EMERGENCY MEDICINE SERVICES AGREEMENT
By and Between
▇▇▇▇▇▇▇ HEIGHTS MEDICAL CENTER,
a New York not-for-profit corporation,
and
SHERIDAN MEDICAL HEALTHCORP, P.C.,
a New York professional corporation
Dated as of June 1, 1996
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TABLE OF CONTENTS
Page
Preliminary Statements..............................1
Section 1 Emergency Department; Commencement of Services..............2
Section 2 Operation of Emergency Department...........................2
Section 2.A Emergency Medicine Services.................................2
Section 2.B Staff Coverage..............................................4
Section 2.C Physician Qualifications....................................5
Section 2.D Standards of Operation.....................................10
Section 2.E Staff Membership and Approval..............................11
Section 2.F Quality Assurance..........................................12
Section 3 Facilities Provided by the Hospital........................13
Section 4 Insurance..................................................14
Section 4.A Sheridan's Insurance Obligations...........................14
Section 4.B Hospital's Insurance Obligations...........................15
Section 5 Compensation...............................................15
Section 5.A Billing for Patient Services...............................15
Section 5.B Compensation for Hospital Services.........................16
Section 6 Independent Contractor.....................................18
Section 7 Assignments Prohibited.....................................19
Section 8 Term of Agreement..........................................19
Section 9 Termination................................................19
Section 10 Indemnification............................................21
Section 11 Access of Books and Records................................21
Section 12 Compliance with Applicable Law.............................22
Section 13 Severability...............................................22
Section 14 Notices....................................................23
Section 15 Headings...................................................23
Section 16 Construction...............................................23
Section 17 Entire Agreement; No Waiver; Governing Law;
Venue; Waiver of Trial by Jury............................24
Execution Pages............................................25
2
AGREEMENT
BETWEEN
▇▇▇▇▇▇▇ HEIGHTS MEDICAL CENTER
AND
SHERIDAN MEDICAL HEALTHCORP, P.C.
THIS AGREEMENT, made this day of 1st day of June, 1996, by and between
▇▇▇▇▇▇▇ HEIGHTS MEDICAL CENTER, a New York not-for-profit corporation (the
"Hospital"); and, SHERIDAN MEDICAL HEALTHCORP, P.C., a New York professional
corporation ("Sheridan").
WHEREAS, the Hospital is a licensed Article 28 hospital in New York City,
New York, with divisions located at ▇▇▇▇▇▇▇ Heights Medical Center, Brooklyn,
New York (the "▇▇▇▇▇▇▇ Division") and ▇▇▇▇▇▇▇ Heights Hospital, Queens, New York
(the "▇▇▇▇▇▇▇ Heights Division"); and
WHEREAS, Sheridan is a New York professional corporation authorized to do
business in the State of New York, and has experience in the provision of
physician staffing and services for hospital emergency medicine departments; and
WHEREAS, the parties hereto desire Sheridan to provide physician staffing,
administrative and professional services (collectively, the "Services") to the
Emergency Departments at the ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Heights Divisions
(individually, an "ER Division" and collectively, the "Department") of the
Hospital;
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereto agree as follows:
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1. EMERGENCY DEPARTMENT; COMMENCEMENT OF SERVICES. Hospital retains
Sheridan and Sheridan agrees to be retained to provide the Services in the
Department on an exclusive basis in accordance with the terms of this Agreement.
Sheridan shall commence the provision of Services pursuant to this Agreement on
May 31, 1996. Upon Hospital's request, Sheridan shall provide comparable
services to Hospital at any additional facility operated, controlled or managed
by Hospital, upon such terms and conditions to be separately negotiated by
Sheridan and Hospital.
2. OPERATION OF EMERGENCY DEPARTMENT. At all times during the Term of this
Agreement, Sheridan shall be responsible for providing the day-to-day physician
staffing of the Department as follows:
A. EMERGENCY MEDICINE SERVICES.Sheridan shall provide in the Department,
through its employed or contracted emergency medicine physicians (a "Physician"
or the "Physicians"), physician services in the Department, which are usually
and customarily rendered in emergency medicine departments, including, but not
limited to:
(i) evaluating and treating the acute medical needs of every patient
submitting him/herself to the Department for medical care, regardless of ability
to pay. In the event that an individual requests treatment by his/her personal
physician, however, such patient shall be treated by the Physician on duty only
if the patient becomes distressed and, in the opinion of the Physician on duty,
requires immediate assistance;
(ii)consulting with and assisting members of the Medical Staff of the
Hospital concerning matters within the competence of the Physicians and P.A.s;
(iii) serving on such Hospital medical staff and other HospitaL
committees as may be reasonably required by Hospital from time to time and
participating in all activities pertaining to Hospital and Medical Staff
relations;
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(iv) participating in Hospital's teaching and residency programs as
requested by Hospital, and cooperating and assisting in the development of a
teaching and residency program in emergency medicine, if so requested by
Hospital;
(v) cooperating and assisting in the training and scheduling of all
Department personnel, including but not limited to Hospital's physicians,
nurses, allied health professionals, technicians, medical students, residents
and fellows;
(vi) analyzing quality assurance and professional performance data, in
accordance with Hospital's quality assurance policies and procedures, including
without limitation the use of such information with respect to the Medical
Staff's biennial reappointment process;
(vii) overseeing compliance with quality management programs and
patient management policies and protocols developed by Sheridan and approved by
Hospital and the Department with respect to risk management, Joint Commission
or the Accreditation of Healthcare Organizations ("JCAHO"), American
Osteopathic Association ("AOA"), and patient management standards, including,
but not limited to mechanisms for periodic patient satisfaction surveys;
(viii) becoming actively involved in the communities served by Hospital
through educational and other programs to promote the services of Hospital and
develop community recognition and support; and,
(ix) operating the Department in a cost efficient and effective
manner, subject to the budgeting systems and constraints established by
Hospital, including, upon Hospital's request, participating in the preparation
of operating and capital budgets for the Department which will include
projections of revenues and expenditures and recommendations for more cost
effective methods.
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B. STAFF COVERAGE.Sheridan shall provide sufficient staff for the provision
of emergency medicine services for all patients of the Department, as follows.
1. PHYSICIANS.Sheridan shall provide sufficient staff for physician
coverage twenty-four (24) hours per day, seven (7) days per week, 365 days per
year, at each ER Division during the Term. Sheridan shall increase or decrease
physician coverage in each ER Division as warranted by patient volume; provided
however, that physician coverage shall not fall below the minimum coverage
requirements stated above. Sheridan shall implement any increased physician
coverage in the event that the average number of patient visits at either ER
Division exceeds 2.5 visits per hour, as determined on the basis of any two-week
period during the Term. Any subsequent decrease in physician coverage may be
implemented by Sheridan in the event that the average number of patient visits
to either ER Division falls below 2.5 visits per hour, as determined on the
basis of any two-week period during the Term.
In the event that Hospital establishes a residency program in
emergency medicine, Sheridan shall provide Physicians board certified in
emergency medicine to the extent required by any program.
2. PHYSICIAN'S ASSISTANTS. In addition to the Physicians described
above, Sheridan shall also provide or arrange for physician's assistant ("P.A.")
staffing for the ▇▇▇▇▇▇▇ ▇▇ Division twelve (12) hours per day, seven (7) days
per week, 365 days per year during the Term. P.A. coverage may be temporarily
increased by Sheridan at the ▇▇▇▇▇▇▇ ▇▇ Division at any time when, Hospital and
Sheridan mutually agree that patient volume exceeds the capability of the
existing staff at the ▇▇▇▇▇▇▇ ▇▇ Division to provide appropriate patient care.
P.A. coverage may be reduced or eliminated in the event that the Hospital and
Sheridan mutually agree that improvements in the level and scope of the
Department's nursing service provided by the Hospital renders the P.A. coverage
excessive or no longer necessary.
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Sheridan shall require that all Physicians or P.A.s employed or
engaged by Sheridan wear name tags while on duty at the Hospital. Such name
tags shall clearly identify each Physician or P.A. as an employee or
contrtactor of Sheridan. At Hospital's request, Sheridan shall post a sign in
each ER Division notifying patients that the Physicians and P.A.s providing
services in the Department are employed by Sheridan and not by the Hospital.
Sheridan shall provide that an adequate number of Physicians on staff are
on-call 24 hours per day, 365 days per year, to provide continuous availability
of clinical coverage in the event of an emergency, a disaster or transitory
excessive patient case load. Any on-call staff shall be available by available
by pager to respond to Hospital's call within thirty (30) minutes.
C. PHYSICIAN QUALIFICATIONS. In theevent that Hospital provides Sheridan
with written notice that any Physician employed or engaged by Sheridan is in
violation of Hospital's written personnel standards and policies (which notice
shall state the nature of that violation), Sheridan shall take appropriate
action to discontinue that individual's work at the Hospital in accordance with
those standards and policies. Sheridan shall immediately remove any Physician
from that Hospital, in its sole discretion, reasonably deems to be an immediate
threat to the safety or well-being of Hospital's patients, staff or visitors.
All Physicians shall:
(i) be licensed to practice medicine in the State of New York and
maintain Federal DEA numbers;
(ii) be board-eligible in a primary care specialty;
(iii) agree to adhere to the ethics and principles of the American
College of Emergency Physicians ("ACEP")
(iv) fulfill all Continuing Medical Education ("CME") requirements as
needed to maintain New York licensure and to meet all CME standards and all
standards of ACEP;
(v) achieve and maintain Advanced Cardiac Life Support ("ACLS")
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certification;
(vi) undergo an in-depth pre-employment screening process by
Sheridan, including thorough checking of at least three (3) references with the
Data Release Department of the American Medical Association as a back-up.
Sheridan shall review the American Medical Association Physician Profile Service
("AMAPPS") file of each physician candidate, inform the Hospital regarding the
results of such review, and take any necessary and/or appropriate action based
upon information revealed from such file. In accordance with the Hospital's
Medical Staff Bylaws, physician candidates may be granted temporary privileges
prior to completion of the AMAPPS review process; and,
(vii) be individually credentialed by Hospital. Physician candidates
shall be required to undergo Hospital credentials review procedures as provided
in Hospital's Medical Staff Bylaws for granting of medical staff membership, and
Sheridan shall ensure that no physician shall work in the Department unless he
or she has been granted such staff privileges and maintains medical staff
membership in good standing.
Additionally, Sheridan agrees that it will support Hospital's
filing of an application to be designated as a 911 EMS receiving station.
Sheridan agrees that its Physicians shall achieve Basic Cardiac Life Support
"BCLS") and ACLS certification within thirty (30) days of the execution of
this Agreement and shall meet any other specific physician qualifications for
the EMS program within ninety (90) days of the Hospital's approval as a 911
EMS receiving station. Sheridan's agreement in this regard is conditioned upon
Hospital's agreement to work with Sheridan in good faith at all times during
this process to ensure that the required credentialling of the Physicians
and P.A.s is accomplished on a timely basis.
(1) DEPARTMENT DIRECTOR. A mutually acceptable physician shall be recruited
by Sheridan and appointed by Hospital as Director of the Department (the
"Director"). The Director shall be board-certified in emergency medicine or
board certified in internal medicine, surgery or family practice, with extensive
emergency department clinical and managerial experience and shall achieve and
maintain Advanced Trauma Life Support ("ATLS") certification within six (6)
months of appointment. The Director will be responsible for direct overall
supervision of all Department Physicians and P.A.s and for integration of the
Department into the Hospital organization.
During the absence of the Director for vacation, sick leave, or for any
other short-term reason, Sheridan shall provide a substitute Director and notify
Hospital. The substitute Director shall be appointed subject to the consent of
Hospital, which consent shall not be unreasonably withheld. The substitute
Director shall be a physician hired by Sheridan to work at Hospital, be
privileged at Hospital and be board-certified or board-eligible and in the
process of obtaining board certification. In the event of the Director's death,
disability, resignation, termination of employment with Sheridan or retirement,
or at the Hospital's option, the substitute Director shall continue to perform
under the terms and conditions of this Agreement until Hospital approves the
appointment of a new Director recruited by Sheridan who meets all of the
criteria established for the Director, which approval shall not be unreasonably
withheld.
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Sheridan shall be responsible for ensuring that the Director or the
substitute Director is on site during normal business hours to handle
administrative and unusual patient disposition issues as well as to provide
back-up clinical coverage in the event of an emergency, a disaster or excessive
patient case load. The Director and/or the substitute Director shall be on-call
at all times, shall be available by pager and shall respond by telephone or in
person to Hospital's call within thirty (30) minutes.
The Director shall be a member of the Medical Board and of such additional
committees of the Medical Staff and Hospital as required by the Medical Director
of the Hospital, and shall have general authority to carry out the terms of this
Agreement. In addition to the above, the Director shall be responsible for
carrying out duties and responsibilities including but not limited to:
(a) supervising, on a day-to-day basis, the delivery of emergency
medical care in the Department, resolving all conflicts arising among Department
professionals, responding, in conjunction with the Medical Director, to all
patient concerns and complaints relating to Department services, and acting as
a liaison among medical staff, nursing staff and administration in matters
relating to the Department;
(b) monitoring and making recommendations with respect to the care
provided in the Department by both Sheridan personnel and Hospital staff members
as part of Hospital's quality assurance program, and ensuring that all Sheridan
personnel comply with all requirements of regulatory and accreditation bodies,
and with all bylaws, rules, regulations, and other written policies and
procedures of Hospital and the Department with respect to the operation of the
Department and Hospital's quality assurance program;
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(c) monitoring and reporting to Hospital on the status of all
Physicians and P.A.s with respect to the credentialling requirements established
by Hospital's Credentials Committee and regularly evaluating physician
performance and conduct, including, but not limited to: (a)an evaluation of each
new physician before the start of service in order to recommend acceptance of
the physician for full service, an extension of the probationary period or
termination of that physician; (b) one annual performance appraisal of each
Physician working in the Department; (c) taking any necessary or advisable
corrective disciplinary measures;
(d) developing, recommending, and, at the Hospital's direction,
implementing and maintaining, all policies and procedures pertinent to emergency
medical care and updating those policies and procedures at least annually;
(e) developing, recommending, and, at Hospital's direction,
implementing and maintaining, written quality assurance and risk management
programs which meet the requirements of the JCAHO, the AOA and the Medical
Staff plan for emergency medicine services;
(f) conferring from time to time with Hospital administration and
consulting as to the organization and management of the Department in order
to enhance its public service capabilities, efficiency, and quality of care;
(g) supervising and participating in, as required, the educational
activities of the Department, serving as a liaison with physician staff to
provide educational programs at Hospital,including CME seminars, and in the
development of training programs for nursing personnel and allied healthcare
providers, and ensuring that all Department Physicians and P.A.s remain
current in emergency medicine and continuing education requirements;
(h) attending Medical Staff meetings and administrative meetings
relating to the operation of the Department, serving the Medical Board and on
other appropriate Medical Staff committees and actively participating in and
attending all required Hospital committee meetings;
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(i) assisting in the budget process and control of resources in
accordance with Hospital policies and assisting Hospital in the preparation
and implementation of an annual departmental business plan;
(j) actively participating with city,county and state Emergency
Medicine Services Councils and maintaining an active dialogue with area EMS
agencies and participation in EMS activities; and,
(k) consulting with Hospital on nursing staff personnel and
policies, clerical and financial staff personnel and policies and any other
policies which affect the delivery of emergency medical care in the Department.
D. STANDARDS OF OPERATION.
(i) COMPLIANCE WITH LAWS, RULES AND ACCREDITING BODIES. The
Physicians and P.A.s shall conduct their activities in the Department in
accordance with all applicable state, federal and local laws, rules and
regulations and with the requirements and standards of the JCAHO, AOA, ACEP, and
the policies, practices, rules or regulations as may be established from time
to time by the Board of Trustees and/or the Medical Staff of Hospital pursuant
to Hospital and Medical Staff Bylaws. The Physicians and the Director will be
bound by the standards of conduct and bylaws of Hospital applicable to members
of Hospital's Medical Staff including those pertaining to relations with
administration, staff and patients. Hospital shall provide Sheridan and the
Director with updated copies of all applicable Hospital and Medical Staff
Bylaws, policies and procedures.
(ii) NO DISCRIMINATION. Sheridan shall ensure that all patients who
present themselves to the Department are examined, managed and treated
appropriately regardless of race, color, creed, handicap, sex, age, sexual
orientation, marital status or ability to pay.
(iii) PROVISION OF EMERGENCY MEDICINE SERVICES. Physicians furnished
by Sheridan to the Hospital shall not provide inpatient medical services or
treatment to patients except in the case of medical emergencies and shall not
admit patients to the Hospital, except to the service of an active member of
Hospital's medical staff. In the event a patient requires admission to the
Hospital and does not indicate a physician of choice, that patient shall be
admitted to the service of the physician on call.
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E. STAFF MEMBERSHIP AND APPROVAL. Any Physician, including the Director,
whose staff privileges are removed or restricted by Hospital shall not work in
the Department. Upon the termination of this Agreement or upon the termination
of the affiliation of any Physician with Sheridan for any reason, the Department
staff membership and Department clinical privileges of that Physician shall
be automatically terminated by Hospital without further action and without
providing opportunity for hearing or other due process. Sheridan shall
specifically require that each Physician agree in writing to waive all rights
and due process privileges set forth in the Hospital Medical Staff Bylaws with
respect to termination or other limitation of Medical Staff membership or
clinical privileges.
F. QUALITY ASSURANCE.
(i) ASSISTANCE IN HOSPITAL'S QUALITY ASSURANCE PROGRAM. As part of
Hospital's overall quality assurance program, Sheridan shall assist in
establishing procedures to assure the consistency and quality of all services
provided in the Department by physicians, nurses, allied health professionals,
and other technical and non-medical personnel, in accordance with Hospital
policies and the policies of licensing, accrediting and/or review organizations.
Sheridan personnel shall serve on such committees as may be appropriate in
connection therewith.
(ii) PARTICIPATION IN TEACHING AND RESIDENCY PROGRAMS.Sheridan shall
participate in and cooperate with Hospital's various teaching and residency
programs which may be necessary or advisable to ensure Hospital's overall
compliance with accrediting requirements, and perform such other related
functions within Hospital as may be reasonably requested by Hospital. Sheridan
shall ensure that all Physicians and P.A.s remain current in emergency medicine
and continuing education requirements.
(iii) DEPARTMENT INSPECTION. Sheridan shall assist Hospital in the
periodic evaluation of all emergency room equipment to determine whether the
equipment is being maintained in a safe condition and being utilized in a safe
and efficient manner. Further, Sheridan shall advise Hospital with respect to
the selection of additional and replacement equipment for the Department,
provided, however, that Hospital shall have the final authority in deciding
whether or not to purchase such additional and/or replacement equipment.
(iv) CONSULTATION REGARDING SUPPLIES AND SUPPORT SERVICES. Sheridan
shall advise Hospital regarding requisitions for medical and administrative
supplies and support services required for the operation of the Department. In
connection therewith, Sheridan shall request appropriate nursing personnel to
submit such requisitions through regular purchasing channels in accordance with
established Hospital policies and practices.Except pursuant to the prior written
approval of Hospital,Sheridan shall not engage in direct purchasing or otherwise
contract any liability on behalf of Hospital and shall neither charge the credit
of Hospital nor incur any obligations or enter into any agreement for or on
behalf of Hospital in the operation of the Department or otherwise.
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3. FACILITIES PROVIDED BY HOSPITAL. During the Term of this Agreement,
Hospital shall, at its expense, provide the following facilities,services and
supplies, necessary to comply with applicable laws, rules and regulations for
the proper and efficient operation of the Department and to permit Sheridan
to adequately perform its duties under this Agreement:
A. The area and facilities presently occupied by or for the use of the
Department, or comparable facilities at the Hospital, including medical
equipment, office space, furniture, files, office equipment, instruments, a
private sleeping room upon request, and related items presently in the
Department, or comparable furnishings and equipment;
B. maintenance of all items referred to in subparagraph (A) hereof and
replacements thereof as necessary;
C. suitable staffing, consisting of qualified registered nurses, licensed
practical nurses, technicians, venapuncturists and clerical personnel, as
necessary to ensure effective and efficient patient care, as well as a qualified
nursing supervisor to oversee nursing functions; all such personnel shall be and
remain employees or contractors of the Hospital, and shall not be employees
and/or contractors of Sheridan with respect to any services provided pursuant to
this Agreement;
D. services including, but not limited to, janitorial, security, in-house
messenger, laundry, electricity, gas, water, heat, patient system, telephone,
and other utilities;
E. supplies such as chemicals, paper, stationery, and similar items
necessary for the proper and effective operation of the Department;
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F. maintenance of medical records of Hospital patients treated by the
Physicians and P.A.s. All medical records shall be and remain the property of
the Hospital; provided that Hospital shall provide Sheridan with one legible
copy each day of the Department patient records containing the patient billing
and physician service information, subject to state and federal law regarding
the confidentiality of medical records; and further provided that Hospital shall
make available to Sheridan the registration log of the Department to be copied
at the Hospital by a Sheridan representative acceptable to the Hospital, which
representative shall be given reasonable access to the Hospital's copying
machines for the purpose of copying the Department registration log ; and
G. secure parking for Physicians and P.A.s at Hospital's usual rates.
4. INSURANCE.
▇.▇▇▇▇▇▇▇▇'▇ INSURANCE OBLIGATIONS. Sheridan will provide and maintain
professional liability insurance, with limits of no less than One Million
Dollars ($ 1,000,000.00) per claim and Three Million Dollars ($ 3,000,000.00)
annual aggregate, covering the professional conduct of Sheridan, each Physician,
and the Director. At Hospital's request, Sheridan shall review the insurance
coverage provided under this Agreement. Said coverage may be adjusted by mutual
agreement of the parties.
Sheridan shall be solely responsible for any insurance required by virtue
of Sheridan's status as employer, including but not limited to workers
compensation insurance and unemployment insurance for each employee of Sheridan.
Sheridan shall furnish to Hospital certificates of insurance evidencing
all of such coverage at the commencement of this Agreement and annually
thereafter. In addition, Sheridan shall provide Hospital with at least thirty
(30) days' prior written notice of any reduction, cancellation or termination
of any such insurance from Sheridan's insurance carrier. Sheridan shall
immediately notify Hospital of any such change and of any and all claims filed
against Sheridan or against any of the Physicians, the P.A.s and/or employees
relating to the services rendered pursuant to this Agreement.
B. HOSPITAL'S INSURANCE ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇ shall provide general liability
insurance coverage for operation of the Department in such amounts as ordinarily
carried for such purposes by Hospital. In satisfaction of this obligation,
Hospital may provide coverage under an actuarial determined self-insurance plan.
Upon request of Sheridan, Hospital shall furnish evidence of such coverage.
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5. COMPENSATION.
A. BILLING FOR PATIENT SERVICES.
(i) Hospital shall cooperate with Sheridan to furnish data reasonably
necessary to enable Sheridan to ▇▇▇▇ for the professional component of patient
care services as provided by the Physicians and the P.A.s. Sheridan shall ▇▇▇▇
patients directly, on a fee-for-service basis, for services rendered by the
Physicians and the P.A.s. Sheridan shall charge Hospital patients only for the
professional component of such services and shall not charge any Hospital
patient for the technical component.
Sheridan shall provide Hospital with a copy or copies of each fee
schedule upon request. All fees for emergency medicine services shall be
comparable with fees charged for the same or similar services elsewhere in the
community, and shall not violate any law or regulation governing fees,
including without limitation, Federal Medicare and Medicaid statutes and
regulations. With respect to services rendered by Sheridan to persons covered by
Medicare, Sheridan agrees to accept Medicare assignments as payment in full
and shall not ▇▇▇▇ such patients for any amounts except for the co-insurance
and deductible amounts which are the direct responsibility of the patient under
applicable rules and regulations regarding Medicare coverage.
Sheridan shall assume the costs associated with such billing,
including the costs of preparing, mailing and collecting the invoices,and shall
indicate on each invoice that it is billing only for the professional component
of the Physician services.
(ii) Hospital shall ▇▇▇▇ patients directly for the non-professional
component of services rendered. Hospital shall be solely responsible for
its own billing and collection with regard to such non-professional
component.
B. COMPENSATION FOR SERVICES. In consideration for the Services rendered
by Sheridan with respect to the administration and operation of the Department
and the fulfillment of its teaching responsibilities, Hospital shall
compensate Sheridan as follows:
(i) Hospital shall make an initial payment of Two Hundred Sixty-Six
Thousand Six Hundred Sixty-Seven Dollars ($266,667.00) on the execution date of
the Agreement, which shall be applied to and constitute payment in full of the
final payment due in the final month of the Agreement. In the event that this
Agreement is terminated prior to the completion of the Term or any renewal term
described in Section 8, Sheridan shall immediately return such payment in full
to Hospital, less any accrued but unpaid amounts owed by Hospital pursuant to
this Section 5.B.
14
(ii) Commencing on July 1, 1996 and continuing throughout the Term of
this Agreement, and except as provided in the next succeeding sentence, Hospital
shall pay to Sheridan the sum of Two Hundred Sixty-Six Thousand Six Hundred
Sixty-Seven Dollars ($266,667.00) per month for emergency medicine services
rendered to the Hospital (the "Emergency Services Compensation"). In the event
that the ▇▇▇▇▇▇▇ Heights Division permanently closes its ER Division, upon
ninety (90) days prior written notice to Sheridan, then the Emergency Services
Compensation shall be reduced to Two Hundred Twenty-Five Thousand Dollars
($225,000.00) per month, commencing on the first day of the month following the
ninety (90) days prior written notice and continuing throughout the remainder of
the Term. Each monthly payment of Emergency Services Compensation shall be due
on the first day of the month in which the Services are to be rendered. If any
Emergency Services Compensation is not paid within thirty (30) days of the date
each monthly payment is due, then the unpaid amount shall accrue interest until
paid at a rate of interest equal to Citibank, N.A.'s prime rate, as announced
from time to time, plus 3/4 percent. Further, all payment obligations of the
Hospital pursuant to this subsection shall survive the termination of this
Agreement.
(iii) Hospital understands,agrees and acknowledges that Sheridan has
entered into this Agreement with the expectation that in addition to the
Emergency Services Compensation, Sheridan shall be entitled to ▇▇▇▇ and collect
from the State of New York the amount of 100 percent (100%) of the Medicaid
allowable fees for the emergency services Sheridan provides to the Hospital's
Medicaid patients pursuant to this Agreement. In the event that there is a
change in circumstances concerning federal or state laws or regulations or other
pronouncements or policies governing the Medicaid reimbursement system which
either limits, substantially delays or precludes Sheridan from receiving
Medicaid fees for services rendered, Hospital agrees, as an inducement to
Sheridan's entering into this Agreement, to restructure the subsidy arrangement
so as to increase the subsidy amount paid to Sheridan by the amount of Medicaid
allowable fees not then paid to Sheridan. Hospital further agrees that
Sheridan's entitlement to the foregoing adjustment shall accrue upon the
effective date of the regulatory change.
6. INDEPENDENT CONTRACTOR.
A. The parties hereto expressly understand and agree that Sheridan and
Hospital are independent contractors, and that no relationship of employer or
employee is created by this Agreement. None of the Physicians or P.A.s
performing services for Sheridan pursuant to this Agreement shall be employees
or contractors of Hospital, and no Physician or P.A. shall have any claim under
this Agreement or otherwise against Hospital for salary, vacation pay, sick
leave, or retirement benefits of any kind. No Sheridan employee or independent
contractor shall be eligible to participate in any benefit program provided by
Hospital for Hospital employees.
15
B. PAYMENT OF OBLIGATIONS. Except as set forth in this Agreement, each
party hereto shall be exclusively liable for its own debts, obligations, acts
and omissions, including administrative and corporate expenses, the payment of
any required payroll, fringe benefits, unemployment and workers' compensation
insurance, and the payment of all withholding, Social Security and other taxes
and benefits.
7. ASSIGNMENTS PROHIBITED. Sheridan shall not assign its interest in and
obligations under this Agreement to any entity without the prior written consent
of Hospital, which shall not be unreasonably withheld.
8. TERM OF AGREEMENT. The term of this Agreement shall be from May 31, 1996
until May 30, 1999 (the "Term"). This Agreement may be renewed for three (3)
year terms upon mutual agreement of the parties hereto.
9. TERMINATION. This Agreement may be terminated at any time upon the
occurrence of any one of the following events:
(i) by either party upon the dissolution of the other;
(ii) by either party, upon the other's entrance, either voluntarily or
involuntarily, into any form of bankruptcy, including an assignment for the
benefit of creditors;
(iii) by either party, in the event the other is responsible for revocation
or suspension of any required license or other operating authority, or the
taking of other disciplinary action by an appropriate regulatory authority, for
failure to comply with applicable laws, rules or regulations with respect to
operation of the Department;
(iv) by either party in the event that federal, state or local legal or
administrative requirements adopted subsequent to execution of this Agreement
render this Agreement or any part thereof illegal or otherwise untenable, and
the parties, after good faith negotiation for at least sixty (60) days, are
unable to reach agreement on a way to satisfy such new requirements;
(v) by either party upon a material breach of this Agreement by the other,
where the breaching party fails to cure such breach within sixty (60) days of
the receipt of notice thereof; or
(vi) by both parties upon written agreement;
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(vii) by Hospital, in the event of cancellation of or a material change in
Sheridan's insurance coverage required pursuant to this Agreement;
(viii) by Hospital, in the event of conduct by any Physician or P.A. which,
in the fair and reasonable opinion of Hospital endangers the welfare of any
Hospital patient or is otherwise in violation of the bylaws, rules and
regulations of Hospital or the Medical Staff, where, after written notice from
the Hospital, Sheridan fails to promptly remove such Physician or P.A.from
Hospital premises and from his/her position at Hospital upon written notice by
the Hospital; or,
(ix) by Sheridan, if Hospital fails to make any Emergency Services
Compensation Payments required hereunder within thirty (30) days following the
date on which any payment is due; provided that Sheridan shall provide
reasonable prior notice to Hospital that Sheridan has not received payment so as
to permit Hospital to make such payment prior to the expiration of the thirty
(30) day period.
C. EFFECT OF TERMINATION. Upon termination of this Agreement, neither party
shall have any further obligation, and, except with respect to obligations
accruing prior to the date of termination or provisions herein, which, by their
express terms, survive termination of this Agreement for any reason, Hospital's
obligation to make payments to Sheridan shall cease as of the date of
termination. In the event that this Agreement terminates on or after the first
(1st) day of a month, Hospital's final monthly payment obligation shall be the
pro rata share of that monthly payment. In addition, as noted in Section 5.B
hereof, in the event that this Agreement is terminated for any reason before the
end of the Term or any renewal Terms, Sheridan shall repay to Hospital its
entire initial Two Hundred Sixty-Six Thousand Six Hundred Sixty-Seven Dollar
($266,667.00) initial payment, less any amounts accrued but unpaid amounts owed
by Hospital pursuant to Section 5.B. Both parties agree to cooperate with each
other during the termination process in order to assure continuity of care to
patients being served pursuant to this Agreement.
10. INDEMNIFICATION.
A. Hospital shall indemnify and hold harmless Sheridan, its governing body,
officers, agents, physicians, and employees from and against any and all
liabilities, claims, losses, damages, lawsuits, judgments, and expenses
(including reasonable attorneys' fees) to the extent that they proximately arise
out of any act or omission by Hospital or any of their agents or employees
acting in connection with this Agreement or the provision of services hereunder.
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▇. ▇▇▇▇▇▇▇▇ shall indemnify and hold harmless the Hospital, its governing
body, and their officers, medical staff, agents and employees from and against
any and all liabilities, claims, losses, lawsuits, judgments and expenses
(including reasonable attorneys' fees) to the extent that they proximately arise
out of any act or omission by Sheridan or any of its Physicians, P.A.s, agents
or employees acting in connection with this Agreement or the provision of
services hereunder.
11. ACCESS TO BOOKS AND RECORDS.
▇. ▇▇▇▇▇▇▇▇ shall, at all times as Hospital may reasonably request, make
available to the Division Administrator responsible for the Hospital, or his
designee, all of its books and other financial records relating to Sheridan's
performance of services hereunder. Hospital shall have the right to examine and
audit such books and records.
B. To the extent required by applicable law, Sheridan shall make available
to the United States Department of Health and Human Services ("HHS"), the New
York State Health Care Finance Administration, the State of New York, and the
Medicare or Medicaid intermediary, this Agreement and its books, documents and
records necessary to verify the nature and extent of costs of services furnished
hereunder. Sheridan shall maintain and continue to make available all such
books, documents and records for a period of no less than four (4) years after
the services are completed under this Agreement. If Sheridan carries out any of
the duties of the Agreement hereunder through a subcontract having a value or
cost of $10,000 or more over a twelve month period, such subcontract shall
contain a clause to the effect that, until the expiration of four years after
the furnishing of such services pursuant to such subcontract, the subcontractor
shall make available upon written request to the Secretary of HHS or upon
request to the Comptroller General of the United States or any of their duly
authorized representatives, copies of the subcontract necessary to verify the
nature and extent of the costs of such subcontract.
12. COMPLIANCE WITH ALL APPLICABLE LAW.
A. Notwithstanding any other provision in this Agreement, Hospital remains
responsible for ensuring that any service provided pursuant to this Agreement
complies with all pertinent provisions of federal, state and local statutes,
rules and regulations.
▇. ▇▇▇▇▇▇▇▇ represents that its employees providing services hereunder have
been informed of and trained in the confidentiality and disclosure requirements
of New York statutes and regulations, including those provisions concerning
HIV/AIDS related information, and Sheridan and its employees agree to comply
with such requirements.
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13. SEVERABILITY. If any provision of this Agreement or the application of
any provision hereof to any person or circumstance is held invalid, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected unless the invalid provision
substantially impairs the benefits of the remaining portions of this Agreement.
14. NOTICES. All notices hereunder shall be given in writing, by certified
mail, return receipt requested, addressed as hereafter provided, or to such
other addresses or person as either party may designate in writing:
If to Hospital: ▇▇▇▇▇▇▇ Heights Medical Center
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Division Administrator
With a copy to: Preferred Health Network, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Legal Affairs
If to Sheridan: Sheridan Medical Healthcorp, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel
15. HEADINGS. Paragraph headings are for reference only and shall not be
considered in the construction of this Agreement.
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16. CONSTRUCTION. This Agreement shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Agreement to be drafted, including any presumption of superior knowledge or
responsibility based upon a party's business or profession or any professional
training, experience, education or degrees of any member, agent, officer or
employee of any party. If any words in this Agreement have been stricken out or
otherwise eliminated (whether or not any other words or phrases have been added)
and the stricken words initialed by the party against whom the words are
construed, then this Agreement shall be construed as if the words so stricken
out or otherwise eliminated were never included in this Agreement and no
implication or inference shall be drawn from the fact that those words were
stricken out or otherwise eliminated.
17. ENTIRE AGREEMENT; NO WAIVER; GOVERNING LAW; VENUE; WAIVER OF TRIAL BY JURY.
This Agreement contains the entire Agreement of the parties and shall not be
amended, waived or modified except in writing, signed by both parties. The
waiver by a party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach.
This Agreement shall be governed by the laws of the State of New York. Any
and all proceedings relating to this Agreement and/or the services rendered
hereunder shall be maintained in the courts of the State of New York located in
Kings County, or the federal district courts sitting in Kings County, New York,
which courts shall have exclusive jurisdiction for such purpose. The parties
accept the exclusive personal jurisdiction of such courts for the purpose of any
suit, action or proceeding with respect to this Agreement. In addition, the
parties knowingly, intentionally and irrevocably waive, to the fullest extent
permitted by law, any objection to the laying of venue of any suit, action or
proceeding relating to this Agreement, or any judgment entered by any court
brought in the State of New York, Kings County. The parties knowingly and
intentionally waive any claim that any suit, action or proceeding brought in the
State of New York, Kings County, has been brought in an inconvenient forum. IN
ADDITION, THE PARTIES WAIVE ALL RIGHTS TO
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ANY TRIAL BY JURY IN ALL LITIGATION RELATING TO OR ARISING OUT OF THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representative, the day and year first set forth above.
HOSPITAL:
▇▇▇▇▇▇▇ HEIGHTS MEDICAL CENTER,
a New York not-for-profit corporation
By: __________________________________
▇▇▇▇▇▇▇ Gio
Division Administrator
SHERIDAN:
SHERIDAN MEDICAL HEALTHCORP, P.C.,
a New York professional corporation
By: __________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
President
