EXHIBIT 10.1
SETTLEMENT AGREEMENT
I. PARTIES
This Settlement Agreement ("Agreement'") is entered into among the
United States of America, acting through the United States Department of
Justice; the Office of Inspector General ("OIG-HHS") of the Department of
Health and Human Services ("HHS"); the Department of Labor ("DOL"), through the
Employment Standards Administration's Office of Workers' Compensation Programs,
Division of Federal Employees' Compensation (OWCP-DFEC); and the TRICARE
Management Activity (TMA) through its General Counsel (collectively, the
"United States"); Xxxxx Xxxxxx ("Xxxxxx"), XxXxxxx Xxxxxxx ("Xxxxxxx"), Xxxx X.
Xxxxxxx ("Xxxxxxx"), Xxxx Xxxxx ("Razin"), and Xxxxxxxxxx & Associates and
Xxxxxxx Xxxxxxx ("Xxxxxxxxxx and Xxxxxxx") (collectively, the "Relators"); and,
with respect to the entities identified on Attachment A, HealthSouth
Corporation, its predecessors and current and former subsidiaries, divisions,
affiliates, and in its capacity as a joint venture participant and its capacity
as an owner or manager (collectively, "HealthSouth"), all of the above may be
referred to as "the Parties"), through their authorized representatives.
II. PREAMBLE
As a preamble to this Agreement, the Parties agree to the following:
A. HealthSouth is a corporation organized under the laws of the State of
Delaware with its headquarters in Birmingham, Alabama. HealthSouth provides
outpatient and inpatient rehabilitation health care services in over 1,400
facilities throughout the United States.
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United States' and HealthSouth False Claims Act Settlement Agreement
December 30, 2004
B. Relator Xxxxxx is an individual resident of the State of Texas. On
April 24, 1998, Xxxxxx filed a qui tam action in the United States District
Court for the Western District of Texas captioned United States ex rel. Xxxxx
Xxxxxx v. HealthSouth Corporation, et al., No. SA-98-CA-0372-DWS (W.D. Tex.)
(hereinafter, "the Xxxxxx Case") in which Xxxxxx alleged that HealthSouth
billed for excessive units of one-on-one therapy. Relator Xxxxxxx is an
individual resident of the State of Alabama. On August 18, 1999, Xxxxxxx filed
a qui tam action in the United States District Court for the Northern District
of Alabama captioned United States ex rel. Xxxxxxx v. HealthSouth Corporation,
et al., No. 02-CV-676 (W.D. Tex.) (originally filed N.D. Ala.) in which Xxxxxxx
alleged that HealthSouth billed for services provided by unlicensed providers.
Relator Darling is an individual resident of the State of Florida. On February
29, 2000, Darling filed a qui tam action in the United States District Court
for the Middle District of Florida captioned United States ex rel. Darling v.
HealthSouth Sports and Rehabilitation Center of Clearwater, No. 02-cv-667 (W.D.
Tex.) (originally filed M.D. Fla.) in which Darling alleged that HealthSouth
billed for excessive units of one-on-one therapy and for services provided by
unlicensed providers. The Darling case was subsequently transferred to the
Western District of Texas. The complaint filed in one other qui tam case was
transferred to the Western District of Texas. That case is United States ex
rel. Xxxxxx v. HealthSouth Corporation, No. 02-cv-751 (W.D. Tex.) (originally
filed E.D.N.Y.). The United States intervened in the Devage, Manning, Darling,
and Xxxxxx Cases on January 23, 2002 and filed the United States' Complaint in
the Xxxxxx action on May 23, 2002 (hereinafter referred to as "the United
States' Complaint in Intervention"). Relator Xxxxxx was afforded the
opportunity to proceed on the claims brought in the Xxxxxx Case that were not
contained in the United States' Complaint in Intervention, but Relator Xxxxxx
opted on June 7, 2002 not to proceed and the claims were dismissed with
prejudice as to Relator Xxxxxx. The United States' Complaint in Intervention
superseded the Complaint in the Xxxxxx Case. The Xxxxxxx, Darling and Xxxxxx
cases were administratively closed by Court Order dated June 24, 2003. The case
that went forward upon the filing of the United States' Complaint in
Intervention is hereinafter referred to as the "United States' Case."
C. Relator Razin is an individual resident of the State of California. On
May 1, 1998, Razin filed a qui tam action in the United States District Court
for the Central District of California captioned United States ex rel. Razin v.
HealthSouth Corporation and HealthSouth Bakersfield Hospital, No. SACV
98-389-GLT (Anx) (C.D. Cal.) (hereinafter, "the Razin Case"), in which Razin
alleged that HealthSouth and its subsidiary, HealthSouth Bakersfield
Rehabilitation Hospital ("Bakersfield"), sought reimbursement for various
categories of unallowable costs on its 1992 Medicare cost report.
D. Relator Xxxxxxxxxx & Associates is a professional accounting firm doing
business in the State of Louisiana. Relator Xxxxxxx Xxxxxxx is an individual
resident of the State of Louisiana. On May 10, 1998, these relators filed a qui
tam action in the United States District Court for the District of New Mexico
captioned United States ex rel. Xxxxxxxxxx & Associates et al. v. National
Institutional Pharmacy Services, Inc., et al., No. 98-523LH (D. N.M.)
(hereinafter, "the Xxxxxxxxxx Case") in which Xxxxxxxxxx and Xxxxxxx alleged
that the National Institutional Pharmacy Services, Inc. ("NIPSI"), which, from
November 1, 1997 through January 1, 1998 was owned by HealthSouth, and numerous
skilled nursing facilities ("SNFs"), which were also owned or operated by
HealthSouth during the same time period, fraudulently bundled the costs of
skilled labor for infusion therapy services into the prices charged for
infusion drugs, solutions, and equipment in order to avoid routine cost
limitations for reimbursement in Medicare regulations.
E. The United States' Case and the Devage, Manning, Darling, Mandel, Razin
and Xxxxxxxxxx Cases shall be collectively referred to hereinafter as the
"Civil Actions."
F. HealthSouth submitted or caused to be submitted claims for payment to
the Medicare Program (Medicare), Title XVIII of the Social Security Act, 42
U.S.C. xx.xx. 1395-1395ggg; the TRICARE Program (also known as the Civilian
Health and Medical Program of the Uniformed Services (CHAMPUS)), 10 U.S.C.
xx.xx. 1071-1109; and to the Federal Employees' Compensation Act (FECA),
administered by the United States Department of Labor, 5 U.S.C. xx.xx.
8101-8193.
G. The United States contends that it has certain civil claims, as
specified in Article III, Paragraph D below, against HealthSouth for engaging
in the following conduct during the periods specified (hereinafter referred to
as the "Covered Conduct").
1. The United States' Case
(a) HealthSouth submitted claims for reimbursement for outpatient
physical therapy services rendered to Medicare, TRICARE, or Department of Labor
FECA beneficiaries without a properly certified or recertified plan of care
between January 1, 1992 and December 31, 2002 in Outpatient Rehabilitation
Facilities ("ORFs"), Comprehensive Outpatient Rehabilitation Facilities
("CORFs"), or outpatient departments of HealthSouth hospitals. Such plans of
care did not contain one or more of the following: 1) proper or timely
signatures of physicians or other authorized signators; 2) proper
certifications or recertifications; and/or 3) proper descriptions of the
frequency, duration, goals or other plan of care criteria required to meet
Medicare, TRICARE or DOL standards.
(b) HealthSouth submitted claims for reimbursement for outpatient
skilled physical therapy services rendered to Medicare, TRICARE, or Department
of Labor FECA beneficiaries by supportive personnel, such as physical therapy
aides, technicians, athletic trainers, students, interns, or unlicensed and
non-credentialed persons between January 1, 1992 and December 31, 2002 in ORFs,
CORFs, or outpatient departments of HealthSouth hospitals.
(c) HealthSouth submitted claims for reimbursement for outpatient
physical therapy services rendered to Medicare, TRICARE, or Department of Labor
FECA beneficiaries which sought reimbursement for improper physical therapy
claims between January 1, 1992 and December 31, 2002 in ORFs, CORFs, or
outpatient departments of HealthSouth hospitals. These improper claims for
physical therapy services were for billing for one-on-one services when
one-on-one services were not provided, billing for excessive physical therapy
services (i.e., billing excessive units of physical therapy services), and
billing direct contact CPT codes when providing group physical therapy.
2. HealthSouth Bakersfield
HealthSouth and its subsidiary, HealthSouth Bakersfield Rehabilitation
Hospital ("Bakersfield"), sought reimbursement for various categories of
unallowable costs on its 1991 and 1992 Medicare cost reports. Specifically,
Bakersfield filed cost reports with its Medicare Fiscal Intermediary ("FI")
which contained the following items of unallowable costs:
(a) Bakersfield allocated the square footage of a non-reimbursable
hospital department (physician office space) as reimbursable;
(b) Bakersfield used an improper methodology for allocating
equipment costs;
(c) Bakersfield mishandled certain lease expense payments by
treating them as a capital expense instead of an operating expense;
(d) Bakersfield improperly grouped miscellaneous Medicare charges
into the physical therapy cost center which receives the highest Medicare
reimbursement of any Bakersfield cost center, instead of allocating the charges
to their respective cost centers as required;
(e) Bakersfield ignored the provider-based physician Reasonable
Compensation Equivalents limit (a per hour dollar limit for physician
services);
(f) Bakersfield claimed guest meals that are unallowable for
Medicare reimbursement;
(g) Bakersfield failed to credit Medicare with payments made by
other insurers (secondary payers);
(h) Bakersfield claimed non-allowable marketing expenses;
(i) Bakersfield allocated tax expenses to the incorrect cost
center;
(j) Bakersfield allocated cafeteria costs incorrectly;
(k) Bakersfield failed to set up a separate cost center for
recreational therapy as required, and instead grouped the costs of this therapy
into the adults and pediatrics cost center; and
(l) Bakersfield failed to disclose interim payments received from
Medicare.
3. The Xxxxxxxxxx Case
From November 1, 1997 to January 1, 1998, NIPSI and SNFs owned or
operated by HealthSouth fraudulently bundled the costs of skilled labor for
infusion therapy services into the prices charged for infusion therapy drugs,
solutions, and equipment to avoid routine cost limitations for reimbursement in
Medicare regulations. NIPSI provided infusion therapy drugs, solutions,
equipment, and skilled nursing labor for infusion therapy to SNFs. The SNFs
were not directly billed for the nursing labor because NIPSI bundled that cost
into the other, inflated prices. The SNFs then termed all of the charges
"ancillary costs" and unlawfully billed them to Medicare.
4. Other Cost Report Claims
The United States alleges that HealthSouth knowingly submitted claims
to Medicare Part A for costs which were improper or not reimbursable as
specified below, thereby wrongfully claiming Medicare reimbursement for these
costs. The United States contends that these mischarged, improper or
nonreimbursable costs were as follows:
(a) Fraudulent Financial Accounting Practices. The United States
alleges that HealthSouth engaged in a number of fraudulent financial accounting
practices, some of which, as specified below, resulted in claims on cost
reports, cost statements, and other requests for federal payment, or payments
made with respect thereto, to which HealthSouth was not entitled. Specifically,
the United States alleges that the conduct described in Subparagraphs (a) (1),
(2), (3), (4), (5) and (6) of this Article II, Paragraph G(4) resulted from
HealthSouth's fraudulent financial accounting practices, and caused claims to
be submitted to Medicare on cost reports, cost statements and otherwise which
resulted in HealthSouth receiving payments to which it was not entitled.
(1) Bonuses. HealthSouth paid bonuses to executives, corporate
employees, facility administrators and other management personnel based in part
on HealthSouth's achieving specific financial objectives. Between 1995 and
2002, the financial objectives which triggered the bonuses were met and the
bonuses paid because of HealthSouth's fraudulent financial accounting
practices. Nineteen of the corporate executives who received bonus payments
between 1995 and 2001 have since pled guilty to criminal charges arising from
their roles in the fraudulent financial accounting practiced by HealthSouth.
Xxxxxxx Xxxxxxx, HealthSouth's former CEO, who received over $50 million in
bonuses from 1995-2001 and directed the payment of bonuses to others, has been
indicted for his role in the accounting fraud. In its Medicare Home Office Cost
Statements for cost report periods ending between January 1, 1995 and December
31, 2001, from which costs are allocated to individual provider Medicare cost
reports, HealthSouth improperly claimed portions of the bonuses paid to Mr.
Scrushy, executives who pled guilty, other corporate employees, facility
administrators and other management personnel despite the fact that these
bonuses had been earned as a result of HealthSouth's fraudulent financial
accounting practices.
(2) Fictitious Fixed Assets. HealthSouth recorded over $1.1 billion
in fictitious fixed assets on its books, which resulted in claims on cost
reports, cost statements, and other requests for payment, or payments made with
respect thereto, to which HealthSouth was not entitled. Most of the fictitious
asserts were described as "AP Summary," and were usually assigned a zero year
useful life for Medicare depreciation purposes. Other fictitious assets were
recorded with a variety of other descriptions, such as "Cap Internet," "CIP
Reclass," "Dev Implementation," "HCAP," "XxxxxxXxxxx.xxx," "RTN," and "Software
Implementation" (collectively, the "Non-AP Summary fixed assets") and recorded
in accounts for the Home Office, including the Corporate Office and Home Office
Mini-Branches, and in accounts for individual providers. The Non-AP Summary
fixed Assets were assigned various useful life terms for Medicare purposes.
HealthSouth fraudulently claimed depreciation costs for some of the AP Summary
and non-AP Summary fixed assets on its Home Office Cost Statements and Medicare
cost reports filed by individual providers for cost reporting periods ending
between January 1, 1998 and December 31, 2001.
(3) Aircraft Expenses. HealthSouth maintained a fleet of up to
thirteen aircraft and one helicopter which were used for both patient care and
non-patient care business, and for non-business purposes. In addition to
improperly claiming expenses associated with fictitious assets and unallowable
contributions, and non-patient care usage of the aircraft on its Home Office
Cost Statements, portions of which were allocated to the individual provider
cost reports for cost reporting periods ending between January 1, 1995 and
December 31, 2001, HealthSouth also claimed depreciation and operating costs
for the aircraft on the same Home Office Cost Statements and provider cost
reports. The claims for depreciation and operating expenses were improper
because (1) the number of aircraft and associated overhead claimed for was
excessive; (2) the most expensive aircraft (and therefore the aircraft having
the largest amount of cost) were primarily used for non-patient care purposes;
and (3) in 2000 and 2001, HealthSouth continued to claim reimbursement for
depreciation for two aircraft that it had sold in 1999.
(4) Gain on Sale of Caremark Stock. In the spring of 2001,
HealthSouth sold its stock in Caremark, a publicly held company, at a $19.3
million gain. HealthSouth did not report the gain on sale resulting from the
Caremark transaction on its 2001 Medicare Home Office Cost Statement or its
individual provider cost reports, and did not offset the gain against interest
expense, nor was this corrected in subsequent years, which caused HealthSouth
to be overpaid by Medicare on its Home Office Cost Statements and individual
provider cost reports for cost reporting periods including 2001.
(5) Depreciation Claims for Assets from Closed Facilities.
HealthSouth improperly claimed depreciation costs for assets which were
assigned to certain facilities which had been closed. These claims were made on
individual provider cost reports for cost reporting periods ending between
January 1, 1997 and December 31, 2001. A list of the affected facilities and
cost report years is identified on Attachment B.
(6) Improperly Capitalized Leases. Between January 1, 1997 and
December 31, 2001, HealthSouth inappropriately capitalized certain lease
expenses in its accounting records; these lease expenses were recorded as fixed
assets in HealthSouth's accounting records. A number of these incorrectly
recorded expenses resulted in improper claims for Medicare reimbursement on
individual provider cost reports. The relevant facilities and assets, and
affected cost report years are identified on Attachment C.
(b) Other Unallowable Costs Included in Medicare Home Office Cost
Statements and Individual Provider Cost Reports. In addition to fraudulent
financial accounting in the Home Office Cost Statement costs described in
Subparagraphs (a)(1), (2), (3), (4), (5) and (6) of this Article II, Paragraph
G(4), HealthSouth improperly claimed or caused to be claimed, the following
improper costs described in Subparagraphs (b)(1), (2), (3), (4) and (5) of this
Article II, Paragraph G(4) on its Home Office Cost Statements, with an
allocation of those costs to individual provider cost reports for the cost
reporting periods indicated below in those Subparagraphs. Further, HealthSouth
made false claims in certain provider cost reports for favorable lease costs,
as described in Subparagraph (b)(6) of this Article II, Paragraph G(4).
(1) Disney World Annual Administrators' Meeting. HealthSouth held
its annual Administrators' Meeting at Disney World in Florida from at least
1996 through 2002. From 1998 through 2001, each attendee was permitted to bring
a spouse or guest, and children. For the meetings held in the years 1996-2001,
HealthSouth improperly claimed on its Medicare Home Office Cost Statement and
individual provider cost reports for reimbursement certain non-allowable costs
of the Annual Administrators' Meeting, including the costs of entertainment.
For the meetings held in the years 1998-2001, HealthSouth also improperly
claimed on its Medicare Home Office Cost Statement and individual provider cost
reports for reimbursement non-allowable travel expenses of spouses and guests.
(2) Board of Director Fees. HealthSouth improperly claimed Board of
Director fees on its Home Office Cost Statements and, by allocation, on its
individual provider cost reports, for cost reporting periods ending from
January 1, 1995 through December 31, 2001, despite the fact that those same
costs had been disallowed by the fiscal intermediary on Home Office Cost
Statements filed for cost report periods ending December 31, 1993 and December
31, 1994.
(3) Travel Expenses. HealthSouth claimed travel expenses on its
Home Office Cost Statements and, by allocation, on its individual provider cost
reports, which were not associated with patient care for cost reporting periods
ending between January 1, 1995 and December 31, 1995, January 1, 1997 and
December 31, 1998, and January 1, 2001 and December 31, 2001.
(4) Public Information Expenses. HealthSouth improperly claimed
non-allowable marketing expenses on its Home Office Cost Statements and, by
allocation, to individual provider cost reports, by placing them in an account
known as "Public Information" for cost reporting periods ending between January
1, 1995 and December 31, 1996.
(5) Tax Penalty Expenses. HealthSouth improperly claimed tax
penalty expenses on its Home Office Cost Statements and, by allocation, to the
individual provider cost reports for cost reporting periods ending between
January 1, 1995 and December 31, 1996.
(6) Favorable Lease Claims. On December 31, 1993, HealthSouth
acquired rehabilitation facilities from National Medical Enterprises ("NME").
On February 6, 1995, HealthSouth acquired rehabilitation facilities from
NovaCare. In each of these acquisitions, many of the facilities acquired
operated in buildings leased from third-party owners. HealthSouth characterized
the leases as favorable leases; a lease is favorable if the rent required under
the lease is less than market rent. Next, HealthSouth allocated large portions
of the prices in both acquisitions as amounts paid to acquire these favorable
leases. Then, HealthSouth claimed portions of these favorable lease amounts on
a number of Medicare cost reports between 1994 and 2001 ("Favorable Lease
Claims"). However, HealthSouth made no effort to determine if the leases
acquired were in fact favorable, nor is there any evidence that the leases were
in fact favorable. As a result, these favorable lease claims were false and
nonreimbursable pursuant to the relevant Medicare program guideline, Medicare
Provider Reimbursement Manual (PRM) ss. 111. The specific facilities and cost
report years are identified on Attachment D.
5. Other Part A Claims
The United States alleges that HealthSouth submitted claims on
forms UB-92 for inpatients at certain hospitals identified in Subparagraphs (a)
and (b) of this Paragraph and Attachment E hereto which were false for the
reasons identified below. These false claims resulted in HealthSouth receiving
payments to which it was not entitled. The specific claims are as follows:
(a) Outlier Payments. HealthSouth received outlier payments from
January 1, 2002 through September 30, 2003 for eleven inpatient facilities
acquired by HealthSouth from NME in 1993. The outlier payments were based on
the Medicare cost-to-charge ratios contained in the 1994 cost reports for those
facilities. Those 1994 cost reports contained false Favorable Lease Claims as
described in Article II, Paragraph G(4)(b)(6). The false Favorable Lease Claims
inflated the cost-to-charge ratios in the 1994 cost reports, resulting in
outlier overpayments between January 1, 2002 and September 30, 2003. The
relevant facilities are identified on Attachment E.
(b) Doctor's Hospital Arthritis Unit Admissions. Between January 1,
1999 and December 31, 2001, HealthSouth's Doctor's Hospital in Coral Gables,
Florida, Medicare Provider Number 10-0022, submitted Part A claims to Medicare
for inpatient admissions to its Arthritis Unit that were not medically
necessary. These claims include the individual UB-92 claims and Doctor's
Hospital's cost reports for 1999, 2000, and 2001. HealthSouth also failed to
report the billing errors to the hospital's fiscal intermediary when detected
in 2001 and to offer repayment as required by its May 17, 2001 Corporate
Integrity Agreement with OIG-HHS.
H. The United States also contends that it has certain administrative
claims, as specified in Article III, Paragraphs D through H below, against
HealthSouth for engaging in the Covered Conduct.
I. This Agreement is neither an admission of liability by HealthSouth nor
a concession by the United States that it claims are not well founded.
HealthSouth denies the allegations of the Relators in the Civil Actions, and
the allegations of the United States in Article II, Paragraph G. Nothing in
this Agreement shall constitute evidence or an admission that any Relator has a
valid claim.
J. HealthSouth has entered into an Administrative Settlement Agreement
with HHS to mutually resolve the obligations specified therein for HealthSouth
and the HealthSouth Providers for cost reporting periods ending on or before
December 31, 2003.
K. To avoid the delay, uncertainty, inconvenience, and expense of
protracted litigation of the above claims, the Parties reach a full and final
settlement pursuant to the Terms and Conditions below.
III. TERMS AND CONDITIONS
A. HealthSouth agrees to pay the sum of $325,000,000, plus accrued
interest from November 4, 2004, at an annual rate of 4.125% (the "Settlement
Amount") to the United States calculated as reflected in Article III, Paragraph
B, Subparagraph (2). The $325,000,000 principal Settlement Amount represents
the total of the following principal settlement amounts:
1. $169,042,080 for the United States' Case, of which $49,576,944
is for the Xxxxxx case and $24,418,495 is for the Xxxxxxx case;
2. $736,410 for the Razin/HealthSouth Bakersfield case;
3. $1,000,000 for the Xxxxxxxxxx case;
4. $65,082,887 for the Cost Report Claims for Fraudulent Financial
Accounting Practices described in Article II, Paragraph G(4)(a)(1)-(6); and
5. $89,138,623 for the Other Unallowable Costs Included in Medicare
Home Office Cost Statements and Individual Provider Cost Reports described in
Article II, Paragraph G(4)(b)(1)-(6) and the Other Part A Claims described in
Article II, Paragraph G(5).
B. The Settlement Amount shall be paid as follows:
1. HealthSouth will make an initial payment to the United States in
the amount of $77,203,767.12 ($75,000,000 principal plus accrued interest
between November 4, 2004 and the date of payment) on January 3, 2005, provided
this Agreement is effective on or prior to that date.
2. HealthSouth will make quarterly payments to the United States in
the amount of $22,256,078.10 (principal and interest) beginning on or before
March 31, 2005 and continuing through December 31, 2007
3. All payments made by HealthSouth to the United States will be
made by ACH transaction pursuant to written instructions to be provided by the
United States.
4. The entire balance of the Settlement Amount, or any portion
thereof, due to the United States under this Agreement, may be prepaid without
penalty.
C. Relators' Shares
1. The United States agrees to pay Relators Xxxxxx and Xxxxxxx a
combined total of 16.5% of the $73,995,439 principal settlement amount for the
Xxxxxx and Xxxxxxx cases in satisfaction of 31 U.S.C. ss. 3730(d). Relators
Xxxxxx and Xxxxxxx will receive a total principal amount of $12,209,247 as
their share of the False Claims Act (FCA) proceeds recovered in the Xxxxxx and
Xxxxxxx cases. Payments to Relators Xxxxxx and Xxxxxxx will be made pursuant to
the terms of this Settlement Agreement on a pro rata basis including a pro rata
share of interest. Each payment by the United States to Relators Xxxxxx and
Xxxxxxx will occur within a reasonable time of payments being received by the
United States from HealthSouth. Payments by the United States to Relators
Xxxxxx and Xxxxxxx will be done by ACH transaction.
2. The United States agrees to pay Relators Xxxxxxxxxx & Associates
and Xxxxxxx Xxxxxxx a combined total of 15% of the $1,000,000 principal
settlement amount for the Xxxxxxxxxx case in satisfaction of 31 U.S.C. ss.
3730(d). Relators Xxxxxxxxxx & Associates and Xxxxxxx Xxxxxxx will receive a
total principal amount of $150,000 as their share of the FCA proceeds allocated
to the Xxxxxxxxxx case. Payments to Relators Xxxxxxxxxx & Associates and
Xxxxxxx Xxxxxxx will be made pursuant to the terms of this Settlement
Agreement, on a pro rata basis including a pro rata share of interest. Each
payment by the United States to Relators Xxxxxxxxxx & Associates and Xxxxxxx
Xxxxxxx will occur within a reasonable time of payments being received by the
United States from HealthSouth. Payments by the United States to Relators
Xxxxxxxxxx & Associates and Xxxxxxx Xxxxxxx will be done by ACH transaction.
3. The United States agrees to pay Relator Razin 20% of the
$736,410 principal settlement amount for the Razin case in satisfaction of 31
U.S.C. ss. 3730(d). Relator Razin will receive a total principal amount of
$147,282 as his share of the FCA proceeds allocated to the Razin case. Payments
to Relator Razin will be made pursuant to the terms of this Settlement
Agreement, on a pro rata basis including a pro rata share of interest. Each
payment by the United States to Relator Razin will occur within a reasonable
time of payments being received by the United States from HealthSouth. Payments
by the United States to Relator Razin will be done by ACH transaction.
D. Subject to the exceptions in Article III, Paragraph I below, in
consideration of the obligations of HealthSouth in this Agreement, conditioned
upon HealthSouth's full payment of the Settlement Amount, and subject to
Article III, Paragraph W below (concerning bankruptcy proceedings commenced
within 91 days of the Effective Date of this Agreement or any payment under
this Agreement), the United States (on behalf of itself, its officers, agents,
agencies, and departments) agrees to release HealthSouth as identified in
Attachment A from any civil or administrative monetary claim the United States
has or may have for the Covered Conduct under the False Claims Act, 31 U.S.C.
xx.xx. 3729-3733; the Civil Monetary Penalties Law, 42 U.S.C. ss. 1320a-7a; the
Program Fraud Civil Remedies Act, 31 U.S.C. xx.xx. 3801-3812; or the common law
theories of payment by mistake, unjust enrichment, restitution, fraud, and
disgorgement of illegal profits. No individuals are released by this Agreement.
E. Subject to the exceptions in Article III, Paragraph I below, in
consideration of the obligations of HealthSouth in this Agreement, conditioned
upon HealthSouth's full payment of the Settlement Amount, and subject to
Article III, Paragraph W below (concerning bankruptcy proceedings commenced
within 91 days of the Effective Date of this Agreement or any payment under
this Agreement), and subject to the Relators Devage, Razin, and Xxxxxxxxxx
Associates/Xxxxxxx'x reservation of rights to seek payment of any fees and
costs under 31 U.S.C. ss. 3730(d)(1) set forth in Article III, Paragraph K,
Relators Devage, Manning, Darling, Razin, and Xxxxxxxxxx Associates and
Freemen, for himself or itself, and for his or its heirs, successors,
attorneys, agents, assigns, officers, employees, partners, and members, agree
to release HealthSouth from any and all claims asserted and unasserted, known
and unknown, based upon any transaction or incident occurring prior to the
Effective Date of this agreement, and including but not limited to all claims
that have been or could have been asserted in his or its respective Civil
Action, and from any civil monetary claim the United States has or may have
under the False Claims Act, 31 U.S.C. xx.xx. 3729-3733, for the Covered Conduct
that is pled in his or its respective Civil Action, with the single exception
that Relator Darkling is not agreeing to release HealthSouth for the claims
asserted or which may be asserted in the pending case styled Darling v.
HealthSouth Sports Medicine & Rehabilitation Center of Clearwater Limited
Partnership and HealthSouth Rehabilitation Corporation, Case No. 98-6110-CI-20
(Fla. Pinellas County Ct.).
F. In consideration of the obligations of HealthSouth in this Agreement
and the December 2004 Corporate Integrity Agreement ("CIA") that is attached
hereto as Attachment F and incorporated by reference, conditioned upon
HealthSouth's full payment of the Settlement Amount, and subject to Article
III, Paragraph W below (concerning bankruptcy proceedings commenced within 91
days of the Effective Date of this Agreement or any payment under this
Agreement), the OIG-HHS agrees to release and refrain from instituting,
directing, or maintaining any administrative action seeking exclusion from
Medicare, Medicaid, and other Federal health care programs (as defined in 42
U.S.C. ss. 1320a-7b(f)) against HealthSouth under 42 U.S.C. ss. 1320a-7a (Civil
Monetary Penalties Law) or 42 U.S.C. ss. 1320a-7(b)(7) (permissive exclusion
for fraud, kickbacks, and other prohibited activities) for the Covered Conduct,
except as reserved in Article III, Paragraph I below, and as reserved in this
Paragraph. The OIG-HHS expressly reserves all rights to comply with any
statutory obligations to exclude HealthSouth from Medicare, Medicaid, and other
Federal health care programs under 42 U.S. C. ss. 1320a-7(a) (mandatory
exclusion) based upon the Covered Conduct. Nothing in this Paragraph precludes
the OIG-HHS from taking action against entities or persons, or for conduct and
practices, for which claims have been reserved in Article III, Paragraph I
below.
G. In consideration of the obligations of HealthSouth set forth in this
Agreement, conditioned upon HealthSouth's full payment of the Settlement
Amount, and subject to Article III, Paragraph W below (concerning bankruptcy
proceedings commenced within 91 days of the Effective Date of this Agreement or
any payment under this Agreement), OWCP-DFEC agrees to release and refrain from
instituting, directing, or maintaining any administrative action seeking
exclusion from the FECA Program against HealthSouth under Paragraphs (c)
through (h) of 20 C.F.R. ss. 10.815 (permissive exclusion) for the Covered
Conduct, except as reserved in Article III, Paragraph I, below, and as reserved
in this Paragraph. OWCP-DFEC expressly reserves authority to exclude
HealthSouth from the FECA Program under Paragraphs (a) and (b) of 20 C.F.R. ss.
10.815 (automatic exclusion) based upon the Covered Conduct. Nothing in this
Paragraph precludes OWCP-DFEC from taking action against entities or persons,
or for conduct and practices, for which civil claims have been reserved in
Article III, Paragraph I below.
H. In consideration of the obligations of HealthSouth set forth in this
Agreement, conditioned upon HealthSouth's full payment of the Settlement
Amount, and subject to Article III, Paragraph W below (concerning bankruptcy
proceedings commenced within 91 days of the Effective Date of this Agreement or
any payment under this Agreement), TMA agrees to release and refrain from
instituting, directing, or maintaining any administrative action seeking
exclusion from the TRICARE Program against HealthSouth under 32 C.F.R. ss.
199.9 for the Covered Conduct, except as reserved in Article III, Paragraph I
below, and as reserved in this Paragraph. TMA expressly reserves authority to
exclude HealthSouth from the TRICARE Program under 32 C.F.R. xx.xx. 199.9
(f)(1)(i)(A), (f)(1)(i)(B), and (f)(1)(iii), based upon the Covered Conduct.
Nothing in this Paragraph precludes TMA or the TRICARE Program from taking
action against entities or persons, or for conduct and practices, for which
civil claims have been reserved in Article III, Paragraph I below.
I. Notwithstanding any term of this Agreement, specifically reserved and
excluded from the scope and terms of this Agreement as to any entity or person
(including HealthSouth and Relators Devage, Manning, Darling, Razin, Xxxxxxxxxx
& Associates and Xxxxxxx) are the following claims of the United States:
1. Any civil, criminal, or administrative liability arising under
Title 26, U.S. Code (Internal Revenue Code);
2. Any criminal liability;
3. Except as explicitly stated in this Agreement, any
administrative liability, including mandatory exclusion from Federal health
care programs;
4. Any liability to the United States (or its agencies) for any
conduct other than the Covered Conduct;
5. Any liability based upon such obligations as are created by this
Agreement;
6. Any liability for express or implied warranty claims or other
claims for defective or deficient products or services, including quality of
goods and services.
7. Any liability for personal injury or property damage or for
other consequential damages arising from the Covered Conduct; and
8. Any liability of individuals, including officers and employees.
J. Each Relator agrees that the Settlement Amount as it pertains to each
Relator's Civil Action identified in this Article III, Paragraph A is fair,
adequate and reasonable under the circumstances, under 31 U.S.C. ss. 3730(c)
(2)(B).
K. Relators Devage, Razin, and Xxxxxxxxxx Associates/Xxxxxxx reserve their
rights to seek payment of any fees and costs under 31 U.S.C. ss. 3730(d)(1).
Relators Xxxxxxx and Xxxxxxx waive their rights to fees and costs under 31
U.S.C. ss. 3730(d)(l). HealthSouth specifically reserves the right to challenge
the payment of any fees to Relators' attorneys and/or the amounts thereof under
31 U.S.C. ss. 3730(d)(l). If HealthSouth and any of the Relators are unable to
reach an agreement regarding reasonable attorneys' fees and costs, in
conjunction with the stipulation of dismissal referenced in Article III,
Paragraph CC, the involved parties will request that the appropriate Court
retain jurisdiction over such matter, and those parties agree that any such
disagreement will be resolved by the United States District Court for the
District in which the qui tam action is pending.
L. Conditioned upon receipt of their Relator's share identified in Article
III, Paragraphs C (1), (2), and (3), Relators Devage, Manning, Razin,
Xxxxxxxxxx & Associates and Xxxxxxx, each agree for themselves, and for their
heirs, successors, agents and assigns, to fully and finally release, waive, and
forever discharge the United States, its officers, agents, and employees, from
any claims arising from or relating to 31 U.S.C. ss. 3730, including 31 U.S.C.
xx.xx. 3730(b), (c), (c)(5), (d), and (d)(1), from any claims arising from the
filing of the Civil Action, and from any other claims for a share of the
Settlement Amount, and in full settlement of any claims Relators Devage,
Manning, Xxxxxxxxxx & Associates and Xxxxxxx may have under this Agreement.
This Agreement does not resolve or in any manner affect any claims the United
States has or may have against the Relator arising under Title 26, U.S. Code
(Internal Revenue Code), or any claims arising under this Agreement. Relator
Darling waives his right to any claims arising from or relating to 31 U.S.C.
ss. 3730, including 31 U.S.C. xx.xx. 3730(b), (c), (c)(5), (d), and (d)(1),
from any claims arising from the filing of the Civil Action, and from any other
claims for a share of the Settlement Amount.
M. The CIA shall be effective immediately upon execution in accordance
with the terms thereof.
N. HealthSouth agrees that it will not raise as a legal defense in any way
the releases provided in the Administrative Settlement Agreement, the closing
and settlement of cost reports, or any other terms of the Administrative
Settlement Agreement in response to any False Claims Act or other civil fraud
claims of the United States that are not released by this Agreement.
O. HealthSouth waives and will not assert any defenses HealthSouth may
have to any criminal prosecution or administrative action relating to the
Covered Conduct that may be based in whole or in part on a contention that,
under the Double Jeopardy Clause in the Fifth Amendment of the Constitution, or
under the Excessive Fines Clause in the Eighth Amendment of the Constitution,
this Agreement bars a remedy sought in such criminal prosecution or
administrative action. HealthSouth agrees that this Agreement is not punitive
in purpose or effect. Nothing in this Paragraph or any other provision of this
Agreement constitutes an agreement by the United States concerning the
characterization of the Settlement Amount for purposes of the Internal Revenue
laws, Title 26 of the United States Code.
P. HealthSouth fully and finally releases the United States, its agencies,
employees, servants, and agents form any claims (including attorney's fees,
costs, and expenses of every kind and however denominated) which HealthSouth
has asserted, could have asserted, or may assert in the future the United
States, its agencies, employees, servants, and agents, related to the Covered
Conduct and the United States' investigation and prosecution thereof.
Q. HealthSouth fully and finally releases Relators Devage, Manning,
Darling, Razin, and Brupacher Associates and Xxxxxxx and his or its heirs,
successors, attorneys, agents, assigns, officers, employees, partners and
members from any and all claims asserted and unasserted, known and unknown,
based upon any transaction or incident occurring prior to the Effective Date of
this agreement, and including but not limited to, all claims that have been or
could have been asserted in connection with any of the relators' respective
Civil Actions, or for the Covered Conduct that is pled in the United States'
Complaint in Intervention.
R. The Settlement Amount will not be decreased as a result of the denial
of claims for payment now being withheld from payment by any Medicare carrier
or intermediary, TRICARE carrier or payor, or the Department of Labor (for FECA
claims) or any State payor, related to the Covered Conduct; and HealthSouth
shall not resubmit to any Medicare carrier or intermediary, TRICARE carrier or
payor, or the Department of Labor (for FECA claims) or any State payor any
previously denied claims related to the Covered Conduct, and shall not appeal
any such denials of claims.
S. Unallowable Costs
1. Unallowable Costs Defined: all costs (as defined in the Federal
Acquisition Regulation, 48 C.F.R. ss. 31.205-47, and in Titles XVIII and XIX of
the Social Security Act, 42 U.S.C. xx.xx. 1395-1395ggg and xx.xx. 1396 - 1396v,
and the regulations and official program directives promulgated thereunder)
incurred by or on behalf of HealthSouth, its present or former officers,
directors, employees, shareholders, and agents in connection with the following
shall be "unallowable costs" on government contracts and under the Medicare
Program, Medicaid Program, the TRICARE Program, the FECA Program of the
Department of Labor, the Veteran's Administration (VA), and the Federal
Employee Health Benefits Program (FEHBP):
(a) the matters covered by this Agreement,
(b) the United States' audit(s) and civil and criminal
investigation of the matters covered by this Agreement,
(c) HealthSouth's investigation, defense, and corrective
actions undertaken in response to the United States' audit(s) and civil and
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorney's fees),
(d) the negotiation and performance of this Agreement,
(e) the payment HealthSouth makes to the United States pursuant
to this Agreement and any payments that HealthSouth may make to Relators,
including costs and attorneys fees,
(f) the negotiation of, and obligations undertaken pursuant to
the December 2004 CIA to:
(i) Retain an independent review organization to perform
annual reviews as described in Section III of the CIA; and
(ii) prepare and submit reports to the OIG-HHS.
However, nothing in this Paragraph that may apply to the obligations undertaken
pursuant to the CIA affects the status of costs that are not allowable based on
any other authority applicable to HealthSouth; and
(g) the negotiation of, and obligations undertaken pursuant to
the Administrative Settlement Agreement. (All costs described or set forth in
this Paragraph are hereafter, "unallowable costs".)
2. Future Treatment of Unallowable Costs: These unallowable costs
shall be separately determined and accounted for in nonreimbursable cost
centers by HealthSouth, and HealthSouth shall not charge such unallowable costs
directly or indirectly to any contracts with the United States or any state
Medicaid program, or seek payment for such unallowable costs through any cost
report, cost statement, information statement, or payment request submitted by
HealthSouth or any of its subsidiaries or affiliates to the Medicare, Medicaid,
TRICARE, FECA, VA or FEHBP Programs.
3. Treatment of Unallowable Costs Previously Submitted for Payment:
HealthSouth further agrees that within 90 days of the Effective Date of this
Agreement it shall identify to applicable Medicare and TRICARE fiscal
intermediaries, carriers, and/or contractors, and Medicaid, FECA, VA, and FEHBP
fiscal agents, any unallowable costs (as defined in this Paragraph) included in
payments previously sought from the United States, or any State Medicaid
Program, including, but not limited to, payments sought in any cost reports,
cost statements, information reports, or payment requests already submitted by
HealthSouth or any of its subsidiaries or affiliates, and shall request, and
agree, that such cost reports, cost statements, information reports, or payment
requests, even if already settled, be adjusted to account for the effect to of
the inclusion of the unallowable costs. HealthSouth agrees that the United
States, at a minimum, shall be entitled to recoup from HealthSouth any
overpayment plus applicable interest and penalties as a result of the inclusion
of such unallowable costs on previously-submitted cost reports information
reports, cost statements, or requests for payment.
Any payments due after the adjustments have been made shall be paid to
the United States pursuant to the direction of the Department of Justice,
and/or the affected agencies. The United States reserves its rights to disagree
with any calculations submitted by HealthSouth on the effect of inclusion of
unallowable costs (as defined in this Paragraph) on Health South or any of its
subsidiaries or affiliates' cost reports, cost statements, or information
reports.
4. Nothing in this Agreement shall constitute a waiver of the rights
of the United States to audit, examine, or re-examine HealthSouth's books and
records to determine that no unallowable costs have been claimed in accordance
with the provisions of this Paragraph.
T. This Agreement is intended to be for the benefit of the Parties only.
The Parties do not release any claims against any other person or entity,
except to the extent provided for in Article III, paragraph U below.
U. HealthSouth waives and shall not seek payment for any of the health
care xxxxxxxx covered by this Agreement from any health care beneficiaries or
their parents, sponsors, legally responsible individuals, or third party payors
based upon the claims defined as Covered Conduct.
V. HealthSouth warrants that it has reviewed its financial situation and
that it currently is solvent within them earning of 11 U.S.C. xx.xx. 547(b)(3)
and 548(a)(1)(B)(ii)(I), and will remain solvent following payment to the
United States of the Settlement Amount. Further, the Parties warrant that, in
evaluating whether to execute this Agreement, they (1) have intended that the
mutual promises, covenants, and obligations set forth constitute a
contemporaneous exchange for new value given to HealthSouth, within the meaning
of 11 U.S.C. xx.xx. 547(c)(1); and (2) conclude that these mutual promises,
covenants, and obligations do, in fact, constitute such a contemporaneous
exchange. Further, the Parties warrant that the mutual promises, covenants, and
obligations set forth herein are intended and do, in fact, represent a
reasonably equivalent exchange of value which is not intended to hinder, delay,
or defraud any entity to which HealthSouth was or became indebted to on or
after the date of this transfer, within he meaning of 11 U.S.C. ss. 548(a)(1).
W. If within 91 days of the Effective Date of this Agreement or of any
payment made hereunder, HealthSouth commences, or a third party commences, any
case, proceeding, or other action under any law relating to bankruptcy,
insolvency, reorganization, or relief of debtors (1) seeking to have any order
for relief of HealthSouth's debts, or seeking to adjudicate HealthSouth as
bankrupt or insolvent; or (2) seeking appointment of a receiver, trustee,
custodian, or other similar official for HealthSouth or for all or any
substantial part of HealthSouth's assets, HealthSouth agrees as follows:
1. HealthSouth's obligations under this Agreement may not be avoided
pursuant to 11 U.S.C. ss. 547, and HealthSouth will not argue or otherwise take
the position in any such case, proceeding, or action that: (a) HealthSouth's
obligations under this Agreement may be avoided under 11 U.S.C. ss. 547; (b)
HealthSouth was insolvent at the time this Agreement was entered into, or
became insolvent as a result of the payment made to the United States; or [c]
the mutual promises, covenants, and obligations set forth in this Agreement do
not constitute a contemporaneous exchange for new value given to HealthSouth.
2. If HealthSouth's obligations under this agreement are avoided for
any reason, including, but not limited to, through the exercise of a trustee's
avoidance powers under the Bankruptcy Code, the United States, at its sole
option, may rescind the releases in this agreement, and bring any civil and/or
administrative claim, action, or proceeding against HealthSouth for the claims
that would otherwise be covered by the releases provided in Article III,
Paragraphs D through H above. HealthSouth agrees that (a) any such claims,
actions or proceedings brought by the United States (including any proceedings
to exclude HealthSouth from participation in Medicare, Medicaid, or other
Federal health care programs) are not subject to an "automatic stay" pursuant
to 11 U.S.C. ss. 362(a) as a result of the action, case, or proceeding
described in the first clause of this Paragraph, and that HealthSouth will not
argue or otherwise contend that the United States' claims, actions, or
proceedings are subject to an automatic stay; (b) Healthsouth will not plead,
argue, or otherwise raise any defenses under the theories of statute of
limitations, laches, estoppel, or similar theories, to any such civil or
administrative claims, actions, or proceedings which are brought by the United
States within 90 calendar days of written notification to HealthSouth that the
releases have been rescinded pursuant to this Paragraph, except to the extent
such defenses were available on the Effective Date of the Settlement Agreement;
and (c) the United States has a valid claim against HealthSouth in the amount
of $675,000,000, and the United States may pursue its claim in the cases,
actions, or proceedings referenced in the first clause of this Paragraph, as
well as in any other cases, actions, or proceedings.
3. HealthSouth acknowledges that its agreements in this Paragraph are
provided in exchange for valuable consideration provided in this Agreement.
X. Payment Default Provision. In the event that Healthsouth fails to pay
any amount as provided in Article III, Paragraph A within ten (10) business
days of the date upon which such payment is due HealthSouth shall be in Default
of its payment obligations under this Settlement Agreement ("Default"). The
United States will provide written notice of the Default, and HealthSouth shall
have an opportunity to cure such Default within fifteen (15) business days from
the date of receipt of the written notice. Notice of Default will be delivered
to Xxxxxxx X. Xxxxx, Executive Vice President, General Counsel and Secretary,
HealthSouth Corporation, Xxx XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000,
Telephone 000-000-0000, Fax 000-000-0000, or to such other representative as
HealthSouth shall designate in advance in writing. Written notice shall be
provided via Federal Express or facsimile, with proof of receipt via Federal
Express tracking or the retention of an internal facsimile transmission receipt
being sufficient. If HealthSouth fails to cure the Default within fifteen (15)
business days of receiving the Notice of Default, the remaining unpaid balance
of the settlement Amount shall become immediately due and payable, and interest
shall accrue at the Medicare interest rate set by CMS in accordance with 42
C.F.R. ss. 405.378 compounded daily from the date of Default on the remaining
unpaid total (principle and interest balance). HealthSouth shall consent to a
Consent Judgment in the amount of the unpaid balance (in the form attached),
and the United States, at its sole option, may: (1) offset the remaining unpaid
balance from any amounts due and owing to HealthSouth by any department,
agency, or agent of the United States at the time of the Default; or (2)
exercise any other rights granted by law or in equity, including the option of
referring such matters for private collection. HealthSouth agrees not to
contest any offset imposed and not to contest any collection action undertaken
by the United States or other department, agency, or agent of the United States
pursuant to this Paragraph, either administratively or in any state or federal
court. HealthSouth shall pay the United States all reasonable costs of
collection and enforcement under this Paragraph, including attorney's fees and
expenses. The lack of written notice of default provided by the United States
shall not constitute a waiver by the United States of the default, or of any
prior or subsequent defaults, and shall not constitute a waiver of any of the
rights or obligations of any party to this Agreement, including HealthSouth's
obligations to make future payments in accordance with the provisions of
Article III, Paragraphs A and B.
Y. Exclusion. In the event of Default and the failure of HealthSouth to
cure the Default within 15 calendar days of receiving written notice of the
Default, the OIG-HHS may exclude HealthSouth from participating in all Federal
health care programs until HealthSouth pays the Settlement Amount and
reasonable costs as set forth in Article III, Paragraph X above. Such exclusion
shall have national effect and shall also apply to all other federal
procurement and non-procurement programs. Federal health care programs shall
not pay anyone for items or services, including administrative and management
services, furnished, ordered, or prescribed by HealthSouth in any capacity
while HealthSouth is excluded. This payment prohibition applies to HealthSouth,
anyone who employs or contracts with HealthSouth, any hospital or other
provider where HealthSouth provides services, and anyone else. The exclusion
applies regardless of who submits the claims or other request for payment.
HealthSouth shall not submit or cause to be submitted to any Federal health
care program any claim or request for payment for items or services, including
administrative and management services, furnished, ordered, or prescribed by
HealthSouth during the exclusion. Violation of the conditions of the exclusion
may result in criminal prosecution, the imposition of civil penalties and
assessments, and an additional period of exclusion. HealthSouth further agrees
to hold the Federal health care programs, and all federal beneficiaries and/or
sponsors, harmless from any financial responsibility for items or services
furnished, ordered, or prescribed to such beneficiaries or sponsors after the
effective date of the exclusion. HealthSouth waives any further notice of the
exclusion and agrees not to contest such exclusion either administratively or
in any state or federal court. Reinstatement to program participation is not
automatic. If at the end of the period of exclusion HealthSouth wishes to apply
for reinstatement, HealthSouth must submit a written request for reinstatement
in accordance with the provisions of 42 C.F.R. xx.xx. 1001.3001-.3005.
HealthSouth will not be reinstated unless and until the OIG-HHS approves such
request for reinstatement.
The provisions of this Paragraph Y (Exclusion) of this Article III shall
not become effective if HealthSouth has become subject to a case, proceeding,
or other action under any law relating to bankruptcy, insolvency,
reorganization, or relief of debtors for so long as HealthSouth either (1)
continues to make the payments as provided in Paragraph A of this Article III,
or (2) in such case, proceeding or other action HealthSouth (a) concurrent with
commencing the case, proceeding or other action (or in its first filing, if the
case, proceeding or action is involuntary), requests any and all Court orders
and approvals needed to allow HealthSouth to make such payments in full, (b)
such orders and approvals are agreed to by the Court and effective within 30
days of such filing and (c) such payments in full are made within 30 days of
the issuance of the Court order or approval.
Z. Except as expressly provided to the contrary in this Agreement, each
Party shall bear its own legal and other costs incurred in connection with this
matter, including the preparation and performance of this Agreement.
AA. This Agreement is governed by the laws of the United States. Except as
other wise provided in Article III, Paragraph K above, the Parties agree that
the exclusive jurisdiction and venue for any dispute arising between and among
the Parties under this Agreement will be the United States District Court for
the Western District of Texas, San Antonio Division, except that disputes
arising under the CIA, shall be resolved exclusively under the dispute
resolution provisions in the CIA, and venue for disputes arising under the
Administrative Settlement Agreement shall be the United States District Court
for the District of Columbia.
BB. This Agreement and the CIA constitute the complete agreement between
the Parties. These Agreements may not be amended except by written consent of
the Parties, except that only HealthSouth and OIG-HHS must agree in writing to
modification of the CIA.
CC. Upon receipt of the initial payment described in Article III,
Paragraph B above, the United States shall file a Notice of Intervention in the
Razin and Xxxxxxxxxx cases. The United States and each of these Relators shall
promptly sign and file in each of their Civil Actions a Joint Stipulation of
Dismissal with prejudice of the Civil Action against HealthSouth pursuant to
the terms of the Agreement. Upon receipt of the initial payment described in
Article III, Paragraph B above, the United States and Xxxxxx shall promptly
sign and file in that Civil Action a Joint Stipulation of Dismissal with
prejudice of the United States' Complaint pursuant to the terms of this
Agreement. In addition, upon receipt of the initial payment described in
Article III, Paragraph B above, the United States and Relators Xxxxxxx and
Xxxxxxx shall promptly sign and file Joint Stipulations of Dismissal with
prejudice of the Xxxxxxx and Darling actions. Each of these aforementioned
Stipulations shall request that the Court retain jurisdiction as set forth in
Article III, Paragraph K, and shall be subject to the rights of the United
States and the OIG-HHS as set forth in Article III, Paragraph X.
DD. The individuals signing this Agreement on behalf of HealthSouth
represent and warrant that they are authorized by HealthSouth to execute this
Agreement. The individuals signing this Agreement on behalf of the Relators
represent and warrant that they are authorized by the Relators to execute this
Agreement. The United States signatories represent that they are signing this
Agreement in their official capacities and that they are authorized to execute
this Agreement.
EE. This Agreement may be executed in counterparts, each of which
constitutes an original and all of which constitute one and the same agreement.
FF. This Agreement is binding on HealthSouth's and Relators' successors,
transferees, heirs, and assigns.
GG. All Parties consent to the United States' disclosure of this
Agreement, and information about this Agreement, to the public.
HH. Facsimiles of signatures shall constitute acceptable, binding
signatures for purposes of this Agreement. This Agreement is effective on the
date of signature of the last signatory to the Agreement (the "Effective
Date").
THE UNITED STATES OF AMERICA
DATED: BY: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxxxx, Esq.
Assistant Director
Commercial Litigation Branch
Civil Division
United States Department of Justice
DATED: BY: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
Chief Counsel to the Inspector General
Office of Inspector General
United States Department of Health and
Human Services
DATED: BY: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx
Deputy General Counsel
TRICARE Management Activity
United States Department of Defense
DATED: BY: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
Deputy Director for Federal Employees'
Compensation, Office of Workers'
Compensation Programs
United States Department of Labor
HEALTHSOUTH CORPORATION
DATED: BY: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx, Esq.
Executive Vice President
General Counsel and Secretary
DATED: BY: /s/ Xxxxxx X. Xxx
-------------------------------------
Xxxxxx X. Xxx, Esq.
Xxxx X. Xxxxxxxxx, Esq.
Xxxx Xxxxx LLP
RELATOR XXXXX XXXXXX
DATED: BY: /s/ Xxxxx Xxxxxx
-------------------------------------
Relator Xxxxx Xxxxxx
DATED: BY: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx, Esq.
Xxxxx Casseb Xxxxx Xxxxxx Xxxxxx
& Xxxxxx
Counsel for Xxxxx Xxxxxx
BY: /s/ Xxxxx Xxxxxxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxxxxxx
Counsel for Xxxxx Xxxxxx
BY: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx & Xxxxxx
Counsel for Xxxxx Xxxxxx
DATED: BY: /s/ XxXxxxx Xxxxxxx
-------------------------------------
Relator XxXxxxx Xxxxxxx
DATED: BY: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx, Esq. Shelby & Xxxxxx
Counsel for XxXxxxx Xxxxxxx
RELATOR XXXX X. XXXXXXX
DATED: BY: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Relator Xxxx X. Xxxxxxx
DATED: BY: /s/ Xxxxxxxxxxx Xxxxxx
-------------------------------------
Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx & Xxxxxx
Counsel for Xxxx X. Xxxxxxx
RELATOR XXXX XXXXX
DATED: BY: /s/ Xxxx Xxxxx
-------------------------------------
Relator Xxxx Xxxxx
DATED: BY: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx, Esq.
Xxxxxxxx & Xxxxx
Counsel for Xxxx Xxxxx
RELATORS XXXXXXXXXX AND ASSOCIATES AND XXXXXXX XXXXXXX
DATED: BY: /s/ Xxxxx Xxxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxxx, on behalf of
Relator Xxxxxxxxxx & Associates
BY: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx
BY: /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx, Esq.
Counsel for Relators Xxxxxxxxxx &
Associates and Xxxxxxx Xxxxxxx
