MANAGEMENT AGREEMENT
Exhibit 10.11
THIS AGREEMENT (this “Agreement”) is made and entered effective as of , 2010,
by and between Aurora Diagnostics, LLC, a Delaware limited liability company (“Manager”),
and , a professional limited liability company (the
“Practice”).
WHEREAS, Manager, by itself and through its various subsidiaries, is engaged in the business
of providing comprehensive practice management services to physician practices;
WHEREAS, the Practice employs and retains certain persons who are duly licensed to practice
medicine in the State of and are specialists in the field of dermatopathology
(“Practice Providers”);
WHEREAS, the Practice and its Practice Providers have developed relationships with hospitals,
physicians and other health care providers pursuant to which such hospitals, physicians and other
providers refer specimens to the Practice or the Practice Providers for the rendition of
professional dermatopathology services;
WHEREAS, Manager desires to provide comprehensive practice management services to the Practice
as further described herein (“Management Services”) on an exclusive basis; and
WHEREAS, the Practice desires to engage Manager to provide Management Services on its behalf.
NOW, THEREFORE, in consideration of the covenants and agreements contained in this Agreement,
Manager and the Practice agree as follows:
1. Practice Obligations.
a. Exclusivity. The Practice hereby acknowledges and agrees that Manager shall be the
exclusive provider of Management Services during the Term (as defined herein). During the Term,
the Practice will not retain, engage or employ, directly or indirectly, any other entity or
individual to provide any or all of the Management Services or any practice management services
similar thereto. The Practice acknowledges that Manager is providing the Management Services on a
non-exclusive basis and may provide similar services to other persons.
b. Professional Standards. Professional medical services, including services incident thereto
(hereinafter referred to as “Medical Services”) shall be performed solely by, or under the
direct supervision of, the Practice Providers. The Practice shall have complete and absolute
control over the methods by which the Practice, the Practice Providers and other professional
personnel practice medicine and/or render the professional services which they are licensed to
provide under federal law and the laws of the states in which they are practicing. The Practice
shall require that the Practice Providers comply with applicable ethical standards, laws and
regulations. The Practice shall, with the assistance of Manager, resolve utilization review or
quality assurance issues which may arise. In the event that disciplinary actions or professional
liability actions are initiated against any Practice Provider, the Practice shall immediately
inform
Manager of the action and the underlying facts and circumstances. The Practice shall implement and
maintain a program to monitor the quality and utilization of medical care, and Manager shall render
administrative assistance to Practice.
c. Managed Care Relationships. The Practice shall assist the the Manager in evaluating,
negotiating, and administering managed care contracts and other third party payor contracts on
behalf of the Practice and its Practice Providers. The Practice shall cooperate with Manager in
the development and operation of managed care arrangements. The Practice shall participate as a
provider and in the administrative operation of integrated delivery systems and managed care
arrangements. The Practice and its Practice Providers agree to comply with the quality assurance
and utilization review programs of managed care arrangements.
d. Facility Relationships. The Practice shall assist the Manager in evaluating, negotiating,
administering and entering into all hospital and other medical facility contracts pursuant to which
the Practice and its Practice Providers shall provide services.
e. Continuing Medical Education. The Practice shall ensure that each of its Practice
Providers participates in continuing medical education activities as necessary to remain current in
their respective specialties, including, but not limited to, the minimum continuing medical
education requirements imposed by applicable laws and policies of applicable specialty boards.
f. Billing. The Practice shall, and hereby does, appoint Manager to act as agent in the
billing and collection of all Practice revenues. The Practice shall cooperate and shall cause its
Practice Providers to cooperate with Manager in all reasonable matters relating to the billing and
collection of all revenues. In this regard, each Practice Provider shall review and approve the
reports and other information required to support complete and accurate bills. Additionally, the
Practice and its Practice Providers will provide such necessary support to appeal or contest any
denials of claims or other regulatory issues. Manager, in consultation with the Laboratory
Director (as defined herein), shall establish reasonable policies and procedures with respect to
billing and collection matters. The Practice hereby authorizes Manager to endorse and negotiate on
the Practice’s behalf any checks or payments received by the Practice or any Practice Provider (in
his or her capacity as such) and agrees to cooperate with Manager in billing and collection
activities pertaining to the professional services provided by the Practice or any of the Practice
Providers.
g. Additional Practice Providers. Additional Practice Providers (the “Additional Practice
Providers”) may be added to the Practice from time-to-time. The Practice shall review the
credentials and the medical practices of the prospective Additional Practice Provider. Manager
shall review the business operations, financial condition and results of operations of the
prospective Additional Practice Provider and shall provide such information to the Practice. The
decision to admit an Additional Practice Provider shall be made by the Practice after consultation
with and approval of Manager and subject to the guidelines for admitting Additional Practice
Providers established by Manager.
h. Additional Practices. Manager may, in its discretion, seek to add additional practices
(each such practice being an “Additional Practice”) to this Agreement. If Manager desires
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to add an Additional Practice, Manager shall provide the Practice with a business analysis of the
Additional Practice, including business operations, financial condition and results of operations.
The decision to admit an Additional Practice shall be made in consultation with the Laboratory
Director.
i. Practice Expenses. The Practice shall be solely responsible for the payment of all
Practice Expenses (as defined herein), which, to the extent permitted by applicable law, Manager
shall pay as agent and on behalf of the Practice.
j. Staffing of Facilities by the Practice. From time to time, Manager may enter into
relationships regarding new facilities that it wishes the Practice to staff. The Practice agrees
that in such event, the Practice will use commercially reasonable efforts to staff the facility.
The parties agree that the Operating Plan (as defined herein) will be revised as necessary to
accommodate staffing of the new facility. To the extent that the Practice or the Practice
Providers are responsible for staffing facilities managed by Manager, the Practice shall provide
adequate staffing to ensure that medical services are provided in a manner consistent with
applicable community and medical specialty standards.
k. Equipment. The Practice shall advise Manager on the maintenance, repair and proper
operation of medical equipment. This obligation shall relate to the medical functionality of the
equipment. Upon receipt of such advice, Manager shall cause the medical equipment to be maintained
in good operating condition.
l. Medical Records. The Practice shall be responsible for the preparation of, and direct the
contents of, patient medical records. The Practice shall be responsible for proper documentation
of medical services provided by the Practice and the Practice Providers. The Practice and Manager
shall comply with applicable federal, state and local statutes and regulations regarding the
confidentiality and retention of such records.
m. Licensed Technical Personnel Supervision. To the extent required by applicable law, the
Practice Providers shall supervise, oversee and train all Licensed Technical Personnel (as defined
herein) provided by Manager and required to operate the Practice’s practice.
n. Laboratory Director. The Practice shall appoint one of its Practice Providers who is a
licensed pathologist to serve as the laboratory director (the “Laboratory Director”) of the
laboratory operated by , an affiliate of Manager. The Laboratory Director shall
maintain the Practice’s standards and professional ethics and those of the medical profession. The
duties of the Laboratory Director shall include, but shall not be limited to, monitoring testing
results, evaluating quality controls and implementing corrective actions in conjunction therewith;
reviewing procedure manuals, including amendments thereto; reviewing policies regarding specimen
repeat and slide review ranges; assisting in the provision of continuing education for
technologists; acting as a liaison between Manager and physicians and other laboratories; and
performing such other duties as are required of a laboratory director under the Clinical Laboratory
Improvements Act and other applicable state laws.
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| o. | Establishment of Government Receivables Account; Deposit of Proceeds. |
(i) The Practice shall establish and maintain a deposit account at the Bank that is designated
for the collection of any and all Government Receivables (the “Government Receivables
Account”). The Practice shall (A) deposit or cause to be deposited promptly, all cash, checks,
drafts or other similar items of payment relating to or constituting payments made in respect of
any and all Government Receivables into the Government Receivables Account, (B) request in writing
and otherwise take such reasonable steps to ensure that all payors of Government Receivables remit
all payments of Government Receivables directly to the Government Receivables Account and (C) shall
not permit any other payments or Receivables (other than Government Receivables) to be deposited
into the Government Receivables Account. In the depositary agreement for the Government
Receivables Account with the Bank (the “Depositary Agreement”), which Depositary Agreement
shall be in form and substance reasonably satisfactory to the Manager, the Practice shall instruct
the Bank to “sweep” daily into the Manager’s Account the account balance in the Government
Receivables Account. Such instructions to the Bank may be revoked, rescinded or modified at the
sole instruction of the Practice. The Depositary Agreement, however, shall provide that in the
event that such instructions to the Bank are in any way revoked, rescinded or modified, the Bank
shall notify the Director of Finance of the Manager immediately by telephone (000-000-0000) or
facsimile (561-626-4530). Additionally, the Manager and Practice agree that the Practice’s
revoking, rescinding or modifying such instructions to the Bank shall constitute a material breach
by the Practice of this Agreement.
(ii) The Practice shall (A) deposit or cause to be deposited promptly all cash, checks, drafts
or other similar items of payment relating to or constituting Private Receivables into the Manager
Account and (B) request in writing and otherwise take such reasonable steps to ensure that all
account debtors remit all payments of Private Receivables into the Manager Account.
2. Manager Obligations.
a. Strategic Planning and Goals. Manager, in consultation with the Laboratory Director, shall
prepare a plan for the growth and enhancement of the Practice.
b. Expansion of Practice. To the extent applicable and only to the extent not in conflict
with applicable laws, Manager shall assist the Practice in developing relationships and
affiliations with physicians and other specialists, hospitals, networks, health maintenance
organizations and preferred provider organizations. Subject to the terms of this Agreement, each
of the Practice and Manager shall cooperate and use commercially reasonable efforts to expand the
Practice. In addition, Manager shall provide appropriate marketing services to assist the Practice
in expanding its practice, to the extent not in conflict with applicable laws.
c. Establishment of Fees. Manager shall recommend fees, charges, premiums or other amounts
due in connection with services and goods provided by the Practice.
d. Practice Management Services. Manager, in consultation with the Laboratory Director, shall
assess business activity including product line analysis, outcomes
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monitoring and customer satisfaction. Manager shall develop systems to track revenues, expenses,
cost accounting, utilization, quality assurance, physician productivity and customer satisfaction.
e. Facility Services. Manager shall, in consultation with the Laboratory Director, manage the
office space and manage and provide for any related office and medical furniture, fixtures,
supplies and equipment necessary to enable the Practice to provide the Medical Services, to the
extent not already owned and provided by the Practice.
f. Business Office and Support Services. Manager shall provide computer, bookkeeping, tax
return preparation, billing and collection, accounts receivable and accounts payable services
necessary for the management of the Practice pursuant to this Agreement and in accordance with the
Operating Plan. Manager shall also order and purchase on behalf of the Practice medical and office
supplies required in the day-to-day operation of the Practice as determined by the Laboratory
Director consistent with the Operating Plan; provided, however, that the Practice shall order,
purchase, stock, and monitor the inventory of pharmaceuticals and other medical supplies,
substances, or items whose purchase, maintenance, or security require licensure as a health-care
provider or require a permit, registration, certification, or identification number that requires
licensure or certification as a health-care provider. Manager shall provide access to management
information systems services to the Practice, including risk contracting systems services. Manager
may also arrange laundry, waste collection, and other necessary operational services in accordance
with applicable laws.
g. Professional and Consulting Services. Manager shall arrange for or render business and
financial management consultation and advice reasonably requested by the Laboratory Director and
directly related to the operations of the Practice pursuant to this Agreement. Except as
contemplated by the Operating Plan, Manager shall not be responsible for any services requested by
or rendered to any individual, employee or agent of the Practice, or any Practice Provider, not
directly related to Practice operations.
h. Financial Statements. Manager shall prepare profit and loss and income statements, in
accordance with the manner and form in which Manager normally keeps its accounts, books and
records, and in accordance with applicable laws and U.S. generally accepted accounting principles.
The statements shall reflect the Practice revenues generated by or on behalf of the Practice and
shall contain a comparison of actual and budgeted revenues and expenses of the Practice. Manager
shall provide the Laboratory Director with monthly statements within thirty (30) days after the end
of each month and shall provide a year-end statement within ninety (90) days after the end of the
calendar year.
i. Managed Care Relationships. Manager shall evaluate, negotiate, and administer managed care
contracts and other third party payor contracts on behalf of the Practice and its Practice
Providers.
j. Personnel. To the extent not provided by the Practice, Manager shall employ and provide
all personnel necessary to provide medical services (other than Practice
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Providers), including all Licensed Technical Personnel, in accordance with the operational
needs of the Practice. Manager shall provide the following personnel services to Practice:
(i) Non-Medical Personnel. To the extent not provided by the Practice, Manager shall provide
non-medical personnel (i.e., managerial, clerical, secretarial, bookkeeping and collection
personnel) as determined by Manager, and as necessary for the effective operation of Manager and
the Practice. To the extent not provided by the Practice, Manager shall provide personnel for the
maintenance of patient records, billing, collection and maintenance of the financial records.
Manager shall determine the assignments, salaries and fringe benefits of all the non-medical
personnel. Manager will consult with the Laboratory Director but retains decision-making authority
regarding all non-medical administrative matters. Non-medical personnel may perform services from
time to time for other individuals or entities, provided that such services do not interfere with
Manager’s obligations hereunder. Manager may utilize employees or independent contractors as it
determines in its sole discretion.
(ii) Licensed Technical Personnel. To the extent permitted under applicable law and not
provided by the Practice, Manager shall provide licensed technical personnel other than Practice
Providers (“Licensed Technical Personnel”). Licensed Technical Personnel shall be retained
as determined by Manager (in consultation with the Laboratory Director) to be reasonably necessary
for the effective operation of the Practice. Manager shall facilitate the recruitment and
retention of all Licensed Technical Personnel.
(iii) Practice Providers. To the extent not provided by the Practice, Manager shall perform
administrative services relating to the recruitment of new Practice Providers.
3. Term. The initial term of this Agreement will be for a period of fifty (50) years
(the “Initial Term”) commencing the date hereof (the “Effective Date”). Upon
expiration of the Initial Term, this Agreement will renew automatically for additional five (5)
year terms (the “Renewal Terms,” and together with the Initial Term, the “Term”)
unless either party delivers to the other party written notice of termination at least ninety (90)
days prior to the expiration of the then-current term. The parties hereto may terminate this
agreement at any time by mutual written consent.
4. Termination. Notwithstanding the provisions of Section 3, each party has
the right to terminate this Agreement (subject to Section 9 below) upon written notice to
the other party (the “Defaulting Party”) if the Defaulting Party breaches any material
obligation under this Agreement and Defaulting Party has not taken reasonable steps towards curing
such breach within thirty (30) days after the other party has delivered written notice of such
default.
5. Financial Arrangements.
a. Practice Expenses. Except as set forth in Section 1(i), all Practice Expenses (as
defined herein) attributable to periods after the Effective Date, including the compensation of the
Practice Providers, shall be the sole responsibility of the Practice and shall be paid by Manager
as agent and on behalf of the Practice. Such expenses may include a portion
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of reasonable corporate overhead of Manager allocable to the activities of the Practice and shall
be billed to the Practice at the actual cost to Manager.
b. Practice Expenses. “Practice Expenses” means the following expenses, without
duplication, incurred as required or permitted under this Agreement consistent with the Operating
Plan or as otherwise approved by the Practice, whether incurred by the Practice or the Manager:
state and federal payroll taxes or self-employment taxes incurred by the Practice in connection
with employment of the Practice Providers and other employees of the Practice, Practice Provider
compensation and compensation and benefit expenses for other employees of the Practice (both
professional and non-professional), premiums for professional and general liability insurance,
medical books and journals, registration fees for continuing medical education, membership dues for
professional organizations, locum tenens expenses, automobile and mileage expenses, facility
leases, repairs and maintenance, telephones and pagers, utilities, billing services, courier
services, legal expenses, travel and entertainment, outside medical consultants, license fees,
marketing, advertising, promotion, service of laboratory, laboratory and other equipment, all other
expenses identified in this Agreement as Practice Expenses, all expenses identified in this
Agreement as incurred by Manager on behalf of Practice, and other expenses approved from time to
time by the Practice.
c. Practice Revenues. “Practice Revenues” means the revenues generated by the
Practice and its Practice Providers during the term of this Agreement.
d. Service Fee.
(i) The parties hereby agree and acknowledge that, in exchange for the Management Services
performed hereunder, the Practice shall pay Manager an annual management service fee equal to
Dollars ($ ) (the “Service Fee”), payable in equal monthly installments.
The Service Fee is intended to provide Manager with fair market value payment commensurate with the
services provided, its capital investment, use of its trade name and its expertise in laboratory
and professional practice management. The Practice herby acknowledges and agrees that the Service
Fee may be adjusted annually by the Manager, within forty-five (45) days following an anniversary
of the Effective Date, based upon Manager’s estimate of the Practice’s demand for Management
Services in the following year.
(ii) Within thirty (30) days following each anniversary of the Effective Date, the Practice
shall provide Manager with an income statement setting forth the Practice Revenues for preceding
twelve (12) months and the Practice Expenses for the preceding twelve (12) months (the “Annual
Practice Income Statement”). Manager shall use the Annual Practice Income Statement to confirm
that the Service Fee for the preceding twelve (12) months represented adequate value for the
Management Services provided and to adjust the Service Fee for the next twelve (12) months, based
upon anticipated demand for Management Services. Manager and the Practice may adjust the Service
Fee for the preceding year in the event that the Management Services provided during such year are
greater or less than the Management Services anticipated for such year.
e. No Assignment. This Agreement shall not constitute an assignment of Practice Revenues.
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6. Operating Plan. One of the Laboratory Director’s primary responsibilities shall be
to assist Manager, to the extent requested by Manager, in establishing an annual Operating Plan
(the “Operating Plan”). When an Operating Plan has been finalized, both Manager and the
Laboratory Director shall use their best efforts to implement the Operating Plan.
7. Duties of Manager. Manager shall act in good faith and in the best interest of the
Practice and with such care as an ordinarily prudent person in a like position would use under
similar circumstances. Manager shall not be liable to the Practice for any loss suffered by the
Practice that arises out of any act or omission by Manager if Manager performs Manager’s duties in
compliance with the standard set forth in the immediately preceding sentence, except loss or damage
resulting from intentional misconduct, a knowing violation of law, gross negligence, or a
transaction for which Manager received a personal benefit in violation or breach of a provision of
this Agreement or Manager’s obligation to the Practice.
8. Other Activities of Manager. Notwithstanding anything else to the contrary in this
Agreement, Manager may be, or may become in the future, engaged or associated in some other manner
with other businesses and activities that might be similar to or competitive with the business of
the Practice. Manager may engage in all such other businesses and activities, and any other
business of any nature or description, independently or with others. The Practice shall not have
any rights by virtue of this Agreement to the income or profits derived from such independent
businesses or activities.
9. Insurance and Indemnification.
a. Manager shall maintain appropriate and reasonable insurance (including professional
liability insurance in amounts necessary to satisfy the Practice’s obligations to the Practice
Providers under applicable employment agreements) covering the operations of Manager, the Practice
and the Practice Providers, which insurance coverage shall, taken as a whole, be no less favorable
than the coverage currently maintained by Manager for practices situated similarly as the Practice
and in compliance with the laws of the State of . Manager shall provide the Practice
with certificates of insurance as evidence that this coverage has been obtained.
b. Each party shall indemnify and hold harmless the other party from all claims, demands,
actions and rights of action, damages, liabilities and expenses which shall or may arise by virtue
of any negligent act or omission of such party, (directly, or through or by its agents, employees
or other representatives other than the other party), or any act or omission that is outside the
scope of or in breach of, the terms of this Agreement; provided, however, that the indemnifying
party shall be notified promptly of the existence of such liability, claim, damage, loss, demand,
action or right of action.
10. Notice. Any notice, payment or demand sent in accordance with the provisions of
this Section 10 shall be deemed to have been received (even if delivery is refused or
unclaimed) on the date that is: (i) the date of proper posting, if sent by certified U.S. mail or
by express U.S. mail or private overnight courier, or (ii) the date on which sent, if sent by
facsimile
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transmission, with confirmation and with the original sent by certified U.S. mail, addressed
as follows:
If to Practice:
If to Manager:
In each case with a copy to (which shall not constitute notice):
Any party hereto may change its address specified for notices herein by designating a new address
by notice in accordance with this Section 10.
11. Miscellaneous.
a. Entire Agreement. This Agreement contains the entire agreement of the parties
hereto and supersedes all prior agreements, contracts and understandings whether written or
otherwise between the parties relating to the subject matter hereof. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
b. Contract Modification; Severability.
(i) Notwithstanding any other provision of this Agreement, if the governmental agencies (or
their representatives) which administer Medicare or Medicaid, or any other government third party
payor program, or any other federal, state or local government or agency passes, issues or
promulgates any law, rule, regulation, standard or interpretation at any time while this Agreement
is in effect which prohibits, restricts, limits or in any way adversely changes the method or
amount of reimbursement, compensation or payment for services rendered by Practice (or the Practice
Providers) under this Agreement, or which otherwise adversely affects either the Manager’s or
Practice’s rights or obligations hereunder, then the parties hereto shall, promptly upon notice
from either party, negotiate in good faith to amend this Agreement (taking into account any legal
and ethical obligations to the Manager’s, Practice’s or the Practice Providers’ patients) to
provide for such reimbursement, compensation or payment for services in a manner consistent with
any prohibition, restriction, limitation and/or which takes
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into account any adverse change in reimbursement, compensation or payment for physician
services.
(ii) Subject to the provisions of subsection (i) of this Section 11(b), 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 affected thereby.
c. Assignment. Neither party may assign any of its rights or obligations under this
Agreement without the prior written consent of the other party; provided, however,
without the consent of the Practice, Manager may assign or transfer this Agreement to an affiliate
of Manager or in connection with a sale of all or substantially all of the assets or business of
Manager, a merger or a transfer of a majority of the ownership interests of Manager. This
Agreement shall be binding upon and shall inure to the benefit of each party and to their
respective agents, successors and permitted assigns.
d. Attorneys’ Fees. In the event of any litigation by any party to enforce or defend
its rights under this Agreement, the prevailing party, in addition to all other relief, shall be
entitled to reasonable attorneys’ fees and costs, both at the trial and appellate levels.
e. Modification. Any modification or amendment to this Agreement must be in writing
and executed by all parties hereto.
f. Governing Law; Dispute Resolution.
(i) Notwithstanding the place where this Agreement may be executed by any of the parties
hereto, the parties expressly agree that all terms and conditions of this Agreement shall be
governed by and construed in accordance with the laws of the State of without giving
effect to the conflicts of laws principles thereof.
(ii) Except for obtaining a temporary restraining order or an injunction in accordance with
Section 11(f)(vii) below, any claim or controversy regarding the meaning of the terms of
this Agreement or any breach hereunder shall be finally settled by binding arbitration under the
Commercial Arbitration Rules of the American Arbitration Association, except as modified herein
(the “Rules”). Any such arbitration shall be conducted in or such other site as
is mutually agreed upon by Manager and the Practice.
(iii) If the parties are unable to resolve a dispute after ninety (90) days of efforts,
Manager, on one hand, and the Practice, on the other hand, shall, within ten (10) days of such
ninety (90)-day period, each select one arbitrator in accordance with the Rules. The two named
arbitrators shall then select a third arbitrator within fifteen (15) days of the selection of the
second arbitrator. If the two named arbitrators have not agreed on the third arbitrator within the
time limits specified above, then such appointment shall be made by the American Arbitration
Association in accordance with the Rules upon the written request of Manager or the Practice within
fifteen (15) days of such request. The arbitration hearing shall be held, if possible, within
ninety (90) days of the appointment of the third arbitrator, and the award shall be issued, if
possible, within thirty (30) days after the close of the hearing.
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(iv) Any decision or award of the arbitrators shall be based solely on the terms of this
Agreement, applicable law, and the facts presented by the parties. The parties hereby waive any
rights of application or appeal to any court or tribunal of competent jurisdiction (including
without limitation the courts of the United States and the State of ) to the fullest
extent permitted by law in connection with any question of law arising in the course of the
arbitration or with respect to any award made. Notwithstanding the foregoing, by agreeing to
arbitration, the parties do not intend to deprive any court of its jurisdiction to issue a
pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings
and enforcement of any award. Without prejudice to such provisional remedies as may be available
under the jurisdiction of a court, the arbitrators shall have full authority to grant provisional
remedies and to direct the parties to request that any court modify or vacate any temporary or
preliminary relief issued by such court, and to award damages for the failure of any party to
respect the arbitrators’ order to that effect.
(v) The decision or award of the arbitrators shall be the sole and exclusive remedy between
the parties regarding any and all issues presented to the arbitrator. The award shall be final and
binding upon the parties, and judgment upon any award may be entered in any court in the State of
or any other court of competent subject matter jurisdiction having jurisdiction thereof.
Each party hereby irrevocably consents to the personal jurisdiction of the courts in the State of
, solely for purposes of confirmation of, entry of judgment upon, and enforcement of the
arbitral award. Each party further hereby irrevocably waives and covenants not to assert any
defenses in any such proceeding based on any alleged defects in jurisdiction, venue, or convenience
of the forum.
(vi) Each party will, upon the written request of another party, provide the other with copies
of specific documents relevant to the issues raised by any claim or counterclaim. Any dispute
regarding discovery shall be determined by the arbitrator, whose determination shall be binding.
(vii) The parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in any court having
jurisdiction, this being in addition to any other remedy to which they are entitled at law or in
equity.
g. Third Party Beneficiaries. The Practice agrees that Manager’s affiliates are
express and intended third party beneficiaries of this Agreement.
h. Definitions. All capitalized terms not otherwise defined herein shall have the
meanings specified below:
“Bank” means , National Association (together with its successors and assigns)
or such other financial institution as the Manager, in a written notice to the Practice, may
designate as the financial institution at which the Practice shall establish and maintain the
Government Receivables Account.
“CHAMPUS” means, collectively, the Civilian Health and Medical Program of the Uniformed
Service, a program of medical benefits covering former and active members of the
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uniformed services and certain of their dependents, financed and administered by the United States
Departments of Defense, Health and Human Services and Transportation, and all laws, rules,
regulations, manuals, orders, guidelines or requirements pertaining to such program including (a)
all federal statutes (whether set forth in U.S.C. §§1071-1106 or elsewhere) affecting such program;
and (b) all rules, regulations, (including 32 C.F.R. §199), manuals, orders and administrative,
reimbursement and other guidelines of all governmental authorities promulgated in connection with
such program (whether or not having the force of law), in each case as the same may be amended,
supplemented or otherwise modified from time to time.
“CHAMPVA” means, collectively, the Civilian Health and Medical Program of the Department of
Veteran Affairs, a program of medical benefits covering retirees and dependents of former members
of the armed services administered by the United States Department of Veteran Affairs, and all
laws, rules, regulations, manuals, orders, guidelines or requirements pertaining to such program,
including (a) all federal statutes (whether set forth in 38 U.S.C. §1713 or elsewhere) affecting
such program or, to the extent applicable to CHAMPVA, CHAMPUS; and (b) all rules, regulations
(including 38 C.F.R. §17.54), manuals, orders and administrative, reimbursement and other
guidelines of all governmental authorities promulgated in connection with such program (whether or
not having the force of law), in each case as the same may be amended, supplemented or otherwise
modified from time to time.
“CHAMPUS Receivable” means a Receivable payable pursuant to CHAMPUS.
“CHAMPVA Receivable” means a Receivable payable pursuant to CHAMPVA.
“Government Receivables” shall mean, collectively, any and all Receivables that are (a)
Medicare Receivables, Medicaid Receivables, TRICARE Receivables, CHAMPUS Receivables and CHAMPVA
Receivables, and (b) any other Receivable payable by a Governmental Authority.
“Manager Account” means the deposit account of the Manager maintained at the Bank, or such
other account as the Manager, in a written notice to the Practice, may designate as the Manager
Account.
“Medicaid” means, collectively, the healthcare assistance program established by Title XIX of
the Social Security Act (42 USC §§1396 et seq.) and any statutes succeeding thereto, and all laws,
rules, regulations, manuals, orders, guidelines or requirements pertaining to such program
including (a) all federal statutes (whether set forth in Title XIX of the Social Security Act or
elsewhere) affecting such program; (b) all state statues and plans for medical assistance enacted
in connection with such program and federal rules and regulations promulgated in connection with
such program; and (c) all applicable provisions of all rules, regulations, manuals, orders and
administrate, reimbursement, guidelines and requirements of all government authorities promulgated
in connection with such program (whether or not having the force of law), in each case as the same
may be amended, supplemented or otherwise modified from time to time.
“Medicaid Receivable” means a Receivable payable pursuant to an agreement entered into between
a state agency or other entity administering Medicaid in such state and a healthcare
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facility or physician under which the healthcare facility or physician agrees to provide
services or merchandise for Medicaid patients.
“Medicare” means, collectively, the health insurance program for the aged and disabled
established by Title XVIII of the Social Security Act (42 USC §§1395 et seq.) and any statutes
succeeding thereto, and all laws, rules, regulations, manuals, orders or guidelines pertaining to
such program including (a) all federal statutes (whether set forth in Title XVIII of the Social
Security Act or elsewhere) affecting such program; and (b) all applicable provisions of all rules,
regulations, manuals, orders and administrative, reimbursement, guidelines and requirements of all
governmental authorities promulgated in connection with such program (whether or not having the
force of law), in each case as the same may be amended, supplemented or otherwise modified from
time to time.
“Medicare Receivable” means an agreement entered into between a state agency or other entity
administering Medicare in such state and a healthcare facility or physician under which the
healthcare facility or physician agrees to provide services or merchandise for Medicare patients.
“Private Receivable” shall mean all Receivables which are not Government Receivables.
“Receivables” means as at any date of determination thereof, the unpaid portion of the
obligation, as stated in the respective invoice, of a patient of the Practice, which amount has
been earned by performance under the terms of the related contract and recognized as revenue on the
books of the Practice, net of any credits, rebates or offsets owed to such patient or any Third
Party Payor in respect thereof and also net of any commissions payable to any person or entity
other than Manager or the Practice, or any affiliates or employees thereof.
“TRICARE” means, collectively, the managed health care program established by the United
States Department of Defense under 32 C.F.R. § 199.17 for members of the uniformed services and
certain of their dependents, financed and administered by the United States Departments of Defense,
Health and Human Services and Transportation, and all laws, rules, regulations, manuals, orders,
guidelines or requirements pertaining to such program including (a) all federal statutes (whether
set forth in U.S.C. §§1071-1110) or elsewhere) affecting such program; and (b) all rules,
regulations, (including 32 C.F.R. §199), manuals, orders and administrative, reimbursement and
other guidelines of all governmental authorities promulgated in connection with such program
(whether or not having the force of law), in each case as the same may be amended, supplemented or
otherwise modified from time to time.
“TRICARE Receivables” means a Receivable payable pursuant to TRICARE.
“Third-Party Payor” means any governmental entity, insurance company, health maintenance
organization, preferred provided organization employer or other person or similar entity that is
obligated to make payments with respect to a Receivable.
[Signatures on the Following Page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first
referenced above.
| PRACTICE: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| MANAGER: | ||||||
| AURORA DIAGNOSTICS, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
