EXHIBIT 10.29
CONSULTANT PHARMACIST AGREEMENT
BY AND BETWEEN
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D/B/A NEIGHBORCARE
AND
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CONSULTANT PHARMACIST AGREEMENT
This Consultant Pharmacist Agreement ("Agreement") is made and entered
into as of the________________________ , by and between___________________,
d/b/a NeighborCare, a _____________corporation ("NEIGHBORCARE"), and
_____________________, a __________ corporation doing business as
____________________, solely in connection with the facility located at
___________ ("Facility").
RECITALS
WHEREAS, the Facility is engaged in the operation of a nursing
facility, for which it requires pharmacy consulting services in accordance with
applicable local, state and federal laws, rules and regulations;
WHEREAS, NEIGHBORCARE is a licensed pharmacy in the State of
_______________ and provides services to and on behalf of nursing services,
including pharmacy consulting services;
WHEREAS, NEIGHBORCARE and Facility have entered into a Pharmacy
Dispensing Services Agreement pursuant to which NEIGHBORCARE has agreed to
supply certain pharmacy supplies and services to Facility; and
WHEREAS, the parties hereto desire to enter into this Agreement with
respect to the provision of the pharmacy consulting services set forth herein
and as identified on Exhibit A hereto (the "Consultant Pharmacy Services") by
NEIGHBORCARE to Facility;
NOW, THEREFORE, for and in consideration of the foregoing recitals and
of the mutual promises contained in this Agreement the parties hereto hereby
agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF NEIGHBORCARE
1.1 Necessary Licenses and Qualifications. NEIGHBORCARE represents and
warrants that it has and shall maintain for the term hereof all
necessary qualifications, certificates, approvals, permits and licenses
required pursuant to applicable federal, state and local laws and
regulations to provide the Pharmacy Consultant Services under this
Agreement.
1.2 Authority. NEIGHBORCARE represents and warrants that it has all
necessary power and authority to execute, deliver and perform this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF FACILITY
2.1 Necessary Licenses and Qualifications. Facility represents and warrants
that it has and shall maintain for the term hereof all necessary
qualifications, certificates, approvals,
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permits and licenses required pursuant to applicable federal, state and
local laws and regulations to operate the Facility.
2.2 Authority. Facility represents and warrants that it has all necessary
power and authority to execute, deliver and perform this Agreement with
respect to the Facility.
2.3 Professional Management Responsibility. Facility hereby represents and
warrants that it retains professional management responsibility over
all services furnished hereunder, and retains all management and
administrative rights and responsibilities normally assumed by the
operator of a nursing facility.
ARTICLE III
NEIGHBORCARE SERVICES
NEIGHBORCARE shall provide the Pharmacy Consultant Services set forth
in this Article III and as further described in Exhibit "A" attached hereto and
made a part hereof, to the Facility in compliance with the standards set forth
herein and as may be otherwise required by applicable law.
3.1 Consultant Pharmacy Services. NEIGHBORCARE shall provide to Facility
the services of a duly licensed pharmacist (the "Consultant
Pharmacist") who shall be responsible for the general supervision of
the Facility's pharmaceutical services, and the Consultant Pharmacist
shall use the pharmacy standards of the State where both the Consultant
Pharmacist and the Facility are located. More specifically, these
services shall include:
(a) Review of the Facility's procedures for the control and
accountability of all drugs and biologicals throughout the
Facility. Such drugs and biologicals shall be approved and
dispensed in compliance with federal and state laws;
(b) Assist in establishing policies and procedures to control the
distribution and administration of drugs, biologicals and
pharmaceutical supplies;
(c) Review of the records of receipt and disposition of all legend
drugs and the maintenance of such records in sufficient detail
so as to allow an accurate reconciliation;
(d) Monthly review of the drug regimen of each Resident;
(e) Review of the labeling of all drugs and biologicals to ensure
that such labeling is based on currently accepted professional
principles and includes the appropriate accessory and
cautionary instructions, as well as, the expiration date when
applicable;
(f) Recommendations, plans for implementation and continuing
assessment through dated, signed reports, which are given to
and retained by the administrator of the Facility for
follow-up action and evaluation of performance;
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(g) Written reports to the pharmaceutical services committee, on
the status of the Facility's pharmaceutical services and
staff's performance;
(h) Serve as an active member of the Quality Assurance Committee,
and make recommendations as appropriate. Participate in the
individual plan of care of each Resident as determined by
Facility policy;
(i) Provision, when requested by the Administrator, for programs
for in-service education for professional staff of the
Facility which would enhance the effectiveness of the
pharmaceutical services said in-service education, to be
conducted by the Consultant Pharmacist or his designee;
(j) Assist in the destruction of discontinued and expired
medications, as prescribed by law; and
(k) All other responsibilities required of a consultant pharmacist
as set forth in any federal or state law, statute, or
regulation, as enacted, or as may be enacted or amended.
3.2 Hours; Replacement.
(a) NEIGHBORCARE shall arrange to provide the services of another
pharmacist during any absence, vacation, or period of illness
of the Consultant Pharmacist.
(b) The Consultant Pharmacist shall devote a sufficient number of
hours, based upon the needs of the Facility, to carry out the
Consultant Pharmacy Services set forth in Section 3.1 above.
3.3 Additional Responsibilities.
(a) The Consultant Pharmacist shall retain as confidential all
information relating to the policies, procedures and records
of the Facility.
(b) NEIGHBORCARE shall provide and make available to the Facility
on loan, certain equipment and reference materials that may be
necessary or useful, for the purpose of providing proper
pharmaceutical services. The Facility agrees to promptly
return same in good condition at the termination of this
Agreement.
ARTICLE IV
FACILITY OBLIGATIONS WITH RESPECT TO SERVICES
In connection with the ordering and receipt of the Pharmacy Consultant
Services set forth in Article III, Facility agrees that:
4.1 Use of Material and Equipment Provided by NEIGHBORCARE. Facility shall
be liable for, and shall indemnify and defend NEIGHBORCARE from and
against, any and all damages, costs, liabilities, expenses and losses,
including, without limitation, the cost of
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repairs or replacement, whatsoever sustained or incurred as a result of
casualty to or loss of, or the misuse or otherwise improper use of, any
and all material and equipment provided by NEIGHBORCARE for the use of
Facility in connection with the provision of Pharmacy Consultant
Services pursuant to the terms hereof.
ARTICLE V
BILLING AND PAYMENT
5.1 Billing and Payment for Pharmacy Supplies. The payment rates applicable
to the Pharmacy Consultant Services provided hereunder shall be as set
forth in Exhibit A attached hereto.
5.2 Monthly Billing and Payment. NEIGHBORCARE shall xxxx Facility on a
monthly basis by the fifth (5th) working day of each month for Facility
charges incurred during the past month. Facility shall pay NEIGHBORCARE
within thirty (30) days of receipt of an invoice from NEIGHBORCARE. All
amounts past due by more than thirty (30) days shall bear interest at
the rate of one and one-half percent (1.5%) per month, or the maximum
monthly rate of interest permitted by applicable law, whichever is
less.
ARTICLE VI
TERM AND TERMINATION
6.1 Term. The initial term of this Agreement shall commence on the
Effective Date (as defined in the Settlement Agreement re Pharmacy
Supply Contracts dated August ___, 2001) and will continue in full
force and effect for eighteen months. Thereafter, this Agreement shall
automatically renew for successive one (1) year terms, and during any
such renewal term either party shall have the right to terminate this
Agreement without cause by providing to the other party not less than
sixty (60) days prior written notice of termination.
6.2 Termination.
(a) This Agreement shall automatically terminate with respect to
the Facility upon the revocation or cancellation of the
Facility's license or certification.
(b) Upon the suspension of the Facility's license or
certification, NEIGHBORCARE shall have the right to terminate
this Agreement immediately upon written notice to Facility.
(c) If either party should materially fail to fulfill its
obligations or conditions set forth herein and such default
shall not be cured within thirty (30) days after written
notice from the other party specifying the nature of default,
the aggrieved party shall have the right to terminate this
Agreement by giving written notice of termination to the
defaulting party, and this Agreement shall terminate on the
thirtieth (30th) day after such notice is given. Either party
shall have the right to cure any such default up to, but not
after, the giving of such notice of termination.
(d) This Agreement may be terminated pursuant to the terms of
Section 8.9 (b).
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ARTICLE VII
RECORDS
7.1 Records. Records shall be maintained by NEIGHBORCARE of the Pharmacy
Consultant Services supplied hereunder. Notwithstanding the foregoing,
the production of medical records shall remain the responsibility of
the Facility.
7.2 Government Access to Records. NEIGHBORCARE and its subcontractors shall
make available, upon written request from the Secretary of the U.S.
Department of Health and Human Services, or the Comptroller General of
the United States General Accounting Office, or any of their duly
authorized representatives, this Agreement, and the books, documents
and records of NEIGHBORCARE that are necessary to verify the extent of
costs incurred by Facility with respect to providing services under
this Agreement for four (4) years thereafter the provision of such
services.
7.3 NEIGHBORCARE Access to Records.
(a) The Facility shall give NEIGHBORCARE and the Pharmacy
Consultant reasonable access to all resident records,
facilities and supplies necessary for the performance of their
duties herein.
(b) In the event of any dispute arising from any claim or xxxx
submitted by NEIGHBORCARE, Facility shall give NEIGHBORCARE
access to all reasonable and necessary documents and records
to investigate the accuracy of the claim. Such access shall be
during normal business hours following reasonable advance
notice from NEIGHBORCARE.
ARTICLE VIII
MISCELLANEOUS
8.1 Independent Contractors. In the performance by each party hereto of
their respective obligations hereunder, the parties shall at all times
hereunder be deemed to be independent contractors, and not the agent of
the other. Except to the extent expressly provided for herein to the
contrary, neither party shall have the right or power to bind the
other.
8.2 Insurance.
(a) NEIGHBORCARE shall maintain, during the term of this
Agreement, liability insurance coverage for its acts and
omissions in amounts of no less than one million dollars per
claim and three million dollars annual aggregate. Prior to the
commencement of this Agreement, NEIGHBORCARE shall provide to
Facility a certificate of insurance indicating that such
coverage is in effect and providing that Facility will be
notified at least thirty (30) days prior to any modification,
cancellation, reduction or non-renewal of such coverage. Any
substantial change in coverage that might adversely affect or
actually materially adversely affects Facility shall be a
breach of this Agreement.
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(b) Facility shall maintain, during the term of this Agreement,
liability insurance coverage for its acts and omissions in
amounts of no less than one million dollars per claim and
three million dollars annual aggregate. Prior to the
commencement of this Agreement, Facility shall provide to
NEIGHBORCARE a certificate of insurance indicating that such
coverage is in effect and providing that NEIGHBORCARE will be
notified at least thirty (30) days prior to any modification,
cancellation, reduction or non-renewal of such coverage. Any
substantial change in coverage that might adversely affect or
actually materially adversely affects NEIGHBORCARE shall be a
breach of this Agreement.
8.3 Indemnification.
(a) Facility shall defend, indemnify, protect and hold harmless
NEIGHBORCARE and its affiliates, and the officers, directors,
employees and agents of each of them, from and against any and
all liability, obligation, damage, loss, cost, claim,
judgment, settlement, expense or demand whatsoever, of any
kind or nature, including reasonable attorneys fees and
defense costs in connection therewith, arising directly or
indirectly from actions taken or omissions made by Facility in
its performance under this Agreement.
(b) NEIGHBORCARE shall defend, indemnify, protect and hold
harmless Facility and its affiliates, and the officers,
directors, employees and agents of each of them, from and
against any and all liability, obligation, damage, loss, cost,
claim, judgment, settlement, expense or demand whatsoever, of
any kind or nature, including reasonable attorneys fees and
defense costs in connection therewith, arising directly or
indirectly from actions taken or omissions made by
NEIGHBORCARE or its affiliates in its performance under this
Agreement.
(c) Section 8.3 will survive termination of this Agreement and
completion of the parties' duties under this Agreement.
8.4 Governing Law. Disputes arising under this Agreement shall be governed
according to the internal laws of the state of the location of the
facility, without regard to the conflicts of laws provisions thereof.
8.5 Compliance with Applicable Law. In all aspects relative to the
performance of their respective obligations under this Agreement, both
parties shall conduct their respective businesses in accordance with
applicable law.
8.6 Successors and Assigns. This Agreement shall be binding upon either
party's purchasers, transferees, successors and assigns, whether by
operation of law or otherwise, including but not limited to the sale of
the stock, assets or any other ownership interest of a party hereto to
another, or the merger or consolidation of a party hereto into another,
or any transaction by which a party to this Agreement transfers its
business to another as to which the duties and obligations provided for
under this Agreement by either or both parties hereto arise.
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8.7 Waiver of Breach. The waiver of any breach of this Agreement by either
party shall not constitute a continuing waiver or a waiver of any
subsequent breach of either the same or any other provision of this
Agreement.
8.8 Notices. Any notice or other communication made or contemplated to be
made under this Agreement shall be in writing and shall be deemed to
have been received by the party to whom it is addressed on the date of
delivery, if delivered by hand, or three (3) business days after it is
deposited in the United States Mail, postage prepaid, return receipt
requested, or the next business day after it is transmitted by Federal
Express or similar overnight delivery services, addressed, in the case
of NEIGHBORCARE to:
NeighborCare
0 Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
with a copy to:
NeighborCare
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: Law Department
and in the case of Facility to:
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Attn: Administrator
Either party may change its address for notices given hereunder by
giving fifteen (15) days prior written notice in accordance with this
Section 8.8.
8.9 Entire Agreement; Amendments.
(a) This Agreement, together with all Exhibits hereto, which are
incorporated herein and made a part hereof by this reference,
constitutes the entire Agreement between the parties hereto
and supersedes and cancels any other prior agreements or
understandings whether written, oral or implied. This
Agreement may not be amended except by an instrument in
writing signed by both the parties hereto.
(b) In the event of any material change in statutes, regulations,
or enforceable governmental policies applicable to either
party's obligations arising under this Agreement, or in the
event of the severance of any provision hereof pursuant to
Section 8.10, and either party is materially and adversely
affected thereby so as to materially diminish the benefits of
this Agreement reasonably intended by such affected party,
such affected party may provide notice of such material
adverse
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effect to the other, and request that this Agreement be
amended to resolve such material adverse effect. The parties
shall then be obligated to engage in good faith negotiations
in an attempt to agree upon an acceptable amendment to this
Agreement for the purpose of resolving the material adverse
effect. If the parties fail to agree to amend this Agreement
within thirty (30) days after receipt of notice of material
adverse effect, the affected party may terminate this
Agreement at any time thereafter, upon notice given to the
other party.
8.10 Severability. The invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of any
other term or provision hereof.
8.11 Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect the construction of
this Agreement.
8.12 Nondiscrimination. NEIGHBORCARE and the Consultant Pharmacist shall
provide all Pharmacy Consultant Services and otherwise perform all of
their respective duties and responsibilities hereunder without unlawful
discrimination on the basis of race, color, religion, national origin,
sex ancestry, disability or any other basis protected by law.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement in
multiple counterparts, each of which shall be deemed to be an original, and all
of which together shall constitute this Agreement, effective as of the date
first written above.
NEIGHBORCARE:
By:
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Its: Sr. Vice President
Date: , 2001
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FACILITY:
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By:
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Its: Vice President
Date: , 2001
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Exhibit A
PAYMENT RATES FOR PHARMACY CONSULTANT SERVICES
Pricing/Basic Rate
- NEIGHBORCARE will charge Facility $4.50 per licensed bed per
month.
MEDICAL RECORDS
Pricing/Basic Rate
- NEIGHBORCARE will charge Facility $1.50 per patient per month.
In the event NEIGHBORCARE is not the provider of pharmacy
dispensing services to Facility pursuant to a separate written
agreement, NEIGHBORCARE will charge Facility $4.50 per patient
per month, in recognition of the additional costs incurred by
NEIGHBORCARE to provide Facility with medical records where
NEIGHBORCARE is not the provider of pharmacy dispensing
services to Facility.
REQUIRED STANDARDS OF SERVICE FOR PHARMACY CONSULTATION PROGRAM
Monthly Services
- Resident chart review - Drug Regimen Review
- Written Consultation Reports
- Oversee Facility pharmacy systems, policies, and procedures
- Drug Formulary management to support compliance with the
MPAN/NEIGHBORCARE Preferred Drug List Formulary
- Observe and participate in drug destruction per state
regulations
Quarterly Services
- Medication cart and medication room audits
- Controlled drug audit
- Attend QA meeting
- One (1) medication pass training per Facility
Annual Services
- Two (2) inservice programs
Requests for additional Pharmacy Consultant support will be provided as
available at the rate of $50.00 per hour ($65.00 per hour in CA). Additional
requests for medication pass observation and training will be provided at $50.00
per hour ($65.00 per hour in CA).
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