PARTICIPATING PHYSICIAN AGREEMENT

PARTICIPATING PHYSICIAN AGREEMENT
This Participating Physician Agreement (“Agreement”) is made this __________day of
_____________, in the year 2013 (“Effective Date”) by and between Advocate Sherman Physician
Partners (“PHO”), an Illinois corporation and member of Advocate Health Partners d/b/a Advocate
Physician Partners (“APP”) and ________________________________________________ [physician]
or _____________ ____________________________________ [medical group name on behalf of each
individual physician listed on Exhibit G], (“Physician”) a physician duly licensed in the State of Illinois
to practice medicine in all its branches and a member in good standing on the Medical Staff of Advocate
Sherman Hospital (“Hospital”) (each a “Party” and collectively the “Parties”).
RECITALS
WHEREAS, Each PHO is a network of health care providers in the geographic region of the Hospital
and a member of APP. Through a Corporate Membership Agreement with APP, PHO delegates services,
including but not limited to managed care contracting, credentialing and physician contracting services to
APP.
WHEREAS, APP is a provider governed entity which arranges for financially and clinically integrated
managed care contracting on behalf of PHO and its member physicians in order to arrange health care
services in a cost effective and efficient manner for the benefit of APP member organizations and
physicians, Managed Care Organizations and ultimately health care consumers; and
WHEREAS, APP has established a clinical integration (CI) program in order to improve health outcomes
and reduce the costs of patient care through improved coordination of care, active management of chronic
disease states, and participation in clinical quality improvement initiatives. The CI program, a nonexclusive collaborative effort of APP member physicians, Advocate hospitals and PHOs, also creates
financial incentives for those physicians who perform well against defined measures; and
WHEREAS, APP has and/or will enter into clinically or financially integrated written agreements with
MCOs on behalf of Physician to arrange for the provision of Covered Services to Members and Physician
desires APP to enter into such agreement on PHO and Physician’s behalf; and
WHEREAS, the agreements between APP and MCO may require the participation of a physician panel
consisting of individual physicians who have executed an Agreement with APP; and
WHEREAS, Physician desires to be included in the physician panel and provide health care services to
Members and APP and PHO desire to include Physician and secure such services for Members.
NOW, THEREFORE, in consideration of the promises and the terms, covenants, and conditions set
forth herein, the parties mutually agree as follows:
SECTION 1 – DEFINITIONS
For the purposes of this Agreement the following terms are defined as follows:
1.1
Clinical Integration Program. A non-exclusive, active and ongoing program of clinical quality
initiatives developed, implemented, and operated by APP in collaboration with Hospital in order to create
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a high degree of coordination and interdependence among Participating Health Care Professionals with
the intent to increase value and efficiency, and improve patient outcomes.
1.2
Co-Payment. Payment(s), including but not limited to co-pays, deductibles and co-insurance,
which may be collected directly from a Member in accordance with the terms of this Agreement, the
summaries of benefits, or a Group Services Agreement.
1.3
Covered Services. Those Medically Necessary services provided to a Member pursuant to the
terms of a Group Services Agreement and/or those services for which payment is available pursuant to the
terms of a Group Services Agreement.
1.4
Group Services Agreement. The agreement executed between MCO and an employer, labor
union, trust, or other organization which describes the costs, procedures, benefits, conditions, limitations,
exclusions, and other obligations to which Members are subject under MCO’s health services plan.
1.5
Health Care Professionals. Physicians, nurses, podiatrists, physicians assistants, clinical
psychologists, social workers, nutritionists, physical therapists, speech therapists, dentists, chiropractors
and other professionals engaged in the delivery of health services and licensed, as required, by the State
of Illinois.
1.6
Managed Care Organization ("MCO"). A duly licensed entity (i) qualified to arrange for the
provision of comprehensive medical services to Members and (ii) which has entered into a written
agreement with APP pursuant to which APP agrees to arrange for the provision of Covered Services to
Members by Physician. This term may include without limitation Health Maintenance Organizations
(“HMO”), Preferred Provider Organizations (“PPO”), Preferred Provider Arrangements (“PPA”), Point of
Service Plans (“POS”), and such other forms of alternative health care delivery and finance systems
which may from time to time contract with APP to arrange for the provision of Covered Services to
Members.
1.7
Medical Director. A duly licensed physician or physicians designated by the APP and/or PHO
Board of Directors to monitor the arrangement of medical services and coordination of medical issues
arising out of the provision of Covered Services to Members. For purposes of this Agreement, Medical
Director shall mean the Medical Director or his or her authorized designee.
1.8
Medically Necessary. Medical or surgical treatment which Member requires, as deemed
appropriate and necessary for the symptoms, diagnosis and treatment by one or more Participating
Physicians in accordance with generally accepted medical and surgical practices and standards; provided,
however, that any services which are not determined to be Medically Necessary according to APP’s or
MCO’s utilization review standards shall not be deemed to be Medically Necessary for purposes of
payment under this Agreement.
1.9
Member. Any individual, or any one of his/her qualified dependents entitled to Covered
Services pursuant to the terms of a Group Services Agreement.
1.10
Participating Health Care Professional. Those Participating Primary Care, Participating
Specialty Care Physicians and Health Care Professionals who have entered into a Participating Physician
Agreement with APP or are obligated under an such agreement to provide or arrange for Covered
Services to Members.
1.11
Participating Primary Care Physician. An internist, pediatrician, or family practitioner who
has executed a Participating Physician Agreement with APP to provide Covered Services to Members.
Where required by an agreement between APP and MCO, the Participating Primary Care Physician
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selected by each Member shall be responsible for the provision, coordination, supervision, monitoring,
and appropriateness of care rendered to that Member.
1.12
Participating Specialty Care Physician. A Physician, other than a Participating Primary Care
Physician, who has executed an Agreement with APP to provide specialty care Covered Services to
Members either upon referral by an APP Participating Primary Care Physician or as otherwise permitted
by an agreement between APP and MCO.
1.13
Provider Handbook. An administrative document that is available to each Participating Health
Care Professional setting forth certain APP Policies and Procedures.
SECTION II – RESPONSIBILITIES OF PHYSICIAN
2.1
Contracting. In compliance with applicable laws and regulations, Physician authorizes APP to
act as Physician’s agent for the purposes of entering into agreements with MCOs for the provision of
Covered Services to Members.
2.2
Verification and Authorization. APP shall use best efforts to require MCO to maintain a
method for Physician to verify Member eligibility. Physician shall comply with the method of verifying
eligibility and authorization of Covered Services as agreed upon by APP and MCO.
2.3
Scope of Services/Standard of Care. Physician shall arrange for the provision of or provide all
Covered Services to Members and will remain solely responsible for the quality of health care services
provided to Member. The operation and maintenance of the office, facilities and equipment of Physician,
and the provision of all Covered Services, shall be solely and exclusively under the control and
supervision of Physician and shall be rendered in accordance with generally accepted medical practice
and professionally recognized standards.
2.4
Referrals of HMO Members. As required by the Group Services Agreement, Participating
Primary Care Physicians shall refer HMO Members, when appropriate, to Participating Specialty Care
Physicians for Covered Services. Participating Specialty Care Physicians shall provide Covered Services
to HMO Members only when HMO Members are referred in accordance with the Group Services
Agreement or the APP utilization management program. Should a Participating Primary Care Physician
determine that an HMO Member requires Covered Services, which are not available from a Participating
Health Care Professional, Participating Primary Care Physician shall obtain authorization of the Medical
Director prior to referring such HMO Member to a non-participating Health Care Professional.
2.5
Admission of HMO Members to Hospital. Physician shall admit HMO Members requiring
hospitalization only to Hospital and in compliance with the requirements of APP’s agreements with
MCO; provided, however, that Physician may, with the express authorization of Medical Director, admit
HMO Members to another hospital for care which, at Medical Director’s determination, the Hospital is
unable to provide. When an HMO Member will be admitted for surgery, Physician shall admit the HMO
Member on the day of surgery unless an earlier admission is Medically Necessary and approved by
Medical Director.
2.6
Non-Discrimination. Physician shall not differentiate or discriminate against Members with
respect to race, religion, sex, color, age, nationality, origin, health status, or source of payment in the
provision of health care services. Physician shall not deny, limit, or condition the coverage or furnishing
of Covered Services to Members on the basis of any factor that is related to health status, including, but
not limited to the following: (i) medical condition, including mental as well as physical illness; (ii) claims
experience; (iii) receipt of health care; (iv) medical history; (v) genetic information; (vi) evidence of
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insurability, including conditions arising out of acts of domestic violence and/or (vii) disability.
Physician shall not discriminate with respect to quality of care or otherwise between Members and
Physician’s other patients.
2.7
Availability. In accordance with APP policies and procedures and generally accepted standards
for the provision of care Physician shall, in cooperation with APP, make Covered Services available to
Members during normal business hours. Physician shall be available or make arrangements acceptable to
APP for the provision of emergency Covered Services on a twenty-four (24) hour, seven (7) day per week
basis.
2.8
Patient Records/Data Provision.
(a) Subject to applicable law, including without limitation all laws governing Protected Health
Information, and in accordance with APP and MCO requirements, Physician shall maintain
medical, financial and administrative records concerning services provided to Members in
accordance with industry standard. Physician shall maintain records and information relating
to Members in an accurate and timely manner and shall ensure timely access by Members to
the records and information that pertain to them. Physician shall provide APP or MCO with
accurate encounter data in accordance with MCO or APP requirements and shall use
electronic systems established by the Hospital or APP which will facilitate continuity of care.
(b) Physician shall safeguard the privacy of any information that identifies a particular Member.
Information from, or copies of, records may be released only to authorized individuals and
Physician must ensure that unauthorized individuals cannot gain access to or alter Member
records. Original medical records must be released only in accordance with Federal or State
laws, court orders or subpoenas. Physician shall abide by all applicable federal and state
laws regarding confidentiality and disclosure of Members’ mental health records, medical
records and other health and Member specific information.
(c) In compliance with applicable state and federal laws and regulations, Physician authorizes
APP to collect Member data for the purposes of performance under this Agreement.
(d) All records, books, and papers of Physician pertaining to Members shall be open to
inspection during normal business hours by APP, PHO or MCO, and authorized state and
federal authorities. The obligations of subsections (a), (b) and (d) of this Section 2.8 survive
termination of this Agreement, for any reason.
2.9
Location of Services. Outpatient Covered Services provided in accordance with this Agreement
shall be provided by Physician at the locations agreed to by APP, PHO and Physician. Physician shall
provide sixty (60) days prior written notice to APP of any other locations where Covered Services may be
offered. Upon such notice and in compliance with all other applicable requirements, other locations may
be added to Physicians participation information.
2.10
Professional Requirements.
(a) Physician shall: (i) maintain an unrestricted license to practice medicine in the State of
Illinois; (ii) maintain the ability to prescribe pharmaceuticals including narcotics; (iii)
maintain the appropriate medical staff membership at Hospital; (iv) maintain the ability to
participate in federal and state funded health care programs, including but not limited to
Medicare, Medicaid and CHAMPUS; and (v) all other APP and MCO applicable
professional and administrative requirements necessary for Physician to provide Covered
Services to Members. Evidence of compliance with these requirements shall be submitted to
APP upon request. Physician shall cooperate with periodic evaluation of Physician’s
professional qualifications by APP.
(b) Physician shall to notify APP and PHO immediately of: (i) a loss, sanctioning or restriction
of license, narcotics number or any hospital privileges; (ii) any sanction/disciplinary action
by any professional organization, managed care entity, or Hospital; (iii) a criminal
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conviction; (iv) payment made pursuant to a professional liability judgment; (v) any action
taken restricting or eliminating Physician’s ability to participate in federal or state funded
health care programs, including Medicare, Medicaid and CHAMPUS; (vi) any other matter
that may affect Physician’s ability to meet the professional requirements outlined in this
Section.
2.11
Signatory Authority. The individual executing this Agreement on behalf of Physician warrants
that: (i) he/she has the appropriate authority as Physician’s employer, agent, or other duly authorized
representative to cause Physician to be bound to the terms and conditions of this Agreement; and (ii) the
execution and performance of this Agreement does not and will not violate or conflict with any material
agreement or instrument to which Physician is a party. For those Agreements executed by a medical
group on behalf of Physicians providing services pursuant to this Agreement (i) expressly warrants and
agrees that each Physician is individually bound by, and agrees to adhere, to the terms and conditions of
this Agreement; and (ii) acknowledges that in the event any Physician providing services pursuant to this
Agreement is no longer affiliated or employed by group this Agreement remains in effect with Physician
unless other terminated in accordance with Section VII.
2.12
CMS/NCQA Requirements. If APP obtains or maintains a contract with a Medicare MCO,
Physician shall render services to Medicare MCO Members in accordance with the applicable terms and
conditions of Exhibit A, as may be amended from time to time by Medicare MCO. In the event there is a
conflict between the terms of this Agreement and the terms of Exhibit A, Exhibit A shall prevail.
2.13
Patient Communication. Physician shall discuss with Member(s) their health status and all
medical care and treatment options which the Physician and/or the Member's treating physician deem
clinically necessary and appropriate, regardless of any coverage or payment determination(s) made or to
be made by APP, PHO or MCO. The Parties acknowledge and agree that nothing contained in this
Agreement or in any other Amendments is intended to interfere with or hinder communication between
Physician and Member(s) regarding health care services.
2.14
Additional MCO Requirements. Physician shall abide by the terms and conditions of Exhibit
B, which contains additional Physician obligations pursuant to agreement(s) between APP and MCO(s).
2.15
Fee for Service Contracting. Physician shall cooperate with APP’s fee for service contracting
strategy in accordance with all applicable state and federal laws and regulations. Physician acknowledges
that under such fee-for-service-arrangements, Physician shall be solely responsible for implementing the
arrangements except for certain centralized functions (e.g., clinical monitoring, education, data collection,
credentialing, etc.).
2.16
Centers for Medicare and Medicaid Services (CMS) Medicare Shared Savings Program
(MSSP) Participation. Physician acknowledges that all Physicians are required to participate, on an
exclusive basis for primary care physicians and on a non-exclusive basis for non-primary care/specialist
physicians, in the MSSP through Advocate Physician Partners Accountable Care, Inc., APP’s Medicare
Accountable Care Organization, in accordance with APP Membership requirements and applicable
policies. Absent an exception under law, regulation or specific APP membership policy provisions,
participation (on an exclusive or non-exclusive basis, as applicable) is a condition of Physician’s
membership in APP. Physician agrees to execute any and all documents necessary to effectuate this
participation, including execution of the Advocate Physician Partners Accountable Care, Inc. Medicare
Shared Savings Program Participation Agreement, and to comply with all legal, contractual, and APP
membership requirements of participation in Advocate Physician Partners Accountable Care, Inc.
Notwithstanding anything in the forgoing, a breach of this Section 2.16 shall be a material breach of this
Agreement.
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SECTION III – PAYMENT FOR SERVICES
3.1
Physician Payment. Physician shall be paid according to the fee schedule or other payment
arrangement in effect as of the Effective Date, as may be amended from time to time. APP will negotiate
fee schedules on behalf of Physician and shall make such fee schedules available via electronic or other
means, which may include but is not limited to the APP website. PHO shall establish capitated fee
schedules, which shall be available to Physician upon request.
3.2
Invoices. Physician shall submit all claims and encounter data for Covered Service provided to
HMO Members in accordance with form and format required by APP or MCO policies and procedures.
3.3
Coordination of Benefits. Physician acknowledges that, under applicable coordination of
benefits rules, payment for Physician services furnished to some Members will be primarily the
responsibility of third parties or will be payments for which APP is entitled to receive reimbursement.
Physician agrees to assist APP or MCO in maximizing recoveries under coordination of benefits and
agrees to seek payment for such services from the party with primary liability prior to billing APP or
MCO for the difference. In any instance where Physician obtains payment from any additional parties
responsible for payment to or on behalf of Members, APP or MCO, as applicable, shall only be
responsible for the difference between the amount collected by Physician and the appropriate amount
identified in this Agreement.
3.4
Member Billing. For Covered Services Physician shall bill or collect from Member all CoPayments as specified in the Group Services Agreement or Members summary of benefits. Except as
permitted by this Section, Physician shall not bill or require Member to make any payment for Covered
Services other than co-payments, deductibles, and co-insurance, if any, as specified in the Group Services
Agreement. For Covered Services Physician shall not bill or collect from Member the difference between
the payment rates agreed to in this Agreement and Physician’s regular billing rates.
3.5
HMO Hold Harmless.
(a) In no event, including but not limited to nonpayment by MCO, APP or PHO, insolvency of
MCO, APP or PHO, or breach of the Agreement, shall Physician or its assignees or
subcontractors bill, charge, collect a deposit from, seek compensation, remuneration, or
reimbursement from, or have any recourse against an HMO Member for Covered Services
provided pursuant to this Agreement other than as permitted in Section 3.4. The requirements
of this Section 3.5 shall survive any termination of this Agreement for Covered Services
rendered prior to such termination. This clause supersedes any oral or written agreement,
now existing or hereafter entered into, between the Parties and the Member or person acting
on the Member’s behalf.
(b) This provision shall not prohibit collection of payment for any non-Covered Services or
amounts available through Coordination of Benefits in accordance with the terms of this
Agreement if Physician obtains the written acknowledgment of the Member in advance of the
provision of the non-Covered Service.
3.6
Member Surcharge. Physician shall not surcharge Members for Covered Services. Where a
surcharge has occurred erroneously, Physician shall refund amounts collected within fifteen (15) days of
APP’s request for the refund. Members shall be third party beneficiaries of this Section 3.6.
3.7
Physician Participation Fee. Physician agrees to pay PHO an initial membership fee in an
amount determined by the PHO Board of Directors and to pay APP an annual participation fee in an
amount determined by the APP Board of Directors.
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SECTION IV – APP AND PHO SYSTEM AND STANDARDS
4.1
APP Participation Criteria. Physician shall comply with the APP Participation Criteria
(“Participation Criteria”) set forth in Exhibit C to this Agreement within any applicable timeframes
specified therein. APP may amend or modify the Participation Criteria at any time through action of the
APP Board of Directors and shall provide notice of changes to Participation Criteria. For purposes of this
Section 4.1, notice may be provided via electronic mail. In the event of a conflict between the provisions
of this Agreement and the Participation Criteria, the Participation Criteria shall prevail.
4.2
Compliance. Physician shall participate in and comply with the Bylaws of the PHO and APP,
the requirements of the Provider Handbook and/or APP Policies and Procedures, including but not limited
to the APP quality improvement, utilization management, credentialing programs, APP electronic medical
record (EMR) policy as may be amended from time to time by APP upon notice to Physician. For
purposes of this Section 4.2, notice may be provided via electronic mail.
4.3
Clinical Integration Program. Physician agrees that participation in the APP Clinical
Integration Program (“CI Program”) requires compliance with the CI Program as described in Exhibit D.
APP may amend the CI Program at any time through action of the APP Board of Directors and shall
provide notice of changes to the CI Program. For purposes of this Section 4.3, notice may be provided
via electronic mail. In the event of a conflict between the provisions of this Agreement and the CI
Program, the CI Program shall prevail.
4.4
Credentialing. Physician acknowledges that all information provided as part of the APP
credentialing process is a material part of this Agreement and relied upon by APP in determining whether
to execute this Agreement. Physician represents and warrants that all information provided during the
credentialing process is true to the best of Physician’s knowledge and shall notify APP within thirty (30)
days of any change in such information. Physician further agrees to provide APP with all necessary
releases and authorizations as may be required to independently verify the information provided.
Physician authorizes APP to provide credentialing information to MCO. Based on the information
provided during the credentialing process, APP shall designate Physician as either a Participating Primary
Care Physician or Participating Specialty Care Physician.
4.5
Grievance Procedure. Physician shall participate in APP’s consumer complaint system and in
any formal MCO sponsored grievance, hearing and resolution procedures. Physician shall make every
reasonable effort to resolve oral or written complaints through informal discussion, consultation, or
conference, and shall keep a written record of events and action surrounding the complaint. This record
shall be submitted to APP, including a copy of each complaint and a summary of the outcome.
Complaints not resolved to the satisfaction of either Physician or Member, such complaint shall be
submitted in a timely manner to Medical Director. Physician and Member shall have an opportunity to
present their case either orally or in writing to Medical Director, who shall attempt to resolve the
complaint or consult with the QI Committee for its recommendation.
4.6
Access to Premises. Physician shall permit the Medical Director and/or designee of APP, PHO,
and each MCO to inspect, upon reasonable notice, the facilities, equipment and medical records of
Members, to the extent permitted by law and this Agreement and to review all phases of professional and
ancillary medical care provided to Members by Physician. Physician shall permit Federal, state and local
government or accrediting agencies, including but not limited to NCQA, and their authorized agents
access to all information, records and copies which are pertinent to and involve transactions related to this
Agreement if such access is deemed necessary by federal, state and local government or accrediting
agencies to comply with applicable accreditation standards, statutes, or regulations.
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4.7
Physician/Patient Relationship. Upon request from Physician to terminate the
Physician/Member relationship, APP shall use its best efforts to cause the transfer of the Member to
another Participating Health Care Professional within thirty (30) days of request. Physician agrees to set
forth in writing the reason for any such request. Physician shall not request removal of any Member in
conflict with the requirements of Section 2.6. Removal of a Member from the care of the Participating
Primary Care Physician shall be at the sole option of the MCO. APP agrees to facilitate any transfers
approved by MCO in a timely fashion and in a manner that ensures patient confidentiality and
continuance of appropriate care in a manner consistent with generally accepted medical practice in effect
at the time of transfer. In the event an MCO requires different timeframes or documentation standards
relating to Member termination or transfer, such MCO specific requirements supersede the requirements
of this Section 4.7.
4.8
Confidentiality of Protected Health Information. APP and Physician agree to comply with all
provisions set forth in Exhibit E, Business Associate Agreement.
SECTION V – EXTERNAL COMMUNICATIONS
5.1
External Communications. APP or MCO may use Physician’s name and other relevant
identifying information in the provider directory. As approved by the APP Board of Directors, APP may
publicly report performance data, which may include Physician’s performance data. The APP Board of
Directors reserves the right to review and approve in advance any MCO advertising and promotional
material containing Physician’s name or other identifying information. Physician may make a written
request not to have his or her name included in any MCO or APP advertising or promotional materials
other than the provider directory.
SECTION VI – INSURANCE
6.1
Insurance. Physician shall maintain, in accordance with APP policy and procedure, medical
malpractice insurance within the limits of and no less than the amount necessary for Physician’s
membership on the Medical Staff of Hospital. Physician shall furnish to APP copies of the policy or
certificates of insurance within thirty (30) days of the Effective Date of this Agreement. Physician shall
give APP at least thirty (30) days advance notice of cancellation, reduction, or change to any such
insurance.
SECTION VII – TERM AND TERMINATION
7.1
Term. This Agreement shall become effective on the Effective Date and shall continue for an
initial term of twelve (12) months (“Initial Term”). Unless otherwise terminated in accordance with this
Section VII, the Agreement will thereafter be renewed for successive one (1) year terms (“Renewal
Terms”).
7.2
Termination for Cause. Any Party may terminate this Agreement at any time upon breach of
another party and upon sixty (60) days prior written notice. Such written notice must state the specific
breach and shall be effective at the end of such sixty (60) days notice period unless, to the reasonable
satisfaction of the non-breaching party, the breach has been cured or substantial progress has been made to
cure. The failure of a party to perform, keep, or fulfill any other material covenants, undertakings,
obligations, or conditions set forth in this Agreement shall constitute a breach; provided, however, that
APP may terminate this Agreement immediately if Physician is no longer eligible for APP or PHO
membership in accordance with APP or PHO Policies and Procedures, or otherwise fails to comply with
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APP Quality Management Program requirements. APP Policies and Procedures may provide that
Physician has an opportunity to cure a default or is able to continue participation during an appeal of the
default and in such cases immediate termination shall not be available to APP. The rights granted
hereunder shall not be in substitution of, but shall be in addition to, any and all other rights and remedies
for breach of contract available to the non-defaulting party under applicable laws.
7.3
Termination Without Cause. Any Party may give written notice of its intent to terminate or not
renew (i) ninety (90) days prior to the expiration of a Renewal Term, or (ii) the date required under any
MCO contract, subject, however, to the provisions of this Section VII. Nothing shall prevent termination
of this Agreement at any time upon written agreement of the Parties.
7.4
Obligations After Termination. In the event of termination of this Agreement for any reason
other than quality of care, Physician will continue to provide Covered Services to Members (i) who are
hospitalized at the date of termination, in accordance with state laws and regulations, as applicable, and
prevailing standards of the medical profession in effect in the community at the time of treatment, (ii)
until the course of treatment of the condition causing hospitalization is completed or under the transitional
care requirements, (iii) until medically appropriate arrangements can be made to transfer care to an
appropriate Health Care Professional, or (iv) alternative coverage is otherwise obtained. Physician shall
continue to accept payment in accordance with this Agreement, as payment in full, for those Covered
Services provided to Member in accordance with this Section. As such, all APP policies and procedures
and applicable MCO agreement terms, including but not limited to reimbursement and payment terms,
shall continue to apply to Physician for all dates of services and time periods prior to the date of
termination of this Agreement. Except as otherwise provided in this Section 7.4, upon the termination of
this Agreement for any reason, the rights of the Parties shall terminate.
SECTION VIII – GENERAL PROVISIONS
8.1
Independent Contractors.
(a) Except as provided in Section 2.1, this Agreement shall not be construed or deemed to create
a relationship of employer and employee or principal and agent or any relationship other than
that of independent entities contracting with each other solely for the purpose of carrying out
the terms and conditions of this Agreement. Except as provided in Section 2.1, the Parties
shall not have any express or implied right of authority to assume or create any obligation or
responsibility on behalf of or in the name of the each other or to bind the another Party in any
manner.
(b) In the performance of provision of the Covered Services required by Physician under this
Agreement, it is mutually understood and agreed that the Physician is at all times acting and
performing as an independent contractor. Physician hereby represents and warrants to APP,
PHO and MCO that Physician, and to the extent applicable, all of Physician’s employees,
subcontractors, and/or independent contractors who are providing or will provide services
under this Agreement, including without limitation health care, utilization review, medical
social work and/or administrative services, each maintain full participation status in the
Medicare program and/or are not excluded from participation in the Medicare program.
Physician further represents and warrants that downstream providers shall, to the extent
applicable, be apprised of obligations under this Agreement, and shall agree to provide
services in accordance with the terms outlined herein.
(c) Nothing in this Agreement shall be construed to, nor shall either PHO or APP as a term or
condition of participation or otherwise, restrict the right of any Physician to contract directly
with any Payor. The terms of this subsection shall not be deemed to restrict the right of any
entity that employs Physician to govern the relationship of such employed Physicians to
Payors.
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8.2
Waiver of Default. No failure or delay by a Party in exercising any right, power, or
privilege under this Agreement shall operate as a waiver of such right, power, or privilege, nor will any
single or partial exercise thereof preclude any other or further exercise therefore the exercise of any
further right.
8.3
Entire Understanding. This Agreement and Exhibits which are attached hereto, and any
other specifically referenced materials constitute the entire understanding among the Parties with respect
to the subject matter hereof.
8.4
Confidentiality. Physician, during the term and subsequent to the termination of this
Agreement, shall keep confidential all quality assurance and utilization review information, including, but
not limited to, all statistical data, reports, and standards, and all financial information relating to this
Agreement, and shall utilize his or her best efforts to prevent and protect such information from
unauthorized disclosure by his or her agents and employees. In no event shall Physician utilize or allow
his or her agents and employees to utilize any such information to the competitive disadvantage of, or in
any other way which is detrimental to APP, PHO or MCO.
8.5
Intellectual Property.
(a) Physician acknowledges and agrees that any and all Physician Work Product shall be owned
solely and exclusively by APP and, to the maximum extent authorized by law, such Physician
Work Product shall be work for hire. To the extent that Physician Work Product is not, as a
matter of law, work for hire, Physician hereby assigns and releases to APP all right title and
interest Physician may have in and to the Physician Work Product. Physician further agrees
to disclose promptly to APP the existence of any Physician Work Product and to execute any
and all documents and further assignments, recordings and other instruments that may be
necessary to transfer and assign to APP its interest in and to the Physician Work Product and
that may be otherwise may be necessary for APP to perfect its interest in such Physician
Work Product.
(b) “Physician Work Product” means Works created, made or invented within the scope of this
Agreement.
(c) “Works” means (i) designs, software, creative works, processes, inventions, content,
confidential information, and other work product, whether created, made or invented solely
by Physician or jointly by Physician with other persons or at Physician’s direction, and (ii) all
intellectual property rights in and to the items listed in (c)(i), including but not limited to,
patents, copyrights, trade secrets, trademarks, moral rights, mask works, registrations and
applications for any of the foregoing, and any and all other proprietary rights.
(d) Works are created, made or invented within the scope of this Agreement if (i) any equipment,
supplies, facilities, or trade secret information of PHO or APP was used in such process, (ii)
any current APP or PHO employee or contractor is consulted or otherwise used in such
process, (iii) the Works are directly related to APP’s or PHO’s actual or demonstrably
anticipated research or development or business strategies or operations, or (iv) the Works
result from any work performed by the Physician for APP or PHO or during or while Physician
is or is required to be performing services for APP or PHO.
8.6
Severability. In the event any term or provision of this Agreement is rendered invalid or
unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect.
10
8.7
Amendments. Except as otherwise provided herein, this Agreement may be amended
only by the written agreement of the Parties; provided, however, that amendments may be made by APP
or PHO as may be required by an MCO for continued compliance with federal and state laws and
regulations applicable to this Agreement.
8.8
Applicable Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Illinois, without regard to the conflict of law provisions thereof.
8.9
Assignment. This Agreement may not be assigned, delegated or transferred by any
Party, provided, however, that a Party may assign, delegate or transfer this Agreement or any rights or
obligations hereunder to another corporation or entity, now or hereafter existing, which corporation or
entity is related to a successor of the Party upon prior written notice to the other Parties. If assigned, this
Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors
and permitted assignees.
8.10
Headings. The headings contained herein are used solely for convenience and shall not
be deemed to define or limit the provisions of this Agreement.
8.11
Notice. Except as otherwise provided herein, all notices shall be deemed received on the
day personally delivered, or on the second day after mailing, certified or registered, return receipt
requested, to the following addresses, or to such other addresses as the parties shall respectively by notice
designate.
11
PHO:
President
1701 W. Golf Road, Suite 2-1100
Rolling Meadows, Illinois 60008
APP:
President of Advocate Physician Partners
1701 W. Golf Road, Suite 2-1100
Rolling Meadows, Illinois 60008
With a copy to:
Advocate Health and Hospitals Corporation
3075 Highland Parkway
Downers Grove, Illinois 60515
Attn: Senior Vice President and General Counsel
Physician:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the Effective Date.
PHYSICIAN
ADVOCATE PHYSICIAN PARTNERS
_________________________________
Name
Michael Englehart, President_______________
Name
__________________________________
Signature
_______________________________________
Signature
__________________________________
Date
_______________________________________
Date
PHO
__________________________________
Name
__________________________________
Signature
__________________________________
Date
12
EXHIBIT A
CMS/NCQA Requirements
1.
Covered Services. Physician agrees to provide Covered Services to all Members.
2.
Member Data. The Physician shall provide to APP and/or the Managed Care Organization
(MCO) all data, including medical records, necessary to characterize the content and purpose of each
encounter with a Member. In addition, Physician agrees to submit encounter data to the APP and/or
MCO on a monthly basis on or before the last day of each month for Member encounters occurring in the
immediately preceding month. The encounter data submission shall include all data elements contained
in the CMS 1500 form, the UB 92 form and/or their successor forms. The Physician agrees to certify the
completeness and truthfulness of encounter data or other data submitted to APP and/or MCO.
3.
Program Compliance. Physician shall comply with and are subject to all applicable Medicare
laws and regulations, and other program rules and regulations as implemented and as amended by the
Health Care Financing Administration (CMS) or CMS’s designee. In addition, Provider shall comply
with any additional requirements set forth in agreements between MCO and APP provided that such
requirements are made known to the Provider in a timely manner. Furthermore, Physician shall comply
with all program rules, regulations and requirements to participate in Medicare Advantage plans as
outlined in Exhibit H.
4.
Federal Funds. Physician acknowledges and agrees that payment to Provider from APP or
MCO for services rendered to Medicare members is derived, in whole or part, from Federal funds
received by MCO from CMS. Physician agrees to comply with Federal and State laws, rules and
regulations applicable to individuals and entities receiving Federal funds. This includes, without
limitation, Title VI of the Civil Rights Acts of 1964, the Age Discrimination Act of 1975, the Americans
with Disabilities Act and the Rehabilitation Act of 1973. Physician agrees to allow Federal and State
agencies and duly authorized MCOs to audit Physician’s compliance with such laws.
5.
Physician’s Agents/Contractors Compliance. Physician hereby represents and warrants to APP
and MCO that Physician and, to the extent applicable, all of Physician’s employees, subcontractors,
and/or independent contractors who are providing or will provide services under the Agreement
(downstream providers), including without limitation health care, utilization review, medical social work
and/or administrative services, shall each maintain full participation status in the Medicare program
and/or are not excluded from participation in the Medicare program. Physician further represents and
warrants that downstream providers shall, to the extent applicable, be apprised of obligations under the
Agreement, the Addendum and this Amendment, and shall agree to provide services in accordance with
the terms outlined therein.
6.
Record Retention. In order to ensure compliance under the Agreement and this Amendment, the
Physician agrees to retain all contracts, books, documents, papers and other records related to the
provision of services to Members and/or related to the Physician's obligations under the Agreement and
this Amendment for a period of not less than six (6) years from: (1) each successive December 31; or (2)
the end of the contract period between Insurer and CMS; or (3) from the date of completion of any audit,
whichever is later.
7.
Cooperation. Physician shall cooperate with the activities and/or requests of any independent
quality review and improvement organization utilized by and/or under contract with APP or MCO as they
may relate to the provision of services to Members. Physician also agrees to comply with APP and
MCO’s quality assurance programs, medical policy, and medical management program. Physician will
adhere to all appeal and expedited appeal procedures established by CMS for Members, including
gathering and forwarding information relating to the appeal to MCO or APP as necessary.
13
8.
Prompt Payment. The Physician shall, if applicable under the terms of the Agreement and/or
any other Amendments to the Agreement, comply with all federal and state laws, rules and regulations
regarding the timeliness of claims payments to which APP or MCO is subject, including without
limitation any timeframes, notice and/or penalties relating to payment provided for by CMS such laws,
including any "prompt payment" statute of Illinois. Physician shall process claims for covered services
rendered to Members and shall make payments to other providers on a timely basis using APP or MCO
normal claims processing policies, procedures, and guidelines and in accordance with applicable federal
and state laws, rules, and regulations regarding the timeliness of claims payments. Accordingly, APP will
promptly approve or deny completed claims submitted for payment in accordance with an initial
determination by APP or an appeal of a denied claim. For purposes of this section, a claim is approved or
denied "promptly" if it is approved or denied within the time provided for by any applicable federal or
state "prompt payment" statute.
9.
Limitation. The terms of this Agreement shall apply only to the participation of the Physician in
valid agreements entered into between APP (or PHO) and Medicare+Choice (M+C) MCOs for the
provision of health care services to Medicare+Choice (M+C) Members. All other provisions of this
Exhibit shall apply to the extent the provisions are consistent with the terms of this Agreement. All terms
not otherwise defined in this Exhibit shall have the meaning provided for in the Agreement.
10.
Payment and Incentive Arrangements. Physician acknowledges and agrees that payment and
incentive arrangements between APP and Physician are set forth in the Agreement or in policy and
procedures established by the APP available to provider upon request. Upon written request, Physician
agrees to disclose to APP or MCO, as applicable, within a reasonable time period not to exceed thirty (30)
days from such request, or such lesser period of time as required for APP or MCO to comply with all
applicable state and federal laws, rules and regulations, the terms and conditions of any payment
arrangement that constitute a physician incentive plan as defined by CMS or any state or federal law,
between APP and Physician or Physician and Physician’s downstream providers. Such disclosure shall
be in the form of a certification, or other form as required by CMS, APP or MCO and shall identify, at a
minimum: (a) whether services not furnished Physician are included in the incentive plan; (b) the type of
incentive plan, including the amount, identified as a percentage, or any withhold or bonus; (c) the amount
and type of any stop-loss coverage provided for or required of the Physician; and (d) the Physician’s
patient panel size, broken down by total panel for Physician and individual downstream providers, by the
type of Member insurance coverage (i.e., Commercial HMO, Medicare HMO, and Medicaid HMO).
11.
Participation Decisions. APP or MCO, as applicable, shall provide Physician timely
notice in writing of reasons for denial, suspension and termination determinations that affect Physician’s
participation in the APP. Neither Physician nor MCO or APP shall terminate the Agreement without
cause upon less than 60 days’ prior written notice. Upon termination of the Agreement, Physician shall
provide Covered Services to any Medicare Members receiving Covered Services on the date of
termination until the date of discharge or until arrangements for substitute care may be made.
14
EXHIBIT B
Additional MCO Requirements
Content Statement of the HMO Illinois Medical Service Agreement:
Provider agrees to abide by the following terms as applicable for Members of HMO Illinois, which are
conditions set forth in the current HMO Illinois Medical Service Agreement with PHO:
1. Compensation. Physician agrees to seek compensation not from HMO Illinois or Member of HMO
Illinois but solely from PHO for services provided to Members of HMO Illinois assigned to PHO.
2. Quality Review Activities. Physician agrees to participate in quality of care review activities as
requested by the PHO for Members of HMO Illinois, including allowing access to medical records for
HEDIS reporting and other HMO Illinois quality improvement initiatives.
3. Confidentiality. Physician agrees to preserve patient confidentiality.
4. Reimbursement Reciprocity. Physician agrees not to charge any provider that has a contractual or
other affiliation with another Participating IPA more than the BlueCross BlueShield of Illinois PPO
Schedule of Maximum Allowances for referred or Emergency Services provided to HMO Illinois
Members of such Participating IPA if such bills are paid within 30 days of the Participating IPA’s
receipt of such bills. For the purpose of this Exhibit to the Agreement, Participating IPA means any
duly organized individual practice association, organized medical group, physician hospital
organization or other legal entity organized to provide or to arrange for the provision of professional
medical services, which has in force a contract or agreement with HMO Illinois to provide professional
and ancillary services to Members of HMO Illinois according to a plan of benefits.
5. Insurance. In accordance with Section VII of this Agreement, physician shall maintain medical
malpractice insurance within the limits of and no less than the amount necessary for Physician’s
membership on the Medical Staff of Hospital as of the date of this Agreement. Currently, those limits
are amounts not less than $1,000,000 per claim and $3,000,000 annual aggregate coverage.
15
EXHIBIT C
2013 PARTICIPATION CRITERIA
AdvocateCare Program Participation Requirements:
-
Complete APP on-line orientation within 90 days of joining Advocate Physician Partners (“APP”).
Participate in the APP Clinical Integration programs, as evidenced by meeting various CI thresholds.
Attend in person CI I Physician Roundtable session each year or complete on-line program.
Physician Office Manager/Staff attend at least one APP Office Manager Meeting per year.
Participate in all AdvocateCare initiatives, including actively engage in the services of AdvocateCare
care managers.
Agree to “Level” 3 or higher eICU participation, where eICU is available.
Cooperate with providing PPO claim information to APP under the methodology determined.
Include all patients in the physician’s practice, regardless of the source of payment, that meet
selection qualifications for the APP CI initiatives and program.
Physician must attain a minimum year-end CI Score. For Sherman, this is deferred until 2015 CI
measurement year.
Demonstrate participation in APP Board approved programs designed to improve performance.
Complete the APP Online HIPAA privacy and business conduct online training each calendar year.
For Sherman, this is deferred until 2014.
Comply with Advocate Health Care policy on annual flu vaccination. For Sherman, this is deferred
until 2014.
Threshold HMO Full/Partial Risk Members Required Before Closing Panel
(For Primary Care Physicians Only):
Before requesting closure of HMO patient panel: Internal Medicine physicians are required to
maintain a commercial and Medicare HMO panel size (per physician FTE) of 300 “under age 65
equivalent” HMO patients. Pediatrics and Family Practice physicians are required to maintain a
commercial and Medicare HMO panel size (per physician FTE) of 400 “under age 65 equivalent”
HMO patients. A patient over the age of 65 is considered equivalent to 3 “under age 65 equivalent”
patients for purposes of this policy.
Access and Availability Requirements:
-
Physician and office must meet access requirements established for the AdvocateCare Program.
Standards are set forth in the APP Provider Manual and APP policies.
Physician must apply for membership of each PHO where he or she is a member of the Medical Staff.
Physician must provide coverage, if unavailable, by another APP member physician of the same
specialty. For Sherman, this begins January 1, 2014.
Electronic Data Interchange & Internet Connectivity Requirements:
- Physician connectivity with APP operations for the purpose of facilitating electronic exchange of
information, including hardware and software compatibility.
- Physician must have an Advocate One Account for Internet access and office usage:
- Physician must have Care Net or Care Connection access in their office.
- High-speed Internet access is the required type of connection in the physician’s office.
16
-
-
- Physician must submit all claims to APP through EDI.
- Physician must submit all claims to contracted payers through EDI.
Physician office must use the APP Electronic Referral Management Application (E.R.M.A.) or an
APP approved Referral Management Process for all HMO risk referrals and for PPO referrals as
required by policy. For Sherman this begins January 1, 2014.
Physician must have an active email address and the physician must regularly access emails.
Physician’s practice Office Manager must have an active email address, which may be the same
address as that used by an APP physician.
Independent Primary Care Physicians (IM, FP, General Medicine and Pediatric primary care) must
have the APP SynAPPs (eCW) Electronic Medical Record (EMR) installed and in use by January 1,
2014, or have another EMR installed that is attested to Meaningful Use by January 1, 2014 which was
installed or purchased by the physician’s practice prior to February 6, 2012. Independent PCP
physicians using a non SynAPPs EMR prior to February 6, 2012, are required to transfer to the
SynAPPs product if their current EMR does not meet Meaningful Use Stage 2certifcation by the
effective date for Stage 2. For Sherman, this requirement is deferred until January 1, 2015.
Contract Participation Requirements:
- Physician must sign the current APP physician participation agreement.
- Physician must participate in all HMO risk contracts available to the PHO and clinically integrated
fee for service contracts (PPO, POS, etc.) negotiated by APP.
Internal Medicine, Family Practice, General Medicine and Geriatric specialty physicians must be
members of the Advocate Physician Partners Accountable Care Organization (Advocate Physician
Partners Accountable Care, Inc or “APPAC “) and fully participate in the Medicare Shared Savings
contract. A physician joining the Sherman PHO on or before September 30, 2013 will be
submitted to CMS for full participation beginning January 1, 2014. A physician joining the
Sherman PHO on or after October 1, 2013 will be submitted to CMS for full participation as of
January 1, 2015.
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EXHIBIT D
Clinical Integration Program
GENERAL: Clinical Integration is a structured collaboration among APP physicians and Advocate
Health Care hospitals on an active and on-going program designed to improve the quality and efficiency
of care. The program involves metrics or measures of performance in the following categories: Medical
and Technical Infrastructure, Clinical Effectiveness, Efficiency, Patient Safety and the Patient Experience
(Patient Satisfaction).
MEASURES and THRESHOLDS: The particular measures that apply to Physician are determined by
Physician’s specialty, as approved at the time of credentialing by APP. The measures and thresholds are
reviewed each year, based on feedback from the APP physician members, and new measures are selected
upon recommendation of the APP Quality Improvement Committee and approval of the APP Board of
Directors. Feedback concerning the CI measures is obtained from member physicians at CI Roundtable
meetings held throughout the year, via email requests for feedback made to physicians, at physician
meetings at each PHO to discuss potential revisions and new measures (“CI Forums”), and at meetings of
the New Measures Subcommittee of the APPQI committee.
CI PROGRESS REPORTS: Regular feedback on Physician performance is provided by physician
level progress reports, which are updated at least quarterly, and made available to the physicians. There is
an appeal procedure that a Physician may use if he or she believes a report card is erroneous. Each report
card indicates an individual physician CI score (percent of possible points earned) and a PHO level CI
score. Physician earns the CI incentive based on a combination of those scores.
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EXHIBIT E
Business Associate Agreement
This BUSINESS ASSOCIATE AGREEMENT (this “Agreement”) is entered as
of_____________________ , by and between Advocate Health Partners d/b/a Advocate Physician
Partners (“APP”), an Illinois not-for-profit corporation (the “Business Associate”), and Physician.
1.
Definitions
Definitions for use in this Agreement.
“Business Associate” shall mean APP.
“Data Aggregation” shall mean, with respect to Protected Health Information (“PHI” as defined below)
created or received by the Business Associate, the combining of such PHI by the Business Associate or
with the PHI received by the Business Associate in its capacity as a business associate of another
Physician, to permit data analyses that relate to the health care operations of the respective covered entities.
“Designated Record Set” shall mean a group of records maintained by or for the Physician that is (i) the
medical records and billing records about individuals maintained by or for the Physician; (ii) the
enrollment, payment, claims adjudication, and case or medical management record systems maintained by
or for a health plan; or (iii) used, in whole or in part, by or for the Physician to make decisions about
individuals. As used herein the term "Record" means any item, collection, or grouping of information
that includes PHI and is maintained, collected, used, or disseminated by or for the Physician.
“Electronic Protected Health Information” or “EPHI” shall mean Individually Identifiable Health
Information that is (i) transmitted by Electronic Media or (ii) maintained in any medium constituting
Electronic Media. For instance, EPHI includes information contained in a patient’s electronic medical
records and billing records. “EPHI” shall not include (i) education records covered by the Family
Educational Right and Privacy Act, as amended, 20 U.S.C. §1232g and (ii) records described in 20
U.S.C.§1232g(a)(4)(B)(iv).
“HITECH” or “HITECH Act” shall mean the Health Information Technology for Economic and Clinical
Health Act of the American Recovery and Reinvestment Act of 2009, Public Law 111-005.
“Individual” shall refer to a patient and have all the same meaning as the term "individual" in 45 CFR §
164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §
164.502(g).
"Individually Identifiable Health Information" shall mean information that is a subset of health
information, including demographic information collected from an individual, and:
(i) is created or received by a health care provider, health plan, employer, or health care
clearinghouse; and
(ii) relates to the past, present, or future physical or mental health or condition of an individual;
the provision of health care to an individual; or the past, present or future payment for the provision
of health care to an individual; and (a) identifies the individual, or (b) with respect to which there is a
reasonable basis to believe the information can be used to identify the individual.
19
“Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45
CFR Part 160 and Part 164, Subparts A and E.
“Privacy Standards” shall mean the Standards for Privacy of Individually Identifiable Health
Information, 45 C.F.R. Parts 160 and 164.
“Protected Health Information” or “PHI” shall mean Individually Identifiable Health Information that
is (i) transmitted by Electronic Media, (ii) maintained in any medium constituting Electronic Media; or
(iii) transmitted or maintained in any other form or medium. For instance, PHI includes information
contained in a patient’s medical records and billing records. “Protected Health Information” shall not
include (i) education records covered by the Family Educational Right and Privacy Act, as amended, 20
U.S.C. §1232g and (ii) records described in 20 U.S.C.§1232g(a)(4)(B)(iv), limited to the information
created or received by Business Associate from or on behalf of Physician.
“Required By Law” shall have the same meaning as the term "required by law" in 45 CFR § 164.501.
“Secretary” shall mean the Secretary of the U.S. Department of Health and Human Services or any
office or person within the U.S. Department of Health and Human Services to which/whom the Secretary
has delegated his or her authority to administer the Privacy Standards, such as the Director of the Office
for Civil Rights, and the Security Standards.
“Security Standards” shall mean Security Standards for the Protection of Electronic Protected Health
Information, 45 CFR Part 160 and Part 164, Subpart C.
Capitalized terms used not defined herein shall have the meanings ascribed to them in the Privacy
Standards or the Security Standards.
2.
Obligations of Business Associate
a. Business Associate agrees to not use or disclose PHI other than as permitted or required by this
Agreement or as Required by Law, but shall not otherwise use or disclose any PHI. The Business
Associate shall not and shall ensure that its directors, officers, employees, contractors and agents
do not use or disclose PHI received from the Physician in any manner that would constitute a
violation of the Privacy Standards or the Security Standards if used by the Physician, except that
the Business Associate may use PHI: (i) for the Business Associate's proper management and
administrative services; (ii) to carry out the legal responsibilities of the Business Associate; or (iii)
to provide data aggregation services relating to the health care operations of the Physician if
required under the Participating Physician Agreement. In addition, Business Associate may use or
disclose PHI to perform functions, activities, or services for, or on behalf of, Physician for the
purposes of conducting quality assessment and improvement activities, including but not limited to:
(i) outcomes evaluation and development of clinical protocols for the APP CI Program, for all
patients included in this Program; (ii) population-based activities related to improving health; (iii)
patient services and reducing health care costs; (iv) case management and care coordination; and
(v) contacting Physician and patients with information regarding treatment alternatives and related
functions that do not include treatment, provided that such use or disclosure would not violate the
Privacy Rule if done by Physician or the minimum necessary policies and procedures of the
Physician, as applicable.
b.
Business Associate shall use all appropriate safeguards to prevent the use or disclosure of PHI
other than as permitted under this Agreement. The Business Associate shall implement
Administrative Safeguards, Physical Safeguards, and Technical Safeguards as outlined within
20
HITECH, Privacy Standards and Security Standards, that reasonably and appropriately protect the
Confidentiality, Integrity and Availability of EPHI that Business Associate creates, receives,
maintains, or transmits on behalf of Physician.
c.
Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to
Business Associate of a use or disclosure of PHI by Business Associate in violation of the
requirements of this Agreement.
d.
Business Associate shall, as soon as practicable, but in no event later than within thirty (30) days
after becoming aware of any Security Incident or any use or disclosure of PHI in violation of this
Agreement by the Business Associate, its officers, directors, employees, contractors or agents or
by a third party to which the Business Associate disclosed PHI pursuant to Section 2.4, report any
such disclosure to the Physician. In such event, the Business Associate shall, in consultation with
the Physician, mitigate, to the extent practicable, any harmful effect that is known to the Business
Associate of such improper use or disclosure.
e.
Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides
PHI received from, or created or received by Business Associate on behalf of Physician agrees to
the same restrictions and conditions that apply through this Agreement to Business Associate with
respect to such information.
f.
If Business Associate obtains PHI in a Designated Record Set, Business Associate shall provide
access, at the request of Physician, and in the mutually agreed time and manner, to any such PHI in
a Designated Record Set, to Physician or, as directed by Physician, to an Individual in order to
meet the requirements under 45 CFR § 164.524.
g.
If Business Associate obtains PHI in a Designated Record Set, Business Associate agrees to make
any amendment(s) to PHI in a Designated Record Set that the Physician directs or agrees to
pursuant to 45 CFR § 164.526 at the request of Physician or an Individual, and in the mutually
agreed time and manner.
h.
Business Associate agrees to make internal practices, books, and records, including policies and
procedures and PHI, relating to the use and disclosure of PHI received from, or created or
received by Business Associate on behalf of Physician, available to the Secretary, in a mutually
agreed time and manner or as designated by the Secretary, for purposes of the Secretary
determining Physician's compliance with the Privacy Rule. This section shall survive the
expiration or termination of this Agreement.
i.
Business Associate agrees to document such disclosures of PHI and information related to such
disclosures as would be required for Physician to respond to a request by an Individual for an
accounting of disclosures of PHI in accordance with 45 CFR § 164.528.
j.
Business Associate agrees to provide to Physician or an Individual, in a mutually agreed time and
manner, PHI obtained in accordance with this Agreement, to permit Physician to respond to a
request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR §
164.528.
k.
Business Associate agrees to notify the Physician within fifteen (15) business days of the Business
Associate’s receipt of any request or subpoena for PHI. To the extent that the Physician decides to
assume responsibility for challenging the validity of such request, the Business Associate shall
cooperate fully with the Physician in such challenge.
21
3.
l.
Business Associate shall obtain and maintain an agreement with each agent or subcontractor that
has or will have access to PHI, which is received from, or created or received by the Business
Associate on behalf of the Physician, pursuant to which agreement such agent or subcontractor
agrees to be bound by the same restrictions, terms and conditions that apply to the Business
Associate.
m.
Business Associate shall indemnify and hold the Physician harmless from and against any and all
liability and costs, including attorneys' fees, created by a breach of this Agreement by the
Business Associate, its agents or subcontractors, without regard to any limitation or exclusion of
damages provision otherwise set forth in the Participating Physician Agreement.
Specific Use and Disclosure Provisions
a. Except as otherwise limited in this Agreement, Business Associate may use PHI for the proper
management and administration of the Business Associate or to carry out the legal responsibilities of
the Business Associate.
b. Business Associate may use PHI to report violations of law to appropriate Federal and State
authorities, consistent with § 164.502(j)(1).
4.
Obligations of Physician and Provisions for Physician to Inform Business Associate of Privacy
Practices and Restrictions if Relevant to Business Arrangement.
a. Physician shall notify Business Associate of any limitation(s) in its notice of privacy practices of
Physician in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Business
Associate's use or disclosure of PHI.
b. Physician shall notify Business Associate of any changes in, or revocation of, permission by Individual
to use or disclose PHI, to the extent that such changes may affect Business Associate's use or disclosure
of PHI.
c. Physician shall notify Business Associate of any restriction to the use or disclosure of PHI that
Physician has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may
affect Business Associate's use or disclosure of PHI.
5.
Permissible Requests by Physician. Physician shall not request Business Associate to use or disclose PHI
in any manner that would not be permissible under the Privacy Rule if done by Physician.
6.
Term and Termination
a.
Term. The obligations of this Exhibit E shall be effective upon the Effective Date and shall
continue until all PHI provided by Physician to Business Associate, or created or received by
Business Associate on behalf of Physician, is destroyed or returned to Physician. If it is infeasible
to return or destroy PHI, all protections are extended to such PHI, in accordance with the
termination provisions in this Section of Exhibit E.
b.
Termination for Cause.
(i) Upon Physician's knowledge of a material breach of this Agreement by Business Associate,
Physician shall provide an opportunity for Business Associate to cure the breach or end the
violation and terminate the Agreement if Business Associate does not cure the breach or end the
violation within the time specified by and to the satisfaction of Physician.
22
(ii) This agreement will automatically terminate upon Physician’s termination from the APP CI
program. Upon Physician’s termination from the APP CI Program, Physician shall cease including
patient data in the APP disease registries.
c.
Except as provided in Section 7 of this Agreement, upon termination of the Participating Physician
Agreement, for any reason, Business Associate shall return or destroy all PHI received from
Physician, or created or received by Business Associate on behalf of Physician. If Business
Associate destroys all or some of the PHI, Business Associate shall deliver to Physician an
authorized and executed Affidavit, attesting to the facts of such destruction. Business Associate
shall retain no copies of the PHI. This subsection shall also apply to PHI that is in the possession
of subcontractors or agents of Business Associate, provided, however, Business Associate is not
required to return PHI not readily available in archival or other back-up form, which shall be
retained in accordance with this Agreement.
d.
In the event that Business Associate determines that returning or destroying the PHI is infeasible,
Business Associate shall provide to Physician notification of the conditions that make return or
destruction infeasible. Upon mutually agreement between Business Associate and Physician, that
return or destruction of PHI is infeasible, Business Associate shall extend the protections of this
Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that
make the return or destruction infeasible, for so long as Business Associate maintains such PHI.
7.
Interpretation. Any ambiguity in this Agreement shall be resolved to permit Physician to comply with the
Privacy Rule and HITECH.
8.
Effect. The terms and provisions of this Agreement shall supersede any other conflicting or inconsistent
terms and provisions in any other agreement between the Physician and the Business Associate, including
all exhibits or other Agreements thereto and all documents incorporated therein by reference. Without
limitation of the foregoing, any limitation or exclusion of damages provisions shall not be applicable to
this Agreement. All other terms of existing agreements between the Physician and the Business Associate
remain unchanged and shall be enforced as written.
9.
Automatic Amendment. This Agreement shall be automatically amended to the extent necessary for the
parties to comply with the Privacy Standards, the Standards for Electronic Transactions (45 C.F.R. Parts
160 and 162), HITECH and the Security Standards (collectively, the “Standards”) promulgated or to be
promulgated by the Secretary or other regulations or statutes. The Business Associate agrees that it will
fully comply with all such Standards and that it will agree to amend this Agreement to incorporate any
material required by the Standards. Such amendment shall be binding upon the Parties at the end of a ten
(10) days’ prior written notice of amendment to maintain compliance with applicable law or regulations,
and shall not require the consent of the Parties.
10.
Mutual Amendment. This Agreement may be amended at any time by mutual written agreement
between the parties.
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EXHIBIT F
THIS EXHIBIT IS INTENTIONALLY LEFT BLANK
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EXHIBIT G
Physician Listing
The individual executing this Agreement on behalf of individual physicians in a professional
corporation or partnership for a group of Physicians warrants that he/she has the appropriate
authority to enter into this Agreement on behalf of each Physician listed below and each shareholder,
partner, employee, agent and/or contractor of Physician who provide services under this Agreement.
NOTE: This list of individual physicians is understood to be amended by the Group to include any
individual physician who subsequently joins this Group upon notification to APP (provided any
subsequent physicians meet APP membership requirements and are accepted into APP through the
credentialing process) and will not require amendment to this agreement to add said, individual
physician to this agreement.
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Exhibit H
MEDICARE ADVANTAGE
This Exhibit H supplements the terms of the Participating Provider Agreement with respect to the
provision of Covered Services to Members enrolled in Medicare Advantage and Part D Plans. This
Exhibit H is effective as of the date the Participating Provider Agreement is signed by the Parties
(“Effective Date”).
DEFINITIONS
All capitalized terms not defined in this Exhibit H shall have the meanings ascribed to them in the
Agreement.
CMS means the Centers for Medicare and Medicaid Services.
CMS Contract means all the contracts between Plan Sponsor or its affiliates and CMS pursuant to
which Plan Sponsor or its affiliates sponsor Medicare Advantage and Part D Plans.
Covered Services means those Services which are covered under a Plan Sponsored Medicare
Plan.
Downstream Entity has the same definition that in 42 C.F.R. §§ 422.2 and 423.4, which, at the
time of execution of this Exhibit H, means any person or entity that enters into a written
arrangement with persons or entities involved in the MA and/or Medicare Part D
Programs, below the level of the arrangement between Plan Sponsor and a First-Tier
Entity, such as APP.
First Tier Entity has the same definition as in 42 C.F.R. §§ 422.2 and 423.4, which, at the time of
execution of this Exhibit H, means any person or entity that enters into a written
arrangement with Plan Sponsor to provide administrative and/or health care services,
including Covered Services, to Members.
HHS means the U.S. Department of Health and Human Services.
Plan Sponsor means a commercial insurance company that has contracted with CMS to sponsor
Medicare Advantage and Part D Plans.
Plan Sponsored Medicare Plan(s) means MA Plan(s) and/or Part D Plan(s) sponsored by a Plan
Sponsor or its affiliates pursuant to the CMS Contract.
Plan Sponsor Physician Network means the network of participating Physicians maintained by
Plan Sponsor to provide Covered Services to Members pursuant to the terms of their Plan
Sponsored Medicare Plan.
Laws means any and all applicable laws, rules, regulations, statutes, orders, and standards of the
United States of America, the states or any department or agency thereof with jurisdiction
over any or all of the Parties, as such laws, rules, regulations, statutes, orders and
standards are adopted, amended or issued from time to time. Laws include, without
limitation, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)
and its implementing regulations, including the HIPAA Privacy Rule and HIPAA
Security Rule; Parts C and D of Title XVIII of the Social Security Act and its
implementing regulations, including Parts 422 and 423 of Title 42 of the Code of Federal
Regulations; all CMS guidance and instructions relating to the Medicare Advantage and
Medicare Prescription Drug Programs; Title VI of the Civil Rights Act of 1964; the Age
Discrimination Act of 1975; the Rehabilitation Act of 1973; the Americans with
Disabilities Act; the requirements applicable to individuals and entities receiving federal
26
funds; the federal False Claims Act; any applicable state false claims statute, the federal
anti-kickback statute; and the federal regulations prohibiting the offering of beneficiary
inducements.
Medicare Advantage Plan or MA Plan means a Medicare Advantage Plan sponsored by a
Medicare Advantage Organization, as the term is defined in Laws, pursuant to the
Medicare Advantage Program.
Medicare Advantage Program (“MA Program”) means the Medicare managed care program
established and maintained under Laws.
Medicare Prescription Drug Plan or Part D Plan means a Medicare prescription drug benefit plan
sponsored by a Part D Plan Sponsor, pursuant to the Part D Program.
Medicare Prescription Drug Program (“Part D Program”) means the Medicare prescription drug
benefit program established and maintained under Laws.
Members mean members that are enrolled in a Plan Sponsored Medicare Plan.
Network Physician means a person or entity that directly or indirectly contracts with Plan
Sponsor to deliver health care services, including Covered Services, to Members.
Physician Manual means the documents containing Plan Sponsored Medicare Plan policies,
procedures, and programs that is available to Physician via the Plan Sponsored Medicare
Plan website, as the same may be modified and updated from time to time by Plan
Sponsor in its sole discretion. In the event of a conflict between the Physician Manual
and the terms of this Exhibit H, the terms of this Exhibit H shall apply.
II.
TERMS AND CONDITIONS
A.
Provision of Covered Services. Physician shall furnish Covered Services to Plan
Sponsor’s Members and otherwise perform under the Agreement and this Exhibit H in a
manner consistent with the requirements of all Laws; the CMS Contract all applicable
Plan Sponsor policies, procedures and guidelines, including, but not limited to, Plan
Sponsor’s compliance plan and such policies, procedures and initiatives for combating
fraud, waste and abuse; the Physician Manual; and professionally recognized standards of
health care.
B.
Privacy and Security. Physician shall obtain, analyze, store, transmit, and report
Protected Health Information, as defined under Laws, in accordance with all applicable
Laws, regulations and CMS instructions. Physician shall abide by all Laws and Plan
Sponsor’s procedures regarding privacy, confidentiality, and accuracy of Members’
medical and prescription records and other health and enrollment information.
C.
Record Inspection and Retention. Physician shall maintain books, contracts, records
(including medical records and, as applicable, prescription records) and other documents
involving transactions related to the Plan Sponsor’s contract with CMS and shall allow
the Plan Sponsor, U.S. Department of Health and Human Services (HHS), the
Comptroller General, and/or their designees to access such books, records, contracts and
other documents for inspection, evaluation and audit for the longer of: (i) 10 years from
the final date of the contract period; (ii) the date of the completion of any audit; or (iii) as
laws or regulations or HHS or the Comptroller General otherwise specify.
D.
Compliance Program. Physician shall implement and maintain a compliance program
that, at a minimum, meets the standards for an effective compliance program set forth in
Laws, including, without limitation, the Federal Sentencing Guidelines, and that
addresses the scope of services under the Agreement and this Exhibit H. Such
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compliance program shall require cooperation with Plan Sponsor’s compliance plan and
policies.
E.
Cooperation with CMS. The Parties acknowledge and agree that Physician’s failure to
cooperate with CMS or its designees may result in a referral of Physician to law
enforcement and/or implementation of other remedial action by CMS, including, without
limitation, imposition of intermediate sanctions.
F.
Delegation of Activities. The Parties agree that to the extent that Plan Sponsor or APP
delegates to Physician performance of any function, duty, obligation, or responsibility
imposed on Plan Sponsor under the CMS Contract (“Delegated Activity”):
1.
The Delegated Activity shall be set out in writing, and if such Delegated Activity
includes credentialing of Network Physicians and/or selection of Network
Physicians, such written arrangement shall address Plan Sponsor’s right to
review, approval and auditing of Physician’s credentialing process and/or right to
review, approve, and terminate such Physicians, as applicable;
2.
Plan Sponsor shall conduct on-going monitoring and review of Physician’s
performance of the Delegated Activity;
3.
Physician’s performance of the Delegated Activity shall comply with Laws, the
Agreement, Plan Sponsor’s contract with CMS and this Exhibit H; and
4.
Such delegation shall be subject to the requirements of all applicable Laws,
guidance, and CMS instructions.
G.
Termination of Delegated Activities. The Parties agree that, with respect to any
Delegated Activity delegated to Physician, Plan Sponsor may revoke the delegation in
whole or in part or take such other remedial action as Plan Sponsor, in its reasonable
discretion, deems appropriate, where CMS, in its sole discretion, or Plan Sponsor, in its
reasonable discretion, determine that Physician is not performing such Delegated Activity
in a satisfactory manner.
H.
Member Hold Harmless.
Physician hereby agrees that in no event, including, but not limited to, non-payment by
Plan Sponsor, insolvency of Plan Sponsor, or breach of the Agreement or this Exhibit H
by Plan Sponsor, shall Physician bill, charge, collect a deposit from, seek compensation,
remuneration or reimbursement from, or have any recourse against Members or persons
other than Plan Sponsor acting on such Member’s behalf for fees that are the legal
obligation of Plan Sponsor. This provision shall not prohibit Physician from collecting
charges for non-Covered Services or cost-sharing obligations for Covered Services
imposed on Member pursuant to the terms of such Member’s Medicare Plan.
Physician further agrees that: (a) this provision shall survive the termination of this
Exhibit H regardless of the cause giving rise to termination and shall be construed to be
for the benefit of the Member; and (b) this provision supersedes any oral or written
contrary agreement now existing or hereafter entered into between Physician and the
Member or persons other than Plan Sponsor acting on such Member’s behalf.
I.
Dual-Eligible Cost-Sharing. Physician agrees that, to the extent Physician provides
Covered Services to Medicare Subscribers who are eligible for benefits under both the
Medicare and Medicaid Programs (“Dual-Eligible Subscribers”), and unless otherwise
instructed by Plan Sponsor in writing:
Physician shall not bill, charge, collect a deposit from or seek compensation,
remuneration or reimbursement from or have any recourse against any Dual-Eligible
28
Subscriber for payment of Medicare Part A and/or Part B cost-sharing when the state
Medicaid program is responsible for payment of such amounts;
Physician shall accept payment under the Agreement and this Exhibit H as payment in
full for the Covered Service provided to a Dual-Eligible Subscriber or submit a claim to
the state Medicaid source for payment of any cost-sharing amount that is the obligation of
the state Medicaid program.
J.
Dual-Eligible Benefits. Physician shall coordinate with Plan Sponsor to ensure that
Physician is informed of Medicare and Medicaid benefits available to Dual-Eligible
Subscribers, including cost-sharing obligations of such Dual Eligible Subscribers as well
as any applicable eligibility requirements.
K.
Data Reporting. Physician acknowledges that Plan Sponsor collects, analyzes and
integrates data relating to the provision of Covered Services to Members in order for Plan
Sponsor to meet its obligations under Laws, including, without limitation, 42 C.F.R.
§§ 422.310, 422.516, 423,329, and 423.514, the CMS Contract and Plan Sponsor’s
policies, procedures and programs. Physician agrees to provide to Plan Sponsor any and
all data, without limitation, including encounter data, diagnosis codes, and medical and
prescription records, relating to the provision of health care services and benefits,
including Covered Services, by Physician to Members pursuant to the Agreement and
this Exhibit H as Plan Sponsor so requests, and to submit such data to Plan Sponsor, or
such other party designated by Plan Sponsor, in the format and within such time frames
as may be prescribed by Plan Sponsor. Physician agrees that all data Physician submits
to Plan Sponsor under this Exhibit H shall conform to all relevant national standards and
to the requirements for equivalent data for Medicare fee-for-service, as applicable.
L.
Acknowledgement of Data Used to Obtain Payment Under Federal Program. Physician
acknowledges and agrees that data furnished by Physician to Plan Sponsor in connection
with the provision of Covered Services under the Agreement and this Exhibit H will be
used by Plan Sponsor to obtain payment from CMS under the CMS Contract and to
support Plan Sponsor’s participation in the MA and Part D Programs, including
submission of bids for renewal of the CMS Contract in future years and for risk-adjusting
Plan Sponsor’s Plan payments from CMS. Furthermore, Physician acknowledges and
agrees that Plan Sponsor and CMS will rely on the accuracy, completeness and
truthfulness of any data Physician submits to Plan Sponsor under the Agreement and this
Exhibit H.
M.
Certification of Data Accuracy. Physician shall, upon request by Plan Sponsor, have its
CEO or CFO or an individual delegated the authority to sign on behalf of one of these
officers and who reports directly to such officer, certify to the accuracy, completeness,
and truthfulness of all data submitted under the Agreement or this Exhibit H in the form
and format set out by Plan Sponsor.
N.
Compensation. In the absence of any other contracted rate, Physician agrees to accept as
payment in full for the provision of a Covered Service to a Member the fee for such
service under the applicable Plan Sponsored Medicare Plan fee arrangement with APP in
effect at the time the Covered Service is provided, less any applicable cost-sharing
amount that is the responsibility of the Member pursuant to the terms of such Member’s
Plan Sponsored Medicare Plan.
O.
Claims Submission. Physician shall submit complete and properly executed claims for a
Covered Service to Plan Sponsor or its designee within one hundred eighty (180)
calendar days of the date the Covered Service is rendered. If Physician fails to submit a
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claim in compliance with this paragraph, Physician forfeits the right to payment from
Plan Sponsor or the Member.
P.
Claims Payment. Per the payment terms of the Agreement, Plan Sponsor shall make
payment on a clean claim, as defined in Laws and/or the Physician manual, to Physician
within the time frames described in the applicable Plan Sponsored Medicare Plan fee
schedule with APP in effect at the time the Covered Service is provided.
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