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ARTICLE IX — ERISA, COBRA AND HIPAA DUTIES A. ERISA. If Client's offering of the Prescription Drug Program provided for in this Agreement constitutes part of a "welfare plan" within the meaning of Section 3(1) of the ERISA, it is understood and agreed that the duties of Client and Administrator are as follows: I. PIan and Summary Description: It shall be the duty of Client (and not the duty of Administrator) to furnish any Plan, summary plan description or summary of material modifications to participants and beneficiaries as required by ERISA and any regulations under it. It shall be the duty of Administrator to provide Client, upon request, with a summary of benefits available under the Plan for use in conjunction with the summary plan description and summary of material modifications. 2. Annual and Summary Annual Reports: It shall be the duty of Client to furnish any annual reports to participants and/or governmental agencies as required by ERISA, the Internal Revenue Code and any regulations thereunder. It shall be the duty of Administrator to send to Client, upon Client's reasonable request, such information which Administrator has within its possession as will permit Client to make the annual reports. It shall be the duty of Client to provide the Members with summary annual reports as required by ERISA and any regulations under it. 3. Plan Administrator: It is expressly understood and agreed by the Parties to this Agreement that any and all .duties assigned by ERISA and any regulations thereunder to the Plan Administrator including, but not limited to, those duties specified in the Plan shall be deemed for purposes of this Agreement as duties of Client and not those of Administrator. B. Continuation Coverage. It is also expressly understood and agreed by the Parties to this Agreement that the compliance with continuation coverage requirements imposed on group health plans by ERISA, the Internal Revenue Code and the Public Health Service Act (including the regulations thereunder) shall be the sole obligation of Client under this Agreement and not the obligation of Administrator. Further, Administrator will not accept payment directly from any employee or former employee (or dependent of such employee or former employee) who is eligible for continuation coverage under the Plan. It shall be the responsibility of Client (and not Administrator), or such other third party administrator handling the group health plan of which the Prescription Drug Program is a part, to collect the premiums due from the employee or former employee (or dependent of such employee or former employee) for continuation coverage and to satisfy any and all other COBRA duties and responsibilities relating thereto. C. HIPAA and Privacy and Security. 1. Client also shall be solely responsible for any and all duties and responsibilities under HIPAA and similar state law that may apply to the Prescription Drug Program offered under this Agreement at any time, including but not limited to those provisions relating to portability, non-discrimination, privacy and security. The Parties will cause a HIPAA Business Associate Agreement in the form attached hereto as Exhibit B to be signed by their respective authorized representatives as of the Effective Date and will comply with the obligations required of the Parties therein. 2. Prescription Drug Claims, as well as eligibility information, which is de -identified in accordance with HIPAA and other applicable law, and which is not identifiable on a Member basis, may be used, disclosed, reproduced, adapted or sold by PBM. Such de -identified data may be provided to nationally recognized data integration firms to support appropriate administration of PBM's drug management programs as this benchmarking data enables PBM to compare against other drug population sets and seek to improve programs and services for clients. IN WITNESS WHEREOF, Administrator and Client have caused this Agreement to be executed and delivered by their respective authorized representatives as of the Effective Date. NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS 17