A. FINANCIAL TERMS

A1. Invoices.

Facility shall submit a monthly invoice to HSWO within five (5) days of the end of the month in which Facility Services are rendered. Each invoice shall state, at a minimum, the following: (1) the name of each Hospice Patient for whom Facility Services were provided; (2) a list of Facility Services provided; (3) the dates the Facility Services were provided; and (4) the total amount due (“Invoice”). Hospice Name will remit payment in full of all non-disputed charges within sixty (60) days of receipt of a complete Invoice. As a condition precedent to being paid, Facility must submit an Invoice to Hospice Name within three (3) months of the service date; incomplete Invoices and Invoices not received by Hospice Name within that time period will not be paid.

A2. Financial Responsibility.

HSWO shall be responsible for billing and collection for Hospice Services and Facility Services rendered to Hospice Patients receiving hospice care under the Medicare or Medicaid hospice benefit (the “Hospice Benefit”) that are related to the Hospice Patient’s terminal illness. Facility shall be solely responsible for billing and collection for Facility Services that HSWO is not required to perform under Medicare, Medicaid, or other third-party agreement, including for Hospice Patients whose application for coverage under Medicaid is pending, for services not covered under the Hospice Benefit, and for private pay patients. In such cases, Facility shall submit requests for payment to the Hospice Patient, responsible party, and/or appropriate third-party payer, in accordance with applicable laws and regulations. If any payments are inadvertently received by Facility for Hospice Services or Facility Services billable by HSWO, Facility shall promptly direct such payments to HSWO.

A3. Medicaid Managed Care Residents.

For dual eligible residents enrolled in a state-contracted managed care plan (a “Plan”), Facility and HSWO agree to bill for services in accordance with the instructions of the Plan. If the Plan requires HSWO to bill the Plan for Facility Services provided to Hospice Patients, Facility will bill HSWO for Facility Services in accordance with the room and board rate for Medicaid residents. If the Plan requires Facility to bill the Plan for Facility Services provided to Hospice Patients, Facility will bill the Plan directly for the Facility Services and HSWO shall have no responsibility to compensate Facility for Facility Services.

A4. Payment in Full.

Facility certifies that it has a valid provider agreement with Medicaid in accordance with State law. Facility agrees that payment by HSWO shall constitute full payment for Facility Services rendered to patients receiving hospice care pursuant to the Hospice Benefit.

A5. Purchase of Supplies and Services.

HSWO may purchase specific supplies, equipment and ancillary services from Facility, including pharmaceuticals, supplies, oxygen, and therapies. Pricing of these items or services shall be negotiated between the parties prior to purchase. Billing and payment for any such purchased supplies or services will be conducted in accordance with the terms of this Agreement.

B. SERVICE TERMS

B1. Definitions.

• a. Attending Physician:

  A licensed doctor of medicine or osteopathy who is identified by the Hospice Patient or the Hospice Patient’s family as having primary responsibility for the Hospice Patient’s medical care.

• b. Facility Basic Services:

  Personal care services and items provided by Facility including, but not limited to: providing meals; assisting in activities of daily living; socializing activities; the administration of medicine; maintaining the cleanliness of the Hospice Patient’s room; supervising and assisting in the use of any durable medical equipment and therapies; laundry; personal care supplies; and providing the usual and customary room furnishings provided to Facility’s residents.

• c. Facility Medical Director:

  A licensed doctor of medicine or osteopathy who assumes overall responsibility for the medical component of the Facility Plan of Care.

• d. Facility Plan of Care:

  A written care plan established, maintained, reviewed and modified, as necessary, by Facility for each Hospice Patient setting forth Facility services that Facility has determined are appropriate for such Hospice Patient and consistent with the Hospice Plan of Care.

• e. Interdisciplinary Group (“IDG”):

  A group of HSWO personnel who provide or supervise the care and services offered to a Hospice Patient.

• f. Hospice Medical Director:

  A licensed doctor of medicine or osteopathy contracted for by HSWO who assumes overall responsibility for the medical component of the Hospice Plan of Care.

• g. Hospice Patient:

  Resident who voluntarily elects hospice care in accordance with applicable Medicare and/or Medicaid regulations or a private benefit and who receives Hospice Services.

• h. Hospice Plan of Care:

  A written plan established by the Hospice Medical Director, the Attending Physician, the IDG, and in conjunction with Facility personnel, maintained for each Hospice patient, containing an assessment of the patient’s needs, the appropriateness of hospice care, identification of services to be provided, and a description of the scope and frequency of services to be provided, which is reviewed at regular intervals and updated as necessary. The Hospice Plan of Care will identify the care and services that are needed and specifically identify what services HSWO and what services Facility is responsible for performing. The Hospice Plan of Care will also reflect the participation of HSWO, Facility, and the Hospice Patient and his or her family to the extent possible.

• i. Hospice Services:

  Hospice Services means those services and items provided to a Hospice Patient by HSWO, either directly or under arrangements, that are necessary for the care of the Hospice Patient’s terminal illness, including providing medical direction and management of the patient; nursing; counseling (including spiritual, dietary, and bereavement); social work; provision of medical supplies, durable medical equipment, and drugs necessary for the palliation of pain and symptoms associated with the terminal illness and related conditions; and other hospice services necessary for the care of the Hospice Patient’s terminal illness and related conditions.

• j. Inpatient Acute Care:

  Services provided in an inpatient facility for pain control or acute symptom management that cannot be managed in other settings, including 24-hour nursing care.

• k. Respite Care:

  Short term inpatient care, including but not limited to, 24-hour nursing care, furnished to a Hospice Patient in order to provide relief to family members or other persons caring for the Hospice Patient for five (5) or less consecutive days on an intermittent, non-routine, and occasional basis.

B2. HSWO Responsibilities.

• a. Professional Management.

  HSWO maintains responsibility for the professional management of the Hospice Patient’s care and is responsible for determining the appropriate course of hospice care, including the determination to change the level of services provided. HSWO shall furnish at Facility’s request a copy of: (1) the Hospice Patient’s most recent Hospice Plan of Care; (2) the Hospice Patient’s hospice election form; (3) any advance directive; (4) the physician certification and recertification; (5) names and contact information for HSWO personnel involved in the Hospice Patient’s care; (6) information on how to access HSWO’s 24-hour on-call system; (7) hospice medication information and (8) hospice physician and Attending Physician orders specific to the Hospice Patient. HSWO will specify to Facility the care to be provided to the Hospice Patient by the Facility. The designated coordinator of the IDG will assess conformance with the Hospice Plan of Care. Any changes to the Hospice Plan of Care must be approved by HSWO prior to implementation.

• b. Provision of Hospice Services.

  HSWO will provide Hospice Services at the same level and to the same extent as those services would be provided if the Hospice Patient were in his or her own home.

• c. Bereavement Counseling.

  HSWO will provide bereavement counseling to Hospice Patient’s family and to other individuals in the bereavement plan of care, including Facility staff that cared for the Hospice Patient. HSWO and Facility will collaborate and communicate in order to determine who on Facility’s staff will benefit from the bereavement services offered by HSWO. This decision will be individualized based on the staffs’ involvement in the resident’s care. Facility will cooperate and assist HSWO in the provision of bereavement services when requested.




B3. Facility Responsibilities.

• a. Provision of Facility Services.

  Facility shall provide Facility Services to Hospice Patients. Facility will continue to furnish 24-hour room and board care, meeting the personal care and nursing needs that would have been provided by the primary caregiver at home at the same level of care provided before hospice care was elected and ensure that the level of care provided is appropriately based on each individual Hospice Patient’s needs. Facility shall ensure each Hospice Patient is kept comfortable, clean, well-groomed, and protected from accident, injury, and infection. Facility will use best efforts to place Hospice Patients in private rooms, when possible, and Facility will endeavor to provide a home-like atmosphere to Hospice Patients. Facility shall ensure the Hospice Patients never experience any lack of services or personal care because of their hospice status. Facility shall ensure that each patient’s written plan of care includes the most recent Hospice Plan of Care and description of the services furnished by Facility to attain or maintain the patient’s highest practicable physical, mental, and psychosocial well-being.

• b. Direct Daily Nursing Care.

  Facility will ensure that coordinated direct patient care of each Hospice Patient is provided by a registered nurse or licensed practical nurse employed by Facility twenty-four (24) hours a day, seven (7) days a week during the term of this Agreement.

• c. Interdisciplinary Group Member.

  Facility will designate a member of its interdisciplinary team who will be responsible for working with HSWO to coordinate care provided to the Hospice Patients. Facility shall ensure this individual is informed of its responsibilities, as they are described in the Medicare and Medicaid Requirements for Participation for long-term care facilities, and that this individual completes his or her responsibilities as required by these rules. The individual must be an employee of Facility with a clinical background, the individual must function within his or her scope of practice, and this individual must have the ability to assess the Hospice Patients or have access to someone that has the skills and capabilities to assess the Hospice Patients. Facility will inform HSWO of the identity of this individual and provide the individual’s contact information prior to execution of this Agreement. In the event the individual can no longer provide services, Facility will immediately notify HSWO and Facility will designate another individual to perform these services. Facility shall be solely responsible for compensating this individual.

• d. Accordance with Policies and Procedures.

  Facility agrees to conform to all applicable HSWO policies and procedures, including personnel qualifications, advance directives policies and procedures, palliative care policies and protocols, and the Hospice Plans of Care established by HSWO for Hospice Patients. Facility shall ensure that its patient care policies are consistent with those of HSWO.

• e. Patient and Family Assessments.

  Upon request by HSWO, Facility will assist HSWO in conducting initial and comprehensive patient and family assessments.

• f. IDG.

  Facility will consult with and attend, as reasonably requested, meetings and conferences of the IDG for the purpose of reviewing, evaluating, or modifying a Hospice Patient’s plans of care.

• g. Access.

  Facility shall permit free access and unrestricted visiting privileges (including, but not limited to, visits by children of any age) twenty-four (24) hours a day, three hundred sixty-five (365) days a year, including physical space for private visits between Hospice Patients and their families, accommodations for family members to remain with the Hospice Patient throughout the night, and privacy for the Hospice Patient’s family following the Hospice Patient’s death. Facility shall permit appropriate members of the IDG to attend, counsel, treat, and serve Hospice Patients.

• h. Physician Privileges.

  If the Hospice Patient’s Attending Physician does not have privileges at Facility, Facility will grant temporary limited privileges to the Hospice Patient’s Attending Physician while the Hospice Patient is receiving Hospice Services at Facility.




B4. Qualifications.

• a. Facility certifies that: (1) it is certified to participate in the Medicare and Medicaid programs; (2) it has not been excluded from the Medicare or Medicaid programs or any federally-funded healthcare program; and (3) it is a licensed nursing facility in good standing with the Ohio Department of Health, and no proceeding is pending or threatened to revoke or limit its licensure.
• b. Facility certifies that all personnel of Facility who provide services to Hospice Patients will satisfy the following qualifications: (1) the individual is not under suspension or subject to any disciplinary proceedings by the department or agency having jurisdiction over the professional activities of the person in Ohio, if any, and is not under any formal or informal investigation or preliminary inquiry by such department or agency for possible disciplinary action; (2) the individual has had an Office of Inspector General Exclusion List check, and has not been excluded from the Medicare or Medicaid programs, or any other federally-funded healthcare program; (3) the individual is licensed and/or certified in good standing under Ohio law, if required to provide services; and (4) the individual is free from tuberculosis and other communicable diseases.
• c. Facility further certifies that all personnel of Facility who provide direct patient care or have access to Hospice Patients clinical records have had had a criminal background check in accordance with Ohio law within the one (1) year period immediately preceding the date that services are first provided to Hospice Patients, and the results of the criminal background check must demonstrate that the individual has not been convicted of or pleaded guilty to any offense that would prohibit a person from providing direct care to an older adult.
• d. Facility further certifies that all personnel of Facility who provide direct patient care to a Hospice Patient will satisfy the following qualifications: (1) If the individual must have been medically examined by a physician within thirty (30) days prior to commencing work, and as a result of the examination, the individual was certified as medically capable of performing his prescribed duties; and (2) Within that same 30-day period, the individual shall also have passed a Mantoux tuberculosis test, or, if the individual has a documented history of a significant Mantoux skin test, a chest x-ray and shall pass a Mantoux test annually throughout the term of the Agreement.
• e. The certifications in this section shall be ongoing representations and warranties, and Facility shall immediately notify HSWO of any change in status. Facility agrees to provide HSWO with evidence of its compliance with the foregoing qualifications upon request, and to indemnify HSWO for any losses and/or costs incurred as a result of Facility’s noncompliance with this section upon demand.



B5. Physicians.

The Hospice Patient’s Attending Physician shall be responsible for the direct medical care of such patient, and Facility shall consult directly with the Hospice Patient’s Attending Physician on matters of treatment, medication and care. If the Attending Physician is unavailable for consultation, Facility may consult with, and act upon the recommendations of the Hospice Medical Director.




B6. Use of Facility Personnel.

HSWO may use Facility personnel where permitted by State law to assist in the administration of prescribed therapies included in the Hospice Plan of Care to the extent that HSWO would routinely use the services of the Hospice Patient’s family in implementing the plan of care. When Facility personnel are responsible for the administration of prescribed therapies, including those therapies determined appropriate by HSWO and delineated in the Hospice Plan of Care, HSWO’s personnel shall administer these therapies in accordance with State law and as specified by Facility.




B7. Admission & Discharge.

HSWO shall maintain exclusive authority and responsibility for admitting and discharging Hospice Patients to and from its hospice program. Prior to the admission of any Hospice Patient to Facility for Inpatient Acute Care, if applicable, HSWO and Facility will confirm Facility’s ability to provide such services.




B8. Coordination of Services.

• a.Both parties will designate an individual to serve as the primary contact for coordination and implementation of this Agreement.
• b.HSWO and Facility shall communicate with each other regarding the Hospice Patient’s condition through telephone, in-person verbal communication, and, if appropriate, written communication in the Hospice Patient’s medical record to meet the needs of Hospice Patients twenty-four (24) hours a day. Facility will document communications in the Hospice Patient’s medical record.
• c.Facility shall immediately notify HSWO if: (1) there is a significant change in a Hospice Patient’s physical, mental, social, or emotional status; (2) clinical complications appear that suggest a need to alter the plans of care; (3) there is a need to transfer a Hospice Patient from the Facility; or (4) the Hospice Patient dies.
• d.HSWO and Facility will report all alleged violations involving mistreatment, neglect, or verbal, mental, sexual or physical abuse, including injuries of unknown source and misappropriation of Hospice Patient property to the other party’s administrator within 24 hours of becoming aware of the alleged violation.



B9. Training.

Facility agrees to create a formal hospice orientation program for facility staff and to allow HSWO to provide hospice care orientation and training to Facility’s personnel who provide care under this Agreement. HSWO will be responsible for documenting a description of such training and the names of those individuals giving the training. Facility will also do periodic trainings to ensure that all Facility staff remain knowledgeable about HSWO’s new policies and procedures. Additionally, Facility shall provide orientation to HSWO’s staff in its policies and procedures, including patient rights, appropriate forms, and record keeping requirements. Facility shall provide training at no cost to HSWO and will ensure all orientation training is completed prior to HSWO staff providing any services at Facility.




B10. Disaster and Emergency Planning.

During a declared disaster/emergency, communication will be as outlined in the Facility’s applicable disaster plan. In the event of crisis situations and temporary emergencies, the Facility will accommodate Hospice Patients just as any other resident and notify HSWO immediately. If assistance is needed from HSWO to accommodate special needs of a Hospice Patient, HSWO will communicate to the Facility actions that will be taken and the time frame in which the actions will be taken. Both HSWO and the Facility will work to ensure that Hospice Patients are adequately cared for in all situations.




B11. Evaluation of Services.

• a.HSWO will evaluate the Services on a continuous basis to assess whether the requirements of this Agreement are being met.
• b.Facility shall conduct an ongoing, comprehensive and integrated self-assessment of the quality and appropriateness of the Services it provides to patients, including the patients’ responses to the Services.
• c.Facility will assist and participate in quality improvement activities as requested by HSWO.



B12. Provision of Inpatient Care.

In the event that Facility provides Inpatient Acute Care to a Hospice Patient, HSWO and Facility agree as follows:

• a.HSWO will provide Facility a copy of the Hospice Plan of Care that specifies the Inpatient Acute Care to be provided;
• b.Facility will provide Inpatient Acute Care in accordance with its patient care policies, which shall be consistent with those of HSWO, and Facility agrees to abide by the palliative care protocols and plan of care established by HSWO for Hospice Patients;
• c.The parties will record in the Hospice Patient’s medical record all Inpatient Acute Care furnished and events regarding the Inpatient Acute Care;
• d.Facility will provide HSWO a copy of the discharge summary and make a copy of the Hospice Patient’s medical record available to HSWO when the Hospice Patient is discharged;
• e.Facility will designate an individual responsible for implementation of the provision of Inpatient Acute Care to Hospice Patients;
• f.HSWO shall retain responsibility for ensuring that the training of personnel who will be providing the Inpatient Acute Care has been provided and that a description of the training and the names of those giving the training are documented; and
• g.HSWO and Facility will meet periodically in accordance with their monitoring and evaluation processes to ensure that the requirements of this section are met.



C. MISCELLANEOUS TERMS




C1. Maintenance and Availability of Records.

• a. Facility agrees to keep and supply records in such form and for such duration as may be required by Federal and State statutes and regulations, and in accordance with the currently approved methods and standards of practice in its industry. Records will include, but are not limited to, all data obtained, results or evaluations, treatment plan or goals, progress status, and a discharge summary for each patient. All care, treatment, and services furnished by Facility will be entered into the Hospice Patient’s medical record. Facility shall make any and all records related to this Agreement available to HSWO for inspection and/or audit upon request by HSWO.
• b. Facility shall submit all documentation to HSWO in accordance with HSWO’s policies and procedures, but in no event will HSWO submit documentation later than seven (7) days after the delivery of Facility Services. At the time of discharge, Facility will provide HSWO a copy of the inpatient clinical record and discharge summary for any Hospice Patients who receive services from Facility.
• c. All reports and records pertaining to Hospice Patients and services rendered pursuant to this Agreement are, and shall at all times remain, the property of HSWO.
• d. Facility shall have such access to HSWO’s reports and records as may be necessary for the proper performance of its duties and responsibilities under this Agreement.



C2. Consumer Choice of Provider.

Nothing in this Agreement shall be construed to violate the consumer’s freedom of choice, if any, of hospice provider.




C3. Cost Reports.

Facility shall prepare and submit to HSWO data requested by HSWO for completion of its cost reports.




C4. Audits.

This provision will apply if the amount paid under the Agreement is $10,000 or more over a twelve (12) month period. Until the expiration of four (4) years after the furnishing of Services pursuant to this Agreement, Facility shall, upon written request, make available to the Secretary of the Department of Health and Human Services (“HHS”), the Comptroller General, or any of their authorized representatives, this Agreement, and any books, documents and records that are necessary to certify the nature, extent, and costs of provided services incurred by HSWO under this Agreement. The availability of Facility’s books, documents and records will at all times be subject to such criteria and procedures for seeking access as may be promulgated by the Secretary of HHS in regulations, and other applicable laws. Facility’s disclosure under this provision will not be construed as a waiver of any legal rights to which HSWO or Facility may be entitled under statute or regulation. If Facility performs any of its duties pursuant to this Agreement through a subcontractor, with a value or cost of $10,000 or more over a twelve (12) month period, then Facility warrants that it will include a provision in the agreement with the subcontractor substantially similar to this section. If Facility is required to disclose any books, documents and/or records pursuant to this section, Facility shall immediately notify HSWO and provide HSWO copies of such books, documents, and/or records disclosed, to the extent allowed by law.




C5. Confidentiality.

Facility agrees to maintain the confidentiality of patient-identifiable information in accordance with applicable laws and regulations. Facility acknowledges that all information provided by HSWO and its employees, officers, attorneys, agents and representatives or otherwise made available to Facility constitutes confidential and proprietary information and includes trade secrets of HSWO (“Confidential Information”). The Confidential Information may include business and marketing ideas, data, know-how, contracts, agreements, documents, plans, software, processes, designs, reports, specifications, studies, customer lists and other information relating to HSWO’s operations, fiscal matters, sales, business, marketing and strategic plans and other aspects of HSWO’s business, business plans, financial condition and operations. Confidential Information does not include information that is generally available to the public or information that is already in the possession of, or independently developed by Facility on a non-confidential basis.

Facility shall keep and take all steps necessary to protect and keep Confidential Information strictly confidential and shall direct and cause its employees and agents to keep Confidential Information confidential. Facility shall not disclose or use any Confidential Information for any purpose outside the scope of this Agreement, except with HSWO’s prior written consent. If Facility is compelled by law to disclose Confidential Information, it shall provide HSWO with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at HSWO’s cost, if HSWO wishes to contest the disclosure. Upon the earlier of (1) a written request from HSWO or (2) the termination of this Agreement, Facility shall immediately return to HSWO any and all Confidential Information provided by or through HSWO and shall destroy any and all copies, notes, reproductions or summaries of any documentation or materials containing any Confidential Information.

If Facility discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this section, HSWO shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the parties that any other available remedies are inadequate.




C6. Insurance.

Facility shall provide, at its own expense, worker’s compensation insurance coverage meeting applicable state requirements and professional liability and malpractice, general liability, and automobile insurance coverage of no less than one million dollars ($1,000,000) per incident and three million dollars ($3,000,000) in the aggregate during the term of this Agreement. Facility agrees to furnish HSWO with satisfactory evidence of such insurance upon request. Facility agrees to maintain insurance coverage with carriers in limits mandated by law for occupational disease and employer liability. Facility will notify HSWO at least ten (10) days prior to cancellation or any reduction in coverage under any insurance policy.




C7. Indemnification.

Facility agrees to indemnify and hold HSWO (including HSWO’s Board of Directors, individually and collectively, and its owners, officers, members, directors, affiliates, parent companies, subsidiaries, employees, attorneys, agents, and other representatives, individually and collectively) harmless from and against all claims, liabilities, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees, fines from any governmental agency or expenses incurred in appealing a governmental citation, audit, or investigation, court costs, and/or experts’ fees, incurred by HSWO due to actions or inactions, breach of duties, malpractice, or negligence of Facility or its employees, contractors, or agents.




C8. Non-Solicitation.

Facility agrees that neither it, nor any corporation, agency or other entity controlled, affiliated, or contracted with Facility, shall during the term of the Agreement, and for a period of one (1) year after its termination, directly or indirectly hire, solicit, recruit, contact, retain, or allow to provide services for Facility any current or former employee or contractor of HSWO. Facility agrees that it will not attempt to induce any current or former employee or contractor of HSWO to terminate his/her relationship with HSWO and Facility will not provide the name or contact information of any current or former employee or contractor of HSWO to any person or entity without the express written consent of HSWO, unless required by law. Facility acknowledges that the restrictions contained in this section are reasonable and necessary to protect the legitimate business interests of HSWO and that any breach of this section would result in irreparable harm to HSWO. In the event of a breach of this provision, in addition to any other available legal or equitable remedies to which HSWO may be entitled, Facility shall pay HSWO ten thousand dollars ($10,000) per individual solicited in violation of this provision.




C9. Disparagement.

Facility agrees, and shall require its employees, contractors, agents, and representatives to agree, not to take any action which is intended or would reasonably be expected to harm HSWO or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity of HSWO. This shall include, but shall not be limited to, Facility or its employees, contractors, agents, and representatives disparaging HSWO or its employees, contractors, agents, vendors, representatives, affiliates, successors, directors, officers, subsidiaries, parent companies, owners, managers, partners, shareholders, attorneys, consultants, managers, executives, or the like. Disparagement includes any negative statement, whether written or oral. This provision is not intended and shall not be interpreted to impede discussions regarding medical treatment for HSWO’s patients.




C10. Independent Contractors.

None of the provisions of this Agreement are intended to create (nor shall be deemed or construed to create) any relationship between the parties other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of this Agreement. Neither party, nor any employees or agents thereof, shall have any claim under this Agreement or otherwise against the other party for social security benefits, workman’s compensation, disability benefits, unemployment insurance, vacation, sick pay or any other employee benefits of any kind.




C11. Notices.

Any notice, demand or communication required, permitted or desired to be given hereunder shall be deemed effectively given when mailed by prepaid certified mail, return receipt requested, addressed to the addresses on the signature page of this Agreement. Any notice not so delivered in accordance with this section shall not constitute notice to the other party. Any party may change its address by giving notice in accordance with the provisions of this section.




C12. JURY TRIAL WAIVER.

EACH PARTY IRREVOCABLY WAIVES ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT.




C13. Arbitration.

The parties agree that any claim or dispute between them or against any agent, employee, successor, or assign of the other, whether related to the Agreement or otherwise, and any claim or dispute related to the Agreement or the relationship or duties contemplated under the Agreement, including the validity of this arbitration clause, shall be resolved by binding arbitration by the American Arbitration Association (“AAA”), under its Arbitration Rules then in effect. Any award of the arbitrator(s) may be entered as a judgment in any court of competent jurisdiction. Information about filing a claim may be obtained and claims may be filed at www.adr.org/Support. If the AAA process is no longer in existence at the time of the dispute, or AAA is unwilling or unable to conduct the arbitration, then the parties shall mutually agree on an alternative organization to conduct the arbitration. The parties agree that HSWO shall pay fifty percent (50%) of the arbitrator’s fees and that Facility shall pay the remaining fifty percent (50%) of the arbitrator’s fees. Statutes of limitation and award caps that would be applicable to a comparable civil action brought in an appropriate court in Hamilton County, Ohio shall apply to the arbitration and any award. The parties agree that HSWO is engaged in interstate commerce and that the agreement to arbitrate disputes and the arbitration proceeding shall be governed in accordance with the Federal Arbitration Act. If for any reason there is a finding that the Federal Arbitration Act cannot be applied, then the parties make clear their intent that their disputes/claims be resolved pursuant to Chapter 2711 of the Ohio Revised Code, and that the parties do not want their disputes/claims resolved in a judicial forum. If the dispute is resolved pursuant to Chapter 2711 of the Ohio Revised Code, then any arbitration panel shall consist of three persons.

Any arbitration by Facility must be commenced by filing a demand for arbitration within ONE (1) YEAR after the date Facility first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. A claim shall be waived and forever barred if it arose prior to the date upon which notice of arbitration is given to the HSWO or received by Facility, and is not presented in the arbitration proceeding.




C14. Attorney’s Fees.

Each party shall be responsible for payment of their own legal fees and costs in connection with enforcing the terms of the Agreement.




C15. Governing Law.

This Agreement has been executed and delivered in, and shall be interpreted, construed, and enforced pursuant to and in accordance with the laws of the State of Ohio. Hamilton County, Ohio shall be the sole and exclusive venue for any litigation, special proceeding, or other proceeding between the parties that may be brought, arise out of or in connection with or by reason of this Agreement.




C16. Execution.

The Agreement may be executed through electronic signatures. The individual signing the Agreement on behalf of Facility represents and warrants that he or she has the right, power and authority to enter into the Agreement and to perform its obligations under the Agreement, and such execution and performance will not violate any other agreement or obligation to which Facility is bound.




C17. Miscellaneous.

(a) No assignment of this Agreement or the rights and obligations hereunder shall be valid without the specific written consent of both parties hereto, provided, however, that this Agreement may be assigned by HSWO to any successor entity operating HSWO or a substantial portion of its assets, and such assignment shall forever release HSWO hereunder. (b) The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be a waiver of any subsequent breach of the same or other provision hereof. (c) In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms. (d) Whenever the context hereof requires, the gender of all words shall include the masculine, feminine, and neuter, and the number of all words shall include the singular and plural. (e) This Agreement constitutes the entire Agreement of the parties with respect to the subject matter hereof, and all prior and contemporaneous understandings, agreements and representations, whether oral or written, with respect to such matters are superseded. (f) This Agreement may only be amended, modified, waived or discharged by the written consent of both parties. Electronic communications (such as by e-mail or other form of electronic messaging) will be interpreted as a written agreement when there is a clear offer and acceptance by the parties’ authorized representatives. (g) This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. (h) Nothing in this Agreement shall be construed as limiting the right of either party to affiliate or contract with any other person or entity on either a limited or general basis while this Agreement is in effect. (i) Neither party shall use the name, logo, symbol or trademark of the other party in any promotional material, unless review and approval of the intended use is first obtained in writing from the party whose name is to be used. (j) The duties of the parties in the following sections (and any subsections thereof) of this Agreement shall survive the termination of the Agreement: Maintenance and Availability of Records, Audits, Confidentiality, Limitation on Liability, Indemnification, Governing Law, Arbitration, Jury Trial Waiver, Non-Solicitation, Disparagement, Attorney’s Fees, and Notices. Additionally, any other sections that, either explicitly or by their nature, must remain in effect even after termination of the Agreement, shall survive termination.




D. COMPLIANCE TERMS




Facility agrees and acknowledges that HSWO is a hospice agency, and as such, must comply with certain federal and state laws, require its subcontractors to comply with certain federal and state laws, and provide certain notices to its subcontractors. This Exhibit describes legal requirements of Facility as subcontractor of HSWO and provides Facility the notifications required to be given to him by law.




D1.

Facility shall comply with all laws and regulations that are applicable to its business and to its relationship with HSWO. This expectation includes, but is not limited to, Facility’s compliance with the Federal Anti-Kickback Law (42 U.S.C. § 1320a-7b), the Federal False Claims Act (31 U.S.C. §3729), Ohio’s Medicaid Fraud Act (O.R.C. §§2913.40 and 2913.401), the Stark Law (42 U.S.C. §1395nn), the Medicare Civil Monetary Penalties Law (42 U.S.C. §1320a-7a), federal and state antitrust laws, and state statutes regarding the confidentiality of patient records, to the extent any or all of these laws are applicable to Facility.




D2.

Both parties agree to comply with all applicable Federal, State, and local laws prohibiting discrimination against persons on account of race, ethnicity, national origin, sex, color, age, religion, military or veteran status, disability, handicap, genetic information, or any other characteristic protected under applicable law.




D3.

Facility agrees to comply with all plans of correction and other regulatory requirements necessary for certification, licensure, OSHA and/or other applicable regulatory compliance. Facility further agrees to abide by any applicable requirements of HSWO’s corporate compliance program (required by Section 6102 and 6401 of the Patient Protection and Affordable Care Act of 2010) and to report all violations to HSWO’s corporate compliance officer.




D4.

Facility certifies that it and its employees and agents comply with, are not under investigation for violations of, and have never been convicted of or sanctioned for violations of, any Federal and State laws governing the Medicare and Medicaid programs (including but not limited to, provisions regarding the billing of services and the referral of patients), laws relating to patient abuse or neglect, health care fraud, and laws governing controlled substances. The representations and warranties in the section are continuous in nature, and Facility shall immediately notify HSWO in writing if any of Facility’s representations and warranties cease to be accurate.




D5.

Facility is in compliance, and will maintain compliance, with all billing and claims submission laws and regulations during the term of this Agreement.




D6.

As required by 42 U.S.C 1320a-7b(b), nothing in this Agreement shall be construed as an offer or payment by one party to the other party (or any affiliate of the other party) of any remuneration for patient referrals, or for recommending or arranging for the purchase, lease or order of any item of service for which payment may be made in whole or in part by Medicare or Medicaid. Any payment made between Facility and HSWO is intended to represent the fair market value of the services to be rendered by the respective party hereunder and are not in any way related to or dependent upon referrals by and between HSWO and Facility. Furthermore, it is the stated intent of both parties that nothing contained in this Agreement is or shall be construed as an endorsement for any act of either party.




D7.

As required pursuant to 42 C.F.R. § 483.70(b), Facility assumes responsibility for obtaining services for its residents that meet professional standards and principles that apply to the professionals providing services in its facility and Facility is ultimately responsible for ensuring the timeliness of services that it provides to its residents.




D8.

Facility certifies that all services provided pursuant to this Agreement shall be performed: in accordance with all Federal, State and local laws applicable to such services; in conformity with the highest professional standards; in accordance with the policies and procedures of HSWO; and in a timely and prompt manner.




D9.

Facility certifies that there are no actions, suits or proceedings pending or, to the knowledge of Facility, threatened against or affecting Facility (or any of its employees or agents) in any court or before any governmental commission, board or authority which, if adversely determined, will have a material adverse effect on the ability of Facility to perform its obligations under this Agreement.




D10.

Facility acknowledges that HSWO has developed policies, pursuant to section 6032 of the Deficit Reduction Act of 2005, which have been designed to prevent and detect fraud, waste, and abuse. The policies include explanations of the legal and ethical standards governing the conduct of HSWO and its employees and contractors in business activities. Some of HSWO’s procedures include background screening of employees and contractors, procedures for reporting suspected wrongdoing, conducting periodic reviews of the organization’s operations, and discipline for violations of the policies.




D11.

Facility agrees to report all violations and suspect¬ed violations of the law, and questionable conduct or practices of HSWO to HSWO’s Director of Hospice. Facility acknowledges that HSWO’s policies and the law prohibit any retaliatory action against employees or independent contractor for reporting a violation of the foregoing to a supervisor or to any government agency.




D12.

The parties acknowledge the role of the following laws in preventing and detecting fraud, waste, and abuse in federal health care programs. This information shall serve as Facility’s notice of fraud and abuse laws, as required pursuant to Section 6032 of the Deficit Reduction Act of 2005.

Sections 3801 to 3812 of Title 31 of the United States Code provide in pertinent part that:

• Any person who makes, presents, or submits, or causes to be made, presented, or submitted, a claim that the person knows or has reason to know is false, fictitious, or fraudulent; includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent; includes or is supported by any written statement that omits a material fact, is false, fictitious, or fraudulent as a result of such omission, and is a statement in which the person making, presenting, or submitting such statement has a duty to include such material fact; or is for payment for the provision of property or services which the person has not provided as claimed, shall be subject to, in addition to any other remedy that may be prescribed by law, a civil penalty of not more than $10,957 for each such claim. Such person may also be subject to an assessment of not more than twice the amount of the false, fictitious, or fraudulent claim, or the portion of such claim, which is determined to be in violation of the law.
• Any person who makes, presents, or submits, or causes to be made, presented, or submitted, a written statement that the person knows or has reason to know asserts a material fact which is false, fictitious, or fraudulent; or omits a material fact that he/she has a duty to include, and is false, fictitious, or fraudulent as a result of such omission; and contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject to, in addition to any other remedy that may be prescribed by law, a civil penalty of not more than $10,957 for each such statement.

Sections 3729 to 3733 of Title 31 of the United States Code provide in pertinent part that:

• Any person who: knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; conspires to commit a violation described in this paragraph; has possession, custody, or control of property or money used, or to be used, by the government and knowingly delivers, or causes to be delivered, less than all of that money or property; is authorized to make or deliver a document certifying receipt of property used, or to be used, by the government and, intending to defraud the government, makes or delivers the receipt without completely knowing that the information on the receipt is true; knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the government, who lawfully may not sell or pledge property; or knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the government, is liable to the United States government for a civil penalty of not more than $23,331 as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note: Public Law 104-410), plus 3 times the amount of damages which the government sustains because of the act of that person, with certain exceptions, and the costs of a civil action brought to recover such penalty or damage.
• The terms “knowing” and “knowingly” mean that a person, with respect to information: has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or acts in reckless disregard of the truth or falsity of the information; and require no proof of specific intent to defraud. “Claim” means any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that: is presented to an officer, employee, or agent of the United States; or is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the government’s behalf or to advance a government program or interest, and if the United States Government provides or has provided any portion of the money or property requested or demanded, or will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded; and does not include requests or demands for money or property that the government has paid to an individual as compensation for Federal employment or as an income subsidy with no restrictions on that individual’s use of the money or property. “Obligation” means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment. “Material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.
• The Attorney General shall diligently investigate violations of the above, and if the Attorney General finds that a person has violated or is violating the law, then he/she may bring a civil action against the person. A person may bring a civil action for a violation of the above for the person and for the United States government. The action shall be brought in the name of the government. If the government proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to certain limitations, and may have a right to share in a recovery if certain conditions are met.
• Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, or agent on behalf of the employee, contractor, or agent or associated others in furtherance of other efforts to stop one or more violations above.

Ohio law provides in pertinent part that:

• Ohio Revised Code sections 2913.40 and 2913.401 prohibit a person from knowingly making a false statement for use in obtaining reimbursement from the medical assistance program, prohibits charging a person for goods or services in addition to the amount of reimbursement received under the medical assistance program, excluding any deductibles or co-payments, and prohibits making false statements or knowingly concealing information in an application for Medicaid benefits. Whoever violates these sections is guilty of Medicaid fraud.
• Ohio Revised Code section 2921.13 prohibits making a false statement, or swearing the truth of a false statement in a variety of situations, including to secure payment of benefits administered by a governmental agency. Whoever violates this provision is guilty of falsification, a first degree misdemeanor.
• Ohio Revised Code 5164.35 describes how if a Medicaid provider by deception, obtains or attempts to obtain payments under the Medicaid program to which the provider is not entitled, willfully receives payments to which a provider is not entitled, willfully receives payments in a greater amount than that to which a provider is entitled, or falsifies any report of document required by state or federal law, rule or provider agreement relating to Medicaid payments, this can result in fines of not less than $5,000 and not more than $10,000 for each deceptive claim or falsification, a fine equal to three times the amount of any excess payments, and a fine equal to all reasonable expenses which a court determines were necessary for the state to incur to enforce the action. This can also result in the provider’s exclusion from the Medicaid program.
• Ohio Revised Code 4113.51 to 4113.52 describes how employers are prohibited from taking any disciplinary or retaliatory action against an employee for making any report authorized by Ohio Revised Code 4113.52(A)(1) or (2), or as a result of the employee having made any inquiry or taken any other action to ensure the accuracy of any information reported under either such division. Ohio Revised Code 4113.51 to 4113.52 also describes how no employer shall take any disciplinary or retaliatory action against an employee for making any report authorized by division (A)(3) of Ohio Revised Code 4113.52 if the employee made a reasonable and good faith effort to determine the accuracy of any information so reported, or as a result of the employee having made any inquiry or taken any other action to ensure the accuracy of any information reported under that division.



D13.

The parties acknowledge the duty to report crimes under Section 1150B of the Social Security Act as follows:

• Any owner, operator, employee, manager, agent, or contractor of a long-term care facility that receives federal funds of at least $10,000 in the preceding year (“covered individual”) shall report to the Secretary and 1 or more law enforcement entities for the political subdivision in which the facility is located any reasonable suspicion of a crime (as defined by the law of the applicable political subdivision) against any individual who is a patient of, or is receiving care from, the facility. If the events that cause the suspicion result in serious bodily injury, the individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion. If the events that cause suspicion do not result in serious bodily injury, the individual shall report the suspicion not later than 24 hours after forming the suspicion.
• The term “law enforcement” includes the full range of potential responders to elder abuse and neglect, including police, sheriffs, detectives, public safety officers, corrections personnel, prosecutors, medical examiners, investigators, and coroners. The term “serious bodily injury” means an injury involving extreme physical pain, involving substantial risk of death, involving protracted loss or impairment of the function of a bodily member, organ or mental faculty, or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.
• If a covered individual violates this section, the covered individual shall be subject to a civil money penalty of not more than $200,000; and the Secretary may make a determination in the same proceeding to exclude the covered individual from participation in any federal health care program. If a covered individual violates this section and the violation exacerbates the harm to the victim of the crime or results in harm to another individual, the covered individual shall be subject to a civil money penalty of not more than $300,000; and the Secretary may make a determination in the same proceeding to exclude the covered individual from participation in any federal health care program.



D14.

Facility shall give immediate written notice to HSWO in the event that Facility, or its employees or subcontractors, are ever out of compliance with the obligations of this Exhibit.




D15.

Facility shall indemnify HSWO for all damages arising from its failure to comply with this Exhibit.




D16.

HSWO and Facility agree that any additional items or conditions required by federal or state statutes and regulations applicable to this Agreement shall be automatically included by reference in this Agreement and made a part hereof.