MANAGEMENT SERVICES AND LICENSING AGREEMENT
Exhibit 10.22
MANAGEMENT SERVICES AND LICENSING AGREEMENT
This Management Services and Licensing Agreement ("Agreement") is entered into as of September 27, 2011("Effective Date") by and between American Doctors Online, Inc., a Delaware corporation ("Management Company"), and PhoneDOCTORx, LLC, a Massachusetts professional association ("Professional Association").
A. Professional Association is a Massachusetts professional association that engages in the business of providing telemedicine services ("Telemedicine Services").
B. Professional Association contracts with physicians to provide professional medical care at medical control centers in various sites and healthcare facilities pursuant to written agreements ("Practice Sites"). A listing of the Practice Sites is set forth at SCHEDULE 1.5, attached hereto and incorporated herein by reference.
C. Professional Association has entered into and may enter into additional agreements with various physicians and other health care professionals licensed to practice in the Commonwealth of Massachusetts ("Contracted Providers"). Aside from independently making all medical decisions, these physicians and other health care professionals independently decide whether to utilize the telemedicine video service in the extended care facility, or whether the patient can be properly care through phone communication with the extended care facility's nursing staff.
D. Management Company engages in the business of providing certain administrative, business and support services to telemedicine physician practices including coordinating or directly performing the following: administration, billing, business development, contracting finance, information technology, licensing of Management Company's patented processes regarding telemedicine, marketing, and sales.
E. Professional Association desires to secure certain administrative services and use of Management Company's patented processes regarding telemedicine from Management Company in connection with its operation of the Practice to achieve significant advantages within the market.
F. Professional Association and Management Company desire to enter,' into a written agreement for the provision by Management Company, on an exclusive basis, of administrative and business services outlined in "D" above, and to Professional Association with respect to the Practice, so as to permit Professional Association to devote its efforts on a concentrated and continuous basis to the rendering of medical services to its patients.
G. Professional Association, reserving approval to assure compliance with Massachusetts Board of Registration of Medicine’s regulations, will allow Management Company to use its trademark and logo for business and marketing purposes.
H. Subject to approval, which shall not be unreasonably withheld, Professional Association will permit/grant the ownership of its trade xxxx/name and logo in jurisdictions beyond Massachusetts for Franchise opportunities nationally/internationally.
1 | Page
I. Management Company will grant to Professional Association a license for its use of its Patent(s) for use in the Commonwealth of Massachusetts. Professional Association may lawfully utilize said patented protected system and method for delivering medical examination, diagnosis and treatment over a network. Nothing in this Agreement shall limit, or preclude the Management Company, from licensing or utilizing its patents in any State, Commonwealth, and or any geographic area. Professional Association acknowledges that without said license, it would not be able to provide said telemedicine services.
J. Equipment used for telemedicine services in the Extended Care Facilities (ECF), unless expressed otherwise in a contract between Professional Association and the ECF shall be owned by the Professional Association and purchased and serviced by ADOL.
I. RESPONSIBILITIES OF PROFESSIONAL ASSOCIATION
1.1 SOLE RESPONSIBILITY FOR ALL MEDICAL AND PROFESSIONAL MATTERS. All medical and medically based professional matters relating to the "practice of medicine" shall be the sole responsibility of Professional Association's independent contracting physicians and allied health professionals. Professional Association expressly represents that services performed at said Call Centers shall be conducted solely by licensed and credentialed medical providers that are associated with Professional Association.
1.2 PROVIDERS. Professional Association shall retain, and compensate, all Providers who independently practice medicine, although at the request of Professional Association, Management Company may consult with Professional Association regarding such matters. With respect to physicians, Professional Association shall only contract with licensed physicians meeting applicable credentialing guidelines established by Professional Association, and that meet the standards typically required contracted extended care facilities. Professional Association may enter into agreements with other healthcare professionals licensed to practice in the State of Massachusetts to perform services for Patients. Professional Association shall be responsible for the payment of salaries and wages, compensation, payroll taxes, employee benefits, and all other taxes and charges now or hereafter applicable to Contracted Providers and Other healthcare professional employees, all of which shall be in conformity with the applicable Professional Association Budget described in Section 2.4(a). A list of all Contracted Providers and other healthcare professional employees is set forth at SCHEDULE 1.2, attached hereto and incorporated herein by reference. To ensure compliance with contracts with any Extended Care Facilities, prior to making any changes to the list of Contracted Providers, or licensed or health care professional employees set f01ih at SCHEDULE 1.2, Professional Association shall consult with Management Company. Professional Association shall also consult with Management Company with regard to the terms of contracts entered into between Professional Association and Contracted Providers, other healthcare professional employees, and the terms and conditions of their engagement as independent contractors. Payments from the Management Company to the contracted providers can come in the form of standard hourly payment or minimum wage plus stock options in exchange for the contracted provider's services. Payments for services rendered by Providers may come in the form of either standard hourly payment, or minimum wage hourly payments and stock options in Management Company.
2 | Page
1.3 FEES, CHARGES AND PAYOR AGREEMENTS. Professional Association shall, after consultation with Management Company, determine the fees, charges, premiums, or other amounts due in connection with its delivery of Telemedicine Services to Patients. Such fees, charges, premiums, or other amounts-regardless of whether determined on a fee-for-service, capitated, prepaid, or other basis -shall be reasonable and consistent with the fees, charges, premiums, and other amounts due to health care providers for similar services of similar quality and value within the community under the type of reimbursement program involved. On behalf of Professional Association, the Management Company shall negotiate terms with payers and facilities for Professional Association's services.
Professional Association shall deliver to Management Company a schedule of fees for all of Professional Association's charges ("Fee Schedule") at the Effective Date, a copy of which is set forth at SCHEDULE 1.3(A), attached hereto and incorporated herein by reference, along with a schedule of all agreements between Professional Association and Payors or their agents for the provision of health care services ("Payor Schedule"), a copy of which is set forth at SCHEDULE 1.3(B), attached hereto and incorporated herein by this reference. Professional Association shall, after consultation with Management Company, give Management Company at least thirty (3~} days' prior written notice of any changes in the Fee Schedule or Payor Schedule or of any changes in the agreements with Payors identified in the Payor Schedule. For the purposes of this Agreement, the term "Payor" shall mean insurers, Health Maintenance Organizations, consumers, and other third party Payors.
1.4 COMPLIANCE WITH LAW. Professional Association shall require in its contractual relationships with all of its Providers that they comply with all laws, regulations, and ethical and professional standards applicable to the practice of telemedicine. Physicians providing medical services shall at all times be licensed to practice medicine in the State of Massachusetts and other states where the Professional Association practices.
3 | Page
participates in such continuing medical education as is necessary for such provider to remain current with professional licensure and community standards.
II. RESPONSIBILITIES OF MANAGEMENT COMPANY
2.1 GENERAL RESPONSIBILITY. Management Company shall have general responsibility for providing fiscal services, management information services, and other support services to Professional Association with respect to the Practice, except as otherwise provided in this Agreement. Management Company shall perform all required functions in accordance with sound management techniques. Notwithstanding Management Company's general and specific rights and responsibilities set forth in this Agreement, Professional Association shall have full authority and control with respect to all medical, professional and ethical determinations over the "Practice of Medicine" to the extent required by federal, state and city law and regulations for the states in which it practices listed on schedule 2.1. Management Company shall not engage in activities which constitute the practice of medicine under applicable law. Management Company shall neither exercise control over nor interfere with the physician-patient relationship, which shall be maintained strictly between the Providers of Professional Association and their Patients.
2.2 RESPONSIBILITIES WITH REGARD TO SELECTED PATIENT-RELATED MATTERS.
2.2(a) PATIENT and CLIENT SITE RELATIONS. Management Company shall assist Professional Association in maintaining positive Patient and/or facility relations by, among other things: responding to Patient grievances and complaints in matters other than "the Practice of Medicine;" and establishing and maintaining Patient transfer statistics and other supporting information/data.
2.2(h) QUALITY ASSURANCE. Management Company shall assist Professional Association, in accordance with criteria established by Professional Association, in the development and implementation of appropriate quality assurance programs, including development of performance and utilization standards, sampling techniques for case review, and preparation of appropriately documented studies. Notwithstanding the foregoing, Management Company shall not perform any duties that constitute "The Practice of Medicine."
4 | Page
2.3 RESPONSIBILITIES WITH REGARD TO SELECTED FINANCIAL MATTERS.
2.3(a) Billing
The billing of Professional Association's services to facilities such as ECFs and insurance companies is prepared on a monthly basis and sent before the 15th of the month following the close of a billing period.
Invoices are prepared in the name of the Professional Association and all receipts are deposited directly into the Professional Association's checking account. A monthly reconciliation of the accounts of Professional Association shall occur to ensure that Professional Association's invoices are timely paid, and that the fees associated with this agreement, payable to Management Company are remitted in a timely manner.
2.3(b) Cash Management and Financial Terms.
All expenses related to the practice of medicine are paid from Professional Association's checking account on a timely basis (monthly). Payroll is prepared on a bi-weekly basis and invoices are paid no less than twice per month. All other fees are defined as a Management Fee to the Management Company on a timely basis including: licensing of the patents, administrative fees, rent, marketing fees, equipment/technology, contracting, leases, etc. As stated in 2.3 (a), above, income in Professional Association, less anticipated expenses and invoices shall be paid to Management Company as part of the aforementioned Management fee)
The corporate books and records are maintained on professional acceptable accounting software and are reconciled on a monthly basis within 15 days of the close of the prior month.
2.3 (d) Reporting
On at least a monthly basis, the cash basis balance sheet and profit and loss report is prepared in comparison with the prior year's activity and is presented on a year-to-date basis to the CEO of the Management Company and to the Leadership of the Professional Association.
2.4 RESPONSIBILITIES FOR FINANCIAL PLANNING AND GOALS.
2.4(a) Budget
Budget is at least prepared by the Management Company on an annual basis and is reviewed/amended as is necessary by both the Management Company and the Professional Association. An accounts receivable report is also maintained on at least a monthly basis to report monthly utilization by facilities as well as accounts receivable aging.
2.5 DATA PROCESSING. Management Company shall provide, operate, supervise and direct the development of appropriate and efficient electronic data processing systems e.g. Electronic Medical Records (EMR), Project Management Software and Customer Relationship Management (CRM) with respect to Professional Association's operation of the Practice.
2.6 OTHER RESPONSIBILITIES.
2.6(a) Marketing
5 | Page
(i) Management Company shall provide all services reasonably necessary for marketing contracted Professional Association's health care services and shall submit any marketing programs for prior review and revision, if necessary, and approval by Professional Association, which approval shall not be unreasonably withheld. Such marketing shall comply with applicable state and federal laws and regulations governing the use of advertising by the medical profession and with applicable standards of medical ethics. This includes Compliance with Federal Anti-Kickback and Physician Self-Referral Statutes and State Corporate Practice of Medicine Restrictions.
Notwithstanding any unanticipated effect of any of the provisions herein, no party intends to violate the mandate against the corporate practice of medicine, federal Anti-Kickback Statute and/or the federal Physician Self-Referral Statute ("Xxxxx II"), or any similar, law regulation or guidance; as such provisions are amended from time to time. The parties intend that this Agreement meet the requirements of (a) the personal services and management contracts safe harbor and the space and equipment rental safe harbors to the federal Anti-Kickback Statute which are set forth in 00 XXX §XXX0.000 (x), (x) and (c), respectively; and (b) the personal services arrangement exception and the space and equipment rental exceptions to Xxxxx II which are set forth in 42 U.S.C. Section 1395nn(e)(3) and (e)(1), respectively, and the corresponding final regulations and/or the indirect compensation arrangement exception or fair market value compensation exception to Xxxxx II set forth in 42 C.F.R. §411.357(p) and (I), respectively, as such regulations may be amended. The consideration paid hereunder is intended solely as compensation to the Management Company for use of the medical office space, equipment, supplies, and use of Management Company's Patents in Massachusetts, and services described herein. There is no intention by Management Company to influence the judgment of Professional Association or any of its physicians with respect to where Professional Association patients receive health care services. Further, there is no agreement, implied or otherwise, that any of Professional Association physician-employees shall refer any of his/her patients to any ECF, SNFINF, or any provider of designated health services, or any acute care hospital affiliated with the Management Company. In the event any court or administrative agency of competent jurisdiction determines this Agreement violates any of such statutes then the parties hereto agree to take such actions as necessary to amend this Agreement to comply with the applicable statutes or regulations, as provided herein, or terminate this Agreement if counsel for both parties determines the same is necessary.
(i) Professional Errors and Omissions Coverage. For services outlined in this agreement, Management Company shall obtain and maintain during the term of this Agreement, on behalf of itself and Professional Association, if available on commercially reasonable terms as determined by Management Company, professional errors and omissions insurance and general liability insurance, with coverage in amounts to be agreed upon. To the extent obtainable without incurring additional material expense, the policies providing coverage to Management Company shall name Professional Association as an additional insured and the policies providing coverage to Professional Association shall name Management Company as an additional insured.
(ii) Premium Amounts. The amount of the premiums for all insurance provided under this Agreement for Professional Association shall be included, as expense to Professional Association.
6 | Page
(iii) Malpractice Insurance. It is understood that Professional Association and its Providers shall, at all times be covered by professional liability insurance with coverage in amounts of not less than $1MiI/$3MiI aggregate. (or other amount as may be required by the extended care facilities) It shall be the responsibility of the Professional Association's Chief Medical Officer to ensure appropriate insurance is obtained by all healthcare providers.
(iv) Copies of Insurance Policies. Management Company shall, upon request, promptly provide Professional Association with copies of all policies of insurance that it procures under this Agreement. Each such policy shall provide that it cannot be modified or terminated except after Thirty (30) days written notice to Professional Association.
2.6(c) Personnel
Management Company shall furnish the services of all personnel required for the operation of the Practice. Except as specifically provided in this Section 2.6(c), Management Company has the power to recruit, hire, evaluate, train, promote, assign, set the compensation level for, and discharge all nonmedical personnel. Providers and other healthcare professionals who provide direct patient care shall provide such services under the exclusive direction, supervision and control of Professional Association, while all other services of Management Company personnel shall be performed under the exclusive direction, supervision and control of Management Company. Notwithstanding the foregoing, if the activities of any of the non-medical personnel affects the delivery of medical care by Professional Association, Professional Association shall direct and supervise the provision of such activities to ensure that the best possible medical care is provided to Professional Association's patients and such activities shall not be subject to any direction or control by Management Company except as may be specifically authorized by Professional Association. If Professional Association is dissatisfied with the services of any such personnel, Professional Association shall consult with Management Company. Management Company shall in good faith determine whether the performance of that employee could be brought to acceptable levels through counsel and assistance, or whether such employee should be terminated. All of Management Company's obligations regarding staff shall be governed by the goal of supporting Professional Association in its provision of high quality medical care. Employee assignments shall be made with the intention of assuring consistent and continued rendering of high quality medical support services and to ensure prompt availability and accessibility of individual medical support personnel to physicians in order to develop constant, familiar and routine working relationships between individual physicians and individual members of the medical support personnel.
2.6(d) Managed Care Agreements
Management Company shall negotiate and administer all Payor agreements in the name of and on behalf of Professional Association and subject to Professional Association's approval and Management Company shall consult with Professional Association on all professional and clinical matters relating thereto.
III. FINANCIAL ARRANGEMENTS
3.1 MANAGEMENT COMPANY’S COMPENSATION. In consideration for the services furnished by the Management Company to Professional Association hereunder, Professional Association shall pay the Management Company a management fee (the "Management Fee"), which shall be calculated and paid as follows:
7 | Page
3.1(a) Calculation
(i) The Management Fee shall be equal to the sum of the remaining income in Professional Association that is paid to Management Company as a management fee per the cash management cycle between the Professional Association and the Management Company. (See Section 2.3(b) Cash Management and Financial Terms).
3.2 DEFINITIONS. For the purposes of this Article ill, the following definitions shall apply:
3.2(a) "Professional Association Operating Expenses" shall mean the amount set forth in the applicable Professional Association Budget as Professional Association Operating Expense, which shall include the budgeted cost and expense for the following items:
(i) payments and compensation to be made by or on behalf of Professional Association to Providers. The Professional Association warrants and represents that said hourly fee for physicians shall not be more than $75.00 hour and said hourly rate for AHP's xxxXx not be more than $50/hour. The parties also expressly agree that the individual provider may be provided the opportunity to accept Management Company Stock Options as part of the hourly compensation. The said hourly rate may be evaluated on an annual basis by the Professional Association in conjunction with the Management Company.
(ii) compensation, employment-related benefits and applicable payroll and other deductions, withholdings or payments of physicians and other healthcare professionals, if any, in consideration for the provision of professional medical or other health care services;
(iii) professional liability insurance, to the extent paid by Professional Association;
(iv) arranging health care services for patients covered by Payor Contracts where such health Care services are not provided by Professional Association; and
(iv) such other items as the parties agree
It is the intention of Professional Association and Management Company that, for the administrative convenience of Professional Association, the Professional Association Budget will generally consist of only the budgeted cost and expense of any additional items which legally or practically cannot be supplied by Management Company.
4.1 (a) Professional Association is and shall remain during the term of this Agreement a professional limited liability company in the Commonwealth of Massachusetts, validly existing and in good standing under the laws of the State of Massachusetts, actively engaged in the practice of medicine, and possessing full power and authority to own its properties and to conduct the business in which it engages.
4.1(b) Professional Association has full power and authority to execute and deliver this Agreement and to engage in the transactions and obligations contemplated by this Agreement. Upon its execution, this Agreement shall constitute a valid and binding obligation of Professional Association, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, moratorium, or other similar laws affecting generally the rights of creditors and by
8 | Page
principles of equity. The party executing this Agreement on behalf of Professional Association is duly authorized to do so.
4.1(c) The consummation of the transactions contemplated by this Agreement will not: result in a breach of the terms, provisions, or conditions of or constitute a default under the Articles of Association, Bylaws or other enabling or governing instruments of Professional Association Or any agreement to which Professional Association is a party or by which it is bound; or, to the best knowledge of Professional Association, constitute a violation of any applicable law or regulation.
4.2 COVENANTS AND WARRANTIES OF MANAGEMENT COMPANY. Management Company covenants with and warrants to Professional Association as follows:
4.2(a) Management Company is and shall remain during the term of this Agreement a corporation which is duly organized, validly existing and in good standing under the laws of the State of Delaware, possessing full corporate power and authority to own its properties and to conduct the business in which it engages.
4.2 (b) Management Company has full corporate power and authority to execute and deliver this Agreement and to engage in the transactions and obligations contemplated by this Agreement. Upon its execution, this Agreement shall constitute a valid and binding obligation of Management Company, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, moratorium, or other similar laws affecting generally the rights of creditors and by principles of equity. The party executing this Agreement on behalf of Management Company is duly authorized to do so.
4.2(c) The consummation of the transactions contemplated by this Agreement will not, result in any breach of the terms, provisions or conditions of or constitute a default under the Articles of Incorporation, Bylaws or other enabling Or governing instruments of Management Company 01' any agreement to which Management Company is a party or by which it is bound; or, to the best knowledge of Management Company, constitute a violation of any applicable law or regulation.
5.2(a) The Breaching Xxxxx fails to make any payment required under this Agreement.
5.2 (b) The Breaching Party admits in writing its inability to pay its debts as they mature, makes any general assignment for the benefit of creditors, or seeks to avail itself of any law for the release of insolvent debtors.
5.2(c) Insolvency, bankruptcy, dissolution, liquidation, or receivership proceedings are commenced by or with the consent of the Breaching Party, or are pending for more than Sixty (60) days against the Breaching Party.
5.2(d) The Breaching Party fails to observe or otherwise breaches any material term, condition, covenant, or warranty of this Agreement.
9 | Page
5.3 (a) In the event of the occurrence of an Event of Default referred to in Section 5.2(.) above, upon the expiration of Sixty (60) days after written notice, which notice shall specify the nature and extent of such Event of Default to the Breaching Party, unless the amount due is paid within such Sixty (60) days.
5.3 (b) In the event of the occurrence of any other Event of Default, upon the expiration of Ninety (90) days after written notice, which notice shall specify the nature and extent of such Event of Default to the Breaching Party. However, in the case of a remediable Event of Default, the Breaching Party shall have the opportunity to remedy such Event of Default within such Ninety (90) days. Each Party will have bi-weekly check-in meetings to determine appropriate next steps during this remedy period.
5.4(a) Neither party shall be released or discharged from any obligation, debt or liability which has previously accrued or been incurred and remains to be performed upon the date of termination or expiration;
5.4(b) Any sums of money owing by one party to the other shall be paid immediately;
5.4(c) Each party shall return to the other party all originals and copies of the Proprietary Information of any of the Protected Parties (as those terms are defined in Article VI) which are in the possession of such party or any other person or entity to whom it has delivered such originals and copies; and
5.4(d) Damages and any other remedies available at law or in equity may be sought and collected from the Breaching Party in the event of a termination resulting from an Event of Default.
10 | Page
power to enforce the provisions hereof. Upon termination of this Agreement for any reason, Professional Association and each of its Contracted Providers shall cease all use of any of the Proprietary Information and, at the request of Management Company shall execute such documents as may be necessary to evidence Professional Association's abandonment of any claim thereto. The parties recognize that a breach of this Section 6.1 cannot be adequately compensated in money damages and therefore agree that injunctive relief shall be available to the Protected Parties as their respective interests may appear.
The obligations of Professional Association under this Section 6.1 shall not apply to information: (i) which is a matter of public knowledge on or becomes a matter of public knowledge after the Effective Date of this Agreement, other than as a breach of the confidentiality terms of this Agreement or as a breach of the confidentiality terms of any other agreement between Professional Association and Management Company or its Affiliates; or (ii) was lawfully obtained by Professional Association on a non-confidential basis other than in the course of performance under this Agreement and from some entity other than Management Company or its Affiliates or from some person other than one employed Or engaged by Management Company or its Affiliates, which entity or person has no obligation of confidentiality to Management Company Or its Affiliates.
6.2 COVENANTS NOT TO COMPETE DURING THE TERM. The parties recognize that the services to be provided by Management Company shall be feasible only if Professional Association operates an active telemedicine practice to which Professional Association and its Physicians and other healthcare professionals agree to adhere to their existing and new contractual obligations regarding operational hours/shifts highlighted in schedule 1.5. To that end:
. 6.2(a) Restrictive Covenants By Professional Association. During the term of this Agreement, Professional Association shall not establish, operate or provide physician or other health care services at any hospital, medical office, clinic or other health care facility providing services substantially similar to those provided by Professional Association pursuant to this Agreement anywhere other than at the contracted Practice Sites and as may be approved in writing by Management Company. Professional Association shall also not enter into any management or administrative services agreement or business arrangement with any person or entity other than Management Company without Management Company's prior written approval.
6.3 COVENANT NOT TO COMPETE FOLLOWING TERMINATION. For three (3) years following the termination of this Agreement by Management Company pursuant to Section 5.3 Or by either party pursuant to Section 8.12, Professional Association shall not enter into any management or administrative services agreement or any similar arrangement with any person or entity for the provision of the same or similar services as Management Company provides to Professional Association under this Agreement, or who otherwise competes with Management Company within such area as the parties agree surrounding any location where Management Company or any of its Affiliates is conducting the same or similar business ..
6.4(a) Directly or indirectly solicit, recruit or hire, or induct any party to solicit, recruit or hire any person who is an employee of, or who has entered into an independent contractor arrangement with, Management Company or any Affiliate of Management Company;
11 | Page
6.4(b) Directly or indirectly, whether for itself or for any other person or entity, call upon, solicit, divert or take away, Or attempt to solicit, call upon, divert or take away any Management Company's customers, business, or clients; or
6.4(c) Directly or indirectly solicit, or induce any party to solicit, any of Management Company's contractors or the contractors of any Affiliate of Management Company, to enter into the same or a similar type of contract with any other party; or
6.4(d) Disrupt, damage, impair or interfere with the business of Management Company.
12 | Page
the software or hardware or any portion thereof in violation of any such license, sublicense, lease or other agreement including but not limited to Customer Relationship Management (CRM) Electronic Medical Record (EMR), Video Conferencing Technology, Project Management Software and MS Office Suite Software.
The parties represent that this agreement has been negotiated at arm's length, and that both parties have had the ability to have counsel of their choice review the Agreement.
8.3(a) If intended for Professional Association, then the notice shall be addressed:
PhoneDOCTORx
000 Xxxx Xxxx, Xxxxx 000X
Xxxxxxxxx, XX 027 I 9
8.3(b) If intended for Management Company, then the notice shall be addressed:
American Doctors Online, Inc.
000 Xxxx Xxxx, Xxxxx 000X
Xxxxxxxxx, XX 00000
or to such other address as either party may have furnished to the other party in writing as the place for the service of notice. Any notice so mailed shall be deemed to have been given Three (3) days after the same has been deposited in the United States mail; any notice given personally, by facsimile or overnight courier shall be deemed to have been given upon receipt of the notice.
13 | Page
performance of any and all duties required to be performed by Management Company as set forth herein. In effecting any such subcontract or delegation, Management Company must assure that the subcontractor or delegate is qualified and will be compensated for the subcontracted or delegated services in an amount no greater than the fair market value of such services as paid for comparable services charged by other persons or entities in the same geographic area.
14 | Page
arrangements between Professional Association and Management Company. The parties agree that such amendment may require reorganization of Professional Association or Management Company, or both, and may require either or both parties to obtain appropriate regulatory licenses and approvals. If an amendment is not possible, either party shall have the right to terminate this Agreement.
8.14 COMMUNICATIONS. Professional Association and Management Company agree that good communication between the parties is essential to the successful performance of this Agreement, and each pledges to communicate fully and clearly with the other on matters relating to the successful operation of Professional Association's practice.
15 | Page
American Doctors Online, Inc.
By: Xxxxx X. Xxxx
Its: CEO
PhoneDOCTORx, LLC.
By: Xxxxxxx Xxxxxxx, M.D.
Authorized Agent
16 | Page
SCHEDULES AND EXHIBITS TO:
MANAGEMENT SERVICES AND LICENSING AGREEMENT
Between American Doctors Online, Inc., a Delaware corporation ("Management Company"), and PhoneDOCTORx, LLC, a Massachusetts professional association ("Professional Association").
INDEX
Schedule 1.2
Schedule 1.3
Schedule 1.5
Schedule 2.1
Business Associates Agreement
Schedule 1.2
Current Schedule as of September 27, 2011, includes the following list of all Professional Association Providers per Section 1.2.
Perry An, M.D.
Xxxxx Xxxxxx, M.D.
Xxxx Xxxxx, M.D.
Xxxxx Xxxxxxx, M.D.
Xxxxx Xxxxxx, M.D.
Xxxxxxx Xxxxxxx, M.D.
Xxxxx Xxxxx, M.D.
Xxxx Xxxxxxx, M.D.
Xxxxx Xxxxxxxx, M.D.
Xxxx Xxxxx, M.D.
Xxxxxx Xxxx, M.D.
Xxx Xxxx, M.D.
Xxxx Xxxxxxx, M.D.
Xxxxx Xxxxxxx, M.D.
Xxxx Xxxxxxx, MD.
Prior to making any changes to the list of Providers, set forth in the above SCHEDULE 1.2, Professional Association shall consult with Management Company. Professional Association shall also consult with Management Company with regard to the terms of contracts entered into between Professional Association and Contracted Providers, or licensed other healthcare professional employees, and the terms and conditions of their employment or engagement as independent contractors, as applicable. This above listed schedule will be ever-changing with the growth and service needs of the organization.
Schedule 1.3
Current Schedule for 1.3 as of September 27 2011, includes the following fee schedule that the Professional Association charges in connection with its delivery of Telemedicine Services to Patients. This schedule reflects current installations and payment models from existing customers and future clients.
SWH Model for Managed Care Organization: All patients are being charged $2 a day for our services at the sites that they are within.
Essex Group lnstallations:
Xxxxxxx Xxxxx of Dartmouth, Xxxxxxx Xxxxx of New Xxxxxxx, Xxxxxx House of Milford, Blaire House of Tewksbury: $2500 cap per month for (25) urgent and emergent calls.
Alden Court lnstallations:
Alden Court -Fairhaven: $2500 cap per month for (25) urgent and emergent calls.
HealthBridge lnstallations:
New Bedford Health Care Center and Weymouth Health Care Center: $8500 for all urgent and non-urgent calls no-cap on amount of calls per month.
Other HealthBridge lnstallations:
Cedar Hill Health Care Center, Wilmington Health Care Center, Millbury Health Care Center, Essex Park Rehabilitation and Nursing Center, Xxxxxx Health Care Center, Redstone Rehabilitation and Nursing Center: $2500 cap per month for (25) urgent and emergent calls.
Future HealthBridge Installations:
Concord Health Care Center, Brookline Health Care Center, Xxxxxx Xxxxxxxx Nursing and Rehab Center for Northampton, Lexington Health Care Center: $4500 cap per month for unlimited Non-Urgent, Urgent, and Emergent calls.
Pricing Models as of September 27, 2011:
Model A) $1500 base installation price per month, $40 per urgent and emergent calls with a cap of $2500 total per month or Model B) $1500 base installation price per month, $40 per urgent and emergent calls with $20 per non-urgent calls with a cap of $4500 total per month.
All pricing listed in schedule 1.3 above is subject to change per section 1.3 of this agreement.
Schedule 1.5
Current Schedule for 1.5 as of September 27, 2011, includes the following practices sites and hours of operations of the Professional Association per the mutually agreed upon schedule/locations of section 1.5.
Locations:
Fairhaven: Address: 000 Xxxx Xxxx, Xxxxx 000X, Xxxxxxxxx, XX 00000
Cambridge: Address: 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
Hours of Operations:
Monday - Friday 5 - 11PM
Saturday and Sunday 10AM -7PM
Schedule 1.5 of the Agreement can be amended from time to time with any additional or substitute practice site either through either acquisition and/or franchise expansion. These efforts shall inherently be deemed to be part of the Practice for the purposes of this agreement and adhere to the medical standards set forth by Professional Association and the business practices by the Management Company. All contracted providers shall provide telemedicine services to patients in a courteous and prompt fashion, be available and accessible to Patients, provide Patients with full and meaningful information and render Telemedicine Services in a manner that assures continuity of care.
Schedule 2.1
Current Schedule for 2.1 as of September 27 2011, includes the following states in which the Professional Association practices:
• MA
BUSINESS ASSOCIATE AGREEMENT
Contract Between
PhoneDOCTORx, LLC
Hereinafter the "Practice" or "Covered Entity"
And
American Doctors Online, Inc.
Hereinafter the "Business Associate"
1 | Page
This agreement made this 27th day of September, 2011 is between PhoneDOCTORx, LLC, a Massachusetts Limited Liability Company hereinafter the "Practice" and American Doctors Online, lnc., a Delaware Corporation, hereinafter the "Business Associate," collectively the parties to this instrument and agreement.
The parties understand and agree that the Federal Government has enacted a Federal Privacy Rule, known as the Health Insurance Portability and Accountability Act., HIP AA.
The parties also understand and agree that in 2009, the Federal Government implemented the Health Information Technology for Economic and Clinical Health Act.
The parties also understand and agree that terms herein used, where defined by the Federal Privacy Rule, finalized on August 14, 2002, shall have the meaning that said law attaches to the same.
In order for the Provider to continue the contractual relationship with the Business Associate, tile parties must agree to the terms herein.
The parties understand that their existing: contract makes the Business Associate responsible for maintaining, protecting and safeguarding protected health information. The parties also understand and assent to the fact that the Business Association will need to use and disclose protected health information routed to it by the Provider.
Therefore, in consideration of mutual promises and obligations, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree and enter into this contract to comply with the provisions of said Privacy Law and to safeguard the patients' privacy rights and to ensure compliance for both parties.
The Business Associate agrees not to use or further disclose protected health information received from the provider in a manner that would violate HIPAA.
The Business Associate may disclose said protected health information to carry out the "health care operations" of the provider, in this case, to ensure, proper timely and accurate medical treatment, and subsequent, billing, payment, claims processing and Business Associates may disclose/use said protected health information for the proper management and administrative duties of its business, or to carry out its legal responsibilities, so long as said use/disclosure is mandated by the law, or the Business Associate obtains reasonable assurances form the person/entity receiving said protected health information that said information will be held in confidence and that any further use or disclosure will only be made as required by law.
The Business Associate may also use, or disclose information for purposes of data aggregation if said aggregation is for the health care operations of the provider, pursuant to the underlying agreement between the pm1ies.
The Business Associate agrees to place appropriate safeguards in their operations to prevent the improper use, or disclosure, intentional, or unintentional, of protected health information forwarded to it by the provider.
The Business Associate agrees, and represents that it will contact the provider upon obtaining knowledge of an improper use or disclosure of protected health information. Additionally, Business Associate agrees to take reasonable steps to mitigate any further disclosure of improperly disclosed protected health information once said Business Associate becomes aware of said improper disclosure.
2 | Page
The Business Associate shall ensure that any of its agents that it might use to advance the health care operations of the provider shall abide by the terms of this Business Associates Agreement with regards to use and further disclosure of protected health information. Additionally, the Business Associate represents that any of its agents will agree to contact the Business Associate if it becomes aware of any improper/unlawful disclosure of protected health information.
The Business Associate agrees to comply with the mandatory disclosures as stated in the HITECH Act of 2009, and to promptly, i.e., without unreasonable delay, notify the Covered entity immediately upon discovering a breach. The Business Associate agrees to provide to the Covered Entity any and all information known regarding any such breach of PHI. The Business Associate agrees that the disclosure, to the extent known, shall include,
1. A brief description of what happened, including the date of the breach and the date discovered, if known;
2. | A description of the types of unsecured PID involved in the breach; |
3. Any suggested steps that the individual(s) should take to protect themselves from potential harm from the breach;
4. A brief description of the internal investigation into the breach, what the Business Associate did to mitigate harm to the affected individual(s) and what the Business Associate will do to protect against further breaches; and
The Business Associate agrees to make available to the patient upon request, protected health information within its possession. In the alternative, if appropriate, the Business Associate may agree to forward all bills, documentation within its possession, whether electronic, or paper in form, so that the provider might comply with that requirement.
The Business Associate, unless covered by the attorney-client privilege, agrees to make available to the patient upon request, protected health information within its possession for amendment, in accordance with the Federal Privacy Law. In the alternative, if appropriate, the Business Associate may agree to forward all bills, documentation within its possession, whether electronic, or paper in form, so that the provider might comply with that requirement. As stated in said Federal Law, the decision to amend any medical record is up to the practitioner, and not necessarily the patient.
Unless protected through attorney-client or work product doctrine, upon request by the patient, the Business Associate hereby agrees to provide the patient with an "accounting" of disclosures of information in accordance with 45 CFR 164.528.
Unless protected through attorney-client or work product doctrine, the Business Associate hereby agrees to make its internal practices, books, policies relating to the use and disclosure of protected health information received from the Practice, available to the Secretary of the Department of Health and Human Services (or designee) upon request by the same.
Upon termination of the underlying agreement, the Business Associate, warrants and represents that it shall either: I) return all protected health information On provider's patients' in an orderly manner to the provider; or 2) properly destroy all information that is duplicate of what is in the provider's file,
3 | Page
and agree to retain the original protected health information for a period of time not less than seven years, or 3) agree 10 retain all protected health information for a period of time not less than seven years and agree to adhere to the requirements of providing access to said information to the patient, providing the patient the opportunity to request an amendment to said protected health information, or provide the patient with an accounting as requested by said patient. It is expressly understood that this provision shall survive the termination of this agreement and the underlying agreement so as to advance the patients' privacy concerns and meet the requirements of the Federal Privacy Law.
The Business Associate also expressly understands, consents and acknowledges that if improper uses and disclosures are made by the Bus. Assoc., or its agents, that the Provider reserves its right to immediately terminate said contract, without recourse to the Business Associate. Prior to any action to terminate, Provider shall notify the Business Associate of the suspected deficiency and provide the Business Associate a reasonable opportunity to cure.
The Business Associate agrees to take reasonable action to ensure that the Business Associate's employees' or agents do not cause a breach of the privacy rights herein stated, and of this contract.
This legally binding contract shall be construed under Massachusetts law and may be amended only by writing, signed by both parties.
This agreement creates contractual obligations and nothing herein is intended to create any other relationship.
If any provision of this agreement shall be held to be unlawful, invalid or without effect by a Court of competent jurisdiction, the remainder of said contract shall continue in full force and effect.
In witness whereof, the parties set their seal to this agreement on this 27th day of September 2011
![]() | ![]() |
PhoneDOCTORx, LLC | American Doctors Online, Inc. |
4 | Page