EXHIBIT 10.30
SERVICE AGREEMENT
This SERVICE AGREEMENT ("Agreement") is made and entered into as of the
___ day of ________, ____, by and between ____________________, d/b/a
NeighborCare ("NeighborCare"), a ______________ corporation and _______________,
a __________________ corporation doing business as __________________________,
solely in connection with the facility located at __________________
("Operator").
BACKGROUND
A. NeighborCare is in the business of providing various
products and services to skilled nursing and other health care facilities and
their residents, including prescription and non-prescription medications,
whether oral, IV, topical or other; durable and disposable medical supplies and
equipment, and related services; intravenous therapy products and related
services; and pharmacy consulting services.
B. Operator operates a health care facility known as
_______________, located at _____________________________ ("Facility").
C. Operator desires to contract with NeighborCare to
provide the services described herein to residents at the Facility, and
NeighborCare agrees to provide such services, pursuant to the terms and
conditions set forth herein.
TERMS
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Duties and Responsibilities of NeighborCare.
1.1 NeighborCare agrees to provide the following products
and services, more fully described on the exhibits attached hereto (the
"Services") (initial all that apply):
Pharmaceutical and Intravenous Therapy Products and
--- Related Services (Exhibit "A")
Intravenous Therapy Products (only) and Related
--- Services (Exhibit "B")
Pharmacy Consulting Services (Exhibit "C")
---
Medical Supplies (Exhibit "D")
---
X Part B Supplies and Services (Exhibit "E")
---
Claim Filing Services (Exhibit "F")
---
Inventory Management Services (Exhibit "G")
---
1.2 NeighborCare agrees to provide the Services
substantially in accordance with professional standards and all laws, rules and
regulations that apply or relate to the performance of the Services.
1.3 As reasonably requested by Operator, NeighborCare
will provide proof of licensure and certification, and will cooperate with
Operator in Operator's efforts to cause the Facility to meet all standards and
regulations of appropriate government agencies and accreditation organizations
pertaining to the Services.
1.4 NeighborCare will make available at the Facility
certain equipment necessary for provision of the Services ("NeighborCare
Equipment") to be used by Facility employees solely for purposes relating to
this Agreement. Such equipment will remain the property of, and controlled by,
NeighborCare at all times. Operator agrees to promptly return to NeighborCare
any and all equipment, supplies, or reference materials at the termination of
this Agreement in the same condition, ordinary wear and tear excepted.
2. Duties and Responsibilities of Operator.
2.1 Operator agrees to provide and maintain adequate
space, and equipment and supplies in accordance with industry practice, required
for NeighborCare to perform the Services.
2.2 Operator agrees that it is and will remain solely
responsible for direct care rendered to Facility's residents and for all
activities necessary for the operation of Facility under applicable federal and
state laws, including but not limited to: (a) acceptance of residents in
accordance with Facility's admission policies, a true and complete copy of which
have been previously provided to NeighborCare; (b) maintenance of complete and
timely clinical records for each resident; (c) maintenance of a liaison with
each resident's attending physician; (d) acquisition from each resident's
attending physician of required orders and certifications; (e) compliance with
federal and state requirements for long term care facilities under the Medicare,
Medicaid and other programs including, without limitation, requirements
concerning contracting with outside vendors and suppliers; and (f) except where
NeighborCare may xxxx directly to a third party, assurance of the medical
necessity of services billed or claimed, completeness, accuracy and timeliness
of all such claims submitted and the responsibility and accountability for all
medical, professional and ethical affairs relating to the Facility and its
residents.
2.3 Operator acknowledges that other providers may
provide services to residents of the Facility, which are the same as or related
to the Services provided by NeighborCare. Operator agrees to provide, or to
cause such other providers to provide, any information reasonably requested by
NeighborCare with respect to the services provided by such providers (necessary
for NeighborCare to meet its obligations under this Agreement). By way of
example only, Operator will provide NeighborCare with information required to
determine the appropriateness and efficacy of NeighborCare's services. Operator
agrees to indemnify NeighborCare from any injury or damage that may result to
any person or property, by or from any act or omission by Operator in connection
with its responsibilities under this section 2.3, and by or from any act or
omission of such other providers.
2.4 Operator agrees that it is responsible for the
storage and safe handling of all equipment, products and supplies at the
Facility.
2.5 Operator agrees to perform such additional duties set
forth in the exhibits attached hereto, as applicable.
3. Representations, Warranties and Covenants. Operator and
NeighborCare hereby represent, warrant and covenant to each other that as of the
date of this Agreement, and for the entire term and any renewal hereof:
3.1 Each is duly organized, validly existing and in good
standing under the laws of its state of formation and has all requisite legal
power, licenses, certifications and permits to enter into this Agreement and to
perform its obligations hereunder. To the best of the each party's knowledge,
neither party hereto, nor any of their respective employees, agents or
independent contractors are the subject of any investigation, suspension of
payments, disciplinary action, accusation, or civil or criminal action in
connection with any governmental agency, including, but not limited to, the
Department of Health and Human Services, Office of Inspector General, State
Department of Health, Bureau of Fraudulent Claims, State Medical Board,
Healthcare Financing Administration, CHAMPUS Program, or the Program Integrity
Department of the Medicare carrier which processes Medicare claims of
NeighborCare.
3.2 This Agreement has been duly executed and delivered
by each and is the legal, valid and binding obligation of each, fully
enforceable against each in accordance with its terms. Neither is party to any
contract, agreement or obligation that would prevent or hinder it from entering
into this Agreement or performing its duties hereunder; nor is any approval or
consent of any person, firm or other entity required to be obtained for the
authorization or execution of this Agreement or the performance of duties
hereunder.
3.3 With respect to any federal health care program as
defined in section 1128B of the Social Security Act (42 U.S.C. 1320a-7b(f)) and
physician anti-self referral statutes (42 U.S.C. ss. 1395nn or any State health
care program as defined in section 1128B of the Social Security Act (42 U.S.C.
1320a-7b(h)) (collectively, the "Programs"), neither party, nor any individual
with a direct or indirect ownership or control interest of five percent (5%) or
more of such party, nor any director, officer, or employee of such party; has
ever been debarred, suspended or excluded from any Program. Each party covenants
to immediately notify the other in writing if this representation is no longer
true. This transaction is not intended to, nor does it, require any party to
violate the federal anti-kickback or physician anti-self referral laws, and this
transaction shall not be interpreted to:
3.3.1 require NeighborCare, or any partner,
shareholder, employee or independent shareholder of NeighborCare, to make
referrals to Operator, be in a position to make or influence referrals to
Operator, or otherwise generate business for Operator or to reward NeighborCare
or any partners, shareholders, employees or independent contractors of
NeighborCare, for making such referrals; or
3.3.2 restrict NeighborCare, or any partner,
shareholder, employee or independent contractor of NeighborCare, from
establishing medical staff privileges at, referring any patient to, or otherwise
generating any business for any other skilled nursing facility or other health
care facility.
3.4 NeighborCare recognizes Operator's right to establish
administrative policies and procedures with respect to the Facility and agrees
to be bound by them, so long as such policies and procedures are reasonable and
adopted in good faith, and NeighborCare is provided advance written notice and
an opportunity to comply with them. Operator will consult with NeighborCare
concerning any policies and procedures, or proposed changes thereto, which would
significantly affect NeighborCare (i.e. would materially change the terms of
this Agreement or would have an adverse effect on NeighborCare) (an "Adverse
Policy"). Following such consultation, in the event an Adverse Policy is
implemented, NeighborCare may, at its option, terminate this Agreement either in
its entirety or as to the particular Services to which the Adverse Policy
relates, at NeighborCare's discretion, upon thirty (30) days written notice to
Operator.
4. Fees and Billing.
4.1 NeighborCare will xxxx and be compensated for
Services in accordance with the exhibits attached hereto, as applicable.
4.2 Prior to the provision of any Services to a resident
of the Facility, Operator will provide NeighborCare with information on such
resident including source of reimbursement; responsible party and/or guarantor
of payment,
if applicable; Medicare and Medicaid number; and such other information as may
be requested by NeighborCare. Operator will notify NeighborCare immediately of
any changes in any resident's residency status (including but not limited to
room changes or discharges), source of reimbursement or guarantor of payment.
Operator will fully cooperate with NeighborCare in establishing the source of
residents' third party funds and resident/family resources for payment of
Services furnished by NeighborCare, including but not limited to copies of
insurance coverage; prescription plan, Medicare and Medicaid cards; or financial
screens. Operator agrees that if it does not provide the information described
in this section 4.2 in the time and manner indicated herein, then
notwithstanding any provision to the contrary herein (including all exhibits),
NeighborCare may xxxx Operator for such Services at its usual and customary
charge for such Services.
4.2.1 In providing billing and collection services
hereunder, NeighborCare shall comply with all applicable laws and regulations.
NeighborCare shall indemnify, defend and hold Operator harmless from and against
all claims, demands, damages, liabilities, costs, expenses and losses, including
attorneys' fees, arising out of, resulting from or connected with the improper
billing of a third party payor (including but not limited to the Medicare
carrier), or the beneficiary of such payor, or arising out of, resulting from or
connected with any other violation by such party of Title XVIII of the Social
Security Act, those portions of the Code of Federal Regulations which pertain to
the Medicare program, or any laws, regulations, policies, practices, or internal
billing protocol governing any third party payor program. If reasonably
available in the market, NeighborCare shall obtain insurance, which will cover
its obligations under this Paragraph.
4.3 NeighborCare inservices, in addition to those
specified in the exhibits attached hereto (which are necessary for the
initiation and provision of Services hereunder), as applicable, will be provided
for a fee of $______ per inservice. Education workshops will be provided for
$______ for ______ participants or less, with a charge of $_____ per additional
participant.
4.4 Any specialized services provided by NeighborCare not
included in the scope of services stipulated herein would be subject to
additional charges which will be agreed upon in advance in writing by both
parties.
4.5 Operator will pay for any Services obtained for its
own account, or for any Services for which Operator is responsible for payment,
within thirty (30) days of receipt of an invoice from NeighborCare. Any invoice
not paid within thirty (30) days of receipt of an invoice from NeighborCare will
accrue interest at the rate of 1.5% per month, provided that, in no event will
interest be charged in excess of the amount permitted by applicable law.
Operator agrees to reimburse NeighborCare for any and all costs incurred to
collect payment from the Operator, including, without limitation, reasonable
attorneys' fees. Amounts due to NeighborCare by Operator under these payment
provisions are due in full
regardless of the Operator's ability to xxxx or collect from another payment
source, including but not limited to Medicare or Facility residents.
5. Term and Termination.
5.1 Term. Subject to the provisions of Section 5.1.1 and
5.1.2 below, the term of this Agreement will commence on the first day of the
calendar month following the Effective Date as defined in the Settlement
Agreement Re: Pharmacy Supply Contracts dated ______ __, 2001 (the "Settlement
Agreement") and will continue in full force and effect for a term of nine months
.
5.1.1 Facility may immediately terminate this
agreement without liability if Facility`s legal counsel issues a good faith
written opinion that the terms of this Agreement; (i) violate Medicare laws or
regulations; (ii) jeopardize Facility's status as a tax exempt organization; or
(iii) must be modified in order for Facility to obtain tax exempt financing or
re-finance tax exempt obligation.
5.1.2 Upon thirty days advance written notice to
NeighborCare, this Agreement may be terminated without liability and the
services provided for hereunder transitioned back to Operator or its designee in
accordance with the Settlement Agreement.
5.2 Material Breach.
(a) If NeighborCare or Operator fails
to keep, observe or perform any material covenant, agreement, term or provision
of this Agreement (a "Material Breach"), and such Material Breach continues for
a period of forty-five (45) days after written notice by the non-defaulting
party specifying the Material Breach and requesting that the Material Breach be
cured, the non-defaulting party may terminate this Agreement as to the
particular Services with respect to which the defaulting party is in default
only, at the non-defaulting party's discretion, upon thirty (30) days further
written notice to the other party, provided however, that if the defaulting
party has commenced cure within such forty-five (45) day period, and is
diligently pursuing such cure, then the right to give such thirty (30) day
notice of termination will be suspended for the time reasonably necessary to
effect such cure.
(b) Operator agrees that until the
expiration of four (4) years after furnishing services pursuant to this
Agreement, Operator shall make available, upon written request, to the Secretary
of the department of Health and Human Services, or, upon written or oral
request, to the U.S. Comptroller General, or any of their duly authorized
representatives, the Agreement, and books, documents and records of Operator
that are necessary to certify the nature, extent and cost of such services.
(c) Operator further agrees that if it
carries out any of the duties of the agreement through a subcontract, with a
value or cost of $10,000 or more over a twelve-month period, with a related
entity or organization, such subcontract shall contain a clause to the effect
that until the expiration of four (4) years after the furnishing of services
pursuant to such subcontract, the related entity or organization shall make
available, upon written request, to the Secretary of the Department of Health
and Human Services, or, upon written or oral request, to the U.S. Comptroller
General, or any of their duly authorized representatives, the subcontract, and
books documents and records of such entity or organization as are necessary to
verify the nature, extent and the cost of such services.
(d) If Operator is required to disclose
books, documents, or records pursuant to this provision for purpose of an audit,
Operator shall notify Facility of the nature and scope of such request and
Operator shall make available, upon the written request of Facility, all such
books, documents or records, during regular business hours of Operator.
(e) Operator further agrees that upon
written or oral request of Facility, it shall make his books, documents and
records available for inspection by any duly authorized representative of the
State or the United States of America empowered to certify the nature, extent or
cost of services rendered pursuant to this Agreement.
(f) Operator shall indemnify and hold
Facility harmless in the event that any amount of reimbursement is denied or
disallowed because of the failure of Operator or any subcontractor to comply
with its obligations to maintain and make available books, documents or records
pursuant to this paragraph 5.2. Such indemnity shall include, but not be limited
to, the amount of reimbursement denied, plus any interest, penalties, and
reasonable attorney's fees.
(g) This paragraph pertains solely to
the maintenance and disclosure of specified records and shall have no effect on
the right of the parties to the Agreement to make assignments or deletions.
(h) Notwithstanding the foregoing, with
respect to monetary defaults of Operator, if Operator fails to make any payment
to NeighborCare on or before the date due, NeighborCare may terminate this
Agreement either in its entirety or as to the particular Services for which
Operator is in default, at NeighborCare's discretion upon twenty (20) days
written notice to Operator, provided, however, that if Operator pays all past
due invoices during such twenty (20) day period, NeighborCare's termination of
this Agreement may be revoked by Operator upon written notice to NeighborCare.
5.3 NeighborCare will have the right to terminate this
Agreement either in its entirety or as to the particular Services for which
Operator is in default, at NeighborCare's discretion: (a) immediately, if any
license, permit or approval required for the operation of Facility cannot be
obtained or is at any time suspended; or (b) immediately, in the event of
voluntary or involuntary bankruptcy or similar insolvency actions by or against
the Operator.
5.4 Termination of this Agreement will not affect the
rights and obligations of the parties arising out of any Services performed
prior to the effective date of such termination. Upon any termination of this
Agreement for any reason whatsoever, NeighborCare will be entitled to cancel any
order then outstanding and for reasonable cancellation charges incurred by
NeighborCare.
5.5 Operator acknowledges that after notice of
termination has been given by either party, for any reason whatsoever, and even
if such notice is subject to revocation or cure, it is the sole duty of Operator
to promptly notify residents of Facility of the termination, and to arrange to
provide alternative products and services to residents of the Facility to whom
Services were provided by NeighborCare, without interruption of medically
necessary services. Operator agrees to indemnify NeighborCare from any injury or
damage that may result to any person or property, by or from any act or omission
by Operator in connection with its responsibilities under this section 5.5.
5.6 Within thirty (30) days following termination, at a
time and place to be mutually agreed, Operator and NeighborCare will meet to
resolve outstanding balances due to NeighborCare and other issues with respect
to termination. Operator acknowledges that if it refuses to participate in such
meeting, all amounts determined by NeighborCare as due from Operator, as
evidenced by invoices delivered by NeighborCare to Operator, will be deemed to
be correct. All amounts payable to NeighborCare from Operator under this
Agreement or otherwise will be due and payable to NeighborCare thirty (30) days
following termination.
6. [Intentionally Omitted]
7. Independent Contractor. In performing the Services hereunder,
the parties acknowledge and agree that NeighborCare is acting as an independent
contractor and not as the agent, partner or employee of Operator. This Agreement
will not create a joint venture, partnership or other joint business
relationship. Neither party has authority to bind the other to any third party
or otherwise to act in any way as the representative of the other. As an
independent contractor, NeighborCare is not exclusively limited to performing
Services for Operator and is entitled to provide Services for parties other than
the Operator.
8. Insurance. NeighborCare and Operator agree to maintain during
the term of this Agreement: (a) professional and general liability coverage in
minimum amounts of one million dollars per occurrence, and three million dollars
in the aggregate; (b) excess liability coverage in minimum amounts of five
million dollars per occurrence, and five million dollars in the aggregate; and
(c) automobile insurance of one million dollars (combined single limit).
NeighborCare and Operator each agree to comply with state requirements relating
to worker's compensation. Operator shall, at no expense to Facility, procure and
maintain malpractice insurance covering services performed at Facility by
Operator hereunder. Such malpractice policy shall be issued by a company
acceptable to Facility with liability limits for Operator of not less than One
Million Dollars ($1,000,000) per occurrence and Three Million Dollars
($3,000,000) aggregate per year. Deductible amounts shall be subject to the
approval of the Facility. Operator may obtain "claims made" insurance, as
distinguished from "occurrence" insurance; but if Operator obtains "claims made"
insurance, it shall maintain, or cause to be maintained, such "claims made" or
"tail" insurance coverage as may be necessary to insure Operator during and
after the term of this Agreement, against all claims arising out of the
performance of services at Facility. Operator shall also promptly notify
Facility of any cancellation, reduction or other material change in the amount
or scope of any coverage(s) required under this paragraph. Operator has a
continuing obligation to fully disclose to Facility the full nature and extent
of any prior, pending or threatened claims or suits for malpractice.
9. Indemnification; Warranties.
9.1 NeighborCare will indemnify and hold harmless
Operator, its officers, directors, agents or employees and each of them from and
against any and all claims, penalties, demands, causes of actions, damages,
losses, liabilities, costs, expenses, including reasonable attorney's fees, in
law or in equity, of any kind or nature whatsoever, arising out of or in any
manner directly or indirectly related to the gross negligence or willful
misconduct of NeighborCare in connection with this Agreement, except to the
extent attributable to the gross negligence or willful misconduct of Operator,
its officers, directors, agents or employees.
9.2 Operator will indemnify and hold harmless
NeighborCare and its officers, directors, agents or employees and each of them,
from and against any and all claims, penalties, demands, causes of actions,
damages, losses, liabilities, costs, expenses, including reasonable attorney's
fees, in law or in equity, of any kind or nature whatsoever, arising out of or
in any manner directly or indirectly related to the gross negligence or willful
misconduct of Operator in connection with this Agreement, except to the extent
attributable to the gross negligence or willful misconduct of NeighborCare, its
officers, directors, agents or employees.
9.3 NEIGHBORCARE MAKES NO WARRANTIES WHATSOEVER
HEREUNDER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO ANY PRODUCTS PROVIDED HEREUNDER. OPERATOR
AGREES TO RELY SOLELY UPON THE DESCRIPTIONS AND WARRANTIES CONTAINED ON THE
PRODUCTS SOLD, RENTED OR PROVIDED PURSUANT HERETO AND TO ENFORCE ALL SUCH
WARRANTIES SOLELY AGAINST THE MANUFACTURER OF SUCH PRODUCTS. OPERATOR
ACKNOWLEDGES AND AGREES THAT NEIGHBORCARE IS NOT THE MANUFACTURER OF ANY
PRODUCTS SOLD, RENTED OR PROVIDED PURSUANT HERETO.
9.4 Sections 9.1 through 9.3 will survive termination of
this Agreement and completion of the parties' duties under this Agreement.
10. Confidentiality. It is expressly understood that NeighborCare
may utilize certain proprietary systems (electronic or manual), methods,
procedures, written materials (such as policy manuals) and other information
developed by NeighborCare ("Confidential Information"). Such Confidential
Information will remain the property of NeighborCare and Operator will not, at
any time, unless prior written approval is obtained from NeighborCare, utilize,
distribute, copy, disclose to any third party or otherwise employ or acquire
such Confidential Information except in the performance of Operator's
obligations under this Agreement. Operator also agrees that it will not disclose
NeighborCare's rates to any third party, except to the extent required by law.
Operator hereby acknowledges that if any breach of this section occurs,
NeighborCare would be irreparably and immediately harmed and could not be made
whole by monetary damages. Accordingly, in addition to any other remedy to which
it may be entitled in law or in equity, NeighborCare will be entitled to an
injunction or injunctions to prevent breaches and/or to compel specific
performance of this section, and Operator will not oppose the granting of such
relief on the basis that monetary damages are adequate. Operator also agrees to
reimburse NeighborCare for all costs and expenses, including reasonable
attorney's fees, incurred by it in enforcing Operator's obligations under this
section.
11. Notices. Any notice, request, demand, consent, approval of
other communication required or permitted under this Agreement shall be in
writing and shall be deemed to have been given (i) upon actual delivery, if
delivery is by hand, or (ii) upon receipt if delivery is by telecopier, or (iii)
the first business day following delivery to any nationally recognized overnight
delivery service, or (iv) five (5) days after it is deposited in the United
States mail, postage prepaid, certified or registered mail, return receipt
requested. Each such notice shall be sent to the respective parties at the
addresses indicated below:
If to NeighborCare: NeighborCare
---------------------------------
---------------------------------
Attention: Senior Vice President,
Region
----------
with a copy to: NeighborCare
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: Law Department
If to Operator:
---------------------------------
---------------------------------
Attention:
-----------------------
Any party may change its address for purposes of this section by giving the
other party's ten (10) days prior written notice in accordance with this
section.
12. Civil Rights. NeighborCare and Operator agree to comply with
the Civil Rights Act of 1964 which prohibits discrimination based on race, sex,
national origin, age, color or handicap.
13. Books and Records.
13.1 Access to Books and Records. Pursuant to Section
1395X(v)(1)(I) of Title 42 of the United States Code and applicable rules and
regulations thereunder, until the expiration of four (4) years after the
termination of this Agreement, NeighborCare shall make available, upon
appropriate written request by the Secretary of the United States Department of
Health and Human Services, the Comptroller General of the United States General
Accounting Office, or the applicable state agencies or departments, or any of
their duly authorized representatives a copy of this Agreement and such books,
documents and records as are necessary to certify the nature and extent of the
costs of the services provided by NeighborCare under this Agreement.
NeighborCare further agrees that in the event it carries out any of its duties
under this Agreement through a subcontract with a value or cost of Ten Thousand
Dollars ($10,000) or more over a 12 month period, such subcontract shall contain
a clause identical to that contained in the first sentence of this Section.
13.2 Ownership and Retention of Records. Except as
otherwise provided in this Agreement (including the applicable exhibits), all
documents considered to be part of residents' medical record will be and remain
the property of Operator and upon termination of this Agreement, any original
items in NeighborCare's possession will be delivered to Operator. NeighborCare
will be entitled to maintain a copy of the records unless otherwise prohibited
by federal or state law. NeighborCare and Operator agree to maintain all books
and
records in sufficient detail and for such a period of time as required by
federal and state regulations.
13.3 Availability of Records. During the term of this
Agreement and following expiration or termination of this Agreement for any
reason whatsoever, in accordance with applicable laws, Facility agrees to make
available to NeighborCare all resident records and other relevant information
requested in connection with the performance of the Services.
14. Assignment; Binding Effect. This Agreement may not be assigned
by either party without the prior written consent of the other party hereto;
provided that NeighborCare may assign this Agreement to any affiliate, or to any
party acquiring all or substantially all of the assets or stock of NeighborCare.
Subject to the foregoing, this Agreement will be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
15. Amendments and Waivers. This Agreement may be amended,
modified or varied only by agreement in writing, duly executed by the party
against whom enforcement of any amendment, waiver, change, modification, consent
or discharge is sought. The waiver of any breach of any term or condition of
this Agreement will not be deemed to constitute the continuing waiver of the
same or any other term or condition.
16. Governing Law. This Agreement will be deemed to have been made
in and its validity and interpretation will be governed by and construed under
the laws of Maryland, without regard to the conflict-of law rules of Maryland or
any other state.
17. Jurisdiction. Any and all disputes arising under or related to
the Agreement will be subject exclusively to the jurisdiction of the appropriate
state court in Maryland, Baltimore County or federal court in the U.S. District
Court of Maryland, Northern Division.
18. Headings. The captions herein have been inserted solely for
convenience of reference and will not constitute a part of this Agreement, nor
will they affect the meaning, construction or effect of this Agreement.
19. Entire Agreement. This Agreement sets forth all of the
promises, covenants, agreements, conditions and undertakings between the parties
with respect to the subject matter of this Agreement.
20. Severability. Subject to section 23 hereof, if any provision
of this Agreement or the application thereof to any person or situation will, to
any extent, be held invalid or unenforceable, the remainder of this Agreement,
and the application of such provision to persons or situations other than those
to which it
will have been held invalid or unenforceable, will not be affected thereby, but
will continue valid and enforceable to the fullest extent permitted by law.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but together will
constitute one and the same instrument.
22. Fair Market Value. The amounts to be paid to NeighborCare
hereunder have been determined by the parties through good faith and arms-length
bargaining to be the fair market value of the services to be rendered hereunder.
No amount paid or to be paid hereunder is intended to be, nor will it be
construed as, an offer, inducement or payment, whether directly or indirectly,
overtly or covertly, for the referral of patients by Operator to NeighborCare,
or by NeighborCare to Operator, or for the recommending or arranging of the
purchase, lease or order of any item or service. For purposes of this section,
NeighborCare and Operator will include each such entity and any affiliate
thereof. No referrals are required under this Agreement.
23. Change in Law. Notwithstanding anything to the contrary
contained in this Agreement, in the event that any Medicare and/or Medicaid law,
rule, regulation or payment policy, or any other applicable law or regulation,
or any interpretation thereof, at any time, is modified, implemented, threatened
to be implemented, or determined to prohibit, restrict or in any way materially
change the terms of this Agreement, or by virtue of the existence of this
Agreement has or will have a material adverse effect on either party, then
NeighborCare and Operator agree to negotiate in good faith to amend this
Agreement in a manner consistent with such change and the intent of the parties.
If the parties cannot agree on appropriate amendments to this Agreement in
accordance with this Section 23, the parties agree to submit the matter to
arbitration by the American Arbitration Association, in accordance with its
Commercial Arbitration Rules, and the decision of such arbitration shall be
binding upon NeighborCare and Operator.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have duly executed this Agreement as of the day and year first written above.
NEIGHBORCARE: OPERATOR:
By: By:
-------------------------- --------------------------
Name: Name:
Title: Title
EXHIBIT "E"
PART B SUPPLIES AND SERVICES
1. Part B Supplies. NeighborCare will provide medical equipment
and supplies ("Part B Supplies") to Facility residents who are eligible for
Medicare Part B benefits and for which NeighborCare may be reimbursed directly
by Medicare and for whom NeighborCare has received an appropriate assignment of
benefits, pursuant to the order of a resident's attending physician. Part B
Supplies include but are not limited to enteral, urological, ostomy and wound
care products and services.
2. Billing. To the extent permitted by law, NeighborCare will
xxxx Medicare directly for all Part B Supplies provided to the resident,
utilizing NeighborCare's supplier number. NeighborCare will, with the assistance
of Operator, obtain all necessary paperwork, information, and signatures. All
applicable deductible and co-insurance amounts will be billed to the appropriate
supplemental or secondary insurance or to the residents or their responsible
parties. Notwithstanding the foregoing, NeighborCare reserves the right to xxxx
Operator directly for any items for which Operator has not provided appropriate
and timely documentation for NeighborCare to xxxx Medicare (including, for
example, assignment of benefits).
3. Delivery. NeighborCare will provide regularly scheduled
deliveries to the Facility. In addition, NeighborCare will use reasonable
efforts to provide interim deliveries to meet special patient care needs.
4. Responsibilities of Operator.
4.1 Operator acknowledges that Part B Supplies are for
use by Medicare Part B eligible residents only, and covenants to deliver the
Part B Supplies to the appropriate resident. Operator agrees to assist
NeighborCare with inventory management. Operator agrees to pay NeighborCare its
usual and customary charge for any Part B Supplies delivered by NeighborCare but
not delivered by Operator to a resident eligible for Medicare Part B benefits or
returned to NeighborCare.
4.2 Operator agrees that it will not file any claim form,
xxxx, or request for payment or Medicare Part A or Medicaid cost report for any
resident or third party payer for Part B Supplies furnished by NeighborCare
under this Exhibit.
5. Supplier Standards. NeighborCare agrees to comply with all
applicable Medicare standards to receive and maintain a supplier number.
6. Usage Review. As requested by operator, NeighborCare will
participate in care planning for residents of the Facility, with respect to the
usage
of Part B Supplies, and make recommendations to Operator as NeighborCare
deems appropriate.
NEIGHBORCARE: OPERATOR:
By: By:
-------------------------- --------------------------
Name: Name:
Title: Title
