Health Care Matters. (a) Except as set forth on the Company Schedule 3.17(a), each member of the Company Group and the operations of the Business are, and at all times have been, conducted in compliance with all applicable Health Care Laws. No member of the Company Group or, to the Knowledge of the Company, its managers, Employees and agents (while acting in such capacity) has received notice of, and there are no pending or, to the Company’s Knowledge, threatened legal Actions relating to non-compliance by any member of the Company Group or its managers, Employees or agents (while acting in such capacity) under any Health Care Law. (b) The Company has made available to Parent all of the Company Group’s Health Care Permits. Each member of the Company Group has and maintains in full force and effect all Health Care Permits necessary for the conduct of its Business as currently conducted or as currently contemplated to be conducted by such member of the Company Group and to carry out the transactions contemplated by this Agreement. The Company Group has (i) not received written notice, and no Governmental Entity is considering limiting, suspending, terminating, adversely amending or revoking any Health Care Permit, and (ii) not received written notice of any deficiencies requiring corrective action plans that have not been completed and accepted by the Governmental Entity. All such Health Care Permits are valid and in full force and effect and each member of the Company Group is in compliance with the terms and conditions of the applicable Health Care Permits and with the Health Care Laws and rules and regulations of the Governmental Entities having jurisdiction with respect to such Health Care Permits. (c) Each member of the Company Group and each licensed professional or other individual employed by or contracted with such member of the Company Group or who otherwise provides health care services through such member of the Company Group meets all applicable requirements of participation and coverage of, and where applicable are parties to valid supplier or other participation agreements for payment by, Medicare, Medicaid, any other state or federal government health care programs, any private insurance company, health maintenance organization, preferred provider organization, managed care organization, government contracting agency, or any other Payor program (“Programs”). There are no Actions pending or, to the Knowledge of the Company, threatened which would result in a revocation, suspension, termination, probation, restriction, limitation, or non-renewal of any Program, supplier or other participation agreement or result in the exclusion of any member of the Company Group or any of its Employees or agents from any Program. No member of the Company Group, its owners, or their respective officers, directors or managers (acting on behalf of the Company Group) have engaged in any activities which are cause for civil penalties of such member of the Company Group or mandatory or permissive exclusion from any Program. Each Company Group Practitioner has properly reassigned his or her right to payment for such services to the Company Group. Set forth in Company Schedule 3.17(c) is a correct and complete list, with respect to each member of the Company Group, of all provider numbers and NPIs relating to such member of the Company Group or for which such member of the Company Group has used in connection with the enrollment in, and billing of, Programs of a Governmental Entity. (d) (i) No member of the Company Group, or to the Company’s Knowledge any Company Group Practitioner has had the right to receive reimbursements pursuant to any Program terminated, suspended or limited as a result of any investigation or action whether by any federal or state Governmental Entity or other third party; and (ii) no member of the Company Group has been the subject of any inspection, investigation, validation review or program integrity review, survey, audit, monitoring or other form of review by any Governmental Entity, professional review organization, accrediting organization or certifying agency based upon any alleged violation of any Health Care Law or Program, nor has any member of the Company Group received any complaint, notice of material noncompliance or notice of material deficiency related to any Health Care Law or Program in connection with the operations of the Company Group and the Business. (e) No member of the Company Group, or to the Company’s Knowledge any Company Group Practitioner: (i) is a party to a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services, (ii) has any reporting obligations pursuant to any settlement agreement entered into with any Governmental Entity, or (iii) has been a defendant in any qui tam or false claims act litigation. (f) To the Company’s Knowledge, each Company Group Practitioner has at all times he or she has provided services through any member of the Company Group been and is duly licensed to practice in the state where the patient in question is located. If applicable, to the Company’s Knowledge, each Company Group Practitioner who is permitted by law to dispense or prescribe drugs has been and is validly registered with the United States Drug Enforcement Administration (the “DEA”) in his or her home state, as the case may be, under the Controlled Substances Act and holds a valid state controlled substances registration as such may be required. No event has occurred and, to the Knowledge of the Company, no fact, circumstance or condition exists that has or could reasonably be expected to result in the denial, loss, revocation, rescission or restriction of or to any such professional license, DEA or state controlled substances registration. (g) Except as set forth Company Schedule 3.17(h), to the Company’s Knowledge no Company Group Practitioner (i) has had a final judgment or settlement without judgment entered against him or her in connection with a malpractice or similar action, (ii) is the subject of any criminal complaint, indictment or criminal proceedings; or (iii) is subject to any proceeding based on any allegation of engaging in illegal, immoral or other misconduct (of any nature or degree), relating to his or her practice. (h) Except as set forth on Company Schedule 3.17(i), no member of the Company Group or any of its Affiliates, or to the Company’s Knowledge no Company Group Practitioner or any of its Affiliates, have engaged in any activities which are prohibited under the Health Care Laws. (i) No member of the Company Group or to the Company’s Knowledge any Company Group Practitioner has ever been indicted or charged or, debarred, excluded, suspended or investigated in connection with any violation of any Law involving false or fraudulent billing practices, or relating to its participation in Programs. Each member of the Company Group and to the Company’s Knowledge each Company Group Practitioner has billed all Programs in compliance with all applicable Laws and contractual obligations.
Appears in 1 contract
Health Care Matters. (a) Except as set forth on Section 3.19(a) of the Company Schedule 3.17(a)Disclosure Schedule, (i) each member of the Company Group and the operations of the Business areis, and at all times have since January 1, 2017 (the “Lookback Date”) has been, conducted in compliance in all material respects with all applicable Health Care LawsLegal Requirements and Parent and the Company Group’s compliance programs (ii) each member of the Company Group holds all Health Care Permits necessary for the lawful conduct of its businesses as they are currently being conducted and all such Health Care Permits are valid and in full force and effect, except, in each case under this clause (ii), where the failure to have or to be valid or in full force or effect, or suspension or cancellation of, any such Permit would not, individually or in the aggregate, be material to the Company Group or the Business, taken as a whole. Without limiting the generality of the foregoing, there is no Claim pending or, to the Knowledge of the Companies, threatened, alleging noncompliance with any Health Care Legal Requirement or Health Care Permit against any member of the Company Group. No member of the Company Group is subject to any Order with respect to its compliance with applicable Health Care Legal Requirements or the Business’s or any member of the Company Group’s Health Care Permits.
(b) Except as set forth on Section 3.19(b) of the Company Disclosure Schedule, since the Lookback Date, no member of the Company Group has received any notice from any Governmental Authority, Private Program or patient that any of its properties, facilities, equipment, operations, business procedures, or practices fails to comply in any material respect with any applicable Health Care Legal Requirements or Health Care Permits. No member of the Company Group has received any notice of any Claim by any Governmental Authority having jurisdiction over the Health Care Permits to revoke, withdraw, suspend or materially restrict any such Health Care Permit. To the Knowledge of the Companies, no event has occurred, and no condition exists, that, with or without the lapse of time, the giving of notice or both, would constitute a material breach or violation of, or would constitute grounds for an adverse Claim with respect to, applicable Health Care Legal Requirements or the Health Care Permits.
(c) Except as set forth on Section 3.19(c) of the Company Disclosure Schedule, since the Lookback Date, no member of the Company Group has been served with or received any search warrant, subpoena, civil investigative demand, contact letter or similar process, by or from a Governmental Authority or has otherwise been under investigation by a Governmental Authority, in each case, to the extent related to the Business’s or any member of the Company Group’s compliance with applicable Health Care Legal Requirements or any member of the Company Group’s Health Care Permits.
(d) Since the Lookback Date, none of the members of the Company Group or their respective, current or, during employment with the Company Group, former, directors, officers, or employees (i) has been convicted of, charged with, entered into any settlement or deferred prosecution agreement with any Governmental Authority to avoid conviction of, or, to the Knowledge of the Companies, investigated for, threatened with prosecution for, a violation of any Health Care Legal Requirement, or (ii) has knowingly made a fraudulent statement, including certification, to any Governmental Authority or agent thereof or knowingly failed to disclose a material fact required to be disclosed to a Governmental Authority or agent thereof, in each case, related to any applicable Health Care Legal Requirement or Health Care Permit. None of the members of the Company Group or, to the Knowledge of the CompanyCompanies, its managerstheir respective, Employees current or, during or prior to employment or contract with the Company Group, former, directors, officers, employees, is, or has been, excluded, suspended, or debarred from participation in Government Programs, subject to sanction pursuant to 42 U.S.C. § 1320a-7a or § 1320a-8, or has since the Lookback Date received a written notice of their exclusion, suspension, or debarment from participation, or is, or at any time since the Lookback Date has been, otherwise ineligible to participate, in Government Programs.
(e) The Company Group is, and agents at all times since the Lookback Date has been, in material compliance with (while acting i) HIPAA and all other applicable Laws concerning the privacy or security of Personal Information, including to the extent applicable state data breach notification laws, state health privacy and information security laws, the FTC Act, 15 U.S.C. §§ 41-58, and the FTC Red Flag Rules (collectively, the “Information Privacy or Security Laws”), (ii) any publicly posted privacy statements (“Privacy Statements”) and (iii) contractual requirements, terms of use and industry standards. Since the Lookback Date, no member of the Company Group has experienced any “Breach” (as such term is defined by HIPAA) for which such member of the Company Group is required to provide notification under 45 C.F.R. § 164.406 or § 164.408(b). No member of the Company Group, nor, to the Knowledge of the Companies, any Person working on behalf of any of them, in such capacityeach case to the extent relating to the Business, (A) is under investigation by any Governmental Authority for a violation of any Information Privacy or Security Law; or (B) has received notice ofany written notices, claims or complaints (1) from the United States Department of Health and Human Services Office for Civil Rights, the Justice Department, the Federal Trade Commission, or the Attorney General of any state or territory of the United States relating to any such violations or (2) from any Governmental Authority regarding the Company Group’s or its Affiliates’ or such Person’s information practices or the collection, use, storage, processing, distribution, transfer, import, export, protection, disposal or disclosure or other activity (whether electronic or in any other form or medium) of any Personal Information, or alleging a violation of any individual’s privacy, personal or confidentiality rights under the Privacy Statement. Neither this Agreement nor the transactions contemplated by this Agreement will violate the Privacy Statement, and there all Personal Information collected by the Company Group or its Affiliates, or any by Person working on behalf of any of them, in each case with respect to the Business, from visitors to its or their websites or mobile applications is subject to such Privacy Statements.
(f) Each member of the Company Group has timely filed, or caused to be timely filed, all cost reports required for such member of the Company Group by any Government Program (collectively, “Cost Reports”), and all Cost Reports were accurate in all material respects when filed and were prepared and submitted in accordance with cost and accounting principles consistently applied and in compliance in all material respects with Cost Report filing requirements under any applicable Health Care Legal Requirement. There are no material claims, actions, or appeals pending or, before any Governmental Authority with respect to the Company’s KnowledgeCost Reports, on or before the Closing Date. There is no threatened legal Actions relating dispute with any Governmental Authority regarding the Cost Reports.
(g) Each member of the Company Group (i) is certified for participation and eligible for reimbursement under Government Program in which such member participates and (ii) is a party to current payor agreements with, or is otherwise entitled to xxxx, the Private Programs under which such member receives payments. Each member of the Company Group is in compliance in all material respects with the conditions of participation or conditions for coverage, as applicable, in the Government Programs and Private Programs in which it participates and terms, conditions, and provisions of all payor agreements it has in effect with the Government Programs and Private Programs. Since the Lookback Date, except as set forth on Section 3.19(g) of the Company Disclosure Schedule, no member of the Company Group (i) has received any notice of denial of payment, recoupment, suspension, or overpayment, set-off, penalty or fine from any Government Program, or any Private Program, with respect to the services provided by a member of the Company Group prior to the Closing other than notices of a non-material nature received in the ordinary course of business; and (ii) has any outstanding overpayments received from, or refunds due to Government Programs or Private Programs that are in excess of $100,000. There are no outstanding audit inquiries or additional documentation requests made by or with respect to the Government Programs or the Private Programs to which the Company Group have not responded in the ordinary course, nor any denials of valid claims submitted under Government Programs or Private Programs with respect to which the Company Group have not submitted appeals in the ordinary course and pursuant to applicable payer procedures. Section 3.19(g) of the Company Disclosure Schedule sets forth a list of all material Program Denials of the Company Group that are pending as of the date of this Agreement. Except as would not reasonably be expected to be, individually or in the aggregate, material, all claims for payment submitted to a Government Program or Private Program were or are for services actually rendered, properly coded or claimed at the correct level and, except for clerical errors, otherwise true and correct. No member of the Company Group owes any amounts to the Medicare Program materially in excess of the amounts reserved therefor in the Financial Statements as a result of receiving payments in excess of (A) the hospice inpatient day cap or (B) the applicable limit on the average annual payment per beneficiary for hospice services (i.e., the aggregate cap).
(h) None of the Company or any of their respective Representatives acting on their behalf are, or since the Lookback Date have been, parties to (i) a corporate integrity agreement, a deferred prosecution agreement, or similar government-mandated compliance program with the OIG, the DOJ, a state attorney general, Medicaid fraud unit or other Governmental Authority, (ii) any settlement agreement, side letter, consent, order or similar contract or arrangement with the OIG, the DOJ, any state attorney general, the Medicaid fraud unit or any other Governmental Authority under which such member of the Company Group has reporting obligations to a Governmental Authority or (iii) any continuing material reporting obligations pursuant to a settlement agreement entered into with any Governmental Authority, in each case, related to any Health Care Legal Requirement.
(i) The members of the Company Group have (i) except as would not be, individually or in the aggregate, a Company Material Adverse Effect, verified that all employees and independent contractors providing clinical services have valid and current licenses, permits, and credentials and maintain records of same, (ii) except as would not be, individually or in the aggregate, a Company Material Adverse Effect, conducted criminal background checks on all applicable employees and independent contractors, and (iii) screened all officers, directors, employees and independent contractors under the HHS/OIG List of Excluded Individuals/Entities and equivalent state Medicaid program exclusion lists. Since the Lookback Date, no member of the Company Group has received notice that any healthcare professional employed by any member of the Company Group is under investigation by, or its managersis not in good standing with, Employees or agents (while acting in such capacity) under any Health Care LawGovernmental Authority including a medical board.
(bj) The In accordance with 42 C.F.R. § 424.550(b), the initial enrollment of each home health agency owned by the Company has made available Group in the Medicare program will have occurred at least thirty-six (36) months prior to Parent the Closing Date, and except in connection with the Pre-Closing Reorganization, no such agency will have experienced a “change in majority ownership” (as such term is defined at 42 C.F.R. § 424.502) during the thirty-six (36) months preceding the Closing Date, or, if such a change will have occurred for any home health agency owned by the Company Group, that the requirements of one of the exceptions set forth at 42 C.F.R. § 424.550(b)(2) will have been satisfied.
(k) All of the contracts of the Company Group or the Business with a physician or immediate family member of a physician, a physician group, or any entity in which a physician or immediate family member of a physician is an equity owner, are in writing, are signed by the appropriate parties, set forth the services, space or goods to be provided, provide for fair market value compensation, are commercially reasonable, and comply with all applicable Health Care Legal Requirements, in each case, to the extent required by applicable Health Care Legal Requirements, and except as would not be material to any member of the Company Group’s Health Care Permits.
(l) Section 3.19(l) of the Company Disclosure Schedule sets forth an true and complete list of all Medicare Advance Payments that have been requested and/or received by each member of the Company Group, including the name and Medicare provider number of the applicable member, the amount of such Medicare Advance Payment that has been requested and/or received by such member, and the amount (if any) of such Medicare Advance Payment that has been returned to, recouped or forgiven by, the applicable Governmental Authority. All information submitted and certifications made by Sellers in connection with the request and/or receipt of such Medicare Advance Payments are true and complete.
(m) Section 3.19(m) of the Company Disclosure Schedule sets forth a true and complete list of all COVID-19 Funds that have been requested and/or received by each member of the Company Group as of the date hereof, including the name and taxpayer identification number of the applicable member, the amount of COVID-19 Funds that have been requested and/or received by such member, the name of the distribution, allocation, grant or other program under which such COVID-19 Funds were received, and the amount (if any) of such COVID-19 Funds that has been returned to, recouped or forgiven by, the applicable Governmental Authority. No member of the Company Group has received any COVID-19 Funds under the Paycheck Protection Program Act. Each member of the Company Group is eligible under applicable Law, including the Relief Fund Payment Terms and Conditions, to receive the COVID-19 Funds that have been received by such Seller. Each Seller has submitted all attestations, certifications reports, financial records and/or other data elements for required reporting and audits required by applicable Law, including the Relief Fund Payment Terms and Conditions, in connection with its receipt of COVID-19 Funds, and all such attestations, certifications, reports, financial records and/or other data elements for required reporting and audits are true, accurate and complete. Each member of the Company Group has used, plans to use, has allocated to Parent or its eligible Affiliates, or has returned all COVID-19 Funds it has received and maintains has prepared and/or maintained all financial or accounting records relating to such COVID-19 Funds, in full force and effect all Health Care Permits necessary for the conduct of its Business as currently conducted or as currently contemplated to be conducted by such member of the Company Group and to carry out the transactions contemplated by this Agreement. The Company Group has (i) not received written noticeeach case, and no Governmental Entity is considering limiting, suspending, terminating, adversely amending or revoking any Health Care Permit, and (ii) not received written notice of any deficiencies requiring corrective action plans that have not been completed and accepted by the Governmental Entity. All such Health Care Permits are valid and in full force and effect and each member of the Company Group is in compliance with the terms applicable Law, including Relief Fund Payment Terms and conditions of the applicable Health Care Permits and with the Health Care Laws and rules and regulations of the Governmental Entities having jurisdiction with respect to such Health Care Permits.
(c) Each member of the Company Group and each licensed professional or other individual employed by or contracted with such member of the Company Group or who otherwise provides health care services through such member of the Company Group meets all applicable requirements of participation and coverage of, and where applicable are parties to valid supplier or other participation agreements for payment by, Medicare, Medicaid, any other state or federal government health care programs, any private insurance company, health maintenance organization, preferred provider organization, managed care organization, government contracting agency, or any other Payor program (“Programs”). There are no Actions pending or, to the Knowledge of the Company, threatened which would result in a revocation, suspension, termination, probation, restriction, limitation, or non-renewal of any Program, supplier or other participation agreement or result in the exclusion of any member of the Company Group or any of its Employees or agents from any ProgramConditions. No member of the Company Group, its owners, or their respective officers, directors or managers (acting on behalf of the Company Group) have engaged in any activities which are cause for civil penalties of such member of the Company Group or mandatory or permissive exclusion from any Program. Each Company Group Practitioner has properly reassigned his or her right to payment for such services to the Company Group. Set forth in Company Schedule 3.17(c) is a correct and complete list, with respect to each member of the Company Group, of all provider numbers and NPIs relating to such member of the Company Group or for which such member of the Company Group has used in connection with the enrollment in, and billing of, Programs of a Governmental Entity.
(d) (i) No member of the Company Group, or to the Company’s Knowledge any Company Group Practitioner has had the right to receive reimbursements pursuant to any Program terminated, suspended or limited as a result of any investigation or action whether by any federal or state Governmental Entity or other third party; and (ii) no member of the Company Group has been made the subject of or received any inspection, investigation, validation review notice of any audit or program integrity review, survey, audit, monitoring or other form of review by any Governmental Entity, professional review organization, accrediting organization or certifying agency based upon any alleged violation of any Health Care Law or Program, nor has any member of the Company Group received any complaint, notice of material noncompliance or notice of material deficiency related to any Health Care Law or Program Authority in connection with the operations of the Company Group and the Business.
(e) No member of the Company Group, or to the Company’s Knowledge any Company Group Practitioner: (i) is a party to a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services, (ii) has any reporting obligations pursuant to any settlement agreement entered into with any Governmental Entity, or (iii) has been a defendant in any qui tam or false claims act litigation.
(f) To the Company’s Knowledge, each Company Group Practitioner has at all times he or she has provided services through any member of the Company Group been and is duly licensed to practice in the state where the patient in question is locatedCOVID-19 Funds. If applicable, to the Company’s Knowledge, each Company Group Practitioner who is permitted by law to dispense or prescribe drugs has been and is validly registered with the United States Drug Enforcement Administration (the “DEA”) in his or her home state, as the case may be, under the Controlled Substances Act and holds a valid state controlled substances registration as such may be required. No event has occurred and, to the Knowledge of the Company, no fact, circumstance or condition exists that has or could reasonably be expected to result in the denial, loss, revocation, rescission or restriction of or to any such professional license, DEA or state controlled substances registration.
(g) Except as set forth Company Schedule 3.17(h), to the Company’s Knowledge no Company Group Practitioner (i) has had a final judgment or settlement without judgment entered against him or her in connection with a malpractice or similar action, (ii) is the subject of any criminal complaint, indictment or criminal proceedings; or (iii) is subject to any proceeding based on any allegation of engaging in illegal, immoral or other misconduct (of any nature or degree), relating to his or her practice.
(h) Except as set forth on Company Schedule 3.17(i), no member of the Company Group or any of its Affiliates, or to the Company’s Knowledge no Company Group Practitioner or any of its Affiliates, have engaged in any activities which are prohibited under the Health Care Laws.
(i) No member of the Company Group has taken any actions, or failed to take any actions, that will limit the ability of such member, Parent or its eligible Affiliates, to retain or obtain forgiveness of any COVID-19 Funds to the Company’s Knowledge any Company Group Practitioner has ever maximum extent permitted by applicable Law. Any COVID-19 Funds that have been indicted or charged or, debarred, excluded, suspended or investigated in connection with any violation of any Law involving false or fraudulent billing practices, or relating to its participation in Programs. Each member of received but have not been used by the Company Group have been reallocated to Parent or its other eligible Affiliates and have not been distributed to the Company’s Knowledge each Company Group Practitioner has billed all Programs in compliance with all applicable Laws and contractual obligationsany other Person.
Appears in 1 contract
Samples: Securities Purchase Agreement (Brookdale Senior Living Inc.)
Health Care Matters. (a) Except as set forth on in Section 3.27 of the Company’s Disclosure Schedule:
(a) To the knowledge of the Company, except as would not, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company Schedule 3.17(a)nor any Subsidiary or any directors, each member members, employees, agents, officers or managers of the Company Group and or its Subsidiaries have engaged in any activities which are prohibited under any Health Care Laws.
(b) To the operations knowledge of the Business Company, the Company and its relevant Subsidiaries are, and at all times since August 22, 2007 have been, conducted in compliance in all material respects with all applicable Health Care Laws. No member the requirements of the Company Group orCertification of Compliance Agreement (the “CCA”), to dated as of August 22, 2007, between Coram, Inc. and Coram Alternate Site Services and the Knowledge Office of Inspector General of the Company, its managers, Employees United States Department of Health and agents Human Services (while acting in such capacity) the “OIG”). Neither the Company nor any Subsidiary has received notice ofany written, and there are no pending or, or to the Company’s Knowledgeknowledge, threatened legal Actions relating to non-oral notice from the OIG that the Company is not in compliance by any member in all material respects with the terms of the Company Group or its managers, Employees or agents (while acting in such capacity) under any Health Care LawCCA.
(bc) The Company has made available to Parent all of the Company Group’s Health Care Permits. Each member of the Company Group and each Subsidiary has and maintains in full force and effect effect, and is in material compliance with, all Health Care Permits health care related licenses, permits, certifications, approvals, registrations, consents, authorizations, certificates of need, supplier or provider number eligibility requirements, orders or other similar authorizations of, from or by Governmental Entities necessary for the ownership of the material assets or conduct of its Business as currently conducted or as currently contemplated to be conducted by such member the business of the Company Group and each Subsidiary (“Permits” ), except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company. No suspension, cancellation, modification, revocation, or non-renewal of any Permit is pending or, to the knowledge of the Company, threatened, and to carry out the transactions contemplated by this Agreement. The Company Group has (i) not received written notice, and no Governmental Entity is considering limiting, suspending, terminating, adversely amending or revoking any Health Care Permit, and (ii) not received written notice of any deficiencies requiring corrective action plans that have not been completed and accepted by the Governmental Entity. All such Health Care Permits are valid and in full force and effect and each member knowledge of the Company Group is no event has occurred and no circumstance exists that would reasonably be expected to result in compliance with the terms and conditions revocation, cancellation, non-renewal, or adverse modification of the applicable Health Care Permits and with the Health Care Laws and rules and regulations of the Governmental Entities having jurisdiction with respect to any such Health Care PermitsPermit.
(cd) Each member To the knowledge of the Company, except as would not have a Company Group Material Adverse Effect, the Company and each licensed professional or other individual employed by or contracted with such member Subsidiary meet all of the Company Group or who otherwise provides health care services through such member of the Company Group meets all applicable requirements of participation and coverage payment of, and where applicable are parties to valid supplier or other participation agreements for payment by, Medicare, Medicaid, TRICARE, any other state or federal government health care programs, any private insurance company, health maintenance organization, preferred provider organization, managed care organization, government contracting agency, or any other Payor public or private third party payor program (“Programs”). There are no Actions pending or, ) to the Knowledge extent the Company or the Subsidiary bills or receives reimbursement for services furnished to beneficiaries from a particular Program.
(e) To the knowledge of the Company, threatened which would result in a revocation, suspension, termination, probation, restriction, limitation, or non-renewal of any Program, supplier or other participation agreement or result in the exclusion of any member none of the Company Group or any of its Employees or agents from any Program. No member of Company, the Company GroupSubsidiaries, its owners, or nor their respective officers, directors or managers (acting on behalf of the Company Group) managing employees have engaged in any activities which are cause for civil monetary penalties of such member of the Company Group or mandatory or permissive exclusion from any Program. Each To the knowledge of the Company, except, individually or in the aggregate, as have not had, and would not reasonably be expected to have, a Company Group Practitioner has properly reassigned his Material Adverse Effect, all reports, documents, claims, applications, and notices required to be filed, maintained or her right furnished to payment for any Governmental Entity or Program, have been so filed, maintained or furnished and all such services to reports, documents, claims, applications and notices were complete and correct in all material respects on the Company Groupdate filed (or were corrected or supplemented by a subsequent filing). Set Except as set forth in Company Schedule 3.17(c) is a correct and complete list, with respect to each member Section 3.27 of the Company GroupDisclosure Schedule, the Company and the Subsidiaries have paid, caused to be paid, or notified the applicable parties of all provider numbers actually known and NPIs relating undisputed refunds, overpayments, discounts or adjustments which have become due pursuant to such member of claim submissions that would, in the aggregate, reasonably be expected to have a Company Group or for which such member of the Company Group has used in connection with the enrollment in, and billing of, Programs of a Governmental Entity.
(d) (i) No member of the Company Group, or to the Company’s Knowledge any Company Group Practitioner has had the right to receive reimbursements pursuant to any Program terminated, suspended or limited as a result of any investigation or action whether by any federal or state Governmental Entity or other third party; and (ii) no member of the Company Group has been the subject of any inspection, investigation, validation review or program integrity review, survey, audit, monitoring or other form of review by any Governmental Entity, professional review organization, accrediting organization or certifying agency based upon any alleged violation of any Health Care Law or Program, nor has any member of the Company Group received any complaint, notice of material noncompliance or notice of material deficiency related to any Health Care Law or Program in connection with the operations of the Company Group and the Business.
(e) No member of the Company Group, or to the Company’s Knowledge any Company Group Practitioner: (i) is a party to a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services, (ii) has any reporting obligations pursuant to any settlement agreement entered into with any Governmental Entity, or (iii) has been a defendant in any qui tam or false claims act litigationMaterial Adverse Effect.
(f) To Each of the Company and its Subsidiaries has paid or has properly recorded on the Company’s Knowledgeconsolidated financial statements all actually known and undisputed refunds, each Company Group Practitioner has at all times he discounts or she has provided services through any member adjustments which have become due pursuant to claims furnished to beneficiaries of the Programs and none of the Company Group or its Subsidiaries has any material liability to any Program with respect thereto, except as has been and is duly licensed to practice fully reserved for in the state where the patient in question is located. If applicable, to the Company’s Knowledge, each Company Group Practitioner who is permitted by law to dispense or prescribe drugs has been and is validly registered with the United States Drug Enforcement Administration (the “DEA”) in his or her home state, as the case may be, under the Controlled Substances Act and holds a valid state controlled substances registration as such may be required. No event has occurred and, to the Knowledge of the Company, no fact, circumstance or condition exists that has or could reasonably be expected to result in the denial, loss, revocation, rescission or restriction of or to any such professional license, DEA or state controlled substances registrationconsolidated financial statements.
(g) Except as set forth Company Schedule 3.17(h), to the Company’s Knowledge no Company Group Practitioner (i) has had a final judgment or settlement without judgment entered against him or her in connection with a malpractice or similar action, (ii) is the subject of any criminal complaint, indictment or criminal proceedings; or (iii) is subject to any proceeding based on any allegation of engaging in illegal, immoral or other misconduct (of any nature or degree), relating to his or her practice.
(h) Except as set forth on Company Schedule 3.17(i), no member of the Company Group or any of its Affiliates, or to the Company’s Knowledge no Company Group Practitioner or any of its Affiliates, have engaged in any activities which are prohibited under the Health Care Laws.
(i) No member of the Company Group or to the Company’s Knowledge any Company Group Practitioner has ever been indicted or charged or, debarred, excluded, suspended or investigated in connection with any violation of any Law involving false or fraudulent billing practices, or relating to its participation in Programs. Each member of the Company Group and to the Company’s Knowledge each Company Group Practitioner has billed all Programs in compliance with all applicable Laws and contractual obligations.
Appears in 1 contract
Health Care Matters. (a) Except as set forth The Company and each of its Affiliates, Company Employees, to the Company’s Knowledge, Company Contractors and any other Person who provides services for or on the Company Schedule 3.17(a), each member behalf of the Company Group are and the operations of the Business are, and at all times have been, conducted been in compliance in all material respects with all applicable Health Care Laws.
(b) No enforcement, regulatory or administrative Legal Proceeding has been filed, commenced, threatened in writing or, to the Company’s Knowledge, threatened orally involving the Company or any of the Company’s Affiliates alleging any failure to comply in all respects with Health Care Laws. No member subpoena, demand, civil investigative demand, or other written notice from any Governmental Authority investigating, inquiring into or otherwise relating to any actual or alleged violation of any applicable Laws, including any Health Care Law, has been filed or received by the Company or any of its Affiliates. Neither the Company nor any of its Affiliates has made a voluntary disclosure to the Department of Health and Human Services Office of Inspector General (“OIG”) pursuant to the OIG’s self-disclosure protocol or otherwise.
(c) There is no act, omission, event or circumstance of which the Company has knowledge that would reasonably be expected to give rise to or lead to any material enforcement, regulatory or administrative Legal Proceeding against the Company or any of the Company’s Affiliates related to material compliance with Health Care Laws. There are no written, or to the Knowledge of the Company, oral, lawsuits, actions, arbitrations, proceedings, charges, complaints or investigations, pending or threatened, with respect to any alleged violation by the Company or any of the Company’s Affiliates, or any other Persons acting for or on behalf of any of the foregoing, of any Health Care Law, and the Company and its Affiliates, or any other Persons acting for or on behalf of any of the foregoing, are not party to or subject to, nor is any product subject to, any corporate integrity agreements, monitoring agreements, consent decrees, deferred prosecution agreements, settlement orders or similar Contracts with or imposed by any Governmental Authority related to any Health Care Law, and no such Contract is currently pending or threatened. Neither the Company nor any of the Company’s Affiliates, or, to the Knowledge of the Company Group any other Persons acting for or on behalf of any of the foregoing, are a defendant or named party in any unsealed qui tam/False Claims Act litigation.
(d) While in the employ of the Company, no current or former members, officers, partners, directors, managing employees of the Company, and to the Knowledge of the Company, any contractors, or agents (as those terms are defined in 42 C.F.R. Section 1001.1001): (i) has been debarred, suspended or excluded from participation in the Medicare, Medicaid or any other state or federal healthcare program and has not been included on the OIG List of Excluded Individuals and Entities (LEIE); (ii) has been charged with or convicted of a criminal offense related to any Health Care Law, or been convicted of a criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item, service, or a program operated by or financed in whole or in part by any Governmental Authority, or engaged in any conduct that has or would reasonably be expected to result in any such debarment, exclusion, disqualification, suspension, or ineligibility, including, without limitation, (A) debarment under 21 U.S.C. Section 335a or any similar law; (B) exclusion under 42 U.S.C. Section 1320a-7 or any similar law or regulation; (C) exclusion under 48 CFR Subpart Section 9.4, the System for Award Management Nonprocurement Common Rule; or (D) disqualification under any FDA Laws or Regulations; (iii) has had a civil monetary penalty assessed against it, him or her under Section 1128A of the Social Security Act; (iv) is currently listed on the General Services Administration published list of parties excluded from federal procurement programs and non-procurement programs; (v) is the target or subject of any current or threatened investigation relating to any offense related to Medicare, Medicaid or any other state or federal health care program; (vi) is a party to, is bound by, or has a continuing obligation in respect of any Order, individual integrity agreement, corporate integrity agreement, consent decree, settlement order, criminal or civil fine or penalty, or other formal or informal agreement (e.g., deferred prosecution agreement) with any Governmental Authority concerning compliance with any Health Care Law fraud, theft, embezzlement, breach of fiduciary responsibility, financial misconduct, or obstruction of an investigation of controlled substances; or (vii) has engaged in any activity that is in violation of, or is cause for civil penalties or mandatory or permissive exclusion under, any Health Care Law.
(e) Neither the Company nor any of its Affiliates, or, to the Knowledge of the Company, its managers, Employees and agents (while acting in such capacity) has received notice of, and there are no pending or, to the Company’s Knowledge, threatened legal Actions relating to non-compliance by any member of the Company Group or its managers, Employees or agents (while acting in such capacity) under any Health Care Law.
(b) The Company has made available to Parent all of the Company Group’s Health Care Permits. Each member of the Company Group has and maintains in full force and effect all Health Care Permits necessary for the conduct of its Business as currently conducted or as currently contemplated to be conducted by such member of the Company Group and to carry out the transactions contemplated by this Agreement. The Company Group has (i) not received written notice, and no Governmental Entity is considering limiting, suspending, terminating, adversely amending or revoking any Health Care Permit, and (ii) not received written notice of any deficiencies requiring corrective action plans that have not been completed and accepted by the Governmental Entity. All such Health Care Permits are valid and in full force and effect and each member of the Company Group is in compliance with the terms and conditions of the applicable Health Care Permits and with the Health Care Laws and rules and regulations of the Governmental Entities having jurisdiction with respect to such Health Care Permits.
(c) Each member of the Company Group and each licensed professional or other individual employed by or contracted with such member of the Company Group or who otherwise provides health care services through such member of the Company Group meets all applicable requirements of participation and coverage of, and where applicable are parties to valid supplier or other participation agreements for payment by, Medicare, Medicaid, any other state Persons, acting for or federal government health care programs, any private insurance company, health maintenance organization, preferred provider organization, managed care organization, government contracting agency, or any other Payor program (“Programs”). There are no Actions pending or, to the Knowledge of the Company, threatened which would result in a revocation, suspension, termination, probation, restriction, limitation, or non-renewal of any Program, supplier or other participation agreement or result in the exclusion of any member of the Company Group or any of its Employees or agents from any Program. No member of the Company Group, its owners, or their respective officers, directors or managers (acting on behalf of the Company Group) have engaged in any activities which are cause for civil penalties of such member of the Company Group or mandatory or permissive exclusion from any Program. Each Company Group Practitioner has properly reassigned his or her right to payment for such services to the Company Group. Set forth in Company Schedule 3.17(c) is a correct and complete list, with respect to each member of the Company Group, of all provider numbers and NPIs relating to such member of the Company Group or for which such member of the Company Group has used in connection with the enrollment in, and billing of, Programs of a Governmental Entity.
(d) (i) No member of the Company Groupmade, paid or to the Company’s Knowledge received any Company Group Practitioner has had the right to receive reimbursements pursuant to any Program terminatedunlawful bribes, suspended or limited as a result of any investigation or action whether by any federal or state Governmental Entity kickbacks or other third party; and similar payments to or from any Person (iiincluding any customer or supplier) no member of the Company Group has been the subject of any inspection, investigation, validation review or program integrity review, survey, audit, monitoring or other form of review by any Governmental Entity, professional review organization, accrediting organization or certifying agency based upon any alleged violation of any Health Care Law or Program, nor has any member of the Company Group received any complaint, notice of material noncompliance or notice of material deficiency related to any Health Care Law or Program in connection with the operations of the Company Group and the Business.
(e) No member of the Company Group, or to the Company’s Knowledge any Company Group Practitioner: (i) is a party to a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human ServicesAuthority, (ii) has made or paid any reporting obligations pursuant contributions, directly or indirectly, to any settlement agreement entered into with any Governmental Entity, a domestic or foreign political party or candidate or (iii) has been a defendant made or paid any improper foreign payment (as defined in any qui tam or false claims act litigationthe Foreign Corrupt Practices Act).
(f) To the Company’s KnowledgeThe Company holds all required licenses, each Company Group Practitioner has at all times he certificates, approvals, permits, exemptions, authorizations or she has provided services through any member registrations set forth in Section 3.14(f) of the Company Group been and is duly licensed to practice in the state where the patient in question is located. If applicable, to the Company’s Knowledge, each Company Group Practitioner who is permitted by law to dispense or prescribe drugs has been and is validly registered with the United States Drug Enforcement Administration Disclosure Schedule (the “DEAScheduled Permits”) in his or her home state), as required for the case may be, Company under the Controlled Substances Act and holds a valid state controlled substances registration as such may be required. No event has occurred and, to the Knowledge applicable Health Care Laws in its performance of the Company, no fact, circumstance or condition exists that has or could reasonably be expected to result in the denial, loss, revocation, rescission or restriction of or to any such professional license, DEA or state controlled substances registrationBusiness as currently conducted.
(g) Except as set forth Company Schedule 3.17(h), to the Company’s Knowledge no Company Group Practitioner (i) has had a final judgment or settlement without judgment entered against him or her in connection with a malpractice or similar action, (ii) is the subject of any criminal complaint, indictment or criminal proceedings; or (iii) is subject to any proceeding based on any allegation of engaging in illegal, immoral or other misconduct (of any nature or degree), relating to his or her practice.
(h) Except as set forth on Company Schedule 3.17(i), no member of the Company Group or any of its Affiliates, or to the Company’s Knowledge no Company Group Practitioner or any of its Affiliates, have engaged in any activities which are prohibited under the Health Care Laws.
(i) No member of the Company Group or to the Company’s Knowledge any Company Group Practitioner has ever been indicted or charged or, debarred, excluded, suspended or investigated in connection with any violation of any Law involving false or fraudulent billing practices, or relating to its participation in Programs. Each member of the Company Group and to the Company’s Knowledge each Company Group Practitioner has billed all Programs in compliance with all applicable Laws and contractual obligations.
Appears in 1 contract
Samples: Merger Agreement (Absci Corp)
Health Care Matters. (a) Except as set forth The Company and each of its Affiliates, Company Employees, to the Company’s Knowledge, Company Contractors and any other Person who provides products or services for or on the Company Schedule 3.17(a), each member behalf of the Company Group are and the operations of the Business are, and at all times have been, conducted been in material compliance with all applicable Health Care Laws.
(b) No lawsuits, arbitrations, enforcement, regulatory or administrative Legal Proceeding or adverse action, demand, or cease and desist order has been filed, commenced, threatened in writing or, to the Company’s Knowledge, threatened orally involving the Company or any of the Company’s Affiliates alleging any failure to comply with Health Care Laws. No member subpoena, demand, civil investigative demand, or other written notice from any Governmental Authority investigating, inquiring into or otherwise relating to any actual or alleged violation of any applicable Laws, including any Health Care Law, has been filed or received in writing by the Company or any of its Affiliates. Neither the Company nor any of its Affiliates has made a voluntary disclosure to the Department of Health and Human Services Office of Inspector General (the “OIG”) pursuant to the OIG’s self-disclosure protocol or otherwise.
(c) There is no act, omission, event or circumstance of which the Company or its Affiliates, has knowledge that would reasonably be expected to give rise to or lead to any enforcement, regulatory or administrative Legal Proceeding against the Company or any of the Company’s Affiliates related to compliance with Health Care Laws. The Company Group and its Affiliates, or any other Persons acting for or on behalf of any of the foregoing, are not party to or subject to, nor is any product subject to, any corporate integrity agreements, monitoring agreements, consent decrees, deferred prosecution agreements, settlements, Orders or similar Contracts with or imposed by any Governmental Authority related to any Health Care Law, and, to the Company’s Knowledge, no such Contract is currently pending or threatened. Neither the Company, nor to the Company’s Knowledge, the Company’s Affiliates, or other Persons acting for or on behalf of any of the foregoing, are a defendant or named party in any unsealed qui tam/False Claims Act litigation.
(d) Neither the Company, its Affiliates, nor their respective current or former owners, members, officers, partners, directors, managing employees, contractors and vendors (including Company Contractors), or agents: (i) has been disqualified, debarred, suspended or excluded from participation in clinical research or the Medicare, Medicaid or any other state or federal healthcare program; (ii) is currently listed on the General Services Administration published list of parties excluded from federal procurement programs and non-procurement programs or the OIG List of Excluded Individuals and Entities; or (iii) to the Company’s Knowledge, (A) has been charged with or convicted of an offense related to any Health Care Law, or been convicted of a criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item, service, or a program operated by or financed in whole or in part by any Governmental Authority, or engaged in any conduct that has or would reasonably be expected to result in any such debarment, exclusion, disqualification, suspension, or ineligibility, including, without limitation,
(i) debarment under 21 U.S.C. Section 335a or any similar law; (ii) exclusion under 42 U.S.C. Section 1320a-7 or any similar law or regulation; (iii) exclusion under 48 C.F.R. Subpart Section 9.4, the System for Award Management Nonprocurement Common Rule; or (iv) disqualification under any FDA Laws or Regulations; (v) has had a civil monetary penalty threatened or assessed against it, him or her under Section 1128A of the Social Security Act; or (B) is the target or subject of any current or threatened investigation relating to disqualification, debarment, suspension, or exclusion, or any offense related to Medicare, Medicaid or any other state or federal health care program.
(e) Since the Company’s formation, neither the Company, its Subsidiaries, or, to the Knowledge Company’s Knowledge, any other Persons acting for or on behalf of the CompanyCompany has (i) made, paid or received any unlawful bribes, kickbacks or other similar payments to or from any Person (including any customer or supplier) or Governmental Authority; (ii) made or paid any contributions, directly or indirectly, to a domestic or foreign political party or candidate; or (iii) otherwise engaged in any violations of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-corruption laws. In addition to the FD&C Permits, the Company holds all required licenses, certificates, approvals, permits, exemptions, authorizations or registrations set forth in Section 3.14(e) of the Company Disclosure Schedule (the “Scheduled Permits”), as required for the Company under applicable Health Care Laws in its managersperformance of the Business as currently conducted. No loss, Employees and agents (while acting in such capacity) has received notice ofrevocation, and there are no cancellation, rescission, suspension, restriction, material modification, refusal to renew or expiration of any Scheduled Permit is pending or, to the Company’s Knowledge, threatened legal Actions relating to non-compliance by any member of the Company Group or its managers, Employees or agents (while acting in such capacity) under any Health Care Law.
(b) The Company has made available to Parent all of the Company Group’s Health Care Permits. Each member of the Company Group has and maintains in full force and effect all Health Care Permits necessary for the conduct of its Business as currently conducted or as currently contemplated to be conducted by such member of the Company Group and to carry out the transactions contemplated by this Agreement. The Company Group has (i) not received written notice, and no Governmental Entity is considering limiting, suspending, terminating, adversely amending or revoking any Health Care Permit, and (ii) not received written notice of any deficiencies requiring corrective action plans that have not been completed and accepted by the Governmental Entity. All such Health Care Permits are valid and in full force and effect and each member of the Company Group is in compliance with the terms and conditions of the applicable Health Care Permits and with the Health Care Laws and rules and regulations of the Governmental Entities having jurisdiction with respect to such Health Care Permits.
(c) Each member of the Company Group and each licensed professional or other individual employed by or contracted with such member of the Company Group or who otherwise provides health care services through such member of the Company Group meets all applicable requirements of participation and coverage of, and where applicable are parties to valid supplier or other participation agreements for payment by, Medicare, Medicaid, any other state or federal government health care programs, any private insurance company, health maintenance organization, preferred provider organization, managed care organization, government contracting agency, or any other Payor program (“Programs”). There are no Actions pending or, to the Knowledge of the Company, threatened which would result in a revocation, suspension, termination, probation, restriction, limitation, or non-renewal of any Program, supplier or other participation agreement or result in the exclusion of any member of the Company Group or any of its Employees or agents from any Program. No member of the Company Group, its owners, or their respective officers, directors or managers (acting on behalf of the Company Group) have engaged in any activities which are cause for civil penalties of such member of the Company Group or mandatory or permissive exclusion from any Program. Each Company Group Practitioner has properly reassigned his or her right to payment for such services to the Company Group. Set forth in Company Schedule 3.17(c) is a correct and complete list, with respect to each member of the Company Group, of all provider numbers and NPIs relating to such member of the Company Group or for which such member of the Company Group has used in connection with the enrollment in, and billing of, Programs of a Governmental Entity.
(d) (i) No member of the Company Group, or to the Company’s Knowledge any Company Group Practitioner has had the right to receive reimbursements pursuant to any Program terminated, suspended or limited including as a result of any investigation the Transactions). No Governmental Authority has alleged or action whether by any federal threatened that a license, certificate, approval, permit, exemption, authorization or state Governmental Entity or other third party; and (ii) no member registration is required for the operation of the business of the Company Group (or the ownership of their respective assets) that has not otherwise been the subject of any inspection, investigation, validation review or program integrity review, survey, audit, monitoring or other form of review obtained by any Governmental Entity, professional review organization, accrediting organization or certifying agency based upon any alleged violation of any Health Care Law or Program, nor has any member of the Company Group received any complaint, notice of material noncompliance or notice of material deficiency related to any Health Care Law or Program in connection with the operations of the Company Group and the Business.
(e) No member of the Company Group, or to the Company’s Knowledge any Company Group Practitioner: (i) is a party to a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services, (ii) has any reporting obligations pursuant to any settlement agreement entered into with any Governmental Entity, or (iii) has been a defendant in any qui tam or false claims act litigation.
(f) To the Company’s Knowledge, each Company Group Practitioner has at all times he or she has provided services through any member of the Company Group been and is duly licensed to practice in the state where the patient in question is located. If applicable, to the Company’s Knowledge, each Company Group Practitioner who is permitted by law to dispense or prescribe drugs has been and is validly registered with the United States Drug Enforcement Administration (the “DEA”) in his or her home state, as the case may be, under the Controlled Substances Act and holds a valid state controlled substances registration as such may be required. No event has occurred and, to the Knowledge of the Company, no fact, circumstance or condition exists that has or could reasonably be expected to result in the denial, loss, revocation, rescission or restriction of or to any such professional license, DEA or state controlled substances registration.
(g) Except as set forth Company Schedule 3.17(h), to the Company’s Knowledge no Company Group Practitioner (i) has had a final judgment or settlement without judgment entered against him or her in connection with a malpractice or similar action, (ii) is the subject of any criminal complaint, indictment or criminal proceedings; or (iii) is subject to any proceeding based on any allegation of engaging in illegal, immoral or other misconduct (of any nature or degree), relating to his or her practice.
(h) Except as set forth on Company Schedule 3.17(i), no member of the Company Group or any of its Affiliates, or to the Company’s Knowledge no Company Group Practitioner or any of its Affiliates, have engaged in any activities which are prohibited under the Health Care Laws.
(i) No member of the Company Group or to the Company’s Knowledge any Company Group Practitioner has ever been indicted or charged or, debarred, excluded, suspended or investigated in connection with any violation of any Law involving false or fraudulent billing practices, or relating to its participation in Programs. Each member of the Company Group and to the Company’s Knowledge each Company Group Practitioner has billed all Programs in compliance with all applicable Laws and contractual obligations.
Appears in 1 contract
Samples: Merger Agreement (ACELYRIN, Inc.)
