State of New Hampshire
REQUEST FOR PROPOSAL For
PBM Technology Platform Services
RFP # 2387-21
RESPONSES DUE BY: December 1, 2020 at 2:00 PM Eastern Time (ET)
Department of Administrative Services Division of Risk & Benefits
State of New Hampshire
Table of Contents SECTION I: INTRODUCTION ...... 2 RFP Timetable ...... 2 Background ...... 2 Objective ...... 4 SECTION II: BIDDING INSTRUCTIONS AND CONDITIONS ...... 5 Procedural Requirements ...... 5 Questions/Addenda ...... 7 Legal Requirements ...... 8 Evaluation Process ...... 10 Definitions ...... 12 SECTION III: REQUIRED SERVICES AND CONTRACT TERMS AND CONDITIONS ...... 13 Minimum Qualifications: ...... 13 Required Contract Terms and Conditions ...... 13 SECTION IV: SCOPE OF SERVICES ...... 15 Account Management ...... 15 PBM Reverse Auction ...... 15 Ongoing Claims Invoice Review...... 17 Invoice Discrepancy Reporting ...... 18 Market Checks ...... 18 SECTION V: FINANCIAL (50 Points) ...... 19 SECTION VI: QUESTIONNAIRE (45 Points) ...... 20 SECTION VII: PERFORMANCE GUARANTEES (5 Points) ...... 27 SECTION VIII: CLIENT REFERENCES ...... 32 APPENDICES: ...... 33 APPENDIX A: State of NH Transmittal Letter ...... 34 APPENDIX B: Form P-37 (version 12/11/2019)...... 36 APPENDIX C: Business Associate Agreement ...... 41 APPENDIX D: Required Protection of Confidential Information and Data Security ...... 51 APPENDIX E: RSA 21-I:96-98 ...... 54
1 State of New Hampshire
SECTION I: INTRODUCTION
This Request for Proposal (“RFP”) is issued by the Department of Administrative Services (DAS), acting through the Division of Risk & Benefits, for a contract for technology platform services to assist the State in running a reverse auction to procure Pharmacy Benefit Management (PBM) services for the State Employee and Retiree Health Benefit Plan and to provide ongoing pharmacy invoice reviews and other related services as described herein.
RFP TIMETABLE
The following table provides a Timetable for the RFP through contract finalization and approval. The State reserves the right to amend this Timetable at its sole discretion and at any time through a published Addendum.
Action Due Date (Eastern Time) RFP Released October 30, 2020 Deadline for Bidder Inquiries and/or Requests for No later than November 12, 2020 by 3:00 PM Clarification and Proposed Specification Changes ET Response to Bidder Inquiries and/or Requests for No later than November 17, 2020 Clarification and Proposed Specification Changes Proposal Submission Deadline December 1, 2020 at 2:00 PM ET Contract Effective Date Upon Governor and Council Approval
BACKGROUND
The State currently provides self-funded pharmacy benefits to active employees, non-Medicare retirees, and dependents. In addition, the State provides self-funded pharmacy benefits to Medicare eligible retirees and dependents through a Medicare Part D employer group waiver plan (EGWP). Express Scripts, Inc. has been the State's PBM since January 1, 2014 and transitioned the Medicare population to an EGWP effective January 1, 2015. In compliance with RSA 21-I:96-98, (found here: http://www.gencourt.state.nh.us/rsa/html/i/21-i/21-i- mrg.htm and also attached hereto as Appendix E), this RFP is to support the State through the following: I. Adoption of a dynamically competitive reverse auction process for the state health plan selection of pharmacy benefit manager (PBM). II. Ongoing, real-time electronic review and validation of PBM claims invoices as the foundation for reconciling pharmacy bills. III. Conducting market checks using technology driven evaluation of the incumbent PBM's prescription drug pricing based on benchmark comparators. As a result of this procurement process and immediately upon Governor and Executive Council contract approval, the awarded Contractor will be required to provide services as outlined in this RFP. The PBM reverse auction planning shall take place February to March 2021. The PBM reverse auction RFP process and subsequent contract development shall take place April to July 2021. Following State evaluation of proposals, the resulting PBM contract will become effective January 1, 2022.The current enrollment and
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total claim dollars and total claim count for calendar years 2018, 2019 and 2020 (through September) is provided below for Bidder reference:
Current Enrollment
Non-Medicare Medicare Retiree September 2020 Active Plans All Plans Retiree (EGWP) Subscribers 9,791 1,851 10,202 21,844 Members 24,347 2,482 10,202 37,031
Total Claim Dollars
Active Plans Non-Medicare Medicare Retiree All Plans Retiree (EGWP) Calendar Year 2018 $41,976,385 $8,675,572 $37,377,182 $88,029,139 Calendar Year 2019 $42,346,496 $7,129,623 $41,255,202 $90,731,321 2020 Year-to-Date $33,772,882 $5,567,250 $34,568,692 $73,908,824 (through September)
Claim Count
Non-Medicare Medicare Active Plans All Plans Retiree Retiree (EGWP) Calendar Year 2018 Retail Claims 179,261 29,499 133,752 342,512 Mail Claims 96,465 22,889 137,339 256,693 Total Claims 275,726 52,388 271,091 599,205 Calendar Year 2019 Retail Claims 183,609 29,095 139,301 352,005 Mail Claims 94,907 21,121 139,127 255,155 Total Claims 278,516 50,216 278,428 607,160 2020 Year-to-Date (through September) Retail Claims 136,051 20,320 101,850 258,221 Mail Claims 71,764 15,807 105,555 193,126 Total Claims 207,815 36,127 207,405 451,347
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OBJECTIVE The State is seeking proposals to provide technology platform services to assist the State in conducting an online automated reverse auction to support DAS and its authorized representatives in comparing the pricing for its PBM procurement for the State Employee and Retiree Health Benefit Plan. The Contractor must also assist with evaluating the qualifications of PBM bidders and to provide related professional services as described throughout this RFP. After conducting a PBM reverse auction, the Bidder must repurpose the reverse auction technology platform to assist the State with ongoing PBM invoice reviews for all invoiced PBM prescription drug claims throughout the life of the State's PBM contract. If requested by the State, the selected Bidder must also conduct a market check using technology driven evaluation of the incumbent PBM's prescription drug pricing based on benchmark comparators.
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SECTION II: BIDDING INSTRUCTIONS AND CONDITIONS
BIDDERS MUST complete all REQUIRED sections of the RFP and SUBMIT the proposal by the stated proposal submission deadlines. Do not alter any parts of this RFP, to include the questions and the question numbering. Failure to follow these instructions may be grounds for rejection of the RFP response.
PROCEDURAL REQUIREMENTS
1. POINT OF CONTACT
Purchasing Agent, Ryan Aubert shall be the single point of contact for this RFP, whether verbal or written. See contact information below under Item #6 RFP Delivery.
2. BIDDER INFORMATION AND CONTACT
The individual(s) representing your company during the RFP process:
Representative Name: ______Phone #: ______
Email: ______
3. TERMS OF SUBMISSION The State assumes no responsibility for understandings or representations concerning conditions made by its officers or employees prior to and in the event of the execution of a contract, unless such understandings or representations are specifically incorporated into this RFP. Verbal discussions pertaining to modifications or clarifications of this RFP shall not be considered part of this RFP unless confirmed in a formal written addendum. Any information provided by the Bidder verbally shall not be considered part of that Bidder’s response. By submitting a proposal, a Bidder agrees that in no event shall the State be either responsible for or held liable for any costs incurred by a Bidder in the preparation of or in connection with the proposal, or for work performed prior to the Effective Date of a resulting contract.
4. SUBMISSION REQUIREMENTS AND FORMAT Proposals that do not meet these Submission Requirements may not be evaluated. All RFP responses must include the following: a. All the rate and financial information requested in the financial section of this RFP (Section V), including separate pricing for the PBM Reverse Auction, the claims Invoice Review, and the Market Check is complete. b. Proof of financial stability is attached to proposal per Section VI: a) Bidder’s most recent financial report; b) most recent independent auditor’s report; and c) SSAE 16, SAS-70, or equivalent external audit of Bidder’s operations. c. A response to all questions in Section VI. Questionnaire.
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State of New Hampshire
d. Complete all items in Section VII. Performance Guarantees f. Client references are included per Section VIII. Client References. g. Appendix A, State of NH Transmittal Letter, is signed by a person authorized to bind the company to all commitments made in the RFP response. All RFP proposals must consist of: h. Proposal is clearly sectioned and tabbed as outlined within this RFP document (e.g. Section II. Step 1, Step 2, etc.). This RFP may be requested in a Microsoft Word format by submitting a written request to Ryan Aubert at [email protected]. i. One (1) original hard copy (clearly identified as “Original”) of your RFP response; j. One (1) unbounded conforming hard copy (clearly identified as “Copy”) of your RFP response; k. Two (2) separate electronic* copies of your RFP responses on secure thumb drives in the following formats: 1. One (1) electronic copy of your RFP shall include responses to all questions in Sections II to VIII, Appendices of this RFP, and any addenda and attachments. DO NOT PDF your response. 2. One (1) redacted electronic copy of your entire RFP response, including a letter identifying confidential information. l. RFP responses are addressed as described in Item 6. RFP Delivery below m. Exterior of the package is permanently marked identifying the submitting party’s name and address. n. Package is sealed (tape, glue etc.). o. RFP submissions may be mailed or sent via package delivery service (UPS, FedEx, courier). In all cases, the Bureau of Purchase and Property must receive your submission no later than the due date and time. RFP responses transmitted by facsimile or e-mail shall not be accepted or reviewed. Bidders are encouraged to confirm delivery of their submissions by calling 603-271-2201 or by emailing [email protected].
* In the event of a discrepancy between a proposal response received in paper and electronic copy, the paper copy identified as the ‘original’ shall prevail.
The State shall not be held liable for any costs incurred by the Bidder in preparing or submitting an RFP response. Any and all damage, which may occur due to shipping, is the Bidder’s responsibility.
5. PROPOSAL SUBMISSION DEADLINE
All RFP submissions must be received at the Bureau of Purchase and Property by 2 p.m. ET on December 1, 2020. Submissions received after the date and time specified will be marked as late and will not be considered. The time of receipt shall be considered when a Proposal has been officially documented by the State, in accordance with its established policies, as having been received at the location designated herein. The State accepts no responsibility for mislabeled mail or mail that is not delivered or is undeliverable for any reason.
All proposals shall remain valid from the proposal submission deadline until the contract is approved by Governor and Executive Council. A Bidder’s disclosure or distribution of proposals other than to the Department of Administrative Services, Bureau of Purchase and Property, shall be grounds for disqualification. No more than one (1) technical and financial proposal per respondent shall be submitted. Page 6 of 56
State of New Hampshire
6. RFP DELIVERY
Bidders shall submit their proposal to: State of New Hampshire C/O Ryan Aubert, Administrative Services New Hampshire Bureau of Purchase and Property 25 Capitol Street Concord, NH 03301-6312 (603) 271-0580
7. CONTRACT TERM
The State seeks to contract with a qualified Bidder commencing upon approval from the Governor and Executive Council and to coincide with the State's PBM contract procured with the help of the Bidder.
8. BIDDER CERTIFICATIONS All Bidders must be duly registered as a Bidder authorized to conduct business in the State of New Hampshire. Bidders shall comply with the certifications below at the time of submission and through the term of any contract that results from said proposal. Failure to comply shall be grounds for disqualification of proposal and/or the termination of any resultant contract.
• STATE OF NEW HAMPSHIRE VENDOR APPLICATION: Prior to bid award, Bidders must have a completed Vendor Application Package on file with the NH Bureau of Purchase and Property. See the following website for information on obtaining and filing the required forms (no fee): https://das.nh.gov/Purchasing/vendor.asp.
• NEW HAMPSHIRE SECRETARY OF STATE REGISTRATION: A bid award, in the form of a contract(s), will ONLY be awarded to a Vendor who is registered to do business AND in good standing with the State of New Hampshire. Please visit the following website to find out more about the requirements for registration with the NH Secretary of State: http://sos.nh.gov/corp_div.aspx.
QUESTIONS/ADDENDA
1. INQUIRIES This RFP may be requested in a Microsoft Word format by submitting a written request to Ryan Aubert at [email protected]. All questions regarding this RFP must be submitted to Ryan Aubert at [email protected]. All questions must be submitted in writing prior to the Bidder Inquiries and/or Requests for Clarification deadline of November 12, 2020 at 3:00 PM ET. Inquiries received after the deadline shall not be considered properly submitted and may not be considered. To the extent that a Bidder believes that exceptions to the standard form contract (P-37), Section III - Required Services and Contractual Terms and Conditions, or the other sections or appendices including the Business Associate Agreement, will be necessary for the Bidder to enter into the Agreement, the Bidder should note those during the inquiry period. Please note any requested exceptions as inquiries in a separate document and not as edits to the P-37 itself. The State will review requested exceptions and accept, reject or note that it is open to negotiation of the proposed exception at its sole discretion. If the State accepts a Bidder’s exception, the State will,
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State of New Hampshire at the conclusion of the inquiry period, provide notice to all potential bidders of the exceptions that have been accepted and indicate that exception is available to all potential Bidders. The questions will be consolidated and/or paraphrased and responded to via a written addendum, or addenda that will be posted online on or before November 17, 2020. References in the P-37 to Exhibits A, B and C are references to the required structure of any resulting contract (Exhibit A – Special Provisions/Amendments to the P-37, Exhibit B – Scope of Services, and Exhibit C – Payment Terms) and are not references to sections of this RFP. Any exceptions to the standard form contract P-37 that are not raised during the bidder inquiry period are waived. In no event is a Bidder to submit its own standard contract terms and conditions as a replacement for the State’s terms in response to this solicitation. The Bidder must include complete contact information including the Bidder’s name, telephone number, and e-mail address. The State shall attempt to provide any assistance or additional information of a reasonable nature that might be required by interested Bidders. RFP inquiries must be submitted by an individual authorized to commit the organization to provide the services necessary to meet the requirements of this RFP.
2. ADDENDA
In the event it becomes necessary to add to or revise any part of this RFP prior to the scheduled proposal submittal deadline, DAS shall post any Addenda on the State’s vendor website. In the event of an addendum/addenda to this RFP, the State, at its sole discretion, may extend the proposal submission deadline, as it deems appropriate. Before your submission and periodically prior to the RFP closing, check the website for any addenda or other materials that may have been issued affecting the RFP. The website address is https://das.nh.gov/purchasing/vendorresources.aspx.
3. ADDITIONAL INFORMATION The State reserves the right to: • Make independent investigations in evaluating proposals; • Make a request for additional information in writing from a Bidder to assist in understanding or clarifying a proposal; • Waive minor or immaterial deviations from the RFP requirements, if determined to be in the best interest of the State; • Omit any planned evaluation step if, in the State’s view, the step is not needed; and • At its sole discretion, reject any and all proposals, or any part thereof.
LEGAL REQUIREMENTS
1. CANCELLATION The State reserves the right to cancel all or any part of this RFP at any time. Cancellation of this RFP, in whole or in part, shall not bar the State from issuing an RFP for the same services or from purchasing the same services through other means.
2. PUBLIC DISCLOSURE In general, the State is obligated to make public the information submitted in response to this RFP (including all materials submitted in connection with it, such as attachments, exhibits, addenda, and presentations), any resulting contract, and information provided during the contractual relationship. The Right-to-Know law (RSA 91-A)
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State of New Hampshire obligates the State to conduct an independent analysis of the confidentiality of the information submitted, regardless of whether it is marked confidential. In addition, the Governor and Executive Council (G&C) contract approval process more specifically requires that pricing be made public and that any contract reaching the G&C agenda for approval be posted online. i. Disclosure of Information Submitted in Response to RFP Information submitted in response to this RFP is subject to public disclosure under the Right-to-Know law after the award of a contract by G&C. At the time of receipt of Proposals, the State will post the number of responses received with no further information. Pursuant to RSA 21-G:37, the State will post the name and rank or score of each Bidder pursuant to the timeliness requirements therein. Notwithstanding the Right-to-Know law, no other information concerning the contracting process, including but not limited to information related to proposals, communications between the parties or contract negotiations, shall be available until a contract is actually awarded by G&C. A Bidder questioning the State’s identification of the selected Bidder may request that the State review its selection process pursuant to RSA 21-G:37. Such request shall be made in writing and be received by the agency within 5 business days after the rank or score is posted online. Confidential, commercial or financial information may be exempt from public disclosure under RSA 91-A:5, IV. If a Bidder believes any information submitted in response to this request for proposal should be kept confidential, you must specifically identify that information where it appears in your submission in a manner that draws attention to the designation and must mark/stamp each page of the materials that you claim must be exempt from disclosure as “CONFIDENTIAL.” Bidders must also provide a letter to the person listed as the point of contact for this RFP, identifying the specific page number and section of the information you consider to be confidential, commercial or financial and providing your rationale for each designation. Marking or designating an entire proposal, attachment or section as confidential shall neither be accepted nor honored by the State. Bidders must also provide a separate copy of the full and complete document, fully redacting those portions and shall note on the applicable page or pages that the redacted portion or portions are “confidential.” Submissions which do not conform to these instructions by failing to include a redacted copy (if necessary), by failing to include a letter specifying the rationale for each redaction, by failing to designate the redactions in the manner required by these instructions, or by including redactions which are contrary to these instructions or operative law may be rejected by the State as not conforming to the requirements of the proposal. Pricing, which includes but is not limited to, the administrative costs and other performance guarantees in your proposal or any subsequently awarded contract shall be subject to public disclosure regardless of whether it is marked as confidential. Notwithstanding a Bidder’s designations, the State is obligated by the Right-to-Know law to conduct an independent analysis of the confidentiality of the information submitted in a proposal. If a request is made to the State by any person or entity to view or receive copies of any portion of your proposal, the State shall first assess what information it is obligated to release. The State will then notify the Bidder that a request has been made, indicate what, if any, information the State has assessed is confidential and will not be released, and specify the planned release date of the remaining portions of the proposal. To halt the release of information by the State, a Bidder must obtain and provide to the State, prior to the date specified in the notice, a court order valid and enforceable in the State of New Hampshire, at its sole expense, enjoining the release of the requested information. By submitting a proposal, Bidders acknowledge and agree that: • The State may disclose any and all portions of the proposal or related materials which are not marked as confidential and/or which have not been specifically explained in the letter to the person identified as the point of contact for this RFP;
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• The State is not obligated to comply with a Bidder’s designations regarding confidentiality and must conduct an independent analysis to assess the confidentiality of the information submitted in your proposal; and • The State may, unless otherwise prohibited by court order, release the information on the date specified in the notice described above without any liability to a Bidder. ii. Electronic Posting of Resulting Contract
RSA 91-A obligates disclosure of contracts resulting from responses to RFPs. As such, the Secretary of State provides to the public any document submitted to G&C for approval, and posts those documents, including the contract, on its website. Further, RSA 9-F:1 requires that contracts stemming from RFPs be posted online. By submitting a proposal, you acknowledge and agree that, in accordance with the above mentioned statutes and policies, (and regardless of whether any specific request is made to view any document relating to this RFP), any contract resulting from this RFP that is submitted to G&C for approval will be made accessible to the public online via the State’s website.
3. RIGHT TO CONSIDER AVAILABLE INFORMATION
The State reserves the right to consider available information regarding the Bidder, whether gained from the Bidder’s proposal or any other source during the evaluation process. This may include, but is not limited to, information from the New Hampshire Department of Insurance, as well as any other state or federal regulatory entity.
4. ETHICAL REQUIREMENTS
From the time this RFP is published until a contract is awarded, no Bidder shall offer or give, directly or indirectly, any gift, expense reimbursement, or honorarium, as defined by RSA 15-B, to any elected official, public official, public employee, constitutional official, or family member of any such official or employee who will or has selected, evaluated, or awarded an RFP, or similar submission. Any Bidder that violates RSA 21-G:38 shall be subject to prosecution for an offense under RSA 640:2. Any Bidder who has been convicted of an offense based on conduct in violation of this section, which has not been annulled, or who is subject to a pending criminal charge for such an offense, shall be disqualified from bidding on the RFP, or similar request for submission and every such Bidder shall be disqualified from bidding on any RFP or similar request for submission issued by any state agency.
5. RESTRICTION OF CONTACT WITH STATE EMPLOYEES From the release date of this RFP, all contact with personnel employed by or under contract with the State related to this RFP, except the point of contact specifically mentioned in this Section II, Item 3 of this RFP, is prohibited. Improper contact is grounds for rejection of the proposal.
EVALUATION PROCESS
Segal, as the State’s Health Benefit Plan Consultant, will assist in the evaluation of each Bidder’s responses including completeness and responsiveness to the RFP. The State’s designated evaluation team will review and score Bidder responses and select the highest-ranking proposal. All proposals will be evaluated in accordance with the State procedures set forth in Steps #1 through #4 below.
Proposers are advised that this is not a low bid award and that the scoring of the financial section will be combined with the scoring of the non-financial section to determine the overall highest scoring Bidder. Scoring of the non- financial section will be calculated using a consensus score. Page 10 of 56
State of New Hampshire
1. STEP #1: MINIMUM QUALIFICATIONS
The State will review each proposal to determine compliance with Minimum Qualifications as outlined in Section III. The State retains complete authority and discretion to determine whether a Bidder meets the Minimum Qualifications. Any Bidder who fails to demonstrate that it meets all of the Minimum Qualifications shall be deemed non-compliant and eliminated from further consideration for this contract. By submitting a response to this RFP, Bidders are confirming their belief that they meet the Minimum Qualifications.
2. STEP #2: FINANCIAL SCORING (50 TOTAL POINTS)
The Financial section (Section V) will be scored based on each Bidder’s total projected costs (TPC) as determined by the State for resulting contract. The TPC is determined by adding together the proposed costs for the PBM reverse auction, three years of invoice reviews, and a market check. The lowest TPC cost proposal will receive 100% of the 50 points allocated for the Financial Score. All other financial proposals will be scored on a sliding scale where the Bidder’s score will be reduced by 1 point for every percentage point its cost is higher than the lowest cost proposal. Scores will be adjusted for partial percentage differences.
The following table illustrates how the financial score will be calculated from the 50 points available:
Example, where: Lowest Bid TPC = $1,000 and Formula Bidder TPC = $1,025 A Cost Difference = (Bidder’s TPC / Lowest Bid TPC) – 1 ($1,025 / $1,000) – 1 = 0.025 Convert Decimal to B = A x 100 0.025 x 100 = 2.5 Percent Value 1 Point Reduction per C = 1 x B 1 x 2.5 = 2.5 Percentage Higher D Bidder’s Financial = 50 – C 50 – 2.5 = 47.5 Score
3. STEP #3: TECHNICAL SCORING (50 TOTAL POINTS)
Each compliant Proposal will be evaluated based on the bidder responses provided in the following sections:
• Section VI Questionnaire (45 Points) o Company Information, Experience and Stability (9 Points) o Reverse Auction Process/Capabilities (13 Points) o Claims Review Capabilities (13 Points) o Account Management (5 Points) o Implementation Program / Transition (5 Points)
• Section VII Performance Guarantees (5 Points)
4. STEP #4: CONTRACT AWARD The State may award a contract to the Bidder submitting the highest scoring proposal. Formal and final selection of the Bidder, however, is contingent upon the successful negotiation and the proper execution of all contract documents (acceptable to the State) and the approval of the Governor and Executive Council. If the State is
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State of New Hampshire unable to reach agreement with the highest scored Bidder, the State may, at its sole discretion and at any time and without liability to the Bidder, immediately terminate such contract discussions with the Bidder and undertake discussion with the Bidder submitting the next highest ranked proposal, and so on.
DEFINITIONS
PBM reverse auction means an automated, transparent, and dynamically competitive bidding process conducted online that starts with an opening round of bids and allows qualified PBM bidders to counter-offer a lower price for as many rounds of bidding as determined by the Department of Administrative Services. Real-time means within no more than 12 hours. Pharmacy benefits manager or PBM means a person, business, or other entity, including a wholly or partially owned or controlled subsidiary of a pharmacy benefits manager, that, pursuant to a contract with the health carrier or self-funded health benefit plan, manages the prescription drug coverage provided by the health carrier or self-funded health benefit plan, including, but not limited to, providing claims processing services for prescription drugs, performing drug utilization review, processing drug prior authorization requests, adjudication of grievances or appeals related to prescription drug coverage, contracting with network pharmacies, and controlling the cost of covered prescription drugs.
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State of New Hampshire
SECTION III: REQUIRED SERVICES AND CONTRACT TERMS AND CONDITIONS
MINIMUM QUALIFICATIONS: 1. Bidder’s shall provide technical assistance with regard to the following: a. Evaluating the qualifications of PBM Bidders; b. Conducting online-automated reverse auction services to support DAS and/or its authorized representative(s) in comparing the pricing for the PBM procurement; and c. Providing related professional services. 2. Bidder’s proposed technology platform must have the capacity to perform the following for the PBM reverse auction: a. Conduct an automated, online, PBM reverse auction; b. Automate repricing of diverse and complex PBM prescription drug pricing proposals to enable "apples- to-apples" comparisons of the price of PBM bids utilizing 100 percent of annual prescription drug claims data available for state-funded health plans and using code-based classification of drugs from nationally accepted drug sources; c. Produce an automated report and analysis of PBM bids, including the ranking of PBM bids based on the comparative costs and qualitative aspects thereof within a 48-hour time period following the close of each round of reverse auction bidding; and d. Perform real-time, electronic, line-by-line, claim-by-claim review of 100 percent of invoiced PBM prescription drug claims, and identify all deviations from specific terms of the PBM services contract resulting from the reverse auction process. 3. Bidder’s proposed technology platform used to conduct the PBM reverse auction must have the ability to be repurposed over the duration of the PBM services contract as an automated pharmacy claims adjudication engine to perform real-time, electronic, line-by-line, claim-by-claim review of 100 percent of invoiced PBM prescription drug claims, and identify all deviations from the specific terms of PBM services contracts. 4. Bidder shall not outsource any part of the PBM reverse auction or the automated, real-time, electronic, line- by-line, claim-by-claim review of invoiced PBM prescription drug claims. 5. The Bidder shall not be any of the following: a PBM; a subsidiary or affiliate of a PBM; a company that is managed by a PBM or receives remuneration from a PBM for aggregating clients into a contractual relationship with a PBM.
REQUIRED CONTRACT TERMS AND CONDITIONS 1. The form contract P-37 (attached hereto as Appendix B) shall form the basis for any resulting contract. The successful Bidder and the State, following notification of award, shall promptly execute the P-37 contract, incorporating the service requirements of this RFP, price conditions established by the Bidder’s offer, and any other reasonable administrative practices and services.
2. The form contract Business Associate Agreement (attached hereto as Appendix C), is required to comply with the Health Insurance Portability and Accountability Act, Public Law 104-191 and with the Standards for Privacy and Security of Individually Identifiable Health Information, 45 CFR Parts 160 and 164 and those parts of the
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HITECH Act applicable to business associates, and shall be promptly executed by the successful Bidder and State, following notification of contract award.
3. In addition to the Business Associate Agreement, the Contractor shall be required to comply with the Required Protection of Confidential Information and Data Security (attached hereto as Appendix D).
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State of New Hampshire
SECTION IV: SCOPE OF SERVICES
The Selected Bidder is expected to provide the following support and services:
ACCOUNT MANAGEMENT
The Contractor shall provide a dedicated implementation team for the State.
The Contractor shall provide the complete contact information for a dedicated account management team including a senior IT/Systems consultant for the State.
The Contractor shall attend regularly scheduled meetings to discuss ongoing findings, performance and any concerns the State may have. Meetings will be set with the State in advance.
The Contractor must self-report on each of the Performance Guarantee measurement as defined in the Quarterly Plan Performance Measurement Report Card to the State on a calendar quarter basis, in the format requested. This report shall be in the form and format approved by the State
PBM REVERSE AUCTION
Reverse Auction Implementation Schedule The Contractor shall begin implementation activities upon Governor and Executive Council contract approval. Following is an example of high-level milestones. The State and Contractor will agree on a final timeline and project plan.
DATE (approximate) ACTIVITY Within 10 Business Days after the Kick-off meeting with State to begin project planning and to approval of contract award schedule weekly status meetings.
Within 5 Business Days after the Implementation draft provided to the State for approval. kick-off meeting
Within 15 Business Days after the Provide templates, dashboards, draft PBA, and any other criteria kick-off meeting needed for system functionality to State for approval.
Within 60 Calendar Days after the Confirmation of PBM reverse auction tool readiness. kick-off meeting
Within 90 Calendar Days after the Fully prepared to host the State’s PBM reverse auction. kick-off meeting
The PBM reverse auction planning shall take place February to March 2021. The PBM reverse auction RFP process and subsequent contract development shall take place April to July 2021. The resulting PBM Contract will become effective January 1, 2022.
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Reverse Auction Technology Platform The Contractor shall provide a secure, online platform to host and conduct a PBM reverse auction. The platform shall have the capability to automate repricing of diverse and complex PBM prescription drug pricing proposals to enable direct comparisons of the price of bids using historical claims data from the State.
Participant Bidding Agreement The Contractor shall assist the State in producing a participant bidding agreement (PBA). All PBMs must complete a PBA in order to participate in the reverse auction.
System Access to State & Bidders
The Contractor shall provide the State and the State’s project consultants and/or authorized representatives access to the reverse auction platform in accordance with the mutually agreed upon implementation schedule in order to test system readiness and to demonstrate the process by which the State and Bidders access the system and by which information is entered and viewed.
The Contractor shall provide any software/hardware licensing requirements, to the extent required, to the State and PBM bidders at no cost. The Contractor shall provide participating PBMs access to and, if necessary, training on the reverse auction platform in accordance with the mutually agreed upon implementation schedule prior to the reverse auction start date and to ensure accessibility, functionality, identification of their financial offer relative to other bidders and to input revised financial pricing terms for each subsequent rounds of bidding. Reverse Auction Accessibility Report The Contractor shall produce a report that demonstrates accessibility to the Reverse Auction Platform for each PBM registered to participate. The report shall include, but not be limited to, name of registered PBM, date PBM registered, date instructions provided to PBM, date accessibility confirmed with PBM, and date functionality confirmed with the PBM. The Contractor shall submit the report to the State in accordance with the mutually agreed upon timeline. Reverse Auction Dashboard The Contractor shall provide an online dashboard for the State to monitor at a minimum the PBM bidders who have registered to bid, accessed the reverse auction platform, and when they have entered and finalized their bids.
PBM Financial Bid Analysis for Each Round of Bidding The Contractor shall provide a comparative financial analysis report for each round of bidding within 48 hours of the completion of the bidding round. The comparative financial analysis shall include total projected prescription drug costs for each bidding PBM; projected costs before and after guaranteed rebate amounts; dollar and percentage difference from current terms; side-by-side reporting of all proposed pricing components, and all methodologies and assumptions used to develop the financial analysis.
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Summary Report of Reverse Auction Results The Contractor shall provide a comprehensive report after the end of the reverse auction, including a comprehensive financial analysis of bids.
Training and System Support The Contractor shall provide the State, as necessary, secure access to the data platform system prior to and during the PBM reverse auction process. The Contractor shall provide the State DRAFT step-by-step instructions on how PBMs access the system and enter bid information in order to bid on the PBM contract. The draft shall be submitted to the State for approval in accordance with the mutually agreed upon implementation schedule prior to the reverse auction start date. The Contractor shall provide step-by-step instructions to PBMs bidding on the PBM contract on how to access the system and enter bid information. The Contractor shall be available to provide technical support to PBMs, as needed, prior to and throughout each round of the reverse auction bidding process to ensure timely and accurate bid submissions.
ONGOING CLAIMS INVOICE REVIEW
Implementation Schedule Following is an example of high-level milestones. The State and Contractor will agree on a final timeline and project plan.
DATE (approximate) ACTIVITY 120 Calendar Days prior to the Kick-off meeting with the State to begin project planning and to PBM contract effective date schedule weekly status meetings.
90 Calendar Days prior to the Implementation draft provided to the State for approval. PBM contract effective date
60 Calendar Days prior to the Provide sample reporting and other criteria needed for system PBM contract effective date functionality to State for approval.
30 Calendar Days prior to the Confirmation of Invoice Review readiness. PBM contract effective date
Within 12 hours of receipt of Deliver first production Invoice Review report. initial PBM claims file
Invoice Review Process The Contractor shall utilize an automated process to receive and review claims files underlying each PBM invoice and shall provide an analysis to identify any deviations from the PBM contract terms, including but not limited to discounts; dispensing fees; brand/generic categorization; coverage exclusions; adjustments; and eligibility, within 12 hours of receipt of the claims data. Page 17 of 56
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The Contractor shall provide assistance to the State with regard to resolution of any discrepancies identified as a result of the PBM invoice review. If available, the Contractor shall perform comparisons of the financial effects on the State of alternative drug- pricing metrics, such as the National Average Drug Acquisition Cost and Average Wholesale Price.
INVOICE DISCREPANCY REPORTING
The Contractor shall provide monthly PBM invoice review summary reports identifying any pricing discrepancies from each invoice from the month, including specific dollar amounts associated with any disputed claims, plus the status of prior findings. The report shall be provided not more than fifteen (15) days following each month.
The Contractor shall provide the State a standard list of reports including access, frequency of delivery and format as approved by the State. The Contractor shall provide customized or ad hoc reports as requested by the State at no additional cost.
MARKET CHECKS
If requested by the State, the Contractor shall perform a market check analysis to evaluate the PBM contract’s prescription drug pricing in comparison to benchmark pricing for comparable plans. The Contractor’s responsibilities will include the comparison of the terms, any required negotiations with the PBM, and a detailed report of any estimated savings.
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State of New Hampshire
SECTION V: FINANCIAL (50 Points)
NO Best and Final Offers: The State will not request best and final offers (BAFO). All Bidders are expected to provide their best pricing with the submission of their proposal. All Bidders shall provide proposed fees that meet the following criteria and in accordance with the fee basis indicated in the table below:
• Bidders must provide a transparent, separate price for each requested service below. Bidders shall not provide bundled pricing (i.e., combine any services into one price to subsidize the cost of any service).
• Selected Bidder will be paid directly by the State for any of the requested services described in this RFP and not by the State’s PBM.
• Selected Bidder will be prohibited from charging PBMs participating in the reverse auction and the winning PBMs any fees.
• All fees must be fully-loaded and under no circumstances will the State be liable for fees not disclosed in Bidder's proposal.
• The PBM Reverse Auction proposed pricing should be based on conducting these services for only the State Health Plan and not pricing for a multiple health plan prescription drug purchasing group.
Proposed Fees
Requested Service Fee Basis Proposed Fee PBM Reverse Auction Flat Fee
Invoice Reviews - invoices from Year 1 of the PBM contract Per Paid Claim*
Invoice Reviews - invoices from Year 2 of the PBM contract Per Paid Claim*
Invoice Reviews - invoices from Year 3 of the PBM contract Per Paid Claim*
Market Check – during Year 2 of the PBM contract Flat Fee
* Paid Claim is defined as a prescription for a covered drug for an eligible member that results in a payment from the State and/or the member, excluding adjustments and net of reversals. As indicated in Section II.D. Step #2, the financial score will be based on each Bidder’s total projected costs (TPC). TPC will be determined as follows (The Projected Number of Claims will be determined by the State at the later time during the evaluation process):
Year 1 Year 2 Year 3 Projected Projected Projected Number of Number of Number of PBM Reverse Claims Claims Claims Market Check TPC = Auction + + + + Flat Fee Flat Fee X X X Per Paid Per Paid Per Paid Claim Fee Claim Fee Claim Fee
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State of New Hampshire
SECTION VI: QUESTIONNAIRE (45 Points)
QUESTION BIDDER RESPONSE COMPANY INFORMATION, EXPERIENCE AND STABILITY (9 Points) 1. Complete the following table:
a. Bidder’s Legal Name
b. Parent Company, if applicable
c. Trade Name
d. Legal Address
e. Web address f. Year Established
g. Corporate Tax Status
h. Ownership/Controlling
Interest/Subsidiaries
i. Number of Reverse Auction Platform Clients as of 10/1/2020
j. Number of Current Invoice
Review Clients as of 10/1/2020
k. Provide plans for expanding
services and clients in the future
l. Provide a general overview of your organization including primary lines of business, number of locations and mission statement.
2. Provide resumes for company
leadership.
3. Provide the latest annual report, financial statement, SSAE 16 or SAS 70 type II, and other financial reports that indicate the financial position of your organization. From these documents, please provide the following:
a. Current Ratio
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QUESTION BIDDER RESPONSE b. Debt to equity ratio 4. Is your organization anticipating restructuring or reorganization in the next year? (Include any major staff relocations or office closings.)
5. Has your organization acquired, been acquired by, or merged with another organization in the past 24 months? If yes, please explain.
6. Will your organization be involved in any acquisitions or
mergers within the next 12 months? If yes, please describe.
7. Are there any outstanding legal actions pending against your organization? If yes, explain the nature and current status to the extent possible.
8. If yes to #7, can you assure the State these actions will not disrupt business operation?
9. What fidelity and surety insurance or bond coverage do you carry to protect your clients? Indicate your organization’s liability insurance limit with regard to errors, omission,
negligence, malpractice, professional liability, cybersecurity etc. as applicable. (Provide a copy of the certificate of insurance (COI) as proof of coverage.)
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QUESTION BIDDER RESPONSE 10. Do you plan to implement major changes to any of your systems (e.g., new system) in the next 12- 24 months? If yes, please
describe.
REVERSE AUCTION PROCESS/CAPABILITIES (13 Points) 11. Describe your company's experience and capabilities in hosting and conducting online
automated reverse auctions. Describe use of subcontractors, if applicable.
12. Describe your experience with Pharmacy Benefit Management (PBM) contracts and your strategy to compare proposals in a consistent way.
13. Describe the key financial requirements within a PBM agreement to ensure the comparability of one financial proposal to another.
14. Explain your approach for bidders to see what other bidders have bid while protecting proprietary/non-published bidder information and the integrity of the published information from tampering.
15. Please provide average percentage savings for each round of reverse auctions performed in
the past two years, as well as the average number of rounds conducted.
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QUESTION BIDDER RESPONSE 16. Does your reverse auction process allow for the customization of pricing methodology if there are
differences in the methodology utilized by the State? Please explain.
17. How do you ensure transparency and security throughout the reverse auction process?
18. Describe the process by which PBMs will access the reverse auction tool and input financial information during the reverse auction process.
19. Describe the process to verify and document that PBMs have accessed and correctly inputted information during each round of the reverse auction process.
20. Provide a sample presentation analysis of round-by-round PBM reverse auction reporting and final reporting on the overall auction result.
CLAIMS REVIEW CAPABILITIES (13 Points) 21. Describe your company's experience in performing PBM claims invoice reviews. Describe use of subcontractors, if applicable.
22. Provide a representative list of PBM claim adjudication errors that your firm has the ability to identity during the claims invoice review process.
23. In your firm’s experience, what are the most common PBM claim
adjudication errors identified by the review process.
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State of New Hampshire
QUESTION BIDDER RESPONSE 24. Describe those adjudication issues that can be identified on an invoice specific basis compared to those that are based on contract year requirements.
25. Describe the source and methodology your firm uses to
classify prescription drugs as brand, generic, or specialty.
26. Indicate whether your firm has independent access to average
wholesale price (AWP) information and the source used.
27. Provide the list of PBMs with which you have an established interface to receive claims data, with a brief description of how each of these PBMs transmit their data to you, and the frequency of which claims are submitted.
28. Provide standard reporting for ongoing PBM invoice review as well as other regular reporting. At a minimum, your package should include the report format for the
reports requested in the Reporting Section of the Scope of Services section of this RFP. In addition, please provide the frequency of each of your standard reports.
29. Describe how the invoice review report can be customized to meet the State’s unique requirements and any limits on report customization and confirm such customization is included in your proposed fee.
30. Indicate whether the State would have direct access to your system
or data warehouse for the purpose of running queries and/or reports.
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State of New Hampshire
QUESTION BIDDER RESPONSE
ACCOUNT MANAGEMENT (5 Points) 31. Provide the Name and Title of the person with overall responsibility for planning, supervising and
implementing the PBM reverse auction platform. Include resume and relevant experience.
What other duties, if any, will this person have during implementation? Please include the number of other accounts for which this person will be responsible during the same time period.
What percentage of this person's time will be devoted to the State during the implementation process?
32. Provide the Name and Title of the person with overall responsibility for planning, supervising and implementing the Ongoing Invoice Review. Include resume and relevant experience.
Please include the number of other accounts for which this person will be responsible during the same time period.
What percentage of this person's time will be devoted to the State?
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State of New Hampshire
QUESTION BIDDER RESPONSE 33. Please provide an organizational chart identifying the names, functions and reporting relationships of key people directly responsible for implementing the State account. Include resumes for all these individuals.
IMPLEMENTATION PROGRAM / TRANSITION (5 Points)
34. Provide a detailed implementation plan that clearly demonstrates the Bidder's ability to meet the State's requirements in Sections III and IV. This implementation plan should include a list of specific implementation tasks/transition protocols and a time-table for initiation and completion of such tasks, beginning with the contract award and continuing through the effective date of operation.
The implementation plan should be specific about requirements for information transfer as well as any services or assistance required from the State during implementation. The implementation plan should also specifically identify those individuals, by area of expertise, responsible for key implementation activities and clearly identify their roles.
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State of New Hampshire
SECTION VII: PERFORMANCE GUARANTEES (5 Points)
The State of New Hampshire and the selected Bidder (Contractor) will enter into a performance agreement with the standards and guarantees/penalties outlined below at risk each year, or as frequently as indicated, for the duration of the contract based on actual performance. The following describes the minimum performance guarantees that the State will include in the contract with their selected Bidder. The Bidder will self-report results and the State may utilize its partners and internal staff to validate reported baseline and results for these outcomes. Bidder agrees to the State's right to independently audit and confirm all results. All measurements and standards are specific to the State's services, and not to be based on the Bidder's performance for its book of business, or any other group that includes non-State members. Bidder will report results on all performance measurements quarterly per the requirements of the Report Card. Performance results may be audited annually by the State's contract auditor. The quarterly Report Cards will include, but are not limited to, performance guarantee descriptions, performance goals, actual performance measurement, variance details of each non-compliant component and detailed supporting documentation for each Performance Guarantee (“Report Cards”). Report cards shall be submitted to the State within seventy-five (75) calendar days following the end of the preceding quarter. Bidders are encouraged to place a material amount at risk per performance guarantee; a bidder’s willingness to offer meaningful guarantees will be reflected in their score.
Provide the total amount per contract year at risk for performance guarantees.
Total Penalty/ Performance Guarantee Amount at Risk
Indicate the Total Implementation Performance Guarantees Implementation $______Amount you are proposing to the State.
Indicate the Total Ongoing Annual Performance Guarantees Ongoing (annual) $______Amount you are proposing to the State.
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State of New Hampshire
Provide the amount at risk for each performance guarantee.
Reporting Measurement Indicate Penalty Service/Task Target (subject to audit by State Amount Per Guarantee and/or contract auditors)
IMPLEMENTATION 1. Reverse Auction Reverse Auction One time measurement, $ ______Implementation Implementation completed after the completion of the Payment due within 30 within time requirements Reverse Auction, by State calendar days of noted in the agreed upon using performance to notification from the Implementation Schedule as complete evaluation. State. determined by the State.
2. Ongoing Invoice Ongoing Invoice Review One time measurement, $ ______Review Implementation completed after the first quarter of the Payment due within 30 Implementation within time requirements initial plan year, by State calendar days of noted in the agreed upon using performance to notification from the Implementation Schedule, as complete evaluation. State. determined by the State.
REVERSE AUCTION 3. System Reverse auction tool system Supporting data to be $ ______per percentage Downtime downtime less than 1% submitted by Contractor. point over 1% during Reverse Auction process.
4. Delivery of Delivery to the State, an One time measurement for $ ______for each round. Reverse Auction automated report and each round. Round Reports analysis of bids, including the ranking of bids based on the comparative costs and qualitative aspects of the costs within forty-eight (48) hours of each round of reverse auction bidding (demo reports provided to State in advance for approval).
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State of New Hampshire
Reporting Measurement Indicate Penalty Service/Task Target (subject to audit by State Amount Per Guarantee and/or contract auditors) 5. Delivery of Delivery to the State, a One time measurement $ ______for missed Reverse Auction comprehensive report after deadline. Overall the end of the reverse Reporting auction, including a comprehensive financial analysis of bids, within five (5) Business Days after the reverse auction end date (demo reports provided to State in advance for approval).
ACCOUNT MANAGEMENT 6. Delivery of Delivery to the State by 5:00 Date-stamp of receipt by $ ______for each week, Quarterly Plan pm on the following dates: the State. or fraction thereof that Performance the Report Card is not
Measurement First Quarter received. (Jan – Mar) Report Card to Frequency of report: Due: June 15th the State Quarterly Second Quarter (Apr – Jun) Due: September 15th Third Quarter (Jul – Sep) Due: December 15th Fourth Quarter (Oct – Dec) Due: March 15th
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State of New Hampshire
Reporting Measurement Indicate Penalty Service/Task Target (subject to audit by State Amount Per Guarantee and/or contract auditors) 7. Account Contractor representatives Report Card – Contractor to $ ______for each Management will return all messages maintain log for submission delayed response. received from the State (i.e.: with Report.
voice mail, e-mail or other
communication method) promptly. Messages sent before 12 Noon will be replied to the same day. Messages received after 12 Frequency of report: Noon will be replied to by Quarterly 12 noon of the following business day.
CLAIMS REVIEW 8. Invoice Claim PBM invoice review Report Card and supporting $ ______for each missed Review summary report identifying documentation to be deadline. Frequency and claim adjudication errors and submitted by the Timing discrepancies from the most Contractor. recent invoice, including Frequency of report: Per specific dollar amounts Invoice associated with any disputed claims. The report shall be provided not more than twelve (12) hours following receipt of PBM invoice.
9. Monthly Claim PBM invoice monthly Report Card and supporting $ ______for each missed Review review summary report documentation to be deadline. Frequency and identifying claim submitted by the Timing adjudication errors and Contractor. discrepancies from each Frequency of report: invoice during the month, Monthly including specific dollar amounts associated with any disputed claims, plus the status of prior findings. The report shall be provided not more than fifteen (15) calendar days following the last calendar date of the month.
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State of New Hampshire
Reporting Measurement Indicate Penalty Service/Task Target (subject to audit by State Amount Per Guarantee and/or contract auditors) 10. Invoice Claim Perform 100% of claims Report Card and supporting $ ______for each report Review reviews, reviewed line-by- documentation to be that does not meet the line, submitted by the standard. Contractor. Frequency of report: Per Invoice
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State of New Hampshire
SECTION VIII: CLIENT REFERENCES
Provide the name of your three (3) largest public sector (states, municipalities, etc.) clients for which you provide comparable services as requested in this RFP. For these three clients, provide:
• Key contact’s name, including phone number and email address • Address • Number of members • A summary of the services provided by the Contractor to the client
The State may check references at its discretion. Scoring shall not be applied to Client References; however, the State may use references to refine and finalize scores.
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State of New Hampshire
APPENDICES:
APPENDIX A STATE OF NH TRANSMITTAL LETTER
APPENDIX B P-37 FORM CONTRACT
APPENDIX C BUSINESS ASSOCIATE AGREEMENT
APPENDIX D REQUIRED PROTECTION OF CONFIDENTIAL INFORMATION AND DATA SECURITY
APPENDIX E RSA 21-I:96-98
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State of New Hampshire
APPENDIX A: STATE OF NH TRANSMITTAL LETTER STATE OF NEW HAMPSHIRE REQUEST FOR PROPOSAL TRANSMITTAL LETTER
Date: ______Company Name: ______Address: ______
______To: Point of Contact: Ryan Aubert Telephone: 603-271-0580
RE: Proposal Invitation Name: PBM Technology Platform Services RFP Number: 2387-21 RFP Posted Date (on or by): October 30, 2020 RFP Opening Date and Time:
Company Name: ______hereby submits an offer as contained in the written proposal submitted herewith to the State of New Hampshire in response to RFP#2387-21 for PBM Technology Platform Services in complete accordance with all conditions of this RFP and all Specifications set forth in the RFP and in the State of New Hampshire Terms and Conditions outlined in Form Number P-37 State of New Hampshire General Provisions.
Company Signor: ______is authorized to legally obligate Company Name: ______.
Bidder attests to the fact that:
The company has Reviewed and agreed to be bound by all RFP terms and conditions including but not limited to Form Number P-37 State of New Hampshire General Provisions, which shall form the basis of any Contract resulting from this RFP; No new terms and conditions have been added and no existing terms and conditions have been deleted in this RFP Proposal that were not addressed during the Inquiry Period.
The proposal is effective until any resulting contract is approved by the Governor and Executive Council from the RFP submission deadline of December 1, 2020. The prices quoted in the Proposal were established without collusion with other eligible Bidders and without effort to preclude the State of New Hampshire from obtaining the best possible competitive price; and he Bidder has read and included a copy of RFP#2387-21 and any subsequent signed Addendum.
Our official point of contact is: ______Title: ______Telephone: (___) ___-______Email: ______Authorized Signature Printed: ______Authorized Signature: ______
Further, in accordance with RSA 21-I:11-c, the undersigned Bidder certifies that neither the Bidder nor any of its subsidiaries, affiliates or principal officers (principal officers refers to individuals with management responsibility for the entity or association): a. Has, within the past 2 years, been convicted of, or pleaded guilty to, a violation of RSA 356:2, RSA 356:4, or any state or federal law or county or municipal ordinance prohibiting specified bidding practices, or involving antitrust violations, which has not been annulled; b. Has been prohibited, either permanently or temporarily, from participating in any public works project pursuant to RSA 638:20; c. Has previously provided false, deceptive, or fraudulent information on a Bidder code number application form, or any other document submitted to the state of New Hampshire, which information was not corrected as of the time of the filing a bid, proposal, or quotation; d. Is currently debarred from performing work on any project of the federal government or the government of any state; e. Has, within the past 2 years, failed to cure a default on any contract with the federal government or the government of any state; f. Is presently subject to any order of the department of labor, the department of employment security, or any other state department, agency, board, or commission, finding that the applicant is not in compliance with the requirements of the laws or rules that the department, agency, board, or commission is charged with implementing; g. Is presently subject to any sanction or penalty finally issued by the department of labor, the department of employment security, or any other state department, agency, board, or commission, which sanction or penalty has not been fully discharged or fulfilled; h. Is currently serving a sentence or is subject to a continuing or unfulfilled penalty for any crime or violation noted in this section; i. Has failed or neglected to advise the division of any conviction, plea of guilty, or finding relative to any crime or violation noted in this section, or of any debarment, within 30 days of such conviction, plea, finding, or debarment; or Page 34 of 56
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j. Has been placed on the debarred parties list described in RSA 21-I:11-c within the past year.
This document shall be signed by a person who is authorized to legally obligate the responding Bidder. A signature on this document indicates that all State of New Hampshire terms and conditions are accepted by the responding Bidder and that any and all other terms and conditions submitted by the responding Bidder are null and void, even if such terms and conditions have terminology to the contrary.
Authorized Signor’s Signature ______Authorized Signor’s Title ______
NOTARY PUBLIC/JUSTICE OF THE PEACE
COUNTY: ______STATE: ______ZIP: ______
On the _____ day of ______, 2020 personally appeared before me, the above named ______, in his/her capacity as authorized representative of ______, known to me or satisfactorily proven, and took oath that the foregoing is true and accurate to the best of his/her knowledge and belief.
In witness thereof, I hereunto set my hand and official seal.
______(Notary Public/Justice of the Peace)
My commission expires: ______(Date)
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State of New Hampshire
APPENDIX B: FORM P-37 (VERSION 12/11/2019)
Subject: SAMPLE FORM - TO BE COMPLETED BY SELECTED BIDDER
Notice: This agreement and all of its attachments shall become public upon submission to Governor and Executive Council for approval. Any information that is private, confidential or proprietary must be clearly identified to the agency and agreed to in writing prior to signing the contract.
AGREEMENT The State of New Hampshire and the Contractor hereby mutually agree as follows: GENERAL PROVISIONS 1. IDENTIFICATION. 1.1 State Agency Name 1.2 State Agency Address
1.3 Contractor Name 1.4 Contractor Address
1.5 Contractor Phone 1.6 Account Number 1.7 Completion Date 1.8 Price Limitation Number
1.9 Contracting Officer for State Agency 1.10 State Agency Telephone Number
1.11 Contractor Signature 1.12 Name and Title of Contractor Signatory Date:
1.13 State Agency Signature 1.14 Name and Title of State Agency Signatory Date:
1.15 Approval by the N.H. Department of Administration, Division of Personnel (if applicable)
By: Director, On:
1.16 Approval by the Attorney General (Form, Substance and Execution) (if applicable)
By: On:
1.17 Approval by the Governor and Executive Council (if applicable)
G&C Item number: G&C Meeting Date:
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State of New Hampshire
account or source to the Account identified in block 2. SERVICES TO BE PERFORMED. The State 1.6 in the event funds in that Account are reduced or of New Hampshire, acting through the agency unavailable. identified in block 1.1 (“State”), engages contractor identified in block 1.3 (“Contractor”) to perform, and 5. CONTRACT PRICE/PRICE LIMITATION/ the Contractor shall perform, the work or sale of PAYMENT. goods, or both, identified and more particularly 5.1 The contract price, method of payment, and terms of payment are identified and more particularly described in the attached EXHIBIT B which is described in EXHIBIT C which is incorporated herein incorporated herein by reference (“Services”). by reference. 3. EFFECTIVE DATE/COMPLETION OF 5.2 The payment by the State of the contract price shall SERVICES. be the only and the complete reimbursement to the 3.1 Notwithstanding any provision of this Agreement Contractor for all expenses, of whatever nature to the contrary, and subject to the approval of the incurred by the Contractor in the performance hereof, Governor and Executive Council of the State of New and shall be the only and the complete compensation Hampshire, if applicable, this Agreement, and all to the Contractor for the Services. The State shall have obligations of the parties hereunder, shall become no liability to the Contractor other than the contract effective on the date the Governor and Executive price. Council approve this Agreement as indicated in block 5.3 The State reserves the right to offset from any 1.17, unless no such approval is required, in which amounts otherwise payable to the Contractor under case the Agreement shall become effective on the date this Agreement those liquidated amounts required or the Agreement is signed by the State Agency as shown permitted by N.H. RSA 80:7 through RSA 80:7-c or in block 1.13 (“Effective Date”). any other provision of law. 3.2 If the Contractor commences the Services prior to 5.4 Notwithstanding any provision in this Agreement the Effective Date, all Services performed by the to the contrary, and notwithstanding unexpected Contractor prior to the Effective Date shall be circumstances, in no event shall the total of all performed at the sole risk of the Contractor, and in the payments authorized, or actually made hereunder, event that this Agreement does not become effective, exceed the Price Limitation set forth in block 1.8. the State shall have no liability to the Contractor, including without limitation, any obligation to pay the 6. COMPLIANCE BY CONTRACTOR WITH Contractor for any costs incurred or Services LAWS AND REGULATIONS/ EQUAL performed. Contractor must complete all Services by EMPLOYMENT OPPORTUNITY. the Completion Date specified in block 1.7. 6.1 In connection with the performance of the Services, the Contractor shall comply with all 4. CONDITIONAL NATURE OF AGREEMENT. applicable statutes, laws, regulations, and orders of Notwithstanding any provision of this Agreement to federal, state, county or municipal authorities which the contrary, all obligations of the State hereunder, impose any obligation or duty upon the Contractor, including, without limitation, the continuance of including, but not limited to, civil rights and equal payments hereunder, are contingent upon the employment opportunity laws. In addition, if this availability and continued appropriation of funds Agreement is funded in any part by monies of the affected by any state or federal legislative or executive United States, the Contractor shall comply with all action that reduces, eliminates or otherwise modifies federal executive orders, rules, regulations and the appropriation or availability of funding for this statutes, and with any rules, regulations and guidelines Agreement and the Scope for Services provided in as the State or the United States issue to implement EXHIBIT B, in whole or in part. In no event shall the these regulations. The Contractor shall also comply State be liable for any payments hereunder in excess with all applicable intellectual property laws. of such available appropriated funds. In the event of a 6.2 During the term of this Agreement, the Contractor reduction or termination of appropriated funds, the shall not discriminate against employees or applicants State shall have the right to withhold payment until for employment because of race, color, religion, creed, such funds become available, if ever, and shall have age, sex, handicap, sexual orientation, or national the right to reduce or terminate the Services under this origin and will take affirmative action to prevent such Agreement immediately upon giving the Contractor discrimination. notice of such reduction or termination. The State 6.3. The Contractor agrees to permit the State or shall not be required to transfer funds from any other United States access to any of the Contractor’s books, 37
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records and accounts for the purpose of ascertaining determines that the Contractor has cured the Event of compliance with all rules, regulations and orders, and Default shall never be paid to the Contractor; the covenants, terms and conditions of this Agreement. 8.2.3 give the Contractor a written notice specifying the Event of Default and set off against any other 7. PERSONNEL. obligations the State may owe to the Contractor any 7.1 The Contractor shall at its own expense provide all damages the State suffers by reason of any Event of personnel necessary to perform the Services. The Default; and/or Contractor warrants that all personnel engaged in the 8.2.4 give the Contractor a written notice specifying Services shall be qualified to perform the Services, and the Event of Default, treat the Agreement as breached, shall be properly licensed and otherwise authorized to terminate the Agreement and pursue any of its do so under all applicable laws. remedies at law or in equity, or both. 7.2 Unless otherwise authorized in writing, during the 8.3. No failure by the State to enforce any provisions term of this Agreement, and for a period of six (6) hereof after any Event of Default shall be deemed a months after the Completion Date in block 1.7, the waiver of its rights with regard to that Event of Contractor shall not hire, and shall not permit any Default, or any subsequent Event of Default. No subcontractor or other person, firm or corporation with express failure to enforce any Event of Default shall whom it is engaged in a combined effort to perform be deemed a waiver of the right of the State to enforce the Services to hire, any person who is a State each and all of the provisions hereof upon any further employee or official, who is materially involved in the or other Event of Default on the part of the Contractor. procurement, administration or performance of this Agreement. This provision shall survive termination 9. TERMINATION. of this Agreement. 9.1 Notwithstanding paragraph 8, the State may, at its 7.3 The Contracting Officer specified in block 1.9, or sole discretion, terminate the Agreement for any his or her successor, shall be the State’s representative. reason, in whole or in part, by thirty (30) days written In the event of any dispute concerning the notice to the Contractor that the State is exercising its interpretation of this Agreement, the Contracting option to terminate the Agreement. Officer’s decision shall be final for the State. 9.2 In the event of an early termination of this Agreement for any reason other than the completion of 8. EVENT OF DEFAULT/REMEDIES. the Services, the Contractor shall, at the State’s 8.1 Any one or more of the following acts or omissions discretion, deliver to the Contracting Officer, not later of the Contractor shall constitute an event of default than fifteen (15) days after the date of termination, a hereunder (“Event of Default”): report (“Termination Report”) describing in detail all 8.1.1 failure to perform the Services satisfactorily or Services performed, and the contract price earned, to on schedule; and including the date of termination. The form, 8.1.2 failure to submit any report required hereunder; subject matter, content, and number of copies of the and/or Termination Report shall be identical to those of any 8.1.3 failure to perform any other covenant, term or Final Report described in the attached EXHIBIT B. In condition of this Agreement. addition, at the State’s discretion, the Contractor shall, 8.2 Upon the occurrence of any Event of Default, the within 15 days of notice of early termination, develop State may take any one, or more, or all, of the and submit to the State a Transition Plan for services following actions: under the Agreement. 8.2.1 give the Contractor a written notice specifying the Event of Default and requiring it to be remedied 10. DATA/ACCESS/CONFIDENTIALITY/ within, in the absence of a greater or lesser PRESERVATION. specification of time, thirty (30) days from the date of 10.1 As used in this Agreement, the word “data” shall the notice; and if the Event of Default is not timely mean all information and things developed or cured, terminate this Agreement, effective two (2) obtained during the performance of, or acquired or days after giving the Contractor notice of termination; developed by reason of, this Agreement, including, 8.2.2 give the Contractor a written notice specifying but not limited to, all studies, reports, files, formulae, the Event of Default and suspending all payments to surveys, maps, charts, sound recordings, video be made under this Agreement and ordering that the recordings, pictorial reproductions, drawings, portion of the contract price which would otherwise analyses, graphic representations, computer accrue to the Contractor during the period from the programs, computer printouts, notes, letters, date of such notice until such time as the State 38
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memoranda, papers, and documents, all whether which arise out of (or which may be claimed to arise finished or unfinished. out of) the acts or omission of the Contractor, or 10.2 All data and any property which has been subcontractors, including but not limited to the received from the State or purchased with funds negligence, reckless or intentional conduct. The State provided for that purpose under this Agreement, shall shall not be liable for any costs incurred by the be the property of the State, and shall be returned to Contractor arising under this paragraph 13. the State upon demand or upon termination of this Notwithstanding the foregoing, nothing herein Agreement for any reason. contained shall be deemed to constitute a waiver of the 10.3 Confidentiality of data shall be governed by sovereign immunity of the State, which immunity is N.H. RSA chapter 91-A or other existing law. hereby reserved to the State. This covenant in Disclosure of data requires prior written approval of paragraph 13 shall survive the termination of this the State. Agreement.
11. CONTRACTOR’S RELATION TO THE 14. INSURANCE. STATE. In the performance of this Agreement the 14.1 The Contractor shall, at its sole expense, obtain Contractor is in all respects an independent contractor, and continuously maintain in force, and shall require and is neither an agent nor an employee of the State. any subcontractor or assignee to obtain and maintain Neither the Contractor nor any of its officers, in force, the following insurance: employees, agents or members shall have authority to 14.1.1 commercial general liability insurance against bind the State or receive any benefits, workers’ all claims of bodily injury, death or property damage, compensation or other emoluments provided by the in amounts of not less than $1,000,000 per occurrence State to its employees. and $2,000,000 aggregate or excess; and 14.1.2 special cause of loss coverage form covering all 12. property subject to subparagraph 10.2 herein, in an ASSIGNMENT/DELEGATION/SUBCONTRAC amount not less than 80% of the whole replacement TS. value of the property. 12.1 The Contractor shall not assign, or otherwise 14.2 The policies described in subparagraph 14.1 transfer any interest in this Agreement without the herein shall be on policy forms and endorsements prior written notice, which shall be provided to the approved for use in the State of New Hampshire by the State at least fifteen (15) days prior to the assignment, N.H. Department of Insurance, and issued by insurers and a written consent of the State. For purposes of this licensed in the State of New Hampshire. paragraph, a Change of Control shall constitute 14.3 The Contractor shall furnish to the Contracting assignment. “Change of Control” means (a) merger, Officer identified in block 1.9, or his or her successor, consolidation, or a transaction or series of related a certificate(s) of insurance for all insurance required transactions in which a third party, together with its under this Agreement. Contractor shall also furnish to affiliates, becomes the direct or indirect owner of fifty the Contracting Officer identified in block 1.9, or his percent (50%) or more of the voting shares or similar or her successor, certificate(s) of insurance for all equity interests, or combined voting power of the renewal(s) of insurance required under this Agreement Contractor, or (b) the sale of all or substantially all of no later than ten (10) days prior to the expiration date the assets of the Contractor. of each insurance policy. The certificate(s) of 12.2 None of the Services shall be subcontracted by insurance and any renewals thereof shall be attached the Contractor without prior written notice and consent and are incorporated herein by reference. of the State. The State is entitled to copies of all subcontracts and assignment agreements and shall not 15. WORKERS’ COMPENSATION. be bound by any provisions contained in a subcontract 15.1 By signing this agreement, the Contractor agrees, or an assignment agreement to which it is not a party. certifies and warrants that the Contractor is in compliance with or exempt from, the requirements of 13. INDEMNIFICATION. Unless otherwise N.H. RSA chapter 281-A (“Workers’ exempted by law, the Contractor shall indemnify and Compensation”). hold harmless the State, its officers and employees, 15.2 To the extent the Contractor is subject to the from and against any and all claims, liabilities and requirements of N.H. RSA chapter 281-A, Contractor costs for any personal injury or property damages, shall maintain, and require any subcontractor or patent or copyright infringement, or other claims assignee to secure and maintain, payment of Workers’ asserted against the State, its officers or employees, Compensation in connection with activities which the 39
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person proposes to undertake pursuant to this 21. HEADINGS. The headings throughout the Agreement. The Contractor shall furnish the Agreement are for reference purposes only, and the Contracting Officer identified in block 1.9, or his or words contained therein shall in no way be held to her successor, proof of Workers’ Compensation in the explain, modify, amplify or aid in the interpretation, manner described in N.H. RSA chapter 281-A and any construction or meaning of the provisions of this applicable renewal(s) thereof, which shall be attached Agreement. and are incorporated herein by reference. The State shall not be responsible for payment of any Workers’ 22. SPECIAL PROVISIONS. Additional or Compensation premiums or for any other claim or modifying provisions set forth in the attached benefit for Contractor, or any subcontractor or EXHIBIT A are incorporated herein by reference. employee of Contractor, which might arise under applicable State of New Hampshire Workers’ 23. SEVERABILITY. In the event any of the Compensation laws in connection with the provisions of this Agreement are held by a court of performance of the Services under this Agreement. competent jurisdiction to be contrary to any state or 16. NOTICE. Any notice by a party hereto to the federal law, the remaining provisions of this other party shall be deemed to have been duly Agreement will remain in full force and effect. delivered or given at the time of mailing by certified mail, postage prepaid, in a United States Post Office 24. ENTIRE AGREEMENT. This Agreement, addressed to the parties at the addresses given in which may be executed in a number of counterparts, blocks 1.2 and 1.4, herein. each of which shall be deemed an original, constitutes the entire agreement and understanding 17. AMENDMENT. This Agreement may be between the parties, and supersedes all prior amended, waived or discharged only by an instrument agreements and understandings with respect to the in writing signed by the parties hereto and only after subject matter hereof. approval of such amendment, waiver or discharge by the Governor and Executive Council of the State of New Hampshire unless no such approval is required under the circumstances pursuant to State law, rule or policy.
18. CHOICE OF LAW AND FORUM. This Agreement shall be governed, interpreted and construed in accordance with the laws of the State of New Hampshire, and is binding upon and inures to the benefit of the parties and their respective successors and assigns. The wording used in this Agreement is the wording chosen by the parties to express their mutual intent, and no rule of construction shall be applied against or in favor of any party. Any actions arising out of this Agreement shall be brought and maintained in New Hampshire Superior Court which shall have exclusive jurisdiction thereof.
19. CONFLICTING TERMS. In the event of a conflict between the terms of this P-37 form (as modified in EXHIBIT A) and/or attachments and amendment thereof, the terms of the P-37 (as modified in EXHIBIT A) shall control.
20. THIRD PARTIES. The parties hereto do not intend to benefit any third parties and this Agreement shall not be construed to confer any such benefit.
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APPENDIX C: BUSINESS ASSOCIATE AGREEMENT
Note: Below is the State’s current Business Associate Agreement (BAA). The Selected Bidder will be required to sign the State’s BAA when executing the contract. The Contractor identified in Section 1.3 of the General Provisions of the Agreement agrees to comply with the Health Insurance Portability and Accountability Act, Public Law 104-191 and with the Standards for Privacy and Security of Individually Identifiable Health Information, 45 CFR Parts 160 and 164 and those parts of the HITECH Act applicable to business associates. As defined herein, “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this Agreement, shall mean Contractor. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the party to this Agreement shall mean the State of New Hampshire Department of Administrative Services Employee and Retiree Health Benefit Program. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
BUSINESS ASSOCIATE AGREEMENT 1. Definitions
a. The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
b. All terms not otherwise defined herein shall have the same meaning as those set forth in the HIPAA Rules.
2. Privacy and Security of Protected Health Information (PHI)
a. Permitted Uses and Disclosures
i. Business Associate shall not use, disclose, maintain or transmit PHI except as reasonably necessary to provide the services set forth in this Agreement or any agreement between the parties, or as required by law.
ii. Business Associate is authorized to use PHI to de-identify the information in accordance with 45 CFR 164.514(a)-(c). Business Associate shall de-identify the PHI in a manner consistent with HIPAA Rules. Uses and disclosures of the de- identified information shall be limited to those consistent with the provisions of this Agreement.
iii. Business Associate may use PHI as necessary to perform data aggregation services, and to create Summary Health Information and/or Limited Data Sets. Contractor shall use appropriate safeguards to prevent use or disclosure of the information other than as provided for herein, shall ensure that any agents or subcontractors to whom it provides such information agree to the same restrictions and conditions that apply to Contractor, and not identify the 41
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Summary Health Information and/or Limited Data Sets or contact the individuals other than for the management, operation and administration of the Plan.
iv. Business Associate may use and disclose PHI (a) for the management, operation and administration of the Plan, (b) for the services set forth in the Agreement, which include (but are not limited to) Treatment, Payment activities, and/or Medical Benefits Administration as these terms are defined in this Agreement and 45 C.F.R. § 164.501, and (c) as otherwise required to perform its obligations under this Agreement, or any other agreement between the parties provided that such use or disclosure would not violate the HIPAA Regulations.
v. Business Associate may disclose, in conformance with the HIPAA Rules, PHI to make disclosures of De-Identified Health Information, Limited Data Sets, and Summary Health Information. Contractor shall use appropriate safeguards to prevent use or disclosure of the information other than as provided for herein, ensure that any agents or subcontractors to whom it provides such information agree to the same restrictions and conditions that apply to Contractor, and not identify the De-Identified Health Information., Summary Health Information and/or Limited Data Sets or contact the individuals. Business Associate may also disclose, in conformance with the HIPAA Regulations, PHI to Health Care Providers for permitted purposes including health care operations.
vi. Business Associate may use PHI for the proper management and administration of the Business Associate or to carry out the legal responsibilities of Business Associate. To the extent Business Associate discloses PHI to a third party, Business Associate must obtain, prior to making any such disclosure, (a) reasonable assurances from the third party that such PHI will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the third party; and (b) an agreement from such third party to notify Business Associate of any breaches of the confidentiality of the PHI, to the extent it has obtained knowledge of such breach.
vii. To the extent practicable, Business Associate shall not, unless such disclosure is reasonably necessary to provide services outlined in the Agreement, disclose any PHI in response to a request for disclosure on the basis it is required by law without first notifying Covered Entity. In the event Covered Entity objects to the disclosure it shall seek the appropriate relief and the Business Associate shall refrain from disclosing the PHI until Covered Entity has exhausted all remedies. b. Minimum Necessary. Business Associate will, in its performance of the functions, activities, services, and operations specified above, make reasonable efforts to use, to disclose, and to request only the minimum amount of PHI reasonably necessary to accomplish the intended purpose of the use, disclosure, or request, except that Business Associate will not be obligated to comply with this minimum-necessary limitation if neither Business Associate or Covered Entity is required to limit its use, disclosure, or request to the minimum necessary under the HIPAA Rules. Business Associate and Covered Entity acknowledge that the phrase “minimum necessary” shall be interpreted in accordance with the HITECH Act and the HIPAA Rules.
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c. Prohibition on Unauthorized Use or Disclosure. Business Associate may not use or disclose PHI except (1) as permitted or required by this Agreement, or any other agreement between the parties, (2) as permitted in writing by Covered Entity, or (3) as authorized by the individual or (4) as Required by Law. This agreement does not authorize Business Associate to use or disclose Covered Entity’s PHI in a manner that would violate the HIPAA Rules if done by Covered Entity, except as permitted for Business Associate’s proper management and administration as described herein.
3. Information Safeguards
a. Privacy of Protected Health Information. Business Associate will develop, implement, maintain, and use appropriate administrative, technical, and physical safeguards to protect the privacy of PHI. The safeguards must reasonably protect PHI from any intentional or unintentional use or disclosure in violation of the Privacy Rule and limit incidental uses or disclosures made pursuant to a use or disclosure otherwise permitted by this Agreement. To the extent the parties agree that the Business Associate will carry out directly one or more of Covered Entity’s obligations under the Privacy Rule, the Business Associate will comply with the requirements of the Privacy Rule that apply to the Covered Entity in the performance of such obligations.
b. Security of Covered Entity’s Electronic Protected Health Information. Business Associate will comply with the Security Rule and will use appropriate administrative, technical and physical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of Electronic PHI that Business Associate creates, receives, maintains or transmits on Covered Entity’s behalf.
c. No Transfer of PHI Outside United States. Business Associate will not transfer PHI outside the United States without the prior written consent of the Covered Entity. In this context a “transfer” outside the United States occurs if Business Associate’s workforce members, agents, or Subcontractors physically located outside the United States are able to, store, copy or disclose PHI.
d. Subcontractors. Business Associate will require each of its Subcontractors to agree, in a written agreement with Business Associate, to comply with the provisions of the Security Rule; to appropriately safeguard PHI created, received, maintained, or transmitted on behalf of the Business Associate; and to apply the same restrictions and conditions that apply to the Business Associate with respect to such PHI.
e. Prohibition on Sale of Protected Health Information. Business Associate shall not engage in any sale (as defined in the HIPAA rules) of PHI.
f. Prohibition on Use or Disclosure of Genetic Information. Business Associate shall not use or disclose Genetic Information for underwriting purposes in violation of the HIPAA rules.
g. Penalties for Noncompliance. Business Associate acknowledges that it is subject to civil and criminal enforcement for failure to comply with the HIPAA Rules, to the extent provided with the HITECH Act and the HIPAA Rules.
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4. Compliance With Electronic Transactions Rule
a. If Business Associate conducts in whole or part electronic Transactions on behalf of Covered Entity for which HHS has established standards, Business Associate will comply, and will require any Subcontractor it involves with the conduct of such Transactions to comply, with each applicable requirement of the Electronic Transactions Rule and of any operating rules adopted by HHS with respect to Transactions.
5. Individual Rights and PHI
a. Access
i. Business Associate shall respond to an individual’s request for access to his or her PHI as part of Business Associate’s normal customer service function, if the request is communicated to Business Associate directly by the individual or the individual’s personal representative. Business Associate shall respond to the request with regard to PHI that Business Associate and/or its Subcontractors maintain in a manner and time frame consistent with requirements specified in the HIPAA Privacy Regulation.
ii. In addition, Business Associate shall assist Covered Entity in responding to requests made to Covered Entity by individuals to invoke a right of access under the HIPAA Privacy Regulation. Upon receipt of written notice (including fax and email) from Covered Entity, Business Associate shall make available to Covered Entity, or at Covered Entity’s direction to the individual (or the individual’s personal representative), any PHI about the individual created or received for or from Covered Entity in the control of Business Associate’s and/or its Subcontractors for inspection and obtaining copies so that Covered Entity may meet its access obligations under 45 CFR 164.524, and, where applicable, the HITECH Act. Business Associate shall make such information available in an electronic format where required by the HITECH Act.
b. Amendment
i. Business Associate shall respond to an individual’s request to amend his or her PHI as part of Business Associate’s normal customer service functions, if the request is communicated to Business Associate directly by the individual or the individual’s personal representative. Business Associate shall respond to the request with respect to the PHI Business Associate and its Subcontractors maintain in a manner and time frame consistent with requirements specified in the HIPAA Privacy Regulation.
ii. In addition, Business Associate shall assist Covered Entity in responding to requests made to Covered Entity to invoke a right to amend under the HIPAA Privacy Regulation. Upon receipt of written notice (including fax and email) from Covered Entity, Business Associate shall amend any portion of the PHI created or received for or from Covered Entity in the custody or control of Business Associate and/or its Subcontractors so that Covered Entity may meet its amendment obligations under 45 CFR 164.526.
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c. Disclosure Accounting
i. Business Associate shall respond to an individual’s request for an accounting of disclosures of his or her PHI as part of Business Associate’s normal customer service function, if the request is communicated to the Business Associate directly by the individual or the individual’s personal representative. Business Associate shall respond to a request with respect to the PHI Business Associate and its Subcontractors maintain in a manner and time frame consistent with requirements specified in the HIPAA Privacy Regulation.
ii. In addition, Business Associate shall assist Covered Entity in responding to requests made to Covered Entity by individuals or their personal representatives to invoke a right to an accounting of disclosures under the HIPAA Privacy Regulation by performing the following functions so that Covered Entity may meet its disclosure accounting obligation under 45 CFR 164.528:
iii. Disclosure Tracking. Business Associate shall record each disclosure that Business Associate makes of individuals’ PHI, which is not excepted from disclosure accounting under 45 CFR 164.528(a)(1).
iv. Disclosure Information. The information about each disclosure that Business Associate must record (“Disclosure Information”) is (a) the disclosure date, (b) the name and (if known) address of the person or entity to whom Business Associate made the disclosure, (c) a brief description of the PHI disclosed, and (d) a brief statement of the purpose of the disclosure or a copy of any written request for disclosure under 45 Code of Federal Regulations §164.502(a)(2)(ii) or §164.512. Disclosure Information also includes any information required to be provided by the HITECH Act.
v. Repetitive Disclosures. For repetitive disclosures of individuals’ PHI that Business Associate makes for a single purpose to the same person or entity (including to Covered Entity or Employer), Business Associate may record (a) the Disclosure Information for the first of these repetitive disclosures, (b) the frequency, periodicity or number of these repetitive disclosures, and (c) the date of the last of these repetitive disclosures.
vi. Exceptions from Disclosure Tracking. Business Associate will not be obligated to record Disclosure Information or otherwise account for disclosures of PHI if Covered Entity need not account for such disclosures under the HIPAA Rules.
vii. Disclosure Tracking Time Periods. Unless otherwise provided by the HITECH Act and/or any accompanying regulations, Business Associate shall have available for Covered Entity the Disclosure Information required by Section 3.j.iii.2 above for the six (6) years immediately preceding the date of Covered Entity’s request for the Disclosure Information. d. Confidential Communications
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i. Business Associate shall respond to an individual’s request for a confidential communication as part of Business Associate’s normal customer service function, if the request is communicated to Business Associate directly by the individual or the individual’s personal representative. Business Associate shall respond to the request with respect to the PHI Business Associate and its Subcontractors maintain in a manner and time frame consistent with requirements specified in the HIPAA Privacy Regulation. If an individual’s request, made to Business Associate, extends beyond information held by Business Associate or Business Associate’s Subcontractors, Business Associate shall refer individual to Covered Entity. Business Associate assumes no obligation to coordinate any request for a confidential communication of PHI maintained by other business associates of Covered Entity.
ii. In addition, Business Associate shall assist Covered Entity in responding to requests to it by individuals (or their personal representatives) to invoke a right of confidential communication under the HIPAA Privacy Regulation. Upon receipt of written notice (including fax and email) from Covered Entity, Business Associate will begin to send all communications of PHI directed to the individual to the identified alternate address so that Covered Entity may meet its access obligations under 45 CFR 164.524.
e. Restrictions
i. Business Associate shall respond to an individual’s request for a restriction as part of Business Associate’s normal customer service function, if the request is communicated to Business Associate directly by the individual (or the individual’s personal representative). Business Associate shall respond to the request with respect to the PHI Business Associate and its Subcontractors maintain in a manner and time frame consistent with requirements specified in the HIPAA Privacy Regulation.
ii. In addition, Business Associate shall promptly, upon receipt of notice from Covered Entity, restrict the use or disclosure of individuals’ PHI, provided the Business Associate has agreed to such a restriction. Covered Entity agrees that it will not commit Business Associate to any restriction on the use or disclosure of individuals’ PHI for treatment, payment or health care operations without Business Associate’s prior written approval.
6. Breach
a. Business Associate shall report to Covered Entity, in writing, any use or disclosure of PHI in violation of the Agreement promptly upon discovery of such incident, including any Security Incident involving PHI, ePHI, or Unsecured PHI as required by 45 CFR 164.410. Such report shall not include instances where Business Associate inadvertently misroutes PHI to a provider, as long as the disclosure is not a Breach as defined under 45 CFR §164.402. The parties acknowledge and agree that attempted but Unsuccessful Security Incidents (as defined below) that occur on a daily basis will not be reported. “Unsuccessful Security Incidents” shall include, but not be limited to, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on
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attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of PHI.
b. Business Associate shall report a Breach or a potential Breach to Covered Entity upon discovery of any such incident. Business Associate will treat a Breach or potential Breach as being discovered as of the first day on which such incident is known to Business Associate, or by exercising reasonable diligence, would have been known to Business Associate. Business Associate shall be deemed to have knowledge of a Breach or potential Breach if such incident is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the Breach, who is an employee, officer or other agent of Business Associate. If a delay is requested by a law-enforcement official in accordance with 45 CFR § 164.412, Business Associate may delay notifying Covered Entity for the applicable time period. Business Associate’s report will include at least the following, provided that absence of any information will not be cause for Business Associate to delay the report:
i. Identify the nature of the Breach, which will include a brief description of what happened, including the date of any Breach and the date of the discovery of any Breach;
ii. Identify the scope of the Breach, including the number of Covered Entity members involved as well as the number of other individuals involved;
iii. Identify the types of PHI that were involved in the Breach (such as whether full name, Social Security number, date of birth, home address, account number, diagnosis, or other information were involved);
iv. Identify who made the non-permitted use or disclosure and who received the non-permitted disclosure;
v. Identify what corrective or investigational action Business Associate took or will take to prevent further non-permitted uses or disclosures, to mitigate harmful effects, and to protect against any further Breaches;
vi. Identify what steps the individuals who were subject to a Breach should take to protect themselves;
vii. Provide such other information as Covered Entity may reasonably request. c. Security Incident. Business Associate will promptly upon discovery of such incident report to Covered Entity any Security Incident of which Business Associate becomes aware. Business Associate will treat a Security Incident as being discovered as of the first day on which such incident is known to Business Associate, or by exercising reasonable diligence, would have been known to Business Associate. Business Associate shall be deemed to have knowledge of a Security Incident if such incident is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the Security Incident, who is an employee, officer or other agent of Business Associate. If any such Security Incident resulted in a disclosure not permitted
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by this Agreement or Breach of Unsecured PHI, Business Associate will make the report in accordance with the provisions set forth above.
d. Mitigation. Business Associate shall mitigate, to the extent practicable, any harmful effect known to the Business Associate resulting from a use or disclosure in violation of this Agreement.
e. Breach Notification to Third Parties. Business Associate will handle breach notifications to individuals, the United States Department of Health and Human Services Office for Civil Rights, and, where applicable, the media. Should such notification be necessary, Business Associate will ensure that Covered Entity will receive notice of the breach prior to such incident being reported.
7. Term and Termination
a. The term of this Agreement shall be effective as of Governor and Executive Council approval, and shall terminate consistent with the underlying Agreement or on the date covered entity terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner.
b. In addition to the general provisions outlined in the P-37 of this Agreement the Covered Entity may, as soon as administratively feasible, terminate the Agreement upon Covered Entity’s knowledge of a material breach by Business Associate of this Business Associate Agreement. Prior to terminating the Agreement, the Covered Entity may provide an opportunity for Business Associate to cure the alleged breach within a reasonable timeframe specified by Covered Entity. If Covered Entity determines that neither termination nor cure is feasible, Covered Entity may report the violation to the Secretary.
c. Upon termination of this Agreement for any reason, Business Associate, with respect to PHI received from Covered Entity, or created, maintained or received by Business Associate on behalf of Covered Entity, shall:
i. Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
ii. Destroy, in accordance with applicable law and Business Associate’s record retention policy that it applies to similar records, the remaining PHI that Business Associate still maintains in any form;
iii. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;
iv. Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out in this Agreement which applied prior to termination; and
v. Destroy in accordance with applicable law and Business Associate’s record retention policy that it applies to similar records, the PHI retained by Business 48
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Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
d. The above provisions shall apply to PHI that is in the possession of any Subcontractors of Business Associate. Further Business Associate shall require any such Subcontractor to certify to Business Associate that it has returned or destroyed all such information which could be returned or destroyed.
e. Business Associate’s obligations under this Section 7.c. shall survive the termination or other conclusion of this Agreement.
8. Covered Entity’s Responsibilities a. Covered Entity shall be responsible for the preparation of its Notice of Privacy Practices (“NPP”). To facilitate this preparation, upon Covered Entity’s request, Business Associate will provide Covered Entity with its NPP that Covered Entity may use as the basis for its own NPP. Covered Entity will be solely responsible for the review and approval of the content of its NPP, including whether its content accurately reflects Covered Entity’s privacy policies and practices, as well as its compliance with the requirements of 45 C.F.R. § 164.520. Unless advance written approval is obtained from Business Associate, Covered Entity shall not create any NPP that imposes obligations on Business Associate that are in addition to or that are inconsistent with the HIPAA Rules. b. Covered Entity shall bear full responsibility for distributing its own NPP. c. Covered Entity shall notify Business Associate of any change(s) in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such change(s) may affect Business Associate’s use or disclosure of such PHI. 9. Miscellaneous a. Definitions and Regulatory References. All terms used, but not otherwise defined herein, shall have the same meaning as those terms in the HIPAA Rules as in effect or as amended.
b. Amendment. Covered Entity and Business Associate agree to take action to amend the Agreement as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
c. Business Associate shall make available all of its internal practices, policies and procedures, books, records and agreements relating to its use and disclosure of Protected Health Information to the United States Department of Health and Human Services as necessary, to determine compliance with the HIPAA Rules and with this Business Associate Agreement.
d. Interpretation. The parties agree that any ambiguity in the Agreement shall be interpreted to permit compliance with the HIPAA Rules.
e. Severability. If any term or condition of this Business Associate Agreement or the application thereof to any person(s) or circumstance is held invalid, such invalidity shall not affect other terms or conditions which can be given effect without the invalid term or 49
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condition; to this end the terms and conditions of this Business Associate Agreement are declared severable.
f. Survival. Provisions in this Business Associate Agreement regarding the use and disclosure of PHI, return or destruction of PHI, confidential communications and restrictions shall survive the termination of the Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Business Associate Agreement. The State of New Hampshire Employee and Contractor Retiree Health Benefit Program
Signature of Authorized Representative Signature of Authorized Representative
Name of Authorized Representative Name of Authorized Representative
Title of Authorized Representative Title of Authorized Representative
Date Date
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APPENDIX D: REQUIRED PROTECTION OF CONFIDENTIAL INFORMATION AND DATA SECURITY
In performing its obligations under the Agreement, Contractor, inclusive of any subsidiaries and related entities shall gain access to State data and information and with respect to such will comply with the following terms and conditions. Protection of State data and information shall be an integral part of the business activities of Contractor. Contractor shall ensure that there is no inappropriate or unauthorized use of State data and information at any time. 1. Definitions a. Confidential Information. Protected health information (PHI), personally identifiable information (PII), and other personal private, and/or sensitive information. b. Data. All information and things developed or obtained during the performance of, or acquired or developed by reason of, this agreement, including but not limited to, all studies, reports, files, formulae, surveys, maps, charts, sound recordings, video recordings, pictorial reproductions, drawings, analyses, graphic representations, computer programs, computer printouts, notes, letters, memoranda, papers, and documents, all whether finished or unfinished. 2. Contractor Responsibilities a. Confidential Information obtained by Contractor shall remain the property of the State and shall at no time become the property of Contractor unless otherwise explicitly permitted under the Agreement. b. Contractor shall develop and implement policies and procedures to safeguard the confidentiality, integrity and availability of the State’s information. c. Contractor shall not use the State’s Confidential Information developed or obtained during the performance of, or acquired or developed by reason set forth within the Agreement, except as is directly connected to and necessary for Contractor’s performance under the Agreement, or unless otherwise permitted under the Agreement. d. In the event Contractor stores Data and/or Confidential Information, such information shall be encrypted by Contractor both at rest and in motion. e. Contractor shall have, and shall ensure that any subcontractors or related entities have, proper security measures in place for protection of the State’s data. Such security measures shall comply with HIPAA and all other applicable State and federal data protection and privacy laws. 3. Controls. Contractor shall, and shall ensure that any subcontractors or related entities use at all times proper controls for secured storage of, limited access to, and rendering unreadable prior to discarding, all records containing the State’s Confidential Information. Contractor shall not store or transfer Confidential Information collected in connection with the services rendered under this Agreement outside of the North America. This includes backup data and disaster recovery locations. 4. Breach Notification. a. Contractor shall notify the State of any security breach, or potential breach of Contractor or any subcontractors or related entities, that jeopardizes, or may jeopardize the State’s
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Data, Confidential Information, or processes. For purposes of reporting under this Section, security breach or potential breach shall be limited to the successful or attempted unauthorized access, use, disclosure, modification, or destruction of information, or the successful or attempted interference with system operations in an information system. b. Contractor shall notify the State of a security breach, or potential breach of Contractor or any subcontractors or related entities upon discovery. Contractor will treat a security breach or potential breach as being discovered as of the first day on which such incident is known to Contractor, or by exercising reasonable diligence, would have been known to Contractor. Contractor shall be deemed to have knowledge of a security breach or potential breach if such incident is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the breach, who is an employee, officer or other agent of Contractor. c. Full disclosure of the security breach or potential breach of Contractor or any subcontractors or related entities shall be made and include all available information resulting from investigation of the security breach or potential breach. Contractor shall make efforts to investigate the causes of the security breach or potential breach; promptly take measures to prevent any future breach; and mitigate any damage or loss. In addition, Contractor shall inform the State of the actions it is taking, or will take, to reduce the risk of further loss to the State. d. All legal notifications required as a result of a breach of information, or potential breach, collected pursuant to this Agreement shall be coordinated with the State. 5. Liability and Damages. In addition to Contractor’s liability as set forth elsewhere in the Agreement, if Contractor or any of its subcontractors or related entities is determined by forensic analysis or report, to be the likely source of any loss, disclosure, theft or compromise of State’s data or Confidential Information, the State shall recover from Contractor all costs of response and recovery resulting from the security breach or potential breach, including but not limited to: credit monitoring services, mailing costs and costs associated with website and telephone call center services. A security breach or potential breach may cause the State irreparable harm for which monetary damages would not be adequate compensation. In the event of such an incident, the State is entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the State may be entitled at law or in equity. Such remedies shall not be deemed exclusive, but shall be in addition to all other remedies available at law or in equity, subject to any express exclusion or limitations in the Agreement to the contrary. 6. Data Breach Insurance. In addition to Contractor’s insurance obligations as set forth in the form contract P-37, Contractor shall carry Data Security & Privacy Cyber Liability Insurance coverage for unauthorized access, use, acquisition, disclosure, failure of security, breach of Data or Confidential Information, privacy perils, in an amount not less than $10 million per annual aggregate, covering all acts, errors, omissions, at minimum, during the full term of this Agreement. Such coverage shall be maintained in force at all times during the term of the Agreement and during any period after the termination of this Agreement during which Contractor maintains State Data or Confidential Information.
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7. Data Recovery. Contractor shall be responsible for ensuring backup and redundancy of the State’s Data and Confidential Information for recovery in the event of a system failure or disaster event within Contractor’s data storage systems. Contractor shall ensure that its subcontractor or related entities provide similar backup and redundancy of the State’s Data and Confidential Information. 8. Return or Destruction of Data and Confidential Information. Upon termination of the Agreement for any reason, Contractor shall: a. Return or destroy the Data or Confidential Information Contractor still maintains in any form. Whether the information is returned or destroyed is determined at the sole discretion of the State. Information that is destroyed shall be permanently deleted and not recoverable according to National Institute of Standards and Technology approved methods. Contractor shall provide the State with certificates of destruction and/or certificates verifying that all information has been returned and none retained. If it is not feasible for Contractor to return or destroy portions of such confidential data or information in its possession, Contractor shall inform the State as to the specific reasons that make such return or destruction infeasible and may retain such data or information with approval of the State, which shall not be unreasonably withheld. b. Certain types of information which must be retained for the State’s benefit, such as records of actuarial determinations, will be maintained as agreed upon by the State. c. Continue to use appropriate safeguards as identified above with respect to any Data or Confidential Information that is retained d. Not use or disclose Data or Confidential Information retained other than for purposes for which such information has been retained, and subject to the same terms and conditions as set forth in the original Agreement. 9. Access to System Logs. Contractor shall allow the State access to system security logs, latency statistics, etc., that affect the Agreement, the State’s data and/or processes. This includes the ability of the State to request a report of the records that a specified user accessed over a specified period of time. 10. Import/Export Data. The State shall have the ability to import or export data in piecemeal manner or in its entirety at its discretion without interference from the BA and with the BA’s assistance, at no additional cost to the State. 11. Survival. This appendix Required Protection of Confidential Information and Data Security shall survive termination or conclusion of the Agreement.
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APPENDIX E: RSA 21-I:96-98
TITLE I THE STATE AND ITS GOVERNMENT CHAPTER 21-I DEPARTMENT OF ADMINISTRATIVE SERVICES New Hampshire Prescription Drug Competitive Marketplace Section 21-I:96 21-I:96 Purpose and Intent. – The purpose and intent of this subdivision is to authorize the commissioner of the department of administrative services, with the approval of the governor and the executive council, to establish the New Hampshire prescription drug competitive marketplace in accordance with this subdivision. The objective of this subdivision is to optimize prescription drug savings by the state of New Hampshire through the following: I. Adoption of a dynamically competitive reverse auction process for the state health plan selection of pharmacy benefit managers (PBM). II. Ongoing, real-time electronic review and validation of PBM claims invoices as the foundation for reconciling pharmacy bills. III. Conduct of market checks using technology driven evaluation of the incumbent PBM's prescription drug pricing based on benchmark comparators.
Source. 2020, 13:16, eff. July 16, 2020.
Section 21-I:97 21-I:97 Definitions. – In this subdivision: I. "Department" means the department of administrative services. II. "Pharmacy benefits manager" or "PBM" means a person, business, or other entity, including a wholly or partially owned or controlled subsidiary of a pharmacy benefits manager, that, pursuant to a contract with the health carrier or self-funded health benefit plan, manages the prescription drug coverage provided by the health carrier or self-funded health benefit plan, including, but not limited to, providing claims processing services for prescription drugs, performing drug utilization review, processing drug prior authorization requests, adjudication of grievances or appeals related to prescription drug coverage, contracting with network pharmacies, and controlling the cost of covered prescription drugs. III. "PBM reverse auction" means an automated, transparent, and dynamically competitive bidding process conducted online that starts with an opening round of bids and allows qualified PBM bidders to counter-offer a lower price for as many rounds of bidding as determined by the department of administrative services or its authorized representative conducting the reverse auction for a multiple health plan prescription drug purchasing group. IV. "Price" means the projected cost of a PBM proposal or "bid" for providing prescription drug benefits pursuant to this part, to enable "apples-to-apples" comparison of the costs of competing PBM proposals over the duration of the PBM services contract.
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V. "Real-time" means within no more than 12 hours. VI. "PBA" means a participant bidding agreement entered into by all participants in the PBM reverse auction prior to participation therein.
Source. 2020, 13:16, eff. July 16, 2020.
Section 21-I:98 21-I:98 New Hampshire Prescription Drug Competitive Marketplace. – I. Notwithstanding any provision of law to the contrary, a contract for the services of a PBM for the administration of benefits under this subdivision may be procured by the department, at its sole discretion, in a transparent, online competitive process, or "PBM reverse auction" as set forth in this subdivision. If the department, acting in its discretion, opts to conduct such a process, it shall procure, through the solicitation of proposals from qualified professional services vendors, the following products and services based upon price, capabilities, and other factors as determined by the department: (a) Technical assistance from a technology operator with respect to all of the following: (1) Evaluating the qualifications of PBM bidders. (2) Conducting online-automated reverse auction services to support the department or its authorized representatives in comparing the pricing for the PBM procurement. (3) Providing related professional services. (b) Technology platform with the required capabilities for conducting a PBM reverse auction, along with the related services of a technology operator, as described in subparagraph (a). The technology platform shall, at a minimum, possess the capacity to do the following: (1) Conduct an automated, online, reverse auction of PBM services. (2) Automate repricing of diverse and complex PBM prescription drug pricing proposals to enable "apples-to-apples" comparisons of the price of PBM bids utilizing 100 percent of annual prescription drug claims data available for state-funded health plans or a multiple health plan prescription drug purchasing group and using code-based classification of drugs from nationally accepted drug sources. (3) Produce an automated report and analysis of PBM bids, including the ranking of PBM bids based on the comparative costs and qualitative aspects thereof within a 48-hour time period following the close of each round of reverse auction bidding. (4) Perform real-time, electronic, line-by-line, claim-by-claim review of 100 percent of invoiced PBM prescription drug claims, and identify all deviations from the specific terms of the PBM services contract resulting from the reverse auction process. (c) The contract for procurement of the technology platform and technology operator services shall not be awarded to any of the following: (1) A vendor that is a PBM. (2) A vendor that is a subsidiary or affiliate of a PBM. (3) A vendor that is managed by a PBM or receives remuneration from a PBM for aggregating clients into a contractual relationship with a PBM. (d) The vendor shall not outsource any part of the PBM reverse auction or the automated, real-time, electronic, line-by-line, claim-by-claim review of invoiced PBM prescription drug claims. (e) With technical assistance and support provided by the technology operator, the department or its authorized representative shall specify the terms of the PBA. The terms of the PBA shall not be modified except by specific consent of the department of administrative services or its authorized representatives. II. When and if procured, the technology platform used to conduct the reverse auction shall be repurposed over the duration of the PBM services contract as an automated pharmacy claims adjudication engine to perform real-time, electronic, line-by-line, claim-by-claim review of 100 percent of invoiced PBM prescription drug claims, and identify all deviations from the specific terms of PBM services contracts. 55
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III. An entity may request in writing and subject to the approval of the commissioner to participate in a joint purchasing group with the state employee and retiree group insurance program for procuring for PBM services through a PBM reverse auction or otherwise. All entities participating in a joint purchasing group shall share proportionally in the cost of procurement including all support services. IV. If the department opts, at its discretion, to conduct a transparent, online competitive PBM selection process, as set forth in this subdivision, the processes and procedures set forth in this section shall apply to prescription drug coverage in connection with the state employee health plan for benefits under this part including for state employees, retirees, spouses, and eligible dependents in accordance with the provisions of RSA 21-I:30 and any applicable collective bargaining agreements. Any other state-funded health plan or self-funded municipal employee or other local government employee health plan, public school employee health plans, operating individually or collectively, and the health plans of the university system of New Hampshire and the community college system of New Hampshire may utilize the processes and procedures set forth in this section individually or collectively or as a joint purchasing group with the state employee health plan. V. After completion of a first PBM reverse auction by the department for the administration of benefits under the state employee health plan, and at the discretion of the department, self-funded private sector employer or multi-employer health plans with substantial participation by New Hampshire employees and their dependents may be permitted to participate in a joint purchasing pool with state employees for conduct of subsequent PBM reverse auctions provided that such participation shall comply with and shall be consistent with all applicable state and federal law and requirements of ERISA. VI. The state employee health plan and any self-funded public or private sector health plans that may be permitted to participate with the state in a joint PBM reverse auction purchasing pool shall retain full autonomy over determination of their respective prescription drug formularies and pharmacy benefit designs and shall not be required to adopt a common drug formulary or common prescription pharmacy benefit design. Any such entity or purchasing group shall agree, before participating in the PBM reverse auction, to accept the prescription drug pricing plan that is selected through the PBM reverse auction process. VII. Any PBM providing services to the department or a self-funded health plan as described in paragraphs IV and V, shall provide the department and the plan the complete pharmacy claims data necessary to conduct the reverse auction and carry out their administrative and management duties. VIII. The department may adopt rules, pursuant to RSA 541-A, to implement the provisions of this subdivision.
Source. 2020, 13:16, eff. July 16, 2020.
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