AGREEMENT BETWEEN THE COUNTY OF SAN MATEO AND

ORTHOPAEDIC & NEUROLOGICAL REHABILITATION, INC.

 

THIS AGREEMENT, entered into this __ ___ day of __________ __ , 2004, by and between the COUNTY OF SAN MATEO, hereinafter called "County," and Orthopaedic & Neurological Rehabilitation, Inc. (ONR, Inc.), hereinafter called "Contractor";

 

W I T N E S S E T H:

 

WHEREAS, pursuant to Government Code, Section 31000, County may contract with independent contractors for the furnishing of such services to or for County or any Department thereof;

 

WHEREAS, it is necessary and desirable that Contractor be retained for the purpose of providing rehabilitation services, physical therapy, speech therapy, and occupational therapy to patients at Burlingame Long Term Care.

 

NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES HERETO AS FOLLOWS:

   

1.

Exhibits.

The following exhibits are attached hereto and incorporated by reference herein:

Exhibit A—Services

Exhibit B—Payments and rates

Attachment H—HIPAA Business Associate requirements

Attachment I—§ 504 Compliance

   

2.

Services to be performed by Contractor.

In consideration of the payments set forth herein and in Exhibit “B,” Contractor shall perform services for County in accordance with the terms, conditions and specifications set forth herein and in Exhibit “A.”

 

3.

Payments.

In consideration of the services provided by Contractor in accordance with all terms, conditions and specifications set forth herein and in Exhibit "A," County shall make payment to Contractor based on the rates and in the manner specified in Exhibit "B." The County reserves the right to withhold payment if the County determines that the quantity or quality of the work performed is unacceptable. In no event shall the County’s total fiscal obligation under this Agreement exceed THREE HUNDRED SEVENTY-SIX THOUSAND DOLLARS ($376,000).

4.

Term and Termination.

Subject to compliance with all terms and conditions, the term of this Agreement shall be from October 6, 2003 to June 30, 2005.

This Agreement may be terminated by Contractor, the Chief Executive Officer of San Mateo Medical Center or his/her designee at any time without a requirement of good cause upon thirty (30) days’ written notice to the other party.

In the event of termination, all finished or unfinished documents, data, studies, maps, photographs, reports, and materials (hereafter referred to as materials) prepared by Contractor under this Agreement shall become the property of the County and shall be promptly delivered to the County. Upon termination, the Contractor may make and retain a copy of such materials. Subject to availability of funding, Contractor shall be entitled to receive payment for work/services provided prior to termination of the Agreement. Such payment shall be that portion of the full payment which is determined by comparing the work/services completed to the work/services required by the Agreement.

 

5.

Availability of Funds.

The County may terminate this Agreement or a portion of the services referenced in the Attachments and Exhibits based upon unavailability of Federal, State, or County funds, by providing written notice to Contractor as soon as is reasonably possible after the county learns of said unavailability of outside funding.

   

6.

Relationship of Parties.

Contractor agrees and understands that the work/services performed under this Agreement are performed as an independent Contractor and not as an employee of the County and that Contractor acquires none of the rights, privileges, powers, or advantages of County employees.

 

7.

Hold Harmless.

Contractor shall indemnify and save harmless County, its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description, brought for, or on account of: (A) injuries to or death of any person, including Contractor, or (B) damage to any property of any kind whatsoever and to whomsoever belonging, (C) any sanctions, penalties, or claims of damages resulting from Contractor’s failure to comply with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, or (D) any other loss or cost, including but not limited to that caused by the concurrent active or passive negligence of County, its officers, agents, employees, or servants, resulting from the performance of any work required of Contractor or payments made pursuant to this Agreement, provided that this shall not apply to injuries or damage for which County has been found in a court of competent jurisdiction to be solely liable by reason of its own negligence or willful misconduct.

 

The duty of Contractor to indemnify and save harmless as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.

   

8.

Assignability and Subcontracting.

Contractor shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required by contractor under this Agreement without the prior written consent of County. Any such assignment or subcontract without the County’s prior written consent shall give County the right to automatically and immediately terminate this Agreement.

 

9.

Insurance.

The Contractor shall not commence work or be required to commence work under this Agreement unless and until all insurance required under this paragraph has been obtained and such insurance has been approved by Risk Management, and Contractor shall use diligence to obtain such issuance and to obtain such approval. The Contractor shall furnish the Department/Division with certificates of insurance evidencing the required coverage, and there shall be a specific contractual liability endorsement extending the Contractor's coverage to include the contractual liability assumed by the Contractor pursuant to this Agreement. These certificates shall specify or be endorsed to provide that thirty (30) days' notice must be given, in writing, to the Department/Division of any pending change in the limits of liability or of any cancellation or modification of the policy.

 

(1)

Worker's Compensation and Employer's Liability Insurance. The Contractor shall have in effect during the entire life of this Agreement Workers' Compensation and Employer's Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor certifies, as required by Section 1861 of the California Labor Code, that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of the Code, and will comply with such provisions before commencing the performance of the work of this Agreement.

 

(2)

Liability Insurance. The Contractor shall take out and maintain during the life of this Agreement such Bodily Injury Liability and Property Damage Liability Insurance as shall protect him/her while performing work covered by this Agreement from any and all claims for damages for bodily injury, including accidental death, as well as any and all claims for property damage which may arise from contractors operations under this Agreement, whether such operations be by himself/herself or by any sub-contractor or by anyone directly or indirectly employed by either of them. Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall be not less than the amount specified below.

 
   
 

Such insurance shall include:

 

(a)

Comprehensive General Liability . . . . . . . . . . . . . . .

$1,000,000

 

(b)

Motor Vehicle Liability Insurance . . . . . . . . . . . . . . .

$ -0-

 

(c)

Professional Liability . . . . . . . . . . . . . . . . . . . . . . . . .

$1,000,000

       

County and its officers, agents, employees and servants shall be named as additional insured on any such policies of insurance, which shall also contain a provision that the insurance afforded thereby to the County, its officers, agents, employees and servants shall be primary insurance to the full limits of liability of the policy, and that if the County or its officers and employees have other insurance against the loss covered by such a policy, such other insurance shall be excess insurance only.

 

In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, the County of San Mateo at its option, may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.

 

10.

Compliance with laws; payment of Permits/Licenses.

All services to be performed by Contractor pursuant to this Agreement shall be performed in accordance with all applicable Federal, State, County, and municipal laws, ordinances and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Federal Regulations promulgated thereunder, as amended, and will comply with the Business Associate requirements set forth in Attachment “H,” and the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1973, as amended and attached hereto and incorporated by reference herein as Attachment “I,” which prohibits discrimination on the basis of handicap in programs and activities receiving any Federal or County financial assistance. Such services shall also be performed in accordance with all applicable ordinances and regulations, including, but not limited to, appropriate licensure, certification regulations, provisions pertaining to confidentiality of records, and applicable quality assurance regulations. In the event of a conflict between the terms of this Agreement and State, Federal, County, or municipal law or regulations, the requirements of the applicable law will take precedence over the requirements set forth in this Agreement.

Contractor will timely and accurately complete, sign, and submit all necessary documentation of compliance.

 
 
 
 
 

11.

Non-Discrimination.

A.

Section 504 applies only to Contractors who are providing services to members of the public. Contractor shall comply with § 504 of the Rehabilitation Act of 1973, which provides that no otherwise qualified handicapped individual shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in the performance of this Agreement.

B.

General non-discrimination. No person shall, on the grounds of race, color, religion, ancestry, gender, age (over 40), national origin, medical condition (cancer), physical or mental disability, sexual orientation, pregnancy, childbirth or related medical condition, marital status, or political affiliation be denied any benefits or subject to discrimination under this Agreement.

C.

Equal employment opportunity. Contractor shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Agreement. Contractor’s equal employment policies shall be made available to County of San Mateo upon request.

D.

Violation of Non-discrimination provisions. Violation of the non-discrimination provisions of this Agreement shall be considered a breach of this Agreement and subject the Contractor to penalties, to be determined by the County Manager, including but not limited to

 

i)

termination of this Agreement;

 

ii)

disqualification of the Contractor from bidding on or being awarded a County contract for a period of up to 3 years;

 

iii)

liquidated damages of $2,500 per violation;

 

iv)

imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Manager.

     

To effectuate the provisions of this section, the County Manager shall have the authority to examine Contractor’s employment records with respect to compliance with this paragraph and/or to set off all or any portion of the amount described in this paragraph against amounts due to Contractor under the Contract or any other Contract between Contractor and County.

     

Contractor shall report to the County Manager the filing by any person in any court of any complaint of discrimination or the filing by any person of any and all charges with the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission or any other entity charged with the investigation of allegations within 30 days of such filing, provided that within such 30 days such entity has not notified Contractor that such charges are dismissed or otherwise unfounded. Such notification shall include the name of the complainant, a copy of such complaint, and a description of the circumstance. Contractor shall provide County with a copy of their response to the Complaint when filed.

 
 
 
 

E.

Compliance with Equal Benefits Ordinance. With respect to the provision of employee benefits, Contractor shall comply with the County Ordinance which prohibits contractors from discriminating in the provision of employee benefits between an employee with a domestic partner and an employee with a spouse.

F. E.

The Contractor shall comply fully with the non-discrimination requirements required by 41 CFR 60-741.5(a), which is incorporated herein as if fully set forth.

 

12.

Retention of Records.

Contractor shall maintain all required records for three (3) years after the County makes final payment and all other pending matters are closed, and shall be subject to the examination and/or audit of the County, a Federal grantor agency, and the State of California.

 

13.

Merger Clause.

This Agreement, including the Exhibits attached hereto and incorporated herein by reference, constitutes the sole Agreement of the parties hereto and correctly states the rights, duties, and obligations of each party as of this document's date. Any prior agreement, promises, negotiations, or representations between the parties not expressly stated in this document are not binding. All subsequent modifications shall be in writing and signed by the parties.

   

14.

Controlling Law.

The validity of this Agreement and of its terms or provisions, as well as the rights and duties of the parties hereunder, the interpretation, and performance of this Agreement shall be governed by the laws of the State of California.

   

15.

Notices.

Any notice, request, demand, or other communication required or permitted hereunder shall be deemed to be properly given when deposited in the United State mail, postage prepaid, or when deposited with a public telegraph company for transmittal, charges prepaid, addressed to:

    In the case of County, to:

    San Mateo Medical Center

    222 W. 39th Avenue

    San Mateo, CA 94403

    Attn: Diane Prosser

    In the case of Contractor, to:

    Orthopaedic and Neurological Rehabilitation, Inc.

    1101 South Capital of Texas Highway, Bldg. C

    Austin, TX 78744

    Attn: Janis Jones

IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have affixed their hands.

 
 

COUNTY OF SAN MATEO

 
 
 

By:

 

Mark Church, President

Board of Supervisors, San Mateo County

 
 

Date:

 
 
 

ATTEST:

 
 

By:

Clerk of Said Board

 
 
 

Orthopaedic & Neurological Rehabilitation, Inc.

 
 
 

Contractor’s Signature

 

Date:

Long Form Agreement/Business Associate

Exhibit “A”

 

In consideration of the payments set forth in Exhibit “B”, Contractor shall provide therapy services at the Burlingame Healthcare Center:

 

A.
Duties and Obligations of Contractor
 
 
1.
Therapy and Related Services: Contractor will provide the following services (Collectively “Services”) to residents at Burlingame Long Term Care (BLTC). In extraordinary circumstances the Contractor may be requested to provide services at the San Mateo Medical Center Long Term Care unit.
 
   
a.
Physical, occupational and speech therapy services to County’s patients, including clinical supervision thereof, through the use of qualified staff and in accordance with physician's orders and the applicable plan of care.
 
   
b.
Clinical management of County’s rehabilitation program, including management of intensity and duration of therapy services, overall caseload, coding and documentation support and focused clinical communication.
 
   
c.
Direction of therapy program with the Clinical Manager of Rehabilitation and through Contractor’s proprietary policies and procedures and training and support to clinicians.
 
   
d.
On-site Director of Therapy for not less than forty (40) hours a week. Selection of the Director of Therapy shall be approved by both Contractor and County.
 
 
2.
Statement of Qualifications. Upon commencement of this Agreement and upon request of County, Contractor shall provide to County proof of licensure, competencies, and medical clearance of therapy personnel who will provide services to County’s patients.
 
 
3.
Record of Maintenance. Contractor will provide and maintain written documentation, including appropriate service coding, on individual charts of patient treatment, progress and evaluation in accordance with County’s policies and procedures, and in accordance with requirements of Federal and State governmental agencies and other third party payers.
 
 
4.
Billing and Reports. Contractor will provide County with information necessary to complete County’s billing to appropriate payor source. Information will be provided in a format compatible with County billing system. Any additional reports or analysis requested by County will be provided at additional expense to County as deemed necessary by Contractor.
 

2.
Duties and Obligations of County
 
 
a.
Billing. Unless otherwise required by applicable Federal or State laws, rules or regulations, Contractor will make available for inspections by County and/or its agent such documentation as may be necessary to enable County and or its agent to properly bill third-party payers for services. County and/or its agents shall be solely responsible for billing patients and/or their respective governmental or other third-party reimbursement sources for services provided to patients by Contractor.
 
 
b.
Therapy Space. County will, at its sole expense, set aside for Contractor’s use, a designated work and storage area inside County premises adequate for the provision of services. Maintenance of the designated area or space shall be the responsibility of County. County will provide Contractor access to a phone line; fax machine, and copy machine.
 
 
c.
Equipment. County will provide at its sole expense, all supplies and equipment necessary to provide services under this agreement, as mutually agreed upon by the parties. When Contractor uses equipment and supplies provided by County, Contractor shall use such equipment and supplies properly and are solely responsible for injuries or damages from any misuses. In addition, Contractor shall notify County whenever equipment or supplies provided by County and used by Contractor for providing services need repairs or replacement. When Contractor uses its own equipment or supplies, Contractor agrees to save, indemnify and hold harmless County from the use, misuse or failure of such equipment or supplies. Contractor shall maintain it own equipment and supplies in good operating condition and repair and in accordance with manufacturers’ recommendations and all applicable Federal, State and local laws.
 
 
d.
Record Maintenance. County and/or its agent shall be solely responsible for maintaining all patient records, including MDS assessments and RUGs II classifications, relating to the provision of services. County and/or its agent shall make available to Contractor for review and inspection on a timely basis and upon request, individual patient treatment, MDS and Rugs III classification records necessary for proper evaluation, screening treatment, and provision of services. Contractor may incorporate copies of such records into its own records, and County and/or its agent shall, where required, obtain the proper consents required to permit such disclosure.
 
 
e.
Administrative Responsibility. The Director of Rehabilitation will be the liaison between ONR and SMMC Administration. This role includes communication regarding patient care, program delivery and financial obligations. This includes, but is not limited to, provision of care, medical/legal documentation and charging /billing for services rendered.
 
 
f.
MDS Reporting. County shall be responsible for the preparation and submission of MDS assessment information to Medicare. Contractor shall assure the availability to County of rehabilitation-related information necessary for the portion of the MDS relating to therapy minutes in a timely manner. If County determines that it is necessary to clarify or expand rehabilitation related information provided by Contractor for any purpose, it shall consult Contractor land Contractor shall make any such a changes it deems appropriate. Contractor shall not be responsible for the adverse results of any alterations to Contractor’s information made by County without consultation with Contractor.
 
 
g.
County Representatives. County shall designate an individual to whom Contractor shall report, and upon whose authority Contractor will be entitled to rely for directions and approvals.
 
 
h.
County Approvals. County has all licenses, Medicare and Medicaid provider certifications and other government and regulatory approvals, including occupancy permits, necessary to conduct its operations.
 

3.
Access to Records
 
 
a.
Inspection by County. Contractor will make available for inspection by County and or its agent such documentation as may be necessary to enable County to bill governmental or third-arty payors properly, in accordance with applicable Federal and State laws.
 
 
b.
Inspection by government. In accordance with Medicare requirements, Contractor will make available, or will require any related subcontractor or individual in which such subcontract is valued at or results in the payment for services of $10,000 or more over a 12-month period to make available, upon request from the Secretary of the U.S. Department of Health and Human Services or the U.S. Comptroller General or any of their duly authorized representatives, the agreement, as well as books, documents and records of Contractor that are necessary to verify the extent of costs incurred by County with respect to providing services under this agreement for four years thereafter.
 
 
 
 

Exhibit “B”

 

In consideration of the services provided by Contractor in Exhibit “A”, County shall pay Contractor based on the following fee schedule:

 

A.
Medicare Part A Patients
 
 
1.
Therapy will be paid at the rate of $1.00 per therapy minute
 
 
2.
Services will be billed at a capitated per diem rate that is calculated by multiplying the number of therapy minutes in each of the RUG’s categories for a seven-day period, and dividing the amount by seven days. Effective October 6, 2003, ONR, Inc.’s compensation for Medicare Part A patients shall be limited to the following per diem amounts for each day the patient is so categorized regardless of whether therapy services are provided to the patient:
 
 
RUA, B, C
$102.86
Per day
 
 
RVA, B, C
$71.43
Per day
 
 
RHA, B, C
$46.43
Per day
 
 
RMA, B, C
$21.43
Per day
 
 
RLA, B, C
$ 6.43
Per day
 
 
Non-Case Mix
$1.00
Per actual minute of therapy
 
 

3.

In the even ONR, Inc. delivers therapy minutes required for a determined Rug’s classification and resident is not classified in the anticipated category due to County’s failure to submit MDS or other documentation, or because of County’s acts of omissions that cause a default rate, ONR, Inc. will be reimbursed according to the Rug’s category based on the actual minutes delivered.

 

B.
Medicare Pare B Patients
   
 
All services for Medicare Part B shall be billed at 75% of Fee Screens.
   

C.
Other Payor Sources
   
 
All services to residents with other payor sources will be billed at the rate of $14 per unit of therapy, with one unit equal to fifteen minutes.
   
   
   

D.
Consultation, Training, and other Services
   
 
Rate for Consultation, screenings, in-service, as requested will be billed at $60 per hour.
   

E.
Invoices
 
 
Contractor shall submit an invoice to County and/or its agent within five (5) days of the end of each calendar month. Such invoice shall include, for all Medicare Part B patients to which services are rendered, the correct Current Procedural terminology, Version 4 Code (“CPT-4 Code”) corresponding to each service provided to that patient. The CPT-4 Code will be provided to County on the invoice for all Medicare Part B patients. Contractor shall submit to County, on a monthly basis, a Therapy Services Log that itemizes the name(s) of the patients to whom services were provided and the types of services provided.
 

F.
Remittance
 
 
County and/or its agent shall remit payment in full as shown on each invoice within ninety (90) days of the end of the billing period in which Services were provided. Any invoices not paid within such period shall be subject to a one and one half percent (1 ½ %) service fee, or the maximum allowed by law, whichever is less, for each thirty (30) days period beyond the due date. Termination of this Agreement by operation of Section 5 shall not alter County’s and or its agent’s responsibility to remit payment hereunder.
 

D.
Collection Costs
 
 
In any action for collection of payment hereunder the prevailing party shall be entitled to all reasonable collection agency and/or attorney collection fess, and all reasonable attorney fees and court costs related to any legal action incurred in connection therewith.
 

E.
Payment in Full
 
 
Contractor shall accept payment from County and/or its agent as payment in full for all services rendered, other than amounts for which a resident of the Facility is responsible under law. Contractor agrees not to seek compensation, remuneration, or reimbursement for services from, or have any recourse against, any County resident or any other person who may be acting on a resident’s behalf, unless such collection is permitted or required under Federal, State, or local law or is otherwise agreed to, or requested by, County and/or its designated agent and a third party payor.
 
 
 

F.
Denials
 
 
1.
County and/or its agent will pay Contractor the full amount invoiced, notwithstanding any notice of payment denial for services for reasons pertaining to medical necessity and/or lact of documentation or coding (“Denial Notice”). County and/or its agent will notify ONR, Inc. within fourteen (14) business days of its receipt of any Denial Notice, lin accordance with the Policies and Procedures for Medicare Denials, as stated on Exhibit B which is attached hereto and incorporated by reference herein. Contractor shall assign a denial authorization code and provide it to County as confirmation of notification of denial.
 
 
2.
County and/or its agent will pursue, in conjunction with Contractor, or, at the request of Contractor, will appoint Contractor as County agent to pursue, all rights of rehearing and administrative appeal regarding such Denial Notice. If County and/or its agent and Contractor do not appeal or upon denial of payment following reconsideration, Contractor will grant County credit towards payment for future services in the amount of Contractor’s charges for the denied services. Payment will be only where an authorization code has been assigned, County and/or its agent completes all necessary forms and secures necessary signatures within the time frame required for an appeal. Payment following unsuccessful reconsideration will only be made if an official notification from the intermediary is presented. Payment denials for reasons under the control of the County and/or its agent including, but not limited to, technical issues, such as errors in physician orders are not covered under this clause. If later unsuccessful appeals make their party payment available to County, County must notify Contractor and the County will be debited in the amount of payment available for services previously credited.
 
 
3.
County agrees not to seek indemnification from Contractor for any Medicare audits or assessment of payback of funds to intermediary due to County’s failure to use designated labor-related therapy per diem payment amounts for any purpose other than to provide therapy services to County’s residents.