Physician Resource Contract 2009

Transcript

CONSULTING SERVICES AGREEMENT This Consulting Services Agreement (the "Agreement") is made and entered into effective the i Network ("Contractor"), and Tarrant County Hospital District d/b/a WS Health Network, a unit st d a y of local government and more specifically a county hospital district, created and operating under o f Chaptert 281 of the Texas Health and Safety Code ("District"), The District and Contractor may O c o be referred to individually as a "Party" to this Agreement and they may be referred to b e r , collectively as the "Parties" to this Agreement. 2 0 RECITALS 0 9 ( " E f f WHEREAS, the District, in furtherance of its statutory obligations to provide health care e services to the indigent and needy residents of Tarrant County, Texas, owns and operates a fully c t i accredited, integrated health delivery system that includes one 530 bed hospital in Fort Worth, v e Texas, one 30 bed hospital in Arlington, Texas and approximately 35 clinics that provide D a additional sites o f services located throughout and serving the residents o f Tarrant County, Texas;e t " ) WHEREAS, the District seeks the services o f Contractor to provide a District-wide , physician needs assessment to create an effective manpower planning process and to provide the b District with professional services to improve recruitment for the District's Family Medicine y Residency Program; and a WHEREAS, Contractor has presented a proposal to provide strategic planning for the n District's medical staff development through an ongoing engagement to develop and enhance the d District's manpower planning processes; and to provide professional services that will enable the b District's Family Medicine Residency Program to enhance its residency recruitment capabilities, e provide better access to medical care and promote economic development for rural communities, t and provide fmancial incentive for graduating medical students and residents who pursue family w medicine practice in a rural Texas community; and e WHEREAS, Contractor has developed and maintains the expertise and resources necessary e to perform and complete the Services and Work (defined below); and n P WHEREAS, Contractor is qualified to do business in the State of Texas, and is qualified h and capable of performing and-completing the Services and Work; and, y WHEREAS, Contractor desires to provide the Services and Work as so required by the s District, and the District desires to contract with Contractor for the Services and Work to be i provided and completed in accordance with Schedule 1 - Scope and Services and Work. c Now, THEREFORE, for and in consideration o f the mutual covenants and conditions i hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency a of which is hereby acknowledged by the Parties, the District and Contractor hereby agree as n follows: R e 1. S e r v i c e s and Work to be Performed; Applicable Standards. Contractor shall s perform and complete the Services and Work as set forth and described in Schedule 1 - Scope o of Services and Work (collectively the "Services and Work"), which is attached hereto and u r c e incorporated by reference herein. Contractor shall perform and complete the Services and Work in accordance with this Agreement, specifically including but not limited to Schedule 1 - Scope of Services and Work, and using industry best practices applicable to the performance of the Services and Work. Furthermore, Contractor shall use qualified personnel to perform and complete the Services and Work in a diligent, professional and workmanlike manner. 2. F e e s for Services Performed. The District shall pay to Contractor fees for the Services and Work performed and the reimbursable expenses incurred by Contractor under this Agreement as set forth in Schedule 2 - Fees and Expenses, which is attached hereto and incorporated by reference herein. 3. T e r m and Termination. The Parties agree that this Agreement shall continue until such time as Contractor has completed performing the Services and Work as required by this Agreement as set forth in Schedule 1 - Scope o f Services and Work . T h e term o f the PHYSICIAN MANPO WER PLANNING T RAINING SERVICES a n d t h e F A M I L Y MEDICINE RESIDENCY PROGRAM ENHANCEMENT SERVICES shall be for one (I) year, commencing at 12:00 a.m., October I , 2009 and ending at I 1:59 p.m., September 30, 2010. Either Party may terminate this Agreement for cause upon a material breach by the other Party of its obligations hereunder, which breach is not cured within fifteen (15) days after the breaching Party is given a Notice of Material Breach (defined below). A "Notice of Material Breach" means written notice that includes in all capital letters "NOTICE OF MATERIAL BREACH" and also includes: (i) specific details identifying the material breach; and, (ii) the notifying Party's specific recommendations of actions to be (or if appropriate, not to be) taken by the other Party in order for it to cure the breach. The District, in its sole discretion, shall have the right to terminate this Agreement without cause and for no reason or any reason at any time prior to such completion of the Services and Work by giving Contractor sixty (60) days prior written notice of such termination (hereinafter referred to as "Early Termination"). I n the event o f Early Termination, the District agrees that it will pay all fees due to Contractor under Section 2 hereof for all Services performed by Contractor up to and including the date of termination. The District also shall reimburse Contractor for all expenses incurred by Contractor in the performance of Services hereunder and which are or would be due to Contractor under Paragraph 2 hereof if Early Termination had not occurred. Contractor acknowledges and agrees that in the event of such Early Termination, Contractor will not perform any unnecessary part of the Services and Work nor will it incur any unreasonable expenses, but it will perform only those Services and Work and incur only those expenses necessary to fulfi ll its obligations under Section 1 hereof and this Section 4. Nothing set forth herein shall limit the District's rights or remedies. 4. Mis c ellaneous . Additional terms and conditions are set forth in Schedule 4 Standard Terms and Conditions, which is attached hereto and incorporated by reference herein. SIGNATURE PAGE TO FOLLOW 2 fN WITNESS WHEREOF, the Parties hereto have executed this Agreement, in duplicate originals with one original being delivered to each Party, to be effective on the Effective Date. Contract° • Physi D i s t r i c t : Tarrant County Hospital District, d/b/a RS Health Network By e: firiaTmitA . itle:Princi N Date: a B m e : y , R : o b e t t Earley Title: President and CEO Date: Z1 4 t : ) ( 1 , 2 0 0 9 ,2009 3 Schedule 1—Scope of Services and Work I. PHYSICIAN MANPOWER PLANNING TRAINING SERVICES TERM: One (I) Year from Effective Date of Agreement. A. D I S T R I C T ST AF F T R AI N I N G O N H O W T O C R E A T E ST RAT EG IC PLANNING FOR MEDICAL STAFF DEVELOPMENT—Contractor will work with District and in particular the District's Exectutive V.P. o f Medical Affairs and designated District representative(s) to train the appropriate District personnel to create a strategic plan for the development of the District's medical staff and to continue such training on an ongoing basis throughout the term of this Agreement. O n a monthly basis during the term of this Agreement, Contractor shall provide the District's Executive V.P. of Medical Affairs, and such other District Executives designated by the District's Executive V.P. of Medical Affairs with an oral report of the Contractor's strategic planning for medical staff development training efforts. Contractor shall provide a template Medical Staff Development Plan for the District's use based on Contractor's previous medical staff development engagement with the District. T he strategic planning for medical staff development training provided by Contractor will clearly address the physician manpower planning needs of the District in all respects, including but not limited to the following information and detail: • Physician Needs Assessment O Identify and define current and projected medical service area population and demographics, o Identify current and projected "community need" for physicians based on: • Recommended industry standards • Regional comparisons by specialty • I n p u t and recommendations from existing medical staff o Prepare comprehensive service area physician inventory based on: • Specialty • Status of Board Certification • Age • Gender a Hos pital Privileges • Medical Staff Opinion Research and Reports o Lev el of satisfaction with District facilities. o Suggestions for improvement. OComparison of services with competing hospitals/facilities. O Medical staff input needed to define physician recruitment goals. o Targeted information as needed by District. o Personal interviews with medical staff, as needed. o Discover information physicians are reluctant to directly share with District leaders, • Comparative Analysis 4 o Demonstrate the District's existing physician availability, by specialty, for service area compared to: • County(ies) • State • N ation • Recruitment Schedule ORecommend physician recruiting schedule. • S e t forth timeline for need of additional physicians • Prioritized by specialty based on: • Community need • Professional support • Anticipated attrition due to: o Retirement o Diminishing practice hours, etc. • Targeted Needs o Target the District's specific areas of interest or concern. • Examples: • A g i n g medical staff and its impact on ER call. • Ideas for better physician retention. FA MILY MEDICINE RESIDENCY PROGRAM ENHANCEMENT SERVICES TERM: One (1) Year from Effective Date of Agreement. A. C O A L S • Improved Residency Recruitment for the District Provide the District's Family Practice Residency Program ("Program") with a tool to distinguish itself from all competing training programs and improve the Program's ability to select the highest caliber medical school graduates to train for rural family practice. • Defter Access to Care for Rural Communities and Local Economic Development Accommodate a critical need for family physicians in rural communities by providing them with comprehensively trained family physicians willing to serve the medical needs of their residents. • Financial Help f or Graduating Medical Students Who Pursue Family Medicine Training and Practice in a Rural Community Facilitate the process for selected medical students to pay of f their medical school loans, provided they choose the District for their residency, and commit to serve in a rural community for a defined period of time upon completion of their residency training. 5 B. D E V E L O P M E N T • Statewide Organizations Consultant will consult with and seek the support o f the Texas Organization o f Rural and Community Hospitals, the rural section of the Texas Hospital Association, the Texas Academy of Family Physicians, and any other appropriate organization to target suitable rural communities to pursue for participation in the p r o p which communities have the best hospitals and ancillary facilities to accommodate family physicians. d i t i o n a l l y , am. A d C o n s u l t a n t • Dis tr ic t's Family Practice Residency Program w i l l a n a l y z Consultant will work with the Program and the District to identify the number of positions that e may be dedicated to the Program on a per year basis, and help create the guidelines necessary to a n d implement within the Program: i d e n t Examples of decisions that must be made include: i f y • Determination of the amount of money that should be set aside for loan repayment; • Determination of how much money should be set aside to offset salaries to be paid to the residents; • Determination of how much time the resident would spend in the host community while in residency; • Determination of what resources are required to support rotations in the host community; and, • Determination of whether or not current residents might have an interest in participating. • Legal/ Business Considerations Consultant, in concert with District's legal counsel, will assist defining and outlining necessary applications and/or necessary legal instruments to be developed for screening applicants, as well as agreements to be developed for use among the resident, Program, and the host community. Additionally, consideration should be given and decisions made regarding other factors such as: • Identifying and establishing financial instruments that might be used by the host communities to finance loan repayment and monetary sponsorship during the resident's training; • Determining i f "stop loss" insurance is necessary to cover the residency and host communities if contracted physician(s) fail to honor their agreements, 6 • Researching the proper vehicle(s) to support the physician's medical practice once he/she is practicing in the host community (e.g., existing physician directed not-for-profit medical group, or develop a new physician directed not-for-profit medical group, and/or how might an existing medical group or practice in the host community be utilized, etc.) • H o s t Communities Once communities have been identified, Contractor will contact the hospital administrator, city manager, and appropriate business leaders to introduce the concept, present the benefits of such an arrangement, and assess their level o f interest. I f necessary, Contractor may conduct a Physician Needs Analysis to verify community need for additional physician(s), or justification to recruit additional physician(s), and assess the facilities available to support a new physician. Additionally, it is estimated that from one to three (possibly more) presentations will be required in each potential host community for promoting the concept and closing the deal. C. E S T I M A T E D PROJECT SCHEDULE • Project Research and Organization Contractor estimates that it will take 60 days to conduct required research and organize an initial effort. • Identification of Community Partner Depending upon the number of communities identified and the number of residency positions to be simultaneously targeted for this effort, Contractor estimates 90 to 120 days per location to identify suitable communities, assess the need for additional physician manpower as well as existing and planned medical facilities, pitch and sell the concept, and secure a commitment from each community. Multiple locations may be promoted simultaneously. • Identification of Medical Student/Resident Partners Identify current first and second year residents who may wish to participate in the placement program, and initiate interviews. Assist the Program to identify graduating medical students who may wish to participate. Arrange for interview with the Program and, if accepted, arrange for interview with and introduction to participating community(ies). The estimated time required for this process will range between 60 - 120 days. Medical Student I Resident / Community Agreement Facilitate formal Letter of Agreement between each community and the District — to coincide with Medical Student/Resident/Community Agreement. Wor k with legal counsel to facilitate agreements between the involved parties and selected graduates and residents. • Evaluation/Assessment of Efforts Follow through with contact for each successful student and/or resident and community contacts to evaluate the process and measure outcomes. Review evaluations with all interested parties. Determine if and how the project may be improved, revised, or curtailed—30 days. Total estimated timeline is twelve months. This may vary depending upon how many positions are simultaneously developed. Should this time vary, additional time may be added to the term of the engagement through the additional services and work process set forth in Schedule 4. 8 Schedule 2—Fees and Expenses I. Physician Manpower Planning Training Services A. A g r e e d Price for Physician Manpower Planning Training Services. Fees are Two Thousand Dollars ($2,000) a month for physician manpower planning training services for a period of twelve months f o r an amount not to exceed Twenty Four Thousand Dollars ($24,000) ("Physician Manpower Planning Training Fees"). All telephone and email support necessary for the aforementioned services is included in the Physician Manpower Planning Training Fees. B. C a p s on Fees and Expenses. Contractor has agreed that the: a. T otal Fees payable by the District for the Services and Work will not exceed $24,000.00 ("Car) on Total Fees"); and, b. There will be no Expenses payable or reimbursable by the District in association with the Physician Manpower Planning Training Services. c. T otal Fees and Total Expenses together for Physician Manpower Planning Training Services shall not exceed $24,000. C. P a y m e n t Deadlines. Contractor shall invoice the District for reimbursable Expenses and District shall reimburse Contractor for those reimbursable Expenses that have been reasonably documented pursuant to District policy. Dis tric t shall reimburse Contractor within 30 business days o f receipt o f invoice for Expenses from Contractor insofar that such reimbursement does not exceed the agreed upon Cap on Total Expenses. Contractor shall invoice the District for the Total Fees following the satisfactory conclusion of the Services and the District shall pay the amounts invoiced within 30 business days of receipt; provided, however, that the District shall not be invoiced and shall not owe Contractor in excess of $24,000 for Total Fees and Expenses. Family Medicine Residency Program Enhancement Services A. A g r e e d Price for Family Medicine Residency Program Enhancement Services. Fees are Ten Thousand Dollars ($10,000) a month for Family Medicine Residency Program Enhancement Services for a period of twelve months f o r an amount not to exceed One Hundred Thousand Dollars ($120,000) ("Family Medicine Residency Program Enhancement Fees"). The Family Medicine Residency Program Enhancement 9 Services shall be provided for a minimum of thirty (30) hours per week during this engagement. All telephone and email support necessary for the aforementioned services is included in the Family Medicine Residency Program Enhancement Fees. B. C a p s on Fees and Expenses. Contractor has agreed that the: a. Total Fees payable by the District for the Services and Work will not exceed $120,000.00 ("Cap on Total Fees"); and, c. T otal Expenses payable or reimbursable by the District will not exceed an amount equal to 23% of the total Fees billed to the District at any point in time and in no event will exceed an amount equal to 23% of the Cap on Total Fees, or $28,290 ("Cap on Total Expenses"). Out-of-Pocket expense billings will be accompanied by supporting documentation including a schedule by traveler of the dates of travel, dates onsite at District, and summary of expenses by specified categories cross-referenced to the supporting documentation that includes copies of receipts for all items. Reimbursement for all expenses shall be subject to District policies and reimbursable amounts shall be in keeping with the most recent standards set forth by the United States Office of General Accounting. c. T otal Fees and Total Expenses together shall not exceed $148,290. C. P a y m e n t Deadlines, Contractor shall invoice the District for reimbursable Expenses and District shall reimburse Contractor for those reimbursable Expenses that have been reasonably documented pursuant to District policy. Dis tric t shall reimburse Contractor within 30 business days o f receipt o f invoice for Expenses from Contractor insofar that such reimbursement does not exceed the agreed upon Cap on Total Expenses. Contractor shall invoice the District for the Total Fees following the satisfactory conclusion of the Services and the District shall pay the amounts invoiced within 30 business days of receipt; provided, however, that the District shall not be invoiced and shall not owe Contractor in excess of $148,290 for Total Fees and Expenses. 10 Schedule 3 ABOUT PHYSICIAN RESOURCE N ETWOR K Physician Resource Network was established in 1984 to serve hospitals and physicians in Texas. The principals have 60 years of combined experience working with and are known and respected by physicians and hospitals throughout the state. Services offered have included: • Recruitment of hundreds of physicians to communities throughout the State of Texas, • Appraisal and brokerage of medical practices, • Medic al practice management consulting, • Strategic planning for medical staff development, and • Educational presentations to physician training programs and professional organizations. Seasoned Expertise Vicki Truitt • 3 7 years working with physicians and hospitals beginning at John Peter Smith Hospital, Fort Worth and Parkland Memorial Hospital, Dallas. • Previously Certified by the American College of Medical Staff Development. Jim Truitt • 2 5 years consulting for hospitals and physicians in Texas. • Experienced management consultant for major corporations. • Degree in business administration from Southern Methodist University. Physician Recruitment Over the past 25 years PRN has recruited hundreds o f physicians and placed them in communities throughout the state. P R N recruited 84 physicians across a broad spectrum of specialties for the Tarrant County Hospital District during the 1990s. A significant number of our assignments over the years have been focused on the recruitment of family physicians in rural communities (Dafilart, Pampa, Shamrock, Paris, Denison, San Augustine, Athens, Graham, 1 1 Eastland, Colorado City, Monahans, Rockdale, Smithville, Kennedy, etc.) I n many cases we recruited several Physicians to a single community. Medical Practice Appraisal and Brokerage During the late 1980s and early 1990s we appraised and brokered some 25 medical practices. Several of these practices were located in rural communities, including three in Graham, Texas. We also appraised some 50 medical practices during the same period. Medical Practice Management Consulting During the 1990s we offered management consulting to small and medium-sized group medical practices. W e did not provide day-to-day services, but focused on assisting groups to resolve chronic billing and collection issues, preparing to expand service, and assessing when and where to locate additional practice sites. Strategic Planning for Medical Staff Development Physician Resource Network, i.e., Jim and Vicki Truitt are known throughout the State for offering comprehensive strategic planning consulting services in the areas of: • Comprehensive Physician Needs Assessments; • Physician Surveys; • Comparative Analyses (of hospital facilities and services in common markets); • Detailed profiles and analysis of the physicians practicing within a medical service area • Targeted studies focusing in on specific areas of interest or concern by hospital administration Educational Presentations 12 Over the years PRN has provided educational presentations to physician training programs and professional associations. F or several years we provided presentations on an annual basis to the following physician training programs: • T e x a s Tech— Amarillo, Lubbock, and El Paso • • • U T U T Houston—Baytown Southwestern—Dallas W S —Fort Worth • U T H S C —Houston • U T H S C —San Antonio • U T S W M C —Waco • C e n t r a l Texas Medical Foundation—Austin • U T H S C - S A —Corpus Christi • U N ' H i S C —Fort Worth • B a y l o r —Houston • T e x a s A&M, Scott & White—Temple • U T S W M C —Wichita Falls Professional associations to whom we have made presentations include: • Texas Hospital Association • Tex as Organization of Rural and Community Hospitals • Tex as Pediatric Society • Tex as Academy of Family Physicians • Texas Academy of Family Physicians —Resident Section Texas Society of Hospital Financial Executives 13 Schedule 4 - Standard Terms and Conditions Additional Services In the event the District needs services that exceed the scope of the Services and Work ("Additional Services and Work"), the District may make a written request for a Proposal (defined below) from Contractor. In a reasonable period o f time following receipt of such request, Contractor shall deliver to the District a Proposal that is responsive to such request, The Parties anticipate that, in the absence o f unusual circumstances, one week is more than a reasonable period of time for delivery of a Proposal. In the event the Proposal is acceptable to the District, a written amendment that specifically refers to this Agreement and is signed by authorized officers of each of the Parties ("Amendment") shall be prepared for signature by the Parties prior to commencement of any Additional Services and Work. Only an Amendment shall obligate the Parties concerning or related to any Additional Services and Work. The fees and expenses payable or reimbursable by the District for Additional Services and Work shall be specified in each Amendment. The District is not obligated to accept any Proposal for Additional Services and Work. A "Proposal" means a written proposal by Contractor to provide Additional Services and Work, including a detailed description of the Additional Services and Work to be provided by Contractor and the following additional information: ( i) proposed dates for commencement and completion o f the Additional Services and Work to be provided by Contractor; (II) proposed roles and responsibilities for the Parties; and, (iii) the costs to be incurred by the District, including identification of the Contractor's fee and any out-of-pocket expenses to be borne by the District. Confidentiality and RIPAA The District may disclose to Contractor in confidence or otherwise make available to Contractor certain material which is not generally known t o the public ("Confidential Information"), including, but not limited to, information pertaining to: research; pricing; procurement; distribution; personnel; compensation; financial statements or projections; business plans; contracts; systems development and implementation; scientific and mathematics techniques; infrastructure and technical configuration; security policies; methodologies and implementations; intellectual property; trade secrets; inventions; marketing plans; existing and potential clients, customers, patients, suppliers, vendors and other business relationships; and other information provided, delivered or made available by the District or otherwise accessible to Contractor. Contractor agrees to hold in confidence all Confidential Information and to use such information only for the purpose of performing and completing the Services and Work for the District. Furthermore, Contractor will protect the Confidential Information received under this Agreement in the same manner and to the same extent to which it protects its own valuable proprietary information, but in all events using at least a reasonable standard of care. Contractor may not make any copies of the Confidential Information except in the course and scope of performing and completing the Services and Work and all Confidential Information (including but not limited to all copies thereof) shall be promptly returned by Contractor to the District upon the termination or expiration of this Agreement, or sooner if demanded by the District. 14 The confidentiality obligations of this Agreement shall not apply to information: (a) in Contractor's possession prior to disclosure under this Agreement unless disclosed to Contractor by the District under a prior agreement with the District for confidentiality or non-disclosure ("Prior NDA"), (b) which is or becomes publicly known through no fault on the part o f Contractor, (c) received from a third party not under an obligation to the owner o f such information not to disclose it, (d) independently developed by Contractor without the benefit of the information disclosed under either a Prior NDA or this Agreement (as to which Contractor has the burden o f proof), (e) required to be disclosed by government regulation, statute, or judicial order, provided that prior to such disclosure and if reasonably possible, Contractor will inform the District of such requirements and permit the District to seek a protective order or other relief regarding such information, or (f) disclosed without confidentiality restrictions to any third party by or with the express permission of the District. The confidentiality obligations of this Agreement shall survive the termination or expiration of this Agreement. The Parties acknowledge the existence of applicable legal requirements pursuant to the federal Health Insurance Portability and Accountability Ac t o f 1996 and the regulations promulgated thereunder (collectively "HIPAA"). Attached to and incorporated in this Agreement is Ex hibit " 4- A" which is the District's standard Business Associate Insert for Services Agreement ("BAISA"). Contractor acknowledges that for all purposes under the BAISA and this Agreement, the District is a "Covered Entity" and Contractor is a "Business Associate". Furthermore, Contractor agrees to comply with and satisfy all of the terms and conditions of the BAISA applicable to a Business Associate. Any violation of or failure to satisfy the terms and conditions of the BAISA shall be a breach of this Agreement. This Section of Schedule 4 titled "Confidentiality and HIPAA" and the BAISA shall survive the termination or expiration of the Agreement. Conflict of Interest and Ethics Contractor acknowledges the existence of and its compliance with: (1) T h e District's Compliance Plan ("Compliance Plan"), including the Compliance Policies set forth therein ("Compliance Policies"); and, (2) T h e District's Code of Conduct and Ethics ("Code"). The Compliance Plan, Compliance Policies and Code are incorporated herein for all purposes. Contractor acknowledges and agrees that it will abide by the Code and the Compliance Policies. Any violation by Contractor, including any o f its officers, directors, employees, contractors or agents, o f the Code or the Compliance Policies shall be a breach o f this Agreement. Contractor agrees that in the event Contractor has or obtains any information concerning the following matters, it will immediately report same in writing to the District: (a) Contr ac tor , including any of its officers, directors, employees, contractors or agents, becoming a target o f any criminal investigation o r any investigation that could result in debarment or exclusion from federally or state funded healthcare programs; and/or 15 (b) Contr ac tor , including any of its officers, directors, employees, contractors or agents, violating the Compliance Policies or the Code. Furthermore, Contractor represents that it has never been: (i) c o n v ic t e d of a criminal offense; (ii) l i s t e d by a federal agency as debarred, excluded or otherwise ineligible for federal plan participation; (iii) s anc tioned by any federal or state law enforcement, regulatory or licensing agency; or, (iv) ex c luded from any state or federal healthcare p r o p Still .further, Contractor represents to the District that Contractor, including any of its am officers, directors, employees, contractors or agents, is not currently under criminal investigation or any investigation that could result in debarment or exclusion from federally or state funded healthcare programs. Still further, Contractor represents to the District that none o f Contractor's officers, directors, shareholders (excluding shareholders that own less than 5% of the combined voting power of Contractor), employees, contractors or agents, has ever been: (as) c onv ic ted of a criminal offense that is a felony or a misdemeanor of moral turpitude; (bh) lis t e d by a federal agency as debarred, excluded or otherwise ineligible for Federal plan participation; (cc) s anctioned by any federal or state law enforcement, regulatory or licensing agency; or, (dd) ex c luded from any state or federal healthcare program. In the event that any of the foregoing representations ceases to be true, Contractor will immediately report same in writing to the District. Upon receipt of any report required by Contractor hereunder or in the event of a failure to report by Contractor, the District may without penalty terminate this Agreement and other than the payment of any amounts due and owing through the date of termination, the District shall have no further obligations or liabilities hereunder. Additional Provisions Work Product and Inventions. A l l materials and/or other information developed, generated or produced, in whole or part, by Contractor (including the employees, independent contractors or agents of Contractor) in performing and completing the Services and Work including, but not limited to, all documentation, flow charts, diagrams, specifications, descriptions, definitions, reports, and data (collectively, the "Work Product") and any invention, product, computer program or specification, whether patentable or tmpatentable, made, conceived or first actually or constructively reduced to practice, in whole or part, by Contractor (including the employees, independent contractors or agents of Contractor) in performing and completing Services and 16 Work (individually, an "Invention" and collectively, the "Inventions"), shall be the District's sole and exclusive property. Contractor shall perform all acts that may be deemed reasonably necessary or desirable by the District to evidence that the Work Product and Inventions are 'works made for hire' and/or to more fully transfer ownership to the District of the Work Product and Inventions. Contractual Relationship Only. Neither Party is the legal representative or agent of the other, nor shall either Party have the right or authority to assume, create, or incur any liability or any obligation of any kind, expressed or implied, against, or in the name of or on behalf of the other Party. No agency, partnership, joint venture, or employment is created as a 'result o f this Agreement, Furthermore, the District shall not be responsible for paying or withholding any taxes, fees or other amounts, with respect to the amounts paid to Contractor or for paying any compensation or benefits to or providing insurance for any o f Contractor's employees or contractors. Contractor agrees to defend, indemnify and hold harmless the District, and its managers, directors, officers, employees, agents, and representatives, against any and all losses, liabilities, claims, allegations, demands, causes of action, judgments, awards and costs (including but not limited to legal fees and expenses) (collectively "Claims") arising out of or related to the employment o r contract relationship o f any o f Contractor's employees and independent contractors including but not limited to Claims for salary/wages, vacation pay, sick leave, retirement benefits, social security, worker's compensation, health o r disability benefits, unemployment insurance benefits, or employee compensation or benefits of any kind. Assignment Prohibited. Contractor may not, without the prior written consent of the District, assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be void and deemed a material breach of this Agreement, Waiver. N o waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No delay in exercising, no course in dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. No failure or refusal of any approval referenced in this Agreement shall excuse or relieve the performance or other responsibilities of the other Party. Severability. Wit hout limiting this section o f the Agreement, i f any provision o f this Agreement, or the application thereof to any person or circumstance, is held to be illegal, invalid or unenforceable for any reason, and the basis of the bargain among the Parties is not thereby destroyed, such illegality, invalidity or unenforeeability shall not affect any other provision of this Agreement that can be given effect in the absence of the illegal, invalid or unenforceable provision o f application. To this end, all provisions o f this Agreement are declared to be severable. Annual Budget. The Parties acknowledge and agree that the District is a governmental entity that is subject to an annual budgetary process and restrictions on spending in conformity with that process, its approved budget and applicable law. The Parties further agree that, notwithstanding any other language in this Agreement, if for any reason funds are not expressly and specifically allocated for this Agreement in the District's formally and finally approved budget in any fiscal year subsequent to that in which funds for this Agreement were first allocated, the District may immediately and without penalty terminate this Agreement; provided, however, that in no event 17 shall such a termination be effective earlier than the last date for which funds have already been so allocated under an existing formally and finally approved budget. Should the Agreement terminate under the provisions of this section titled "Annual Budget", the District will provide Contractor with written notice as soon as is reasonably possible of the pending termination under this section, the effective date of which shall be at the end of the District's fiscal year in which funds had previously been allocated unless the District states a later effective date of termination and, other than the payment of any amounts due and owing through the date of termination, the District shall have no further obligations or liabilities hereunder. Prohibition on Use of Name and Logo. Contractor agrees that it will not, without the prior written consent of the District, use the names, logos, symbols, trademarks or service marks of the District, including but not limited to those associated with WS Health Network, for any purposes or uses (expressly including but not limited to for Contractor's advertising, promotion or other marketing) other than those reasonably related to performing and completing the Services and Work. This section titled "Prohibition on Use of Name and Logo" shall survive the termination or expiration of this Agreement. Non-Solicitation. During the term of this Agreement and for a period of one year following the termination or expiration hereof: (a) neither Party shall, directly or indirectly, including on behalf of any other person, solicit for employment, solicit for contracting, hire, retain, engage, employ or contract, any employee of the other Party; and, (b) Contractor shall not directly or indirectly, including on behalf of any other person, solicit for employment, solicit for contracting, hire, retain, engage, employ or contract any third party contractor's employee who provides on-site services for the District. The non-solicitation obligations of this Agreement shall survive the termination or expiration of this Agreement. Insurance. Dur ing the term o f this Agreement Contractor will maintain commercial general liability insurance in the amount of one million dollars. Furthermore, upon request, Contractor will furnish a then current certified certificate(s) of insurance. Termination Right. I n the event of a change-in-control (defmed below), the District may without penalty terminate this Agreement and other than the payment o f any amounts due and owing through the date o f termination, the District shall have no further obligations or liabilities hereunder. A "change-in-contror means that (a) there occurs a reorganization, merger, consolidation or other corporate transaction involving Contractor (a "Transaction"), in each case with respect to which the owners of Contractor immediately prior to such Transaction do not, immediately after the Transaction, own more than 50% o f the combined voting power o f Contractor or any other entity resulting from such Transaction; or, (b) all or substantially all of the assets of Contractor are sold, liquidated or distributed. Notices. A l l notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given (a) when received by the Party to whom directed; (b) when sent by facsimile transmission to the following telecopy numbers; or (e) when deposited in the United States mail when sent by certified or registered mail, return receipt requested, postage prepaid to the following addresses (or at such other addresses or telecopy numbers as shall be given in writing by either Party to the other): Is If to the District: Tarrant County Hospital District Gary Floyd, Sr. V.P. of Medical Affairs 1500 South Main Street Fort Worth, Texas 76104 Telephone: (817) 927-1105 Telecopy: ( 8 1 7 ) 924-1207 Neal W. Adams Adams, Lynch & Loftin, P.C. 3950 Highway 360 Grapevine, Texas 76051 Telephone: (817) 552-7742 Teleeopy: ( 8 1 7 ) 328-2942 Physician Resource Network Jim Truitt, Principal P.O. Box 93024 Southlake, TX 76092-3024 Telephone: (817) 832-3473 Telecopy: ( 8 1 7 ) 431-6552 With a copy to: If to Contractor: Entire Agreement. T h is Agreement, including the attached schedules and exhibits ( if any), constitutes the entire agreement between the Parties and supersedes all prior agreements, proposals, communications and understandings, if any, relating to the subject matter hereof, and this Agreement may be amended only by an instrument in writing executed jointly by an officer duly authorized by the governing board of the respective Parties. Binding Agreement. T his Agreement binds and inures to the benefit of the Parties, and their respective successors and permitted assigns. Applicable Law and Venue. The Parties recognize that this Agreement is subject to, and agree to comply with, applicable local, State of Texas, and federal statutes, rules and regulations. T he laws of the State of Texas, without regard to the conflicts of law principles thereof, shall govern the validity, construction, enforcement and interpretation of this Agreement. VENUE FOR ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY CONCERNING OR RELATING T O T H I S AG REEMENT SH AL L B E A CO URT O F COMPETENT JURISDICTION IN TARRANTT COUNTY, TEXAS. Headings and Captions. Headings and captions used in this Agreement are provided for convenience only and shall not be used to construe or interpret meaning or intent. "Person." F or purposes of this Agreement, "person" means any natural person, corporation, limited liability company, association, partnership, joint venture, proprietorship, governmental agency, trust, estate or other entity or corporation, whether acting in an individual, fiduciary or other capacity. 19 Taxes. The fees payable by the District to Contractor hereunder are inclusive of any sales, use, gross receipts or value added, withholding, ad valorem or other taxes based on or measured by Contractor's cost in acquiring equipment, materials, supplies or services used by Contractor in performing and completing the Services and Work, plus all interest, penalties and other amounts levied thereon by a governmental agency for late payment or otherwise. Further, each Party shall bear sole responsibility for any real or personal property taxes on any property it owns or leases, for franchise or similar taxes on its business, for employment taxes on its employees, for intangible taxes on property it owns or licenses, and for taxes on its net income. Compliance with Laws. I n providing the services required by this Agreement, Contractor must observe and comply with all applicable federal, state, and local statutes, ordinances, rules, and regulations, including, without limitation, workers' compensation laws, IninirrIUM and maximum salary and wage statutes and regulations, and non-discrimination laws and regulations. Contractor shall be responsible for ensuring its compliance with any laws and regulations applicable to its business, including maintaining any necessary licenses and permits. Use o f Words. Whenever necessary in this Agreement and where the context requires, the gender of words shall include the masculine, feminine, and/or neuter, and the number of all words shall include the singular and the plural. Counterparts. T his Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original, and all of which shall, for all purposes constitute one and the same instrument. Further Assurances and Cooperation. D ur ing the term of this Agreement and at all times thereafter, each Party shall provide to the other Party, at its request, reasonable cooperation and assistance (including, without limitation, the execution and delivery of affidavits, declarations, oaths, assignments, samples, exhibits, specimens and any other documentation) as necessary to effect the terms of this Agreement. The Parties shall timely, diligently and on a commercially reasonable basis cooperate, facilitate the performance of their respective duties and obligations under this Agreement and reach agreement with respect to matters left for future review, consideration and/or negotiation and agreement by the Parties, as specifically set forth in this Agreement. Neither Party shall unreasonably withhold or delay any consent, approval or request by the other Party required under this Agreement. Further, the Parties shall deal and negotiate with each other in good faith in the execution and implementation of their respective duties and obligations under this Agreement. Construction. I n the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. No Third Party Beneficiary Status. T he terms and provisions of this Agreement are intended solely for the benefit of each Party hereto and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person. 20 Exhibit "4-A" BUSINESS ASSOCIATE INSERT FOR SERVICES AGREEMENT USE AND DISCLOSURE OF PHI A. A ckn o wle d g me n t of HIPAA Obligations and Other Regulations Implementing HIPAA. The parties acknowledge that federal regulations set forth in the Health Insurance Portability and Accountability Act of 1996 ("HEPPA") and the Health Information Technology for Economic and Clinical Health Act of 2009 ("HITECH Act") relating to the confidentiality, integrity, and accessibility of individually identifiable health information (whether created, maintained, accessed, stored or transmitted electronically or otherwise) require covered entities to comply with the privacy and security standards adopted by the U.S. Department of Health and Human Services as they may be amended from time-to-time, 45 C.F.R. parts 160, 162, and 164 subpart C ("Privacy and Security Standards"). The Privacy and Security Standards require Covered Entity to ensure that Business Associates who receive access, store, or transmit confidential information in the course of providing services on behalf of Covered Entity comply with certain obligations regarding the confidentiality, integrity, and availability of health information. B. P u r p o s e s for which Protected Health Information, including Electronic Protected Health Information, May be Used or Disclosed. In connection with the services provided by Business Associate on behalf of Covered Entity pursuant to this Agreement, Covered Entity may use, access, and disclose Protected Health Information including, but not limited to, Electronic Protected Health Information (collectively referred to herein as "PHI"), to Business Associate for the purposes of Business Associate providing Services to the District. C. B u s i n e s s Associate Obligations. Business Associate agrees to comply with applicable federal and state confidentiality and security laws, including, but not limited to the Privacy and Security Standards published by the United States Department of Health and Human Services implementing Part C of HIPAA, including without limitation: Use of PHI. Business Associate shall not use PHI except as necessary to fulfill the purposes of this Agreement. Business Associate is permitted to use and disclose PHI as necessary for the proper management and administration of the Business Associate or to carry out its legal responsibilities and its responsibilities under this Agreement. However, the Business Associate shall in such case: (a) p r o v i d e training to members of its workforce regarding the confidentiality requirements in the Privacy and Security Standards and this Agreement; (b) o b t a i n reasonable assurances from the person to whom the information is disclosed that it will be held confidential and further used and disclosed only as required by law or for the purpose for which it was disclosed to the person or entity; (c) a g r e e to notify the Covered Entity of any instances of which it is aware in which the PHI is used or disclosed for a purpose that is not otherwise provided for in this Agreement or for a purpose not expressly permitted by the Privacy and Security Standards; (d) e n s u r e that all disclosures of PHI are subject to the principle of "minimum necessary use and disclosure," i.e., only PHI that is the minimum necessary to 21 accomplish the intended purpose of the use, disclosure, or request may be disclosed; and (e) c o m p l y with 45 C.F.R. §§ 164.308, 164.310, 164.312 and 164.316, as required by Section 13401 of the HITECH Act. 2. D i s c l o s u r e to Third Parties. I f Business Associate discloses PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, to agents, including a subcontractor, Business Associate shall require the agent to agree to the same restrictions and conditions that apply to the Business Associate under this • Agreement. The Business Associate shall be fully liable to Covered Entity for any acts, failures or omissions of the Agent in providing the services as if they were the Business Associate's own acts, failures or omissions, to the extent permitted by law. The Business Associate further expressly warrants that its Agents will be specifically advised of, and will comply in all respects with, the terms of this Agreement. Furthermore, in accordance with Section 13404 of the HITECH Act, Business Associate shall comply with 45 C.F.R. § 164.504(e)(1)(ii). 3. D a t a Aggregation. In the event that the Business Associate works for more than one Covered Entity, Business Associate is permitted to use and disclose PM, but only in order to analyze data for permitted health care operations, and only to the extent that such use is permitted under the Privacy and Security Standards. 4. D e -I d e n t i fi e d Information. Use and disclosure of de-identified health information is permitted, but only if (i) the precise use is disclosed to Covered Entity and perrnitted by Covered Entity in its sole discretion and (ii) the de-identification is in compliance with 45 CFR §164.502(d), and any such de-identified health information meets the standard and implementation specifications for de-identification under 45 CFR §164.514(a) and (b), or such regulations as they may be amended from time-to-time. 5. N o t i c e of Privacy Practices. Business Associate agrees that it will abide by the limitations of any Notice of Privacy Practices ('HIPAA Notice") published by the Covered Entity of which it has knowledge. Covered Entity shall provide to Business Associate such HIPAA Notice when it is adopted. Any use or disclosure permitted by this Agreement may be amended by such HEPAA Notice. The amended HIPAA Notice shall not affect permitted uses and disclosures on which Business Associate relied prior to such notice. 6. W i t h d r a w a l of Consent or Authorization. I f the use or disclosure of PHI in this agreement is based upon an individuals specific consent or authorization for the use of his or herP111, and the individual revokes such consent or authorization in writing, or the effective date of such authorization has expired, or the consent or authorization is found to be defective in any manner that renders it invalid, the Business Associate agrees, if it has notice of such revocation or invalidity, to cease the use and disclosure of any such individual's PHI except to the extent it has relied on such use or disclosure, or where an exception under the Privacy and Security Standards expressly applies. 7. U s e or Disclosure that Would Violate HIPAA. Business Associate is prohibited from further use or disclosure of PHI in a manner that would violate the requirements of the Privacy and Security Standards if the PHI were used or disclosed by the Covered Entity, except to the extent permitted in paragraphs (1) and (3) above. 22 8. S a f e g u a rd s . Business Associate is required to implement and maintain administrative, physical, and technical safeguards in accordance with 45 C.F.R. §§ 164308, 164.310 and 164.312 that reasonably and appropriately protect the confidentiality, integrity, and availability of PHI and ensure that such PHI is not received, used, accessed, stored, transmitted, or disclosed other than as provided by this Agreement or as required by law. 9. R e c o r d s Management. Upon termination of this agreement, Business Associate agrees to return or destroy all PHI received from Covered Entity that Business Associate maintains in any form and shall comply with federal and state laws as they may be amended from time-to-time governing the maintenance or retention of PHI. I f the return or destruction of PHI is not feasible, Business Associate agrees to extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible. JO. I n d i v i d u a l Rights Regarding Designated Record Sets. I f Business Associate maintains a designated record set on behalf of Covered Entity, Business Associate agrees as follows: (a) C o rre c t i o n of PHI. Business Associate agrees that it will amend PHI maintained by Business Associate as requested by Covered Entity. (b) I n d i v i d u a l Right to Copy or Inspection. Business Associate agrees that, if it maintains a designated record set for the Covered Entity, it will permit an individual to inspect or copy PHI about the individual in that set under conditions and limitations required under 45 CFR § 164.524 as it may be amended from time-to-time. The Covered Entity is required to take action on such requests as soon as possible but not later than 30 days following receipt of the request. Under Texas law, Business Associate must take action within 15 days of receiving applicable fees for copies or, if no fees are charged or there is a medical emergency, within 15 days of receipt of the request. Business Associate agrees to make reasonable efforts to assist Covered Entity in meeting this deadline, to the extent the requested information is maintained by Business Associate and not the Covered Entity. The information shall be provided in the form or format requested, if it is readily producible in such form or format; or in summary, if the individual has agreed in advance to accept the information in summary form. A reasonable, cost-based fee for copying health information may be charged. (c) I n d i v i d u a l Right to Amendment. Business Associate agrees that it will accommodate an individual's right to have access to and amend PHI about the individual in a designated record set in accordance with the Privacy and Security Standards set forth at 45 CFR § 164.526 as it may be amended from time-to-time, unless the regulation provides for a denial or exception that applies. 11. A c c o u n t in g of Disclosures. Business Associate agrees to make available to the individual and/or the Covered Entity from whom the PHI originated, information required for an accounting of disclosures of PHI with respect to the individual, in accordance with 45 CFR §I64.528 as it may be amended from time-to-time, and incorporating exceptions to such accounting designated under the regulation. Such accounting is limited to disclosures that were made in the six (6) years prior to the request (not including any disclosures prior to the compliance date of the Privacy and Security Standards). 23 (a) C o v e r e d Entity is required to take action on such requests as soon as possible but not later than 60 days following receipt of the request. Business Associate agrees to use its best efforts to assist Covered Entity in meeting this deadline. (b) S u c h accounting must be provided without cost to the individual or Covered Entity if it is the first accounting requested by an individual within any I2-month period; however, a reasonable, cost-based fee may be charged for subsequent accountings if Business Associate informs the individual in advance of the fee and is afforded an opportunity to withdraw or modify the request. (c) S u c h accounting shall be provided as long as the Business Associate maintains the PHI. 12. P o l i c i e s and Procedures. The Business Associate shall implement and maintain reasonable and appropriate policies and procedures to comply with the standards, implementation specifications, or other requirements of Part 164 of Title 45, Code of Federal Regulations. 13. No t ifi c a t io n in Case of Breach. (a) The Business Associate shall, following the discovery of any breach of unsecured protected health information: (i) n o t i f y each individual whose unsecured protected health information has been, or is reasonably believed to have been accessed, acquired, or disclosed as a result of such breach; and (ii) n o t i f y the Covered Entity of such breach in accordance with 45 C.F.R. § 164.440. 1 1. t c S u h e identification of each individual whose unsecured protected health information has been, or is reasonably believed to have h n o been accessed, acquired, or disclosed as a result of such breach; t c 2. i a brief description of what happened, including the date of e breach and date of discovery; s h 3. a description of the types of unsecured health information a l involved in the breach (i.e., whether the full name, social l i n security number, etc. was disclosed); c 4. t lh e steps the individual should take to protect themselves from u d potential harm resulting from the breach; e : 5. a brief description of what the Business Associate involved is doing to investigate the breach, to mitigate losses, and to protect against further breaches; and 1 (HHS), effective September 23, 2009. 74 Fed. Reg. 42740 (August 24, 2009) (to be codified at 45 CFR Parts 160 4 and 164). As referenced herein, sections 400-414 of Part 164 are part of the interim final rule. 5 C 24 F R . § 1 6 4 . 6. c o n t a c t procedures for the Covered Entity or individuals to ask questions or learn additional information, which shall include a toll free number, an email address, Web site, or postal address. (b) All notifications under this Section 13 shall be made without unreasonable delay and: 1. i f to an individual pursuant to Section 13(a)(i), no later than sixty (60) calendar days following the discovery of such breach by the Business Associate, as defined by 45 CF R § 164.410; 2. i f to Covered Entity pursuant to Section 13(a)(ii), no later than forty-five (45) calendar days following the discovery of such breach by the Business Associate, as defined by 45 CF A § 164.410. (c) A l l notifications under subsection (a)(i) of this Section 13, shall comply with 45 C F R § I64.404(d). D. I n t e r n a l Practices, Books, and Records. The Business Associate shall make available its internal practices, books, and records relating to the use and disclosure of PHI received from, created, or received by the Business Associate on behalf of the Covered Entity to the U.S. Department of Heath and Human Services or its agents for the purpose of determining the Covered Entity's compliance with the Privacy and Security Standards, or any other health oversight agency, or to the Covered Entity. E. I n d e mn ifica t io n . T o the extent permitted by law, Business Associate agrees to indemnify and hold harmless Covered Entity from and against all claims, demands, liabilities, judgments or causes of action of any nature for any relief, elements of recovery or damages recognized by law (including, without limitation, attomey's fees, defense costs, and equitable relief ), fo r any damage or loss incurred by Covered Entity arising out of, resulting from, or attributable to any acts or omissions or other conduct of Business Associate in connection with the performance of Business Associate's duties under this Agreement. This indemnity shall apply even if Covered Entity is alleged to be solely or jointly negligent or otherwise solely or jointly at fault; provided, however, that a trier of fact finds Covered Entity not to be solely or jointly negligent or otherwise solely or jointly at fault. This indemnity shall not be construed to limit Covered Entity's rights, if any, to common law indemnity. Covered Entity shall have the option, at its sole discretion, to employ attorneys selected by it to defend any such action, the costs and expenses of which shall be the responsibility of the Business Associate. Covered Entity shall provide the Business Associate with timely notice of the existence of such proceedings and such information, documents and other cooperation as reasonably necessary to assist the Business Associate in establishing a defense to such action. These indemnities shall survive termination of this agreement and Covered Entity reserves the right, at its option and expense, to participate in the defense of any suit or proceeding through counsel of its own choosing, F. R i g h t s of Proprietary Information. The Covered Entity retains any and all rights to the proprietary information, confidential information, and PHI it releases to Business Associate. G. T e rmi n a t i o n for Breach. Without limiting the termination provisions herein, if Business Associate breaches any provision herein, Covered Entity may, at its option, access and audit the 25 records of Business Associate related to its use and disclosure of PHI, require Business Associate to submit to monitoring and reporting, and such other conditions as Covered Entity may determine is necessary to ensure compliance with this Article; or Covered Entity may terminate this Agreement on a date specified by Covered Entity. H. S u r v i v a l of Key Provisions. The provisions of this Schedule shall survive the termination of the Agreement. 26