Co-Management Agreement

CO-MANAGEMENT SERVICES AGREEMENT

 

THIS CO-MANAGEMENT SERVICES AGREEMENT (this “Agreement”) is made by and between Care Gastroenterology, Inc., a California professional corporation (“Gujral”), and Affiliate physician practices with an executed affiliate program form (“Group”) (Gujral and Group, collectively, are sometimes referred to as the “Parties” or each, separately, as a “Party”), with reference to the following facts:

RECITALS

 

1. Gujral operates a medical practice that performs gastric balloon procedures through its physicians and allied health professionals at 665 Camino De Los Mares, Suite 100, San Clemente, California.
2. Group operates a medical practice with experience in pre- and post-operative care for patients, such as patients of Gujral.
3. Gujral and Group hereby wish to agree to provide clinical services to patients receiving gastric balloon procedures and to co-manage the treatment of such patients, in accordance with the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and promises made below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Principal Purpose; Service Line.
   • Principal Purpose. The principal purpose of this Agreement and the services rendered by the physicians shall be to ensure that high-quality care is provided to patients undergoing gastric balloon procedures and to enhance the efficiency with which such care is provided, consistent with the best interests of patients.
   • Service Line. The “Service Line” for purposes of this Agreement shall consist of all services required to provide gastric balloon procedures, including all pre-operative and post-operative care.
   • Professional Judgment. Physicians (as defined in Section 3) shall at all times be free, in their sole discretion, to exercise their professional judgment on behalf of patients.  Moreover, no provision of this Agreement is intended, nor shall it be construed, to permit reduce or withhold care from any patient.  In addition, Gujral, Group, and each Physician agree that this Agreement and the compensation paid hereunder are not intended to be, nor shall they be construed as, an inducement or payment to impact or influence patient referrals.
2. • Clinical Services. Gujral shall provide the clinical, management, administrative, quality improvement, and other services necessary for the performance of gastric balloon surgical procedures.  Group shall provide the clinical services necessary for all pre-operative and post-operative care of patients receiving gastric balloon procedures.  Each of Gujral and Group shall ensure that their respective Physicians devote such time to the performance of their respective services as may be necessary and appropriate for the co-management of their patients.  The services of each of Gujral and Group are further described in Exhibit A.
   • Compliance with Policies and Standards. Group and Gujral shall and shall cause Physicians to comply with, and provide services in accordance with (a) this Agreement, (b) all policies, bylaws, rules and regulations of PacifiCoast Ambulatory Surgicenter, LLC (“Surgery Center”), as applicable, and Surgery Center’s Medical Staff, as applicable, and (c) applicable laws, rules, regulations and standards of governmental authorities or accrediting agencies having jurisdiction over Group, Gujral, Surgery Center, or Physicians.
   • Medical Records. During the Term, the Parties shall maintain the medical records of patients treated under this Agreement for a period of time that is customary in accordance with professional practice and required by law.
   • Confidentiality of Medical Records; HIPAA. The Parties shall preserve the confidentiality of patient medical records in compliance with applicable State and federal statutes and shall comply with the applicable provisions of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d through d-8 (“HIPAA”), and the requirements of any regulations promulgated thereunder including without limitation the federal privacy regulations as contained in 45 C.F.R. Part 142 (collectively, the “Regulations”).  The Parties will make their internal practices, books and records relating to the use and disclosure of Protected Health Information available to the Secretary of the U.S. Department of Health & Human Services to the extent required for determining compliance with HIPAA and the Regulations
   • By entering into this Agreement, neither Gujral nor Group does delegate or assume, any of the powers, duties, or responsibilities vested in Gujral or Group, or the Surgery Center.  Each of Gujral and Group will continue to operate their respective practices in a manner consistent with the policies and standards described in Section 2.2 above, that further the clinical purposes of each of the Parties.  Additionally, neither Gujral nor Group shall incur any financial obligation on behalf of the other Party, obligate or commit any assets of the other Party for any purpose, or enter into a contract on behalf of the other Party.
3. Participating Physicians and Representations.
   • Physician Criteria. At all times during the Term (as defined in Section 5.1), Gujral and Group agree that physicians who provide services under this Agreement (each a “Physician” and collectively the “Physicians”) shall comply with (a) the Agreement, and (b) all applicable policies, bylaws, rules, and regulations described in Section 2.2, above. 
   • Representations. Group and Gujral represent on behalf of each Physicians that each Physician:
     • Holds a license to practice medicine in the State of California, and neither that license, nor any license to practice medicine in any other jurisdiction has ever been denied, suspended, revoked, terminated, voluntarily relinquished under threat of disciplinary action or restricted in any way;
     • Maintains an active practice in the field of his or her specialty;
     • Is board certified or board eligible in his or her specialty;
     • Is a member in good standing of Group or Gujral, as applicable; and
     • Has not had medical staff privileges denied, suspended, revoked, terminated, voluntarily relinquished under threat of disciplinary action, or made subject to terms of probation or any other restriction at any health care facility.
   • Non-Exclusion. Neither Group nor Gujral nor any Physician has in the past conducted and is not currently conducting a medical practice in such a manner as to cause a Physician to be suspended, excluded, barred, or sanctioned under the Medicare or Medi-Cal programs or by any government licensing agency, or has ever been convicted of an offense related to health care, or listed by a federal agency as debarred, excluded, or otherwise ineligible for federal program participation.
   • Corporate Organization. Each of Group and Gujral is validly organized and existing in the State of California.
   • Notification of Changes. Each of Group and Gujral shall notify the other Party within twenty-four hours after any event occurs that would cause any of the representations in this Section 3 to be false.
4. Compensation.
   • Billing and Collection. Gujral shall bill and collect a global fee and all charges from patients and/or responsible payors for the professional services rendered by Gujral and Group for the entire global period of treatment in connection with the gastric balloon procedures.  Group shall not separately bill or collect any amounts in connection with any patient under this co-management arrangement with Gujral.  All such collections shall be made under Gujral’s federal tax identification number and provider number(s) and shall be carried out in accordance with applicable contractual requirements, laws, and regulations.  Responsibility for billing and collection of professional fees and charges shall reside solely with Gujral and/or Gujral’s billing agent.  Group’s compensation for its services rendered hereby shall be derived exclusively from Gujral, in accordance with the fee schedules attached hereto as Exhibit B, which Group and Gujral agree represents the fair value of the services provided by Group.  Group and Gujral shall cooperate in providing the appropriate forms and information to Gujral and/or Gujral’s billing agent to facilitate an efficient and effective billing and collection process.
   • Compensation of Physicians. Group shall be solely responsible for compensating Physicians for providing services hereunder.
   • Assignment. To the extent necessary, Group and each of Group’s Physicians shall assign to Gujral any right to bill any third-party payor for professional services provided to patients under this Agreement.  Group acknowledges and Gujral shall submit these billings in its own name, and that Group is precluded from billing any third-party payor for Group’s or Group Physicians’ professional services provided under this Agreement.
5. Term and Termination.
   • Term. The term of this Agreement (“Term”) shall commence on the Effective Date and continue for a period of one (1) year, unless sooner terminated pursuant to the terms of this Agreement.  This Agreement shall automatically renew for successive like terms unless terminated in accordance with section 5.2..
   • Termination. Notwithstanding any other provisions of this Agreement, this Agreement may be terminated as follows:
     • Without Cause. This Agreement may be terminated by either Party, without cause or penalty, after the first (1st) anniversary of the Effective Date or by providing the other Party at least ninety (90) days’ written notice of its election to terminate.
     • Termination for Default. Either Party may terminate this Agreement in the event of the other Party’s breach hereof by giving thirty (30) days’ prior written notice of the general nature of such breach.  Notwithstanding the foregoing, this Agreement shall not terminate in the event that the breaching Party cures the breach, to the satisfaction of the non-breaching Party, within thirty (30) days of the receipt of such notice. 
   • Effect of Termination.
     • Obligations upon Termination. Nothing contained in this Section 5 shall affect or impair any rights or obligations arising prior to or at the time of termination of this Agreement, including, but not limited to, Gujral’s obligation to pay Group for all fees earned prior to the effective date of termination. 
     • Liabilities. Following the date of termination, each Party shall remain liable for any obligations or liabilities arising from its performance of (or its failure to perform) its obligations and duties under this Agreement prior to the date of termination. 
     • Orderly Transition. Group shall cooperate with Gujral to effect an orderly transition of all patients undergoing treatment following expiration or termination of this Agreement for any reason.

6. Insurance; Indemnification.
   • Professional Liability Coverage. Each Party shall procure and maintain, during the Term of this Agreement, professional liability insurance on a “claims made” basis covering itself, its Physicians, and any allied health professionals retained or employed to provide services under this Agreement.  The professional liability insurance to be procured and maintained shall be in the amount of not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate.  Upon request of the other Party, the party providing insurance shall promptly provide to the other a Certificate of Insurance evidencing that the professional liability insurance required under this Section 6.1 is in full force and effect.
   • Allocation of Responsibility. Except as expressly provided otherwise in this Agreement, each Party shall retain all responsibility arising under applicable law for all liabilities, losses, damages, claims and expenses of every kind, including costs and attorneys’ fees, which result from duties and obligations of that Party, and/or its officers, directors, shareholders, members, employees, agents and representatives (“Losses”).  To the extent permitted by law, each Party (“Indemnifying Party”) shall indemnify and hold harmless the other Party, and its officers, directors, shareholders, members, employees, agents and representatives from any and all losses resulting from the duties and obligations of the Indemnifying Party, except to the extent otherwise covered by insurance or to the extent that enforcement of this provision would violate the terms of, or cause the cancellation of, any policy of such insurance.
7. Miscellaneous Provisions.
   • Independent Contractors. Group and Gujral are and shall be at all times acting hereunder as independent contractors.  Nothing contained herein shall be construed as creating a partnership, joint venture, agency, or employment relationship between Gujral and Group, or any relationship other than that of independent parties contracting with each other solely for the purpose of carrying out the provisions of this Agreement. 
   • No Third Party Beneficiaries. It is intended and agreed that this Agreement shall not be construed as creating, or be deemed to create, any right or remedy in any third party.
   • Confidentiality. The terms and conditions of this Agreement are confidential and shall not be disclosed except as necessary to the performance of this Agreement or as required by law.
   • Attachments and Exhibits. Each document attached hereto as an attachment, exhibit or amendment shall hereby be incorporated herein by reference.  In the event any provisions of this Agreement conflicts with any attachment exhibit or amendment, such attachment, exhibit or amendment shall control with respect to the subject matter of the conflict.
   • Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings or representations, whether written or oral, by or among the parties with respect to the subject matter.
   • Successors and Assigns. The terms, covenants, conditions, provisions and agreements contained herein shall be binding upon and inure to the benefit of the parties hereto and to their permitted successors and assigns.
   • Applicable Law. This Agreement shall be governed by the laws of the State of California.
   • Severability. The invalidity or unenforceability of any term or provision hereof shall in no way affect the validity or enforceability of any other term provision, unless the effect of such invalidity or unenforceability is to defeat the parties’ mutual intent as expressed in this Agreement or to materially alter the obligations or benefits of any party hereunder.
   • Captions and Headings. The captions and headings throughout this Agreement are for convenience and reference only, and shall in no way be held or deemed to define, limit, describe, explain, modify, amplify or added to the interpretation, construction or meaning of any provision or to the scope of intent of this Agreement or in any other way affect this Agreement.
   • Notices. Any notices given pursuant to this Agreement shall be in writing and shall either be personally delivered or sent by certified mail, return receipt requested, postage prepaid, or by means of another regularly scheduled delivery service customarily utilized for business correspondence that provides equivalent proof of delivery and receipt, fees paid, addressed to the appropriate party as set forth below the parties, respective names below, or to such other address as a party shall designate by like notice to the other.  Such notice shall be deemed to have been given (i) when actually received, (ii) on the delivery date indicated on the return receipt, or (iii) within five (5) business days of being deposited with the United States Postal Service, whichever is earlier.
   • Remedies. The various rights and remedies herein provided for will be cumulative and in addition to any other rights and remedies the parties may be entitled to pursue under the law.  The exercise of one or more of such rights or remedies will not impair the rights of either party to exercise any other right or remedy at law or in equity.
   • Assignment. Except as contemplated by the express terms of this Agreement, no party shall assign any right or delegate any duties arising out of this Agreement without the prior written consent of the other party, provided, however, that this Agreement may be assigned, in whole or in part, by Gujral in its sole discretion to any parent, subsidiary or successor entity.
   • Amendments. This Agreement shall not be modified or amended except by a written document executed by both parties, and such written amendment(s) shall be attached to this Agreement.
   • Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original.
   • Disputes and Arbitration. In the event any dispute should arise between the parties as to the performance, validity, construction or enforceability; of this Agreement or any of its provisions, and such dispute cannot be resolved by the parties, such disputed shall be settled by arbitration before an arbitrator chosen from a panel maintained by the American Arbitration Association in Los Angeles County, California.  Such arbitration shall be conducted in accordance with the arbitration rules of the American Arbitration Association.  The rules of discovery then pertaining to California court of law shall apply.  The decision of the arbitration shall be final and may be entered as a judgment by a court of competent jurisdiction.  The parties to such arbitration shall be entitled to request interim relief, such as injunctive relief; and the arbitrator may, in his discretion, award the prevailing party attorney’s fees and costs.
   • Confidentiality.
     • Proprietary Rights and Information. Group agrees that, during the Term of this Agreement, and as long as such information and materials constitute Proprietary Information (as defined below) thereafter, Group will hold, and will cause all of its officers, directors, employees, professional advisors, independent contractors, agents, consultants, vendors, and any third party directly involved in providing services under this Agreement (“Representatives”) and who have a need to know such Proprietary Information to  hold, the Proprietary Information of Gujral in strict confidence and will neither use the information for the benefit of itself or any third party nor disclose it to any third party, except to the extent necessary to carry out Group’s responsibilities under this Agreement or as specifically authorized in writing by Gujral.  “Proprietary Information” means any and all information and materials, in whatever form, whether tangible or intangible, pertaining in any manner to the business of Gujral or its affiliates, consultants, customers, business associates, or members (including its and their officers, directors, agents, and employees), whether or not labeled or identified as proprietary or confidential, and including any copies, portions, extracts, and derivatives thereof, except to the extent that Group can prove that such information or materials (i) are or become generally known to the public through lawful means and through no act or omission of Group; or (ii) were disclosed to Group without restriction by a third party who rightfully possesses the information and is under no duty of confidentiality with respect thereto.  Proprietary Information includes, without limitation, any and all materials, information, ideas, inventions, creations, trade secrets, works of authorship, and other subject matter and all related records, that relate in any manner to the actual or reasonably anticipated business, research, development, operations, or other activities of Gujral, or were created, made, conceived, invented, discovered, developed, reduced to practice or suggested using the Gujral’s equipment, supplies, facilities, or Proprietary Information, and any other inventions, know-how, and other materials or information that are the subject of, embody or use or are made using, any proprietary rights relating to the foregoing.  Group shall be fully responsible for any unauthorized disclosure or use of Proprietary Information by a Representative.  Group shall ensure that its Representatives shall be permitted access to the other party’s Proprietary Information only on a need-to-know basis and are instructed regarding and agree in writing to hold all Proprietary Information in strict confidence.
     • Third Party Information. Group agrees that any confidential or proprietary information and materials received from third parties shall be deemed Proprietary Information for all purposes of this Agreement and will be subject to all limitations on use and disclosure set forth in this Agreement.  In addition, Group shall not use or disclose such information and materials in any manner inconsistent with any of Gujral’s obligations toward such third party.
     • Interference with Business. Group acknowledges that, because of the nature of its arrangement with Gujral, it will have access to Gujral’s Proprietary Information.  Group agrees that during the Term of this Agreement, and for a period of two (2) years after the termination of this Agreement, Group shall not directly or indirectly (i) divert or attempt to divert from Gujral (or any affiliate) any business of any kind, including without limitation the solicitation of or interference with any of its members, business partners, or suppliers or (ii) solicit, induce, recruit, or encourage any person employed or engaged by Gujral to terminate his, her or its employment or engagement.

 

• Survival of Certain Provisions. The obligations of the Parties under Section 6.2 (Allocation of Responsibility), Section 5.3 (Effect of Termination or Expiration), and this Section 7 will survive any termination of this Agreement.

EXHIBIT A

SERVICES

Prequalification consultation for gastric balloon:

Group shall complete a consultation form provided by Care Gastroenterology to confirm patient’s candidacy for treatment.  If a patient is a candidate

 

Follow Up Balloon Care: 

Group shall provide at least one post balloon placement wellness visit to gastric balloon patients of Care Gastroenterology.  The visit can be performed in office or via telephone.  During this visit Group will assess patient’s condition following the insertion of a gastric balloon.  Clinical findings will be noted on a form provided by Care Gastroenterology. 

 

This assessment will include but is not limited to:

 

Vital signs

 

Fluid intake

 

Food intake

 

Assessment of progress toward weight loss goal

 

Care Gastroenterology will coordinate the scheduling of the wellness visit with Group at the time the balloon insertion is scheduled.  This appointment will be scheduled in accordance with the scheduling availability of Group. 

EXHIBIT B

COMPENSATION

 

For all patients for which Group provides an initial Prequalification Consultation and at least one post balloon insertion Wellness Visit, Group will be provided $500. 

 

Payments for co-managed care will be made to Group within 30 days of balloon insertion.