Model Shared Savings Program (“MSSP”) Standard Terms and Conditions (“Terms & Conditions”)

ACO (hereinafter defined), Provider, and Practice Providers agree as follows:

ARTICLE 1
DEFINITIONS

Capitalized terms used in the MSSP ACO Participant Agreement (hereinafter defined) or the Exhibits (“Agreement”) but not defined herein will have the meanings set forth in the Agreement; the Centers for Medicare & Medicaid Services (“CMS”) Agreement (hereinafter defined); and/or Medicare Shared Savings Program statutes, rules, and regulations, including but not limited to 42 CFR Part 425 (“MSSP Rules”).  Where there is a conflict between these Terms & Conditions and the Agreement, the Agreement controls.

  1. “ACO” or “MSSP ACO” shall mean the Accountable Care Organization selected by CMS for participation in the Medicare Shared Savings Program (“MSSP”).  ACO (as defined in the Agreement) is an MSSP ACO.
  2. “ACO List Date” shall mean, for a particular Performance Year, the date by which the ACO must submit its list of Participant Providers (as that term is defined in the CMS Agreement) to CMS prior to the beginning of a Performance Year.
  3. “ACO Network” shall mean the collective network of providers, including Practice Providers (hereinafter defined), participating in the Medicare Shared Savings Program.
  4. “Medicare Shared Savings Program” or “MSSP” shall mean the MSSP Model created by CMS.  
  5. Affiliate(s)” shall mean, with respect to any specified Person, any Person that directly or through one or more intermediaries controls or is controlled by or is under common control with the specified Person. As used in this definition, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through corporate membership, ownership of voting securities, by contract or otherwise.
  6. “Beneficiaries” shall mean Medicare beneficiaries who are aligned with ACO under the CMS Agreement.
  7. “CMS” shall mean Centers for Medicare & Medicaid Services.
  8. “CMS Agreement” shall mean the agreement by and between ACO and CMS pursuant to which ACO may participate in MSSPl, which may be amended, supplemented, or re-executed from time to time.
  9. “CMS Rules” means the rules and requirements of MSSP, including, without limitation, the CMS Agreement, all applicable Medicare laws, rules and regulations, as well as any guidance issued by CMS regarding MSSP, including the CMS MSSP Request for Applications.
  10. “Covered Services” shall mean those certain medically necessary health care services and items that are covered by Medicare Parts A and/or B provided by Practice Providers to Beneficiaries.
  11. “Pearl Network Agreement” shall mean the agreement Provider and/or Practice Providers have entered into with Pearl Health, Inc. (“Company” or Group”) for Group to provide network management and other services to ACO, including assistance recruiting Practice Providers to provide Covered Services to Beneficiaries.
  12. “MSSP ACO Participant Agreement” or “Agreement” shall mean the agreement Provider has entered into with ACO, pursuant to which Provider’s Practice Providers will provide Covered Services to Beneficiaries.
  13. “Practice Provider” (as defined in the MSSP ACO Participant Agreement) shall mean any physician or other licensed health care provider who is employed by or otherwise contracted with Provider and who has agreed to provide Covered Services under the Agreement and who bills under the Medicare billing number assigned to the tax identification number (“TIN”) of Provider.
  14. “Person” shall mean an individual, partnership, joint venture, association, corporation, trust, estate, limited liability company, limited liability partnership, or any other legal entity.

ARTICLE 2
OBLIGATIONS OF PROVIDER AND PRACTICE PROVIDERS​

  1. Qualifications. Provider and Practice Providers, at all times during the effective term of the Agreement, and as a condition to the Agreement, represent and warrant that Provider, and each Practice Provider:
    1. meet all requirements and obligations set forth in the MSSP ACO Participant Agreement (“MSSP ACO Participation Requirements”), including, but not limited to, any provider qualifications, licensure, certification, or accreditation; insurance requirements; compliance requirements; and any ACO-specific requirements and obligations;
    2. fully complies with all representations, warranties, and covenants set forth in the MSSP ACO Participant Agreement;
    3. complies and will comply with compliance requirements established by ACO to address prevention, detection and correction of fraud and abuse and noncompliance with the requirements of MSSP and the terms of CMS Agreement (“MSSP ACO Compliance Plan”);
    4. has disclosed any existing financial arrangements, whether compensation or ownership, in place between Provider or any Practice Provider on the one hand, and any third party, on the other hand, that could reasonably be understood to constitute, as respects participation in MSSP through ACO, (i) a conflict of interest, or the appearance of a conflict of interest, or (ii) remuneration (as that term is defined in Section 1128B of the Social Security Act) or potential remuneration. Provider or Practice Provider shall provide at least thirty (30) days’ advance written notice of any new such arrangement entered into after the Effective Date of the MSSP ACO Participant Agreement; and
    5. meet such other criteria as ACO may from time to time require or as otherwise set forth herein; provided, however, that Practice Provider has first been given prior written notice of those criteria.
  2. Notification of Change in Status.
    1. Further, Provider shall notify ACO within five (5) business days of Provider’s actual knowledge of any of the following matters: (i) Provider’s failure to comply with any provision set forth in Section 2.1 or (ii) any other act, occurrence, condition or situation which might materially affect Provider’s ability to properly carry out Provider’s obligations under the CMS Agreement or the MSSP ACO Participant Agreement.
  3. Referrals.  Provider shall use its best efforts to make referrals of Beneficiaries to Practice Providers and other ACO providers/suppliers within the ACO Network in accordance with the voluntary referral policies established by ACO, including but not limited to ACO Programs (as defined in the Agreement); provided, ACO, Provider, and Practice Providers are prohibited from:
    1. conditioning the participation of network providers, suppliers, or other individuals or entities performing functions or services related to ACO activities or ACO Network activities on referrals of federal health care program business that the ACO, its participants, other ACO providers/suppliers, or other individuals or entities performing functions or services related to ACO activities or ACO Network activities know or should know is being (or would be) provided to beneficiaries who are not assigned to the ACO; and
    2. requiring that Beneficiaries be referred only to Practice Providers, other ACO providers/suppliers within the ACO or within ACO Network, or to any other ACO provider or supplier, except that the prohibition does not apply to referrals made by employees or contractors who are operating within the scope of their employment or contractual arrangement to the employer or contracting entity, provided that the employees and contractors remain free to make referrals. In furtherance of this Section, Provider agrees and shall require Practice Providers to agree to comply with CMS’s requirements for voluntary alignment of Beneficiaries within the ACO, including that Provider shall not (i) directly or indirectly commit any act or omission, nor adopt any policy, that coerces or otherwise influences a Beneficiary’s decision to complete or not complete a Voluntary Alignment Form or a MyMedicare.gov (or any successor site) designation, and shall not (ii) discriminate or selectively target Beneficiaries based on prohibited non-discrimination characteristics, including but not limited to race, ethnicity, national origin, religion, gender, sex, age, mental or physical disability, health status, receipt of health care, claims experience, medical history, genetic information, evidence of insurability, geographic location, or income.
  4. Sole Responsibility. Provider acknowledges and agrees, on behalf of itself and its Practice Providers, that it shall be individually and solely responsible for all treatment rendered by Provider and its Practice Providers to Beneficiaries. Provider acknowledges and agrees, on behalf of itself and its Practice Providers, that it shall be responsible to provide those services that are medically necessary and within the scope of Provider’s or each Practice Provider’s license and expertise.
  5. Compliance with Law.  Practice and its Practice Providers shall comply with the requirements and conditions of MSSP established by CMS as amended from time to time, including, but not limited to those specified in the MSSP ACO Participation Requirements and MSSP Rules.  Without limiting the generality of the foregoing, Provider shall comply and shall contractually require its Practice Providers, suppliers, and subcontractors providing services hereunder, to comply with any and all applicable federal and state laws, regulations and rules, CMS instructions and guidance, including, without limitations, (a) applicable federal criminal laws; (b) the False Claims Act (31 U.S.C. § 3729 et seq.); (c) the anti-kickback statute (42 U.S.C. § 1320a-7b(b)); (d) the civil monetary penalties law (42 U.S.C. § 1320a-7a); (e) the physician self-referral law (42 U.S.C. § 1395nn); (f) state licensure and scope of practice law; (g) regulations set forth at 42 CFR Part 425, to the extent they apply to MSSP; (h) the CMS Rules; (i) the MSSP ACO Participation Requirements; and (j) the MSSP ACO Compliance Plan. Provider shall notify ACO in writing if Provider knows or has a good faith belief that Provider or any Practice Provider, is in violation of any such laws, rules, regulations and/or applicable requirements.
  6. Relationship to Other Agreements. ACO will provide written notice to Provider if the CMS Agreement expires or terminates for any reason. Upon receipt of such notice, Provider represents and warrants on behalf of itself and its Participating Providers that Provider will terminate the MSSP ACO Participant Agreement and withdraw from participation in the ACO pursuant to the terms of the MSSP ACO Participant Agreement at the end of the then-current Performance Year. In the event of an inconsistency between the terms of the CMS Agreement and the Pearl Network Agreement or the MSSP ACO Participant Agreements, the CMS Agreement will govern. In the event of inconsistency between the Pearl Network Agreement and the MSSP ACO Participant Agreements, the MSSP ACO Participant Agreements will govern.

ARTICLE 3
OBLIGATIONS OF ACO

  1. Compliance with Law. ACO shall comply with all applicable federal, state and municipal laws, statutes, ordinances, orders, rules and regulations applicable to the conduct of its business, including the CMS Rules.
  2. Group Network Rules. ACO may, at its election and where applicable to Provider, distribute Group Network Rules to Provider directly or by making them electronically available to Provider. The Group Network Rules may be in a written format distributed to Provider, or in such other form and format as ACO and/or Group determines reasonably appropriate. ACO and/or Group will promptly provide any updates or changes to the Group Network Rules to Provider.
  3. Practice of Medicine. Provider and ACO hereby expressly acknowledge and agree that ACO’s duties, responsibilities and functions hereunder shall be administrative and managerial in nature, and that notwithstanding any other provision of the Agreement to the contrary, neither ACO nor Group shall engage in any activity hereunder that would constitute the practice of medicine as defined by applicable laws in the state(s) in which Provider or Practice Providers practice medicine. The Parties understand and agree that Provider has the sole responsibility for the coordination and provision of all professional services provided by Provider and any Practice  Providers under the MSSP ACO Participant Agreement, and neither ACO nor Group shall interfere in any way with the exercise of the professional judgment of Provider in connection with its services. Further, the Parties understand and agree that in no event will the terms of the Agreement require Provider or any Practice Providers to:
    1. be limited in their ability to make decisions in the best interests of their patients;
    2. direct a referral if (i) a patient expresses a preference for a different practitioner, provider, or supplier, (ii) the patient’s payor determines the provider, practitioner, or supplier are out of network for patient, or (iii) such direction or restriction is contrary to applicable law under titles XVIII and XIX of the Social Security Act; or
    3. furnish medically unnecessary items or services, or reduce or limit medically necessary items or services furnished to any patient

Should any function assigned to ACO and/or Group hereunder be construed to be within the practice of medicine such that, if performed by ACO and/or Group, would be violative of applicable prohibitions on the corporate practice of medicine, such function thereafter shall be either assigned to and become the responsibility of Provider or be waived.

ARTICLE 4
RESOLUTION OF DISPUTES

  1. Non-Payment Disputes. In the event of a non-payment related controversy, claim, or dispute between the Parties arising out of or related to the Agreement (a “Non-Payment Dispute”), the parties shall attempt in good faith to resolve the Non-Payment Dispute. At any time, any Party may submit the Non-Payment Dispute to non-binding mediation, which mediation shall be before a mediator mutually agreed by the Parties. The mediation shall take place at a location agreed upon by the Parties, and each Party shall bear its own costs, and the costs of the mediator(s) shall be borne equally by the Parties. The Parties understand and agree that ACO has delegated to Group the authority to resolve any disputes that arise between ACO and a Participant under the terms of the MSSP ACO Participant Agreement, including Payment Disputes as defined Section 4.2 below.
  2. Payment Disputes. Notwithstanding the above, any disputes related to any payments under the terms of the Agreement (a “Payment Dispute”) shall be resolved as outlined in the Agreement.
  3. With the exception of Payment Disputes, which shall be resolved pursuant to Section 4.2 above, nothing herein restricts any Party from pursuing any legal or equitable remedies available to it pertaining to such Non-Payment Dispute.

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