This excerpt taken from the UNH 10-K filed Feb 11, 2009.
3.3 Remainder Of The Cash Settlement Fund
Any net amount remaining in the Settlement Account following the distribution set forth in this Settlement Agreement, including amounts for checks that are returned uncashed, shall be subject to a secondary distribution to Settlement Class Members. The Parties shall confer concerning the type of secondary distribution to be made and jointly shall seek approval of the Court for such distribution. Settlement funds remaining after distribution to the Settlement Class in an amount that the Court
determines is economically impracticable to distribute shall be donated to one or more non-profit health-related organizations that are: (i) designated by Settlement Class Counsel; (ii) consented to by Defendants (whose consent shall not be unreasonably withheld); and (iii) approved by the Court.
4.1 This Settlement shall be conditioned on the Company entering into an OAG Assurance of Discontinuance, pursuant to which a qualified, independent university-level school of public health or other appropriate school in New York (the School) will be selected to establish and operate an independent database (the New Database). Consistent with the terms of the OAG Assurance of Discontinuance, the New Database shall be used for academic research and as a tool for determining Allowed Amounts for Covered Out-Of-Network Services or Supplies. In the event that the School selected to operate the New Database is other than Syracuse University or an affiliate, this Settlement is conditioned on Settlement Class Counsels completion of due diligence on the selected School.
4.2 Consistent with the terms of the OAG Assurance of Discontinuance, the Company shall agree to contribute Fifty Million Dollars ($50,000,000) toward the funding of the development and implementation of the New Database. Other terms concerning the creation, funding, operation, management, and control of the New Database shall be contained in the OAG Assurance of Discontinuance, and shall be specified further in a separate agreement to be entered into between the OAG and the School.
4.3 Consistent with the terms of the OAG Assurance of Discontinuance, the Company shall provide the School with: (i) all requested data for all available years and all methodologies; (ii) computer programs used to accept and analyze the data; and (iii) the code forensics relating to the Ingenix Databases reasonably necessary to establish and operate the New Database. The Company shall cooperate fully with the School and render all requested information and assistance, technical and otherwise, including any requested measures with respect to existing data reasonably necessary to establish and operate the New Database.
4.4 Consistent with the terms of the OAG Assurance of Discontinuance, within sixty (60) days of the first release of the New Database, the Company shall cease operating and using the Ingenix Databases to determine Allowed Amounts for Covered Out-Of-Network Services or Supplies, and instead shall use the New Database as the basis for determining Allowed Amounts for Covered Out-Of-Network Services or Supplies under certain health care benefit plans or arrangements insured or administered by the Company, to the extent that the plans or arrangements at issue require payment for Covered Out-Of-Network Services or Supplies based on the usual, customary and reasonable charges or similar language (including but not limited to reasonable and customary, average, or prevailing charges) for such services or supplies. Nothing in this Section otherwise shall preclude the Companys application of the Out-Of-Network
Reimbursement Policies to Covered Out-of-Network Services or Supplies. Further, nothing in this Settlement Agreement shall be construed to limit the authority of the Company or any sponsor of any health care benefit plan or arrangement administered by the Company: (a) to adopt, amend, change, or terminate any Benchmarking Standard used or to be used in any employee benefit plan or arrangement; (b) to use any particular Benchmarking Standard such as usual and customary or prevailing, or to use a Benchmarking Standard not based on provider charge databases; or (c) to the extent the Company uses the New Database in making Out-Of-Network benefit determinations, to choose the percentile of any New Database as satisfying any health care benefit plans Benchmarking Standard, including, but not limited to, reasonable and customary, usual, customary and reasonable, or usual and prevailing. Furthermore, to the extent the Company uses the New Database in making Out-Of-Network benefit determinations, nothing in this Section shall be construed to require the Company to use modules or any aspect of the New Database as satisfying any health care benefit plans Benchmarking Standard, including, but not limited to, reasonable and customary, usual, customary and reasonable, or usual and prevailing, when the Company did not use the corresponding modules or other corresponding aspect of the Ingenix Database at the time of entering into this Settlement Agreement. Furthermore, to the extent that the Company currently uses AWP or similar pricing indices as a pricing index for determining the reimbursement amount for out-of-network physician-administered drugs for its Fully-Insured Plans with an out-of-network component, and the applicable Certificates of Coverage provide that the determination of reimbursement amounts for health care services or supplies is the amount determined to be the usual, customary or reasonable amount (or similar language such as reasonable and customary or usual and prevailing), the Company will make reasonable efforts either to: (i) amend such Certificates of Coverage to provide that reimbursement of such physician-administered drugs will be based upon a different standard; or (ii) provide disclosures intended to apprise consumers as to the resource to be used in determining reimbursement of such physician-administered drugs.
4.5 Consistent with the terms of the OAG Assurance of Discontinuance, the Company shall contribute to the New Database all claims data in the form and manner requested by the School for a period of five (5) years from the date of the first release of the New Database. During the five-year period, the Company shall not be required to pay a fee for the Companys use of the New Database as a tool for determining Allowed Amounts for Covered Out-Of-Network Services or Supplies.
4.6 Consistent with the terms of the OAG Assurance of Discontinuance, during the five-year period from the date of the first release of the New Database, the Company shall not own, operate, or fund another database product that provides data pooled from more than one health insurer to other health insurers for use as a tool to make Out-Of-Network reimbursement determinations in competition with the New Database. Notwithstanding the foregoing, the Company may continue to develop and market its customized fee analyzer product or other database products that are not marketed to health insurers as a tool for Out-Of-Network reimbursement determinations.
4.7 Consistent with the OAG Assurance of Discontinuance, the Company shall coordinate with the School to create a website (the Healthcare Information Transparency Website or HIT Website) accessible to the public. The HIT Website will include a search function that permits users to select common medical services and the zip codes for the areas where the services are sought. The search result will indicate clearly the charge amount at a stated percentile in a given geographic area, or a range of charges, from the New Database. With the search result, the HIT Website will remind consumers who access the website that their insurers or third-party administrators determine reimbursement amounts by reference to the applicable benefit plan document, and that the plans sponsor or claims fiduciary may administer such benefit plan by applying a predetermined percentile of the New Database, various reimbursement policies, co-insurance, and deductibles in determining the actual reimbursement amount, or may determine reimbursement amounts using a mechanism other than the New Database or other databases of provider charges. The HIT Website will advise consumers to refer to applicable benefit plan documents or the consumers plan administrator or insurer for further information regarding the consumers individual plan. With the search result, the HIT Website also will remind consumers that they may be financially responsible for the balance of their providers charges that exceed the amounts paid by their insurance or health care benefit plans. The HIT Website also will describe in a transparent manner the purpose of the website, the search function, and how a health care benefit plans reimbursement rate standard or other benchmark for determining Allowed Amounts for Covered Out-Of-Network Services or Supplies may impact consumers out-of-pocket costs.
4.8 Consistent with the OAG Assurance of Discontinuance, the Company shall provide additional information to its members on an internal website portal accessible to the Companys members, which shall describe the New Database and the Companys method of determining Allowed Amounts for Covered Out-Of-Network Services or Supplies. The Company shall disclose to its members on its internal website any transitional use of the Ingenix Databases, including the fact that Ingenix is a wholly-owned subsidiary of UnitedHealth Group, Inc. The Company also shall revise, as applicable, its benefit plan documents and disclosures to members, or in a separate writing to members, to describe clearly and accurately its Out-Of-Network Reimbursement Policies and to disclose any transitional use of the Ingenix Databases, including the fact that Ingenix is a wholly-owned subsidiary of UnitedHealth Group, Inc.
4.9 Consistent with the OAG Assurance of Discontinuance, the Company, Settling Plaintiffs, and Settlement Class Counsel shall not object if the School: (i) requests that one or more of the Settling Plaintiffs sit on an advisory board that the School, in its sole discretion, establishes in connection with the New Database, or (ii) elects to pay an honorarium to any Settling Plaintiff to sit on any such board.
Until the New Database is available, Defendants may process out-of-network claims and determine Out-Of-Network Benefits using the current releases of the Ingenix Databases, as presently constituted, and as subject to Section 6. The Plan of Allocation shall permit Settlement Class Members to submit proofs of claim against the Settlement Fund for Out-Of-Network Benefits through the Final Order and Judgment Date. Any Settlement Class Members aggrieved by alleged underpayments of Out-Of-Network Benefits by Defendants shall be entitled to pursue such internal administrative appellate remedies with Defendants to which they are currently entitled, but Settlement Class Members covenant and agree that they shall not take any step whatsoever to commence, institute, continue, pursue, maintain, prosecute, or enforce any claim, in any forum, contending that the PHCS or MDR database, as applicable, has resulted in an inappropriate or unreasonable Out-Of-Network Benefit determination, or otherwise challenging the use of the Ingenix Databases as a tool in determining their Out-Of-Network Benefits. Nothing in this Section shall be construed to require Defendants to use modules of the Ingenix Databases as satisfying any health care benefit plans Benchmarking Standard, including, but not limited to, reasonable and customary, usual, customary and reasonable, or usual and prevailing, when Defendants did not use those modules of the Ingenix Database at the time of entering into this Settlement Agreement.
To the extent that Defendants payments for Covered Out-Of-Network Services or Supplies prior to the establishment of the New Database are based on the Ingenix Databases, those Defendants shall use the most current version of the PHCS Database to determine the Allowed Amount in accordance with the schedule for loading each new release of the Ingenix Databases that Defendants presently have in place.
Upon the filing of a joint motion for entry of the Preliminary Approval Order as outlined in Section 11, the Parties shall coordinate on all necessary court filings to include in the United Healthcare Actions all of the Parties, claims, and Settlement Class Period as needed to effectuate this Settlement Agreement fully, including its release and covenant not to sue provisions. Furthermore, Settling Plaintiffs David Befeler, M.D., Darrick E. Antell, M.D., FACS, and David A. Ditsworth, M.D. will file a motion to intervene in the United Healthcare Actions contemporaneously with the filing of a joint motion for entry of the Preliminary Approval Order.