Exhibit 10.13
MENTAL AND BEHAVIORAL HEALTH SERVICES AGREEMENT (REFORM PROGRAM)
BETWEEN AMERICAN PSYCH SYSTEMS OF PUERTO RICO, INC.
AND HUMANA HEALTH PLANS OF PUERTO RICO, INC.
This Mental and Behavioral Health Services Agreement (Reform Program) (the
"Agreement") is made as of May 1, 1999, by and between American Psych Systems of
Puerto Rico, Inc. ("APS PR") and Humana Health Plans of Puerto Rico, Inc.
("Humana PR").
A C K N O W L E D G E M E N T S
A. Humana PR has entered into a Health Insurance Contract with ASES to
provide medical and health care services through a network of providers.
B. Humana PR operates a health maintenance organization licensed by the
Puerto Rico Commissioner of Insurance.
C. APS PR is a health care organization that provides mental and behavioral
health services directly and through a supplementary network of physicians
and/or other providers of mental and behavioral health services.
D. APS PR desires to provide and/or arrange for the provision of, and Humana
PR desires that APS PR provide and/or arrange for the provision of, mental
health and substance abuse services on behalf of Humana PR to Humana PR's
Reform Program Beneficiaries in Health Region (as such terms are defined
herein).
E. Humana PR and APS PR desire to set out in more detail their respective
rights and responsibilities with respect to Humana PR's Reform Program
Beneficiaries in the Health Region.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Humana PR and APS PR
hereby agree as follows:
1. DEFINITIONS
The following definitions shall apply to the terms used in this Agreement.
"AGREEMENT" means this Mental and Behavioral Health Services Agreement
between APS PR and Humana PR, including all Attachment s, annexes and
addenda.
"APS PR PHYSICIAN" means a Physician employed or contracted by APS PR to
provide Mental and Behavioral Health Services to the Beneficiaries.
"APS PR PROVIDER SERVICES AGREEMENT" means a contract between APS PR and
an APS PR Provider pursuant to which the APS PR Provider agrees to provide
Mental and Behavioral Health Services to the Beneficiaries.
"APS PR PROVIDER" means an APS PR Physician or other health care entity
authorized under the law of the Commonwealth of Puerto Rico to provide
health care services and contracted by APS PR to provide Mental and
Behavioral Health Services to the Beneficiaries.
"ASES" means the Puerto Rico Health Insurance Administration, known in
Spanish as ADMINISTRACION DE SEGUROS DE SALUD DE PUERTO RICO, a public
instrumentality of the Commonwealth of Puerto Rico (referred to in this
Agreement as "ASES" per its initials in Spanish).
"BENEFICIARY" OR "MEMBER" means a resident of the Health Region who (i) is
eligible to receive Covered Services pursuant to the Health Insurance
Contract; (ii) has been reported as an eligible Beneficiary to Humana PR;
and (iii) has been properly enrolled in the Health Plan by Humana PR
pursuant to the Health Insurance Contract.
"COPAYMENT" means a monetary sum that a Beneficiary is required to pay APS
PR or an APS PR Provider upon the Beneficiary's receipt of a Covered
Service, but solely as permitted by the Health Insurance Contract.
Copayments include those amounts referred to in the Health Insurance
Contract as "Deductibles" and are set forth in Attachment A hereto.
"COVERED SERVICES" means those medical, health, dental, hospital and other
professional services, supplies and benefits to which Beneficiaries are
entitled under the terms of the Health Insurance Contract, as determined
by Humana PR and which are required to identify, treat or avoid illness or
injury to a Beneficiary and which are (i) appropriate and necessary for
the symptoms, diagnosis, or treatment of the Beneficiary's medical
condition or injury; (ii) consistent with established medical standards
within the medical community; (iii) not optional or cosmetic, or primarily
for the convenience of the Beneficiary, the Beneficiary's family or the
Beneficiary's attending or consulting physician or another health care
provider, as determined by Humana PR's utilization review process,
policies and procedures; (iv) covered under the Health Insurance Contract;
(v) the most appropriate supply or level of service which can be safely
provided to a Member in the least costly setting or as otherwise provided
in the Health Insurance Contract; and (vi) duly authorized in accordance
with the policies and procedures of Humana PR.
"COVERING PHYSICIAN" means a Physician or other licensed health care
provider, as applicable, who has been employed by or who has entered into
an agreement with APS PR or an APS PR Provider to provide Mental and
Behavioral Health Services to Designated Beneficiaries when APS PR
Provider is not available. Any Covering Physician shall have agreed, as a
condition of providing services to Beneficiaries, to be governed and abide
by the applicable terms and conditions of this Agreement.
"EMERGENCY MEDICAL CONDITION" means a condition presenting symptoms of
sufficient severity that a person with average knowledge of health and
medicine would reasonably expect the absence of immediate medical
attention to result in (i) placing their health or the health of an unborn
child in immediate jeopardy, serious impairment of bodily functions, (ii)
serious dysfunction of any bodily organ or part; or (iii) serious danger
to the person, others or the community.
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"ENCOUNTER DATA" means documentation which records a contact between a
patient and health professional during which a health service is provided.
Such documentation should record selected identifying, diagnostic and
related information describing the encounter.
"HCFA" means the United States Health Care Financing Administration.
"HEALTH INSURANCE CONTRACT" means, collectively, (i) the Health Insurance
Contract for the Central Health Region between Humana PR and ASES; and
(ii) the Health Insurance Contract for the Southeast Health Area between
Humana PR and ASES, as such agreements are amended and extended from time
to time, which respectively govern the relationship between Humana PR and
the Beneficiaries who are residents of the Central Health Region and the
Southeast Health Area.
"HEALTH PLAN" or "PLAN" means the health maintenance plan offered by
Humana PR to the Beneficiaries pursuant to the Health Insurance Contract.
"HEALTH REGION" means, collectively, the Central Health Region and the
Southeast Health Area, as defined by ASES in the Health Insurance
Contract.
"INCIDENT" means any occurrence that is not routine in a health care
facility. These situations may include, but are not limited to, the
following: (i) any unusual occurrence; (ii) an occurrence that could have
or did result in an injury or adverse medical consequence to a
Beneficiary; (iii) a condition, situation, procedure, etc., which could or
did result in an injury or adverse medical consequence to a Beneficiary,
including any happening of an untoward (unusual) nature to a Beneficiary.
Incidents shall not be limited to quality of care issues.
"LAW 72" means Puerto Rico Law 72 of September 7, 1993.
"MEDICAL DIRECTOR" means a Physician or his/her designee who has been
designated by Humana PR to monitor and implement the provision of Covered
Services to Beneficiaries.
"MENTAL AND BEHAVIORAL HEALTH SERVICES" means those Covered Services that
APS PR agrees to provide to the Beneficiaries for the term of this
Agreement, as set forth in Attachment B hereto.
"MONTHLY PAYMENT" shall mean APS PR's Monthly Payment as described in
Attachment A hereto.
"MONTHLY PREMIUM" shall mean the aggregate payment Humana PR receives
from ASES in a particular month for individual and family coverage for the
Beneficiaries in the Health Region.
"PARTICIPATING PROVIDER" means a Physician or other provider that has
entered into an agreement with APS PR or Humana PR to provide Covered
Services to Beneficiaries pursuant to the Health Insurance Contract.
Participating Providers include, but are not limited to, Physicians,
dentists, hospitals, optometrists, podiatrists, dentists, health related
professionals, pharmacies, clinical laboratories, radiologic facilities,
and other ancillary providers required to provide health services under
the basic, special and
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dental coverage required in the Health Insurance Contract. All APS PR
Providers are Participating Providers.
"PAYMENT OBLIGATION" means an obligation by APS PR to pay money to Humana
PR pursuant to Section 4.7.2 of this Agreement.
"PERFORMANCE STANDARDS" means the objective, quantifiable performance
standards to be met by APS PR in the performance of its obligations under
this Agreement, as described in Section 5 of Attachment A hereto.
"PHARMACY/LAB FUND" means the portion of the Monthly Payment withheld by
Humana PR and used to pay all claims related to the pharmacy and
laboratory goods and services listed in Section 1.3 of Attachment B, as
described in Section 2 of Attachment A.
"PHYSICIAN" means a duly licensed doctor of medicine having an
unrestricted license to practice medicine in the jurisdiction in which
such individual's services are to be provided, including, if applicable,
an unrestricted license to prescribe controlled medications and substances
and order medical supplies and appliances.
"PRIMARY CARE PHYSICIAN," or "PCP," means a Physician who has been
employed by or who has contracted with Humana PR or who is employed by or
who has contracted with a health care organization under contract with
Humana PR, to provide Primary Care Services to Beneficiaries who have
selected such PCP as their PCP.
"SPECIALIST PHYSICIAN" means a Physician who has been employed by or who
has contracted with APS PR (either directly or through an entity owned by
such Physician or by which the Physician is employed or engaged), or with
Humana PR on behalf of APS PR, to provide service other than Primary Care
Services to Beneficiaries upon authorized referral from a PCP. Specialist
Physicians include, but are not limited to, Cardiologists, Surgeons,
Psychiatrists, Ophthalmologists and Radiologists.
2. SERVICES TO BE PROVIDED BY APS PR
2.1. PROVISION OF MENTAL AND BEHAVIORAL HEALTH SERVICES
APS PR agrees to provide and/or arrange for the provision of all of Mental
and Behavioral Health Services to the Beneficiaries for the term of this
Agreement, consistent with the terms of the Health Insurance Contract and
Humana PR's policies and procedures and further subject to the limitations
and exclusions set forth on Attachment B to this Agreement. Humana PR agrees
to use its best efforts to provide APS PR at least thirty (30) days prior
notice of any amendments or modifications to the Health Insurance Contract,
and to engage in good faith discussions with APS PR regarding any objections
which APS PR may have to such amendments or modifications.
APS PR further agrees as follows:
2.1.1. ACCESS TO BENEFITS; AVAILABILITY OF SERVICES
At all times during the term of this Agreement, APS PR shall employ or
contract with adequate number of health care professionals, hospitals and
ambulatory care
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providers and maintain agreements with an adequate number of
geographically dispersed APS PR Providers as reasonably determined by
Humana PR and ASES to be sufficient to provide all Mental and Behavioral
Health Services to the Beneficiaries in a timely and effective manner,
including, without limitation, Emergency Mental and Behavioral Health
Services on a 24-hour-per-day, 7-day-per-week basis. In addition, APS PR
will establish multidisciplinary staff model clinics ("MDSC") as specified
in the Performance Standards as specified in Exhibit 2 to Attachment A
hereto and contract with hospital and ambulatory facilities as needed to
guarantee access to hospitalization, partial hospitalization and
ambulatory care for all Beneficiaries.. The quantity, locations and
staffing levels of the MDSCs may be increased or decreased during the term
of this Agreement as a result of changes in the mental health care needs
of the Beneficiary population or changes in ASES requirements. Any request
for such changes will be reasonable and sent by Humana PR to APS PR in
writing. Upon receipt of such request(s), APS PR agrees to implement the
changes within sixty (60) days. Sixty (60) days after any change in the
quantity, locations or staffing levels of the clinics is requested by
Humana PR, the Performance Standards will be automatically amended to
reflect the requested change. APS PR shall also ensure that Beneficiaries
have access to telephone consultations with appropriately licensed mental
health professionals on a 24-hour-per-day basis to respond to inquiries
regarding the mental and behavioral health condition of Beneficiaries and
to direct Beneficiaries to appropriate facilities. Without limiting the
generality of the foregoing, APS PR will contract hospital and ambulatory
facilities as needed to guarantee hospitalization, partial hospitalization
and ambulatory care for all members.
2.1.2. AGREEMENTS WITH PROVIDERS
APS PR shall enter into an appropriate APS PR Provider Services Agreement
with each APS PR Provider in forms comparable to, and consistent with, the
terms and conditions established in this Agreement. Such agreements shall
comply in all respects with this Agreement, and their form and content
shall be subject to Humana PR's prior review and approval. Each APS PR
Provider Services Agreement shall include specific provisions that are
necessary to comply with all applicable terms and conditions of the Health
Insurance Contract. APS PR shall ensure that each APS PR Provider Services
Agreement expressly states that all of the terms of this Agreement and the
Health Insurance Contract shall be deemed to be incorporated in each such
APS PR Provider Services Agreement to the same extent as if fully set
forth therein. APS PR agrees, and shall require APS PR Providers to agree
that in the event of any conflict or inconsistency between this Agreement
and the Health Insurance Contract, on the one hand, and APS PR Provider
Services Agreements, on the other hand, that the terms of this Agreement
and the Health Insurance Contract shall control. In the event that APS PR
enters into an APS PR Provider Services Agreement with an APS PR Provider
that is a corporation, partnership, or other entity rather than an
individual Physician or provider, APS PR agrees, and shall require APS PR
Providers and all such entities to agree, that all of the terms of this
Agreement and the Health Insurance Contract applicable to APS PR Providers
shall apply to all such entities. APS PR agrees to notify Humana PR of any
material change(s) to the aforementioned agreements at least thirty (30)
days prior to implementing such change(s), during which period, Humana PR
may object to the change(s). Humana PR's notice of objection shall not
preclude APS PR's implementation of such change(s), but APS PR agrees that
any such change(s) shall not be contrary to, in violation of, or
inconsistent with the terms of this Agreement. In the event Humana PR
notifies APS PR of its objection, both parties agree to make a good
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faith effort to resolve such dispute in a timely manner. In addition to
the appropriate APS PR Provider Services Agreement that APS PR will enter
into with each APS PR Provider, APS PR shall include in each APS PR
Provider Services Agreement a requirement that the APS PR Provider execute
a direct Participating Provider Agreement with Humana PR, and a further
provision that the APS PR Provider's failure to so execute a direct
Participating Provider Agreement with Humana PR shall be grounds for the
termination of the APS PR Provider Services Agreement. APS PR acknowledges
that if Humana notifies APS PR that an APS PR Provider has not executed a
direct Participating Provider Agreement with Humana PR, then such APS PR
Provider may not provide any services to the Beneficiaries for
compensation by APS PR or Humana PR if Humana PR so directs (Humana PR may
waive this requirement on a case-by-case basis in its sole discretion).
2.1.3 CONTRACT PROVIDERS; STANDARD OF CARE
Mental and Behavioral Health Services shall only be performed by APS PR
Physicians and other APS PR Providers under contract with APS PR. All such
Mental and Behavioral Health Services shall be consistent with the
accepted standards of medicine and professional practice, and shall be
performed in accordance with applicable laws, rules, regulations,
licensing and accrediting standards of governmental and quasi-governmental
agencies, and the code of ethics and conduct promulgated by the American
Medical Association, the COLEGIO DE CIRUJANOS MEDICOS DE PUERTO RICO, EL
COLEGIO DE CIRUJANOS DENTISTAS DE PUERTO RICO and similar professional
associations.
2.2. LICENSURE, CERTIFICATION AND ACCREDITATION
2.2.1. APS PR
APS PR represents and warrants that it has obtained and shall maintain any
and all licenses, certificates and/or approvals required under the laws,
rules and regulations of the Commonwealth of Puerto Rico and the United
States of America for the performance by APS PR of its duties and
obligations under this Agreement.
2.2.2. APS PR PROVIDERS
APS PR shall require APS PR Providers, and all employees of APS PR and/or
APS PR Providers required to be so licensed or certified, to procure and
maintain for the term of this Agreement such licensure and/or
certification as is required under Humana PR's policies and procedures,
under the terms and conditions of this Agreement, and in accordance with
all applicable state and federal laws. APS PR shall notify and/or shall
require APS PR Providers to notify APS PR immediately of any changes in
licensure or certification status of APS PR Providers, and their
respective employees as applicable, and APS PR shall promptly forward such
information to Humana PR.
2.3. APS PR PROVIDERS GENERALLY
2.3.1. CREDENTIALING
APS PR acknowledges and agrees and shall require APS PR Providers to
acknowledge and agree that all APS PR Providers who will provide mental
and substance abuse services to Members hereunder are required to be
credentialed, and
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shall be subject to the credentialing process prior to receiving status as
an APS PR Provider. APS PR agrees to comply with the credentialing and
recredentialing policies, procedures and criteria established by Humana
PR, and to cause each APS PR Provider to comply with such credentialing,
recredentialing and accreditation policies, procedures and criteria as are
applicable to such APS PR Provider. APS PR and Humana PR acknowledge that
Humana PR has delegated certain credentialing activities to APS PR
pursuant to the Credentialing Delegation Agreement attached hereto as
Attachment D (the "Credentialing Delegation Agreement"). Subject to the
further requirements of Section 3.1 hereof, for so long as the
Credentialing Delegation Agreement is in force, APS PR shall conduct the
credentialing and recredentialing of APS PR Providers pursuant thereto.
APS PR shall ensure that no APS PR Provider renders Mental and Behavioral
Health Services to Beneficiaries unless such APS PR Provider shall have
been credentialed and/or re-credentialed, as the case may be, as required
by the Credentialing Delegation Agreement and Humana PR's policies and
procedures. APS PR shall have a continuing duty and obligation to
immediately report any error, omission, change, or misrepresentation in
the information contained in each APS PR Provider's credentialing
application and to prevent any APS PR Provider who no longer qualifies to
render services under this Agreement from providing Mental and Behavioral
Health Services to any Beneficiary. All facilities that are APS PR
Providers (e.g., hospitals) shall comply at all times with the applicable
licensing and certification regulations of the Commonwealth of Puerto
Rico, U.S. Department of Health and Human Services, Health Care Financing
Administration, the Department of Health of Puerto Rico, ASES and all
applicable accrediting organizations.
2.3.2. POLICIES AND PROCEDURES
APS PR agrees and shall require APS PR Providers to agree to abide by all
quality assurance, quality improvement, accreditation, risk management,
utilization review, credentialing, recredentialing, grievance and appeals,
and other administrative policies and procedures established and revised
by Humana PR from time to time. APS PR shall be notified of any revisions
to the policies and procedures and they shall become binding upon APS PR
and APS PR Providers thirty (30) days after Humana PR has notified APS PR,
but Humana PR agrees that any such revisions shall not be contrary to, in
violation of, or inconsistent with the terms of this Agreement and the
Health Insurance Contract. Any revisions affecting APS PR and/or APS PR
Providers shall not be discriminatory and shall apply to all providers
similarly situated.
2.3.3. CONTINUING PROFESSIONAL EDUCATION
APS PR Providers shall participate in such programs of continuing
education as required by their specialty in the Commonwealth of Puerto
Rico and to maintain competence and proficiency in their area of practice.
All APS PR Providers must complete at least 16 hours of orientation,
education and familiarization with different aspects of the Health
Insurance Contract. In each year, fifty percent (50%) of such hours must
be completed on or before the expiration of the first six (6) months of
the year and the remaining fifty percent (50%) during the following six
months. Failure to participate in these programs may be cause for
termination of a provider's eligibility to be an APS PR Provider under the
Health Insurance Contract.
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2.3.4 OWNERSHIP DISCLOSURE
Simultaneously with the execution of this Agreement, APS PR shall, and
shall require its APS PR Providers to, submit to Humana PR a completed
Ownership Disclosure Form in the form attached as Attachment C hereto. APS
PR agrees, and shall cause its APS PR Providers to agree that Humana PR
shall have the right, at its sole discretion, to prohibit or restrict APS
PR and/or APS PR Providers from referring Beneficiaries to health care
providers in which APS PR or its Principals have an ownership or
managerial interest.
2.3.5. DUTY TO NOTIFY
APS PR shall immediately notify Humana PR, and shall cause each affected
APS PR Provider to immediately notify Humana PR, if
(a) the hospital staff privileges of any APS PR Physician or any APS PR
Provider are terminated or restricted to any material extent;
(b) the DEA permit of any APS PR Physician or other APS PR Provider is
terminated or restricted to any extent;
(c) the license of any APS PR Provider or any APS PR Physician to
provide health care services in the Commonwealth of Puerto Rico or
any other jurisdiction is terminated or restricted to any extent;
(d) any regulatory or accrediting organization (including, in the case
of hospitals, the Joint Commission on Accreditation of Health Care
Organizations) undertakes any action that would materially impair
the ability of APS PR, any APS PR Physician or APS PR Provider to
provide and/or arrange for provision of Mental and Behavioral Health
Services to Beneficiaries;
(e) the right of any APS PR Physician or any APS PR Provider to
participate in the Medicare, Medicaid or Reform Programs is
terminated or restricted to any extent;
(f) any adverse action by a governmental body is undertaken against APS
PR, any APS PR Physician or an APS PR Provider;
(g) APS PR, any APS PR Physician, or an APS PR Provider receives notice
of intent to file or actual filing of any litigation pertaining to a
Beneficiary or pertaining to or alleging professional liability of
APS PR, an APS PR Physician, APS PR Provider, or any owner or
employee of APS PR, or APS PR Provider; or
(h) any APS PR Provider ceases to be associated with APS PR, in which
case APS PR shall promptly notify Humana PR in writing of such fact,
the reason therefor, and the financial status of such APS PR
Provider as of the date the provider ceases to be associated with
APS PR (i.e., whether APS PR or APS PR Provider owe or claim to owe
any sum to the other).
(i) Any of the information set forth in the Ownership Disclosure Form(s)
submitted to Humana PR pursuant to Section 2.3.4 hereof has changed
or requires updating.
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2.3.6 COMPLIANCE WITH LAWS
APS PR represents and warrants to Humana PR, and APS PR shall cause each
APS PR Provider to represent and warrant for the benefit of Humana PR in
its APS PR Provider Services Agreement, that it is in compliance with all
applicable local, federal and Commonwealth of Puerto Rico laws relating to
the provision of medical services, including, without limitation, the
Federal Clinical Laboratory Improvement Act and other acts, as applicable.
2.4. REFERRALS TO OTHER PARTICIPATING PROVIDERS
Subject to a Beneficiary's right to choose among APS PR Providers, APS PR
shall require APS PR Providers to refer Beneficiaries only to other APS PR
Providers or to Participating Providers, to obtain the approval of Humana
PR prior to any such referral unless it is a referral to receive a Mental
or Behavioral Health Service or unless Humana PR shall have otherwise
provided in writing. In the event that services (other than Mental or
Behavioral Health Services) are required by a Beneficiary are not
available from APS PR Providers or other Participating Providers, other
providers may be utilized as permitted by Humana PR's policies and
procedures. Humana PR will periodically furnish APS PR and APS PR
Providers with a current listing of Participating Providers. If APS PR, or
an APS PR Provider refers a Beneficiary to a health care provider in a
manner contrary to this Agreement, the cost of such services shall be the
financial responsibility solely of APS PR or the APS PR Provider and
Humana PR, at its option, may offset such payment liability from amounts
otherwise due APS PR pursuant to this Agreement.
2.5. HOSPITAL ADMISSIONS
In cases where a Beneficiary requires a non-Emergency hospital admission
(other than an admission for a Mental or Behavioral Health Service), APS
PR and APS PR Providers shall secure prior authorization from Humana PR
for such admission. In such case, APS PR Providers shall abide by Humana
PR's policies and procedures regarding appropriate length of stay. If an
APS PR Provider admits or extends the length of stay of a Beneficiary in a
manner contrary to the above, the cost of such services shall be the
financial responsibility of APS PR, and Humana PR may offset such
liability from the amounts otherwise due APS PR pursuant to this
Agreement. In the event a Beneficiary requires an Emergency hospital
service, APS PR shall ensure that the hospital renders Emergency care to
stabilize the Beneficiary without delay for any reason, and immediately
contacts the Beneficiary's PCP to enable the PCP to determine the course
of medical treatment appropriate to the Beneficiary's medical condition.
In the event the Beneficiary requires an Emergency admission for any
reason other than for a Mental or Behavioral Health Service, APS PR shall
contact Humana PR for authorization or ensure that the hospital contacts
Humana PR for authorization within 24 hours of admitting the Beneficiary
to obtain review and approval of the admission from Humana PR.
2.6. "COVERING" PHYSICIANS
In compliance with the requirements of this Agreement for Emergency care
on a 24-hour-per-day, 7-day-per-week basis, APS PR shall establish and
shall require all APS PR Physicians to establish in writing in advance
appropriate "covering" relationships with Covering Physicians. APS PR
shall ensure, and shall require APS PR
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Physicians to ensure, that Covering Physicians shall have met all the
credentialing requirements of Humana PR and shall have been approved in
writing by Humana PR to render Covered Services to Beneficiaries prior to
rendering such services hereunder. APS PR and APS PR Physicians shall
require that the Covering Physicians agree to be bound by all of the
provisions of this Agreement including, without limitation, those relating
to Humana PR's policies and procedures. APS PR and APS PR Physicians shall
also require that Covering Physicians cooperate with and accept the
findings of and agree to be bound by Humana PR's peer review and
Beneficiary grievance procedures as they relate to services provided to
Beneficiaries, and that such Covering Physicians will seek authorizations
as described in Humana PR's policies and procedures. APS PR shall ensure
that Covering Physicians will not, under any circumstances, ▇▇▇▇
Beneficiaries (except for Copayments). Humana PR shall have the obligation
to make payment to any Covering Physician for which a valid invoice, or
portion thereof, is outstanding for more than 30 days. Humana PR will
provide notice to APS PR and/or APS PR Physician of its intention to make
payment of such claims. Humana PR may deduct and offset against any such
payments from any amounts otherwise due APS PR pursuant to this Agreement.
2.7. NON-COVERED SERVICES
Humana PR shall in no event be financially responsible for any non-Covered
Service that an APS PR or APS PR Provider renders to a Beneficiary. In the
event that an APS PR Provider intends to provide a non-Covered Service to
a Beneficiary, the APS PR Provider shall first inform the Beneficiary in
writing: (a) of the Medical Necessity of the service to be provided and
the medically acceptable alternatives; (b) that the service is not covered
under the Beneficiary's Health Plan; (c) that Humana PR will not pay or be
financially liable for said service; and (d) that the Beneficiary will be
financially liable for such service. In the event that Beneficiary is not
so informed, the Beneficiary shall not be liable to APS PR or APS PR
Provider for such services. APS PR or APS PR Providers shall not ▇▇▇▇
Beneficiaries for services that are determined by Humana PR, at its sole
discretion, not to be Covered Services unless APS PR Provider has informed
the Beneficiary in advance that the services are not Covered Services and
has received the Beneficiary's written agreement to be financially liable
for those services in accordance with this Section 2.7.
2.8. PHYSICIAN INCENTIVE PLANS
Upon request, APS PR agrees to disclose to Humana PR within a reasonable
time period not to exceed thirty (30) days, or such lesser period of time
required for Humana PR to comply with all applicable state and federal
laws, rules and regulations, from such request, all of the relevant terms
and conditions of any payment arrangement applicable to reimbursement for
services rendered to Medicare and/or Medicaid Members that constitutes a
physician incentive plan as defined by HCFA and/or any state or federal
law, between APS PR and APS PR Providers upon request. Such disclosure
shall be in the form of a certification, or other form as required by
HCFA, by APS PR and shall identify, at a minimum: (i) whether services not
furnished by the APS PR Provider(s) are included; (ii) the type of
incentive plan, including the amount, identified as a percentage, of any
withhold or bonus; (iii) the amount and type of any stop-loss coverage
provided for or required of the APS PR Providers; and (iv) the APS PR
physician Provider(s) patient panel size, broken down by total APS PR
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physician Providers panel and individual APS PR physician Provider panel
size, by the type of insurance coverage (i.e. Commercial HMO, Medicare HMO
and Medicaid HMO).
3. DELEGATION
3.1. DELEGATION OF CREDENTIALING ACTIVITIES
APS PR and Humana PR acknowledge that Humana PR has delegated certain
credentialing activities to APS PR pursuant to the Credentialing
Delegation Agreement attached hereto as Attachment D (the "Credentialing
Delegation Agreement"). Such delegation is subject to the following: (i)
Such delegation is only on the terms stated in this Agreement and the
Credentialing Delegation Agreement; (ii) Humana PR retains the right to
approve new APS PR Provider and/or facilities and/or sites and to
terminate or suspend for cause and/or limit the services for cause of any
APS PR Providers or facilities providing Mental and Behavioral Health
Services under this Agreement, upon 30 days written notice to APS PR and
the affected provider; (iii) Humana PR shall monitor the effectiveness of
APS PR's credentialing and reappointment or recertification process
pursuant to the Credentialing Delegation Agreement ; (iv) APS PR shall
participate with Humana PR in any internal peer review, external audit
systems established by Humana PR; and (v) APS PR shall make its
credentialing files and records available to Humana PR.
3.2. DELEGATION OF UTILIZATION MANAGEMENT ACTIVITIES
APS PR and Humana PR acknowledge that Humana PR has delegated certain
utilization management activities to APS PR pursuant to the Utilization
Management Delegation Agreement attached hereto as Attachment E (the
"Utilization Management Delegation Agreement"). Such delegation is subject
to the following: (i) Such delegation is only on the terms stated in this
Agreement and the Utilization Management Delegation Agreement; (ii) Humana
PR shall approve all existing and new APS PR utilization management,
access, availability and triage policies and procedures and to terminate
or suspend delegation of utilization management and management of access,
availability and triage activities to APS PR under the terms of this
Agreement; (iii) Humana PR shall monitor the effectiveness of APS PR's
utilization management and access, availability and triage processes; (iv)
APS PR shall participate with Humana PR in any internal peer review or
external audit systems established by Humana PR; and (iv) APS PR shall
make all utilization management and access, availability and triage files
and records available to Humana PR.
3.3. DELEGATION OF MEMBER SERVICES AND QUALITY IMPROVEMENT ACTIVITIES
APS PR and Humana PR acknowledge that Humana PR has delegated certain
member services and quality improvement activities to APS PR pursuant to
the Member Services and Quality Improvement Delegation Agreement attached
hereto as Attachment F (the "Member Services and Quality Improvement
Delegation Agreement"). Such delegation is subject to the following: (i)
such delegation is only on the terms stated in this Agreement and the
Member Services and Quality Improvement Delegation Agreement; (ii) Humana
PR shall approve all existing and new APS PR member service and quality
improvement policies and procedures and to terminate or suspend delegation
of member service and quality improvement activities to APS PR under the
terms of this
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Agreement; (iii) Humana PR shall monitor the effectiveness of APS PR's
member service and quality improvement health processes; (IV) APS PR shall
participate with Humana PR in any internal peer review or external audit
systems established by Humana PR; and (V) APS PR shall make all member
service and quality improvement health files and records available to
Humana PR.
3.4. DELEGATION OF TREATMENT RECORD ACTIVITIES
APS PR and Humana PR acknowledge that Humana PR has delegated certain
treatment record activities to APS PR pursuant to the Treatment Record
Delegation Agreement attached hereto as Attachment G (the "Treatment
Record Delegation Agreement"). Such delegation is subject to the
following: (i) such delegation is only on the terms stated in this
Agreement and the Treatment Record Delegation Agreement; (ii) Humana PR
shall approve all existing and new APS PR treatment record policies and
procedures and to terminate or suspend delegation of treatment record
activities to APS PR under the terms of this Agreement; (iii) Humana PR
shall monitor the effectiveness of APS PR's treatment record processes;
(iv) APS PR shall participate with Humana PR in any internal peer review
or external audit systems established by Humana PR; and (v) subject to
applicable legal requirements, APS PR shall make all treatment record
health files and records available to Humana PR as requested by Humana PR.
3.5. CHANGES TO DELEGATED ACTIVITIES
In the event that changes in any of the policies or procedures described
in this Section 3 are required by the terms of a Humana PR health care
benefits plan, the Health Insurance contract or other requirements of
ASES, state or federal law, regulatory body, or accreditation standards,
or otherwise, APS PR shall revise such policies or procedures to comply
with such new policy, procedure, law, rule, regulation or accreditation
standard. Failure to revise APS PR policies and procedures within time
frames required by the above mentioned bodies and/or Humana PR shall be
grounds for termination, recession of such delegated activities and/or
placement on a Corrective Action Plan with respect to such delegated
activities, as applicable, according to the terms of this Agreement and
the applicable delegation agreement.
4. COMPENSATION
4.1. COMPENSATION FOR MENTAL AND BEHAVIORAL HEALTH SERVICES
Humana PR shall compensate APS PR for providing the Mental and Behavioral
Health Services to the Beneficiaries, as described in this Section 4 and
Attachment A hereto. APS PR shall in turn compensate the APS PR Providers
for their services to Beneficiaries, pursuant to an existing employment
relationship between APS PR and APS PR Provider or pursuant to APS PR
Provider Services Agreements between APS PR and each APS PR Provider. APS
PR shall provide Humana PR the terms and amounts of all compensation
payable to the APS PR Providers, and agrees that such terms will be
consistent with the terms of this Agreement and the Health Insurance
Contract. Except for Copayments allowed under the Health Insurance
Contract and as otherwise expressly provided by this Agreement, APS PR and
all APS PR Providers shall accept the compensation payable hereunder and
under their respective APS PR
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Provider Services Agreements as payment in full for all Mental and
Behavioral Health Services provided by APS PR or the APS PR Providers to
the Beneficiaries. APS PR acknowledges and agrees, and shall require the
APS PR Providers to acknowledge and agree for the benefit of Humana PR in
the APS PR Provider Services Agreements, that the method and system used
by APS PR to pay for the services rendered by the APS PR Providers are
reasonable, that the negotiated terms do not jeopardize or infringe upon
the quality of the services provided, and that the APS PR Providers,
including, without limitation, APS PR Physicians, at all times exercise
independent judgment in the diagnosis, care, and treatment of and services
provided to Beneficiaries. Humana PR reserves the right to require APS PR
to make reasonable changes to the proposed payment amounts and/or the
providers who receive them in the event that Humana PR determines that the
payments are not fair and reasonable pursuant to the requirements of the
Health Insurance Contract.
4.2. CLAIMS AND PAYMENT GENERALLY
APS PR shall cause the APS PR Providers to submit claims directly to APS
PR for all Mental and Behavioral Health Services in a manner consistent
with the terms of this Agreement and the Health Insurance Contract. All
payments of claims shall be made in accordance with applicable
Commonwealth of Puerto Rico and federal statutes and regulations, the
Health Insurance Contract, and the policies and procedures of Humana PR.
4.3. COPAYMENTS
Beneficiaries may be required to pay applicable Copayments for Mental and
Behavioral Health Services at the time services are rendered in the
amounts set forth in Attachment A hereto. Beneficiaries are responsible
for paying such Copayments to the APS PR Provider, which shall be solely
responsible for collection of same. Neither APS PR nor Humana PR shall be
responsible for any Copayments which the APS PR Provider failed to collect
or any bad debt expense associated therewith.
4.4. NON-PAYMENTS TO APR PR PROVIDERS
If APS PR does not pay APR PR Providers for Mental and Behavioral Health
Services rendered to the Beneficiaries within 30 days of their submission
of a clean claim, Humana PR may pay such APR PR Providers and debit such
payment amounts against APS PR's Monthly Payment. In the event that an APR
PR Provider notifies Humana PR in writing that it has not been properly
paid by APS PR, Humana PR shall notify APS PR, in writing, of the petition
received by Humana PR from such APR PR Provider. APS PR shall have 10
business days from the date of receipt of said notification to submit to
Humana PR any objections to the petition filed by the APR PR Provider with
Humana PR. In the event APS PR objects to the petition filed by the APR PR
Provider, Humana PR, at its sole discretion shall determine the validity
of the objection and make its determination, which shall be final and
binding on all parties. If Humana PR determines that payment is due,
Humana PR will make payment no later than 30 days from the conclusion of
the above described procedure for the total amount of money owed to the
APR PR Provider by APS PR, which amount shall be deducted by Humana PR
from the next Monthly Payment due to APS PR.
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4.5. MEDICARE BENEFICIARY COMPENSATION
APS PR Providers who provide medical services to Medicare Beneficiaries
must be certified to participate in the Medicare program. APS PR
acknowledges and agrees, and shall require the APS PR Providers to
acknowledge and agree as follows:
(a) that payment of Medicare Part B deductibles and coinsurance for
physician services that constitute Mental and Behavioral Health
Services and are accessed by a Medicare Beneficiary through APS PR
is included in the compensation received by APS PR or the APS PR
Provider pursuant to Attachment A hereto;
(b) that payment of Medicare Part B deductibles and coinsurance for
Mental and Behavioral Health Services accessed by a Medicare
Beneficiary through APS PR and provided in a hospital or clinic will
be paid by APS PR.
(c) that Medicare Part B deductibles and coinsurance for non-physician
services provided on an outpatient basis in a hospital or clinic
will be billed by the facility to Medicare as bad debt.
(d) that Medicare Part A deductibles and coinsurance will be billed by
the facility to Medicare as bad debt.
4.6. PROHIBITION AGAINST BALANCE BILLING
APS PR agrees, and shall require its APS PR Providers to agree for the
benefit of Humana PR, that: (i) any payments made by APS PR or Humana PR
to an APS PR Provider for Mental and Behavioral Health Services pursuant
to this Agreement or the APS PR Provider's APS PR Provider Services
Agreement shall constitute payment in full (except for required
Copayments) for all Mental and Behavioral Health Services rendered by such
APS PR Provider to the Beneficiaries; (ii) any determination made by
Humana PR with respect to a dispute or grievance pertaining to Mental and
Behavioral Health Services rendered shall be subject to the grievance
procedure contained in the Health Insurance Contract; and (iii) neither
APS PR nor any APS PR Provider shall be entitled to additional
compensation from any Beneficiary for Mental and Behavioral Health
Services. APS PR agrees, and shall require the APS PR Providers to agree
for the benefit of Humana PR in the APS PR Provider Services Agreements,
that in no event including, but not limited to, non-payment by Humana PR,
Humana PR's insolvency, or breach of this Agreement, shall APS PR or the
APS PR Providers, or any of their representatives or assigns, ▇▇▇▇,
charge, collect a deposit from, seek compensation, remuneration or
reimbursement from or have any recourse against ASES, any Beneficiary, or
any person (other than Humana PR) acting on Beneficiary's behalf, or HCFA
for services provided pursuant to this Agreement. This provision shall not
prohibit APS PR or APS PR Providers from collecting applicable Copayments
from Beneficiaries or from collecting compensation for non-Covered
Services from Beneficiaries to the extent specifically permitted by
Section 2.7 of this Agreement. APS PR shall indemnify and hold Humana PR
harmless from any costs, including reasonable legal fees, relating to its
billing and collection practices or efforts which breach the terms of this
Section 4.6. APS PR further agrees, and shall require the APS PR Providers
to agree for the benefit of Humana PR in the APS PR Provider Services
Agreements, that: (a) the provisions of this Section 4.6 shall survive the
termination of this Agreement and the termination of the APS PR Provider
Services
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Agreements, regardless of the cause giving rise to termination, and shall
be construed to be for the benefit of Beneficiaries; and (b) the
provisions of this Section 4.6 supersede any oral or written contrary
agreement now existing or hereafter entered into between APS PR and the
APS PR Providers, on the one hand, and any Beneficiary, on the other hand.
APS PR and the APS PR Providers shall not balance ▇▇▇▇ or render any ▇▇▇▇,
other than for Copayments, to any Beneficiary.
4.7. LETTER OF CREDIT
4.7.1. APS PR shall provide Humana PR with a Letter of Credit (the
"Letter of Credit") in the face amount of $1 million (the "Letter of
Credit Amount"). A copy of the form of the Letter of Credit is attached
hereto as Attachment H. The Letter of Credit Amount shall be reviewed
annually and may be decreased with Humana PR's approval. In the event the
Letter of Credit is to be decreased as a result of the review described
above, APS PR shall cause to be issued a new or amended Letter of Credit
to Humana PR for its written approval. The then-current Letter of Credit
shall not expire until such new or amended Letter of Credit is delivered
to Humana PR and Humana PR has issued its written approval.
4.7.2. Humana PR may draw down upon the Letter of Credit to satisfy
the following obligations of APS PR to Humana PR (collectively, the
"Payment Obligations") that are not paid when due: (i) claims due and
owing to APS PR Providers that are paid by Humana PR pursuant to Section
4.4 hereof; (ii) Pharmacy Fund Deficits, as such term is defined in
Section 2 of Attachment A hereto; (iii) payment obligations of APS PR with
respect to the Performance Standards as required by Section 4 of
Attachment A hereto; and (iv) any other cash amount determined to be owing
by APS PR to Humana PR by agreement of the parties or by appropriate final
judicial process.
4.7.3. Each Letter of Credit, and any drawing instructions contained
therein, shall be in form and substance satisfactory to Humana PR and in
Humana PR's name, shall be irrevocable, shall be drawn on a financial
institution acceptable to Humana PR, and shall be payable at sight and
after the date of issuance at such financial institution or a branch or
office thereof in Louisville, Kentucky or San ▇▇▇▇, Puerto Rico when
accompanied by a written statement or drawing certificate signed by an
authorized representative of Humana PR in a form described in the Letter
of Credit. Humana PR shall give APS PR at least five days written notice
before presenting any sight draft to draw down on the Letter of Credit.
4.7.4. In the event Humana PR has received notice of non-renewal
from the issuer of the Letter of Credit within ninety (90) days prior to
the expiration date of the Letter of Credit, or within ninety (90) days
prior to the expiration date of any succeeding renewal period pertaining
to a Letter of Credit, APS PR shall have three (3) business days to obtain
a renewal or a replacement Letter of Credit issued in accordance with the
terms hereof. In the event that a renewed or replacement Letter of Credit
is not provided by APS PR to Humana PR within such time period, Humana PR
may immediately draw down the entire amount, or balance thereof, of the
Letter of Credit. In addition, such failure to renew or replace the Letter
of Credit shall constitute a default by APS PR under this Agreement, and
Humana PR may thereafter terminate the APS PR Agreement effective upon the
expiration date of the Letter of Credit or thirty (30) days notice to APS
PR, and hold all proceeds of
15
the Letter of Credit until completion of the final settlement under the
terms of this Agreement.
4.7.5. In the event Humana PR at any time draws down upon the Letter
of Credit, APS PR shall, within fifteen (15) business days of the
satisfaction of the draw by the issuer, replenish the Letter of Credit by
an amount equal to the amount of the draw. In the event that the Letter of
Credit is not replenished in such amount within such time period, Humana
PR immediately may draw down the balance of the Letter of Credit. In
addition, such failure to replenish the Letter of Credit shall constitute
a default by APS PR under this Agreement, and Humana PR may thereafter
terminate this Agreement effective upon the earlier of the expiration date
of the Letter of Credit or ninety (90) days following the end of the three
(3) business day period described above.
4.7.6. If at any time Humana PR determines that of APS PR's Payment
Obligations exceed the Letter of Credit Amount, Humana PR shall give
written notice to APS PR of such fact, together with its calculations
thereof, and APS PR shall have fifteen (15) business days following such
notice to increase the Letter of Credit Amount by an amount equal to the
amount of the Payment Obligations that are in excess of the Letter of
Credit Amount. In the event APS PR does not increase the Letter of Credit
by such amount within the fifteen (15) business day period described
above, such failure shall constitute a default by APS PR under this
Agreement, and Humana PR may draw upon the entire amount of the Letter of
Credit and thereafter may terminate this Agreement effective upon the
earlier of the expiration date of the Letter of Credit or upon thirty (30)
days written notice of termination to APS PR.
4.7.7. Notwithstanding anything to the contrary in this Agreement,
Humana PR may upon written notice to APS PR upon the failure of APS PR to
provide a Letter of Credit, or replacement or amendment thereof, or to
replenish a drawn upon Letter of Credit, as required by this Agreement,
and without prejudice to any other rights of Humana PR stated herein,
offset any part or all of APS PR's Monthly Payments from Humana PR under
the terms of this Agreement up to the Letter of Credit Amount.
5. BENEFICIARY RELATIONS
5.1. BENEFICIARIES' RIGHT OF FREE SELECTION
In the event that APS PR or an APS PR Provider determines that it is
necessary to refer a Beneficiary to another APS PR Provider for Mental and
Behavioral Health Services, including Pharmacy goods and services, the
Beneficiary shall be entitled at any time to freely select the APS PR
Provider to which he will be referred from within the panel of appropriate
APS PR Providers contracted by APS PR. The Beneficiary also shall be
entitled to subsequently change such APS PR Provider at any time in
accordance with Humana PR's administrative procedures for changing
providers.
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5.2. BENEFICIARY ELIGIBILITY
5.2.1. DISENROLLMENT.
APS PR Providers shall not render services pursuant to this Agreement to
any individual who has ceased to be a Beneficiary or is otherwise not
eligible to receive Covered Services pursuant to the Health Plan (unless
such individual has executed a conversion contract), except that if a
Beneficiary is admitted to a hospital on or before the date of the
Beneficiary's disenrollment from the Health Plan, and continues to be
hospitalized after the date of disenrollment, APS PR and APS PR Providers
shall continue to render all Mental and Behavioral Health Services to that
Beneficiary, and receive the compensation set forth in Attachment A for
that Beneficiary, until the end of the next month immediately following
the Beneficiary's disenrollment date or the Beneficiary's discharge from
the hospital, whichever occurs first.
5.2.2. ELIGIBILITY VERIFICATION.
Except as otherwise expressly provided in this Agreement and in the
policies and procedures of Humana PR, APS PR and every APS PR Provider
must verify the eligibility and enrollment status of each Beneficiary
prior to rendering any Covered Service to the Beneficiary and each time
that a Covered Service is to be provided. Humana PR shall establish the
procedures by which APS PR and APS PR Providers shall verify the
eligibility and enrollment status of the Beneficiary, which may include
on-line computer verification and/or telephone verification. In the event
that an APS PR Provider renders services to an individual and Humana PR
subsequently determines that such individual was not entitled to receive
services, Humana PR shall notify APS PR of such individual's
ineligibility. If Humana PR is not paid, or if ASES seeks retroactive
reimbursement for such ineligible individual, Humana PR shall recover
payments made to APS PR and/or APS PR Providers pursuant to this Agreement
for such individual retroactive to the date of ineligibility and shall
have no liability to APS PR and/or APS PR Providers for any services
rendered as of or subsequent to the date of ineligibility. In any event,
Humana PR's obligation to make payment under this Agreement shall be
conditioned on its receipt of payment from ASES. The parties acknowledge
and agree that the monthly remittance advices from Humana PR to APS PR and
to APS PR Providers are subject to adjustment, deduction and offset in
fulfillment of the requirements of this Agreement and the Health Insurance
Contract.
5.3. APS PR PROVIDERS LISTINGS
5.3.1. PROVIDER LIST.
APS PR will furnish Humana PR with a current listing of all APS PR
Providers, and shall immediately notify Humana PR of any changes,
additions, or deletions to such list. In addition, APS PR shall provide
Humana PR with 30 days prior written notice or, if APS PR has less than 30
days notice, immediately, if an APS PR Provider and/or any Physician
associated with or employed by an APS PR Provider terminates its
relationship with APS PR or APS PR Provider such that it will not be
available to provide Mental and Behavioral Health Services to
Beneficiaries. Humana PR may request, at any time, that APS PR remove an
APS PR Provider from the panel of APS PR Providers
17
offered to Beneficiaries, as determined by Humana PR in the exercise of
its sole discretion, and APS PR shall immediately honor Humana PR's
request.
5.3.2. USE OF INFORMATION.
Humana PR may include in its provider directory the names of APS PR, and
APS PR Providers and their addresses, phone numbers, types of practice,
board and certification status, hospital affiliations, as may be
applicable, and an indication of APS PR Providers' willingness to accept
additional Beneficiaries. APS PR may publish the fact that it is a
contracted provider of Humana PR, subject to Humana PR's prior written
approval. APS PR shall submit for approval, and Humana PR must approve any
print or electronic media advertisement, announcement, or other item which
references Humana PR in any way prior to publication or dissemination by
APS PR or any APS PR Provider. Humana PR may require that APS PR and APS
PR Provider post signage to indicate its affiliation with and
participation in the Plan. APS PR and APS PR Provider may use the logo or
service ▇▇▇▇ of Humana PR only when approved in advance by Humana PR for
the specific use. The parties acknowledge that Humana PR has a proprietary
interest in its logo and service ▇▇▇▇ and would be substantially harmed by
any unauthorized use. Humana PR may use the logo or service ▇▇▇▇ of APS PR
only when approved in advance by APS PR for the specific use. The parties
acknowledge that APS PR has a proprietary interest in its logo and service
▇▇▇▇ and would be substantially harmed by any unauthorized use.
5.3.3. COMMUNICATION WITH BENEFICIARIES
APS PR acknowledges and agrees, and shall require APS PR Providers to
acknowledge and agree, that any communications between APS PR and/or APS
PR Providers and Beneficiaries, other than those relating to the Mental
and Behavioral Health Services and other Covered Services rendered to the
Beneficiaries, requires the prior written approval of Humana PR.
6. ADMINISTRATION
6.1. APPLICATION OF HEALTH INSURANCE CONTRACT TO THIS AGREEMENT
All of the terms of the Health Insurance Contract applicable to APS PR
shall be deemed to be incorporated in this Agreement to the same extent as
if fully set forth herein. APS PR agrees, and shall require APS PR
Providers to agree that in the event of any conflict or inconsistency
between the Health Insurance Contract and this Agreement, the terms of the
Health Insurance Contract shall control, and APS PR and APS PR Providers
agree to be governed and abide thereby. The provision of Mental and
Behavioral Health Services by APS PR and APS PR Providers pursuant to this
Agreement, in consideration for the compensation described in Attachment
A, constitutes a direct obligation on the part of APS PR and APS PR
Providers to comply with all of the terms and conditions of the Health
Insurance Contract if applicable to APS PR and to APS PR Providers.
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6.2. ADMINISTRATIVE PROCEDURES
Humana PR shall make available to APS PR its policies and procedures in
the areas of eligibility verification, service data reporting,
pre-authorization and authorization of referrals for services, record
keeping, reporting and other administrative duties of APS PR and APS PR
Providers under this Agreement. APS PR agrees to abide by these procedures
and shall require APS PR Providers to agree to abide by these procedures
for the benefit of Humana PR in APS PR Provider Services Agreements;
provided, however, that such procedures are not in violation of any
existing law or regulation.
6.3. COORDINATION OF BENEFITS
6.3.1. COOPERATION OF APS PR PROVIDERS
Humana PR and APS PR will cooperate, and APS PR will require the APS PR
Providers to cooperate to the fullest extent possible to evaluate possible
subrogation claims and to coordinate benefits in accordance with the U.S.
National Association of Insurance Commissioner's (NAIC) guidelines.
Subject to applicable legal requirements, Humana PR will provide APS PR
and APS PR Providers with access to all coordination-of-benefits
information available to Humana PR. Without limiting the generality of the
foregoing, the parties will cooperate to the fullest extent possible to:
(a) Determine whether the Beneficiary has other insurance coverage in
addition to Humana PR;
(b) Determine the Beneficiary's primary and secondary payor, in
accordance with NAIC's guidelines; and
(c) Secure reimbursement from the primary payor.
6.3.2. COLLECTION OF BENEFIT PAYMENTS
In cases where a Beneficiary has coverage, other than with Humana PR,
which requires or permits coordination of benefits from a third party
payor in addition to Humana PR, Humana PR will coordinate its benefits
with such other payor(s) with the assistance and participation of APS PR.
Humana PR, when appropriate for services reimbursed by Humana PR under an
applicable fee for service schedule, will pay APS PR the amount actually
paid to Humana PR by the other payor(s). Any recoveries made by Humana PR,
less recovery costs, as a result of Humana PR's coordination of benefits
will be credited to APS PR. In the event Medicare is the primary payor,
Humana PR shall pay APS PR and/or APS PR Providers, as applicable, the
amount of deductible, coinsurance and/or other plan benefits which are not
covered services under Title XVIII of the Social Security Act, as amended,
subject to the benefit limits and rates of the applicable health benefits
contract. Humana PR will in all cases coordinate benefits payments in
accordance with applicable statutes, laws and regulations and in
accordance with its health benefits contracts.
19
6.4. APS PR ADMINISTRATIVE STAFF
APS PR will staff an office in San ▇▇▇▇ with clinical and administrative
personnel appropriate to the scope of its responsibilities hereunder and
the efficient delivery of the Mental and Behavioral Health services. APS
PR shall appoint an administrative staff liaison to resolve operational
issues in accordance with the terms and conditions of this Agreement. APS
PR shall designate an APS PR Medical Director to assist and work with
Humana PR's Medical Director in implementing and conducting Humana PR's
policies and procedures and resolving other issues related to the delivery
of health services that may arise from time to time. APS PR's Medical
Director will attend Humana PR medical affair staff meetings. The APS PR
Medical Director may also be required to participate on the Humana PR Peer
Review Committee.
6.5. HUMANA PR REPRESENTATIVE
Humana PR will designate a representative who will be available during
normal business hours to respond to inquiries from APS PR.
6.6. COOPERATION IN ACCREDITATION/CERTIFICATION
APS PR agrees to implement all activities necessary for external
accreditation/certification of Humana PR by the National Committee for
Quality Assurance (NCQA) or any other similar organization selected by
Humana PR or designated by an agency with jurisdiction over Humana PR;
provided that such activities do not require APS PR to incur substantial
additional expense.
6.7. BENEFICIARY GRIEVANCES
APS PR and APS PR Providers agree to be governed and abide by Humana PR's
grievance policies and procedures and the Health Insurance Contract's
grievance procedure unless such procedures are preempted by any duly
enacted law or regulation promulgated by ASES or any other governmental
agency or department with jurisdiction over the parties. APS PR and APS PR
Provider shall cooperate with Humana PR in resolving any Beneficiary
grievances related to the provision of services to Beneficiaries. In this
regard, APS PR and APS PR Providers agree to notify Humana PR within 5
business days whenever a Beneficiary files an informal or formal complaint
or grievance, or legal action, against APS PR or an APS PR Provider. APS
PR and APS PR Providers shall make every reasonable effort to promptly
resolve any informal or formal complaint or grievance within 5 days. APS
PR and APS PR Providers shall refer Beneficiaries who have complaints
regarding health services, provider relations, benefits, or any other
aspect of service to Humana PR's Member/Beneficiary Services Department.
APS PR and the affected APS PR Provider shall cooperate with Humana PR in
the investigation of any complaint, grievance or legal action, in
accordance with Humana PR's grievance procedures. Upon request by Humana
PR, APS PR and APS PR Provider shall provide full details of the nature,
circumstances and disposition of any such complaint, grievance or legal
action to Humana PR or its legal representative. APS PR and APS PR
Provider agree to comply with and be bound in the disposition of all
grievances or complaints, by the Health Insurance Contract grievance
procedure.
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6.8. INSURANCE
6.8.1. APS PR AND APS PR PROVIDERS
APS PR shall obtain and maintain, and shall require APS PR Providers to
agree to obtain and maintain in full force and effect at all times during
the term of this Agreement such policies of general and professional
liability insurance as shall be necessary to insure APS PR and APS PR
Providers and their employees, contractors and agents against any claim or
claims for damages arising by reason of personal injuries or death
occasioned, directly or indirectly, in connection with the performance of
any service by APS PR or APS PR Providers. The amounts and extent of such
professional liability insurance coverage shall be subject to the approval
of Humana PR and shall not be less than $100,000 per occurrence, $300,000
per policy period or as otherwise required by applicable laws or
regulations. In addition, APS PR shall obtain and maintain adequate
insurance of types and in amounts determined by Humana PR as reasonably
necessary which shall include, but not be limited to, obtaining and
maintaining professional and general liability insurance in amounts no
less than $300,000 per occurrence combined single limit or as otherwise
required by applicable laws or regulations. APS PR and APS PR Providers
shall provide Certificates of Insurance to Humana PR upon request. Both
parties shall obtain worker's compensation insurance to cover all
employees as required by applicable law of the Commonwealth of Puerto
Rico. APS PR and APS PR Providers further agree to provide Humana PR not
less than 30 days prior written notice of cancellation or termination of
any of APS PR's or APS PR Provider's insurance policies. In the event of
such cancellation and/or termination, Humana PR may terminate this
Agreement effective immediately upon APS PR or APS PR Providers' receipt
of written notice from Humana PR. In addition, Humana PR may require APS
PR to terminate any APS PR Provider immediately in the event a policy of
insurance of an APS PR Provider is canceled or terminated. APS PR shall
notify, and shall cause APS PR Providers to agree to notify Humana PR
immediately whenever a Beneficiary' files a complaint, claim or a notice
of intent to commence legal action against Humana PR, APS PR or APS PR
Providers. Upon request by Humana PR, APS PR or APS PR Providers agree to
provide full details of the nature, circumstances and disposition of such
claims to Humana PR or its legal representative. APS PR shall report and
shall cause APS PR Providers to report all Incidents to Humana PR within 5
days of their occurrence. Such reports shall be filed on forms provided by
Humana PR and in compliance with Humana PR's policies and procedures. The
parties agree to adhere to and be bound by the common law and statutory
principles of indemnification and contribution as they exist in the
Commonwealth of Puerto Rico.
6.8.2. HUMANA PR
At all times, Humana PR will maintain such policies of comprehensive
general liability insurance and other insurance or self insurance, as
shall be necessary to insure Humana PR against any claim or claims for
damages arising in connection with the performance of Humana PR's
responsibilities under this Agreement and the Health Insurance Contract.
If requested by APS PR, Humana PR shall provide APS PR evidence of such
coverage upon execution of this Agreement and thereafter at reasonable
intervals as requested by APS PR during the term of this Agreement. This
clause shall survive for a period of time not less than the applicable
Statute of Limitations in the Commonwealth of Puerto Rico.
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6.9. INDEMNIFICATION
6.9.1. BY APS PR
APS PR shall indemnify and hold ASES and Humana PR harmless from and
against any and all debts of APS PR, and from any and all debts, claims,
damages, costs, causes of action, expenses or liabilities, including
reasonable attorney's fees and court costs, to the extent proximately
caused by or which may arise out of and/or be incurred in connection with,
any negligent or other wrongful conduct by APS PR arising from this
Agreement, APS PR's failure to pay any sums due by it to its providers, or
any other material breach of this Agreement. This Section 6.9.1 shall
survive the termination of this Agreement regardless of the cause of
termination, including the insolvency, bankruptcy or liquidation of APS
PR.
6.9.2. BY APS PR PROVIDERS
APS PR shall cause each APS PR Provider in its APS PR Provider Services
Agreement to agree to indemnify and hold ASES and Humana PR harmless from
and against any and all debts of the APS PR Provider, and from any and all
debts, claims, damages, costs, causes of action, expenses or liabilities,
including reasonable attorney's fees and court costs, to the extent
proximately caused by or which may arise out of and/or be incurred in
connection with, any negligent or other wrongful conduct by the APS PR
Provider arising from the APS PR Provider Services Agreement, or any other
material breach of the APS PR Provider Services Agreement. This Section
6.9.2 shall survive the termination of this Agreement regardless of the
cause of termination, including the insolvency, bankruptcy or liquidation
of the APS PR Provider.
6.9.3. BY HUMANA PR
Subject to the provisions and restrictions of the Health Insurance
Contract, Humana PR agrees to indemnify and hold harmless APS PR, its
appointed boards, officers, employees, and agents, individually and
collectively, from all fines, claims, demands, suits or actions of any
kind or nature arising by reason of Humana PR's material breach of this
Agreement. This Section 6.9.3 shall survive the termination of this
Agreement regardless of the cause of termination, including the
insolvency, bankruptcy or liquidation of Humana PR.
6.10. CONFIDENTIALITY OF INFORMATION
6.10.1. COVENANT BY APS PR
APS PR and APS PR Providers acknowledge and agree that all material
provided to them by Humana PR is the property of Humana PR. Neither APS PR
nor APS PR Providers shall use such information for any purpose other than
to accomplish the purposes of this Agreement. APS PR and/or APS PR
Providers shall not disclose or release such material to any third party
without the prior written consent of Humana PR or as otherwise provided in
the Health Insurance Contract or this Agreement. This prohibition
specifically includes, but is not limited to, use of any of the
above-referenced materials, directly or indirectly, to further the
business purposes of any organization or business including, but not
limited to, APS PR, any entity under contract with APS PR,
22
an APS PR Provider, or other health maintenance organization, health
insurance company or other health care delivery system or other entity in
the business of providing or administering managed health care systems.
Upon notice of the termination of this Agreement, APS PR, any entity under
contract with APS PR, and APS PR Providers agree to return all such
materials, including all copies, whether authorized or not, to Humana PR.
This provision shall survive the termination or expiration of any term or
provision of this Agreement. The parties agree that any violation of this
Section 6.10.1 by APS PR, any entity under contract with APS PR, or APS PR
Providers will result in irreparable injury to Humana PR. Therefore, in
addition to any remedies otherwise available to Humana PR, Humana PR shall
be entitled to an injunction enjoining and restraining APS PR, any entity
under contract with APS PR, APS PR Providers, and any related individuals
or parties from violating this Section 6.10.1. If it is determined that
the scope of the provisions of this Section are too extensive to be
enforceable, then they shall be modified to be whatever is determined by a
court to be reasonable in order to obtain enforcement and the parties
hereto agree to accept such determination subject to any appeals. For
purposes of this Section 6.10.1, information shall not be considered
proprietary if (i) such information is required to be disclosed pursuant
to law, provided, however, that Humana PR is provided reasonable advance
notice of such disclosure (assuming APS PR has such advance notice), or
(ii) such information is generally available to the public other than
through a violation of this Section 6.10.1 by APS PR and/or APS PR
Providers.
6.10.2. COVENANT BY HUMANA PR
Humana PR acknowledges and agrees that all material provided to it by APS
PR is the property of APS PR. Humana PR shall not use such information for
any purpose other than to accomplish the purposes of this Agreement.
Humana PR shall not disclose or release such material to any third party
without the prior written consent of APS PR as otherwise provided in the
Health Insurance Contract or this Agreement. This prohibition specifically
includes, but is not limited to, use of any of the above-referenced
materials, directly or indirectly, to further the business purposes of any
organization or business including, but not limited to, Humana PR. Upon
notice of the termination of this Agreement, Humana PR agrees to return
all such materials, including all copies, whether authorized or not, to
APS PR. This provision shall survive the termination or expiration of any
term or provision of this Agreement. The parties agree that any violation
of this Section 6.10.2 by Humana PR or any entity under contract with
Humana PR will result in irreparable injury to APS PR. Therefore, in
addition to any remedies otherwise available to APS PR, APS PR shall be
entitled to an injunction enjoining and restraining Humana PR or any
entity under contract with Humana PR and any related individuals or
parties from violating this Section 6.10.2. If it is determined that the
scope of the provisions of this Section 6.10.2 are too extensive to be
enforceable, then they shall be modified to be whatever is determined by a
court to be reasonable in order to obtain enforcement and the parties
hereto agree to accept such determination subject to any appeals. For
purposes of this Section 6.10.2, information shall not be considered
proprietary if (i) such information is required to be disclosed pursuant
to law, provided, however, that APS PR is provided reasonable advance
notice of such disclosure (assuming Humana PR has such advance notice), or
(ii) such information is generally available to the public other than
through a violation of this Section 6.10.2 by Humana PR. In addition,
Humana PR, its agents, employees, successors and assigns shall at all
times maintain the confidentiality of any information obtained from APS PR
for invoicing or accounting purposes or otherwise in any form or manner
related to services
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rendered by APS PR including, without limitation, any information
contained in patient records, in accordance with the laws of the
Commonwealth of Puerto Rico.
7. REPORTS; ENCOUNTER DATA; RECORDS
7.1. REQUIRED REPORTS GENERALLY
APS PR shall provide Humana PR such reports and other information as are
set forth on the list of Required Reports set forth as Attachment I hereto
(collectively, the "Required Reports"). APS PR shall deliver the Required
Reports to Humana PR with such frequency, in such format and on the dates
as are indicated on Attachment I hereto. APS PR shall further require APS
PR Providers to cooperate with APS PR and Humana PR in the preparation of
such reports and other information. Whenever the preparation and/or
delivery of any Required Report shall require the cooperation of Humana
PR, Humana PR shall reasonably cooperate with the preparation of such
Required Report, and in the event Humana PR does not so cooperate, APS PR
shall be excused from providing such Required Report.
From time to time Humana PR may request that APS PR prepare additional
reports not listed in Attachment I ("Ad Hoc Reports"). APS PR shall use
its best efforts in good faith to cooperate with Humana PR to prepare and
deliver the Ad Hoc Reports as reasonably requested by Humana PR. If Humana
PR requests an Ad Hoc Report in response to a request from ASES, then APS
PR and Humana PR shall equally bear the cost of preparing such Ad Hoc
Report. If Humana PR requests an Ad Hoc Report other than in response to a
request from ASES, then Humana PR shall reimburse APS PR for its
reasonable costs and expenses incurred in preparing such Ad Hoc Report.
7.2. ACCESS TO DOCUMENTS, MAINTENANCE OF RECORDS, CLAIMS AND ENCOUNTER
REPORTING.
APS PR agrees, and shall cause APS PR Providers to agree, to maintain
adequate and complete medical, business and financial records pertaining
to covered Services rendered to Beneficiaries. APS PR agrees, and shall
cause each APS PR Provider to agree, to submit all claims and encounter
data to APS PR for reporting to Humana PR, in accordance with the
requirements of Humana PR's policies and procedures, as amended from time
to time. APS PR agrees, and shall cause each APS PR Provider to agree, to
comply with such electronic data gathering and other system automation
requirements of Humana PR. In addition, all records shall be maintained in
a legible manner and filed or stored in an easily retrievable system.
7.3. MEDICAL RECORDS
APS PR and APS PR Providers shall maintain complete records of all
services rendered to Beneficiaries, including separate and individual
medical files and records for each Beneficiary to record all clinical
information, services rendered, procedures ordered, and referrals to other
physicians and providers, pertaining to such Beneficiary. The records
shall comply with applicable professional standards and shall include,
without limitation, notations of personal contacts, primary care visits,
consultation reports, reports from referral providers, discharge
summaries, diagnostic studies, and such other information as Humana PR may
reasonably require. Medical records of Beneficiaries shall be
24
treated as confidential so as to comply with all applicable federal and
Commonwealth of Puerto Rico laws and regulations regarding the
confidentiality of patient records. APS PR and APS PR Providers shall
preserve and retain in readily accessible form the medical records of all
Beneficiaries during the term of this Agreement and for a period of seven
(7) years thereafter or such later time as necessary to complete any
pending review or audit of such records is complete or as may be required
under the Health Insurance Contract or herein. Upon request from Humana PR
and/or a Beneficiary (subject to legal requirements relating to the
release of confidential patient information), APS PR agrees and shall
require the APS PR Providers to agree to transfer the complete original or
an acceptable copy of the medical record maintained by APS PR (if any) for
such Beneficiary to another physician or provider. Such transfer or copy
of medical record(s) shall be at no cost to either Humana PR or the
Beneficiary and shall be made within a reasonable time following the
request (which, in the case of a medical emergency, shall not be more than
five (5) business days). In the event that Humana PR requires APS PR to
transfer copies of the medical records of more than fifty (50)
Beneficiaries to Humana PR or any third party for any reason, APS PR will
cooperate with and provide access to Humana PR for the purpose of copying
such records and Humana PR will bear the financial responsibility for such
copies. The provisions of this Section 7.3 shall survive the termination
of this Agreement.
7.4. BUSINESS AND FINANCIAL RECORDS
APS PR and APS PR Providers shall also maintain business and financial
records to document expenditures and revenues relating to the performance
of their duties under this Agreement. APS PR and APS PR Providers shall
preserve, and retain in readily accessible form, all such records during
the term of this Agreement and for a period of 7 years thereafter or such
later time as necessary to complete any pending review or audit of such
records is complete or as may be required under the Health Insurance
Contract or herein.
7.5. HUMANA PR'S RIGHT OF ACCESS TO APS PR RECORDS AND FACILITIES
Humana PR shall have access at all times during regular business hours,
upon prior written demand, to inspect and copy all books, documents,
business, financial and medical records of APS PR and APS PR Providers
relating to the health care services provided to Beneficiaries, the cost
thereof, and to payments received by APS PR Providers from Beneficiaries
and from third party payors (the "Records"). Humana PR shall have the
right to copy the Records with the written consent of Beneficiaries or
otherwise as permitted by law. Humana PR, Commonwealth of Puerto Rico,
ASES, federal officials and any authorized representatives of
certification and accreditation agencies shall also have the right to
inspect, at reasonable times, APS PR's and APS PR Providers' facilities
pursuant to Humana PR's quality improvement and peer review procedures,
certification and accreditation, and Commonwealth of Puerto Rico and
federally mandated procedures. If Humana PR requests copies of the Records
from APS PR and/or APS PR Providers to determine Medical Necessity, to
administer this Agreement, to fulfill its obligations pursuant to the
Health Insurance Contract, or to comply with applicable governmental
regulations, the Records shall be copied and delivered to Humana PR at APS
PR and/or APS PR Provider's expense. If Humana PR requests copies of the
Records from APS PR and/or APS PR Providers for any other purpose, Humana
PR shall reimburse APS PR and/or APS PR Providers, as applicable, for the
cost of such copies at a commercially reasonable rate.
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7.6. GOVERNMENTAL RIGHT OF ACCESS TO RECORDS
7.6.1. APS PR and APS PR Providers acknowledge that funds from the
State Plan under Title XIX of the Social Security Act Medical Assistance
Program (Medicaid) as well as from Title V of the Social Security Act and
Mental Health Block Grants are used to finance in part the Covered
Services provided pursuant to the Health Insurance Contract. Therefore,
APS PR and APS PR Providers shall agree to comply with requirements and
conditions of the U.S. Department of Health and Human Services ("DHHS"),
HCFA, the Comptroller General of the United States, the Comptroller of
Puerto Rico and ASES, as to maintenance of Records. In this regard:
7.6.2. At all times during the term of this Agreement and for a
period of 6 years thereafter, APS PR and APS PR Providers will provide
ASES, DHHS, HCFA, the Comptroller of Puerto Rico, the Comptroller General
of the United States of America and/or their authorized representatives,
access to all Records for the purpose of examination, audit or copying of
such Records. In the event APS PR or any APS PR Provider enters into a
subcontract to provide any of the Covered Services, such subcontract shall
provide that the authorized representatives of ASES, the Health Care
Financing Administration, the Comptroller of the Commonwealth of Puerto
Rico, and the Comptroller General of the United States of America shall
have access to all books, documents, and records relating to the cost of
providing such Covered Services. The audits of the Records include
examination and review of the sources and applications of funds under this
Agreement. APS PR and APS PR Providers shall also furnish access to and
permit inspection and audit by ASES, HCFA, the Comptroller of Puerto Rico,
the Comptroller General of the United States of America and/or their
authorized representatives to any financial Records relating to the
capacity of APS PR and APS PR Providers to bear the risk of potential
financial losses.
7.6.3. APS PR and APS PR Providers shall furnish to the Peer Review
Organization (PRO), to an accrediting or certification agency, to ASES and
to DHHS on-site access to, or copies of patient care Records as needed to
evaluate quality of care, subject to applicable law.
7.6.4. ASES, DHHS and HCFA shall have the right to inspect,
evaluate, copy and audit any pertinent Records of APS PR and APS PR
Providers to evaluate the services performed, determine the costs of
services rendered, amounts paid and amounts payable, reconcile benefits,
determine liabilities and review and monitor compliance with this
Agreement. Without limiting the generality of the foregoing, ASES shall
have access to Participating Providers' Medicare billing data for
Beneficiaries covered by this Agreement who are also Part A and Part B
Medicare beneficiaries, provided that such access is authorized by HCFA
and other related statutory or regulatory provisions.
7.6.5. APS PR and APS PR Providers shall provide for the review of
all Mental and Behavioral Health Services (including both in-patient and
out-patient services) for the purpose of determining whether such services
meet professionally recognized standards of health care, including whether
appropriate services have not been provided or have been provided in
inappropriate settings. It shall also provide for
26
review, by random sampling, by ASES, of written complaints, and the
results thereof, filed by Beneficiaries or their representatives as to the
quality of services provided.
7.6.6. APS PR and APS PR Providers agree that ASES, DHHS and HCFA
may conduct inspections and evaluations, at all reasonable times, through
on-site audits, systems tests, assessments, performance review and regular
reports, to assure the quality, appropriateness, timeliness and cost of
services furnished to the Beneficiaries.
7.6.7. APS PR and APS PR Providers agree that the right of ASES,
DHHS and HCFA hereunder to inspect, evaluate, copy and audit the Records
shall survive the termination of this Agreement for a period of 6 years
from said termination date unless:
(a) ASES, DHHS or HCFA determines there is a special need to retain a
particular Record for a longer period and notifies APS PR or APS PR
Providers, as appropriate, at least 30 days before the expiration of
the disposal date;
(b) Litigation, administrative proceeding or other controversy has
arisen between any of the parties, APS PR, or APS PR Providers, in
which case the retention period may be extended beyond the retention
period set forth above to 3 years from the date of any resulting
final resolution or adjudication;
(c) ASES, DHHS or HCFA determines that there is a reasonable possibility
of fraud, in which case it may reopen a final settlement at any
time; or
(d) ASES, DHHS, HCFA, the Office of the Comptroller of Puerto Rico or
the Comptroller General of the United States, has initiated an audit
or investigation in which case the retention may be extended until
the conclusion of the audit and publication of the final report.
7.6.8. APS PR and APS PR Providers shall permit ASES, DHHS or HCFA
to review and audit all Records related to quality appropriateness,
timeliness and cost of services rendered, and to demonstrate that the
services for which payment was made were provided as claimed and
documented in the clinical Record of the Beneficiary in accordance with
prevailing professional record-keeping standards.
8. PROHIBITION AGAINST DISCRIMINATION
8.1. NO DISCRIMINATION AGAINST BENEFICIARIES
APS PR and APS PR Providers, shall observe, protect and promote the rights
of Beneficiaries as patients, without regard to race, age, sex, national
origin, religion, place of residence, economic status, physical or mental
handicap (as defined by Section 504 of the Rehabilitation Act), health
status or health care needs, benefit plan or source of payment of such
Beneficiaries. APS PR and APS PR Providers acknowledge that it is illegal
to inquire of any Beneficiary whether such Beneficiary is receiving
benefits provided under Law 72, and agree never to make such an inquiry of
any Beneficiary. Neither APS PR nor any APS PR Provider shall deny any
Beneficiary access to Covered Services, except for the reasons specified
in Article VI, Section 6 of Law 72. Neither
27
APS PR nor any APS PR Provider shall unreasonably delay, deny or ration
Covered Services to any Beneficiary. APS PR and each APS PR Provider shall
post a notice at every place where services are rendered to Beneficiaries
stating that public policy prohibits denying, unreasonably delaying or
rationing services by participating providers or any other entity related
to the rendering of medical care services to the beneficiaries of Law 72.
The notice shall also provide information on how a Beneficiary may file a
grievance against APS PR or APS PR Provider. APS PR and APS PR Providers
shall abide by the access to medical services requirements set forth in
the Consolidated Omnibus Budget Reconciliation Act, as codified in the
Social Security Act, to the extent such requirements are applicable.
8.2. AFFIRMATIVE ACTION
APS PR and APS PR Providers agree to abide by the non-discrimination and
affirmative action requirements of Executive Order 11246, the Vietnam Era
Veterans Readjustment Assistance Act of 1974, Section 503 of the
Rehabilitation Act of 1973, the Americans with Disabilities Act and the
implementing rules and regulations of the Office of Federal Contract
Compliance Programs, U.S. Department of Labor, as found in the Code of
Federal Regulations, Title 41, Chapter 60.
9. TERM AND TERMINATION
9.1. TERM
This Agreement shall be effective as of the date set forth on the first
page of this Agreement and shall continue in effect for a period of one
year thereafter unless earlier terminated in accordance with the terms of
this Section 9. Thereafter, the Agreement shall be automatically renewed
for an additional term of one year on the anniversary date of the Health
Insurance Contract unless either party shall have provided notice to the
other party not less than 90 days prior to such anniversary date of its
intention not to renew the Agreement. Notwithstanding the foregoing, if
the Health Insurance Contract with respect to a particular Health Region
is terminated for any reason, then this Agreement shall terminate with
respect to the particular Health Region so terminated. In the event that
the Heath Insurance Contract is extended beyond its original termination
date, then this Agreement may be extended by Humana PR for intervals of
thirty (30) days through and including the final termination of the Health
Insurance Contract.
9.2. TERMINATION BY HUMANA PR
This Agreement may be terminated by Humana PR at any time: (a) if APS PR
breaches any material provision of this Agreement, and fails to cure such
breach (if such breach is susceptible of cure) within 15 days of receipt
of written notice by Humana PR setting forth the nature of the breach; and
(b) upon 30 days written notice if APS PR materially breaches any
provision of this Agreement and fails to cure such breach (if such breach
is susceptible of cure) within 15 days of receipt of written notice by
Humana PR setting forth the nature of the breach.
9.3. TERMINATION BY APS PR
This Agreement may be terminated by APS PR if Humana PR breaches any
material provision of this Agreement and fails to cure such breach (if
such breach is susceptible
28
of cure) within 15 days of receipt of written notice by APS PR setting
forth the nature of the breach. In addition, this Agreement may be
terminated immediately by APS PR with prior written notice if: (i) there
is a material increase in the scope of services, benefit structure,
Copayments and/or deductible amounts set forth in the Attachment s hereto
and the parties are unable to negotiate a revised compensation schedule at
least thirty (30) days prior to the effective date of such increase, (ii)
Humana PR is not in compliance with the financial reserve requirements
applicable to it under local or federal laws and regulations or by any
federal government agency or regulatory authority having jurisdiction over
Humana PR's operations; (iii) Humana PR's reinsurance or insolvency
policies on behalf of APS PR and/or APS PR Providers is canceled or not
renewed and a replacement policy is not obtained and in effect before the
expiration or the effective date of cancellation or non-renewal of such
reinsurance or insolvency policy.
9.4. EFFECT OF TERMINATION
Upon a termination of this Agreement for whatever reason, the rights of
each party hereunder shall terminate, provided however, that such
termination shall not relieve APS PR, APS PR Providers or Humana PR of
their obligations with respect to: (i) payments accrued to APS PR or APS
PR Providers prior to termination; (ii) any breach of this Agreement;
(iii) APS PR's and APS PR Providers' agreement not to seek compensation
from Beneficiaries for Covered Services provided prior to termination or
pursuant to this Agreement; and (d) providing medical care and services to
Beneficiaries during any interim period between termination and such time
when Humana PR can make other medical care and service arrangements, which
interim period shall not exceed 90 days or such earlier time as all such
Beneficiaries are transferred to other appropriate providers. Humana PR
shall compensate APS PR and/or APS PR Providers, as applicable, for such
care in accordance with APS PR's then-existing standard fee-for-service
rates and otherwise pursuant to the terms of this Agreement. APS PR
further agrees, and shall require APS PR Providers to agree, that this
Section 9.4 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 Beneficiaries and Humana PR, as applicable; and this Section
9.4 supersedes any oral or written contrary agreement now existing or
hereafter entered into between APS PR, APS PR Providers and Beneficiaries,
or persons acting on their behalf. In the event of a termination of this
Agreement and immediately following Humana PR's receipt of notice of
termination, APS PR and APS PR Providers shall cooperate fully with Humana
PR in the transfer of Beneficiaries to other health care providers. APS PR
and APS PR Providers acknowledge and agree that during any such interim
period following notice of termination but preceding the effective date of
termination, enrollment in APS PR shall cease.
10. RELATIONSHIP OF PARTIES
10.1. INDEPENDENT CONTRACTORS
In performance of their respective duties and obligations, each of the
parties to this Agreement and in regard to any services rendered or
performed by either party for covered individuals designated by Humana PR
as Members, it mutually is understood and agreed that Humana PR and APS PR
and their respective employees and agents are at all times acting and
performing as independent contractors and that neither party nor their
respective employees and agents, shall be considered the agent, servant,
29
employee of, or joint venture partner with the other party. Notice to, or
consent from, any third party, including a Member or other provider, shall
not be required in order to make any termination or modification of this
Agreement effective. APS PR is contracting for itself, and as agent for
and under authority granted to APS PR by each of the APS PR Providers
employed by or under contract with APS PR. The parties acknowledge and
agree that neither APS PR nor Humana PR will be liable for the activities
of the other nor the agents and employees of the other, including but not
limited to, any liabilities, losses, damages, injunctions, suits, actions,
fines, penalties, claims or demands of any kind or nature by or on behalf
of any person, party or governmental authority arising out of or in
connection with: (i) any failure to perform any of the agreements, terms,
covenants or conditions of this Agreement; (ii) any negligent act or
omission or other misconduct; (iii) the failure to comply with any
applicable laws, rules or regulations; or (iv) any accident, injury or
damage to persons or property.
10.2. PHYSICIAN-PATIENT RELATIONSHIP
Nothing contained in this Agreement shall be construed to require APS PR
Providers to: (i) recommend any procedure or course of treatment which an
APS PR Provider deems professionally unacceptable; or (ii) recommend that
Humana PR deny benefits for any procedure or course of treatment. APS PR
acknowledges and shall require APS PR Providers to acknowledge that all
patient care and related decisions are the sole responsibility of the APS
PR Providers and that Humana PR does not dictate or control APS PR
Providers' clinical decisions with respect to the medical care or
treatment of Beneficiaries. Humana PR shall not intervene in any way or
manner with the rendition of medical services by APS PR Providers, it
being understood and agreed that the traditional relationship between
Physician and patient will be maintained. APS PR agrees, and shall require
APS PR Providers to agree, that any determination by APS PR or Humana PR
as to whether a particular course of medical treatment constitutes a
Covered Service shall not relieve APS PR Providers from providing or
recommending such care to Beneficiaries as they deem to be medically
appropriate. In the case of a dispute among a Beneficiary, APS PR and/or
Humana PR whether a service is a Mental or Behavioral Health Service, the
dispute will be resolved following the applicable Humana PR and ASES
complaint, grievance and appeals procedure. APS PR and APS PR Providers
agree to inform Beneficiaries of their right to appeal any utilization
review or coverage determination in accordance with the Health Insurance
Contract and the policies and procedures of APS PR, Humana PR and ASES.
10.3. MORE FAVORABLE AGREEMENTS
If during the term of this Agreement, APS PR enters into any contract or
other arrangement with any other party (a "Comparable Party") under which
the APS PR renders and/or provides for the provision of comparable mental
and behavioral health services through its APS PR Providers at a discount,
differential or other allowance which is more favorable than the payment
method or rates set out in Attachment A, then the APS PR shall notify
Humana PR immediately, and Humana PR shall be entitled to such discount,
differential or other allowance effective as of the effective date of such
other contract or arrangement. For the purposes of this Section 10.3,
"comparable mental and behavioral health services" means services that are
comparable to those offered by APS PR to the Beneficiaries pursuant to
this Agreement when the Comparable Party's membership or service
population (including age and sex breakdown), cost of service, available
providers, historic health service utilization rates
30
among the serviced membership and other relevant service factors are
reasonably comparable to those of Humana PR. This Section 10.3 shall not
apply to mental and behavioral health services provided under any
government program other than the Reform Program.
10.4. NON-COMPETITION
APS PR agrees and shall cause its APS PR Providers to agree that at any
time during the term of this Agreement and subsequent to its termination,
Humana PR may enter into a direct agreement with APS PR Providers for the
provision of medical services by APS PR Providers to members of Humana
PR's plans. Nothing in the APS PR Provider Services Agreements or in any
other agreement between APS PR and its providers shall prohibit or
restrict the right of providers to contract directly with Humana PR,
either as a provider or as an owner or promoter of any other health care
organization. For the term of this Agreement plus a period of one (1) year
commencing on the termination of this Agreement, APS PR shall not,
directly or indirectly, in any capacity, for the benefit of any person,
within the geographical area consisting of the Commonwealth of Puerto
Rico, establish, engage, own, manage, operate, join or control, or
participate in the establishment, ownership, management, operation or
control of, any person in connection with any prepaid health plan,
indemnity health plan, health maintenance organization, preferred provider
organization, exclusive provider organization, independent provider
association, or any other similar organization or entity (collectively, a
"Health Insurer") which does or could be considered to be entitled to bid
as a health insurance company for participation in the Puerto Rico Health
Reform Program established under Law 72; provided, however, that (i) APS
PR may own no more than 5% of the issued and outstanding securities of a
publicly-traded company in the above-described industries; and (ii)
nothing in this Section 10.4 shall be deemed to prohibit APS PR from
providing or arranging for the provision of mental and behavioral health
services to any other Health Insurer or directly to any governmental unit
in a direct carve-out contract for mental and behavioral health services.
10.5. APS PARENT GUARANTEE
American Psych Systems, Inc., the corporate parent of APS PR ("APS),
shall guarantee the Payment Obligations of APS PR under this Agreement,
on the terms set forth in Attachment J hereto.
10.6. DISPUTE RESOLUTION
10.6.1. Any dispute, controversy, or question of interpretation
arising out of or relating to this Agreement or any amendments hereto,
shall be settled by arbitration in San ▇▇▇▇, Puerto Rico in accordance
with the procedures provided in this Section ___.
10.6.2. Arbitration may be initiated by a party by serving written
demand upon the other party or parties. The demand shall specify the
issues in dispute and the name of the person designated to act as
arbitrator on behalf of the party initiating arbitration. The party or
parties receiving the demand shall answer within twenty days of the date
demand is made by stating any additional issues in dispute and the name of
the person designated to act as arbitrator on behalf of such party or
parties. Failure to answer will result in a denial of the issues in the
demand, in a waiver of the right to raise additional issues relating to
the issues set forth in the demand at any future
31
date, and in a waiver of the selection of the second arbitrator. If the
failure to answer results in the selection of only one arbitrator, that
arbitrator, acting alone, shall hear the issues presented for arbitration
and render a written decision within twenty days thereof in accordance
with all other applicable provisions of this Section 10.6.
10.6.3. The arbitrators so chosen shall meet within twenty days
after the second arbitrator is chosen and shall decide the dispute. If
they are not able to resolve the dispute within the twenty-day period, the
selected arbitrators shall select a third arbitrator and, if they cannot
agree on the third arbitrator within twenty days, the third arbitrator
shall be appointed upon their application, or upon the application of
either party, by the American Arbitration Association in San ▇▇▇▇, Puerto
Rico.
10.6.4. The arbitrator or arbitrators shall have the broadest powers
permitted by law or equity, including the power to grant injunctive
relief, order specific performance, and grant other equitable remedies
which the arbitrators deem appropriate. The arbitrator or arbitrators
shall conduct conferences and hearings, as appropriate, hear arguments of
the parties, and take the testimony of witnesses.
10.6.5. The three arbitrators shall meet and decide the dispute by
written decision stating the reasons in support thereof, and shall render
an award within sixty days of the demand for arbitration or twenty days of
the appointment of the third arbitrator, whichever is later. A decision in
which two of the three arbitrators concur shall be binding and conclusive
upon the parties, subject to vacation, modification, or correction as
permitted by the rules of the American Arbitration Association then in
force. If two of the arbitrators shall be unable to concur, the parties
shall appoint new arbitrators and a new arbitration shall be conducted. In
appointing arbitrators and in deciding the dispute, the arbitrators shall
act in accordance with the rules of the American Arbitration Association
then in force, subject however, to such limitations as may be placed upon
them by the provisions of this Agreement, except that each party may
appoint as its arbitrator its own attorney, accountant, employee or
officer.
10.6.6. Any determination rendered in accordance with the provisions
of Section 10.6 shall be controlling and decisive of any dispute
thereafter arising under this Agreement, and judgment upon, or
confirmation of, the determination may be entered in any court of record
of competent jurisdiction or application may be made in such court for
judicial acceptance of the award and an order of enforcement as the law of
such jurisdiction may require or allow. The parties waive all rights of
appeal of any order confirming, modifying or correcting a determination or
award by the arbitrator or arbitrators. The determination of the
arbitrator or arbitrators shall be kept confidential by the parties,
unless disclosure is required for purposes of enforcement or required by
law.
10.6.7. The prevailing party in the arbitration shall be entitled to
recover reasonable attorneys' fees and costs, including such fees and
costs resulting from any action to confirm the award or enforce the
judgment resulting therefrom.
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11. MISCELLANEOUS
11.1. MODIFICATION OF THIS AGREEMENT
This Agreement may be amended or modified in writing as mutually agreed
upon by Humana PR and APS PR. This Agreement shall also be deemed to be
modified by operation of federal law, the law of the Commonwealth of
Puerto Rico, applicable governmental regulations or amendments to or
clarification of the Health Insurance Contract by ASES.
11.2. INTERPRETATION
The validity, enforceability and interpretation of any of the clauses of
this Agreement shall be determined and governed by applicable law of the
Commonwealth of Puerto Rico and federal law. The parties agree that
jurisdiction for any legal action regarding this Agreement shall be in the
courts of the Commonwealth of Puerto Rico, or the federal courts located
in San ▇▇▇▇, Puerto Rico. This Agreement shall not be construed as
creating any third party beneficiaries hereto including, without
limitation, Beneficiaries or Members, except with respect to the
provisions of Section 4.6 hereof. Notice to, or the consent of any person
or entity not a party to this Agreement including any Beneficiary or
Member shall not be required to effect any modification, amendment or
termination of this Agreement.
11.3. SEVERABILITY
If any provision, covenant or condition of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions and Agreement shall remain in full force and
effect and in no way shall be affected, impaired or invalidated.
11.4. WAIVER
The waiver of any breach of any term, covenant or condition of this
Agreement, shall not be deemed a waiver of any subsequent breach of the
same or any other term, covenant or condition.
11.5. ASSIGNMENT
This Agreement, being intended to secure the services of APS PR and APS PR
Providers, shall not be assigned, delegated or transferred by APS PR
without the prior written consent of Humana PR, which consent may not be
unreasonably withheld. Humana PR may assign this Agreement in whole or in
part to any purchaser of all or a substantial portion of the business in
respect of which this Agreement is executed, or to any affiliate of Humana
PR, provided that the assignee agrees to assume Humana PR's obligations
under this Agreement.
33
11.6. NOTICE
Any notice required to be given pursuant to the terms and provisions
hereof shall be hand-delivered by courier or sent by certified mail,
return receipt requested, postage prepaid, or by overnight mail service
such as Federal Express,
to Humana PR at:
HUMANA HEALTH PLANS OF PUERTO RICO, INC.
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTENTION: Senior Vice President & CFO
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Humana Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: Law Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to APS PR at:
American Psych Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTENTION: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change its address by providing notice as set forth
herein. APS PR shall be obligated to inform APS PR Providers of any
notices from Humana PR which affect them.
11.7. HEADINGS
The headings in this Agreement are inserted merely for the purpose of
convenience and do not limit, define or extend the specific terms so
designated.
11.8. ENTIRE AGREEMENT
This Agreement together with all Attachment s annexed hereto and the
applicable provisions of the Health Insurance Contract incorporated
herein, contains all the terms and conditions agreed upon by the parties
and supersedes all other agreements of the parties, oral or otherwise,
regarding the subject matter hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
HUMANA HEALTH PLANS OF PUERTO RICO, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, MD, President
AMERICAN PSYCH SYSTEMS OF PUERTO RICO, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
AMERICAN PSYCH SYSTEMS, INC.
(with respect to Section 10.5 only)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, MD, CEO & President
35
LIST OF ATTACHMENTS
TO
MENTAL AND BEHAVIORAL HEALTH SERVICES AGREEMENT
(REFORM PROGRAM)
A. Compensation to APS PR
B. Mental and Behavioral Health Services, Exclusions And Deductibles
C. Ownership Disclosure Form
D. Credentialing Delegation Agreement
E. Utilization Management Delegation Agreement
F. Member Services and Quality Improvement Delegation Agreement
G. Treatment Record Activities Delegation Agreement
H. Form of Letter of Credit
I. Schedule of Required Reports
J. Form of Corporate Guaranty of American Psych Systems, Inc.
1