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HomeMy WebLinkAbout2017-383-E HR - Envision Pharmaceutical Services, LlC to provide claims admin and parmacy benefit services DocuSign Envelope ID: 57C7A907-5B58-49D3-A739-6F02F5DAADB5 NON DISCLOSURE AGREEMENT This NON DISCLOSURE AGREEMENT ("Agreement") is entered into by and between Orange County ("Employer"), Envision Pharmaceutical Services, LLC, an Ohio limited liability company ("Vendor") and United HealthCare Services, Inc. for itself and its affiliated and associated companies ("United") and will be effective on 6/5/2017. Employer, Vendor and United may individually be referred to herein as a "Party" and may jointly be referred to together as the"Parties."These parties acknowledge and agree as follows: Purpose: Employer and United entered into an administrative services agreement under which United provides claims administration and other services for Employer's employee welfare benefit plan ("Plan"). Employer has retained Vendor to provide pharmacy benefit services for the Plan("Services"). Confidential Information: Employer has requested that United disclose to Vendor certain documents, statistical infoiniation and other information (including internal audit reports) which is commercially valuable, confidential, proprietary, or trade secret ("Proprietary Information") and also materials which may contain confidential health information as defined under 45 C.F.R. Part 160 ("Confidential Health Information"). For further clarification, Proprietary Information shall include, but not necessarily be limited to United's contract reimbursement teems including data related to allowable or discount amounts. Proprietary Infounation shall include fmancial provisions related to United's contracted healthcare providers and claims data from which those financial provisions can be derived. Proprietary Infounation and Confidential Health Infounation shall collectively be referred to in this Agreement as"Confidential Infounation". United has agreed to disclose certain Confidential Infoumation subject to the tennis of this Agreement. Disclosure of the Confidential Information is at the sole discretion of United, and United's consent to supply and allow Vendor to use the Confidential Infoimation now or in the future can be withdrawn at any time with reasonable notice to Vendor. Confidential Information disclosed by United to Vendor in connection with the Services shall be used by Vendor only as permitted by this Agreement. The Parties agree that United has the right to review the terms of this Agreement at least once every year to ensure that the terms of data sharing do not conflict with United's internal data release policies, which may change from time to time, and the Parties will reasonably work to address any issues. Vendor and Employer acknowledge and agree that United's agreements with its network of health care providers ("Provider Agreements") include restrictions on United's disclosure of provider-specific pricing and discount information to any third parties, including, but not limited to vendors and, as such, Confidential Information provided to Vendor under this Agreement must not violate the Provider Agreements. Confidential Infounation shall not include information: (i) generally available to the public prior to or during the time of the Services through authorized disclosure; or(ii) obtained from a third party (defined as any entity not a Party to this Agreement)who is under no obligation to United not to disclose such information. Systems Access: If United grants Vendor the right to access the benefit administration systems that United makes available to facilitate the transfer of Confidential Information ("Systems") the following conditions apply. The Systems, and any documentation with respect to the Systems, shall be treated as Proprietary Information as defined in this Agreement and subject to the same confidentiality restrictions contained herein. This right is nonexclusive and nontransferable,and all rights,title and interest in the Systems remain United's. Vendor shall not share,lease or otherwise transfer its right to access and use the Systems to any other person or entity. In accessing and using the Systems, Vendor shall use commercially reasonable security measures, including measures to protect: (a) the confidentiality of user identification and passwords and (b) data accessed through the Systems from unauthorized access or damage,including damage by computer viruses. Vendor also agrees to comply with United's commercially reasonable security measures of which United notifies Vendor. Vendor will contact United promptly if(a)any breach of the security procedures is suspected or has occurred and/or(b)an employee no longer needs Systems access due to termination of employment, or otherwise, so that United may deactivate the employee's identification number or password. 1 DocuSign Envelope ID: 57C7A907-5B58-49D3-A739-6F02F5DAADB5 United reserves the right to terminate Vendor's Systems access at any time. Systems access will automatically terminate on the date Vendor's business relationship with Employer ends. Upon termination of Systems access, Vendor will cease all use of the Systems. Electronic Transmission: If Vendor receives the Confidential Information from United via electronic means such as FTP transmission,Vendor shall use reasonable physical and software-based security measures,commonly used in the electronic data interchange field,to protect Confidential Information sent to, or received from,United. Vendor shall implement and comply with, and shall not attempt to circumvent or bypass, United's security procedures for the use of the electronic method of Confidential Information transmission. Vendor shall notify United promptly if Vendor is aware of any breach of the security procedures, such as unauthorized use, or if Vendor suspects such a breach. United reserves the right to terminate electronic transmission immediately on the date United reasonably determines that Vendor has breached, or allowed a breach of,this provision of the Agreement. United also reserves the right to change or upgrade its method of Confidential Information transmission with reasonable notice to Vendor. Permitted Uses: Vendor and Employer: (a) shall not use (deemed to include, but not be limited to, using, exploiting, duplicating,recreating,modifying, decompiling, disassembling,reverse engineering,translating,creating derivative works, adding to a Vendor database, aggregating,benchmarking or disclosing Confidential Information to another person or permitting any other person to do so) Confidential Information except for purposes of the Services; (b)shall not use Confidential Information for the creation, operation or contribution to the development of any cost or price transparency tool program that would enable Plan members to obtain comparative cost and pricing information across providers in a service area for episodes of care, treatments and procedures, or for any similar program or to create, develop, design, implement networks, including but not limited to Accountable Care Organizations (ACOs), Centers of Excellence (COEs),narrow or tiered networks; (c) shall limit use of Confidential Information only to its authorized employees who have a need to know for purposes of the Services and who are bound by as strict of confidentiality standards as set forth herein, and apply the minimum necessary principles as outlined under the Health Insurance Portability and Accountability Act of 1996, as amended, to Proprietary Information as well as confidential health information; (d) shall not aggregate or incorporate Confidential Information across multiple Employers or Plans without United's prior written permission; (e)shall comply with all applicable laws and regulations governing the use and disclosure of information; (f) shall use and require its employees to use, at least the same degree of care to protect the Confidential Information as is used with Vendor's own proprietary and confidential information; (g) shall take reasonable administrative physical and technical safeguards to protect any and all Confidential Information from unauthorized use, access and disclosure; (h) shall not disclose Confidential information to any of Vendor's affiliated entities for any use or purpose not directly related to the Services, including but not limited to any use or purpose that might harm United's competitive position; (i) may release Confidential Information in response to a subpoena or other legal process to disclose Confidential Information after giving United reasonable prior notice of such disclosure if legally permissible,so United may seek an appropriate protective order or other relief; (j)(or any of their respective personnel) shall not utilize Confidential Information, including any aggregate or de-identified data derived from such Confidential Information, for its or his or her benefit, commercial or otherwise, or for the benefit of any other person(including, without limitation, any of the subsidiaries or affiliates of Employer or Vendor), or to the detriment of United, except as may be expressly subsequently authorized in writing and on terms and conditions deemed necessary by United, including but not limited to having a separate confidentiality agreement in place with such affiliate or consultant; and (k) shall not provide Proprietary Information to any third parties unless expressly agreed to in this Agreement or otherwise by United, however, Vendor may share Proprietary Information with Employer subject to Employer's obligations. Specifically, United's Proprietary Information related to allowable or discount amounts cannot be used for the purposes of building provider networks including Accountable Care Organizations (ACOs), Centers of Excellence (COEs)provider contracts or other network strategies. Use of Pharmacy Data: If any Confidential Information which concerns or relates to pharmacy claims,pharmacy providers (including,but not limited to,rates paid to such pharmacy providers)and/or any other pharmacy services- related matter(collectively, "Pharmacy Confidential Information") is provided to Vendor pursuant to the provisions of this Agreement, then the following terms shall control Vendor's use and disclosure of such Pharmacy Confidential Information in addition to the other terms and conditions contained in this Agreement. In the event of a conflict between this Section and other provisions in the Agreement, this Section shall control for purposes of the 2 DocuSign Envelope ID: 57C7A907-5B58-49D3-A739-6F02F5DAADB5 use of Pharmacy Confidential Information. Pharmacy Confidential Information may not be used or disclosed except as specifically allowed by this Agreement. United and Employer acknowledge and agree that certain Pharmacy Confidential Information may be disclosed to other bidders in a Request for Proposal ("RFP") or Request for Information("RFI"), or other similar situation, at the individual claim level solely for the purpose of allowing such bidders to model the Employer's prescription experience to submit a proposal. Provided, however,that in no event shall Pharmacy Confidential Information financial fields be released in combination with Pharmacy Confidential Information provider fields to any third party(defined as any entity not a Party to this Agreement), including such bidders, or to the Employer, without United's prior written consent on a case by case basis. Obtaining United's consent may, at United's sole discretion, require the execution of an additional non-disclosure agreement by the intended data recipient or confirmation that the data recipient already has sufficient confidentiality obligations to United to protect the data requested. Pharmacy Confidential Information financial fields include,but are not limited to, Ingredient Cost Paid, Ingredient Cost Submitted, Dispensing Fee Paid, Flat Sales Tax Amount Paid, Amount Attributed to Provider Selection, Total Amount Paid by All Sources, Cost Difference Amount and Amounts Attributed to Product Selection/Brand Drug. Pharmacy Confidential Informration provider fields include, but are not limited to, all versions/variations of the Pharmacy ID Number/Name (including Service Provider ID, Service Provider Chain Code,Pharmacy Name and Claim Pricing Used Indicator). Employer Access to Confidential Information: Vendor will provide to Employer Confidential Information requested by a person designated in writing by Employer to receive Confidential Information, and Employer agrees it will: (a) receive the Confidential Information as Plan Administrator and use same for the limited purpose of satisfying its fiduciary obligation with respect to its administration of the Plan as required under ERISA; (b)comply with all applicable laws and/or regulations for any Confidential Information it receives including,but not limited to, the amendment of any Plan documents in accordance with the Privacy Rule; and (c) not provide access to the Confidential Infounation to any employee, agent or other designee other than an employee, agent or designee designated by Employer in writing to participate in the activities described herein. Public Records Laws: While all parties recognize and adhere to North Carolina's public records law, set forth at Chapter 132 of the North Carolina General Statutes,Employer and Vendor understand and acknowledge that United deems the Proprietary Information as commercially valuable, confidential, proprietary and trade secret information in accordance with applicable state and federal open and public records law. Consequently, Employer and Vendor understand and acknowledge that the Proprietary Information will not be released without the prior consent of United. In the event Proprietary Information is the subject of a legitimate disclosure request under the public records laws or similar applicable public disclosure laws governing this Agreement, Employer shall notify United in writing within three (3) days of the Employer's receipt of any such request for the Proprietary Information under the applicable public records act. Failure to provide such notice to United shall constitute a material breach of this Agreement. Such written notice shall, at a minimum,include a copy of the request for the Proprietary Information. If a request is made for the Proprietary Information, Employer and Vendor will give United ten (10) days notice, if not directly contrary to applicable law, to process the request and seek the necessary injunction to prevent such release of Proprietary Information. Employer shall cooperate with United if United chooses to object to any such requests for Proprietary Information. In such event where United requests Employer to hold such requested Proprietary Information as confidential, and where a court of competent jurisdiction, in accordance with applicable North Carolina law,ultimately deems such Proprietary Information to be subject to public record disclosure,United agrees to indemnify and hold harmless Employer and each of its officers, employees, and agents from all costs, damages, and expenses incurred in cooperating with United's objection to a request for Proprietary Information. Any such indemnification shall be implemented on a proportional basis to the Proprietary Information at issue, considering that information which was judicially deemed subject to public disclosure and that deemed to be confidential. Change of Control of Vendor: In the event of an anticipated Change of Control of Vendor, Vendor shall notify United at least thirty days in advance, if legally permissible, or within 24 hours after such Change of Control if otherwise legally prohibited from providing advanced notice. Upon any notification of Change of Control,United may immediately terminate the Agreements by providing notice to Vendor, and,notwithstanding anything to the contrary in this Agreement,regarding post-termination use of Confidential Information Vendor shall,at United's option,promptly and without undue delay return or destroy(with such destruction to be certified to United,if requested)all Confidential Information,retaining no copies. United may, at its sole option, extend the Agreement by notifying Vendor,provided, however,that(i)United received reasonable prior notice of the Change of Control,unless Vendor is legally prohibited 3 DocuSign Envelope ID: 57C7A907-5B58-49D3-A739-6F02F5DAADB5 from doing so;(ii)Vendor promptly responds to reasonable requests for information from United;(iii)Vendor agree to the continued application of the Agreement's terms, as amended and as applicable; and (iv) United determines that continuation of the Agreement will not harm United's interests. The Parties agree United reserves the right to request modification or addition of terms to address United's reasonable concerns prior to extending any of the Agreement and the Parties agree to work without undue delay to attempt to reach agreement on any such modifications. For purposes of this Agreement,the term"Change of Control" shall mean the acquisition following the date hereof by one of more related third parties of at least fifty percent(50%)of the voting securities of Vendor or the contractual right to direct the voting power of at least fifty percent(50%)of the voting securities of Vendor. The Parties agree that failure to provide notice to United of a Change of Control in violation of this Agreement is a breach of the Agreement. Conclusion of Services: This Agreement shall terminate at the earliest of: (i) the conclusion of the Services, (ii) immediately upon written notification due to breach, subject to a cure period solely at United's sole discretion(iii) upon at least thirty(30) days written notification by either party if termination is without cause, (iv)termination of the relationship between Employer and Vendor,or(v)termination of the relationship between United and Employer. At the conclusion of the Services, Vendor shall either relinquish to United or destroy (with such destruction to be certified to United) all Proprietary Information. Notwithstanding the foregoing, except in case of Vendor's breach, and subject to its obligations of confidentiality, to the extent return or destruction is infeasible, Vendor may retain copies of documents containing Proprietary Information for archival purposes that may be stored in back up media or other electronic data storage systems and to defend its work product and in such case, Vendor acknowledges and agrees that, so long as it retains any of the Proprietary Information, it shall be subject to the obligations set forth herein, including without limitation indemnification obligations, and the Proprietary Information's use shall be strictly limited to those uses which make the destruction or return infeasible or for limited uses as described above. In case of Vendor's breach,no Proprietary Information may be retained except to the extent United may approve in writing,subject to any additional reasonable assurances and/or protections,at United's sole discretion. Breach: If during the course of the Services it is discovered that this Agreement has been breached by Vendor then all Confidential Information shall be relinquished to United upon demand. Indemnification: Vendor agrees to indemnify and hold harmless United with respect to any claims and any damages caused by Vendor's breach of this Agreement and/or resulting from Vendor's Systems access, if such access has been granted. Anti-trust Statement: Vendor represents and warrants that, as applicable, any treatment or use of Confidential Information provided to them by United under this Agreement will be done in a manner that complies with the"safe harbor"method specified in the joint DOJ/FTC Statements of Health Care Antitrust Enforcement Policy, Statement 6, "Statement of Department of Justice And Federal Trade Commission Enforcement Policy on Provider Participation in Exchanges of Price and Cost information, and related guidance issued by either the Federal Trade Commission or the Department of Justice". This term applies to all of United's Confidential Information including but not necessarily limited to network provider discounts, allowable amounts,and contracted rates of reimbursement to a specific provider for a specific service. Governing Law. This Agreement is governed by ERISA and,if applicable,the laws of the State of North Carolina. This provision shall survive the termination of this Agreement. Parties shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state and federal anti-discrimination laws, policies, rules, and regulations and the Orange County Non-Discrimination Policy and Orange County Living Wage Policy (each policy is incorporated herein by reference and may be viewed at http://www.orangecountync.gov/departments/purchasing division/contracts.php.).Any violation of this requirement is a breach of the Agreement and Employer may immediately terminate this Agreement without further obligation on part of the Employer. This paragraph does not limit, and is not intended to limit the definition of breach to discrimination. By executing this Agreement, United and Vendor affirm that they are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. Survival: The requirement to treat all Confidential Health Information as Confidential Information hereunder shall survive the termination of this Agreement. The requirement to treat all Proprietary Information as Confidential Information under this Agreement shall remain in full force and effect so long as any Proprietary Information remains commercially valuable, confidential, proprietary and/or trade secret, but in no event less than a period of three(3)years from the date of the Services. 4 DocuSign Envelope ID: 57C7A907-5B58-49D3-A739-6F02F5DAADB5 • Assignment: Neither this Agreement nor Vendor's rights or 'obligations hereunder may be assigned without United's prior written approval. Counterparts: This Agreement may be executed in any number of counterparts, which together shall be deemed one original, and delivery of copies of signatures or facsimile signatures shall be deemed of equal force as delivery of original signatures. General: (a)This Agreement is the entire understanding between the parties as to the subject matter hereof. (b)This Agreement binds the parties and their respective successors, assigns, agents, employers, subsidiaries and affiliates. (c)No modification to this Agreement shall be binding upon the parties unless evidenced in writing signed by the party against whom enforcement is sought. (d)Headings in this Agreement shall not be used to interpret or construe its provisions. (e) The alleged invalidity of any term shall not affect the validity of any other terms. (f) This Agreement together with any amendments or modifications may be executed electronically.All electronic signatures affixed hereto evidence the consent of the Parties to utilize electronic signatures and the intent of Employer to comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66. The parties have caused their authorized representatives to execute this Agreement. Envision Pharmaceutical Services,LLC United HealthCare Services,Inc. DocuSigned by: DocuSigned by: haft abs By 234AZSF4nZ4E4F3 By 27871 A41 FC8541B Authorized Signature Authorized Signature Name Matt Gibbs Name Theresa Lesco Title President, commercial & Managed Markets Title NDA specialist Date 8/8/2017 Date 8/9/2017 Orange County By DocuSignthorized Signature jbin In tt tka" tt,y tt,t1 Name 00379948-75-5L477... Title county Manager Date 8/9/2017 UHC 2P/3P GEN NDA(3/17) 00032325.0(06/17) 5