ROCHESTER AREA SCHOOL HEALTH PLAN I MUNICIPAL COOPERATION AGREEMENT
14859658_1
This is an amendment and restatement of the municipal cooperative agreement (“Agreement”) pursuant to which the Rochester Area School Health Plan I (the “Plan”) was originally implemented effective July 1, 1986. This amended and restated Agreement is effective as of January 1, 2026 and was approved by a majority of the Board of Directors of the Plan. The Plan was adopted pursuant to Article 5-G of the New York General Municipal Law (the “General Municipal Law”), which authorizes municipal corporations to enter into cooperative agreements for the performance of those functions or activities in which they could engage individually, and Sections 92-a and 119-o of the General Municipal Law, which authorize municipal corporations to purchase a single health insurance policy, enter into group health plans, and establish a joint body to administer a health plan. The school districts that have timely executed an Adoption Agreement prior to January 1, 2026 shall continue as Members on and after January 1, 2026 on the terms and conditions described herein. The Plan provides benefits pursuant to insurance contracts issued by one or more Insurers. The Plan also provides access to dental benefit claim administration services purchased on a collective basis by Members that self-insure their dental benefits. Members who purchase dental benefit claim administration services through the Plan maintain their own dental benefit plans and are solely responsible for paying the service fees and claim costs with respect to their dental benefit plans directly to the claims administrator. Dental claim risk and experience is not shared among the Members. ARTICLE 1.
DEFINITIONS
Section 1.01 Definitions. In this Agreement, the following terms shall have the meanings set forth below: (a) Adoption Agreement shall mean the agreement that a Member must adopt, by a majority vote of all of the members of its governing board, in order to become a Member of the Plan. In connection with the amendment and restatement of the Agreement, each Member must execute a new Adoption Agreement to continue their participation in the Plan on and after January 1, 2026. The Adoption Agreement is attached as Schedule A. (b) Benefit Plan Contracts shall mean (individually and collectively) any and all agreements entered into between the Plan and an Insurer relating to the provision of benefits or services under the Plan to eligible current or former employees, their spouses and/or their dependents. “Benefit Plan Contract” shall also include benefit arrangements maintained by the Plan. All of the Benefit Plan Contracts are listed on Schedule B. The Board may update Schedule B to reflect changes to the Benefit Plan Contracts without undertaking a formal amendment to this Agreement. The Benefit Plan Contracts designated on Schedule B shall be incorporated herein by reference and shall be maintained with and considered a part of the Plan. (c)
Board or Board of Directors shall mean the Board of Directors of the Plan.
(d) COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, Section 4980(B) of the Internal Revenue Code of 1986, and Title I Part 6 of ERISA, together with all regulations and proposed regulations promulgated thereunder.
14859658_1
1
(e)
Director shall mean a member of the Board of Directors.
(f)
Distribution shall mean any cash or other property paid to a Member by the Plan.
(g)
Employee shall mean a Member’s employee, his or her spouse, and his or her dependents.
(h) Health Care Component shall mean the portion of the Plan designated as a health care component by the Board of Directors in accordance with the HIPAA Rules. (i) HIPAA shall mean the Health Insurance Portability and Accountability Act of 1996, as amended. (j) HIPAA Rules shall mean the privacy and security provisions of HIPAA and the accompanying regulations. (k) Insurer shall mean an insurance company, health maintenance organization or other organization with whom the Plan has entered into a Benefit Plan Contract to provide benefits or services under the Plan. (l) Legal Mandate shall mean a law, order, rule or regulation promulgated by New York State or the United States Government or any department or agency of either, or the County of Monroe. (m) Medical Claims Expenses shall mean the amounts paid for health care expenses covered under the Benefits Plan Contracts (e.g., hospital, medical, drugs, ambulance, etc.). (n) Member shall mean each school district that qualifies for membership in the Plan, executes an Adoption Agreement and has not been terminated from membership in accordance with section 3.04 or withdrawn from membership in accordance with section 10.01(b). (o)
Membership Interest shall mean an interest of a Member in the Plan.
(p) Minimum Premium Contract(s) shall mean the Benefit Plan Contract(s) that are funded on a “minimum premium” or similar basis. (q) Non-Minimum Premium Member shall mean a Member that has withdrawn from participation in the Minimum Premium Contract(s) pursuant to section 10.01(a) and participates only in one or more of the other Benefit Plan Contracts.
14859658_1
2
(r) Officers shall mean an individual holding a position described in Article 8 of this Agreement. (s) Participant shall mean a Member’s Employee or Retiree that is eligible, in accordance with eligibility standards created by the Plan or the Member, to receive benefits or services under the applicable Benefit Plan Contract. (t)
Person shall mean any individual or entity.
(u)
PHI shall mean protected health information within the meaning of HIPAA.
(v) Plan shall mean the Rochester Area School Health Plan I, a fully insured municipal cooperative arrangement within the meaning of Article 5-G of the General Municipal Law. (w) Plan Administration Function shall mean the administrative functions performed by a Plan Sponsor on behalf of the Plan, and shall not refer to functions performed by the Member in connection with any other benefit or benefit plan of the Member or any other non Health Care Component of the Plan. (x) Plan Contribution shall mean an amount determined by the Board of Directors that a Member is required to contribute to the Plan, on a monthly basis, for purposes of funding: (i) payment of Premiums under a Benefit Plan Contract with an Insurer; (ii) Medical Claims Expenses under a Benefit Plan Contract for another benefit arrangement under the Plan; (iii) any reserve amount determined by the Plan’s consultant to be appropriate or necessary and (iv) any additional amount approved by the Board. Plan Sponsor shall mean each Member of the Plan. (y) Plan Year shall mean the twelve-month period beginning January 1st and ending December 31st. (z)
Premium shall mean the monthly amount payable to the Plan for a Plan Year.
(aa) Retiree shall mean a Member’s retired employee, his or her spouse, and his or her dependents who are eligible for coverage under the Plan. (bb) Rochester Area School Health Plan I or Plan shall mean the municipal cooperative benefit plan formed by this Agreement to offer coverage or services under one or more Benefit Plan Contracts issued by one or more Insurers. (cc)
Summary Health Information shall mean information that may be PHI and: (i)
14859658_1
that summarizes the claims history, claims expenses or types of claims experienced by the Participants; and 3
(ii)
has been de-identified as provided in the HIPAA Rules by deleting such information as the name, address, age, telephone number, social security number, medical records number, Plan beneficiary number, photograph, or other identifying information, except that addresses may be aggregated to the level of a five digit zip code. ARTICLE 2.
FORMATION
Section 2.01 Name of Plan. The name of the Plan is Rochester Area School Health Plan I. Section 2.02 Purpose of the Plan. The purpose of the Plan is to provide health insurance benefits and certain administrative services for the Participants in accordance with the terms of the Benefit Plan Contracts. Section 2.03 Effective Date. The original effective date of the Plan is July 1, 1986, and the effective date of this Amendment and Restatement is January 1, 2026 (the “Restatement Effective Date”). Section 2.04 Term. The Plan shall continue until dissolved in accordance with the terms of this Agreement. ARTICLE 3.
MEMBERS
Section 3.01 Members. There shall be one (1) class of Member of the Plan. Section 3.02 Admission to Membership. Any public school district that meets the membership qualifications set forth in Section 3.03 and is approved for membership by a vote of the majority of the entire Board of Directors shall be a Member of the Plan. (a) If a Member merges with a district that is not a Component District (as defined below), and the surviving district or new district remains as a Component District, then its membership shall continue, but the Board of Directors shall have the right to impose admission requirements (financial or otherwise) in order to remain as a Member of the Plan. (b) If a Member merges with a district that is not a Component District and the surviving district or new district is not a Component District, the Board may amend this Agreement to allow the surviving district or new district to become a Member, but the Board may impose admission requirements (financial or otherwise) in order to remain as a Member of the Plan. (c) If a Member merges with another Member, the surviving district or the new district will remain as a Member of the Plan and will be charged with the rights and obligations of the two districts that merged.
14859658_1
4
(d) If a Member merges with a district that is a Component District and the surviving district or new district remains as a Component District, then its membership shall continue, but the Board of Directors shall have the right to impose admission requirements (financial or otherwise) in order to remain as a Member of the Plan. Section 3.03 Membership Qualifications. As a condition to new and continuing membership in the Plan, each Member must: (a) be a component public school district of Monroe One BOCES or Monroe 2-Orleans BOCES (a “Component District”) and be located in an area in which the Insurer can offer the Benefit Plan Contracts; (b)
make such representations as the Board of Directors reasonably requires;
(c) offer to some or all of its Employees or Retirees coverage or services under some or all of the Benefit Plan Contracts; (d) satisfy such criteria and admission requirements (financial or otherwise) for initial and continuing membership established under this Agreement and as may be further established from time to time by the Board of Directors; and (e) approve and execute the Adoption Agreement and agree to be bound by its terms and the terms of this Agreement. Once a new Member has been approved for membership, such membership shall become effective on the first day of the calendar year following the Board’s approval. Upon admission as a Member, such Person shall assume all the obligations of a Member, shall have all of the rights and powers of a Member, and shall be subject to all of the restrictions applicable to a Member. Section 3.04 Termination of Membership. A Member’s membership may be terminated by the Board upon the occurrence of either of the following events: (a) the Member does not satisfy the membership criteria set forth in this Agreement and as established from time to time by the Board of Directors; or (b) the Member breaches any of its obligations under the terms of this Agreement and does not cure the breach within fifteen (15) days after written notice of the breach. Section 3.05 Member’s Restriction on Transfer or Assignment. No Member may, directly or indirectly, voluntarily or involuntarily, transfer or assign its Membership Interest in the Plan. Any direct, indirect, voluntary or involuntary, transfer or assignment in violation of this Agreement shall not pass legal or beneficial ownership or rights and shall be void ab initio. Section 3.06 Withdrawal/Termination. A Member will be deemed to have withdrawn from 14859658_1
5
the Plan if the Member either decides to voluntarily withdraw from the Plan in accordance with Section 10.01(b) of this Agreement, or the Member’s membership is terminated in accordance with Section 3.04 of this Agreement. ARTICLE 4.
BENEFIT PLAN
Section 4.01 Benefit Plan. Each Member shall have the right to provide insurance benefits and services to a Participant in accordance with the terms and conditions of this Agreement and the Benefit Plan Contracts selected by the Member to be offered to its Participants, and provided that the Member satisfies any other requirements imposed specifically on the Member by applicable law or agreement. A Participant may also be required to satisfy requirements for receipt of benefits imposed by the employing Member. Each Member shall, in accordance with the process established by the Board, elect which Benefit Plan Contract(s) will be offered to the Member’s Participants for a Plan Year. Such elections shall remain in effect for the entire Plan Year and for subsequent Plan Years unless the Member timely submits a new election for a subsequent Plan Year in accordance with the process established by the Board. Section 4.02 Terms and Conditions. The terms and conditions governing benefits and services which are available to a Participant who is covered under the Plan shall be described in the applicable Benefit Plan Contract. Each Member expressly represents and warrants that it will take all such action as may be required by law or any agreeement to which the Member is a party, and make any and all necessary amendments to its existing employee welfare benefit plans in order to offer Plan benefits to its Participants. Section 4.03 Alternative Coverage Not Required. Without limiting the range of coverage options which may be provided under this Agreement, no one shall have any duty to procure alternative coverage for a person who does not satisfy the requirements for insurability or receipt of benefits (including any geographical limitation on the scope of services) under any particular insurance policy or other program. Section 4.04 Coordination of Benefits. The benefits that would otherwise be payable under the Plan shall be reduced by the amount, if any, necessary so that the sum of the benefits payable under the Plan and any other plans (whether or not maintained by the Member) does not exceed the total of the Participant's allowable expenses under the applicable Benefit Plan Contract. The manner and extent to which the Plan coordinates benefit payments with other coverages shall be governed by the terms of the applicable Benefit Plan Contract. Section 4.05 Right of Recovery. Whenever benefits have been paid with respect to expenses covered under the applicable Benefit Plan Contract, such payment shall be considered as a payment made, received and held in trust by the Participant. If a payment is made in a total amount at any time in excess of the amount of payment required under the applicable Benefit Plan Contract, the Plan shall have the right to recover such payment to the extent of such excess from among any one or more of the following, as the Plan shall determine: (a) any person (including, without limitation, an Employee, a Retiree, a Participant, a trust, or an estate) to, for or with respect to whom such payments were made; 14859658_1
6
(b)
any insurance companies; or
(c)
any other Person.
The Plan shall have the right to pay any amount it shall determine to be warranted to satisfy the intent of this Section to any organization making payments under other plans which should have been made under this Agreement. Included in this right of recovery is the right to recover from a Participant any payment made under the applicable Benefit Plan Contract that the Participant may recover in any action arising out of the negligent conduct of a third party. This right of recovery may be exercised by collecting the money directly from the Participant or by way of subrogation of the Participant’s claim against the third party, unless prohibited by applicable law. Section 4.06 Claims Procedure for Insured Benefits. With respect to any benefit which is provided under a Benefit Plan Contract with an Insurer, a written application for benefits shall be submitted to the Insurer pursuant to the terms and conditions established by the Insurer. The Insurer shall be solely responsible for deciding such claim, for providing a full and fair review of the decision, and for determining a claimant’s entitlement to benefits provided under the Benefit Plan Contract and in accordance with applicable law. For these purposes, the Insurer shall have the sole discretionary authority and responsibility to interpret and apply the provisions of the Plan and the Benefit Plan Contract and any rules or regulations thereunder. Section 4.07 Continuation of Coverage. If a qualifying event, within the meaning of COBRA, occurs with respect to a Participant, and if required by law, the Plan shall give the Participant the opportunity to continue coverage in accordance with the procedures established by the Board of Directors, as is required by COBRA. Section 4.08 Change in Benefit Plan Contracts. (a) If, for a Plan Year, there is a Legal Mandate that applies to a Benefit Plan Contract and requires a change in benefits or coverage for a Benefit Plan Contract, then the change shall be made to the Benefit Plan Contract as of the date required under the Legal Mandate. (b) If, for a Plan Year, the Insurer unilaterally makes any changes in the benefits and coverage offered to the community at large, such changes shall apply to the corresponding coverage options under the Plan, unless the Board of Directors determines otherwise and the Insurer agrees. (c) No other changes may be made in the Benefits Plan Contracts without the consent of the Board of Directors. (d) If there is a change in the Benefit Plan Contracts as described in this Section, then the required Plan Contributions may change. ARTICLE 5. FUNDING/PREMIUM 14859658_1
7
Section 5.01 Funding. (a) Each Member will be required to contribute to the Plan an amount equal to the Plan Contribution applicable to the Benefit Plan Contracts covering the Member’s Participants. The Plan Contribution shall be determined by the Board of Directors, which may consult with and rely upon the recommendation of the Plan’s consultant. The form and timing of such payments shall be determined by the Board of Directors, unless provided otherwise in this Agreement. The Plan shall only be obligated to provide benefits to the extent a Member timely remits the required Plan Contributions. (b) Each Member shall indemnify and hold the Plan harmless, at all times during the term of this Agreement and thereafter, from all claims, damage, liability and expense, including reasonable legal fees and court costs, arising from or in any way connected with the Member’s failure to properly and timely remit the amounts required under this Agreement. Section 5.02 Payment. Each Member will be required to pay its Plan Contributions by the 1st day of each month. If a Member has not paid its Plan Contributions by the last day of the month in which it was due, then the Board of Directors may impose a penalty of 1% monthly. Section 5.03 Interest. No Member shall be entitled to interest on its payments to the Plan, unless this Agreement or the Board of Directors authorizes such a payment. Section 5.04 Return of Funding. No Member shall receive a return of any portion of its payments to the Plan, unless this Agreement or the Board of Directors authorizes such a payment. Section 5.05 Deposits. All monies paid to the Plan shall be deposited in one or more bank accounts at such bank or banks as the Board of Directors may authorize, subject to the applicable provisions of law governing the deposit of municipal funds. Section 5.06 Investment of Funds. Funds of the Plan not required for payment of current obligations may be temporarily invested, subject to the applicable provisions of law governing the cooperative investment of municipal funds. Section 5.07 Benefit Plan Contract Run-Out or Termination Liability. After the expiration or termination of the agreement with the Insurer, if required by a Benefit Plan Contract with an Insurer, the Plan will fund amounts then due under the Benefit Plan Contract. In the event that Plan reserves are insufficient to fund the amount due to the Insurer, the Board may require additional contributions from Members, subject to the additional terms of this Agreement. Section 5.08 Calculation and Distribution of Surplus or Deficit. Unless the Board determines otherwise: (a) Following the end of each Plan Year, the Board will determine whether, with respect to the Minimum Premium Contract(s), the Plan has a “surplus” or “deficit” for such Plan Year in
14859658_1
8
accordance with the following formula: Fund Balance – Claims Reserve = (deficit) or surplus, where: Fund Balance = total assets of the Plan less short-term liabilities (e.g., collections in advance, accounts payable, reserve for incurred but not reported claims) as of the end of the Plan Year. Claims Reserve = 50% of the total claims paid during the Plan Year. (b) If there is a deficit under the above formula and the Plan has an obligation to reimburse the Insurer for a deficit under the Minimum Premium Contract(s), all Members who were not Non-Minimum Premium Members for such Plan Year shall be responsible for the deficit payable to the Insurer, in proportion to the total cumulative Plan Contributions paid to the Plan by the Members who were not Non-Minimum Premium Members for such Plan Year with respect to Minimum Premium Contract(s) or based on such other methodology determined by the Board of Directors. (c) If there is a surplus, all Members who were not Non-Minimum Premium Members for such Plan Year shall be entitled to a share of one-quarter of the surplus in proportion to the total cumulative Plan Contributions paid to the Plan by the Members who were not Non-Minimum Premium Members for such Plan Year with respect to Minimum Premium Contract(s) or based on such other methodology determined by the Board of Directors. (d) The Board shall document its calculations and provide them to Members. It shall be the responsibility of each Director who represents a Member to distribute the details of the amount of any such deficit or surplus, including the calculations that resulted in the deficit or surplus, to its respective Member. ARTICLE 6.
ALLOCATIONS AND DISTRIBUTIONS
Section 6.01 Distributions. From time to time, the Board of Directors may, but shall not be required to, distribute to the Members, in accordance with this Agreement, any cash or property which is deemed by the Board to be available for distribution. The Distribution will be allocated among the current Members in proportion to the total cumulative Plan Contributions paid to the Plan by the current Members, or based on such other methodology determined by the Board of Directors. Section 6.02 Offset. The Plan may offset against any Distribution to be made to a Member all amounts owing by the Member to the Plan. ARTICLE 7.
MANAGEMENT OF THE PLAN
Section 7.01 Powers of the Board of Directors. 14859658_1
9
Except as otherwise provided in this
Agreement, the Board of Directors shall have all of the power to and shall manage, control and administer the business and affairs of the Plan. The Board may create and promulgate from time to time rules and regulations relating to the operation of the Plan including, but not limited to, rules relating to the Member’s obligations under this Agreement. The Members will comply with those rules and regulations. Except as otherwise specifically provided in this Agreement, the Board is solely responsible for interpreting the Plan, and the Board has the final and exclusive authority and discretion to decide all questions arising in connection with the administration of the Plan. The Board shall design the Plan of benefits under the Benefit Plan Contracts, and cause to be prepared and distributed to each Participant a Summary Plan Description describing the benefits under the Plan and the Benefit Plan Contracts as required by applicable law. Section 7.02 Management Contracts. The Board may contract with Person(s) for management services necessary for the operation of the Plan. The Members may contract directly with Monroe 2-Orleans BOCES to provide administrative services related to their participation in the Plan. Section 7.03 Board of Directors. The Board of Directors shall consist of a representative from each Member. There shall be an alternate for each Director, and the alternate may attend Board meetings and vote as a Director when the Director is unable to attend and vote. Reference in this Agreement to a Director shall be deemed to include the Director’s alternate where appropriate or required. Each Director shall serve until his or her successor is duly appointed, unless the position is terminated sooner by death, resignation or removal. It shall be the responsibility of each Director who represents a Member to report to the Member that it represents any action taken by the Board of Directors and any other information relating to the operation of the Plan that is relevant to the interests of the entity being represented, and to distribute to the Member any and all reports the Director received in his or her Director capacity. Section 7.04 Directors and Action. The number of Directors constituting the entire Board of Directors shall be equal to the number of Members. As used in this Agreement, the term “entire Board of Directors” shall mean the total number of Directors then in office. Unless provided otherwise in this Agreement, the Board shall act by the affirmative vote of a majority of the Directors present at a meeting provided that a quorum is present at the time of the vote. Section 7.05 Appointment of Directors. The Superintendent of each Member shall determine respectively its representative Director and alternate on the Board of Directors. Section 7.06 Vacancies. Vacancies on the Board of Directors (including alternates and including any vacancies resulting from an increase in the number of Directors) created for any reason shall be filled in accordance with Section 7.05 above. A successor who is appointed shall hold office until his or her successor has been duly appointed. Section 7.07 Removal. Any one or more Directors may be removed from office, only with cause, by a majority vote of the entire Board of Directors (determined based on the Directors then in office). Any Director proposed to be removed for cause must be given at least twenty (20) days prior written notice of the reasons why the Board of Directors is proposing to remove the person and the meeting of the Board of Directors at which the removal will be considered.
14859658_1
10
The person shall be entitled to attend the meeting of the Board of Directors and address the Board regarding his or her removal. Section 7.08 Resignation. Any Director may resign from office at any time. A Director shall be deemed to have resigned if the Member who designated the Director withdraws its designation which it may do at any time with or without cause, or if the Member’s membership in the Plan terminates. The resignation or withdrawal of a designation shall be made in writing and shall be delivered or mailed to the Plan, and shall take effect on the date designated therein without the necessity of acceptance by the Board. Section 7.09 Meetings of the Board of Directors. An annual meeting of the Board of Directors shall be held during the first regular meeting of each year. Regular meetings of the Board of Directors shall be held at such times as the Board of Directors determines. Written notice of the date, time and place of a regular meeting shall be provided to each Director not less than ten (10) days before the date fixed for the meeting. Special meetings of the Board of Directors may be held at any time when called by the Chairperson, or by the Secretary upon the written request of at least three (3) of the Directors. Written notice of the date, time and place of a special meeting shall be provided to each Director not less than three (3) days before the date fixed for the meeting. Section 7.10 Place of Meetings. Each meeting of the Board of Directors shall be held at such place, within Monroe County, as the Board of Directors determines. Meetings may be held electronically (by video or teleconference) in the discretion of the Board of Directors. Section 7.11 Notice of Meeting of the Board of Directors. Written notice of the date, time and place of each regular and special meeting of the Board of Directors shall be given to each Director (but not to an alternate) in any of the following ways: (a) Personal Delivery. Notice may be given by personally delivering such notice to the Director. Notice will be deemed given upon receipt. (b) Notice by Electronic Means. Notice may be given by sending such notice to a Director by telecopier, telex, fax, electronic mail or similar mode of communication, provided that the source of the communication can be verified and the receipt confirmed. Notice will be deemed given twenty-four (24) hours after receipt. (c) Leaving Notice at the Director’s Residence or Office. Notice may be given by leaving such notice with an individual of suitable age and discretion at the Director’s residence or office. Notice will be deemed given twenty-four (24) hours after it is left. (d) Mail. Notice may be given by placing such notice, addressed to the Director at his or her last known address according to the Plan’s records, in the United States mail, first-class postage prepaid. Notice will be deemed given on the second day after the day of mailing (not counting the day mailed), irrespective of the date of receipt.
14859658_1
11
(e) Express Mail. Notice may be given by delivering such notice, addressed to the Director at his or her last known address according to the Plan’s records, to a reputable express mail delivery service that will provide for next day delivery. Notice will be deemed given on the first day after the day of mailing (not counting the day mailed), irrespective of the date of receipt. Section 7.12 Waiver of Notice. Notice of any meeting of the Board of Directors need not be given to any Director who waives such notice, in a signed writing before, during or after the meeting, or who attends the meeting without protesting the lack of notice, either prior to the meeting or at the commencement of the meeting. Section 7.13 Quorum. A quorum must be present at a meeting of the Board of Directors for the transaction of any item of business at such meeting. A quorum shall exist if a majority of the entire Board of Directors (determined based on the Directors then in office) is present at the meeting. If less than a quorum is present at a meeting, a majority of the Directors present at such meeting may adjourn the meeting from time to time without notice other than by announcement at the meeting, until a quorum shall attend. At any such adjournment at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called. The vote of a majority of the Board of Directors present at the time of the vote, if a quorum is present at such time, shall be the act of the Board of Directors, unless a greater vote is required under this Agreement to take action. Once a quorum is present, it may be broken by the subsequent withdrawal of a Director. Section 7.14 Action Without a Meeting. Any action required or permitted to be taken by the Board of Directors, or by any committee thereof, at a duly held meeting may be taken without a meeting if all members of the Board of Directors or of the committee (then in office), as the case may be, consent in writing to the adoption of a resolution authorizing the action. Such resolution and such written consent shall be filed with the minutes of the proceedings of the Board of Directors or of the committee, as applicable. Section 7.15 Personal Attendance by Conference Communication Equipment. Any Director and any committee member may participate in a meeting of the Board of Directors or of such committee by means of a video conference, conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at the meeting. Section 7.16 Compensation. Directors shall not receive compensation from the Plan for their services in their capacity as Directors but, by resolution of the Board of Directors, a fixed sum and reimbursement of expenses may be paid to Directors for attendance at each meeting of the Board. Nothing in this Section shall be construed to preclude a Director from serving the Plan in any other capacity and receiving compensation in such capacity. Section 7.17 Board Committees. (a) The Board of Directors may appoint an Executive Committee consisting of the Officers designated under Article 8 of the Agreement. Meetings of the Executive Committee shall be noticed and conducted in accordance with the terms of this Article 7, but meetings may only be called by the Chairperson of the Board, who shall be the Chairperson of the Executive
14859658_1
12
Committee. The Executive Committee shall have the authority of the Board of Directors, except that the Committee shall not have authority with respect to the following matters: filling of vacancies on the Board of Directors; removal of Directors from the Board of Directors; determining the amount of Plan Contributions to be charged to the Members and how such Plan Contributions will be allocated among the Members; distributions of a surplus or deficit; determining Distributions; admission or termination of a Member; incurring an expenditure greater than ten thousand dollars ($10,000), or incurring multiple expenditures in a Plan Year in excess of that amount for the same purpose; and, amendment or termination of all or any portion of this Agreement or merger of all or any portion of the Plan with another plan. The purpose of the Executive Committee is to address operational matters that relate primarily to the approval of an expenditure of money and that need to be addressed prior to a scheduled Board meeting. Prior to the next scheduled Board meeting, the Executive Committee shall report to the Board any actions the Executive Committee has taken since the preceding Board meeting. (b) The Board of Directors may appoint, from time to time, one or more standing committees of the Board of Directors, which shall consist of three or more Directors. Committees of the Board of Directors shall have such powers as are conferred upon them by the Board of Directors. (c) A majority of the members of a committee of the Board shall constitute a quorum for the transaction of any item of business of such committee. The committee of the Board of Directors may make other rules for the conduct of its business. Members of any committee of the Board of Directors may be removed from office in the same manner as Officers of the Plan may be removed from office. ARTICLE 8.
OFFICERS
Section 8.01 Election of Officers. The Board of Directors shall elect a Chairperson and a Vice-Chairperson of the Board, a Secretary and a Treasurer, and such other Officers with such powers as it shall determine each year at its annual meeting, and thereafter if necessary to fill a vacancy. Each Officer shall be a member of the Board and shall serve for a term of one (1) year and until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Any two offices may be held by the same person. Any vacancies in any office may be filled by the Board of Directors. Section 8.02 Removal. Any Officer of the Plan may be removed at any time, with or without cause, by the affirmative vote of a majority of the entire Board of Directors (determined based on the Directors then in office). Section 8.03 Compensation. Officers shall not receive compensation from the Plan for their services in their capacity as Officers. The Officers may be reimbursed for reasonable expenses incurred in connection with the discharge of their duties as an Officer of the Plan. Nothing in this Section shall be construed to preclude an Officer from serving the Plan in any other capacity and receiving compensation in such capacity.
14859658_1
13
Section 8.04 Chairperson/Vice-Chairperson. The Chairperson shall preside at all meetings of the Board of Directors. At the request of the Chairperson or in his or her absence or inability to act, the Vice-Chairperson shall perform the duties and exercise the functions of the Chairperson. Section 8.05 Secretary. The Secretary shall keep full minutes of all meetings of the Board of Directors. The Secretary shall see that all notices are duly given in accordance with the provisions of this Agreement. The Secretary shall be the custodian of the records. The Secretary shall have such other powers and duties as may be properly designated by the Board of Directors. Section 8.06 Treasurer. The Treasurer shall act as the chief fiscal officer of the Plan. The Treasurer shall have such powers and duties as may be properly designated by the Board of Directors.
ARTICLE 9.
INDEMNIFICATION
Section 9.01 Generally. Each Person who was or is made a party to or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he/she/it or his/her/its is or was an Officer, committee member, Member, representative of a Member, or Director of the Plan (an “Indemnitee”), shall be indemnified and held harmless by the Plan against all expense, liability and loss, including without limitation excise taxes or penalties, judgments, fines, amounts paid in settlement (provided the Board of Directors shall have given its prior consent to such settlement, which consent shall not be unreasonably withheld by it) and reasonable expenses, including attorneys’ fees, suffered or incurred by such Indemnitee in connection therewith, and such indemnification shall continue as to an Indemnitee who has ceased to be an Officer, committee member, Member, representative of a Member, or Director and shall inure to the benefit of the Indemnitee’s heirs, representatives, and fiduciaries; provided, however, that no indemnification may be made to or on behalf of any Indemnitee if his/her/its acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated or otherwise disposed of, or if he/she/it personally gained in fact a financial profit or other advantage to which he/she/it was not legally entitled. Notwithstanding the foregoing, except as contemplated by Section 9.03 of this Agreement, the Plan shall indemnify any such Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors. An individual seeking indemnification under this Section 9.01 shall give written notice to the Board of Directors not later than thirty (30) days after the individual had notice of the commencement of the proceeding with respect to which the individual seeks indemnification.
14859658_1
14
Section 9.02 Advancement of Expenses. All expenses reasonably incurred by an Indemnitee in connection with a threatened or actual proceeding with respect to which such Indemnitee is or may be entitled to indemnification under this Article 9 shall be advanced to him/her/it or promptly reimbursed by the Plan in advance of the final disposition of such proceeding, upon receipt of an undertaking satisfactory to the Board of Directors by him/her/it or on his/her/its behalf to repay the amount of such advances, if any, as to which he/she/it is ultimately found not to be entitled to indemnification or, where indemnification is granted, to the extent such advances exceed the indemnification to which he/she/it is entitled. Such person shall cooperate in good faith with any request by the Plan that common counsel be used by the parties to any proceeding who are similarly situated unless to do so would be inappropriate due to an actual or potential conflict of interest. Section 9.03 Procedure for Indemnification. Not later than thirty (30) days following final disposition of a proceeding with respect to which the Plan has received written request by an Indemnitee for indemnification pursuant to this Article 9 or with respect to which there has been an advancement of expenses pursuant to Section 9.02 of this Agreement, the Board of Directors shall meet and find whether the Indemnitee met the standard of conduct set forth in Section 9.01 of this Agreement and, if it finds that he/she/it did, or to the extent it so finds, the Board of Directors shall authorize such indemnification. (a) Such standard shall be found to have been met unless: (i) a judgment or other final adjudication adverse to the Indemnitee established that the standard of conduct set forth in Section 9.01 of this Agreement was not met; or (ii) if the proceeding was disposed of other than by judgment or other final adjudication, the Board of Directors finds in good faith that, if it had been disposed of by judgment or other final adjudication, such judgment or other final adjudication would have been adverse to the Indemnitee and would have established that the standard of conduct set forth in Section 9.01 of this Agreement was not met. (b) If the Board of Directors fails or is unable to make the determination called for by Section 9.03(a), or if indemnification is denied, in whole or part, because of an adverse finding by the Board of Directors, or because the Board of Directors believe the expenses for which indemnification is requested to be unreasonable, such action, inaction or inability of the Board of Directors shall in no way affect the right of the Indemnitee to make application therefor in any court having jurisdiction therein. In such action or proceeding, or in a suit brought by the Plan to recover an advancement of expenses pursuant to the terms of an undertaking, the issue shall be whether the Indemnitee met the standard of conduct set forth in Section 9.01 of this Agreement, or whether the expenses were reasonable, as the case may be (not whether the finding of the Board of Directors with respect thereto was correct). If the judgment or other final adjudication in such action or proceeding establishes that the Indemnitee met the standard set forth in Section 9.01 of this Agreement, or that the disallowed expenses were reasonable, or to the extent that it does, the Board of Directors shall then find such standard to have been met or the expenses to be reasonable, as the case may be, and shall grant such indemnification, but shall not grant to the Indemnitee indemnification of the expenses incurred by him/her/it in connection with the action or proceeding resulting in the judgment or other final adjudication that such standard of conduct was met, or relating to the reasonableness of the expenses. Neither the failure of the Board of Directors to have made timely a determination prior to the
14859658_1
15
commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in Section 9.01 of this Agreement, nor an actual determination by the Board of Directors that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct. In any suit brought by the Indemnitee to enforce a right to indemnification, or by the Plan to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to indemnification, under this Article 9 or otherwise, shall be on the Plan. (c) A finding by the Board of Directors pursuant to this Section 9.03 that the standard of conduct set forth in Section 9.01 of this Agreement has been met shall mean a finding: (i) by the Board of Directors acting by a quorum consisting of Directors who are not parties to such proceeding; or (ii) if such a quorum is not obtainable, or if obtainable, such a quorum so directs, by the Board of Directors upon the written opinion of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct has been met. Section 9.04 Contractual Article. The rights conferred by this Article 9 are contract rights which shall not be abrogated by any amendment, repeal, termination or expiration of this Article 9, with respect to events occurring prior to such amendment, repeal termination or expiration, and shall be retroactive to events occurring prior to the adoption of this Article 9. This Article 9 shall be binding on any successor to the Plan. Section 9.05 Non-Exclusivity. The indemnification provided by this Article 9 shall not be deemed exclusive of any other rights to which any Person covered hereby may be entitled other than pursuant to this Article 9. The Plan is authorized to enter into agreements with any such Person providing rights to indemnification or advancement of expenses in addition to the provisions set forth in this Article 9, and the Members and the Board of Directors are authorized to adopt, in their discretion, resolutions providing any such person with any such rights. Section 9.06 Indemnification of Employees and Agents of the Plan. The Plan may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and the advancement of expenses to any employee or agent of the Plan with the same scope and effect as provided by this Article 9. Section 9.07 Insurance. The Plan may, to the extent determined by the Board of Directors, purchase insurance in order to insure the Plan’s obligations set forth in this Article 9. ARTICLE 10.
DISSOLUTION, MERGER, WITHDRAWAL AND WINDING UP
Section 10.01 (a) Withdrawal of a Member from Participation in Minimum Premium Contract(s). A Member shall have the right to withdraw from participation in the Minimum Premium Contract(s) and become a Non-Minimum Premium Member, but such withdrawal shall be effective only on January 1st. Withdrawal must be preceded by written notice given on or before 14859658_1
16
April 1st prior to the January 1st withdrawal date, and the notice must be given to the Chairperson and the Treasurer. After such notice is given, the Member and the Board will review the impact of the withdrawal on the Member and the Plan, and the Member shall then confirm or revoke its decision to withdraw from participation in the Minimum Premium Contract(s) by written notice given on or before September 1st prior to the January 1st withdrawal date. Failure to give the required written notices in a timely manner as required herein shall make the Member’s attempt to withdraw from participation in the Minimum Premium Contract(s) null and void, unless the Board of Directors consents to the withdrawal of the Member. (b) Complete Withdrawal of a Member from Participation. A Member shall have the right to completely withdraw from participation in the Plan, but such withdrawal shall be effective only on January 1st. Withdrawal must be preceded by written notice given on or before April 1st prior to the January 1st withdrawal date, and the notice must be given to the Chairperson and the Treasurer. After such notice is given, the Member and the Board will review the impact of the withdrawal on the Member and the Plan, and the Member shall then confirm or revoke its decision to withdraw from participation by written notice given on or before September 1st prior to the January 1st withdrawal date. Failure to give the required written notices in a timely manner as required herein shall make the Member’s attempt to withdraw from participation null and void, unless the Board of Directors consents to the withdrawal of the Member.
Section 10.02 (a) Surplus/Deficit Payment after Withdrawal from Participation in Minimum Premium Contract(s). If a Member voluntarily withdraws from participation in the Minimum Premium Contract(s) pursuant to Section 10.01(a), the Member will: (i) be responsible for any deficits; and (ii) share in any surplus, calculated through the date of the Member’s withdrawal from participation in the Minimum Premium Contract(s) (calculated as specified in Section 5.08) and shall satisfy any other obligation related to the Member’s participation in the Minimum Premium Contract(s). For Plan Years after a Member withdraws from participation in the Minimum Premium Contract(s) (but remains a Non-Minimum Premium Member), the Member shall not be responsible for any deficits or share in any surplus with respect to such Plan Years, but may share in distribution of surplus upon wind-up of the Minimum Premium Contract(s) as described in Section 10.04 or wind-up of the Plan as described in Section 10.05. (b) Surplus/Deficit Payment after Termination or Complete Withdrawal from Participation in Plan. If a Member is terminated from participation in the Plan pursuant to Section 3.04 or withdraws completely from participation in the Plan pursuant to Section 10.01(b), the Member will be responsible for any deficits calculated through the date of the Member’s termination or complete withdrawal from participation (calculated as specified in Section 5.08) and shall satisfy any other obligation related to the Member’s participation in the Plan. A Member that is terminated from participation in the Plan pursuant to Section 3.04 or withdraws completely from participation in the Plan pursuant to Section 10.01(b) shall not share
14859658_1
17
in any surplus for the the Plan Year in which such termination or withdrawal is effective. For Plan Years after a Member is terminated or withdraws completely from participation in the Plan, the Member shall not be responsible for any deficits or share in any surplus with respect to such Plan Years and shall not share in distribution of surplus upon wind-up of the Plan. Section 10.03 Voluntary Dissolution. The Plan shall be dissolved and its affairs wound up as described in Section 10.05 upon the vote of two-thirds (2/3) of all of the Directors. Section 10.04 Mandatory Wind Up of Minimum Premium Contract(s). If at the end of a Plan Year, the total number of Participants covered under Minimum Premium Contract(s) under the Plan is 500 or fewer (or such other number that the Board, in consultation with the Plan’s consultant, determines will make it financially infeasible to continue the Minimum Premium Contract(s)), the Minimum Premium Contract(s) shall be terminated not later than the end of the following Plan Year. Upon termination of the Minimum Premium Contract(s), (i) all Members (excluding the Non-Minimum Premium Members) shall fund any deficit that must be paid to the Insurer under the Minimum Premium Contract(s) in proportion to the total cumulative Plan Contributions paid to the Plan with respect to Minimum Premium Contract(s) by such Members (excluding the Non-Minimum Premium Members) or based on such other methodology determined by the Board of Directors. If there is a surplus, all Members (including the NonMinimum Premium Members) shall share in the surplus in proportion to the total cumulative Plan Contributions paid to the Plan with respect to Minimum Premium Contract(s) by such Members (including the Non-Minimum Premium Members) or based on such other methodology determined by the Board of Directors. Section 10.05 Complete Wind Up of the Plan. Upon the dissolution of the Plan, the Board of Directors may, in the name of and for and on behalf of the Plan, prosecute and defend suits, whether civil, criminal or administrative, discharge the Plan’s liabilities, and distribute to the Members (including the Non-Minimum Premium Members) any remaining assets of the Plan as described below. Upon winding up of the Plan, the assets shall be distributed as follows: (a)
to the payment of all liquidating expenses, including accounting and legal fees;
(b) to creditors of the Plan, which may include Members, in satisfaction of the liabilities of the Plan, whether by payment or by establishment of adequate reserves; and (c) to all Members (including the Non-Minimum Premium Members) of the Plan in proportion to the total cumulative Plan Contributions paid to the Plan with respect to Minimum Premium Contract(s) by such Members (including the Non-Minimum Premium Members) or based on such other methodology determined by the Board of Directors. Members whose participation in the Plan was terminated pursuant to Section 3.04 or by reason of their complete withdrawal from participation in the Plan pursuant to Section 10.01(b) shall not be entitled to a share of any distribution. Section 10.06 Termination. Upon completion of the dissolution, winding up, liquidation, and distribution of the assets of the Plan, the Plan shall be deemed terminated.
14859658_1
18
Section 10.07 Merger. The merger of this Plan with any other plan shall require the approval of two-thirds (2/3) of all of the Directors. ARTICLE 11.
REPORTING & RECORDKEEPING
Section 11.01 Books and Records. The Plan shall maintain detailed records relating to the operation of the Plan. For any purpose that is reasonably related to its interest as a Member or Director, or if a Director receives a request from a Member that it represents for information relating to the Plan, a Member or Director, or its duly authorized agent, shall respond to any such request and may inspect and copy, at its own expense and on fifteen (15) days written notice to the Plan, any and all records of the Plan, but such access to information shall be provided in accordance with applicable law (including, but not limited to, the HIPAA Privacy Rules). Section 11.02 Reports. The Board of Directors shall cause to be prepared and filed all necessary returns or reports for the Plan. Each Member shall furnish to the Plan all pertinent information in its possession relating to Plan operations that is necessary to enable the Plan’s returns and reports to be prepared and filed. Section 11.03 Annual Financial Audit. The Board of Directors will arrange to have prepared annually a financial audit of the operations of the Plan by an independent and competent third party. A copy of the audit will be provided to the Board. ARTICLE 12.
HIPAA COMPLIANCE
Section 12.01 Compliance With HIPAA. Effective April 14, 2004, the Plan will comply with HIPAA as provided in this Article. Section 12.02 General Requirements. The Plan may disclose PHI to a Member or allow an Insurer to make a disclosure to the Member in the following circumstances: (a) The Plan or an Insurer on behalf of the Plan may disclose Summary Health Information to a Member if the Member requests the Summary Health Information for the purpose of obtaining premium bids from Insurers for providing health insurance coverage under the Plan, or modifying, amending or terminating the Plan. (b) The Plan or an Insurer on behalf of the Plan may disclose to a Member information on whether an Employee or Retiree is participating in the Plan, or is enrolled in or has disenrolled from an Insurer. (c) The Plan or an Insurer on behalf of the Plan may disclose PHI to a Member if the disclosure is made pursuant to an authorization that is in compliance with the HIPAA Rules. (d) Disclosure of PHI to the Member by the Plan or by an Insurer on behalf of the Plan may occur provided such use and disclosure of PHI are in accordance with the requirements of the HIPAA Rules and this Article.
14859658_1
19
Section 12.03 Implementation Specifications. (a) The Plan and an Insurer on behalf of the Plan may disclose PHI to a Member provided that the Member agrees to the following, which the Member has done by executing this Agreement or an Adoption Agreement: (i)
the Member will not use or further disclose the PHI other than as permitted or required by the Plan or as required by law;
(ii)
the Member will ensure that any agent, including a subcontractor, to whom the Member provides PHI received from the Plan or an Insurer on behalf of the Plan agrees to the same restrictions and conditions that apply to the Member with respect to the PHI;
(iii)
the Member will not use or disclose the PHI for employment-related actions and decisions or in connection with any other benefit or employee benefit plan of the Member;
(iv)
the Member will report to the Plan any use or disclosure of PHI that is inconsistent with the uses or disclosures provided for, if and when it becomes aware of such a situation;
(v)
the Member will make PHI available in accordance with the access provisions of the HIPAA Rules;
(vi)
the Member will make PHI available for amendment and incorporate any amendments to PHI in accordance with the amendment provisions of the HIPAA Rules;
(vii)
the Member will make PHI available required to provide an accounting of disclosures in accordance with the accounting provisions of the HIPAA Rules;
(viii) the Member will make its internal practices, books and records relating to the use and disclosure of PHI received from the Plan or an Insurer on behalf of the Plan available to the Secretary of Health and Human Services for purposes of determining compliance by the Plan with the HIPAA Rules; (ix)
14859658_1
the Member will, if feasible, return or destroy all PHI received from the Plan or an Insurer on behalf of the Plan that the Member still maintains in any form and retain no copies of such information when no longer needed for the purpose for which the disclosure was made, except that, if such return or destruction is not feasible, the Member will limit further use and disclosure to those purposes that make the return or destruction of the information infeasible; and
20
(x)
the Member will ensure that there is adequate separation between the Member and the Plan as described below.
(b) In order to create adequate separation between the Plan and the Member, the Plan will do the following:
(c)
(d)
(i)
describe those employees or classes of employees or other persons under the control of the Member who will be given access to PHI, provided that any employee or person who receives PHI relating to payment under, health care operations of, or other matters pertaining to the Plan in the ordinary course of business must be included in such descriptions;
(ii)
PHI will be disclosed to the Member for use only as necessary to fulfill Plan Administration Functions that the Member performs for the Plan; and
(iii)
the Plan will provide an effective mechanism for resolving any issues of non-compliance by such individuals with the requirements set forth in this Article.
The Member may only use or disclose PHI if: (i)
the Member has properly received the PHI from the Plan or an Insurer on behalf of the Plan;
(ii)
the use and disclosure of the PHI is required by the Plan; and
(iii)
such use and disclosure complies with the requirements of the HIPAA Rules and this Article.
The Plan, with respect to disclosure of PHI to a Member, may do the following:
14859658_1
(i)
disclose PHI to a Member to carry out Plan Administration Functions that the Member performs, provided that the Member abides by the restrictions set forth in this Article;
(ii)
not permit an Insurer to disclose PHI to a Member, except as permitted by the HIPAA Rules or this Article;
(iii)
not disclose PHI or permit an Insurer to disclose PHI to a Member as otherwise permitted, unless a statement regarding such disclosure is included in the Plan’s Privacy Notice; and
(iv)
not disclose PHI to a Member for the purpose of employment-related actions or decisions or in connection with any other benefit or employee benefit plan of the Member.
21
(e) If the Plan designates itself as a hybrid entity so that the Health Care Components must comply with the HIPAA Rules, then the Health Care Components may not disclose PHI to any other component of the Plan, except to the extent permitted by law. The components of the Plan which are not Health Care Components shall not use or disclose PHI. ARTICLE 13.
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment/Termination of this Agreement. (a)
This Agreement may be amended by a majority vote of the entire Board of Directors.
(b) The notice of a meeting of the Directors, at which an amendment or termination of this Agreement will be considered, shall contain the language of this Agreement that will be altered or deleted in its original form and as altered or deleted. Section 13.02 Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing and shall be given in accordance with Section 7.11 of this Agreement. Notices may be signed and given by the attorney for any party delivering a notice hereunder. Section 13.03 Merger. This Plan contains the sole and entire agreement and understanding of the parties with respect to its subject matter. Except as provided in this Agreement, any and all prior discussions, negotiations, commitments, and understandings relating thereto are hereby merged in this Agreement. Section 13.04 Article 5-G Agreement. This Plan is intended to be a municipal cooperation agreement for the provision of joint services as described in Article 5-G of the New York General Municipal Law. The Members have determined that they can provide health insurance or health insurance benefits for the Participants at a significant cost savings by being a Member of the Plan. Section 13.05 No Guarantee of Tax Consequences. Neither the Plan nor the Members make any commitment or guarantee that any amounts paid to or for the benefit of a Participant under the Plan shall be excludable from the Participant's gross income for federal or state income tax purposes, or that any other federal or state tax treatment shall apply to or be available to any Participant. It shall be the obligation of each Participant to determine whether such payment under the Plan is excludable from the Participant's gross income for federal or state income tax purposes, and to notify the employing Member if the Participant has reason to believe that any such payment is not so excludable. Section 13.06 Quality of Health Services. The selection by the Plan of the coverage that may be provided through the Plan does not constitute any warranty, express or implied, as to the quality, sufficiency or appropriateness of the services that may be provided by any health care or other service provider, nor do the Plan or Members assume or accept any responsibility with respect to the denial by any prospective provider of access to, or financial support for, any
14859658_1
22
service, whether or not such denial is appropriate under the circumstances. Each Participant for whom enrollment is provided under any coverage agrees, as a condition of such enrollment, that such Participant will look only to appropriately certified or licensed providers, and not to the Plan or Members, for health care or other services, and further that the Participant releases, discharges, indemnifies and holds harmless the Members, the Plan, their respective employees, officers, designees, board members, and all other persons associated with them, with respect to all matters relating to: (a) the quality, sufficiency and appropriateness of health care or other services provided; (b) the failure by any provider to provide any service needed, or to properly obtain informed consent prior to rendering or withholding any service, regardless of the reason for such failure; and (c) professional malpractice by a service provider, or the failure of any insurance carrier to pay for any care for which the Participant or other service recipient believes himself/herself entitled to reimbursement. Section 13.07 Dispute Resolution. If a dispute arises with respect to any Member’s participation in the Plan, a dispute will be submitted to a dispute resolution committee created by the Board of Directors (the “Dispute Committee”). The Dispute Committee will investigate the dispute and make a recommendation to the Board of Directors regarding resolution of the dispute. The Board of Directors will then make a final determination regarding resolution of the dispute. If the Member who is the subject of the dispute disagrees with the Board’s determination, then either the Member or the Plan may pursue legal action to seek resolution of the dispute. Section 13.08 Governing Law. This Plan and the obligations of the Members hereunder shall be operated and performed and interpreted, construed and enforced in accordance with all applicable laws of the State of New York without reference to the principles of conflicts of laws and all applicable federal laws. Section 13.09 Waiver. No consent or waiver, express or implied, by any Member to any breach or default by another or the performance by another of its obligations under this Agreement shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party of the same or any other obligation of such Member under this Agreement. Section 13.10 Severability. If any provision of this Agreement or the application of the provisions of this Agreement shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the extent permitted by law. If any court determines that any provision of this Agreement, or any part thereof, is unenforceable for any reason, then there shall be added to this Agreement a legal, valid and enforceable provision as similar in terms to such invalid or unenforceable provision as may be possible. Section 13.11 Captions. The captions used in this Agreement are inserted for convenience only and are not part of this Agreement. Section 13.12 Gender. The masculine, feminine or neuter pronouns used in this Agreement shall be deemed to include the masculine, feminine or neuter genders, as appropriate.
14859658_1
23
Section 13.13 Binding Agreement. Subject to the restrictions on transfers set forth in this Agreement, this Agreement shall inure to the benefit of and be binding upon the Members and their respective legal representatives, successors and assigns. Section 13.14 Counterparts Execution. This Plan may be executed in one or more counterparts each of which, when executed and delivered, shall be an original but all of which together shall constitute one and the same agreement. This Plan may also be executed by having each Member sign a separate copy of the signature page, which, when combined, shall constitute the required execution of this Agreement. Section 13.15 Failure of Performance. If a Member fails in a due performance of any of its obligations under the terms of this Agreement, the Plan will have the right, at its election, to sue for damages for such breach and to seek such legal and equitable remedies as may be available to it, including the right to recover all reasonable expenses, which shall include reasonable legal fees and court costs, incurred to sue for damages or to seek such other legal and equitable remedies. Nothing contained herein shall be construed to restrict or impair the rights of the Plan to exercise this election. All rights and remedies herein provided or existing at law or in equity shall be cumulative of each other and may be enforced concurrently therewith or from time to time. Section 13.16 Survival. Every provision of this Agreement shall survive the expiration or termination of this Agreement, or to the extent applicable a withdrawal or termination of a Member, if specifically provided in this Agreement, or if necessary to complete performance under the terms of this Agreement, or if necessary to protect the right of any Person granted under the terms of this Agreement (e.g., Article 5, Article 9, Section 10.02, Section 10.04, Article 12, and Article 13). Section 13.17 Attorney-in-Fact. The Plan’s Chairperson and Vice-Chairperson are designated to receive, on behalf of the Plan, service of a summons or other legal process in any action, suit or proceeding arising out of any contract, agreement or transaction involving the Plan. Section 13.18 Confidentiality. Nothing contained in this Agreement shall be construed to waive any right of a Participant with respect to the confidentiality of PHI, and such right may only be waived upon the written authorization of the Participant.
14859658_1
24
Originally adopted July 1, 1986 Amended and Restated Effective as of the Restatement Effective Date
ROCHESTER AREA SCHOOL HEALTH PLAN I SCHEDULE A Adoption Agreement
14859658_1
25
ROCHESTER AREA SCHOOL HEALTH PLAN I SCHEDULE B Benefit Plan Contracts Classic Blue Classic Blue Secure Simply Prescriptions Aetna Plan 1 (Rx Copay $9 or $10/$25/$40 (90-day 3x)) Aetna Plan 2 (Rx Copay $9 or $10/$25/$40 (90-day 2x)) Aetna Plan 3 (Rx Copay $4 or $5/$20/$35 (90-day 3x)) Aetna Plan 4 (Rx Copay $4 or $5/$30/$75 (90-day 2.5x)) Aetna Plan 5 (Rx Copay 20%/25%/25%) Aetna Plan 6 (No Rx Coverage) Excellus Dental Administrative Services Agreement Hartford Accident Coverage Hartford Critical Illness Coverage Hartford Supplemental Life Insurance Coverage Hartford Hospital Indemnity Coverage Hartford Disability Insurance
14859658_1
26