AMENDED AND RESTATED MASTER SERVICES AGREEMENT by and between Healthcare Services, Inc. d/b/a Accretive Health and Ascension Health as of December 13, 2007
Exhibit 10.8 | ||
Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. |
MASTER SERVICES AGREEMENT
and
Page | ||||||||
Article 1. | DEFINITIONS, CONSTRUCTION, AND AFFILIATE SCHEDULES |
1 | ||||||
Article 2. | TERM |
7 | ||||||
Article 3. | SERVICES |
7 | ||||||
Article 4. | STARTUP OF OPERATIONS |
10 | ||||||
Article 5. | STAFFING |
11 | ||||||
Article 6. | APPOINTMENT AS ATTORNEY IN FACT |
15 | ||||||
Article 7. | AFFILIATE RESPONSIBILITIES |
15 | ||||||
Article 8. | THIRD PARTY CONTRACT ADMINISTRATION AND MANAGEMENT |
17 | ||||||
Article 9. | CUSTOMER SATISFACTION AND PERFORMANCE REVIEW |
19 | ||||||
Article 10. | SERVICE LEVELS |
21 | ||||||
Article 11. | SERVICE LOCATIONS |
21 | ||||||
Article 12. | PROJECT TEAM |
22 | ||||||
Article 13. | GOVERNANCE AND RELATIONSHIP MANAGEMENT |
23 | ||||||
Article 14. | PROPRIETARY RIGHTS |
23 | ||||||
Article 15. | DATA AND REPORTS |
25 | ||||||
Article 16. | CONSENTS |
26 | ||||||
Article 17. | CONTINUED PROVISION OF SERVICES |
26 | ||||||
Article 18. | PAYMENTS |
27 | ||||||
Article 19. | PAYMENT SCHEDULE AND INVOICES |
29 | ||||||
Article 20. | TAXES |
30 | ||||||
Article 21. | REDUCTION OF OPERATING COSTS |
30 | ||||||
Article 22. | AUDIT RIGHTS |
31 | ||||||
Article 23. | REGULATORY AND CORPORATE RESPONSIBILITY COMPLIANCE |
32 | ||||||
Article 24. | CONFIDENTIALITY |
35 |
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Page | ||||||||
Article 25. | REPRESENTATIONS AND WARRANTIES |
37 | ||||||
Article 26. | DISPUTE RESOLUTION |
40 | ||||||
Article 27. | TERMINATION |
42 | ||||||
Article 28. | TERMINATION ASSISTANCE |
44 | ||||||
Article 29. | EXIT PLAN |
44 | ||||||
Article 30. | INDEMNITIES |
46 | ||||||
Article 31. | DAMAGES |
51 | ||||||
Article 32. | INSURANCE |
52 | ||||||
Article 33. | MISCELLANEOUS PROVISIONS |
53 |
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1.01 | Definitions. The following defined terms when capitalized (or when the context clearly indicates the parties intended the defined term) shall have the meanings specified below: |
1.01.01 | βAccretive Agentsβ shall mean the subcontractors and agents of Accretive permitted to provide Services pursuant to this MSA. | ||
1.01.02 | βAccretive Employeesβ shall mean individuals employed by Accretive who are providing services to an Affiliate. | ||
1.01.03 | βAccretive Machinesβ shall mean those machines and equipment owned or leased by Accretive and used exclusively at the Affiliate Service Locations or used outside the Affiliate Service Location to deliver the Services (e.g. a server) exclusively to Ascension Health. This shall not include laptop computers used by Accretive management staff on an exclusive basis. | ||
1.01.04 | βAccretive Proprietary Softwareβ shall have the meaning set forth in Section 14.02. | ||
1.01.05 | βAccretive Service Locationsβ shall mean the Service Locations owned, leased, or under the control of Accretive that are set forth in |
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Exhibit 1 of the Affiliate Schedules and from which Services are provided. |
1.01.06 | βAccretive Softwareβ shall mean the Accretive Proprietary Software and the Accretive Third Party Software, collectively. | ||
1.01.07 | βAccretive Staffβ shall mean the Accretive Employees and Contract Employees who are performing Services under this Agreement. | ||
1.01.08 | βAccretive Third Party Softwareβ shall have the meaning set forth in Section 14.03. | ||
1.01.09 | βAccretive Toolsβ shall mean all Accretive-specific equipment and Accretive and third party tool kits including software and other materials used by Accretive to provide the Services. | ||
1.01.10 | βAffiliateβ means any entity designated by Ascension Health as a health ministry which executes an Affiliate Schedule. | ||
1.01.11 | βAffiliate Contract Yearβ shall mean each consecutive twelve (12) month period commencing on the Affiliate Effective Date or any anniversary of the Affiliate Effective Date during the Term. | ||
1.01.12 | βAffiliate Effective Dateβ for an Affiliate Schedule shall mean the date as set forth in the Affiliate Schedule as the Affiliate Effective Date and the date upon which Accretive assumes responsibilities for the Services in accordance with the applicable Affiliate Schedule. | ||
1.01.13 | βAffiliate Facilitiesβ shall have the meaning set forth in Section 7.01.01. | ||
1.01.14 | βAffiliate Machinesβ shall mean those machines and equipment owned or leased by an Affiliate and utilized by Accretive in performing the Services as set forth in Appendix A of each Affiliate Schedule. | ||
1.01.15 | βAffiliate Proprietary Softwareβ shall have the meaning set forth in Section 14.01. | ||
1.01.16 | βAffiliate Scheduleβ shall mean an agreement by and among Ascension Health, an Affiliate, and Accretive that amends and supplements this MSA as to the Services to be provided to Affiliate by Accretive under this MSA, a form of which is attached hereto as Exhibit 2. | ||
1.01.17 | βAffiliate Service Locationsβ shall mean the service locations owned, leased, or under the control of an Affiliate that are set forth in Appendix B to the applicable Affiliate Schedule from which Services |
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are provided as may be modified from time to time pursuant to Article 11. |
1.01.18 | βAffiliate Softwareβ shall mean the Affiliate Proprietary Software and the Affiliate Third Party Software, collectively. | ||
1.01.19 | βAffiliate Termβ shall have the meaning set forth in Section 2.02. | ||
1.01.20 | βAffiliate Third Party Softwareβ shall have the meaning set forth in Section 14.01. | ||
1.01.21 | βAscension Health Agentsβ shall mean the subcontractors and agents of Ascension Health and the respective Affiliate(s). | ||
1.01.22 | βAscension Health Dataβ shall mean all data and information submitted to Accretive by Ascension Health or Affiliates or acquired by Accretive in connection with the Services. | ||
1.01.23 | βAverage Wage Increaseβ shall mean the average annual increase provided by a respective Affiliate to its non-clinical staff. For purposes of this definition, non-clinical staff shall mean employees not engaged in direct patient care. | ||
1.01.24 | βBase Caseβ shall mean the financial summary prepared by Ascension Health and Accretive reflecting each Affiliateβs actual and budgeted expenditures for performing the Services during the year preceding the Affiliate Effective Date as shall be set forth in each Affiliate Schedule as Appendix D. Accretive and the Affiliate shall meet [**] and [**] after the respective Affiliate Effective Date to substantiate and verify the accuracy of the Base Case and make mutually agreeable revisions resulting in an amendment of the Base Fee. To the extent that the Base Fee is adjusted pursuant to this Section, the adjustment will be retroactive to the Affiliate Effective Date. To the extent that the Base Fee is increased the retroactive adjustment will be reflected on the next Base Fee invoice and to the extent the Base Fee is decreased then the retroactive adjustment will be reflected as a credit on the next Base Fee invoice. If the Affiliate and Accretive disagree on revisions to the Base Case, the Joint Review Board shall meet to discuss and agree to changes to the Base Case. | ||
1.01.25 | βClaimβ shall mean any claim, action, suit, proceeding, arbitration, or Governmental or Regulatory Authority investigation. βGovernmental or Regulatory Authorityβ means any court, tribunal, arbitrator, authority, agency, commission, official, or other instrumentality of the United States or any state, county, city, or other political subdivision or any hospital accrediting agency. |
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1.01.26 | βConfidential Informationβ shall mean all confidential information and documentation of Accretive, Ascension Health and each Affiliate, including (a) with respect to Ascension Health and Affiliates, all Ascension Health Data and other information of Ascension Health and Affiliates or its customers that is not permitted to be disclosed to third parties under applicable laws and regulations and (b) the terms of this MSA. | ||
1.01.27 | βContract Employeesβ shall have the meaning set forth in Section 5.01. | ||
1.01.28 | βDesignated Sponsorβ shall mean the individual designated by an Affiliate to be responsible for oversight and decision-making on behalf of that Affiliate relating to an Affiliate Agreement. | ||
1.01.29 | βDormant Receivableβ shall mean any unpaid patient balance which: |
a) | remains unpaid on the 366th day following the date the invoice reflecting such unpaid patient balance was issued; and | ||
b) | which is not the subject of a paid-to-date, current financial payment plan between the patient and an Affiliate; and | ||
c) | has either been referred to an independent third party collection agency which has failed to secure payment and has returned the account to the Affiliate or has been the subject of diligent collection efforts by Accretive, to the reasonable satisfaction of Affiliate, which have not resulted In payment. |
1.01.30 | βFederal Health Care Programβ shall mean the Medicare program, TRICARE, the Medicaid program, the Maternal and Child Health Services Block Grant program, the Block Grants for State for Social Services program, any state Childrenβs Health Insurance program, or any similar program. | ||
1.01.31 | βFeesβ shall mean the Fees set forth in Section 18. | ||
1.01.32 | βFinal Service Dateβ shall mean the last date Accretive provides Services for an Affiliate or Ascension Health. | ||
1.01.33 | βForce Majeure Eventβ shall mean any failure or delay of a party due to fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions in the United States, strikes, lockouts, or labor difficulties, court order, third party nonperformance (except the non-performing partyβs subcontractors or agents other than as a result of an event that would otherwise be a Force Majeure Event to the parties), health facility emergency or action affecting access to or use of the Affiliate Service Locations, or any other similar cause beyond the reasonable control of |
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such party and without the fault or negligence of such party; provided that such failure or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the nonperforming party through the use of alternate sources, disaster recovery plans and procedures, work around plans, or other means. |
1.01.34 | βInterestβ shall mean the Prime Rate published in the Wall Street Journal (or similar publication if the Wall Street Journal ceases to publish such a rate) which is determined by the Wall Street Journal utilizing the base rate posted by 75% of the nationβs largest banks from time to time. | ||
1.01.35 | βJoint Review Boardβ shall mean the joint review board as set forth in Section 13.01. | ||
1.01.36 | βKey Accretive Staffβ shall mean the Accretive Staff members who are designated pursuant to Section 12.01. | ||
1.01.37 | βMaster Contract Yearβ shall mean each consecutive twelve (12)- month period commencing on the Master Effective Date or the anniversary of the Master Renewal Date during the Master Term. | ||
1.01.38 | βMaster Renewal Dateβ shall mean January 1, 2008 | ||
1.01.39 | βMaster Services Agreement,β or βMSAβ shall mean this Master Services Agreement, the Affiliate Schedules, the Exhibits, the Appendices, renewed and extended on November ___, 2007 and all amendments thereto. With respect to an Affiliate, MSA shall mean the Master Services Agreement, the Affiliate Schedule applicable to such Affiliate, the Exhibits, the Appendices, and all amendments thereto. | ||
1.01.40 | βMaster Termβ shall mean the period from the Master Renewal Date until December 31, 2012. | ||
1.01.41 | βOperating Protocolsβ shall mean the operating protocols attached hereto as Exhibit 3 as they may be amended from time to time. | ||
1.01.42 | βPerformance Guarantyβ shall have the meaning set forth in Section 19.06 of this MSA. | ||
1.01.43 | βQuarterβ shall mean the periods beginning January 1, April 1, July 1, and October 1 and ending March 31, June 30, September 30, and December 31 respectively, except as provided below. At the commencement of Services to any Affiliate, Quarter shall mean that period of time between the Affiliate Effective Date and the beginning of the next Quarter as defined above. |
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1.01.44 | βRelated Entityβ or βRelated Entitiesβ shall mean any entity or entities in which either Accretive, Ascension Health or any Affiliate (as the context requires): (i) is its sole corporate member; (ii) owns more than a 20% ownership interest; or (iii) has voting control of the membership interests or managing board. | ||
1.01.45 | βRetained Resourcesβ shall mean those assets or obligations retained by an Affiliate, and for which Accretive will have responsibility for managing, administering, and maintaining. | ||
1.01.46 | βRetained Resources Agreementsβ shall mean those agreements for the Retained Resources, copies of which shall be provided to Accretive by the respective Affiliate (e.g. unassigned equipment leases and third party services agreements). | ||
1.01.47 | βRetained Resource Vendorβ shall mean a party obligated to provide resources or services to an Affiliate under a Retained Resources Agreement. | ||
1.01.48 | βRoll-Out Planβ shall have the meaning set forth in Section 4.01. | ||
1.01.49 | βService Locationsβ shall mean those Affiliate Service Locations and Accretive Service Locations and such other locations designated by Ascension Health as agreed upon by the parties pursuant to Section 11.01 from which the Services are provided. | ||
1.01.50 | βServicesβ shall have the meaning set forth in Section 3.02 and the Operating Protocols. | ||
1.01.51 | βSite(s)β shall mean the locations or facilities of an Affiliate identified in Appendix C of the respective Affiliate Schedules and to which Accretive will provide the Services specified in such Affiliate Schedule. | ||
1.01.52 | βSoftwareβ shall mean object or executable code and related documentation customarily supplied with such code. Software does not include source code and related documentation unless otherwise expressly indicated. | ||
1.01.53 | βTermination Assistance Servicesβ shall mean (1) the cooperation of Accretive with Ascension Health in effecting the orderly transfer of the Services to a third party or the resumption of the Services by the respective Affiliate upon request by Ascension Health and (2) the performance by Accretive of such services as may be requested by Ascension Health in connection with the transfer of the Services to a third party or the resumption of the Services by the respective Affiliate. |
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2.01 | MSA. The term of this MSA shall commence on the Master Renewal Date and continue until the end of the Master Term, unless this MSA is otherwise extended or renewed pursuant to this Article 2 or terminated earlier pursuant to Article 27 (the βMaster Termβ). The MSA shall automatically renew for successive one (1) year terms unless either party provides notice not to renew pursuant to Section 27.04. | ||
2.02 | Affiliate Schedule. The initial term of an Affiliate Schedule shall commence on the Affiliate Effective Date and shall continue for a period of five (5) years and will automatically renew for successive one (1) year terms thereafter unless either Ascension Health or Accretive provides notice not to renew pursuant to Section 27.04 (the βAffiliate Termβ). In no event will an Affiliate Schedule survive expiration of this MSA. |
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5.01.01 | Pay all wages, bonuses, if any , and other remuneration and all applicable federal, state, municipal and other governmental taxes with respect to the employment of the Contract Employees, including, without limitation, social security, federal and/or state unemployment compensation taxes. | ||
5.01.02 | Maintain payroll records and reports. | ||
5.01.03 | Have all responsibility for any retirement, health, life, disability or similar employee benefit for the Contract Employees, including vacation or sick days or holidays that may be offered by Affiliate pursuant to its standard policies, procedures, and plans. | ||
5.01.04 | Accretive and Affiliate shall review and revise the roster of Contract Employees listed on Appendix H of each Affiliate Schedule on a bi weekly basis and shall adjust the lease payment to be paid to the respective Affiliate by Accretive pursuant to paragraph 5.07 below, as specified in the applicable Affiliate Schedule. | ||
5.02 | Accretive will have the following rights with respect to Contract Employees: |
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5.02.01 | The right to control and direct the work activities of the Contract Employees relating to the Services and subject to its obligations under paragraph 5.05 below. In exercising such right, which may include a request to remove or discipline a Contract Employee, Accretive shall comply with the respective Affiliateβs policies and procedures regarding progressive discipline, as well as, all other applicable personnel policies, procedures, and/or collective bargaining agreements. Prior to removing or disciplining a Contract Employee, Accretive shall consult and work with Affiliate to ensure the removal of the Contract Employee from providing Services under this MSA and/or discipline of a Contract Employee is conducted in a manner consistent with Affiliateβs applicable policies, procedures, and/or collective bargaining agreements. In the event Affiliate objects to the Contract Employee being removed or disciplined, Affiliate may submit the matter to the Joint Review Board for further discussion and prompt resolution. Any request by Accretive to remove an individual from the roster shall not be deemed to constitute or require a termination of such individualβs employment by Affiliate, and in no event shall Accretive be deemed an employer of any such person. | ||
5.02.02 | The right to reassign a Contract Employee to a comparable position in pay, benefits, and/or duties providing Services to the respective Affiliate consistent with Affiliateβs personnel policies and procedures and any applicable collective bargaining agreement. Reassignment to a position with non-comparable pay, benefits, and/or duties shall be subject to the process established in Section 5.02.01. | ||
5.02.03 | The right to determine whether or not a Contract Employee who ceases employment with Affiliate, or who transfers under Affiliateβs customary policies and procedures to an area not subject to Accretiveβs Services, should be replaced and whether the replacement should be by an Accretive employee or an Affiliate Contract Employee. In the event that Accretive determines that the position is to be filled by adding a new Contract Employee to the roster, and that individual will be a new hire for Affiliate, Affiliate shall have the right to approve the hiring of the Contract Employee and the Contract Employeeβs terms and conditions of employment, including, but not limited to, pay and benefits. In the event an Affiliate objects to the manner in which Accretive exercises its rights under this Section 5.02.03, the Affiliate shall be permitted to submit the matter for consideration to the Joint Review Board. |
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Affiliate the day prior to each payroll for the respective Affiliate. Accretive shall not be responsible for any employment related costs not included in the determination of the Base Case unless required, authorized or approved in advance by Accretive. | |||
5.04 | In the event that any portion of the Base Fee is held by Accretive in any account which is subject to investment risk, Ascension Health shall have the right to demand reasonable assurances that Accretive is able to make all Lease payments in a timely fashion and Accretive shall provide such assurance within three (3) business days. Accretive shall notify Ascension Health, in writing, in advance of the transfer or deposit of any component of the Base Fee into an account subject to investment risk. Failure of Accretive to provide reasonable assurances as set forth in this Section shall entitle Ascension Health to require that Accretive escrow funds sufficient to satisfy Accretiveβs Employee Reimbursement payment through the end of the Quarter within ten (10) days of this request for reasonable assurance. | ||
5.05 | Contract Employees shall be subject to all personnel policies and regulations applicable to Affiliateβs employees generally, including, but not limited to, time off with or without pay, and leaves of absence under the Family and Medical Leave Act. While Contract Employees are providing Services hereunder, Accretive shall maintain a safe, healthy and non-discriminatory working environment in compliance with all applicable laws and regulations and shall indemnify Ascension Health and Affiliate for its failure to do so pursuant to Section 30.02. Likewise, each Affiliate shall maintain a safe, healthy and non-discriminatory working environment in compliance with all applicable laws and regulations and shall indemnify Accretive for its failure to do so pursuant to Section 30.01. Accretive shall honor and observe all obligations of a respective Affiliate provided for in any collective bargaining agreement which govern the employment of any Contract Employees as it relates to the employees covered by the particular collective bargaining agreement, and shall indemnify and hold a respective Affiliate harmless for its failure to do so pursuant to Section 30.02. | ||
5.06 | Departmental Policies and Compensation Plan. On behalf of the respective Affiliate and subject to the approval of an Affiliate prior to implementation, Accretive shall be responsible for developing and implementing performance management policies and practices for the Affiliateβs Contract Employees which are designed to achieve the performance objectives necessary to fulfill the objectives of this MSA. Subject to the approval of the Affiliate, Accretive shall also be responsible for developing and implementing a compensation plan for Contract Employeeβs which supports the performance management policies discussed above (the βCompensation Planβ). The Compensation Plan shall set forth, at a minimum, the manner in which annual pay increases shall be determined, the manner in which compensation for overtime service will be determined and any other matters which impact the compensation of a Contract Employee. Affiliate shall not unreasonably withhold or delay its approval of the performance management policies and compensation plans contemplated by this paragraph. The Affiliate shall have the right to review changes in individual |
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5.10.01 | Pay all wages, bonuses, if any, and other remuneration and all applicable Federal, state, municipal and other governmental taxes with respect to the employment of the Accretive Employees, including, without limitation, social security, federal and/or state unemployment compensation taxes. | ||
5.10.02 | Maintain payroll records and reports. | ||
5.10.03 | Have all responsibility for any retirement, health, life, disability or similar employee benefit for Accretive Employees, including vacation or sick days or holidays. |
5.11 | While at the Affiliate Service Locations, Accretive Employees shall (1) comply as requested with standard rules and regulations of Affiliate regarding personal and professional conduct (including the wearing of a particular uniform, identification badge, or personal protective equipment and adhering to health care facility regulations which in some instances may include drug screen, tuberculosis testing (or other communicable disease testing required by law) and general safety practices or procedures) generally applicable to such Affiliate Service Locations, and (2) otherwise conduct themselves in a businesslike manner. In the event that Affiliate determines in good faith that the continued assignment of one or more Accretive Staff is not in the best interests of Affiliate (and provided the basis for |
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such determination is not prohibited by law), Affiliate shall consult with Accretive to that effect. Upon such consultation, Accretive shall have a reasonable period of time in which to investigate the matters stated in such notice, discuss its findings with Affiliate and resolve the problems with such person. If Affiliate and Accretive can not agree on the disposition of the matter it shall be referred to the Joint Review Board for prompt resolution. In the event that the Joint Review Board determines that the Accretive employee should be removed, Accretive shall replace that person with another person of suitable ability and qualifications. However, under circumstances where an Accretive Employeeβs continued presence at an Affiliate would be particularly disruptive to the Affiliateβs operations or would pose a risk to Affiliate, its employees, or patients, Affiliate shall have the right to demand and Accretive must immediately remove such individual(s) from Affiliateβs account pending such investigation and discussion. In any event, any request by Affiliate to remove an individual from Affiliateβs account shall not be deemed to constitute or require a termination of such individualβs employment by Accretive and in no event shall Affiliate be deemed an employer of any such person. | |||
In the event that Accretive believes that an Affiliateβs requests for reassignment of Accretive employees under this paragraph are unreasonable or excessive, it shall have the right to refer the issue directly to the Joint Review Board for discussion. |
6.01 | Affiliate shall sign a power of attorney, and shall cause all entities for which Accretive is performing Services through an Affiliate (βEligible Entitiesβ) for whom Accretive will perform Services to sign a power of attorney, in the form attached hereto as Appendix L to Exhibit 1, to authorize Accretive to process medical claims of Affiliate and Eligible Entities and to receive and deposit funds from third party payors, including self pay patients, into accounts controlled by or in the name of Affiliate or the Eligible Entities which power shall be subject to review by the Affiliate. Accretive agrees to execute any document or agreement reasonably requested by third parties or Affiliates to permit Accretive to perform the Services. |
7.01 | Affiliate shall be responsible for: |
7.01.01 | Except for payment to Affiliate by Accretive for certain occupancy expenses to be set forth in Appendix I (βReimbursement for Occupancy Expensesβ) of the respective Affiliate Schedule, Affiliate will make available at no cost to Accretive the Affiliate Service Locations set forth on Appendix B of the applicable Affiliate Schedule for the time periods set forth in such Appendix, which Appendix may be amended from time to time by the respective Affiliate. Affiliate shall also make available to Accretive any on-site and off-site storage currently used by Affiliate in connection with the |
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Services. Affiliate shall furnish standard office furnishings and services, including janitorial services of the same quality as it provides its own staff, at the Affiliate Service Locations, from time to time. (The specified space and the associated storage space are collectively the βAffiliate Facilitiesβ). | |||
7.01.02 | With respect to the Affiliate Facilities, Affiliate will manage and maintain as necessary the building and property including the structures, roof, exterior and interior walls, electrical systems, Internet access (to the extent available at the Affiliate Service location on the respective Affiliate Effective Date), telephone service, water, sewer, lights, heating, ventilation and air conditions (HVAC) systems, physical security systems, fire suppression systems, general custodial services and other infrastructure components relating to the Affiliate Service Locations. | ||
7.01.03 | Accretive may not provide services to other customers from Affiliates Facilities without Affiliateβs consent. Accretiveβs use of Affiliate Facilities shall not constitute a leasehold or other property interest in favor of Accretive. To the extent Accretiveβs use of Affiliate Facilities materially increases Affiliateβs facility or other costs, Affiliate reserves the right to charge Accretive for such excess costs after reasonable consultation with Accretive. Affiliate shall have the option at any time during the Master Term of relocating the Accretive Staff, other employees, and subcontractors located in such office space provided by Affiliate to another comparable location or facility; provided that such relocation shall not require a move by Accretive Staff of more than twenty miles from the original Affiliate Facilities. Affiliate shall be responsible for any disruption or degradation in Services directly resulting from any relocation, and shall reimburse Accretiveβs relocation costs and expenses. | ||
7.01.04 | Affiliate warrants that throughout the Affiliate Term: (i) the Affiliate Facilities will comply with applicable health and safety laws and regulations; (ii) Affiliate will obtain and maintain any necessary permits and approvals for Accretiveβs use as contemplated by this MSA; and (iii) the use as contemplated by this MSA will not be an unlawful purpose or act or violate any insurance policy or lease which is currently or which in the future may be in effect; and (iv) Affiliate will satisfy the requirements for Affiliate performance contemplated by the Operating Protocols. | ||
7.01.05 | Notwithstanding the foregoing, neither party intends Accretiveβs interest in the Affiliate Facilities to be deemed or construed to be a lease or other interest in real property, but rather a revocable license. Accretiveβs right to quiet enjoyment shall be subject to such disruption as required by applicable laws, regulations and rules or generally accepted hospital operation protocols. In the event of such |
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disruption, Accretive shall be relieved of service levels and other obligations to the extent that the effect of the disruption cannot be mitigated through commercially reasonable methods at no additional cost to Accretive. | |||
7.01.06 | Accretive Staff and Accretive Agents will not commit or permit waste or damage to the Affiliate Facilities, and, subject to Affiliateβs warranties, not use the Affiliate Facilities for any unlawful purpose or act. Accretive Staff and Accretive Agents will comply with Affiliateβs reasonable building policies and procedures as made available to Accretive regarding access to and use of the Affiliate Facilities, including procedures for the physical security of the Affiliate Facilities. | ||
7.01.07 | Accretive will not make any improvements or changes involving structural, mechanical or electrical alterations to the Affiliate Facilities without Affiliateβs prior written approval. At Affiliateβs option, any such alterations shall be made by Affiliate or its agents and subcontractors. | ||
7.01.08 | Affiliate will make available [**] to Accretive the assets which were used prior to each respective Affiliate Effective Date to perform the services previously performed by the Contract Employees. Subject to Ascension Healthβs capital allocation process, [**] will be responsible for replacing capital items provided by Affiliate pursuant to the prior sentence utilized by Accretive in performing the Services, as well as, upgrades of technology applications. Notwithstanding the foregoing, Accretive will be responsible for acquiring any new assets to support its own operations, including for the development of any interfaces between Accretive Tools and Affiliateβs systems. |
7.02 | Savings Clause. Affiliateβs failure to perform any of its responsibilities set forth in the MSA shall be referred to the Joint Review Board for corrective action. |
8.01 | Accretive Responsibilities. Accretive shall be responsible for acting on behalf of the respective Affiliate to manage, administer and maintain the Retained Resources Agreements, as itemized on Appendix F of the applicable Affiliate Schedules. Accretive shall not modify, change or terminate Affiliateβs responsibilities as to the Retained Resources without first obtaining the consent of the respective Affiliate (which shall not be unreasonably withheld). Accretive shall, at least once every ninety (90)-day period during the applicable Affiliate Term, review and revise the applicable Appendix F in order to determine whether any Retained Resources Agreement may be terminated, modified or assigned to Accretive; provided, however, no such termination, modification, or assignment shall occur without the prior written consent of the respective Affiliate. Subject to Affiliateβs right to consent, Affiliate shall cooperate with Accretive in performing |
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8.02.01 | As an agent of Affiliate, Accretive shall manage the Retained Resources Agreements in accordance with their terms, provided that the need for additional personnel to manage any expansion of such Retained Resources Agreements or activity there under shall be subject to review by the Affiliate with written consent of the Designated Sponsor. Accretive shall not be liable for the failure of any party to a Retained Resource Agreement to meet the specific contractual obligations of a Retained Resources Agreement; provided, however, that Accretive shall notify Affiliate of known deficiencies or other known failures to perform by any Retained Resource Vendor, and shall assist Affiliate in their appropriate resolution. In addition to any other reason for excused performance, if (i) a Service Level or Performance Guaranty failure of Accretive is directly attributable to the failure of a Retained Resource Vendor to perform, (ii) Accretive promptly notifies Affiliate that such Retained Resource Vendor is failing to so perform and such failure will impair Accretiveβs ability to meet its corresponding Service Level or Performance Guaranty obligation, and (iii) Accretive uses reasonably diligent efforts to meet such Service Levels or Performance Guaranty notwithstanding such failure by the applicable Retained Resource Vendor, then, in such event, Accretive shall be excused from its failure to meet the Service Level or Performance Guaranty. To the extent, if any, Accretive has any rights with respect to the effect of performance under a Retained Resources Agreement under this Article 8, Accretive shall be subrogated to Affiliateβs rights under such Agreement and Affiliate will provide all necessary cooperation in order to allow Accretive to exercise such rights. The parties shall discuss continuing |
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performance and material non-compliance issues with respect to any Retained Resource Vendor as part of their normal meeting schedule. |
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satisfaction in these areas. Accretive and Affiliate will agree on a mechanism to conduct an annual survey with respect to employee satisfaction and will work collaboratively to review and respond to the results of that survey as appropriate. |
9.03 | Accretive shall maintain or increase patient satisfaction as measured against the prior surveys conducted under this Article 9. | ||
9.04 | The Joint Review Board shall periodically, but no less frequently than annually, monitor the activities and conduct of the parties with respect to the following: |
9.04.01 | Quality of Services rendered by Accretive pursuant to the MSA; | ||
9.04.02 | Any activity performed by Accretive under the MSA which might harm, reflect poorly on, or lower the reputation of Ascension Health or any of the Affiliates; | ||
9.04.03 | Accretiveβs adherence to corporate compliance and principles of integrity, and ethical practices as well as all applicable laws, rules, and regulations; | ||
9.04.04 | The conduct of any activities that might jeopardize the tax-exempt status of Ascension Health, Affiliates, or their Related Entities. |
9.05.01 | Conduct a root cause analysis to determine and document the cause of the failure. | ||
9.05.02 | Provide the Joint Review Board with a report detailing the cause of, and procedure or steps for correcting such failure. | ||
9.05.03 | Correct such failure utilizing the procedures and steps consented to by the Joint Review Board and within a timeframe mutually agreed to by the Joint Review Board. | ||
9.05.04 | Provide the Joint Review Board with reasonable evidence that reasonable steps have been taken to avoid a recurrence of the issue giving rise to the inquiry. | ||
In the event Accretive does not correct the failures as required by Section 9.05.03 within the timeframe designated by the Joint Review Board, then Ascension Health may deem Accretive in material breach of this Agreement and may |
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terminate the Affiliate Schedule for any Affiliate negatively impacted by such failure upon 180 days written notice. |
11.01.01 | Accretiveβs ability to timely and satisfactorily provide the Services; | ||
11.01.02 | Security protocols established to protect Ascension Health Data from unauthorized or unlawful access, use, or disclosure; and | ||
11.01.03 | Privacy practices in place to protect Ascension Health Data from unauthorized or unlawful use or disclosure. |
11.02 | On request of Ascension Health, Accretive shall conduct a self-assessment, in the form provided by Ascension Health, of its provision of Services and its privacy |
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and security practices. The self-assessment shall not be counted as an audit for purposes of Article 22. The self-assessment shall not be required more frequently than annually, provided, that if Ascension Health identifies material deficiencies in a self-assessment, it may request a follow- up self-assessment more frequently than annually to verify correction. |
11.03 | For the term of this MSA, Accretive shall continue to utilize the security protocols and privacy standards in place at each Service Location within 60 days of the adoption of the security protocol by the parties. Accretive shall, prior to implementation, supply Ascension Health with all material revisions to its security protocols and privacy practices for any or all Service Locations. If Ascension Health reasonably believes that such modifications will likely result in an increased risk of unauthorized or unlawful access, use, or disclosure of Ascension Health Data, Ascension Health may provide Accretive with its written objections to the revisions which objections will specify the details of the objection. Accretive shall, upon receipt of an objection from Ascension Health either: (i) modify the revisions to Ascension Healthβs reasonable satisfaction; (ii) move the provision of Services to a Service Location where Ascension Health has not objected to the security protocols or security practices; or (iii) refer the matter to the Joint Review Board for guidance and resolution. |
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of this section, Ascension Health approval shall be deemed to be given for any subcontractor being utilized by an Affiliate as of the respective Affiliate Scheduleβs Effective Date (but only with respect to the services that such subcontractor is then providing). For the purposes of this MSA, third party agreements including obligations relating to the license of software, use of software application service providers and third party service providers (e.g. collection agencies, disability vendors) where Accretive retains discretion and responsibility for outcomes are not subcontractors under this Section 12.03, provided, however, that vendors under such third party agreements shall constitute subcontractors for purposes of Section 30.02.03. |
13.01 | The partiesβ obligations and performance under this MSA shall be overseen by a joint review board (βJoint Review Boardβ) which will be responsible for oversight of the MSA, including reviewing strategic issues and resolving disputes between the parties. The Joint Review Board shall be composed of three (3) senior executives from each of Ascension Health and Accretive. The Joint Review Board will meet on a periodic basis as mutually agreed to by the parties. |
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including any related documentation in Affiliateβs possession (the βAffiliate Third Party Softwareβ); provided, however, that Accretive may not decompile or reverse engineer the Affiliate Software. As of the applicable Affiliate Effective Date, (i) Affiliate shall, [**] provide Accretive with access to the Affiliate Proprietary Software in the form in use by Affiliate as of the applicable Affiliate Effective Date and (ii) Accretive, as part of the Services, shall compile and, as changes are made, update a list of Affiliate Proprietary Software in use at that time pursuant to the applicable Affiliate Schedule. Upon expiration of the applicable Affiliate Schedule or termination of this MSA or the applicable Affiliate Schedule for any reason, the rights granted to Accretive in this Section 14.01 shall immediately revert to Affiliate and Accretive shall, at no cost to Affiliate, (x) deliver to Affiliate a current copy of (aa) the list of Affiliate Software in use as of the date of such expiration of the applicable Affiliate Schedule or the termination of this MSA or the applicable Affiliate Schedule and (bb) all of the Affiliate Software (including any related source code in Accretiveβs possession) in the form in use as of the effective date of such expiration of the applicable Affiliate Schedule or termination of this MSA or the applicable Affiliate Schedule and (y) destroy or erase all other copies of the Affiliate Software in its possession or the possession of Accretive and Accretive Agents unless otherwise instructed by Affiliate. |
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14.04 | Accretive Ownership of its Intellectual Property. Accretive shall have and retain all right, title and interest, including ownership of copyrights, patents, trade secrets and other intellectual property rights in and to methods, processes, techniques, strategies, materials, images, prototypes, software, source and object code and related materials that are developed by Accretive, or its subcontractors, including any modifications to, or derivative works or enhancements of, materials owned or licensed by Accretive and any tools, utilities, prototypes, models, processes, methodologies and other such materials that are developed, enhanced or improved by Accretive or any of its subcontractors or employees, which relate to the performance of the Services, or any modification of the Services to be provided under this MSA. Ascension Health and Affiliates acknowledge that all of this work is Accretive Healthβs intellectual property, none of this work is βwork for hireβ and that they have no rights to the intellectual property developed by Accretive and its agents, principals, employees, subcontractors and delivery partners, except as otherwise provided for herein. | ||
14.05 | Each party will protect the other partyβs intellectual property and confidential information with the same care and diligence as it would use to protect its own intellectual property and confidential information. Each party will take all necessary and appropriate steps to safeguard the otherβs intellectual property and confidential information by employees, former employees, vendors, affiliates and others to whom they have directly, or indirectly, made confidential information available. Information that is available to the public through no breach of confidentiality obligations, that was independently developed, or that was previously possessed will not constitute confidential information. |
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16.01 | Accretive shall be responsible for, and shall pay any costs associated with, obtaining all consents, approvals, authorizations, notices, requests, and acknowledgements of third parties other than legal fees which might be incurred by Affiliate which have not been approved in advance, necessary to implement the terms of this agreement and the Affiliate Schedule as of the Affiliate Effective Date of each Affiliate Schedule (βConsentsβ); provided that Affiliate is responsible to pay any costs associated with: (i) bringing any item into compliance with its contractual terms at the time of initial transfer to Accretive, including paying for any undocumented usage; (ii) Consents for Accretiveβs use of the Affiliate Software, Affiliate Machines, and the services under Affiliateβs third party service contracts (including Retained Resource Agreements) which are used to provide the Services to the extent the foregoing are not listed in an Affiliate Schedule on the Affiliate Effective Date. Each party shall cooperate with the other in obtaining the Consents. If a Consent is not obtained by the party responsible for it after using commercially reasonable efforts, then, unless and until such Consent is obtained, Accretive shall determine and promptly adopt, subject to Affiliateβs prior written approval, such alternative approaches or workarounds as are commercially reasonable under the circumstances in order to provide the Services to the extent that same can be provided without such Consents. |
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commences to provide services for payment of such alternate source, for a period not to exceed thirty (30) days. |
18.03.01 | Affiliates commencing services after the Master Renewal date: In-Scope Revenue based on the twelve (12) month period preceding the commencement of services. | ||
18.03.02 | Affiliates commencing services within the twelve (12) months prior to the Master Renewal Date: In-Scope Revenue based on the twelve (12) month period preceding the commencement of services. | ||
18.03.03 | All other Affiliates: In-Scope Revenue based on the twelve (12) month period preceding the Master Renewal Date. |
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adjustment pursuant to this Section 18.08, Accretive shall advise Ascension Health in writing and adjust the Fees retroactive to the effective date of the more favorable agreement. Ascension Health may from time to time request Accretive to certify that the terms of this Section 18.08 have not been contradicted by any transaction entered into by Accretive since the date of the most recent written notice provided by Accretive pursuant to this Section 18.02. If Accretive is unable to provide such written notice because of a transaction entered into by Accretive contradicting this Section 18.08, Accretive shall offer to Ascension Health an adjustment to the financial and other terms of this MSA consistent with the terms of this Section 18.08 retroactive to the effective date of the more favorable agreement. |
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reason. Accretive shall not withhold any reimbursement owed to Affiliate under Article 5.03 for any reason. Ascension Health and the respective Affiliate may withhold such portion of the Additional Fees as may be authorized by the Joint Review Board. |
20.01 | The fees paid to Accretive are inclusive of any applicable sales, use, personal property, or other taxes attributable to periods on or after the applicable Affiliate Effective Date based upon or measured by Accretiveβs cost in acquiring or providing equipment, materials, supplies, or services furnished or used by Accretive in performing or furnishing the Services, including without limitation, all personal property and use taxes, if any, due on Accretive Machines. | ||
20.02 | Affiliate will also be responsible for paying all personal property or use taxes due on or with respect to Affiliate Machines and Software. | ||
20.03 | Ascension Health, each Affiliate and Accretive each shall bear sole responsibility for all taxes, assessments, and other real property-related levies on its owned or leased real property. | ||
20.04 | To the extent the parties believe the circumstances warrant, Ascension Health and Accretive shall cooperate to segregate the Fees into the following separate payment streams: (a) those for taxable Services, (b) those for nontaxable Services, (c) those for which a sales, use, or other similar tax has already been paid, and (d) those for which Accretive functions merely as a paying agent for Affiliate in receiving goods, supplies, or services (including leasing and licensing arrangements) that otherwise are nontaxable or have previously not been subject to tax. In addition, Ascension Health, Affiliates and Accretive shall reasonably cooperate with each other to more accurately determine each partyβs tax liability and to minimize such liability to the extent legally permissible. |
21.01 | It is anticipated that, as a result of the operational improvements implemented by Accretive with the support of the Affiliates, certain efficiencies in staffing requirements for the operation of the Affiliate revenue cycle will be realized. These staffing efficiencies will be facilitated and enhanced to the extent that certain operational functions can be performed through the Shared Services Operating Model (as more fully described in the Operating Protocols). In the |
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event that these staffing efficiencies are realized during the course of operations, the Affiliate shall receive a credit against the Base Fee expense as follows: |
[**]. |
21.02 | It is anticipated that the adoption of the Shared Services Operating Model will produce significant operating efficiencies with respect to the operation of the Affiliateβs revenue cycle. In the event that the revenue managed by Accretive on behalf of Affiliates using the Shared Services Operating Model described above exceeds $[**], the percentage of Revenue Improvement (as defined in the Operating Protocols) paid to Accretive Health as Additional Fees for subsequent quarters by Affiliates participating in the shared services model shall be reduced to [**]. | ||
21.03 | Accretive Health shall prepare a cost savings projection for each Affiliate adopting the Shared Services Operating Model in accordance with the procedures set forth in the Operating Protocols. Accretive [**] each Affiliate adopting the Shared Services Operating Model that it will achieve [**]% of the cost savings projected for that Affiliate provided that the Affiliate provides its full support and cooperation with respect to the transition to, and operations under, the Shared Services Operating Model. | ||
The [**] cost savings contemplated by this Section 21.03 are predicated on the partiesβ mutual assumption that the shared services will be provided in a manner which may rely on both domestic and non-domestic resources to deliver the Services (βBlended Shore Resourcesβ as described in the Operating Protocols). In the event that Ascension Health adopts a policy which precludes the use of Blended Shore Resources, Accretive Health shall honor these policies and the [**] cost savings contemplated by this MSA shall be null and void. Further, in the event that Ascension Health adopts such a policy, Ascension Health shall be responsible for the cost incurred by Accretive to transition services being performed by Blended Shore Resources to shared service centers which are staffed exclusively by domestic resources. |
22.01 | Upon reasonable notice from Ascension Health, Accretive and Accretive Agents, shall provide such auditors and inspectors as Ascension Health may designate in writing with access to the Service Locations, Accretive Employees, reports, security procedures/protocols and information used by Accretive to deliver the Services for the purpose of performing audits or inspections of the Services and the business of Ascension Health. With respect to any audit or inspection of the Services, Accretive shall have the right to approve the auditor or inspector (but shall not unreasonably withhold such approval) and to demand appropriate protections against disclosure of its intellectual property. Accretive shall provide, and cause Accretive Staff and Accretive Agents to provide, such auditors and inspectors any reasonable assistance that they may require. If any audit by an auditor designated by Ascension Health or a Governmental or Regulatory |
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Authority results in Accretive being notified that it, Accretive Staff or Accretive Agents are not in compliance with any law, regulation, audit requirement, the MSA or generally accepted accounting principle relating to the Services, Accretive shall take actions to comply with such audit. |
22.02 | Fees. Upon reasonable notice from Ascension Health, Accretive shall provide Ascension Health and Ascension Healthβs agents with access to such financial records and supporting documentation as may be reasonably requested by Ascension Health which are reasonably necessary to audit Fees charged Affiliates and Ascension Health may audit the Fees charged to Affiliates to determine that such Fees are accurate and in accordance with this MSA or continues to represent the fair market value for the Services. With respect to any such audit of the Fees charged by Accretive, Accretive shall have the right to approve the auditor (but shall not unreasonably withhold such approval) and to demand appropriate protections against disclosure of its intellectual property. If, as a result of such audit it is determined Accretive has overcharged Ascension Health and Affiliates, Ascension Health shall notify Accretive of the amount of such overcharge and Accretive shall promptly pay to the respective Affiliate the amount of the overcharge net of any undercharges. In the event any such audit reveals an overcharge net of undercharges to Ascension Health and Affiliates during any twelve (12)-month period preceding the audit in excess of 5% of the audited amount, Accretive shall reimburse Ascension Health for the reasonable cost of such audit and shall pay Interest calculated from the date of receipt by Accretive of the overcharged amount until the date of payment to Affiliate. In the event any such audit reveals that the Affiliate has been undercharged by Accretive Health, the amount of the undercharge shall be added to the next regular invoice to be provided to Affiliate and shall be paid in the ordinary course of business. |
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Accretive. Upon the written request of Ascension Health, Accretive shall provide any relevant assurances to such agencies, regulators or securities exchanges, and shall subject itself to any required examination or regulation by such agencies, regulators or securities exchanges; and shall make any required regulatory corrections. Accretive acknowledges and agrees it shall be subject to examination by the relevant federal regulatory authorities (i.e., DHHS) pursuant to the Health Insurance Portability and Accountability Act of 1996 and other relevant laws with respect to certain of the Services. |
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restrictions on Ascension Health by virtue of its tax-exempt status and the federal law relating to physician referrals. If at any time, as a result of the enactment of a new statute, the issuance of regulations, or otherwise, either party receives a written opinion of counsel that there is a substantial risk that, as a result of this Agreement, either party does not comply with applicable law or that a party would be legally precluded from billing a third party payor for services ordered by a physician, then the parties shall use good faith efforts to reform this Agreement in such a manner so that it complies with applicable law or does not preclude Ascension Health from billing a third party payor, as applicable. If, after the exercise of such good faith efforts for a period of at least thirty (30) days, the parties have not agreed on amendment(s) to this Agreement that resolve the legal issues referred to above, then the party(s) whose receipt of a legal opinion triggered renegotiation may terminate this Agreement upon at least sixty (60) days written notice to the other party. |
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applicable permits and licenses required of Accretive in connection with its obligations under this MSA. |
23.09 | Ascension Healthβs sole purpose of this arrangement is to establish a legally compliant, fair market value and commercially reasonable arrangements so that the Affiliates can better serve the community in compliance with all applicable laws, regulations and authority. It is the intent and desires of the parties that all Services, specifically including billing and collection services, are rendered in a legally compliant manner, consistent with all applicable billing and coding regulations and guidelines. | ||
23.10 | As it proceeds and continues with the delivery of the Services, Accretive may review the billing, coding and collection practices of each Affiliate in an effort to further compliance with all applicable authority. Each Affiliate will reasonably cooperate with these respective reviews. In the event Accretive identifies issues that may or may not be consistent with relevant authority, Accretive will promptly review such issues within the parameters of the respective Affiliateβs Corporate Responsibility Program. | ||
23.11 | Accretive represents and warrants that none of its stockholders are, directly or indirectly, a physician or immediate family member of a physician on the medical staff of any of the Affiliates. For purposes of this provision, the terms βphysicianβ and βimmediate family memberβ shall be defined pursuant to federal law and regulation at 42 U.S.C. Β§1395nn et seq. and 42 C.F.R. Β§411.350 et seq., respectively, or successor laws and regulations. Further, in the event that Accretive employs or otherwise contracts with such a physician or immediate family member, Accretive shall provide compensation to such individual that is fair market value for services and items actually provided and not determined in a manner that takes into account the volume or value of referrals or other business generated by the physician for the Affiliates. |
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by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party shall give prompt notice to the non-disclosing party of such order) and, except to the extent that local law provides otherwise, shall not apply with respect to information which (1) is developed by the other party without violating the disclosing partyβs proprietary rights, (2) is or becomes publicly known (other than through unauthorized disclosure), (3) is disclosed by the owner of such information to a third party free of any obligation of confidentiality, (4) is already known by such party without an obligation of confidentiality other than pursuant to this MSA or any confidentiality agreements entered into before the Effective Date between Ascension Health and Accretive, or (5) is rightfully received by a party free of any obligation of confidentiality. To the extent this MSA or any Affiliate Schedule contains more specific terms on the subject of security, then such specific terms shall apply in lieu of the general obligations set forth in this Section 24.01. |
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otherwise act in contravention of the confidentiality obligations imposed in this MSA or otherwise with respect to maintaining the confidentiality, proprietary nature, and secrecy of Privileged Work Product, Accretive shall not be liable for breach of such obligation. In such event, Accretive agrees to disclose only that information minimally required to be disclosed by such legal action. For purposes of this Section, Privileged Work Product shall mean certain documents, data, and databases created or provided to Accretive and Accretive Agents for Ascension Health or the Affiliate and all associated communications thereto. |
24.03 | Unauthorized Acts. Each party shall: |
24.03.01 | Notify the other party promptly of any material unauthorized possession, use, or knowledge, or attempt thereof, of the other partyβs Confidential Information by any person or entity which may become known to such party. | ||
24.03.02 | Promptly furnish to the other party full details of the unauthorized possession, use, or knowledge, or attempt thereof, and use reasonable efforts to assist the other party in investigating or preventing the recurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information. | ||
24.03.03 | Use reasonable efforts to cooperate with the other party in any litigation and investigation against third parties deemed necessary by the other party to protect its proprietary rights. | ||
24.03.04 | Except as provided in Section 24.03.06, promptly use reasonable efforts to prevent a recurrence of any such unauthorized possession, use, or knowledge of Confidential Information. | ||
24.03.05 | Except for modifications to the Services more fully described in Section 24.03.06, bear the cost it incurs as a result of compliance with this Section 24.03. | ||
24.03.06 | To the extent any change to prevent a recurrence of any such unauthorized possession, use or knowledge of Confidential Information requires a modification of the Services, such modification shall be approved by the Joint Review Board. |
25.01 | Affiliate represents and warrants that: |
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25.01.01 | Affiliate is a corporation duly incorporated, validly existing, and in good standing under the laws of its state of incorporation. | ||
25.01.02 | Affiliate has all requisite corporate power and authority to execute, deliver, and perform its obligations under the applicable Affiliate Schedule. | ||
25.01.03 | Affiliate is duly licensed, authorized, or qualified to do business and is in good standing in every jurisdiction in which a license, authorization, or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it except where the failure to be so licensed, authorized, or qualified would not have a material adverse effect on Affiliateβs ability to fulfill its obligations under the applicable Affiliate Schedule. | ||
25.01.04 | Affiliate has not disclosed impermissibly any Confidential Information of Accretive. | ||
25.01.05 | The execution, delivery, and performance of the Affiliate Schedule has been duly authorized by Affiliate and will not conflict with, result in a breach of, or constitute a default under any other agreement to which Affiliate is a party or by which Affiliate is bound subject to the acquisition of necessary consents and/or approvals required of Accretive as contemplated by this MSA. The Affiliate Proprietary Software, applicable to Affiliate, does not and will not infringe upon the proprietary rights of any third party (except to the extent such infringements result from: (a) modifications by Accretive or Accretive Agents, (b) breach of this MSA by Accretive, (c) Accretiveβs failure to use any new or corrected versions of any such Affiliate Proprietary Software provided by Affiliate, or (d) Accretiveβs failure to adhere to license, lease, or other agreement or specifications or instructions of which it has knowledge). | ||
25.01.06 | There is no outstanding litigation, arbitrated matter or other dispute to which Affiliate is a party which, if decided unfavorably to Affiliate, would reasonably be expected to have a material adverse effect on Accretiveβs ability to fulfill its obligations under this MSA. |
25.02 | Accretive represents and warrants that: |
25.02.01 | It is a corporation duly incorporated, validly existing, and in good standing under the laws of Delaware. | ||
25.02.02 | It has all requisite corporate power and authority to execute, deliver, and perform its obligations under this MSA. | ||
25.02.03 | Accretive is duly licensed, authorized, or qualified to do business and is in good standing in Michigan and every jurisdiction in which a license, authorization, or qualification is required for the ownership or |
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leasing of its assets or the transaction of business of the character transacted by it except where the failure to be so licensed, authorized, or qualified would not have a material adverse effect on Accretiveβs ability to fulfill its obligations under this MSA. | |||
25.02.04 | The execution, delivery, and performance of this MSA has been duly authorized by Accretive and will not conflict with, result in a breach of, or constitute a default under any other agreement to which Accretive is a party or by which Accretive is bound subject to the acquisition of necessary consents and/or approvals required of Ascension Health or an Affiliate as contemplated by this MSA. | ||
25.02.05 | Accretive has not disclosed impermissibly any Confidential Information of Ascension Health or any Affiliate. | ||
25.02.06 | The Accretive Proprietary Software does not and will not, and the Developed Software and the Services will not, infringe upon the proprietary rights of any third party (except to the extent such infringements result from: (a) modifications by Affiliate or Ascension Health Agents other than those authorized or required by Affiliate with knowledge of the infringement, (b) breach of this MSA by Ascension Health or Affiliate, (c) Affiliateβs failure to use any new or corrected versions of any such Accretive Proprietary Software, provided Affiliate is notified that use of such new or corrected version is necessary to avoid infringement, or (d) Affiliateβs failure to adhere to any license, lease, or other agreement or specifications or instructions of which it has knowledge). | ||
25.02.07 | There is no outstanding litigation, arbitrated matter or other dispute to which Accretive is a party which, if decided unfavorably to Accretive, would reasonably be expected to have a material adverse effect on Accretiveβs ability to fulfill its obligations under this MSA. | ||
25.02.08 | Accretive is not insolvent, is able to pay its bills as they become due and is financially able to meet its obligations under this MSA. | ||
25.02.09 | The Accretive Tools when integrated and interfaced with a respective Affiliates systems will continue to allow information necessary for operations to be communicated with Affiliates other systems. |
25.03 | Ascension Health represents and warrants that: |
25.03.01 | Ascension Health is a corporation duly incorporated, validly existing, and in good standing under the laws of its state of Missouri. | ||
25.03.02 | Ascension Health has all requisite corporate power and authority to execute, deliver, and perform its obligations under this MSA. |
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25.03.03 | Ascension Health has not disclosed impermissibly any Confidential Information of Accretive. | ||
25.03.04 | Ascension Health is duly licensed, authorized, or qualified to do business and is in good standing in every jurisdiction in which a license, authorization, or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it except where the failure to be so licensed, authorized, or qualified would not have a material adverse effect on Ascension Healthβs ability to fulfill its obligations under this MSA. | ||
25.03.05 | The execution, delivery, and performance of this MSA has been duly authorized by Ascension Health and will not conflict with, result in a breach of, or constitute a default under any other agreement to which Ascension Health is a party or by which Ascension Health is bound subject to the acquisition of necessary consents and/or approvals required of Accretive as contemplated by this MSA. |
26.01 | Joint Review Board. Either party may, upon notice from any member of the Joint Review Board request a review before the Joint Review Board. If a party elects to use the procedure set forth in this Section 26.01, the other party shall participate. The review will occur no more than ten (10) business days after a party serves notice to use the procedure set forth in this Section 26.01 and such meeting may occur telephonically. Each party may include such professionals as it may deem appropriate and useful in making its presentation to the Joint Review Board. If the matter cannot be resolved at such meeting, the parties shall submit the dispute to arbitration pursuant to Section 26.03. | ||
26.02 | Admissibility. Proposals and information exchanged during the informal proceedings described in Sections 26.01 between the parties shall be privileged, confidential, and without prejudice to a partyβs legal position in any formal proceedings. All such proposals and information, as well as any conduct during such proceedings, shall be inadmissible in any subsequent proceedings for any purpose (but this Section 26.02 shall not be construed to render confidential, inadmissible, or non-discoverable any otherwise admissible documents or other |
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evidence merely because they were referred to, transmitted, or otherwise used in any such informal proceedings). |
26.03 | Arbitration. Any dispute which is not resolved by the Joint Review Board shall, except as otherwise provided in this MSA, be finally settled by arbitration, conducted on a confidential basis, under the US Arbitration Act, if applicable, and the then-current Commercial Dispute Resolution Procedures (βRulesβ) of the American Arbitration Association (βAssociationβ) strictly in accordance with the terms of this MSA and the laws of the State of Missouri, excluding its principles of conflicts of laws. To the extent permitted by the Association rules, all parties direct that any arbitration be held on an expedited basis. | ||
All arbitration hearings shall be held in St. Louis, Missouri. The arbitration decision shall be majority vote of a panel consisting of three arbitrators. Each party shall select one arbitrator within thirty (30) days after the delivery of the demand for arbitration is made, and the third arbitrator shall be selected by the two arbitrators so chosen within thirty (30) days after the delivery of the demand for arbitration is made. If one or more arbitrator(s) is not selected within the permitted time periods, the missing arbitrator(s) shall be selected in accordance with Rule 13 of the Rules. All arbitrators shall be licensed practicing attorneys, shall have no conflicts, and shall be knowledgeable in the subject matter of the dispute. Each arbitrator shall have experience and education which qualify him or her to competently address the specific issues to be designated for arbitration. Each party shall bear its own costs of the arbitration and one-half of the arbitratorsβ costs. The arbitrators shall apply Missouri substantive law and the Federal Rules of Evidence to the proceeding. The arbitrators shall have the power to grant all legal and equitable remedies and award compensatory damages provided by Missouri law, subject to the limitations set forth in this MSA; provided, however, the arbitrators shall not have the power to amend this MSA, award punitive or exemplary damages, or award damages in excess of the limits contained in the MSA. The arbitrators shall prepare in writing and provide to the parties an award, including factual findings and the reasons on which the decision is based. The arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected for any such error. | |||
Any award shall be paid within thirty (30) days of the issuance of the arbitratorsβ decision. If any award is not paid within thirty (30) days, any party may seek entry of a judgment in state or federal courts located in the State of Missouri in the amount of the award. | |||
Neither party shall be excluded from seeking provisional remedies in the courts of competent jurisdiction, including but not limited to, temporary restraining orders and preliminary injunctions, but such remedies shall not be sought as a means to avoid or stay arbitration. THE PARTIES IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY. THE REQUIREMENT OF ARBITRATION SET FORTH IN THIS ARTICLE SHALL NOT APPLY IN THE EVENT THAT THERE IS THIRD PARTY JOINDER BY EITHER PARTY OR A THIRD PARTY INSTITUTES AN ACTION AGAINST ANY PARTY TO THIS |
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AGREEMENT, AND SUCH THIRD PARTY IS NOT AMENABLE TO JOINDER IN THE ARBITRATION PROCEEDINGS CONTEMPLATED BY THIS ARTICLE. |
27.02.01 | The party seeking to address an area of concern shall give written notice to the party whose conduct has breached or frustrated the Agreement. | ||
27.02.02 | The breaching party shall be given thirty (30) days within which to satisfactorily address the concern and begin implementation of the agreed upon course of action. If necessary under the circumstances and consented to by the non-breaching party (which consent shall not be unreasonably withheld), the complete implementation of the agreed upon course of action may take more than thirty (30) days but may not exceed one hundred twenty (120) days. | ||
27.02.03 | If the breaching party fails to comply with the agreed upon course of action on the appropriate timetable, the other party may request a meeting of the Joint Review Board to discuss the failure to comply and termination. That meeting will be held promptly upon request. If it is determined by the Joint Review Board that the agreed upon course of action has not been undertaken then the non-breaching party shall be authorized to issue a notice of termination for cause. | ||
27.02.04 | Upon the issuance of a notice of termination for cause the Joint Review Board shall meet to discuss the steps required to facilitate an orderly transition in connection with the termination and shall agree upon a transition plan which shall address timing, employee |
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communication, reconciliation of fees, allocation of transition costs, licenses for continued use of Accretiveβs Proprietary Software, and related issues. | |||
27.02.05 | Any disputes which arise during these procedures, and can not be resolved by good faith dialogue among the parties, shall be resolved by Arbitration (under the expedited arbitration rules of the American Arbitration Association) as provided for above, or by such other method mutually agreed upon by the parties. |
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29.01 | Upon receipt of an expiration or termination notice of this MSA or an Affiliate Schedule or termination of this MSA or any Affiliate Schedule for any reason: |
29.01.01 | Accretive shall provide the Termination Assistance Services in accordance with Article 28; | ||
29.01.02 | If the MSA or an Affiliate Schedule is terminated by Ascension Health for cause, pursuant to Section 27.01, or pursuant to Section 27.03, then: |
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29.01.02.01 | Accretive shall assign and transfer to Ascension Health or one or more Affiliates, at [**], all Accretive Machines and other physical assets owned by Accretive and used at the terminated Affiliate(s) in performing the Services. | ||
29.01.02.02 | Accretive shall grant to Affiliate a license or sublicense to use and maintain for its and the terminated Affiliates internal business purposes, the [**] for a license fee payable by Affiliate equal to [**]. | ||
29.01.02.03 | Affiliate shall relinquish any right to receive any Performance Guaranty payment to which it might be entitled at the time of the Termination. |
29.01.03 | If the MSA or an Affiliate Schedule is terminated for any reason other than as set forth in Section 29.02.02: |
29.01.03.01 | Accretive shall assign and transfer to Ascension Health or one or more of the Affiliates all Accretive Machines and other physical assets owned by Accretive and used at the terminated Affiliate(s) in performing the Services and Ascension Health [**] Accretive Machines and physical assets so transferred on the date of transfer. [**] shall be mutually determined by Ascension Health and Accretive and if they cannot agree within forty (45) days, then by an independent appraiser to be mutually selected by Ascension Health and Accretive. | ||
29.01.03.02 | Accretive shall grant to each Affiliate for whom Services are being terminated a license or sublicense to use and maintain for its and the terminated Affiliates internal business purposes, the [**] review and adjustment by mutual agreement of Accretive and Ascension Health [**] from the MSA Effective Date. |
29.01.04 | The parties shall cooperate in the development and execution of an orderly Exit Transition Plan which protects the right of each party to performance through the Final Service Date, timely payment for Services and the protection of its physical and intellectual property rights, subject to the provisions of this MSA. | ||
29.01.05 | Upon Ascension Healthβs request, Accretive shall transfer or assign to Ascension Health or its designee any agreements applicable to Services being provided to Ascension Health or Affiliates, on terms and conditions acceptable to both parties (Accretive and Ascension Health) and subject to the payment by Ascension Health of any |
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transfer fee or nonrecurring charge imposed by the applicable vendors. | |||
29.01.06 | Notwithstanding the prohibition of paragraph 33.03 below, Ascension Health or the Affiliates may offer employment to Accretive Staff who perform Services exclusively for Affiliates at the time of the issuance of the notice of termination, other than the Key Accretive Staff. Accretive shall provide reasonable assistance to facilitate the communication of these offers of employment to its employees (e.g., providing names, resumes and other information reasonably requested by Ascension Health to the extent permissible by law and any contract). Accretive shall waive, any non-compete or other restrictive rights it may have with respect to those employees. |
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30.01.01 | That the Affiliate Software, or any other resources or items provided to Accretive by the Affiliate, its employees, or Ascension Health Agents infringe upon the proprietary rights of any third party (except to the extent such infringements as may result from: (a) modifications by Accretive or Accretive Agents, (b) breach of this MSA by Accretive, (c) Accretiveβs failure to use any new or corrected versions of any allegedly infringing item provided by Affiliate, or (d) Accretiveβs failure to adhere to any applicable license, lease, or other agreement, or specifications or instructions of which it has knowledge). | ||
30.01.02 | Relating to any duties or obligations of the Affiliate, its employees, or agents accruing before the respective Affiliate Effective Date, or imposed on Affiliate, its employees, or agents under this MSA and/or an Affiliate Schedule at any time after the respective Affiliate Effective Date to a third party that is not a Related Entity of Affiliate. | ||
30.01.03 | Occurring at an Affiliate Service Location if not caused by the acts or omissions of Accretive. | ||
30.01.04 | Relating to Affiliateβs failure to obtain those Consents for which it is responsible. | ||
30.01.05 | Caused by the material inaccuracy or untruthfulness of any representation or warranty made by Affiliate under Section 25.01 of this MSA. | ||
30.01.06 | Relating to (a) a violation of Federal, state, or other laws or regulations for the protection of persons or members of a protected class or category of persons by Affiliate, its employees, or agents and (b) discrimination or harassment by Affiliate, its employees, or agents, and (c) work-related injury except as may be covered by Affiliateβs workersβ compensation or death caused by Affiliate, its employees, or agents; and (d) any Claim of wrongful termination or other employment related claim arising as a result of Affiliateβs conduct; and (e) any claim of unfair labor practice, arbitrations, breaches of collective bargaining agreements arising as a result of Affiliateβs conduct. | ||
30.01.07 | Relating to violations by Affiliate of its obligations, representations and warranties under this MSA which are not caused or directed by Accretive, or which arise out of Accretiveβs delivery of Services pursuant to the billing, coding and collection policies, practices and procedures of Affiliate as of the Affiliate Effective Date (except to the extent of Accretiveβs negligence in providing such Services), including costs, claims, liabilities, expenses, penalties and other sanctions (including those arising as a result of a False Claims Act and/or qui tarn action) arising from Accretive or Accretive Agentβs |
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failure to comply with any law, regulation, authority, or contractual obligations relating to the coding and billing of health care services (including but not limited to any Federal Health Care Program services). |
30.01.08 | Relating to any amounts, including taxes, interest, and penalties, assessed against Accretive which are the obligations of Affiliate pursuant to Article 20. | ||
30.01.09 | Relating to any Claim by, on behalf of, or related to the Contract Employees arising out of, related to, or in anyway connected with their employment prior to the Affiliate Effective Date. | ||
30.01.10 | Relating to any Claim arising as a result of any action or failure to act by Affiliate pursuant to Section 5.05. | ||
30.01.11 | Affiliate shall indemnify Accretive from any reasonable costs and expenses (excluding reasonable attorneyβs fees) incurred in connection with the enforcement of this Section 30.01 against Affiliate. | ||
30.01.12 | Affiliates obligations under this Section 30.01 shall be capped at $25 million dollars. |
30.02.01 | That the Services, the Accretive Software, any modifications to Affiliate Software performed by Accretive, its employees, Accretive Staff, or Accretive Agents or any other resources or items provided to an Affiliate by Accretive, its employees, or Accretive Agents infringe upon the proprietary rights of any third party (except to the extent such infringements as may result from: (a) modifications by Affiliate or Ascension Health Agents other than those authorized or required by Accretive, (b) breach of this MSA by Ascension Health or the Affiliate, (c) an Affiliateβs failure to use any new or corrected versions of any allegedly infringing item provided by Accretive, provided the Affiliate is notified that use of such new or corrected version is necessary to avoid infringement, or (d) an Affiliateβs failure to adhere to any license, lease, or other agreement or specifications or instructions of which it has knowledge). | ||
30.02.02 | In respect of Services provided out of shared facilities by Accretive, Accretive Staff, or agents to a third party not caused by Ascension Health or an Affiliate. |
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30.02.03 | Relating to any duties or obligations of Accretive, its employees, Accretive Staff, or agents accruing after the respective Affiliate Effective Date in respect of any subcontractor of Accretive. | ||
30.02.04 | Caused by the material inaccuracy or untruthfulness of any representation or warranty made by Accretive, its employees, or Accretive Agents under Section 25.02 of this MSA. | ||
30.02.05 | Relating to Accretiveβs failure to obtain the Consents for which it is responsible. | ||
30.02.06 | Relating to (a) a violation of Federal, state, or other laws or regulations for the protection of persons or members of a protected class or category of persons by Accretive, its employees, Accretive Staff, or agents, (b) discrimination or harassment by Accretive, its employees, Accretive Staff, or agents, and (c) work-related injury except as may be covered by Accretiveβs workersβ compensation or death caused by Accretive, its employees, Accretive Staff, or Accretive Agents; (d) any Claim of wrongful termination arising as a result of Accretiveβs conduct; and (e) any claim of unfair labor practice, arbitrations, breaches of collective bargaining agreements arising as a result of Accretiveβs conduct. | ||
30.02.07 | Relating to any amounts including taxes, interest, and penalties assessed against Ascension Health or an Affiliate which are obligations of Accretive pursuant to Article 20. | ||
30.02.08 | Relating to violations by Accretive of its obligations which are not caused or directed by Affiliate, including costs, claims, liabilities, expenses, penalties and other sanctions (including those arising as a result of a False Claims Act and/or qui tarn action) arising from failure of Accretive, Accretive Staff or Accretive Agents to comply with any law, regulation, authority, or contractual obligations relating to the coding and billing of health care services (including but not limited to any Federal Health Care Program services). | ||
30.02.09 | Accretive shall indemnify Ascension Health or an Affiliate from any reasonable costs and expenses (excluding attorneyβs fees) incurred in connection with the enforcement of this Section 30.02. | ||
30.02.10 | Accretiveβs obligations under this Section 30.02 shall be capped at $[**] dollars. |
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30.03.01 | Relating to any duties or obligations of Ascension Health, its employees, or agents accruing either before the MSA Effective Date imposed on Ascension Health, its employees or agents under this MSA, or at any time after the MSA Effective Date to a third party that is not a Related Entity of Ascension Health. | ||
30.03.02 | Caused by the material inaccuracy or untruthfulness of any representation or warranty made by Ascension Health under Section 25.03 of this MSA. | ||
30.03.03 | Relating to (a) a violation of Federal, state, or other laws or regulations for the protection of persons or members of a protected class or category of persons by Ascension Health, its employees, or agents and or (b) discrimination or harassment by Ascension Health, its employees, or agents. | ||
30.03.04 | Relating to violations by Ascension Health of its obligations under this Agreement which are not caused or directed by Accretive, including costs, claims, liabilities, expenses, penalties and other sanctions (including those arising as a result of a False Claims Act and/or qui tarn action) arising from failure of Ascension Health to comply with any law, regulation, authority, or contractual obligations relating to the coding and billing of health care services (including but not limited to any Federal Health Care Program services). | ||
30.03.05 | Ascension Health shall indemnify Accretive from any reasonable costs and expenses (excluding attorneyβs fees) incurred in connection with the enforcement of this Section 30.03 against Ascension Health. | ||
30.03.06 | Ascension Healthβs obligations under this Section 30.03 shall be capped at $[**] dollars. |
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participate, through its attorneys or otherwise, in such investigation, trial, and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by the Indemnifying Party shall be entered into without the consent of the Indemnified Party which shall not be unreasonably withheld. After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense as provided in this Section 30.04, the Indemnifying Party may participate in such defense, at its sole cost and expense, and the Indemnified Party shall have the right to defend the Claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party. | |||
30.05 | Any Indemnified Party shall have the right to demand that any Indemnifying Party provide reasonable assurance that the Indemnifying Party is able to meet its financial obligations pursuant to these Indemnities including the ability to fund promptly at least $[**] in indemnified claims. |
31.01.01 | Commercially reasonable costs of recreating or reloading a partyβs information which is lost or damaged as a result of a partyβs breach of its obligations under this MSA; | ||
31.01.02 | Commercially reasonable costs of implementing a work around in respect of a failure to provide all or a portion of the Services or any part thereof; | ||
31.01.03 | Commercially reasonable costs of replacing lost or damaged equipment, software and materials; | ||
31.01.04 | Payments or penalties imposed by a regulatory agency for a partyβs failure to comply with deadlines which is not the result of a Force Majeure Event; | ||
31.01.05 | Claims, liabilities, expenses, penalties and other sanctions (including those arising as a result of a False Claims Act and/or qui tarn action) or commercially reasonable costs as a result of a partyβs failure to comply with any law, regulation, authority, or contractual obligations relating to the coding and/or billing of health care services including |
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but not limited to any Federal Health Care Program services which is not the result of a Force Majeure Event. |
32.01 | Insurance. During the Master Term, Accretive shall maintain at its own expense, insurance of the type and in the amounts specified below; |
32.01.01 | statutory workersβ compensation in accordance with all Federal, state, and local requirements, and employer liability in an amount not less than $[**] per occurrence: | ||
32.01.02 | commercial general liability (including contractual liability insurance) in an amount not less than $[**] per occurrence; | ||
32.01.03 | comprehensive automobile liability covering all vehicles that Accretive owns, hires, or leases in an amount not less than $[**] per accident (combined single limit for bodily injury and property damages); | ||
32.01.04 | umbrella excess liability applying above the employerβs liability, commercial general liability and comprehensive automobile liability described above in an amount not less than $[**] per occurrence/accident. |
32.02 | During the Master Term, Ascension Health and or Affiliates shall maintain at their own expense, insurance or self-insurance of the type and in the amounts specified below: |
32.02.01 | statutory workersβ compensation in accordance with all Federal, state, and local requirements, and employers liability in an amount not less than $[**] per occurrence; |
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32.02.02 | commercial general liability (including contractual liability insurance) in an amount not less than $[**] per occurrence; | ||
32.02.03 | comprehensive automobile liability covering all vehicles that Ascension Health or Affiliate owns, hires, or leases in an amount not less than $[**] per accident (combined single limit for bodily injury and property damages); | ||
32.02.04 | umbrella excess liability applying above the employerβs liability, commercial general liability and comprehensive automobile liability described above in an amount not less than $[**] per occurrence/accident. |
32.03 | Insurance Documentation. Each party shall furnish to the other party certificates of insurance or other appropriate documentation (including evidence of renewal of insurance) evidencing all coverage referenced above in Section 32.01 and 32.02 and naming the other party as an additional insured to the extent available on a commercially reasonable basis. Such certificates or other documentation will include a provision whereby thirty (30) daysβ notice must be received by the additionally insured party prior to coverage cancellation of the coverage by either the insuring party or the applicable insurer. Such cancellation shall not relieve the insuring party of its continuing obligation to maintain insurance coverage in accordance with this Article 32. | ||
32.04 | Accretive shall require each of its subcontractors to maintain at their own expense insurance of the types and in amounts commensurate with the scope of services to be performed, as determined by Accretive. | ||
32.05 | Each party shall be responsible for insuring the personal property which is in its care, custody or control and shall effect waivers of subrogation against the other party, its Related Entities, agents, and subcontractors and their employees. Each party shall assume all risk of loss or damage to the property which is in its care, custody, or control even if caused by the act or omission, including a negligent act or omission, of the other party, its Related Parties, agents and subcontractors and their employees. | ||
32.06 | Any insurance provided on a claims-made basis shall apply a retroactive date that precedes the Master Effective Date or the provision of Services. An extended reporting period must be purchased if the retroactive date is advanced or if the coverage is terminated and not replaced by another claims-made policy with the same retroactive date. |
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33.05.01 | In the case of Ascension Health: |
Xxxxxxx Xxxxxxxx Senior Vice President and Chief Financial Officer Ascension Health 0000 Xxxxxxxxx Xxxx Xx. Xxxxx, Xxxxxxxx 00000 |
||
with a copy to:
|
Xxxxxx X. Xxxxxxxxxx Senior Vice President and General Counsel 0000 Xxxxxxxxx Xxxx Xx. Xxxxx, Xxxxxxxx 00000 |
33.05.02 | In the case of Accretive: |
Xxxx Xxxxx Founder and Chief Executive Officer 000 X. Xxxxxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000 |
||
with a copy to:
|
Xxxx Xxxxxxxx Senior Vice President and General Counsel 000 X. Xxxxxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000 |
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] |
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ASCENSION HEALTH | HEALTHCARE SERVICES, INC. d/b/a | |||||||||
ACCRETIVE HEALTH | ||||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | By: | /s/ Xxxx Xxxxx | |||||||
1.
|
Accretive Service Locations | |
2.
|
Form of Affiliate Schedule | |
3.
|
Operating Protocols | |
4.
|
Termination License Fees | |
5.
|
Business Associate Agreement |
Accretive Service Locations
000 X. Xxxxxxxx Xxxxxx
00xx Xxxxx Xxxxxxx, XX 00000
Financial Clearance Center and
Medical Financial Solutions
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
BP Modeling
0000 Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Underpayment
000 X. Xxxxxxx X0X
Xxxxxxx, XX 00000
Location 1 β
Underpayments, Best Possible,
FCC Data Entry, Small Balance Team
000-000, Xxxxxxx Xxxxx,
Xxxxxx β 53,
Xxxxxxx, Xxxxx - 000000
Transcription, PFS,
FCC Payor Follow-up
C-110, Sector β 63
Xxxxx, Xxxxx - 000000
Exhibit 1 β Ascension MSA | 1/1/09 |
Form of Affiliate Schedule
1.01 | Definition. Unless otherwise defined herein, defined terms shall have the meaning ascribed to them in the Master Services Agreement. | ||
1.02 | Construction and Interpretation. This Affiliate Schedule shall be construed and interpreted as set forth in the Master Services Agreement. | ||
1.03 | Reference to Master Services Agreement. The βMaster Services Agreementβ means that certain contract between Ascension Health and Accretive, dated November ___, 2007, as has been or may be amended, modified, supplemented, revised, or restated by Ascension Health and Accretive in the future. This Affiliate Schedule hereby incorporates the Master Services Agreement as it currently exists and as may exist in the future. | ||
1.04 | Changes. The Master Services Agreement and each of its provisions may be amended, modified, supplemented, revised, or restated, as agreed by and between Ascension Health and Accretive from time to time. Affiliate irrevocably agrees that all of the foregoing and any waiver by Ascension Health shall be binding upon Affiliate without any further agreement, consent or notice. Affiliate hereby |
irrevocably consents to Ascension Health acting on its behalf in such regard during the Affiliate Term. This Affiliate Schedule may be amended as agreed by and among Affiliate, Ascension Health, and Accretive from time to time. |
2.01 | Services. Pursuant to the Master Services Agreement, Accretive shall provide the Services to Affiliate for the Sites set forth in Appendix C. Accretive shall be the exclusive provider of Services as defined in the Master Services Agreement. Accretive agrees that it will not commence services outside the Standard Scope of Services without written confirmation from the Affiliate Designated Sponsor, that Accretive is authorized to proceed with the services. Notwithstanding this exclusivity, Affiliate shall have the option of utilizing a provider other than Accretive to provide it with services limited to the areas of CDM Review and Strategic Pricing provided that: |
(a) | Accretive is provided a fair opportunity to provide the services on terms comparable to those being offered by the alternative service provider; | ||
(b) | The alternative service provider must be a focused service provider in the particular area of services and can not be a firm which competes directly with Accretive in the delivery of revenue cycle services. | ||
(c) | The work of the alternative service provider is coordinated with the Accretive team to avoid overlap and assure coordination of services. |
2.02 | Affiliate Effective Date. The term of this Affiliate Schedule shall commence on [____________] (such date the βAffiliate Effective Dateβ) and continue until the expiration of the Affiliate Term. | ||
2.03 | Affiliate Environment Specifications. The particular specifications relating to Affiliateβs environment and relevant to the provision of the Services are set forth as follows: |
2.03.01 | Those employees of Affiliate that are Contract Employees are set forth in Appendix H. Those employees that will be leased from Affiliate by Accretive and the reimbursement for each such employee to be paid by Accretive to Affiliate (βEmployee Lease Paymentsβ) are set forth in Appendix H. This roster shall be reviewed and adjusted on a monthly basis. Accretive shall pay to Affiliate the Employee Lease Payments on or before the first day of each month. | ||
2.03.02 | Affiliateβs Affiliate Machines are set forth in Appendix A. | ||
2.03.03 | Affiliateβs Assigned Agreements are set forth in Appendix E. | ||
2.03.04 | Affiliateβs Retained Resource Agreements are set forth in Appendix F. |
2.03.05 | The Accretive Service Locations from which Accretive will provide Services to Affiliate are set forth on Appendix G. The monthly occupancy expenses for which Accretive is to reimburse Affiliate are set forth in Appendix I (βOccupancy Reimbursement Paymentβ). Accretive shall pay to Affiliate the Occupancy Reimbursement Payment on or before the first day of each month. The Occupancy Reimbursement Payment shall be adjusted by a percentage equal to INFLATOR on each anniversary of the Affiliate Effective Date. | ||
2.03.06 | The Affiliate Service Locations from which Accretive will provide Services to Affiliate are set forth on Appendix B. | ||
2.03.07 | The Affiliate Roll-Out plan is set forth on Appendix K. |
3.01 | Fees. The Base Fee and Management and Technology Fee payable by Affiliate as established by the Base Case as set forth in Appendix D and pursuant to the Operating Protocols are $[_________] and $_________, respectively. |
4.01 | Consent to Process. All parties hereby consent to the Dispute Resolution Procedures set forth in the Master Services Agreement. Furthermore, Affiliate acknowledges and consents that it will institute all claims as between Affiliate and Accretive, through and in the name of Ascension Health, subject to the qualifications and rights set forth in the Master Services Agreement. |
5.01 | Right to Consultation. In the event that Accretive elects to consider delivering services to a client in close proximity to Affiliate which is identified by Affiliate as a competitor on Appendix J, Accretive agrees to consult with Affiliate before undertaking such a relationship. |
ACCRETIVE
|
ASCENSION HEALTH | |
Signature
|
Signature | |
Printed Name and Title
|
Printed Name and Title | |
Date
|
Date | |
AFFILIATE |
||
A | Affiliate Machines |
||
B | Affiliate Service Locations |
||
C | Sites |
||
D | Base Case |
||
E | Assigned Agreements |
||
F | Retained Resource Agreements |
||
G | Accretive Service Locations |
||
H | Contract Employees |
||
1 | Reimbursement for Occupancy Expenses |
||
J | Affiliate Competitors |
||
K | Roll-Out Plan |
||
L | Form Designation as Attorney in Fact |
(Affiliate) | ||||||
By: | |||||||
Its: | |||||||
Operating Protocols
Revised: 3/20/09
PROTOCOL | PAGE# | MSA REFERENCE | ||
Standard Scope of Services |
3 | Par. 3.02 | ||
Affiliate Roll Out Plan |
4 | Par. 4.01 | ||
Protocol for Adjustment of Employee Roster
and Compensation |
5 | Par 5.03 | ||
Affiliate Target Service Levels |
6 | Par 7.01.04, 10.01 | ||
Base Fee Methodology |
7 | Par 18.02 | ||
Determination of Revenue Improvement |
12 | Par 18.05, 19.02 | ||
Measurement for Performance
Improvement Not Captured by
Revenue Improvement |
21 | Par. 18.05, 19.02 | ||
Measurement Procedures |
23 | Articles 18 & 19 | ||
Performance Guaranty |
25 | Par. 19.06 | ||
Dormant Receivable Collections |
27 | Par. 18.8 | ||
Shared Service Blended Shore Operating Model |
29 | Par. 21.01 | ||
Mechanism for Determining and Sharing Cost
Savings |
31 | Par. 21.01 (c) | ||
Cost Savings Projections and [**] |
38 | Par 21.03 | ||
IT Access |
41 | n/a |
2
Revised: 3/20/09
β’ | scheduling | ||
β’ | on-site processes of pre-registration | ||
β’ | eligibility verification | ||
β’ | registration | ||
β’ | authorization | ||
β’ | admitting | ||
β’ | coding | ||
β’ | transcription | ||
β’ | record retention | ||
β’ | chart analysis and assembly | ||
β’ | billing | ||
β’ | secondary billing | ||
β’ | underpayment review | ||
β’ | denial management | ||
β’ | third party collections and self pay follow-up | ||
β’ | charge description master maintenance | ||
β’ | collection of dormant receivables | ||
β’ | lost charges/charge capture | ||
β’ | Finance and managed care analytical support as appropriate to support general operations |
β’ | Clinical documentation improvement | ||
β’ | Managed care contract negotiation | ||
β’ | CDM review | ||
β’ | Strategic pricing |
3
Revised: 3/20/09
A. | Time Frame: The Roll-out Plan will specify the date for the commencement of Services at the Affiliate and will address activities to be undertaken by each party during the first three months of the Services. | |
B. | Schedule of Leadership and Associate Communication Initiatives | |
C. | Schedule of Management and Staff Training and Development | |
D. | Prioritization and implementation plan for key process/technology initiatives which includes key dates | |
E. | Identification of Resources required and available to execute the Roll-out Plan and commencement of Services. | |
F. | Schedule for delivery of Affiliate financial data required to support the Best Possible measurement process. | |
G. | Agreement on any Affiliate-specific Service Level Targets as may be appropriate | |
H. | Identification of Applicable Policies affecting Financial Assistance and Billing Practices relating to the Uninsured. | |
I. | Protocol for System Access Requests | |
J. | Identification of Data Requests Necessary to Support Operations. |
4
Revised: 3/20/09
1. | As part of the start-up process for each Affiliate a roster of Contract Employees and their associated compensation shall be established (the βContract Employee Rosterβ) and shall become part of the Affiliate Agreement as Appendix H. | |
2. | The Contract Employee Roster shall be reviewed semi-monthly (i.e. two times each month) by the Accretive Site lead and the designee of Affiliate to assure the accuracy of the Contract Employee invoice and payment. | |
3. | Changes to the Contract Employee Roster and the rates of compensation shall be communicated on a timely basis as part of the review process discussed above. | |
4. | No later than thirty (30) days from the end of each quarter both parties will review and acknowledge in writing any changes to the Employee Roster and/or associated rates of compensation. Associated true ups will be carried forward to the next monthly billing cycle. |
5
Revised: 3/20/09

6
Revised: 3/20/09
1. | Base Fee. It is anticipated that each Affiliate will pay Accretive a base fee amount [**]. The parties will work collaboratively in an attempt to obtain accurate costs involved at each Affiliate with regard to these Services | |
2. | The [**] involved in the base fee are to include [**]. | |
3. | For purposes of this Section 2, [**]: |
[**] |
1. | βPaid Time Offβ (PTO) shall mean the time that a Contract Employee is paid by an Affiliate due to an excused absence. | |
2. | Each Affiliate has its own definition of what sort of absence qualifies for PTO. As such, this matter will be addressed and defined during the establishment of each Affiliateβs Base Fee. | |
3. | For all Affiliates with contract start dates subsequent to January 1, 2008: |
a) | PTO costs will be included in the Affiliateβs Base Fee using an βas incurredβ methodology. This methodology will recognize the PTO cost as earned by the employee using the Affiliateβs calculation method (policy) beginning at the inception of the contract. Consequently, all PTO related cost incurred or accrued by the Affiliate prior to the inception of the contract should not be included in the baseline calculation and should not be reimbursed by Accretive. | ||
b) | Accretive will reimburse Affiliates for PTO costs as they are incurred by the Affiliateβs employees. An allowance for PTO that is earned in the current period is added to each bi-weekly payroll like other overhead allocations. Payments to employees for PTO taken are deducted from the bi-weekly payrolls. Accretive does not reimburse the Affiliates for these amounts. |
4. | Affiliates with contract start dates prior to January 1, 2008 used different methods to account for PTO. If the Affiliate is not using the βas incurredβ methodology as set forth in 3 above, Accretive and the Affiliate will review the methodology used in determining the Base Fee and subsequent PTO payments and determine if retroactive recalculation of PTO costs using the βas incurredβ method is practical. |
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Revised: 3/20/09
a) | If the Affiliate agrees that retroactive recalculation is practical, Accretive will work with Affiliate to recalculate the PTO cost under the βas incurredβ method from the inception of the contract and make any adjustments to the baseline calculation and payroll reimbursement as needed. Subsequently, the βas incurredβ method should be applied and any remaining PTO balances or accrued PTO liabilities remaining with the client will be the responsibility of the client. |
5. | Under the βas incurredβ method there may be an instance where an employee will have earned PTO but due to the Affiliateβs policy or employeeβs actions the employee will have forfeited the right to receive payment or utilize the PTO. This instance most likely will occur when an employee continues to earn PTO after reaching the maximum allowable PTO balance and the Affiliate does not have a payout policy. This scenario is expected to be infrequent; but when it occurs, an adjustment to the payroll reimbursement from Accretive to the Affiliate will be necessary to avoid Accretive reimbursing the Affiliate for an expense that the Affiliate did not incur. | |
6. | PTO cost related to allocations such as human resources and information technology that contain FTEs as a component in the calculation will be based on the full time equivalent (FTE) classification of each employee per the Affiliateβs payroll records. The FTE classification approach will eliminate fluctuations in the allocation portion of the payroll reimbursement resulting from employees utilizing PTO. | |
7. | A change in FTE status due to employee reclassifications will impact the allocation reimbursement. When an employeeβs status is modified during the contract period Accretive Health finance will make an adjustment to the allocation reimbursement to reflect the change. To illustrate, the reimbursement for PTO cost for an employee that has been identified to be a full time equivalent (1 FTE) will be 100% of the eligible PTO benefit. In comparison, the reimbursement for PTO cost for an employee that has changed from a full time 1 FTE to a part time one-half (.5 FTE) will be 50% of the eligible PTO benefit. |
a) | The calculation of PTO cost per pay period for a full-time direct or allocated employee based upon a standard week of 40 hours consisting of five 8-hour workdays and a semi-monthly pay period is: |
b) | In this example the employee is entitled to 20 PTO days per year. This would equate to the following hours per pay period earned. |
c) | Under the βas incurredβ method of calculating direct employee PTO cost Accretive would reimburse the Affiliate for the actual hours worked by the employee for the pay period plus an additional 6.67 hours. Assuming an 80 hour |
8
Revised: 3/20/09
pay period Accretive would reimburse the Affiliate 86.67 hours (80 hours worked + 6.67 hours of accrued PTO). Conversely, if the employee utilizes 40 hours of PTO during a pay period consisting of 80 hours Accretive will reimburse the Affiliate for 46.67 hours (40 hours worked + 6.67 hours of accrued PTO). The Affiliate will not be reimbursed for the 40 hours of vacation utilized as Accretive has already reimbursed the Affiliate as the vacation was earned. |
a) | The calculation of PTO cost per pay period for a one half (.5 FTE) direct or allocated employee based upon a standard week of 40 hours consisting of five 8-hour workdays and a semi-monthly pay period is: |
b) | In this example a full time employee is entitled to 20 PTO days per year. However, since this employee is categorized as a one-half FTE (.5 FTE) the full time amount of PTO earned must be adjusted to properly reflect the percentage of the full-time work schedule. |
9
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Not Captured by Revenue Improvement
1. | Pricing changes. Accretive will provide recommendations for the implementation of targeted pricing changes on an annual basis based on both market sensitivity and revenue impact. |
Measurement approach. [**] |
2. | CDM Changes. Accretive will recommend and implement changes in the charge description master charges which produce an increase in Best Possible Compliant Revenue (for example changes in the CDM which for services currently rendered with no existing charge). |
Measurement approach. [**] |
3. | Lost charges. Accretive will implement processes which detect and capture lost charges so that they can be appropriately billed. |
Measurement approach. [**] |
10
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1. | The Best Possible implementation timeline outlined below is dependent upon timely delivery of requisite Best Possible data from the Affiliate. A mutually agreed to schedule for delivery of Affiliate financial data required to support the Best Possible measurement process and timeline will be developed prior to commencement of services as a component of the Affiliate Roll-out Plan. Failure of Affiliate to deliver the requisite financial data as mutually agreed may result in a corresponding delay to the Best Possible implementation timeline. | |
2. | Best Possible Base Line Yield for the [**] preceding the Affiliate Agreement effective date will be calculated and signed-off by both parties no later than [**] after the end of the first contract year (CY1). This timetable is dependent upon Affiliate providing the requisite data to support Best Possible measurement within the first [**] of CY1. |
a. | Accretive Health will implement the Best Possible measurement process and provide a draft scorecard and supporting database no later than [**] after receiving the requisite Affiliate financial data. |
[**] |
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1. | From the start of operations at the Affiliate Effective Date, the Affiliateβs cash collection will be measured quarterly, and compared to the Affiliateβs Historical Cash Collection Performance. The βHistorical Cash Collection Performanceβ shall be the lowest [**] aggregate cash collection over the [**] immediately preceding the Affiliate Effective Date. If the Affiliateβs actual cash collection for any of the first [**] following the Affiliate Effective Date, net of any surplus accumulated in the prior quarter(s) relative to the Historical Cash Collection Performance, is less than the Affiliateβs Historical Cash Collection Performance, then the difference (βthe Funding Shortfallβ) will be removed from the next Base Fee payment to be paid by the Affiliate to Accretive following the determination that a Funding Shortfall occurred in the prior quarter of operations. | |
2. | After the first [**], Accretive will be entitled to a refund of the Funding Shortfall to the extent that the next month, or subsequent month of Affiliateβs cash collection performance exceeds the Affiliateβs Historical Cash Collection Performance divided by [**] (βMonthly Historical Cash Collectionβ). The amount of the refund, to be credited against fees to be paid by Accretive to the Affiliate immediately after the improved performance, will be equal to the amount by which the Affiliateβs cash collection for the subsequent month exceeds the Affiliateβs Historical Cash Collection Performance, up to the amount of any outstanding Funding Shortfall. If the above amount does not equal the outstanding Funding Shortfall, then the above process can be repeated during the following months, up to the amount of the outstanding Funding Shortfall. If Accretive is entitled to a refund of a Funding Shortfall, then for the remainder of such quarter the Performance Guaranty shall be evaluated and paid on a monthly basis utilizing the Monthly Historical Cash Collection. | |
3. | After the first year of operations following the Affiliate Effective Date, to the extent that any Affiliateβs Cumulative Quarterly Cash Collections (as defined below) is less than such Affiliateβs Historical Cash Collections Performance, the difference will be removed from the Base Fee as per the process described above. Thereafter, Accretive shall be entitled to a credit against fees paid by Accretive to the Affiliate, on an Affiliate by Affiliate basis, as per the process described in the above section. Unless otherwise set forth in the Master Services Agreement, Ascension shall have no obligation to repay to Accretive any Funding Shortfall, provided that if Ascension terminates the MSA without cause or Accretive terminates the MSA for cause or for Good Reason, then Ascension must pay to Accretive an additional termination fee equal to the Funding Shortfall. For purposes of this Section 4, βCumulative Quarterly Cash Collectionsβ shall mean, for all quarterly time periods after the first full [**] calendar months from the respective |
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4. | Differences to be removed from the Base Fee to correct βFunding Shortfallsβ under this paragraph shall be capped at $[**] dollars) in aggregate, and at $[**] dollars) per individual Affiliate. βFunding Shortfallsβ which occur as a result of events outside Accretiveβs control (i.e. state Medicaid slows or suspends payments or Affiliate vendor conduct which causes delays in Medicare billing) shall be excused from this guaranty. |
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Revised: 3/20/09
1. | Dormant Receivables are defined in paragraph 1.01.29 of the MSA. | |
2. | Accretive shall also be paid a fee for its efforts in connection with the collection of Dormant Receivables. The Affiliateβs Share of Dormant Receivables shall be [**]% of the Net Proceeds from the Collection of Dormant Receivables. Net Proceeds from the Collection of Dormant Receivables shall be defined as the gross payments received as payment on any Dormant Receivable during the term of this Agreement, and for the twelve month period following the termination of this Agreement, less the Direct Costs of collection incurred by Accretive with respect to the Collection of Dormant Receivables. Direct Costs of collection shall include third party expenses and dedicated labor, dedicated technology and dedicated facility expenses. Direct Costs will be allocated to each Affiliate based on a combination of out-bound calls, collector conversations with patients, and legal costs incurred on behalf of that Affiliate during the applicable period. | |
3. | Accretive shall have the right to establish such accounts as may be necessary and appropriate to facilitate its efforts in connection with the collection of Dormant Receivables. Accretive shall have the right to accept payments on Dormant Receivables and to deposit those payments into the accounts created for that exclusive purpose. Payments deposited into those accounts shall not be commingled with funds from any other source other than the collection of Dormant Receivables. | |
4. | If Accretive Health receives funds from the collection of Dormant Receivables, then Accretive Health shall set-off the Direct Costs incurred against those proceeds prior to distribution of Affiliateβs share of the net proceeds. If Affiliate receives the proceeds from the Dormant Receivable program then Accretive Health shall be reimbursed for the Direct Costs incurred in connection with this program by the Affiliate and [**]. | |
5. | On or before the 25th of each month, Accretive Health shall provide Affiliate with a monthly statement reflecting the Direct Costs and Accretive Healthβs [**] of net proceeds resulting from activity in the prior calendar month. This invoice will be accompanied by appropriate statements that reflects, at the account level, the beginning balance, collections or other activity during the month, and the ending balance. | |
6. | A pro forma estimate of Direct Costs will be provided to Affiliate by Accretive and will be updated on a timely basis. Each Affiliate shall have the reasonable right to request an update of the pro forma estimate and to audit the Direct Cost allocations. | |
7. | Payments received on Dormant Receivables shall be excluded from the calculation of the improvement in net revenue yield realized as a result of Accretiveβs efforts and shall not be subject to any Additional Fees relating to the improvement in net revenue yield by Accretive, therefore preventing any duplicative recognition of revenue for purposes of determining fees. |
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β’ | Processes |
- Insurance verification | |||
- Patient education on coverages and patient obligation | |||
- Pre-Certification and Authorization | |||
- Collection of Residuals |
β’ | Impact |
[**] |
β’ | Process |
- Voice recognition software produces drafts | |||
- Transcriptionists correct drafts for completed product | |||
- Corrections fed back into software so physician specific voice logic is continually refined |
β’ | Impact |
[**] |
β’ | Process |
- All Payor Billing and Follow up | |||
- Payment Posting | |||
- Credit balance processing | |||
- Small balance processing | |||
- Denial management |
β’ | Impact |
[**] |
[**] | A total of one page was omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. |
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Start | Finish | |||
Financial Clearance |
||||
Transcription |
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Patient Financial Services |
||||
Financial Clearance
|
$ | |||
Transcription
|
$ | |||
Patient Financial Services
|
$ |
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Financial | Patient | |||||
Clearance | Financial | |||||
Center | Transcription | Services | ||||
Month 1 |
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Month 2 |
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Month 3 |
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Month 4 |
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Month 5 |
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Month 6 |
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Healthcare Services, Inc D/B/A Accretive Health |
[AFFILIATE} |
By: |
||||||||
Xxxx Xxxxxx | Chief Financial Officer | |||||||
Chief Financial Officer | ||||||||
Dated:
|
Dated: | |||||||
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Systems
|
Overall Reason for Access | Update/Read-only | ||
Patient accounting
system
|
Access patient residual balances, demographics etc charges, | Read-only for Front End functions and underpayments. | ||
Billing Editor
|
Access claim information to understand detailed charges and what has been submitted to payers | Update for PFS Read-only | ||
Admission,
Discharge, Transfer
System
|
To create a registration verifiable with patients through financial clearance function | Update | ||
Medical Records
Imaging systems
|
View online tool support underpayment appeals and denial management | Read-only | ||
Payer Websites
|
Understand patient eligibility, benefit structures etc for the purposes of validating underpayments and calculating residuals | Read-only | ||
Scheduling systems
|
Complete registrations with demographic, service and insurance information | Read-only |
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Revised: 3/20/09
23
1. | In the event that Affiliate elects to license the Accretive Health technology post- termination the licensing fee shall be $[**] per acute care hospital per year. | |
2. | This licensing fee shall in no event be greater than the fair market price for comparable technology in the marketplace. For purposes of this section, comparable technology shall mean technology that performs similar processes or functions creating similar output or results. | |
3. | The parties agree that in the event that Accretive has not implemented its full technology suite at a particular acute care hospital the post-termination licensing fee shall be adjusted for that acute care hospital to reflect the fair market price for those components which have been deployed. | |
4. | A license granted to an acute care hospital shall include those ancillary and affiliated facilities which were managed in conjunction with the acute care hospital during the period of Service. |
Revised: 3/20/09
Business Associate Agreement
1. | Definitions. For purposes of this Agreement, the following terms shall have the designated meanings, |
(a) | βAdministrative Safeguardsβ shall mean administrative actions, policies and procedures to manage the selection, development, implementation and maintenance of security measures to protect Electronic Protected Health Information and to manage the conduct of the Accretiveβs workforce in relation to the protection of that information. | ||
(b) | βAscension Healthβ shall mean: (i) Ascension Health; and (ii) Ascensionβs Health Ministries. | ||
(c) | βDesignated Record Setβ shall mean a group of records maintained by or for Ascension Health that is (i) the medical records and billing records about |
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Revised: 3/20/09
individuals maintained by or for Ascension Health, (ii) the enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; or (iii) used, in whole or in part, by or for Ascension Health to make decisions about individuals. As used herein, the term βRecordβ means any item, collection, or grouping of information that includes Protected Health Information and is maintained, collected, used, or disseminated by or for Ascension Health. |
(d) | βElectronic Protected Health Informationβ shall mean Protected Health Information that is transmitted or maintained in electronic media. | ||
(e) | βHIPAAβ shall mean the Health Insurance Portability and Accountability Act of 1996. | ||
(f) | βIndividually Identifiable Health Informationβ shall mean information that is a subset of health information, including demographic information collected from an individual, and |
(a) | is created or received by a health care provider, health plan, employer, or health care clearinghouse; and | ||
(b) | relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (a) identifies the individual, or (b) with respect to which there is a reasonable basis to believe the information can be used to identify the individual. |
(g) | βPhysical Safeguardsβ shall mean physician measures, policies and procedures to protect Accretiveβs electronic information systems and related buildings and equipment from natural and environmental hazards and unauthorized intrusion. | ||
(h) | βPrivacy Standardsβ shall mean the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Parts 160 and 164. | ||
(i) | βProtected Health Informationβ shall mean Individually Identifiable Health Information that is (i) transmitted by electronic media; (ii) maintained in any medium constituting electronic media; or (iii) transmitted or maintained in any other form or medium. βProtected Health Informationβ shall not include education records covered by the Family Educational Right and Privacy Act, as amended, 20 U.S.C. Β§ 1232g, or records described in 20 U.S.C. Β§ 1232g(a)(4)(B)(iv). | ||
(j) | βSecretaryβ shall mean the Secretary of the United States Department of Health and Human Services. |
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Revised: 3/20/09
(k) | βSecurity Incidentβ shall mean the attempted or successful unauthorized access, use, disclosure, modification or destruction of information or interference with system operations in an information system. | ||
(l) | βSecurity Standardsβ shall mean the Standards for the Protection of Electronic Protected Health Information, 45 C.F.R. Parts 160, 162 and 164. | ||
(m) | βTechnical Safeguardsβ shall mean the technology and the policy and procedures for its use that protect Electronic Protected Health Information and control access to it. |
2. | Uses and Disclosures of Protected Health Information. Accretive shall not, and shall ensure that its directors, officers, employees contractors and agents do not, use or disclose Protected Health Information received from Ascension Health in any manner that is not permitted or required by the Master Agreement, this Agreement or required by law. | |
3. | Safeguards Against Misuse of Information. Accretive agrees that it will implement all appropriate safeguards to prevent the use or disclosure of Protected Health Information other than pursuant to the terms and conditions of this Agreement. | |
4. | Reporting of Disclosures of Protected Health Information. Accretive shall, within forty-eight hours of becoming aware of a use or disclosure of Protected Health Information in violation of this Agreement by Accretive, its officers, directors, employees, contractors, or agents, or by a third party to whom Accretive disclosed Protected Health Information, report any such use or disclosure to Ascension Health. | |
5. | Mitigation of Harmful Effects. Accretive agrees to mitigate, to the extent practicable, any harmful effect that is known to Accretive of a use or disclosure of Protected Health Information by Accretive in violation of the requirements of this Agreement. | |
6. | Agreements by Third Parties. Accretive shall enter into an agreement with any agent or subcontractor that will have access to Protected Health Information that is received from, or is created or received by Accretive on behalf of, Ascension Health pursuant to which such agent or subcontractor agrees to be bound by the same restrictions, terms, and conditions that apply to Accretive pursuant to this Agreement with respect to such Protected Health Information. | |
7. | Documentation of Disclosures. Accretive agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Ascension Health to respond to a request by an individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. Β§ 164.528. At a minimum, Accretive shall provide Ascension Health with the following information: (i) the date of the disclosure; (ii) the name of the entity or person who received the Protected Health Information, and if known, the address of such entity or person; (iii) a brief description of the Protected Health Information disclosed; and (iv) a brief statement of the purpose of such disclosure which includes an explanation of the basis for such |
4
Revised: 3/20/09
disclosure. Additionally, Accretive, shall notify Ascension Health in writing of each disclosure made by Accretive (and/or by any subcontractors or agents of Accretive) that is subject to the accounting requirements in the Privacy Rule. Such notification shall be made to Ascension Health pursuant to the notification requirements set forth in this Agreement within thirty (30) days following each applicable disclosure. |
8. | Accounting of Disclosures. Within ten (10) days of notice by Ascension Health to Accretive that it has received a request for an accounting of disclosures of Protected Health Information regarding an individual during the six (6) years prior to the date on which the accounting was requested, Accretive shall make available to Ascension Health information collected in accordance with Section 7 of this Agreement, to permit Ascension Health to respond to a request by an individual for an accounting of disclosures of Protected Health Information as required by 45 C.F.R. Β§ 164.528. In the event the request for an accounting is delivered directly to Accretive, Accretive shall within two (2) days forward such request to Ascension Health. It shall be Ascension Healthβs responsibility to prepare and deliver any such accounting requested. Accretive hereby agrees to implement an appropriate record keeping process to enable it to comply with the requirements of this Section. | |
9. | Access to Information. Within five (5) days of a request by Ascension Health for access to Protected Health Information about an individual contained in a Designated Record Set, Accretive shall make available to Ascension Health such Protected Health Information for so long as such information is maintained by Accretive in the Designated Record Set as required by 45 C.F.R. Β§ 164.524. In the event any individual requests access to Protected Health Information directly from Accretive, Accretive shall within two (2) days forward such request to Ascension Health. Any denials of access to the Protected Health Information requested shall be the responsibility of Ascension Health. | |
10. | Availability of Protected Health Information for Amendment Within ten (10) days of receipt of a request from Ascension Health for the amendment of an individualβs Protected Health Information or a record regarding an individual contained in a Designated Record Set (for so long as the Protected Health Information is maintained in the Designated Record Set), Accretive shall provide such information to Ascension Health for amendment and incorporate any such amendments in the Protected Health Information as required by 45 C.F.R. Β§164.526. | |
11. | Availability of Books and Records. Accretive hereby agrees to make its internal practices, books, and records relating to the use and disclosure of Protected Health Information received from, or created or received by Accretive on behalf of, Ascension Health available to the Secretary for purposes of determining Ascension Healthβs compliance with the Privacy Standards. | |
12. | Electronic Protected Health Information. To the extent that Accretive creates, receives, maintains or transmits Electronic Protected Health Information on behalf of Ascension Health on or after April 21, 2005, Accretive agrees to: |
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Revised: 3/20/09
(a) | Implement Administrative, Physical and Technical Safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the Electronic Protected Health Information; | ||
(b) | Ensure that any agent, including a subcontractor, to whom it provides Electronic Protected Health Information agrees to implement reasonable and appropriate safeguards to protect it; and | ||
(c) | Report to Ascension Health any Security Incident of which Accretive becomes aware. |
13. | Effect of Termination of Master Agreement. Upon the termination of the Master Agreement for any reason, Accretive shall return to Ascension Health, or, at Ascension Healthβs direction, destroy, all Protected Health Information received from Ascension Health that Accretive maintains in any form, recorded on any medium, or stored in any storage system, unless said information has been de-identified and is no longer Protected Health Information. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Accretive. Accretive shall retain no copies of the Protected Health Information. Accretive shall remain bound by the provisions of this Agreement, even after termination of the Master Agreement, until such time as all Protected Health Information has been returned, de-identified or otherwise destroyed as provided in this Section. | |
14. | Third Party Rights. The terms of this Agreement are not intended, nor should they be construed, to grant any rights to any parties other than Accretive and Ascension Health and Health Ministries. | |
15. | Injunctive Relief. Accretive acknowledges and stipulates that its unauthorized use or disclosure of Protected Health Information while performing services pursuant to the Master Agreement or this Agreement may cause irreparable harm to Ascension Health, and in such event, Ascension Health shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages and injunctive relief, together with the right to recover from Accretive costs, including reasonable attorneysβ fees, for any such breach of the terms and conditions of the Master Agreement or Agreement. | |
16. | Owner of Protected Health Information. Under no circumstances shall Accretive be deemed in any respect to be the owner of any Protected Health Information used or disclosed by or to Accretive pursuant to the terms of the Master Agreement. | |
17. | Changes in the Law. The parties agree to amend either the Master Agreement or this Agreement, as appropriate, to conform with any new or revised legislation, rules and regulations to which Ascension Health is subject now or in the future including, without limitation, the Privacy Standards, Security Standards or Transactions Standards (collectively βLawsβ). If within ninety (90) days of either party first providing written notice to the other of the need to amend the Master Agreement or Agreement to comply with Laws, the parties, acting in good faith, are i) unable to mutually agree upon and |
6
Revised: 3/20/09
make amendments or alterations to the Master Agreement or Agreement to meet the requirements in question, or ii) alternatively, the parties determine in good faith that amendments or alterations to the requirements are not feasible, then either party may terminate the Master Agreement upon thirty (30) days prior written notice. |
18. | Breach of Contract. In addition to any other rights Ascension Health may have in the Master Agreement, this Agreement or by operation of law or in equity, a breach of this Agreement shall constitute a material breach of the Master Agreement. |
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. |
HEALTHCARE SERVICES, INC. d/b/a
|
ASCENSION HEALTH | |
ACCRETIVE HEALTH |
||
/s/ Xxxx Xxxxx
|
/s/ Xxxxxxx X. Xxxxxxxx | |
Signed
|
Signed | |
Xxxx Xxxxx
|
Xxxxxxx X. Xxxxxxxx | |
Printed
|
Printed | |
12/13/07
|
12/13/07 | |
Date
|
Date |
7