EXHIBIT 10.44
FEE FOR SERVICE
THERAPY SERVICES AGREEMENT
This Agreement ("Agreement") is made as of this 1st day of January, 1997,
by and between Paragon Rehabilitation, Incorporated ("Contractor") and
Greeneville West Health Care Center ("Facility").
RECITALS
Whereas, Facility is a duly licensed nursing facility that furnishes
nursing care to residents in the Facility who are in need of rehabilitation
services and eligible to have such services covered under the Medicare Program,
which services are not available directly from Facility;
Whereas, Contractor employs licensed and qualified professionals who
furnish a full range of speech-language pathology, physical therapy and
occupational therapy (hereinafter referred to as "rehabilitation services"); and
Whereas, Facility wishes to make arrangements with Contractor for
furnishing rehabilitation services to its patients which-are not available
directly from Facility; and
Whereas, Contractor employs qualified professionals who furnish
rehabilitation support services; and
Whereas, Facility wishes to make arrangements with Contractor for
furnishing rehabilitation support services.
Now, Therefore, in consideration of the covenants and promises herein
contained, and other good and valuable consideration, the parties agree as
follows:
ARTICLE I.
OBLIGATIONS OF CONTRACTOR
1.01 Services by Contractor
(a) Except as otherwise provided in this Agreement, Contractor shall
furnish, under the control and supervision of the Facility, the rehabilitation
and rehabilitation support services identified in Attachment "A".
(b) All services shall be furnished in accordance with applicable
requirements of federal and state laws, and the applicable policies of the
Contractor, the Facility, and any third-party payors.
(c) All services shall be rendered in a competent, efficient and
satisfactory manner, in compliance with professional standards, and in
accordance with a plan of treatment established from time to time by the
physician responsible for the patient's care or a qualified therapist, as
permitted by law.
(d) Contractor shall maintain adequate properly licensed personnel to
perform the services required to be performed by it under this Agreement, and
shall provide Facility with a resume of the qualifications of each employee who
will furnish the services, as well as copies of their current licenses and/or
registrations and renewals.
(e) Contractor shall participate in conferences required to coordinate the
care of an individual patient.
(f) Contractor shall review the potential rehabilitative requirements of
prospective patients prior to admission.
(g) Contractor shall provide for the preparation of treatment records,
with progress notes and observations, and for their prompt incorporation, as may
be required, into the clinical records of Facility or others designated by the
Facility. Such records shall be prepared in accordance with applicable
requirements of the facility, any fiscal intermediary, and any federal and-state
agency, and/or any other party to whom xxxxxxxx for services are rendered.
(h) Contractor shall provide quality standards, outcome measurement and
program evaluation for rehabilitation services.
(i) Contractor will be the sole provider of Services to Facility's
patients during the term of this Agreement, unless a patient specifically
requests otherwise. Contractor will notify Facility if any services to be
provided cannot be rendered hereunder in a timely fashion so that Facility can
arrange an alternate source for the services, without liability to Contractor
hereunder. In the event Contractor is unable to provide services as defined in
this Agreement, in a timely fashion, the Facility may provide services through
another source until Contractor is able to provide such services. At that time
Contractor will again be the sole provider.
(j) Contractor shall provide a Rehabilitation Coordinator who will
function as the on site liaison between the Contractor and Facility. This
liaison function includes, but is not limited to, supervision of Contractors
personnel, communication between Contractor's and Facility's personnel,
implementation of Contractors systems and programs, and Community Awareness
activities.
(k) Contractor shall provide a Medical Coordinator responsible for
developing, implementing, and monitoring such systems and programs necessary to
meet the clinical goals and objectives of the Facility.
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1.02 Access to Books, Records and Documents
(a) If it is determined by any existing or future federal or state laws
that documents should be retained regarding the furnishing of services,
Contractor agrees to this retention and further agrees as follows:
(i) until the expiration of four years after the furnishing of
services pursuant to this Agreement, Contractor warrants and represents
that, as provided in the applicable federal regulations, upon written
request, the following shall be made available to the Secretary of Health
and Human Services or, upon request, to the Comptroller General of the
United States or any of their duly authorized representatives; this
Agreement, and all books and records necessary to verify the nature and
extent of the costs of any services furnished pursuant to this Agreement
for which payment may be made under the Medicare program; and
(ii) if Contractor carries out any of its duties under this
Agreement through a subcontract or subcontracts with an aggregate value or
cost of Ten Thousand Dollars ($10,000.00) or more over a twelve-month
period with another person, entity or organization, such subcontract or
subcontracts shall contain a clause to the effect that until the
expiration of four years after the furnishing of such services pursuant to
such subcontract or subcontracts, that other person, entity or
organization shall make available, upon written request, to the secretary
of Health and Human Services or upon request, to the Comptroller General
of the United States or any of their duly authorized representatives, the
subcontract or subcontracts, and all books and records necessary to verify
the nature and extent of the costs of any services furnished pursuant to
such subcontract or subcontracts for which payment may be made under the
Medicare program.
1.03 Licenses
Contractor shall not knowingly and intentionally take any action or fail
to take any action which will: (a) cause any governmental authority having
jurisdiction over the operation of Facility to institute any proceeding for the
rescission or revocation of any of the Facility's licenses, permit, consents or
approvals, or (b) materially adversely affect Facility's fight to accept and
obtain payments under Medicare, Medicaid, or any other public or private third
party medical payment program.
1.04 Consulting
Contractor will act as an consultant to the Facility with regard to their
rehabilitation programs and will make recommendations to the Facility and assist
in implementation of such recommendations, and maintain an ongoing assessment of
progress to facilitate compliance by Facility with the requirements of any
governmental authority or third party payor. Written reports will be submitted
by Contractor as may from time to time be reasonably required by Facility or
applicable law.
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1.05 Training
Contractor shall provide in-service training on a regular basis to
Facility on subjects related to Contractor's rehabilitation programs.
1.06 Equipment
Contractor may procure specialized equipment or supplies as necessary at
its expense. Such equipment and supplies shall remain the property of
Contractor.
ARTICLE II.
OBLIGATIONS OF FACILITY
2.01 Control
Facility, acting by and through its duly authorized officers and
employees, shall at all times be responsible for and exercise overall control
over its assets and operations and shall provide such services or arrange for
the provision of such services and the performance of such duties as may be
required to be provided or performed by Facility under federal and state laws.
2.02 Patient Information
Facility shall furnish Contractor with all patient information required
for documentation and submission of any bills for services rendered. Facility
shall also notify Contractor of any changes in the eligibility or coverage
status of Facility patients. Facility shall furnish Contractor with all other
information, assistance, documentation and cooperation which may be required or
appropriate for Contractor to fulfill their respective duties and
responsibilities under this Agreement and any applicable federal and state laws.
2.03 Compliance
Facility shall comply in all respects with all billing and payment
requirements of Contractor as set forth in this Agreement.
2.04 Control and Responsibilities
Facility shall act as the Provider of services and exercise supervision
and control over all services furnished which shall include:
(a) Accepting rehabilitation patients for treatment in accordance with
admission policies established by the Facility for such services;
(b) Maintaining a complete and timely clinical record of each such
patient, including diagnosis, medical history, physician's orders, and progress
notes relating to all such services received;
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(c) Maintaining a liaison with each rehabilitation patient's attending
physician with regard to the progress of the patient and assuring that the
patient's plan of treatment is periodically reviewed by the physician;
(d) Securing from the physician the required certifications and
recertifications;
ARTICLE III.
TERM OF AGREEMENT
3.01 Term
This Agreement shall begin on the 1st day of January, 1997, and shall
continue for consecutive terms of one (1) year each which shall be automatically
renewed unless sooner terminated as provided herein. Any party shall have the
right to terminate this Agreement at any time with or without cause on the
giving of thirty (30) days advance written notice to the other parties
specifying the-date of termination. The termination of this Agreement shall be
subject to the terms and conditions contained in Articles VI and VII hereof
ARTICLE IV.
PAYMENTS
4.01 Fee-For-Service Arrangement with Contractor
Contractor shall be paid by Facility on a "fee-for-service" basis for the
services identified in Attachment "A". Facility is responsible for billing for
services, collecting payment from third party payors and/or the patient, and
paying Contractor. Facility assumes responsibility for all billing, collections,
denials, and payments, except as otherwise provided herein.
(a) Fee-For-Service Covenants
(i) Rates
Contractor will be compensated by Facility for the specified
service(s), at the rate(s) indicated and shall be paid within the time frames
identified in Attachment "A". Invoices reflecting services rendered from the
first of the month to the last of the month (hereinafter referred to as the
"billing period') will be submitted to Facility, as applicable, no later than
five (5) working days following the end of the billing period in which said
services were rendered.
Any amendments or changes to the designated rates of Contractor
shall be effective thirty (30) days following the date upon which the parties
hereto agree to such amendment or change in writing. Upon the parties' mutual
acceptance in writing of any such change or amendment, the amended schedule of
rates shall become a part of this Agreement.
(ii) Payment Documentation
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Contractor's invoices will include (a) the name(s) of the patient(s)
to whom the services were rendered, (b) the date(s) of service, and (c) the
charges applicable to each patient. Contractor will maintain a time-in facility
log at the Facility.
(iii) Payment Terms
Facility shall pay Contractor, upon the conditions hereinafter set forth,
for all services rendered by Contractor, except as hereinabove provided, within
sixty (60) days following the date on which Contractor's invoices and time-in
facility logs have been received by Facility.
(iv) Denied Payments
(a) Facility will pay Contractor the full amount for all
invoiced Services, notwithstanding any notice of payment denial for Services
("Denial Notice") for reasons to medical necessity or appropriateness of
Services, by a governmental, other third-party payor or patient, except as
described in this subparagraph. Facility will notify Contractor within fourteen
(14) business days of its receipt of any Denial Notice, at which time, a denial
authorization code will be assigned and provided to Facility by Contractor.
Facility will pursue, or, at the request of Contractor, will appoint Contractor
as Facility's agent to pursue, all rights of rehearing and administrative appeal
regarding such Denial Notice. If Facility and Contractor do not appeal or upon
denial of payment following consideration, Contractor will grant Facility credit
towards payment for future Services for the cost of Services deemed medically
unnecessary or inappropriate, only where an authorization code has been
assigned. In the event Contractor is no longer providing Services to the
Facility it will immediately reimburse the Facility for the amounts so denied.
(b) Contractor agrees that if any charges or payment made to
Contractor by Facility pursuant to this Agreement are disallowed or rejected by
Medicare during any audit, review or rate setting, or medical claims review,
whether interim or final, then Contractor shall repay all such charges or
payments to the Facility. The foregoing refers to the rate-setting mechanism as
contrasted with medical claims review referred to in Paragraph (a). Facility
will notify Contractor in writing, within sixty (60) days, by certified mail or
next day mail services, at Contractors address as stated elsewhere in this
Agreement, of any such disallowance or rejection actually made by Medicare. Such
notification shall include documentation which substantiates the claim.
Contractor shall have the right upon notice at Contractors sole expense to
contest any such disallowance or rejection in its own name or in the name of
Facility by accountants and/or counsel reasonably satisfactory to Facility. In
connection with any such contest, Facility shall cooperate fully with
Contractor, and will provide full access to any of its relevant books and
records. Facility shall pay to Contractor any moneys recovered from Medicare for
which payment has been made by Contractor with sixty (60) days.
ARTICLE V.
INSURANCE
5.01 Insurance
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Contractor shall maintain, at their own respective expense, throughout the
term of this Agreement, insurance with reputable insurance companies, licensed
in the State of Tennessee, in the minimum amounts and covering the risks
described below:
(a) Comprehensive public liability insurance, including personal injury or
death and property damage (including theft of or damage to patients' property)
in the combined single Emit of not less than One Million Dollars
($1,000,000.00);
(b) Workmen's compensation, employers' liability or similar insurance as
may be required by law; and
(c) Professional liability insurance against claims for bodily injury or
death or otherwise arising out of the operations of Contractor, as the case may
be, such insurance to afford minimum protection of not less than One Million
Dollars ($1,000,000.00) in respect to bodily injury or death to any one person.
(d) All such insurance to the extent appropriate, shall name the
Contractor and the Facility, as coinsured, as their respective interests may
appear.
(e) Contractor shall secure certificates of such insurance for the
Facility, shall maintain the original policies at its office, and shall obtain
endorsements thereto prohibiting any termination or cancellation thereof until
the expiration of ten (10) days written notice of cancellation to all named
insureds.
ARTICLE VI.
DEFAULT
6.01 Bankruptcy
If Facility or Contractor, as the case may be, files a petition in
bankruptcy, is adjudicated a bankrupt or takes advantage of the insolvency laws
of any jurisdiction, make an assignment for the benefit of creditors, is
voluntarily or involuntarily dissolved, or has a receiver, trustee or other
court officer appointed with respect to its assets, business or property,
Facility or Contractor, as the case may be, shall be in default hereunder.
6.02 Breach
If Facility or Contractor, as the case may be, fails to perform any of its
duties and* obligations hereunder, or otherwise breaches any of the terms,
representations or warranties hereunder, and such failure or breach is not cured
within thirty (30) days after receiving notice of such failure or breach, then
Facility or Contractor, as the case may be, shall be in default hereunder.
6.03 Remedies
In the event of a default by Facility or Contractor pursuant to paragraphs
6.01 and
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6.02 above, the non-defaulting party shall have the right to terminate this
Agreement upon five (5) days notice to the defaulting party, whereupon the
non-defaulting party shall be entitled to all remedies, at law and in equity,
arising from such default.
Failure of either party to exercise such right to terminate shall not
operate as a waiver thereof or preclude any other or further exercise of such
right.
ARTICLE VII.
NON-DISCLOSURE AND CONFIDENTIALITY
7.01 Non-Disclosure and Confidentiality
(a) Facility hereby acknowledges that Contractor in the future may make
disclosures to Facility of certain confidential and proprietary information and
materials related to, or in connection with, Contractor and its business and
operations. The contents of all such disclosures, explanations and any writings
and materials related thereto, whether or not prepared by Contractor, are deemed
Contractor's proprietary information.
(b) Facility acknowledges and agrees that any and all proprietary and/or
confidential information, writings and materials related to, or in connection
with, Contractor and its business and operations are to be secret and are not to
be used or exploited by Facility, or revealed to anyone by Facility (except to
their respective attorneys and/or accountants acting within the scope of their
representation) without the express written consent of Contractor and except as
authorized under the terms of this Agreement. Facility agrees that any such
proprietary and/or confidential information, writings or materials disclosed to
their respective attorneys and/or accountants shall be privileged
communications, and that such attorneys and/or accountants will be bound by the
terms of this Agreement to the same extent as the parties hereto. Facility
further agrees to instruct their respective attorneys and/or accountants not to
use or exploit or to disclose such information, writings and materials to anyone
without the express written consent of Contractor. All written confidential and
proprietary information and material provided by Contractor hereunder shall be
returned to Contractor by Facility upon Contractor's request.
(c) In addition to all other remedies available to Contractor at law or in
equity, Contractor shall have the right to enforce the provisions of this
Article VII by injunctive relief against the party wrongfully disclosing such
information or against any other third party to whom the information is
disclosed.
ARTICLE VIII.
MISCELLANEOUS COVENANTS
8.01 Assignment
Except as otherwise provided in this Agreement, neither party shall assign
their
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respective fights. duties and/or obligations under this Agreement without the
prior written consent of the other party to this Agreement. Subcontractors may
be used by the Contractor as it deems appropriate or necessary, but the
responsibility for the overall therapy program provided by Contractor pursuant
to this Agreement shall remain with Contractor.
8.02 Binding Agreement
The terms, covenants, conditions, provisions and agreements herein
contained shall be binding upon and inure to the benefit of the parties hereto,
and their successors and permitted assigns.
8.03 Indemnification
(a) Misconduct of Employees and Others. The Facility agrees that
Contractor shall not be liable for damages suffered by Facility, Contractor or
any third party on account of the dishonesty, willful misconduct or negligence
of any Facility employee or agent. The Contractor agrees that the Facility shall
not be liable for damages suffered by Contractor, Facility or any third party on
account of the dishonesty, willful misconduct or negligence of any Contractor
employee or agent.
(b) Indemnification by Facility. The Facility shall defend, indemnify and
hold Contractor, its officers, employees and agents harmless from and against
any and all liability, loss, expense, attorneys' fees, or claims for injury or
damages arising out of the performance of this Agreement, but only in proportion
to and to the extent such liability, loss, expense, attorneys' fees, or claims
for injury or damages are caused by or result from the negligent or intentional
acts or omissions of the Facility, its officers, agents, or employees.
(c) Indemnification by Contractor. The Contractor shall defend, indemnify
and hold the Facility, its officers, employees and agents harmless from and
against any and all liability, loss, expense, attorneys' fees, or claims for
injury or damages arising out of the performance of this Agreement, but only in
proportion to and to the extent such liability, loss, expense, attorneys' fees,
or claims for injury or damages are caused by or result from the negligent or
intentional acts or omissions of the Contractor, its officers, agents, ore
employees.
8.04 Personnel Covenant
Each of the parties hereto agree that during the term of this Agreement
and for a period of two (2) years following the termination of this Agreement,
that they shall not (i) hire, (ii) entice or induce to be hired by any means
whatsoever, either directly or indirectly, or (iii) enter into any contract or
agreement to perform any rehabilitation services utilizing, any personnel
employed by the other party.
8.05 Relationship of Parties
Nothing contained in this Agreement shall constitute or be construed to be
or to create a partnership, joint venture or other such relationship between the
parties.
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8.06 Notices
(a) All notices, demands and requests contemplated or required to be given
hereunder by either party to the other shall be in writing, and shall be
delivered by certified mail, postage prepaid, return receipt requested, or by
personal delivery or courier, with acknowledgment of delivery:
(i) to Contractor, by addressing the same to:
Xxxxxx Xxxxx
Paragon Rehabilitation, Inc.
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
(ii) to Facility, by addressing the same to:
Greeneville West Health Care Center
Administrator: Xxxxx XxXxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
With a copy to: Xxxxx X. Xxxxx
Attorney at Law
Xxx 00000
Xxxxxxxxxx, XX 00000-0000
or to such other address or to such other person as may be designated by notice
given from time to time during the Term by one party to the other. Any notice,
demand or request hereunder shall be deemed given five (5) days after mailing,
if given by certified mail, or on the date delivered if given personally or by
courier.
8.07 Entire Agreement; Amendments
This Agreement, together with its attachments, contains the entire
agreement between the parties with respect-to-the subject matter hereof, and no
prior oral or written representations or agreements between the parties shall be
of any force and effect. Any additions, amendments or modifications to this
Agreement shall be of no force and effect unless in writing and signed by both
parties.
8.08 Governing Law
This Agreement has been executed and delivered in the State of Tennessee,
and all the terms and provisions hereof and the rights and obligations of the
parties hereto shall be construed and enforced in accordance with the laws
thereof.
8.09 Captions and Headings
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The captions and headings throughout this Agreement are for convenience of
reference only, and the words contained therein shall in no way be held or
deemed to define, limit, describe, explain, modify, amplify or add to the
interpretation, construction or meaning of any provision of, or the scope of
intent of, this Agreement nor in any way effect this Agreement.
8.10 Disclaimer of Employment of Facility Employees
Each party will be responsible for its obligations and expenses of
employment with respect to its own employees, including, but not limited to, the
payment of wages, fringe benefits, payroll and employment taxes and other such
expenses.
8.11 Costs and Expenses
(a) All fees, costs, expenses, debt, and other obligations incurred by a
party in connection with the performance of its services under this Agreement
shall be borne by that party, except as expressly provided herein to the
contrary.
(b) Facility will reimburse Contractor for all collection agency and
attorney collection fees, and all attorney fees and court costs related to any
legal action that Contractor incurs to collect payment for Services from
Facility.
8.12 Authorization of Agreement
All parties represent and warrant, each to the other, that the execution
and delivery of this Agreement has, if such is required, been duly authorized by
all necessary action of their respective shareholders, partners, owners or
governing boards, as the case may be.
8.13 Civil Rights
Contractor agrees to comply with Title VI of the Civil Rights Act of 1964
and all requirements imposed by or pursuant to the applicable regulations of the
Department of Health, Education and Welfare to-the end that, no person in the
United States shall, on the basis of race, color or national origin, be excluded
from participation in, be denied of benefits of, or be otherwise subjected to
discrimination under any program or activity for which federal funds are used in
support of Contractor's activities.
8.14 Severability
If a provision hereof or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder
hereof or the application of such provision to person or circumstances other
than those as to which it is held invalid or unenforceable shall not be affected
thereby, and each provision hereof shall be valid and be enforced to the fullest
extent permitted by law, provided that the parties shall exercise their best
efforts to accommodate the terms and intent of this Agreement to the greatest
extent possible consistent with the requirements of law.
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IN WITNESS WHEREOF, the parties hereto have executed, sealed and delivered
this Agreement through their duly authorized representatives, as of the day and
year first above written.
CONTRACTOR: FACILITY:
By: /s/ Xxxxxxxx X. Xxxxxx, Xx. By: /s/ signature illegible
----------------------------- -----------------------------
Title: President Title: Director of Operations
Date: 12/20/96 Date: 12/20/96
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ATTACHMENT "A"
THERAPY SERVICES PROVIDED TO: Greeneville West Health Care Center
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SPEECH- REHABILITATION
LANGUAGE REHABILITATION SUPPORT
PATHOLOGY SERVICES SERVICES(1)
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Medicare A $23.00/unit $5.00/unit
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Medicare B $23.00/unit $5.00/unit
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Medicaid $23.00/unit $5.00/unit
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Private Insurance $23.00/unit $5.00/unit
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OCCUPATIONAL
THERAPY
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Medicare A $23.00/unit $5.00/unit
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Medicare B $23.00/unit $5.00/unit
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Medicaid $23.00/unit $5.00/unit
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Private Insurance $23.00/unit $5.00/unit
--------------------------------------------------------------------------------
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PHYSICAL
THERAPY
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Medicare A Salary Equivalency $5.00/unit
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Medicare B Salary Equivalency $5.00/unit
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Medicaid Salary Equivalency $5.00/unit
--------------------------------------------------------------------------------
Private Insurance Salary Equivalency $5.00/unit
================================================================================
Note: (1) Facility agrees to pay Contractor a Rehabilitation Support Service
monthly fee equal to five dollars ($5) per Speech, Occupational, and Physical
Therapy unit up to a maximum number of treatment units of 3,000 per month or
$15,000 per month.
(2) A unit of service is comprised of fifteen (15) minute segments for
CONTRACTOR: FACILITY:
By: /s/ Xxxxxxxx X. Xxxxxx, Xx. By: /s/ signature illegible
----------------------------- -----------------------------
Title: President Title: Director of Operations
Date: 12/20/96 Date: 12/20/96
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SCHEDULE 10.44
Paragon has entered into an agreement substantially identical to Exhibit
10.44 as follows:
1. Fee for Service Therapy Services Agreement dated January 1, 1997 with
Greeneville West Health Care Center.
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