MEDICARE ADMINISTRATIVE SERVICES APPENDIX
The parties adopt this Medicare Administrative Services Appendix (“Medicare Appendix”) to the Agreement to comply with the requirements of the Medicare regulations at 42 C.F.R. Parts 422 (“Part C”) and 423 (“Part D”), to the extent that Agent performs Medicare administrative services on behalf a Medicare Advantage Plan or a Prescription Drug Plan (“Plan”).
Delegated Activities. Plan delegates to Agent and Agent shall provide Medicare administrative services, as listed in the Agreement. Agent acknowledges and agrees that Plan may only delegate activities or functions to Agent in a manner consistent with the requirements set forth as applicable in 42 C.F.R. §§ 422.504(i)(4) and 423.505(i)(4); 42 C.F.R. §§ 422.504(i)(3)(ii), 423.505(i)(3)(ii). Agent agrees that (i) the performance of the Delegated Activities and responsibilities thereof shall be subject to monitoring on an ongoing basis by Insurance Company; and (ii) in the event that Insurance Company or CMS determine that Agent has not satisfactorily performed any Delegated Activity or responsibility thereof in accordance with the CMS Contract, applicable laws and regulations and CMS instructions, then Insurance Company shall have the right, at any time, to revoke the Delegated Activities by terminating the Agreement in whole or in part, and shall have the right to institute corrective action plans or seek other remedies or curative measures as contemplated by the Agreement. Agent shall not further delegate any activities or requirements without prior written consent of Insurance Company.
1. Consistency with CMS Contract. Agent shall perform the services in a manner that complies with and is consistent with Plan’s contractual obligations relating to performance of Medicare administrative services. 42 C.F.R. §§ 422.504(i)(3)(iii), 423.505(i)(3)(iii).
2. Accountability. Agent acknowledges and agrees that the Plan is required to monitor the performance of Agent on an ongoing basis and that the Plan maintains ultimate responsibility for adhering to and otherwise fully complying with all terms and conditions of the CMS Contract. 42 C.F.R. §§ 422.504(i)(2), 422.504(i)(4)(iii), 423.505(i)(4)(iii), 423.505(i)(2).
3. Laws, Regulations and CMS Requirements. Agent represents and agrees that, throughout the term of the Agreement, Agent shall comply with the following Laws and requirements, in each case to the extent applicable to Agent’s performance of the Services: (i) all applicable Medicare statutes and regulations and CMS guidance, instructions and requirements; (ii) HIPAA and the HITECH Act, to the extent provided in the HIPAA Addendum attached to the Agreement; (iii) all other applicable Federal Laws. 42 C.F.R. §§ 422.504(i)(4)(v), 423.505(i)(4)(iv).
a. Fraud and Abuse. Agent shall comply with Federal Laws designed to prevent fraud, waste, and abuse, including applicable provisions of federal criminal law, the False Claims Act (31 U.S.C. § 3729 et seq.), and the Anti-Kickback statute (42 U.S.C. § 1320a-7b(b)). 42 C.F.R. §§ 422.504(h)(1), 423.505(h)(1).
b. Excluded Persons. Agent represents as of the effective date of the Agreement that neither it, nor any of its employees, members of its board of directors, officers, or Medicare subcontractors have been excluded from participation in the Medicare program or any other Federal Health Care Program or criminally convicted or has a civil judgment entered against it for fraudulent activities.
Agent shall contractually require its Medicare subcontractors to ensure that their employees are not excluded from participation in the Medicare program or any other Federal Health Care Program.
Agent must check appropriate databases to determine whether any of its employees, members of its board of directors, or officers or Medicare subcontractors has been excluded from participation in the Medicare program or any other Federal Health Care Program. These databases must be checked during the Term not less than monthly. Agent shall also check appropriate databases prior to when any of its employee, members of its board of directors, or officers commence their employment, directorship or ownership of Agent. Databases include the General Services Administration’s Excluded Parties List System and the OIG Exclusion List. Agent shall notify Plan immediately in writing if Agent determines that any of its employees, members of its board of
directors, or officers are suspended or excluded from the Medicare program or any other Federal Health Care Program or if criminally convicted or has a civil judgment entered against it for fraudulent activities.
Agent shall notify Company immediately in writing if Agent determines that any of its employees, temporary employees, volunteers, consultants and members of its board of directors, officers or Medicare subcontractors are suspended or excluded from the Medicare program or any other Federal Health Care Program. Agent agrees that it is subject to 45 C.F.R. Part 73b and shall require its employees, members of its board of directors, or officers to agree that they are subject to 45 C.F.R. Part 73b. 42 C.F.R. §§ 422.752(a)(8), 423.752(a)(6).
Agent shall comply with all applicable provisions of Insurance Company’s Corporate Compliance Program and Standards of Business Conduct.
c. Compliance with Carrier’s Obligations, Policies and Procedures. Agent agrees to comply with the applicable Carrier’s policies and procedures applicable to its Products, to the extent applicable to the Services Agent is providing under the Agreement.
4. Confidentiality and Accuracy of Records. Agent agrees to abide by all Federal and state laws regarding confidentiality and disclosure and shall treat all enrollees’ health and enrollment information, including any medical records or mental health records as confidential in accordance with the provisions of the Agreement, and comply with all applicable Laws regarding the confidentiality and disclosure of such health and enrollment information. Agent shall maintain such health and enrollment information in an accurate and timely manner and ensure timely access to such records and information by enrollees, all as set forth in the Agreement. 42 C.F.R. §§ 422.118, 422.504(a)(13), 423.136, 423.505(b)(14).
5. Inspection and Audit. Agent shall permit CMS, HHS, the Comptroller General, or their designees, to inspect, evaluate, and audit any of Agent’s books, contracts, medical records, patient care documentation, documents, papers, and other records pertaining to any services provided under the Agreement. This right to inspect, evaluate, and audit shall extend ten (10) years from the expiration or termination of the Agreement or completion of final audit, whichever is later, unless otherwise required by applicable Law – 42 CFR §§ 422.504(i)(2)(i), 422.504(e)(2), 423.505(i)(2)(i), 423,505(e)(2). Agent shall permit the Plan to monitor and audit Agent’s policies, procedures and systems at reasonable times under reasonable circumstances to ensure compliance with all applicable Medicare laws, regulations and CMS instructions. Agent acknowledges that Plan is required to undertake appropriate corrective actions in response to potential deficiencies, noncompliance, or FWA- 42CFR§§422.503(b)(4)(vi)(G), 423.504(b)(4)(vi)(G). If Agent is subject to a corrective plan of action (“CAP”), Agent shall comply with the CAP as set forth in the Agreement. Agent will complete the Plan’s Medicare Advantage (Part C and/or Part D) Compliance Attestation for Downstream Entities on an annual basis, if required.
6. Contracts with Downstream Entities. The following provisions also apply to Agent’s delivery of the services:
a. Agent shall contractually obligate any providers, contractors and subcontractors Agent utilizes in the delivery of the services to comply with all applicable laws, for which Agent has a compliance obligation under this Medicare Appendix. 42 C.F.R. §§ 422.504(i)(4)(v), 423.505(i)(4)(iv).
b. Agent shall not hold enrollees liable for any amounts that are the legal obligation of the Plan. 42 C.F.R. §§ 422.504(i)(3)(i), 423.505(i)(3)(i).
c. Agent shall contractually obligate any providers, contractors, and subcontractors Agent utilizes in the delivery of the services to comply with the same conditions and restrictions that are applicable to Agent under this Medicare Appendix. 42 C.F.R. §§ 422.504(i)(3)(iii), 423.505(i)(3)(iii).
d. Agent shall not subcontract for Part C and/or Part D activities outside the jurisdiction of the United States (“offshore subcontractor”), without Plan’s prior written approval. In the event that Agent intends to contract for any Medicare Part C and/or Part D activities with an offshore subcontractor that relates to Member PHI, Agent must obtain the prior written approval of the Plan. Failure to do so may result in the immediate termination of the Agreement.
7. Termination of Agreement for Breach. Agent acknowledges and agrees that a breach of this Medicare Appendix shall be considered a breach of the Agreement. For purposes of the Medicare Appendix, a determination by CMS or Plan that Agent has not satisfactorily performed its delegated obligations under the Agreement constitutes a breach. 42 C.F.R. §§ 422.504(i)(4)(ii), 423.505(i)(4)(ii).
8. Additional Contract Terms Required by CMS. This Medicare Appendix shall automatically amend to include terms and conditions necessary to address additional contract terms required by CMS. 42 C.F.R. §§ 422.504(j), 423.505(j).