BILLING AGENT AGREEMENT
(Medicare/Medicaid)
This Agreement is made as of the 11th day of March, 1998 (the "Effective
Date") by and between MEDI-CEN MANAGEMENT, INC., a Maryland corporation having
its principal place of business at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx
Xxxxx, Xxxxxxxx ("Billing Agent") and XXXXX MEDICAL GROUP, P.C., a District of
Columbia professional corporation, having its principal place of operation at
0000 Xxxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. (the "P.C.").
WHEREAS, the P.C. requires billing and collection services for
Medicare/Medicaid services provided by its employed physicians ("Physician
Employees") and employed nonphysician licensed practitioners who practice in an
extended role and generate professional charges for their services ("Physician
Extenders") and,
WHEREAS, Billing Agent provides billing and collection services to
physicians and physician group practices.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereby agree as follows:
A. Obligations of Billing Agent.
1. Billing Agent shall xxxx and collect for Medicare and Medicaid
services provided by the P.C. and its Physician Employees and
Physician Extenders as agent for the P.C. Claims for such services
shall be prepared in the name and under the provider numbers of the
P.C. The P.C. hereby irrevocably appoints Billing Agent as its agent
and attorney-in-fact to xxxx and collect payments for such services.
All of the payments with respect to such services shall be made by
check (or electronic funds transfer) payable to the P.C. and shall be
deposited into a bank account of the practice of the P.C. (the
"Practice Account") with a bank mutually agreed upon by the parties
and whose deposits are insured by the FDIC (the "Account Bank").
Withdrawals from such Practice Account by Billing Agent shall require
the joint signatures of an authorized agent of the P.C. and an
authorized agent of Billing Agent.
2. The P.C. and its Physician Employees and Physician Extenders hereby
authorize Billing Agent to initiate legal proceedings in the name of
the P.C. to collect any accounts and monies owed to the P.C. or its
Physician Employees or Physician Extenders to enforce the rights of
the P.C. and its Physician Employees and Physician Extenders as
creditors under any contract or in connection with the rendering of
any service hereunder, and to contest adjustments and denials by
Medicare or Medicaid (or their carriers or fiscal intermediaries).
B. Compensation to the P.C.; Billing Agent Fees. On a bi-weekly basis during
the term of this Agreement, the P.C. shall pay Billing Agent a Billing
Agent Fee equal to the actual direct cost to the Billing Agent of billing
and collecting Medicare and Medicaid claims on behalf of the P.C. during
said two week period. For claims submitted during the immediately preceding
two week period, the Billing Agent shall be paid by the P.C. not more than
ten (10) days after the end of such two week period.
C. Term.
1. Term of Agreement. This Agreement shall commence on the date hereof
and shall expire on the thirtieth (30th) anniversary of the date
hereof unless sooner terminated pursuant to the terms of this
Agreement.
2. Extended Term. Unless sooner terminated as provided for in this
Agreement, the term of this Agreement shall be automatically extended
for additional terms of five (5) years each, unless either the P.C. or
Billing Agent delivers to the other, not less than six (6) months
prior to the expiration of the initial or extended term, as
applicable, written notice of such party's intention not to extend the
term of this Agreement.
3. Termination By P.C. The P.C. may terminate this Agreement upon ninety
(90) days' prior written notice to Billing Agent in the event of a
material breach by Billing Agent of any material term or condition
hereof, if such breach is not cured within that ninety (90) day notice
period; provided that a majority of the owners of the P.C.
affirmatively vote in favor of terminating this Agreement.
4. Termination By Billing Agent - P.C. Breach. Billing Agent may
terminate this Agreement upon ninety (90) days' prior written notice
to the P.C. in the event of a material breach by the P.C. of any
material term or condition hereof, if such breach is not cured within
that ninety (90) day notice period.
5. Mutual Termination Rights. Either party may terminate this Agreement
immediately if the other party: (i) makes a general assignment for the
benefit of creditors; (ii) files a voluntary petition or the
commencement of any proceeding for any relief under any bankruptcy or
insolvency laws, or any laws relating to the relief of debtors,
readjustment or indebtedness, reorganization, composition or
extension; (iii) files any involuntary petition with or the
commencement of any proceeding by or against such party for any relief
under any bankruptcy or insolvency laws, or any laws relating to the
relief of debtors, readjustment of indebtedness, reorganization, or
composition, which petition or proceeding is not dismissed within
ninety (90) days of the date on which it is filed or commenced; or
(iv) suspends the transaction of the usual business of such party for
a period in excess of thirty (30) days. In addition to the foregoing
bases for termination, this Agreement shall automatically terminate in
the event the Management Agreement between the parties dated as of the
date hereof shall terminate.
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6. Termination Upon Legal Prohibition of Relationship. If, in the opinion
(the "Opinion") of nationally recognized health care counsel jointly
selected by the parties, it is determined that it is more likely than
not that applicable legislation, regulations, rules or procedures
(collectively referred to herein as a "Law") in effect or to become
effective as of a date certain, or if Billing Agent or the P.C.
receives notice (the "Notice") of an actual or threatened decision,
finding or action by any governmental or private agency or court
(collectively referred to herein as an "Action"), which Law or Action,
if or when implemented, would have the effect of subjecting either
party to civil or criminal prosecution under state and/or federal
laws, or other material adverse proceeding on the basis of their
participation herein, then Billing Agent or the P.C. shall provide
such Opinion or Notice to the other party. The parties shall attempt
in good faith to amend this Agreement to the minimum extent necessary
in order to comply with such Law or to avoid the Action, as
applicable, and shall utilize mutually agreed upon joint legal counsel
to the extent practicable. If, within ninety (90) days of providing
written notice of such Opinion or such Notice to the other party, the
parties hereto acting in good faith are unable to mutually agree upon
and make amendments or alterations to this Agreement to meet the
requirements in question, or alternatively, the parties mutually
determine in good faith that compliance with such requirements is
impossible or unfeasible, then this Agreement shall be terminated
without penalty, charge or continuing liability upon the earlier of
the following: the date which is one hundred and eighty (180) days
subsequent to the date upon which any party gives written notice to
the other party, or the effective date upon which the Law or Action
prohibits the relationship of the parties pursuant to this Agreement.
7. Obligations After Termination. Except as otherwise provided herein or
in any amendment hereto, following the effective date of termination
of this Agreement, both Billing Agent and the P.C. shall cooperate in
the final reconciliation of fees owed hereunder, which shall be
calculated by Billing Agent no less than six (6) months after
termination of this Agreement. In addition, upon termination of this
Agreement, Billing Agent shall turn over to the P.C. on diskette or in
such other format as the P.C. shall request, all of the P.C.'s data,
records and information in Billing Agent's possession, and, at the
P.C.'s option, either (a) immediately cease billing and collection
services hereunder, or (b) continue to use best efforts to collect for
services billed prior to the date of termination of this Agreement.
D. Reasonable Compensation. The fees paid and payable hereunder by the P.C. to
Billing Agent have been determined by the parties through good-faith and
arm's length bargaining. No amount paid hereunder is intended to be, nor
shall be construed as, an inducement or payment for referral of or
recommending referral of, patients by the P.C. to Billing Agent (or its
affiliates) or by Billing Agent (or its affiliates) to the P.C. In
addition, the fees charged hereunder do not include any discount, rebate,
kickback or other reduction in charge, and the fees charged hereunder are
not intended to be, nor shall they be construed as, an inducement or
payment for referral, or recommendation of referral, of patients by the
P.C. to Billing Agent (or its affiliates) or by Billing Agent (or its
affiliates) to the P.C. The sole purpose of the payments to Billing Agent
hereunder is to pay fair market value for services actually rendered by
Billing Agent to the P.C. hereunder.
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E. Confidential Information. This Agreement and its terms shall be
confidential, and at no time during or after the termination of this
Agreement, except as may be otherwise required by law shall, the P.C., its
employees, independent contractors, or owners disclose, communicate or
divulge to, or use for the direct or indirect benefit of any person, firm,
association or company any information regarding the terms and conditions
of this Agreement, business methods, business policies, procedures,
techniques, or trade secrets, or other knowledge or processes of or
developed by the Billing Agent, or any other confidential information
relating to or dealing with the business operations or activities of the
Billing Agent, made known to the P.C., its employees or its shareholders or
learned or acquired by the P.C., its employees or owners during the term of
this Agreement, (collectively, "Company Information"), except as may be
expressly authorized by the Billing Agent or any successor to it.
Immediately upon the termination of this Agreement, the P.C. and/or the
applicable shareholder, employee or independent contractor, or other key
employee or independent contractor shall deliver to the Billing Agent all
documents, computer disks or other forms of recorded information, including
all copies thereof, containing Company Information.
F. Entire Agreement. This Agreement constitutes the entire understanding
relating to the subject matter hereof between the parties.
G. Amendment. This Agreement shall not be modified or amended except by a
written document executed by both parties to this Agreement.
H. Access of the Government to Records. To the extent that the provisions of
Section 1861(c)(1)(I) of the Social Security Act [42 U.S.C.
ss.1395x(c)(l)(I)] are applicable to this Agreement, the parties agree to
make available, upon the written request of the Secretary of the Department
of Health and Human Services or upon the request of the Comptroller
General, or any of their duly authorized representatives, this Agreement,
and other books, records and documents that are necessary to certify the
nature and extent of costs incurred by them for services furnished under
this Agreement. The obligations hereunder shall extend for four (4) years
after furnishing of such services. The parties shall notify each other of
any such request for records.
I. Governing Law. This agreement shall be subject to and governed by the laws
of the State of Maryland.
J. Notice. Any notice or other communication required by this Agreement to be
in writing shall be deemed to have been received by the person or entity to
whom it is addressed two (2) business days after it is deposited in the
United States mail, postage prepaid, and addressed as follows:
Billing Agent: Medi-Cen Management, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxx
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The P.C.: Xxxxx Medical Group, P.C.
0000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: P. Xxxxxx Xxxxxx, M.D.
K. Severability; Reformation. In case any one or more of the provisions or
parts of a provision contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Agreement; and this Agreement
shall, to the fullest extent lawful, be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of a provision, had
never been contained herein, and such provision or part reformed so that it
would be valid, legal and enforceable to the maximum extent possible.
Without limiting the foregoing, if any provision (or part of provision)
contained in this Agreement shall for any reason be held to be excessively
broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the
fullest extent compatible with then existing applicable law.
L. Assignment. Except as otherwise provided in this paragraph, this Agreement
is not transferable or assignable by either party without the prior written
consent of the other party; provided that Billing Agent may assign its
rights and obligations under the Agreement to any entity that controls, is
controlled by, or is under common control with Billing Agent, or is a
successor to Billing Agent by merger, consolidation, reorganization or sale
of all or substantially all of its assets.
IN WITNESS WHEREOF, the parties have caused this agreement to be signed by
a duly authorized person the day and year first above written.
MEDI-CEN MANAGEMENT, INC.
By: /s/ Xxxxxxxx Xxxx
-------------------------------
Its: CFO
XXXXX MEDICAL GROUP, P.C.
By: /s/ P. Xxxxxx Xxxxxx, MD
------------------------------
Its: President
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