may not be restricted by formulary or any list of covered drugs which identifies multi - source drugs by the manufacturer. IV. TAXES. Plan is solely responsible for payment of any wholesale distributor tax or any other excise or value added tax or governmentally instituted imposition however styled if based upon purchases at wholesale or prescriptions dispensed associated with the provision of prescription services by Participating Pharmacy or Participating Mail Service Pharmacy in connection with this Agreement. Plan also will reimburse Participating Pharmacy or Participating Mail Service Pharmacy any WHI CONTRACT RENEWAL REVISION 20051 23 applicable federal, state or local sales tax liability or liability for governmental impositions based upon the sales of prescriptions dispensed or goods and services provided by Participating Pharmacy or Participating Mail Service Pharmacy to Plan or Members. For the purposes of this Agreement the term "tax" includes any sales tax, imposition, assessment, excise tax or other government levied amount based on Participating Pharmacy or Participating Mail Service Pharmacy's retail sales of prescriptions to Members either on gross revenues or by transaction, whether such tax is designated a sales tax, gross receipts tax, retail occupation tax, value added tax, health care provider tax, transaction privilege tax, assessment, pharmacy user fee, or charge otherwise titled or styled. It includes any tax in existence or hereafter created whether or not the bearer of the tax is the retailer or consumer. V. REBATES. A. PAYMENT AMOUNT. In connection with and subject to the terms and conditions of Section 2.4(c) of the main body of the Agreement regarding Rebates, WHI will make payments to respective Plans on a per net paid claim basis ( "WHI Payment ") based on the services provided under this Agreement, regardless of the amount of Rebates received by WHI. WHI will make such WHI Payments in the amount of $2.20, according to the payment terms set forth below. B. PAYMENT TERMS. WHI Payments will be made approximately nine months after the end of the calendar quarter (or portion thereof, when applicable) in which Rebates accrued hereunder. WHI Payments will be made via check or other mutually agreeable method. VI. MEDICATION MANAGEMENT PROGRAM A. Plan may desire that WHI provide a medication management program that is consistent with the prior authorization requirements under the benefit design respective Plan currently offers to Members ( "Medication Management Program "). The Medication Management Program is designed to promote appropriate utilization of potentially expensive, misprescribed and/or abused medications based upon generally accepted current pharmacy practices. WHI will implement the Medication Management Program on each respective Plan's behalf and in accordance with the protocols, criteria, forms, and related documents approved by Plan ( "Approved Protocols "). The Approved Protocols are hereby incorporated into this Agreement. B. Upon presentation by a Member of a prescription that requires prior authorization pursuant to the Medication Management Program, WHI will attempt (at least two times within a 16 business hour period) to have the Member's prescriber respond to questions specific to the prescription presented ( "Physician Form "). Completed Physician Forms will be reviewed by WHI's pharmacist and compared to the Approved Protocols for the applicable medication category. Based upon the results, Plan hereby directs WHI's pharmacists either to authorize or deny the dispensing of the medication and WHI will notify the Member accordingly. WHI will charge respective Plan $30.00 for each claim reviewed under the Medication Management Program. A Medication Management Program review will be deemed to have occurred whenever WHI has attempted (at least two times within a 16 business hour period) to have the Member's prescriber complete the applicable Physician Form. If after two attempts WHI is unable obtain a completed Physician Form from the Member's prescriber, respective Plan directs WHI's pharmacists to deny the dispensing of the medication and to notify the Member accordingly. C. WHI or WHI's designee will bill respective Plan monthly for the Medication Management Program and Plan will pay WHI within 15 days of WHI's issuance of each invoice. WHI CONTRACT RENEWAL REVISION 2005 24 D. It is expressly understood that Plan is solely responsible for construing the terms and conditions of its health benefit plan and the selection of medications that are part of the Medication Management Program. Further, Plan retains complete discretionary and final authority to make all determinations regarding its health benefit plan and prior authorization requests that are part of the Medication Management Program, including, without limitation: (i) payment of claims; (ii) provision of benefits; (iii) review and /or denial of prior authorization claims or requests by Members; and (iv) resolution of Member complaints, including the establishment of an appeal and/or grievance process. Plan will comply with all Federal and State laws, rules, and regulations regarding the denial of benefits. WHI CONTRACT RENEWAL REVISION 20051 25 ATTACHMENT B PHARMACY SERVICES JOINDER AGREEMENT This Pharmacy Services Joinder Agreement ( " Joinder Agreement ") is entered into this 2eday of S 2 , 2005, by and between The Board of County Commissioners of Monroe County, Florida, (hereinafter referred to as the "Plan ") and Walgreens Health Initiatives, Inc., an Illinois corporation, (hereinafter referred to as "WHr). JOINDER OF PLAN Plan hereby adopts and joins as a party the Prescription Service Agreement between Keys Physician - Hospital Alliance (KPHA) and Walgreens Health Initiatives, Inc, (WHI), dated October 1, 2005 (the Agreement), as a "Plan" defined therein, and agrees to perform the obligations of the Plan set forth therein as respects its Members, as defined in the Agreement, including without limitation all representations and payment obligations of Plan thereunder, and provided that any modification or amendments to the Agreement shall not be effective as against the Plan unless approved by the Plan. TERM This Joinder Agreement shall become effective on October 1, 2005 and continue thereafter for an initial term of one year. Thereafter, this Joinder Agreement may be renewed for two consecutive one year terms at the sole option of the Plan. WHI agrees to provide the Plan with at least 90 days written notice of its intent to terminate, non - renew, or amend this Joinder Agreement, except as otherwise states in Sections 9. and 12.9. of the Agreement. The Plan agrees to provide WHI with at least 90 days written notice of its intent to terminate, non renew, or amend this Joinder Agreement. If WHI or KPHA terminate or materially amend their agreement, the Plan is given the option of contracting directly with WHI on the same terms and provisions. NOTICES Any notices required to be given pursuant to the terms and provisions hereof shall be in writing and shall be hand delivered, with return receipt thereof, or sent by certified or registered mail, return receipt requested and first class postage paid to the addressee as follows: Plan: County of Monroe Manager: Employee Benefits Group Insurance Office 1100 Simonton Street Room 2 -268 Keys West, FL 33040 WHI: Walgreens Health Initiatives, Inc. Attn.: Client Services 1417 Lake Cook Road MS L468 Deerfield, IL 60015 Copy to: WHI Legal (at the same address) ASSIGNMENT This Joinder Agreement may not be assigned, subcontracted, delegated, transferred by either party without the express written consent of the other party, and any attempted assignment, subcontract, delegation or transfer shall be void. ORDINANCE 10 -1990 WHI warrants that it has not employed, retained, or otherwise has acted on behalf of any former County of Monroe officer subject to the prohibition Sec. 2 of Ordinance no. 10 -1990 or any County of Monroe officer or employee in violation of Sec. 3 or Ordinance 10 -1990, and that no employee or officer of the County of Monroe has any interest, financially or otherwise, in WHI except for WHI CONTRACT RENEWAL REVISION 20051 26 such interest, permissible by law and fully disclosed by affidavit attached hereto. For breach or violation of this paragraph, the County of Monroe may, in its discretion, terminate this Joinder Agreement without liability and may also, in its discretion, deduct from the contract or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift or consideration paid to the former County of Monroe officer or employee. CONFLICT OF INTEREST WHI assures the County of Monroe that to the best of its knowledge, information and belief, the signing of this Joinder Agreement does not create a conflict of interest. OWNERSHIP OF INFORMATION Subject to federal and state laws pertaining to patient confidentiality, all Drug Utilization Review and Disease State Management documents and reports which are prepared in the performance of this Joinder Agreement will be made available to the Plan upon written request for use as the Plan deems appropriate. RIGHT TO AUDIT Upon prior written and reasonable notice, WHI is required to allow the Plan to audit or review documents in support of the billings, made to the County, subject to Section 6.5 of the main body of the Agreement. NON - APPROPRIATION. Monroe County's performance and obligation to pay under this contract is contingent upon an annual appropriation by the Board of County Commissioners. E In Witness Whereof, Plan and WHI have caused this Agreement to be executed by their respective m corporate officers, on the day set forth below. SeV WHI CONTRACT RENEWAL REVISION 20051 27 Walgreens Health Initiatives, Inc. Board of County Commissioners of Monroe County, Florida 2�e,�.,,,�.�.� 2 . 4 4,40 By: By: Its: �/ j• �/� �� Its: Mayor /Chairman Date: /y T Date: September 28, 2005 C+ W 1 w ( L) � L Cuw cr Q MONROE COUNTY ATTORNEY _�3► ••— 1 1 OVED AS TO CD J"c A E A. TTO N C3 > ?- CD CC �N U j�N��TORNEY �`ff� y O LAJ a Z ° C3 WHI CONTRACT RENEWAL REVISION 20051 27