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Exhibit 10.21
RENAL CARE GROUP, INC.
CHIEF MEDICAL OFFICER SERVICES AGREEMENT
FEBRUARY 12, 1996
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CHIEF MEDICAL OFFICER SERVICES AGREEMENT
THIS CHIEF MEDICAL OFFICER SERVICES AGREEMENT (the "Agreement") is made
and entered into this 12th day of February, 1996, to be effective as provided
for herein below, by and between RCG MISSISSIPPI, INC., a Delaware corporation
(the "COMPANY"), and Xxxx X. Xxxxx, M.D., an individual resident of the State
of Mississippi (the "PHYSICIAN").
WITNESSETH
WHEREAS, the COMPANY owns and operates various renal dialysis
facilities located throughout the Southeastern United States which provide
outpatient and home dialysis services,
WHEREAS, the COMPANY desires to engage a physician who is skilled in
the care of patients at End Stage Renal Disease ("ESRD) facilities and is
willing to act as the COMPANY's Chief Medical Officer;
WHEREAS, the PHYSICIAN is licensed to practice medicine and prescribe
drugs without restriction in the States of Mississippi, Arkansas and Louisianna
specializes in dialysis services, is experienced in the care of patients at
ESRD facilities and is willing to act as the COMPANY's Chief Medical Officer.
NOW THEREFORE, in consideration of the mutual covenants and agreements
of the parties as herein set forth, the receipt and sufficiency of such
consideration being hereby acknowledged, the parties agree as follows:
ARTICLE I
SERVICES
1.1 ENGAGEMENT. The COMPANY shall engage the services of the PHYSICIAN
and the PHYSICIAN shall perform services for the COMPANY as the Chief Medical
Officer. In such capacity, the PHYSICIAN shall (i) serve as the chairman of
the COMPANY's Medical Advisory Board, (ii) oversee the activities of the
Physicians retained by the COMPANY as medical directors of the COMPANY's
various ESRD Facilities located in the Southeastern United States and the
physicians admitting patients to the COMPANY's facilities, (iii) assist the
COMPANY in formulating and implementing policies and procedures for the
operation of the COMPANY's ESRD facilities which shall be in accordance with
the requirements of Medicare and Medicaid and other applicable state and
federal laws, rules and regulations; (iv) make recommendations to the COMPANY
in keeping controllable costs of the COMPANY's facilities to a minumum; (v)
maintain the COMPANY's overall quality management program, and procedures to
promote the consistency and quality of all dialysis services provided by the
COMPANY so that the COMPANY is in compliance with all applicable governmental
requirements; and (vii) perform the services customarily performed by medical
directors of dialysis facilities and such additional or other tasks related to
the oversight of dialysis treatments being administered at any COMPANY ESRD
facility located in Mississippi, Arkansas, and Louisianna which is temporarily
without a medical director.
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1.2 RESPONSIBILITIES. Without limiting the generality of the foregoing,
when acting as a medical director of an ESRD facility, the PHYSICIAN shall
perform the following services:
(a) Ensure proper administration and execution of the
facility's patient care policies through the facility's Administrative Nurse;
(b) Provide medical expertise to the facility's nursing staff
through the facility's Administrative Nurse;
(c) Oversee the facility's physical facilities and assets and
the daily operation and maintenance of dialysis equipment;
(d) Monitor the selection of the appropriate dialysis treatment
modality and treatment setting for facility patients in conjunction with the
patients attending physician, if necessary;
(e) Ensure policies are in place for assuring the availability
of personnel capable of handling emergency situations should they arise;
(f) Develop needs analyses, implement and monitor facility
training programs, including in-service training to patients;
(g) Review and approve water analysis results and monthly
culture reports, direct and monitor appropriate remedial steps as needed;
(h) Participate in on-site governmental and managed care
organization surveys upon request of the COMPANY; review federal, state and
local survey reports and, as needed, participate in the development and
implementation of appropriate plans of correction;
(i) Review all facility incident reports, patient complaints
and quality management reviews and implement corresponding actions, if
necessary;
(j) Be available to the members of the facility's physicians in
a counseling capacity and serve as the facility's governing body representative
to such physicians;
(k) Attend periodic conferences upon request of the COMPANY's
Medical Advisory Board;
(l) Perform those other functions required of the facility's
medical director;
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ARTICLE II
TERM AND TERMINATION
2.1 TERM. This Agreement shall become effective as of 12:01 a.m. on
February 12, 1996 (the "Effective Date") and shall remain in full force and
effect until 12:00 p.m. midnight on February 11, 2000, unless otherwise earlier
terminated as provided in this Article II (the "Initial Term"). Unless the
PHYSICIAN or the COMPANY provides notice in writing to the other of such party's
intention to terminate at least 30 days prior to the expiration date of the
initial term or the then existing term, this Agreement shall automatically renew
for an additional one (1) year term on the same terms and conditions of this
Agreement.
2.2 TERMINATION BY AGREEMENT. If the COMPANY and the PHYSICIAN shall
mutually agree in writing, this Agreement shall be terminated on the time and
date stipulated therein.
2.3 TERMINATION WITHOUT CAUSE. Either the COMPANY or the PHYSICIAN may
terminate this Agreement at the end of the Initial Term or any Renewal Term by
giving thirty (30) days prior written notice to the PHYSICIAN of such intention
to terminate.
2.4 TERMINATION FOR CAUSE. The COMPANY may terminate this Agreement and
all rights and liabilities created by this Agreement immediately, at any time
for cause including, but not limited to the PHYSICIAN's dishonesty;
misappropriation of funds; suspension or revocation of any of the PHYSICIAN's
medical licenses or authorizations or ability to prescribe drugs; loss or
suspension of the PHYSICIAN's board certification; commission or conviction,
including a plea of nolo contendre, of any felony or of any crime involving
moral turpitude.
2.5 EFFECT OF TERMINATION OR EXPIRATION. Following the expiration of
this Agreement or its termination for any reason, the PHYSICIAN shall not
interfere with any intent by the COMPANY to contract with any other individual
or entity for the provision of chief medical officer services.
ARTICLE III
ILLNESS, INCAPACITY OR DEATH
3.1 INCAPACITY. If, at any time during the term of this Agreement, the
PHYSICIAN becomes disabled or unable to perform for any reason all of the duties
described herein, such disability or inability to perform his duties shall not
then be in breach of this Agreement. The disability or inability to perform his
duties shall be determined by a qualified physician selected by the COMPANY.
The PHYSICIAN shall continue to receive all of the compensation provided in
Article IV of this Agreement during any disability.
3.2 DEATH. In the event of PHYSICIAN's death during the term of this
Agreement, PHYSICIAN's estate shall continue to receive all of the compensation
provided in Article IV of this Agreement.
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ARTICLE IV
COMPENSATION
4.1 COMPENSATION. In consideration of the services, covenants, and
agreements agreed to be performed by the PHYSICIAN during the Term of this
Agreement, the COMPANY shall pay the PHYSICIAN a Chief Medical Officer Fee of
One Hundred Thousand Dollars ($100,000) during each year of this Agreement. The
Chief Medical Officer Fee shall be payable in equal monthly installments on the
tenth (10th) day of the month following the month in which services are
rendered. The PHYSICIAN agrees to accept the Chief Medical Officer Fee as
determined above as the total compensation for all services, covenants and
agreements pursuant to this Agreement.
4.2 ADDITIONAL EFFECT OF TERMINATION. If either the COMPANY or the
PHYSICIAN terminates this Agreement or it expires before the end of a pay
period, the compensation shall be pro-rated on a daily basis for purposes of
calculating the amount of compensation due PHYSICIAN through the date of
termination or expiration.
ARTICLE V
STATUS OF PARTIES
5.1 INDEPENDENT CONTRACTOR STATUS. It is mutually understood and agreed
that the PHYSICIAN is an independent contractor in his performance of the
professional services, duties and obligations contemplated by this Agreement.
The COMPANY shall neither have nor exercise any control or direction over the
methods or manner by which the PHYSICIAN performs his professional services and
functions. Except for requiring the coverage of services called for in the
Agreement, the COMPANY shall not set nor shall it have the right to set, the
specific working hours of the PHYSICIAN. The PHYSICIAN shall not be subject to
any policies or procedures applicable to the COMPANY except those required of
the COMPANY for it to be in compliance with governmental laws and regulations;
nor shall he be entitled to employee benefits including vacation pay, sick
leave, retirement benefits, Social Security, Workers' Compensation, disability
or unemployment insurance benefits that may be provided to the COMPANY's
employees. The terms of this Agreement shall take precedence over any
inconsistent terms which may be found in the policies, PHYSICIAN applications,
or otherwise of the COMPANY as presently existing or as amended.
5.2 PAYMENT OF TAXES. The PHYSICIAN acknowledges that he will have sole
responsibility for the payment of all federal, state and local estimated,
withholding and employment taxes arising out of its relationship with and the
performance of the professional services for the COMPANY. The PHYSICIAN
acknowledges and agrees that the COMPANY will not withhold on his behalf any
sums for income tax, unemployment insurance, social security or any other
withholding pursuant to any law or requirement of any governmental body, nor
will the COMPANY make available to the PHYSICIAN any of the benefits afforded to
employees of the COMPANY. Each and every one of such payments, withholding and
benefits, if any, is the sole responsibility of the PHYSICIAN. The PHYSICIAN
agrees to indemnify and hold the COMPANY harmless from any and all loss or
liability arising with respect to such payments, withholdings and benefits, if
any. In the event the United States Internal Revenue Service ("IRS") should
question or challenge the
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worker status of the PHYSICIAN, the parties hereto mutually agree that both the
PHYSICIAN and the COMPANY shall have the right to participate in any discussion
or negotiation occurring with the IRS, irrespective of or by whom such
discussions or negotiations are initiated; and, each party shall notify the
other in advance of any planned meeting or discussion.
5.3 NO AGENCY. The PHYSICIAN shall not have the right or authority and
hereby expressly covenants not to enter into a contract in the name of the
COMPANY or otherwise bind the COMPANY, in any way, without the express written
consent of the COMPANY. The PHYSICIAN shall hold the COMPANY harmless from any
loss attributable to a violation of this covenant. However, PHYSICIAN shall
advise and assist the COMPANY in securing and retaining contracts in the name
and for the account of the COMPANY with such individuals or entities necessary
for the proper and efficient functioning of the COMPANY.
5.4 ACCESS TO RECORDS. If it is ultimately determined that Section 952
of the Omnibus Reconciliation Act of 1980 applies to this Agreement, the
PHYSICIAN will make available to the Secretary of the United States Department
of Health and Human Services, the United States Comptroller General, and their
representatives, this Agreement and all books, documents and records necessary
to certify the nature and extent of the costs of those services. If the
PHYSICIAN carries out the duties of this Agreement through a subcontract worth
$10,000 or more over a twelve-month period with a related organization, the
subcontract will also contain an access clause to permit access by the
Secretary, Comptroller General, and their representatives to the related
organizations's books, documents and records.
ARTICLE VI
INSURANCE
6.1 MINIMUM INSURANCE COVERAGE. The PHYSICIAN shall purchase and
maintain at his expense professional and general liability insurance coverage
from a commercial insurance company licensed to transact insurance in the State
of Mississippi and acceptable to the COMPANY in an amount equal to the higher
of One Million Dollars ($1,000,000) per claim and Three Million Dollars
($3,000,000) in the aggregate per year, (the "Minimum Coverage").
6.2 CONTINUING COVERAGE. If the PHYSICIAN either changes insurance
carriers for any reason or switches from "claims made" to "occurrence"
coverage, or has the Minimum Coverage terminated for any reason, then the
PHYSICIAN shall obtain the requisite Minimum Coverage with prior acts coverage
containing a retroactive date sufficient to cover any claims arising out of
acts which occurred from the Effective Date of this Agreement through and
including the expiration date of the current coverage.
6.3 EVIDENCE OF COVERAGE. On execution of this Agreement and annually
thereafter or on reasonable request, the PHYSICIAN shall provide the COMPANY
with a certificate of insurance or other written instrument acceptable to the
COMPANY evidencing purchase of the requisite Minimum Coverage. The PHYSICIAN
shall notify the COMPANY at least thirty (30) days prior
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to the voluntary cancellation or termination of the Minimum Coverage and
immediately upon receipt of any notice of involuntary cancellation or
termination of the Minimum Coverage.
ARTICLE VII
REPRESENTATIONS
7.1 Representations and Warranties. In performing services under
this Agreement, the PHYSICIAN covenants and warrants that he:
(a) Is licensed without restriction to practice medicine in
the States of Mississippi, Arkansas and Louisiana, and has never had any such
license in this or any other state limited, withdrawn, suspended, subject to
reprimand, curtailed, placed on probation or revoked;
(b) Is a member of the active medical staff of a hospital
and has at least one (1) year experience or training in the care of patients at
an end stage renal disease treatment facility;
(c) Has never been denied membership or reappointment to
membership on the medical staff of any health care facility, and no health care
facility medical staff membership or clinical privileges of the PHYSICIAN have
ever been limited, suspended, curtailed, revoked, placed on probation or
withdrawn, subject to reprimand whether voluntarily or as a result of action
(either formal or informal) initiated by any health care facility or its
medical staff;
(d) Shall use his best and most diligent efforts and
professional skills and judgment in rendering services under this Agreement;
(e) Shall perform professional services and shall render
care to patients in accordance with and in a manner consistent with appropriate
standards and the ethics of the medical profession and as necessary for the
COMPANY to maintain compliance with applicable governmental laws and
regulations;
(f) Shall immediately notify the COMPANY of any denial,
suspension, revocation or curtailment of licensure or certification status,
medical staff membership or clinical privileges held by the PHYSICIAN with any
state, company, payor or health care facility;
(g) Has notified the COMPANY of each action or claim
alleging professional negligence filed or asserted against him within the
previous five (5) years and a current status and/or ultimate resolution of
such claim and will immediately notify the COMPANY in writing of his receipt of
any action, claim or lawsuit alleging professional negligence lodged against
him individually or against any partnership, professional corporation or
association with which he is affiliated; and
(h) Shall immediately notify the COMPANY of any sanction,
threatened sanction, investigation or proceeding by any governmental agency or
any entity regarding his participation in the Medicare, Medicaid program or any
third party payor program.
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ARTICLE VIII
MISCELLANEOUS
8.1 NOTICES. Any notices to be given under this Agreement shall be
deemed given if sent U.S. certified mail, return receipt requested, to the
parties at the following addresses:
PHYSICIAN: Xxxx X. Xxxxx, M.D.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
COMPANY: RCG MISSISSIPPI, INC.
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxx X. Xxxxxx, President
If either party desires to change either the address or the person to
whom notice is to be given, such change must be done in writing delivered to
the parties.
8.2 AMENDMENTS. This Agreement may be amended at any time by mutual
agreement of the parties hereto, but any such amendment shall not be operative
or valid unless the same is reduced to writing and approved by the parties
hereto.
8.3 ASSIGNABILITY. This Agreement is personal to the PHYSICIAN and the
PHYSICIAN shall not assign any of his rights or obligations under this Agreement
without consent of the COMPANY. The COMPANY may not assign its rights and
obligations under this Agreement without the consent of the PHYSICIAN.
8.4 SEVERABILITY AND TERMINATION PROVISIONS. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under present or
future laws in effect during the term of this Agreement, the legality, validity
or enforceability of the remaining provisions of this Agreement shall not be
effected thereby, and in lieu of such illegal, invalid or unenforceable
provisions, there shall be added automatically as part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be legal, valid and enforceable.
8.5 HEADINGS. The headings of this Agreement are inserted for
convenience only and are not to be considered in constructing of the provisions
hereof.
8.6 ENTIRE AGREEMENT. This Agreement constitutes the full contract and
agreement of the parties, superseding all prior or contemporaneous agreements,
either oral or written.
8.7 CONSTRUCTION OF THE AGREEMENT AND BINDING EFFECT. This Agreement
shall be construed and interpreted according to the laws of the State of
Mississippi.
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8.8 NON-WAIVER. The failure of either part to exercise any of its
rights under this Agreement for a breach thereof shall not be deemed to be a
waiver of such rights or a waiver of any subsequent breach.
8.9 DISPUTES AND GOVERNING LAW. The COMPANY and the PHYSICIAN agree
that any dispute arising in connection with, or relating to, this Agreement or
the termination of this Agreement, to the maximum extent allowed by applicable
law, shall be subject to resolution through informal methods and, failing such
efforts, through arbitration. Either party may notify the other party of the
existence of a dispute by written notice to the address indicated hereinabove.
The parties shall thereafter attempt in good faith to resolve their differences
within thirty (30) days after the receipt of such notice. If the dispute
cannot be resolved within such 30-day period, either party may file a written
demand for arbitration with the other party. The arbitration shall proceed in
accordance with the terms of the Federal Arbitration Act and the rules and
procedures of the American Arbitration Association. A single arbitrator shall
be appointed through the American Arbitration Association's procedures to
resolve the dispute.
The parties agree that in the event arbitration is necessary, the laws of
the State of Mississippi and any applicable federal law shall apply. The
place of the arbitration shall be Jackson, Mississippi.
The award of the arbitrator shall be binding and conclusive upon the
parties. Either party shall have the right to have the award made the judgment
of a court of competent jurisdiction in the State of Mississippi.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written to be effective as provided hereinabove.
COMPANY: RCG MISSISSIPPI, INC.
BY: /s/ Xxx X. Xxxxxx, President
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Xxx X. Xxxxxx, President
PHYSICIAN:
/s/ Xxxx X. Xxxxx, M.D.
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Xxxx X. Xxxxx, M.D.
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