EXHIBIT 10.41
CONTRACT FOR THERAPY PROGRAM SERVICES
THIS AGREEMENT is made and entered into by and between Paragon, Inc. as
independent contractor, a Tennessee corporation (hereinafter referred to as
"Paragon"), and Americare Corporation a Florida corporation (hereinafter
referred to as "Owner").
WHEREAS, Paragon is in the business of providing rehabilitative therapy services
in health care facilities in the United States; and
WHEREAS, Owner is the owner of a nursing care facility located at Cedar Hills
Nursing Center, 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxxxx, XX 00000 (such facility being
referred to herein as the "Treatment Facility"); and
WHEREAS, Owner desires to establish a coordinated, comprehensive, totally
integrated therapy rehabilitation program (hereinafter referred to as the
"Program") at the Treatment Facility; and
WHEREAS, Owner, having limited expertise, personnel or experience in the
operation of such a Program, desires to have Paragon provide therapists and the
appropriate Program personnel (non-therapists) for the Program under authority
vested in the Owner; and
WHEREAS, Paragon has agreed to provide therapists and Program nontherapist
personnel at the Treatment Facility, and Owner has agreed to contract and pay
for such services at the Treatment Facility, all in accordance with the terms
and conditions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the promises and mutual covenants contained
herein, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
meanings assigned below:
(a) "Agreement" means this Contract For Therapy Program Services.
(b) "Commencement Date" means that date established as the beginning of
the term of this Agreement pursuant to paragraph 6 hereof.
(c) "Owner" means Americare Corporation, a Florida corporation.
(d) "Paragon" means Paragon, Inc., a Tennessee corporation.
(e) "Program" means a comprehensive rehabilitation therapy program
consisting of the three disciplines of physical therapy,
speech-language pathology and occupational therapy and the
integration of those services to achieve
the maximum potential for which each rehabilitation patient is
capable of achieving.
(f) "Treatment Facility" means the Cedar Hills Nursing Center.
2. Nature of Commitment. Paragon shall make qualified Program therapists and
non-therapist personnel available to Owner on an as needed basis to
provide those services listed on Schedule A attached hereto (the
"Services") to Owner's patients at the Treatment Facility.
3. Specific Commitments of Paragon
(a) Services from Therapists
Paragon shall provide Services to the Owner's patients who request
that Services be provided by Paragon, through qualified therapists
under the terms and conditions of this Agreement and in accordance
with any and all applicable requirements of federal and state laws,
rules and regulations.
(b) Training and Patient Care Conferences
The therapists provided by Paragon under this Agreement for the
rendering of Services in the Treatment Facility shall comply with
the Owner's patient care policies, shall participate in individual
patient care planning meetings for patients receiving therapy at the
Treatment Facility and shall participate in staff meetings and
conferences for the purpose of discussing policies and plans of
treatment and general issues related to therapy patient treatment
matters, Therapists provided by Paragon will also participate in the
Treatment Facility's inservice educational training programs as
reasonably requested.
(c) Specialized Equipment or Supplies
In addition to the provision of therapists as provided for herein,
Paragon shall assume responsibility for the furnishing and the
maintenance in good repair of any special equipment or supplies
(general rehabilitation department equipment and supplies that can
and/or will be used for the benefit of the department, versus those
used specifically for an individual patient) which it determines to
be appropriate to its physical, occupational, and speech-language
therapy treatments rendered pursuant to this Agreement and any such
specialized equipment or supplies shall remain the property of
Paragon, The special equipment and supplies described in this
paragraph are not to be confused with
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standard equipment for delivery of physical therapy as outlined in
paragraph 4.(b) of this Agreement, All consumable/disposable
supplies necessary for the delivery of Services pursuant to Schedule
A attached hereto shall be the responsibility of Paragon,
Consumable/disposable supplies do not include specialized equipment
and/or prosthesis specifically fitted or designed for an individual
patient. Items so described above for individual patients will be
the responsibility of the Owner.
(d) Statement of Qualifications
Paragon shall submit to Owner a copy of each therapist's license who
is to provide Services to Owner's patients on behalf of Paragon,
Owner shall have the right to disapprove of any individual who is to
render Services to Owner on behalf of Paragon pursuant to this
Agreement, and to request that Paragon use its best efforts in
responding to such requests.
(e) Record Maintenance
Paragon's therapists shall provide and maintain documentation for
the individual patient charts of treatment, progress, and
evaluations in accordance with requirements of the Treatment
Facility and of third party reimbursement sources.
(f) Services from Non-Therapist Personnel
Paragon shall provide personnel necessary to support the operation
of the Program as further described below:
(i) General Program Responsibilities
Paragon's personnel shall assist the Owner in the direction of
the Program in a manner which will fulfill the objectives
established for the Program by the Owner and provide the
Treatment Facility the necessary resources to comply with both
federal and state guidelines for documentation and achievement
of goals for patients of the Program. The job descriptions
outlined in this Agreement for each position depict the duties
approved by the Owner as a guideline for achievement of the
objectives for the Program.
(ii) Specific Program Responsibilities
Paragon's responsibility is to provide the following personnel
who will perform the job duties as outlined below for the
Program:
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A. Program Personnel
Paragon shall provide a Program Rehabilitation
Coordinator and a Program Transcriptionist on-site at
the Treatment Facility. Additionally, Paragon will
engage the services of a physician to function as
Program Medical Coordinator and he/she will function in
this role under the rules and regulations of the
Program. Paragon anticipates that the time requirements
of these personnel will vary in proportion to the level
of therapy activity conducted for the Treatment
Facility's patients. Paragon agrees to provide these
personnel in sufficient time components to fulfill
Paragon's responsibilities under this Agreement. The
responsibilities outlined in this Agreement for each
level of personnel represent a job description for each
position in conformity with the needs and direction of
Owner.
Paragon agrees to support these Paragon personnel with
ongoing training, personnel, and employee benefit
programs that are necessary in Paragon's determination
to achieve the job description components, Also, Paragon
agrees to provide the related personal computer,
software, fax and telephone assets that these Paragon
personnel need to perform their related job
requirements. The determination of these capital assets
requirements is solely that of Paragon management.
It is expressly understood that Paragon personnel will
not provide any services or be responsible for any
services outside of the Program and will not be
responsible for other normal administrative and medical
record functions related to the applicable patients'
routine nursing care, nursing and rehabilitation medical
records, nursing and rehabilitation billing and other
administrative functions at the Treatment Facility level
related to the Program.
B. Program Services which Paragon will Provide through the
Program Rehabilitation Coordinator:
(1) The Program Rehabilitation Coordinator will
function as the coordinator of the Program at the
Treatment Facility in
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order to assist the therapists and Treatment
Facility Administrator in formulation of policies
and in the implementation and evaluation of these
policies relating to the Program.
(2) The Program Rehabilitation Coordinator will attend
any meetings related to rehabilitative services
requested and maintain an open and direct line of
communication with the therapists and Treatment
Facility Administrator regarding Program
rehabilitation activities.
(3) The Program Rehabilitation Coordinator will review
the potential rehabilitation requirements of a new
patient prior to admission to the Treatment
Facility and review the rehabilitation plan of
care with the Treatment Facility Administrator,
Treatment Facility Director of Nursing, attending
physician and therapists.
(4) Paragon, through the Program Rehabilitation
Coordinator, will assist in the preparation of and
distribute such descriptive booklets, brochures or
pamphlets as may be necessary to properly inform
health care professionals and members of the
public of the services provided by the
rehabilitation Program at the Treatment Facility.
The design, layout and production cost of such
material shall be a cost to the Treatment
Facility.
(5) The Program Rehabilitation Coordinator will assist
in obtaining appropriate signatures from
physicians and therapists related to Program
orders and notes.
(6) The Program Rehabilitation Coordinator will attend
interdisciplinary care planning meetings held at
the Treatment Facility for Program patients.
(7) The Program Rehabilitation Coordinator will have
the following job duties relating to Program
personnel services:
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i. The recruiting, hiring, training,
promoting, assigning and discharging
of non-therapist Program personnel.
ii. Developing job descriptions for each
category of non-therapist Program
personnel.
iii. Providing a program for the
orientation and continuing education
of all nontherapist Program
personnel.
iv. Providing for necessary employee
communications within the Program.
v. The conducting of monthly, or more
often as required, staff meetings
with all Program personnel.
(8) The Program Rehabilitation Coordinator will be
responsible for reviewing Program Standards of
Practice and Outcomes:
i. Initiation, review and dissemination of
quality control standards designed to
provide for quality rehabilitation patient
care in accordance with COBRA standards.
ii. Development and implementation of Program
policies and procedures and standards of
rehabilitative care (subject to review and
approval by Owner) and evaluation of their
effectiveness through a Paragon Program
Evaluation.
iii. Development and maintenance of an
effective system of Program clinical
records and reports.
The Program Rehabilitation Coordinator will not have any
responsibilities normally included in the professional
responsibilities of therapists, such as executing
physician orders, maintaining equipment, medical
certifications, therapy training and direct therapy
care, or normally included in the responsibilities of
routine nursing care or Treatment Facility
administration.
C. Program Physician Services Provided by Paragon:
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Paragon will provide a licensed physician who will
function as the Program Medical Coordinator. The Program
Medical Coordinator is to provide a structured means
whereby a doctor of medicine will share his/her
knowledge of rehabilitation care with the rehabilitation
team, the Director of Nursing and the Medical Director
at the Treatment Facility to create a more therapeutic
milieu and to provide increased encouragement and
support to the patients, relatives and staff. The duties
and responsibilities of the Program Medical Coordinator
are outlined below:
(1) Report to the Treatment Facility Medical Director
sufficient detail regarding the general medical
components of the Program and the rehabilitation
potential and status of any individual
rehabilitation patients as requested to enable the
Treatment Facility Medical Director to fulfill
his/her overall administrative and clinical
responsibilities for all patients of the Treatment
Facility.
(2) Give medical issues guidance and direction to the
Physical Therapist, Occupational Therapist and
SpeechLanguage Pathologist as needed.
(3) Attend interdisciplinary care plan meetings held
at the Treatment Facility for patients receiving
therapy.
(4) Participate in appropriate sessions of Paragon's
in-service education programs.
(5) Provide overall physician coordination of
rehabilitation care for the Program to further
ensure the adequacy and appropriateness of the
rehabilitation services provided to patients, All
of the duties and functions ascribed to the
Program Medical Coordinator are institutional
Program responsibilities as distinct from
physician services for direct patient care.
(6) Serve as medical representative liaison between
the rehabilitation Program and the organized
medical community of the area.
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(7) Assist in the development of a monitoring
surveillance mechanism which will assure that the
rehabilitation regimen of each patient is
incorporated appropriately into the patient care
plan for that patient.
(8) Respond to any official medical review performed
by the various official surveyors and inspectors
related to rehabilitation services.
(9) Participate, with the collaboration of the other
rehabilitation professionals and administration of
the Treatment Facility, in the development of
formal rehabilitation policies and procedures for
the Treatment Facility.
D. Transcriptionist Services Provided by Paragon: Paragon,
through the services of the Program transcriptionist,
agrees:
(1) To prepare monthly clinical summaries for the
Treatment Facility administrative staff necessary
for the Treatment Facility staff to prepare all
xxxxxxxx of Program services to third party
payors.
(2) To maintain daily and monthly Program patient
census reports and furnish such information to the
Treatment Facility staff as requested.
(3) To maintain therapy service logs for each patient
by day and by discipline for billing and control
purposes, and report such information to the
Treatment Facility staff for further processing.
(4) To transcribe therapists notes for delivery to the
Treatment Facility's medical records department
and for the Treatment Facility staff's use for
billing to third party payors and others.
(5) To maintain an admission and discharge record of
all patients admitted to and discharged from the
rehabilitation Program and report such information
to the Treatment Facility staff as required.
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(6) To maintain various Program records required by
licensing agencies and other information requested
by the Treatment Facility's staff.
(g) Invoices
Paragon shall submit to the Owner on a monthly basis an invoice for
all Services rendered during the month. Additionally, Paragon shall
submit all other documentation necessary for an accurate and
complete billing by the Owner to third party reimbursement sources,
Such invoices shall include among other items; (a) the name(s) of
the Paragon therapist(s) who provided the Service; (b) the name(s)
of the patients to whom the Services were rendered; and (c) the fees
applicable to each Service and each patient. The fees for the
Services provided by Paragon are set forth on Schedules B. C, D, E
and F attached hereto and made a part hereof.
4. Obligations of Owner
(a) Billing
Unless otherwise required by applicable federal and state laws,
rules or regulations, Owner shall be solely responsible for billing
patients and/or their respective governmental or other third party
reimbursement sources for Services provided to the patients of Owner
by Paragon under this Agreement, Owner will be responsible for
supplying clerical personnel/services needed to complete third party
billing support and to prepare invoices to appropriate payors for
Services provided.
(b) Space and Equipment
Owner shall be responsible for designating and setting aside
adequate work and storage areas for the provisions of Paragon's
therapy Services. These areas shall be located on the Treatment
Facility's premises and shall be adequate for Paragon's therapists
to provide the Services required under this Agreement, The
maintenance of the designated area including storage space shall be
the sole responsibility of Owner. The Owner shall also be
responsible for the provision and maintenance of standard physical
therapy equipment required within the designated area for the
provision of a coordinated, comprehensive and totally integrated
therapy rehabilitation program.
(c) Record Maintenance
Owner shall have primary responsibility for maintaining
all patient records. Owner shall make available to
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Paragon for review and inspection individual patient treatment
records necessary for the proper evaluation, screening, treatment
of, and provision of Services to such patients. Owner shall be
responsible for alerting Paragon to any and all federal, state, and
local regulations pertaining to the confidentiality of patient
records. Paragon agrees to be bound by such regulations.
5. Compensation
(a) Payments
Paragon shall submit to Owner on a monthly basis invoices for all
Services rendered during the month and at fees outlined in Schedules
B, C, D, E and F. Owner shall remit to Paragon payment in full for
each invoice submitted by Paragon within thirty (30) days of the
submission date of such invoices. In the event Owner shall fail to
make payment in full of any invoice (other than amounts questioned
or contested by the Owner in good faith) within five (5) days of the
date payment is due, the amount due pursuant to such invoice less
and except any amounts questioned or contested in good faith) will
be increased by a late payment fee of five percent (5%) of the
amount due. In the event Owner shall question or contest in good
faith any amount stated to be due under an invoice submitted by
Paragon, Owner and Paragon agree to proceed diligently and in good
faith to resolve any such question or contest, and payment shall be
due and payable immediately upon such resolutions No notice of this
late charge is required of Paragon (other than inclusion on
Paragon's invoice) and the late charge will be automatically
assessed if payment is not received by Paragon on or before the
thirty fifth (35th) day following submission date of invoice. Late
charges are not subject to the provisions of paragraphs 5 (b) (c) or
(d) of this Agreement, Owner hereby expressly agrees that the fee
rates included in Schedules B, C, D, E and F represent market rates
f or such Services and such market rates are consistent with Owners
investigation of market services and rates.
(b) Support for Payments by Reimbursement Sources
Paragon, at its own time and expense, shall be responsible for
defending third party payor source denials or disallowances of
reimbursement f or units of therapy services rendered by Paragon
which are based upon improper or incomplete medical records
documentation of the Service provided or a determination by a third
party payor that the units of therapy services were medically
unnecessary. Paragon must provide the necessary clinical therapy
documentation to show that the units were rendered. In the event
Owner is denied units of therapy
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charges due to the foregoing reasons, then Paragon shall initiate
action to correct the cause for the denial as outlined in paragraphs
5(c) and 5(d) of this Agreement.
(c) Notification
In the event a third party payor source notifies Owner that a unit
of therapy rendered by Paragon was not medically necessary or did
not meet the applicable conditions of coverage (the "Denial Notice")
or, if Owner is requested to supply additional therapy clinical
documentation by a third party payor source before a claim is
processed for payment ("Inquiry Letters"), Owner shall provide
Paragon with a copy of the Denial Notice and/or Inquiry Letter
within (14) business days of receipt of the Denial Notice or Inquiry
Letter. In the event Owner does not notify Paragon as outlined in
this paragraph, Owner's rights set out under paragraphs 5(b) and
5(d) will have been waived and Owner shall be responsible for
compensating Paragon for it's charges.
(d) Appeal Rights
If particular units of therapy charges are disallowed by an
insurance carrier or other agency for improper documentation or
action or inaction of Paragon as set forth in paragraph 5(b) of this
Agreement, Paragon shall be responsible for defending such
disallowance on its own time and at its own expense and shall, to
the extent authorized by law and as directed by Owner, undertake the
appeal of the disallowance on behalf of Owner, In the event Owner
loses an administrative appeal and otherwise exhausts its
administrative appeal rights, Owner shall deduct from future
payments due Paragon the underlying Paragon charges for such
services related to the denied Treatment Facility charges on a per
unit basis. However, if Owner denies Paragon the opportunity to
undertake or assist in the appeal of the disallowance as outlined in
this Agreement, Owner's rights set out in this paragraph will have
been waived.
6. Term. The term of this Agreement shall commence as of August 1, 1993
("Commencement Date"), and shall continue for an initial term of five (5)
years thereafter, and shall be renewable for five (5) successive
additional terms of five (5) years each unless either party to this
Agreement shall give to the other at least ninety (90) days notice (prior
to the expiration of the existing term) of its election not to renew this
Agreement for an additional term, this Agreement shall be deemed to be
automatically renewed.
Notwithstanding the foregoing, either party shall have the right to
terminate this Agreement upon sixty (60) days written notice to the other
party, with or without cause, in which
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event this contract shall terminate pursuant to such notice, but such
termination shall not impair the rights of Paragon to enforce the payment
of sums due hereunder in proceedings at law or in equity, nor the rights
of either party to pursue remedies for subsequent claims.
7. Authority of Owner. Anything to the contrary herein contained
notwithstanding, ultimate authority and power to establish, approve or
disapprove any policy, program, rule, regulation, procedure, legal action,
repair or addition, shall be vested in the Owner.
8. Default. Each of the following events or occurrences shall constitute an
Event of Default hereunder:
(a) The failure of the Owner to pay or reimburse to Paragon all sums
required to be paid or reimbursed to Paragon hereunder.
(b) Any representation or warranty made or contained in this Agreement
found to be untrue or misleading in any material respect.
(c) The nonperformance of, nonobservance of, breach of or failure to
execute the covenants, agreements, promises, warranties and
conditions made by or required of any party to this Agreement.
(d) The filing by or against any party to this Agreement of a voluntary
or involuntary petition in bankruptcy; or any party's adjudication
as a bankrupt or insolvent; or the filing by any party of any
petition or answer seeking or acquiescing to any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief for itself under any present or future federal, state
or other law or regulation relating to bankruptcy, insolvency,
receivership or other relief for debtors; or the making by any
party, endorser or guarantor of any general assignment for the
benefit of creditors; or the admission in writing by any party of
its inability to pay its debts generally as they become due; or the
commission by any party of any act of bankruptcy.
9. Remedies for Non-Financial Default. In the event either party to this
Agreement deems the other party to be in default under its obligations as
contained hereunder, other than a default described in paragraph 8(a)
hereof, then said party shall be required to provide notice of the alleged
default to the other party, which notice shall contain detailed
specifications of such default. Upon the receipt of such notice (which
shall be deemed to have occurred on the date the notice was mailed by
postage pre-paid certified mail, return receipt requested), the party
being charged with the default shall have a period
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of thirty (30) days in which to cure such default or to provide
appropriate assurances that the alleged default will be timely corrected,
If such default is not cured within such thirty (30) day period, then the
party alleging the default may terminate this Agreement, but such
termination shall not be deemed a waiver of such party's right to enforce
the payment of sums due hereunder or to seek other relief , either at law
or in equity.
10. Remedies for Financial Default In the event of a default by the Owner
under paragraph 8 (a) hereof, Paragon shall be required to provide notice
of the default to the Owner. Upon the receipt of such notice (which shall
be deemed to have occurred on the date the notice was mailed by postage
pre-paid certified mail, return receipt requested), the Owner shall have a
period of ten (10) days in which to cure such default. If such default is
not cured within such ten (10) day period, then Paragon may terminate this
Agreement, but such termination shall not be deemed a waiver of Paragon's
right to enforce the payment of sums due hereunder or to seek other
relief, either at law or in equity.
11. Insurance. Paragon agrees, during the term of this Agreement, to maintain
and provide Owner with copies of the following insurance coverages:
(a) Commercial General Liability with limits of not less than $1,000,000
per occurrence, $1,000,000 aggregate;
(b) Professional Malpractice Liability Insurance providing coverage of
all Paragon personnel provided pursuant to the terms of this
Agreement with limits of not less than $1,000,000 per occurrence and
$1,000,000 aggregate;
(c) Worker's Compensation Insurance as regulated by the laws of the
State providing coverage of all Paragon personnel provided pursuant
to the terms of this Agreement; and
(d) Automobile Liability Insurance with limits of not less than
$1,000,000 combined single limit.
12. Indemnification: Hold Harmless
(a) Owner shall indemnify and hold Paragon harmless from and against all
claims, demands, costs, expenses, liabilities and losses (including
reasonable attorneys' fees) which may result against Paragon as a
consequence of any alleged malfeasance, neglect or medical
malpractice caused or alleged to be caused by Owner, its employees,
agents, or contractors.
(b) Paragon shall indemnify and hold Owner harmless from and against all
claims, demands, costs, expenses, liabilities and losses (including
reasonable attorneys' fees) which
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may result against Owner as a consequence of any alleged
malfeasance, neglect or medical malpractice caused or alleged to be
caused by Paragon, its employees, agents, or contractors in
connection with the performance of Services pursuant to this
Agreement outlined in Schedule A.
13. Independent Contracting Parties. This Agreement is an independent contract
between Owner and Paragon. Neither party shall be construed in any manner
whatsoever to be an employee or agent of the other, nor shall this
Agreement be construed as a contract of employment, agency or joint
venture. It is further expressly understood that all personnel provided by
Paragon in support of the Program shall not in any manner be construed to
be employees of or contractors to the Owner, but shall be employees of or
contractors to Paragon, which shall be solely responsible for the wages,
salaries, benefits, payroll taxes, insurance (including workers
compensation and professional liability insurance) and all other burdens
of employment of such employees or contractors.
14. Access to Records. Until the expiration of four (4) years after the
furnishing of Services pursuant to this Agreement, Paragon agrees to make
available, upon request from the Secretary of Health and Human Services or
the U.S. Comptroller General or of any of their duly authorized
representatives, records of Paragon that are necessary to verify the
Services received by Owner under this Agreement.
15. Compliance with Title VI of the Civil Rights Act of 1964. Owner and
Paragon agree to be in full compliance with Title VI of the Civil Rights
Act of 1964 (P.L. 8B-352) and all requirements imposed by and pursuant to
the regulations of the United States Department of Health and Human
Services issued pursuant to that Title, so that no person in the United
States of America shall, on the grounds of race, color handicap, or
national origin, be excluded from participation in, be denied the benefits
of, or be otherwise subjected to discrimination under any program or
activity provided by Owner or Paragon.
16. Restrictive Covenant
(a) Owner Restrictive Covenant.
(i) During the term of this Agreement and f or a period of twelve
(12) months after the termination of this Agreement for any
reason whatsoever, Owner shall not, without the written
consent of Paragon, (A) employ or contract with, for services
to be delivered at the Treatment Facility or other facilities
in which Owner or principals of Owner has an interest, (a) any
individual who is currently providing or who has provided
Services to Owner on behalf of Paragon, or (b) any entity in
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which any such individual has an interest (as a principal,
partner, director, officer, agent, employee, consultant,
contractor or otherwise); or (B) induce or attempt to
influence any employee or contractor of Paragon to terminate
his relationship with Paragon, Notwithstanding the foregoing,
Owner shall not be prohibited from rehiring any employee or
independent contractor who is in the employment of Owner at
the commencement of the term of this Agreement, but whose
employment is transferred to Paragon during the term hereof.
(ii) Owner acknowledges that the restrictions contained in
subparagraph (i) of this paragraph, in view of the nature of
the business in which Paragon is engaged, are reasonable and
necessary to protect the legitimate interests of Paragon, and
that any violation thereof would result in irreparable
injuries to Paragon, and Owner therefore acknowledges that, in
the event of violation of any of these restrictions, Paragon
shall be entitled to obtain from any court injunctive relief
as well as damages and an equitable accounting of all
earnings, profits, and other benefits arising from such a
violation, which rights shall be cumulative and in addition to
any other rights or remedies to which Paragon may be entitled.
(b) Paragon Restrictive Covenant
(i) During the term of this Agreement and for a period of twelve
(12) months after the termination of this Agreement for any
reason whatsoever, Paragon shall not, without the written
consent of Owner, (A) employ or contract with (a) any
individual who is currently on the payroll of the Owner at the
time of termination, or (b) any entity in which any such
individual has an interest (as a principal, partner, director,
officer, agent, employee, consultant, contractor or
otherwise); or (B) induce or attempt to influence any employee
of Owner to terminate his relationship with Owner,
Notwithstanding the foregoing, Paragon shall not be prohibited
from rehiring any employee or independent contractor who is in
the employment of Paragon at the commencement of the term of
this Agreement, but whose employment is transferred to Owner
during the term hereof.
(ii) Paragon acknowledges that the restrictions contained in
subparagraph (i) of this paragraph, in view of the nature of
the business in which Owner is engaged, are reasonable and
necessary to protect the legitimate interests of Owner, and
that any
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violation thereof would result in irreparable injuries to
Owner, and Paragon therefore acknowledges that, in the event
of violation of any of these restrictions, Owner shall be
entitled to obtain from any court injunctive relief as well as
damages and an equitable accounting of all earnings, profits,
and other benefits arising from such a violation, which rights
shall be cumulative and in addition to any other rights or
remedies to which Owner may be entitled.
17. Miscellaneous
(a) Indulgences
Neither the failure nor any delay on the part of any party to
exercise any right, remedy, power, or privilege ("Right") under this
Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any Right preclude any other or further exercise
of the same or of any other Right, nor shall any waiver of any Right
with respect to any occurrence be construed as a waiver of such
Right with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
(b) Waiver of Provisions
None of the conditions or provisions of this Agreement shall be held
to have been waived by any act or knowledge of either party, its
agents or employees, but only by an instrument in writing, signed by
an officer of such party.
(c) Law Applicable
This Agreement and all questions relating to its validity,
interpretation, performance and enforcement, shall be governed by
and construed in accordance with the laws of the state of Florida
notwithstanding any conflict-of-laws provisions to the contrary.
(d) Notices
All notices, requests, demands, and other communications required or
permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made, and received when personally
delivered or upon actual receipt of registered or certified mail,
postage prepaid, return receipt requested, addressed as set forth
below:
(i) If to Paragon:
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Paragon, Inc.
ATTN: Chairman
Woodmont Centre
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
(ii) If to Cedar Hills Nursing Center:
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
ATTN: Administrator
Any such notice shall be deemed given as of the date of its receipt at the
address to which such notice is to be directed, regardless of any other date
that may appear.
Any party may change the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
(e) Entire Agreement
This Agreement and the Schedules A, B, C, D, E and F hereto contain
the entire understanding between the parties hereto with respect to
the subject matter, and supersede all prior and contemporaneous
agreements and understandings, inducement or conditions, express or
implied, oral or written, Except as expressed herein, neither this
Agreement nor the attached Schedules A, B, C, D, E and F may be
modified or amended other than by an agreement delivered in writing
to the address shown in this Agreement, and subsequently signed by
the authorized, official party to which such modification or
amendment is asserted.
(f) Number of Days
In computing the number of days for purposes of the Agreement, all
days shall be counted, including Saturdays, Sundays, and holidays;
provided, however, that if the final day of any time period falls on
a Saturday, Sunday, or holiday, then the final day shall be deemed
to be the next day which is not a Saturday, Sunday, or holiday.
(g) Schedules
All Schedules, Exhibits, and Addenda attached hereto are hereby
incorporated by reference into, and made a part of, this Agreement.
(h) Variations of Pronouns
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All pronouns and all variations thereof shall be deemed to refer to
the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons or entity may require.
(i) Authorization for Agreement
The execution and performance of this Agreement by Owner and Paragon
have been duly authorized by all necessary laws, resolutions, or
corporate action, and this Agreement constitutes the valid and
enforceable obligations of Owner and Paragon in accordance with its
terms.
(j) Exclusive Forum
The parties agree that the courts of general jurisdiction in the
State of Florida and the appropriate appellate courts shall have
exclusive jurisdiction for the resolution of any and all disputes
arising under or relating to this Agreement or instruments and
documents executed and delivered pursuant to this Agreement.
(k) Attorney's Fees
In the event of litigation arising out of this Agreement, the
prevailing party shall be entitled to recover, in addition to the
relief granted, all costs incurred, including reasonable attorney's
fee.
(l) Enforceability
Should any provisions of this Agreement be unenforceable as between
the parties, such unenforceability shall not affect the
enforceability of other provisions of the Agreement.
(m) Assignment
All the terms, provisions and conditions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective heirs, successors, personal representatives and
permitted assigns. Any party may assign this Agreement only upon the
prior written consent of the other party (which consent shall not be
unreasonably withheld), provided that:
(i) such assignment is in writing, duly executed by the
assignor and assignee;
(ii) assignee accepts in writing the assignment and
assumes this Agreement and the due performance of
all of the assignor's obligations hereunder; and
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(iii) a duly executed and acknowledged counterpart of such
Assignment and Assumption Agreement is delivered to the other
party.
In the event of such assignment, and upon compliance with the foregoing
conditions, this Agreement shall be binding upon and inure to the benefit
of such assignee, but the assignor shall not be released of its
obligations except by a release signed by the non-assigning party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement for
Services as outlined herein to be effective commencing August 1, 1993.
PARAGON, INC.
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
--------------------------------
Title: President
CEDAR HILLS NURSING CENTER
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Administrator
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SCHEDULE A
SERVICES TO BE PROVIDED
Paragon, Inc. , agrees to furnish qualified personnel as required
for the provision of the following Services:
Occupational Therapy
Speech-Language Pathology
Physical Therapy
Non-Therapist Personnel Services
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SCHEDULE B
FEE SCHEDULE - SPEECH-LANGUAGE PATHOLOGY
Owner agrees to pay for speech-language pathology performed for patients at
Treatment Facility and such fees shall be based on units of Service as set forth
below:
Each unit of speech-language pathology at $22.00 per unit.
A unit of Service equals fifteen (15) minutes and represents the therapist's
time, including patient therapy, preparation of and planning for treatment and
preparation of reports, but exclusive of travel and personal time for which no
charge is made.
The schedule of fees set forth above may be changed by Paragon at any time upon
not less than thirty (30) days notice to Owner.
In the event, guidelines for the maximum reimbursement of Speech Therapy are
imposed by the Fiscal Intermediary, this contract will be void, upon notice of
denial of payment, for that reason, by the Owner to Paragon, and shall be
renegotiated based upon those guidelines.
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SCHEDULE C
FEE SCHEDULE - OCCUPATIONAL THERAPY
Owner agrees to pay for occupational therapy performed for patients at Treatment
Facility and such fees shall be based on units of Service as set forth below:
Each unit of occupational therapy at $22.00 per unit.
A unit of Service equals fifteen (15) minutes and represents the therapist's
time, including patient therapy, preparation of and planning for treatments and
preparation of reports, but exclusive of travel and personal time for which no
charge is made.
The schedule of fees set forth above may be changed by Paragon at any time upon
not less than thirty (30) days notice to Owner.
In the event, guidelines for the maximum reimbursement of occupational Therapy
are imposed by the Fiscal Intermediary, this contract will be void, upon notice
of denial of payment, for that reason, by the Owner to Paragon, and shall be
renegotiated based upon those guidelines.
22
SCHEDULE D
FEE SCHEDULE - PHYSICAL THERAPY
(MEDICARE PATIENTS)
Owner agrees to pay for physical therapy performed for patients at Treatment
Facility and such fees shall be based on units of Service as set forth below:
(A) Current published Medicare approved adjusted hourly salary
equivalency physical therapy rates (as applicable for all classes of
physical therapy personnel) delivered on a unit of time basis; plus
(B) Current published Medicare approved per day travel allowance and
expense.
A unit of Service is comprised of fifteen (15) minute segments and represents
the therapist's time, including patient therapy, preparation of and planning for
treatments and preparation of reports, but exclusive of personal time for which
no charge is made. Travel allowance and expense fees are shown separate under
(B).
Additionally, actual depreciated equipment costs and, actual costs of supplies
incurred in furnishing direct services to patients will be billed to Owner as
outlined under Medicare guidelines for such items.
The schedule of Medicare fees set forth above may be changed by Paragon at any
time in accordance with Federally mandated Salary Equivalency Guidelines as
published in the Federal Register.
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SCHEDULE E
FEE SCHEDULE - PHYSICAL THERAPY
(NON-MEDICARE PATIENTS)
Owner agrees to pay for physical therapy performed for patients at Treatment
Facility and such fees shall be based on units of Service as set forth below:
Each unit of physical therapy at $22.00 per unit.
A unit of Service equals fifteen (15) minutes and represents the therapist's
time, including patient therapy, preparation of and planning for treatments and
preparation of reports, but exclusive of travel and personal time for which no
charge is made.
The schedule of fees set forth above may be changed by Paragon at any time upon
not less than thirty (30) days notice to Owner.
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SCHEDULE F
FEE SCHEDULE - NON-THERAPIST PERSONNEL SERVICES
Owner agrees to pay Paragon a monthly fee equal to 4 dollars ($4) per therapy
treatment unit of service up to a maximum number of treatment units of 2900 per
month. A unit of service is comprised of fifteen (15) minute segments for
therapy by any of the three disciplines, occupational, speech and/or physical
therapy.
In the event that the scope of services required under this Agreement is changed
or there is an increase in the use of nontherapist personnel beyond what is
outlined in this Agreement, Paragon shall be entitled to increase the
compensation set forth in this Schedule F. Notice of such increases will be
submitted to Owner, along with an explanation for the change in compensation,
thirty (30) days before the scheduled effective date. However, unless Owner
agrees to increases resulting from changes in the scope of services or increased
personnel beyond what is outlined in this Agreement, no increase in charges for
such changes will be made.
In addition, on each anniversary of the date of this Agreement, the fee per
therapy treatment unit payable under this Agreement shall be increased on each
such anniversary to an amount obtained by multiplying the fee per treatment unit
(for the previous year) by a fraction, the numerator of which is the "Index" (as
hereinafter defined) for the calendar year immediately preceding such
anniversary and the denominator of which is the "Index", for the calendar year
preceding the year used for the numerator. In no event shall the fraction be
less than 1.0. For purposes of this paragraph, the "Index" shall mean the
Medical Care component of the Consumer Price Index for All Urban Consumers
(CPI-U) (1982-4 = 100) as reported by the Bureau of Labor Statistics of the
United States Department of Labor for the Jacksonville metropolitan area,
Paragon shall, following each anniversary of the date of this Agreement, submit
documentation to Owner supporting this annual increase, and such increase shall
become effective on each anniversary date.
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SCHEDULE 10.41
Paragon Rehabilitation, Inc. f/k/a Paragon, Inc. ("Paragon") has entered
into agreements substantially identical to Exhibit 10.41 as follows:
1. Contract for Therapy Program Services effective as of May 1, 1996 with
Americare Corporation for St. Petersburg, Florida facility.
2. Contract for Therapy Program Services effective as of September 7, 1994
with Americare Corporation for St. Petersburg, Florida facility.
3. Contract for Therapy Program Services effective as of February 15, 1996
with Diversicare Management Services for Sheridan, Arkansas facility.
4. Contract for Therapy Program Services effective as of February 1, 1996
with Diversicare Management Services for Hot Springs, Arkansas facility.
5. Contract for Therapy Program Services effective as of February 1, 1991
with HBA Corporation for New Smyrna Beach, Florida facility. A material detail
in which this agreement differs from Exhibit 10.41 is that non-therapist
personnel services are billed at $5.00 per unit.
6. Contract for Therapy Program Services effective as of August 1, 1993
with Waters Edge Convalescent Center for Trenton, New Jersey facility. Material
details in which this agreement differs from Exhibit 10.41 are that
non-therapist personnel services are billed at $5.00 per unit and Paragon waived
it right to the 5% late fee until the facility receives its initial Medicare per
diem adjustment.
7. Contract for Therapy Program Services effective as of October 1, 1993
with Meadowview East Geriatrics, Inc. for Xxxxxxx, New Jersey facility. Material
details in which this agreement differs from Exhibit 10.41 are that
non-therapist personnel services are billed at $9000 per month, and Paragon
waived it right to the 5% late fee until the facility receives its initial
Medicare per diem adjustment.
8. Contract for Therapy Program Services effective as of April 1, 1993
with Eden Park Management, Inc. for Stuart, Florida facility.
9. Contract for Therapy Program Services effective as of February 26, 1996
with Diversicare Management Services for Malvern, Arkansas facility.
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10. Contract for Therapy Program Services effective as of February 1, 1996
with Diversicare Management Services for Mena, Arkansas facility.
11. Contract for Therapy Program Services effective as of February 22,
1996 with Diversicare Management Services for Camden, Arkansas facility.
12. Contract for Therapy Program Services effective as of February 3, 1993
with Xxxxx Manor, Inc. for Dunedin, Florida facility.
13. Contract for Therapy Program Services effective as of February 1, 1996
with Diversicare Management Services for Hot Springs, Arkansas facility.
14. Contract for Therapy Program Services effective as of June 1, 1995
with Senior Care Properties, as manager, for Lake Park of Madison, Florida
facility. A material detail in which this agreement differs from Exhibit 10.41
is that the maximum number of treatment units for non-therapist personnel
services is 3000 per month.
15. Contract for Therapy Program Services effective as of February 1, 1995
with THP for Knightdale, North Carolina facility. Material details in which this
agreement differs from Exhibit 10.41 are that speech-language pathology,
occupational therapy and nonMedicare patient physical therapy services are
billed at $23.00 per unit, and non-therapist personnel services are billed at
$5.00 per unit not to exceed 3000 units per month.
16. Contract for Therapy Program Services effective as of March 1, 1995
with Xxxxxx View Nursing Home for Xxxxxx Plains, New Jersey facility. Material
details in which this agreement differs from Exhibit 10.41 are that
speech-language pathology, occupational therapy and non-Medicare patient
physical therapy services are billed at $23.00 per unit and non-therapist
personnel services are billed at $5.00 per unit not to exceed 3000 units per
month.
17. Contract for Therapy Program Services effective as of July 22, 1996
with Blountstown Health Investors, L.L.C. for Blountstown, Florida facility.
Material details in which this agreement differs from Exhibit 10.41 are that
speech-language pathology and occupational therapy services are billed at $23.75
per unit, and non-therapist personnel services are billed at $5.00 per unit not
to exceed 3000 units per month.
18. Contract for Therapy Program Services effective as of February 1, 1995
with THP for Charlotte, North Carolina facility. Material details in which this
agreement differs from Exhibit 10.41 are that speech-language pathology and
occupational therapy services are billed at $23.75 per unit, and non-therapist
personnel services are billed at $15,000 per month.
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19. Contract for Therapy Program Services effective as of May 1, 1995 with
THP for Jeffersonville, Indiana facility. Material details in which this
agreement differs from Exhibit 10.41 are that speech-language pathology and
occupational therapy services are billed at $23.75 per unit, and non-therapist
personnel services are billed at $15,000 per month.
20. Contract for Therapy Program Services effective as of July 12, 1995
with THP for Carthage, North Carolina facility. Material details in which this
agreement differs from Exhibit 10.41 are that speech-language pathology and
occupational therapy services are billed at $23.75 per unit, and non-therapist
personnel services are billed at $15,000 per month.
21. Contract for Therapy Program Services effective as of August 1, 1995
with THP for Rutherfordton, North Carolina facility. Material details in which
this agreement differs from Exhibit 10.41 are that speech-language pathology and
occupational therapy services are billed at $23.75 per unit, and non-therapist
personnel services are billed at $15,000 per month.
22. Contract for Therapy Program Services effective as of May 1, 1995 with
THP for Louisville, Kentucky facility. Material details in which this agreement
differs from Exhibit 10.41 are that speech-language pathology and occupational
therapy services are billed at $23.75 per unit, and non-therapist personnel
services are billed at $15,000 per month.
23. Contract for Therapy Program Services effective as of March 13, 1992
with Cana II Corporation for Port Charlotte, Florida facility. Material details
in which this agreement differs from Exhibit 10.41 are that speech-language
pathology and occupational therapy services are billed at $26.00 per unit, and
no nontherapist personnel services are to be provided by Paragon to the
facility.
24. Contract for Therapy Program Services effective as of February 1, 1995
with Americare Corporation for Hollywood, Florida facility. Material details in
which this Agreement differs from Exhibit 10.41 are that speech-language
pathology and occupational therapy services are billed at $23.00 per unit.
25. Contract for Therapy Program Services effective as of May 15, 1995
with Xxxxxx Management for Little Rock, Arkansas facility. Material details in
which this Agreement differs from Exhibit 10.41 are that speech-language
pathology and occupational therapy services are billed at $23.75 per unit, and
non-therapist personnel services are billed at $15,000 per month.
26. Contract for Therapy Program Services effective as of October 1, 1995
with THP for Louisville, Kentucky facility. Material details in which this
Agreement differs from Exhibit 10.41 are that speech-language pathology and
occupational therapy
28
services are billed at $23.75 per unit, and non-therapist personnel services are
billed at $15,000 per month.
27. Contract for Therapy Program Services effective as of February 1, 1994
with Kenbrook Associates, L.P. d/b/a Brookhaven Health Care Center for East
Orange, New Jersey facility. Material details in which this Agreement differs
from Exhibit 10.41 are that speech-language pathology, non-Medicare patient
physical therapy and occupational therapy services are billed at $24.00 per
unit, and non-therapist personnel services are billed at $5.00 per unit. In
addition, Paragon has waived its right to the 5% late fee until the facility
receives its initial Medicare per diem adjustment.
28. Contract for Therapy Program Services effective as of September 1,
1996 with NHC Limited Partnerships, Inc. for Crystal River, Florida facility.
Material details in which this agreement differs from Exhibit 10.41 are that
speech-language pathology and occupational therapy services are billed at $23.00
per unit, and the maximum number of units of non-therapist personnel services
allowed per month is 3000.
29. Contract for Therapy Program Services effective as of August 1, 1995
with THP for Hayesville, North Carolina facility. Material details in which this
agreement differs from Exhibit 10.41 are that speech-language pathology and
occupational therapy services are billed at $23.75 per unit, and non-therapist
personnel services are billed at $15,000 per month.
30. Contract for Therapy Program Services effective as of February 3, 1997
with Vencor Hospital North Florida, Inc. for Green Cove Springs, Florida
facility. Material details in which this agreement differs from Exhibit 10.41
are that this agreement is solely for non-therapy services, and the
non-therapist personnel services are billed at $15,000 per month.
31. Contract for Therapy Program Services effective as of February 3, 1997
with Vencor Hospital of Tampa for Tampa, Florida facility. Material details in
which this agreement differs from Exhibit 10.41 are that this agreement is
solely for non-therapy services, and the non-therapist personnel services are
billed at $15,000 per month.
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