EXHIBIT 10.93
CONSULTANT PHARMACIST AGREEMENT
BY AND BETWEEN
AMERICAN PHARMACEUTICAL SERVICES, INC.
AND
1
CONSULTANT PHARMACIST AGREEMENT
This Consultant Pharmacist Agreement ("Agreement") is made and entered
into as of the first day of January 2001, by and between American
Pharmaceutical Services, Inc., a Delaware corporation ("APS"), and
_____________________, a __________ corporation doing business as
____________________, located at ___________ ("Facility").
RECITALS
WHEREAS, the Facility is engaged in the operation of a nursing
facility, for which it requires pharmacy consulting services in accordance with
applicable local, state and federal laws, rules and regulations;
WHEREAS, APS is a licensed pharmacy in the State of _______________
and provides services to and on behalf of nursing services, including pharmacy
consulting services;
WHEREAS, APS and Facility have entered into a Pharmacy Dispensing
Services Agreement pursuant to which APS has agreed to supply certain pharmacy
supplies and services to Facility; and
WHEREAS, the parties hereto desire to enter into this Agreement with
respect to the provision of the pharmacy consulting services set forth herein
and as identified on Exhibit A hereto (the "Consultant Pharmacy Services") by
APS to Facility;
NOW, THEREFORE, for and in consideration of the foregoing recitals and
of the mutual promises contained in this Agreement the parties hereto hereby
agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF APS
1.1 Necessary Licenses and Qualifications. APS represents and warrants
that it has and shall maintain for the term hereof all necessary
qualifications, certificates, approvals, permits and licenses required
pursuant to applicable federal, state and local laws and regulations
to provide the Pharmacy Consultant Services under this Agreement.
1.2 Authority. APS represents and warrants that it has all necessary power
and authority to execute, deliver and perform this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF FACILITY
2.1 Necessary Licenses and Qualifications. Facility represents and
warrants that it has and shall maintain for the term hereof all
necessary qualifications, certificates, approvals, permits and
licenses required pursuant to applicable federal, state and local laws
and regulations to operate the Facility.
2
2.2 Authority. Facility represents and warrants that it has all necessary
power and authority to execute, deliver and perform this Agreement
with respect to the Facility.
2.3 Professional Management Responsibility. Facility hereby represents and
warrants that it retains professional management responsibility over
all services furnished hereunder, and retains all management and
administrative rights and responsibilities normally assumed by the
operator of a nursing facility.
ARTICLE III
APS SERVICES
APS shall provide the Pharmacy Consultant Services set forth in this
Article III to the Facility in compliance with the standards set forth herein
and as may be otherwise required by applicable law.
3.1 Consultant Pharmacy Services. APS shall provide to Facility the
services of a duly licensed pharmacist (the "Consultant Pharmacist")
who shall be responsible for the general supervision of the Facility's
pharmaceutical services, and the Consultant Pharmacist shall use the
pharmacy standards of the State where both the Consultant Pharmacist
and the Facility are located. More specifically, these services shall
include:
(a) Review of the Facility's procedures for the control and
accountability of all drugs and biologicals throughout the
Facility. Such drugs and biologicals shall be approved and
dispensed in compliance with federal state laws;
(b) Assist in establishing policies and procedures to control the
distribution and administration of drugs, biologicals and
pharmaceutical supplies;
(c) Review of the records of receipt and disposition of all
legend drugs and the maintenance of such records in
sufficient detail so as to allow an accurate reconciliation;
(d) Monthly review of the drug regimen of each Resident;
(e) Review of the labeling of all drugs and biologicals to ensure
that such labeling is based on currently accepted
professional principles and includes the appropriate
accessory and cautionary instructions, as well as, the
expiration date when applicable;
(f) Recommendations, plans for implementation and continuing
assessment through dated, signed reports, which are given to
and retained by the administrator of the Facility for
follow-up action and evaluation of performance;
(g) Written reports to the pharmaceutical services committee, on
the status of the Facility's pharmaceutical services and
staff's performance;
3
(h) Serve as an active member of the Quality Assurance Committee,
and make recommendations as appropriate. Participate in the
individual plan of care of each Resident as determined by
Facility policy;
(i) Provision, when requested by the Administrator, for programs
for in-service education for professional staff of the
Facility which would enhance the effectiveness of the
pharmaceutical services said in-service education, to be
conducted by the Consultant Pharmacist or his designee;
(j) Assist in the destruction of discontinued and expired
medications, as prescribed by law; and
(k) All other responsibilities required of a consultant
pharmacist as set forth in any federal or state law, statute,
or regulation, as enacted, or as may be enacted or amended.
3.2 Hours; Replacement.
(a) APS shall arrange to provide the services of another
pharmacist during any absence, vacation, or period of illness
of the Consultant Pharmacist.
(b) The Consultant Pharmacist shall devote a sufficient number of
hours, based upon the needs of the Facility, to carry out the
Consultant Pharmacy Services set forth in Section 3.1 above.
3.3 Additional Responsibilities.
(a) The Consultant Pharmacist shall retain as confidential all
information relating to the policies, procedures and records
of the Facility.
(b) APS shall provide and make available to the Facility on loan,
certain equipment and reference materials that may be
necessary or useful, for the purpose of providing proper
pharmaceutical services. The Facility agrees to promptly
return same in good condition at the termination of this
Agreement.
ARTICLE IV
FACILITY OBLIGATIONS WITH RESPECT TO SERVICES
In connection with the ordering and receipt of the Pharmacy Consultant
Services set forth in Article III, Facility agrees that:
4.1 Use of Material and Equipment Provided by APS. Facility shall be
liable for, and shall indemnify and defend APS from and against, any
and all damages, costs, liabilities, expenses and losses, including,
without limitation, the cost of repairs or replacement, whatsoever
sustained or incurred as a result of casualty to or loss of, or the
misuse or otherwise improper use of, any and all material and
equipment provided by APS for the
4
use of Facility in connection with the provision of Pharmacy
Consultant Services pursuant to the terms hereof.
ARTICLE V
BILLING AND PAYMENT
5.1 Billing and Payment for Pharmacy Supplies. The payment rates
applicable to the Pharmacy Consultant Services provided hereunder
shall be as set forth in Exhibit A attached hereto.
5.3 Monthly Billing and Payment. APS shall xxxx Facility on a monthly
basis by the fifth (5th) working day of each month for Facility
charges incurred during the past month. Facility shall pay APS within
thirty (30) days of receipt of an invoice from APS. All amounts past
due by more than thirty (30) days shall bear interest at the rate of
one and one-half percent (1.5%) per month, or the maximum monthly rate
of interest permitted by applicable law, whichever is less.
ARTICLE VI
TERM AND TERMINATION
6.1 Term. The initial term of this Agreement shall commence on the date
first written above and shall continue for one (1) year. Thereafter,
this Agreement shall automatically renew for successive one (1) year
terms, and during any such renewal term either party shall have the
right to terminate this Agreement without cause by providing to the
other party not less than thirty (30) days prior written notice of
termination.
6.2 Termination.
(a) This Agreement shall automatically terminate with respect to
the Facility upon the revocation or cancellation of the
Facility's license or certification.
(b) Upon the suspension of the Facility's license or
certification, APS shall have the right to terminate this
Agreement immediately upon written notice to Facility.
(c) If either party should materially fail to fulfill its
obligations or conditions set forth herein and such default
shall not be cured within thirty (30) days after written
notice from the other party specifying the nature of default,
the aggrieved party shall have the right to terminate this
Agreement by giving written notice of termination to the
defaulting party, and this Agreement shall terminate on the
thirtieth (30th) day after such notice is given. Either party
shall have the right to cure any such default up to, but not
after, the giving of such notice of termination.
(d) This Agreement may be terminated pursuant to the terms of
Section 8.10(b).
5
ARTICLE VII
RECORDS
7.1 Records. Records shall be maintained by APS of the Pharmacy Consultant
Services supplied hereunder. Notwithstanding the foregoing, the
production of medical records shall remain the responsibility of the
Facility.
7.2 Government Access to Records. APS and its subcontractors shall make
available, upon written request from the Secretary of the U.S.
Department of Health and Human Services, or the Comptroller General of
the United States General Accounting Office, or any of their duly
authorized representatives, this Agreement, and the books, documents
and records of APS that are necessary to verify the extent of costs
incurred by Facility with respect to providing services under this
Agreement for four (4) years thereafter the provision of such
services.
7.3 APS Access to Records.
(a) The Facility shall give APS and the Pharmacy Consultant
reasonable access to all resident records, facilities and
supplies necessary for the performance of their duties
herein.
(b) In the event of any dispute arising from any claim or xxxx
submitted by APS, Facility shall give APS access to all
reasonable and necessary documents and records to investigate
the accuracy of the claim. Such access shall be during normal
business hours following reasonable advance notice from APS.
ARTICLE VIII
MISCELLANEOUS
8.1 Independent Contractors. In the performance by each party hereto of
their respective obligations hereunder, the parties shall at all times
hereunder be deemed to be independent contractors, and not the agent
of the other. Except to the extent expressly provided for herein to
the contrary, neither party shall have the right or power to bind the
other.
8.2 Insurance.
(a) APS shall maintain, during the term of this Agreement,
liability insurance coverage for its acts and omissions in
amounts of no less than one million dollars per claim and
three million dollars annual aggregate. Prior to the
commencement of this Agreement, APS shall provide to Facility
a certificate of insurance indicating that such coverage is
in effect and providing that Facility will be notified at
least thirty (30) days prior to any modification,
cancellation, reduction or non-renewal of such coverage. Any
substantial change in coverage that might adversely affect or
actually materially adversely affects Facility shall be a
breach of this Agreement.
6
(b) Facility shall maintain, during the term of this Agreement,
liability insurance coverage for its acts and omissions in
amounts of no less than one million dollars per claim and
three million dollars annual aggregate. Prior to the
commencement of this Agreement, Facility shall provide to APS
a certificate of insurance indicating that such coverage is
in effect and providing that APS will be notified at least
thirty (30) days prior to any modification, cancellation,
reduction or non-renewal of such coverage. Any substantial
change in coverage that might adversely affect or actually
materially adversely affects APS shall be a breach of this
Agreement.
8.4 Indemnification.
(a) Facility shall defend, indemnify, protect and hold harmless
APS and its affiliates, and the officers, directors,
employees and agents of each of them, from and against any
and all liability, obligation, damage, loss, cost, claim,
judgment, settlement, expense or demand whatsoever, of any
kind or nature, including reasonable attorneys fees and
defense costs in connection therewith, arising directly or
indirectly from actions taken or omissions made by Facility
in its performance under this Agreement.
(b) APS shall defend, indemnify, protect and hold harmless
Facility and its affiliates, and the officers, directors,
employees and agents of each of them, from and against any
and all liability, obligation, damage, loss, cost, claim,
judgment, settlement, expense or demand whatsoever, of any
kind or nature, including reasonable attorneys fees and
defense costs in connection therewith, arising directly or
indirectly from actions taken or omissions made by APS or its
affiliates in its performance under this Agreement.
8.5 Governing Law. Disputes arising under this Agreement shall be governed
according to the internal laws of the State of ____________, without
regard to the conflicts of laws provisions thereof.
8.6 Compliance with Applicable Law. In all aspects relative to the
performance of their respective obligations under this Agreement, both
parties shall conduct their respective businesses in accordance with
applicable law.
8.7 Successors and Assigns. This Agreement shall be binding upon either
party's purchasers, transferees, successors and assigns, whether by
operation of law or otherwise, including but not limited to the sale
of the stock, assets or any other ownership interest of a party hereto
to another, or the merger or consolidation of a party hereto into
another, or any transaction by which a party to this Agreement
transfers its business to another as to which the duties and
obligations provided for under this Agreement by either or both
parties hereto arise.
8.8 Waiver of Breach. The waiver of any breach of this Agreement by either
party shall not constitute a continuing waiver or a waiver of any
subsequent breach of either the same or any other provision of this
Agreement.
7
8.9 Notices. Any notice or other communication made or contemplated to be
made under this Agreement shall be in writing and shall be deemed to
have been received by the party to whom it is addressed on the date of
delivery, if delivered by hand, or three (3) business days after it is
deposited in the United States Mail, postage prepaid, return receipt
requested, or the next business day after it is transmitted by Federal
Express or similar overnight delivery services, addressed, in the case
of APS to:
American Pharmaceutical Services, Inc.
0000 X. Xxxxx Xxxx, Xxx. 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: President
with a copy to:
American Pharmaceutical Services, Inc.
0000 X. Xxxxx Xxxx, Xxx. 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
and in the case of Facility to:
-----------------------------------
-----------------------------------
-----------------------------------
Attn: Administrator
Either party may change its address for notices given hereunder by
giving fifteen (15) days prior written notice in accordance with this
Section 8.9.
8.10 Entire Agreement; Amendments.
(a) This Agreement, together with all Exhibits hereto, which are
incorporated herein and made a part hereof by this reference,
constitutes the entire Agreement between the parties hereto
and supersedes and cancels any other prior agreements or
understandings whether written, oral or implied. This
Agreement may not be amended except by an instrument in
writing signed by both the parties hereto.
(b) In the event of any material change in statutes, regulations,
or enforceable governmental policies applicable to either
party's obligations arising under this Agreement, or in the
event of the severance of any provision hereof pursuant to
Section 8.11, and either party is materially and adversely
affected thereby so as to materially diminish the benefits of
this Agreement reasonably intended by such affected party,
such affected party may provide notice of such material
adverse effect to the other, and request that this Agreement
be amended to resolve such material adverse effect. The
parties shall then be obligated to engage in good faith
negotiations in an attempt to agree upon an acceptable
amendment to this Agreement for the purpose of resolving the
material adverse effect. If the parties
8
fail to agree to amend this Agreement within thirty (30) days
after receipt of notice of material adverse effect, the
affected party may terminate this Agreement at any time
thereafter, upon notice given to the other party.
8.11 Severability. The invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of
any other term or provision hereof.
8.12 Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect the construction of
this Agreement.
8.13 Nondiscrimination. APS and the Consultant Pharmacist shall provide all
Pharmacy Consultant Services and otherwise perform all of their
respective duties and responsibilities hereunder without unlawful
discrimination on the basis of race, color, religion, national origin,
sex ancestry, disability or any other basis protected by law.
[SIGNATURE PAGE FOLLOWS]
* * *
9
IN WITNESS WHEREOF, the parties have executed this Agreement in
multiple counterparts, each of which shall be deemed to be an original, and all
of which together shall constitute this Agreement, effective as of the date
first written above.
AMERICAN PHARMACEUTICAL SERVICES, INC.
By:
-------------------------------------
Xxxxx X. Xxxxxx
Its: Vice President
Date: February _____, 2001
By:
-------------------------------------
Xxxxxxx X. Xxxxx
Its: Vice President
Date: February _____, 2001
10
Exhibit A
PAYMENT RATES FOR PHARMACY CONSULTANT SERVICES
Pricing/Basic Rate
- APS will charge Facility $4.50 per licensed bed per month.
MEDICAL RECORDS
Pricing/Basic Rate
- APS will charge Facility $1.50 per patient per month.
REQUIRED STANDARDS OF SERVICE FOR PHARMACY CONSULTATION PROGRAM
Monthly Services
- Resident chart review - Drug Regimen Review
- Written Consultation Reports
- Oversee Facility pharmacy systems, policies, and procedures
- Drug Formulary management to support compliance with the
MPAN/APS Preferred Drug List Formulary
- Observe and participate in drug destruction per state
regulations
Quarterly Services
- Medication cart and medication room audits
- Controlled drug audit
- Attend QA meeting
- One (1) medication pass training per Facility
Annual Services
- Two (2) inservice programs
Requests for additional Pharmacy Consultant support will be provided as
available at the rate of $50.00 per hour. Additional requests for medication
pass observation and training will be provided at $50.00 per hour.
11
