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April 12, 2001
AGREEMENT BETWEEN THE DISTRICT OF COLUMBIA FINANCIAL
RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY AND GREATER SOUTHEAST
COMMUNITY HOSPITAL CORPORATION I
TABLE OF CONTENTS
1.1 Services
1.2 Non-Discrimination
1.3 Confidentiality of Information
1.4 Organizational Conflicts of Interest
1.5 Recovery Of Debt Owed The District
1.6 Invoicing For and Payment to Contractor
1.7 Health Care Services
1.8 School Health Services
1.9 Other Miscellaneous Health Care Services
1.10 Corrections Health Care Services
1.11 Pharmacy Services
1.12 Health Care Services to Other District Agencies
1.13 Authority Rights In Data
1.14 Press Releases And Other Public Announcements
1.15 Type Of Contract
1.16 Disputes
1.17 Changes
1.18 Term Of Agreement
1.19 Termination By Default
1.20 Indemnification
1.21 Failure to Perform
1.22 Drug Free Workplace (July 1990)
1.23 Taxes Announcement
1.24 Termination For The Convenience Of The Authority
1.25 Assignment
1.26 Waiver Of Rights
1.27 Insurance
1.28 Performance Bond
1.29 Contractor's Working Files
1.30 Financial Standards
1.31 Subcontracting
1.32 Audit And Records
1.33 Independent Contractor
1.34 Appropriation of Funds
1.35 Employment Agreement
1.36 Hiring of District Residents
1.37 Notices
1.38 Compliance
1.39 Representations and Certifications
1.40 Reports Prepared by Contractor
1.41 Maintenance of Effort
1.42 Capital Expenditures
1.43 Financial Representations and Warranties of
Contractor
1.44 Operating Committee
1.45 Leases/Subleases
AGREEMENT
This Agreement (the "Agreement") is entered into by and between
THE DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT
ASSISTANCE AUTHORITY (the "Authority"), and GREATER SOUTHEAST
COMMUNITY HOSPITAL CORPORATION I ("GSCHC"), a Delaware
corporation, (collectively, the "Parties") as of this - day of
April, 2001 (the "Effective Date").
RECITALS
WHEREAS, the Authority, on behalf of the District of
Columbia (the "District"), through a competitive solicitation,
sought responses from qualified health care providers to Request for
Proposal No. DCFRA#-00-R-039 (the "RFP") to obtain the services
of one qualified health care organization to provide comprehensive,
integrated and coordinated health care services for the uninsured
population of the District, as defined more specifically in the Statement
of Work, which is attached hereto as Exhibit A (the "Eligible
Uninsured"), as well as for certain other categories of individuals
as specified in the attached Statement of Work (Exhibit A);
WHEREAS, GSCHC, an offeror in the solicitation, has
been selected as the contractor (the "Contractor") responsible
for the oversight and implementation of the daily operations of the
Contractor's program;
WHEREAS, Contractor has developed the D.C. Healthcare
Alliance program (the "program") as the name of its network of
service providers to provide care to the Eligible Uninsured;
WHEREAS, the parties acknowledge and agree that this
Agreement is critical to the Authority's obligation to protect the health,
safety and welfare of District residents and, accordingly, the Authority
is obtaining the personal services of Contractor in furtherance of this
obligation;
WHEREAS, this Agreement does not create an entitlement
to health care in the recipients of health care services hereunder; and
WHEREAS, the parties desire to have Contractor provide
comprehensive, integrated and coordinated health care services to the
Eligible Uninsured.
NOW, THEREFORE, in consideration of the premises set
forth above and the terms, covenants and conditions set forth below, the
Parties mutually agree as follows:
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1.1 Services
During the term of the Agreement the Contractor shall provide, or cause
to be provided, the Health Care Services, Administrative Services, School
Health Services, Other Miscellaneous Health Care Services, Corrections
Health Care Services, and Corrections Administrative Services described
herein and on the Statement of Work attached hereto as Exhibit A, and
incorporated herein by reference.
1.2 Non-Discrimination
Contractor shall not directly or through subcontracts,
discriminate on the basis of race, national origin, religion, sex, age,
disability, sexual orientation, marital status, personal appearance,
family responsibilities, income (provided that such person's income is
equal to or less than 200% of the federal poverty level for the purposes
of enrollment in this program), Medicaid status, political affiliation, or
place of residence in the execution of any health care or administrative
duty under this Agreement.
1.3 Confidentiality of Information
1.3.1 All information obtained or developed during the performance of
this Agreement, and all conversations between the Authority or the
District and the Contractor with regard to the Agreement, shall be held
confidential by the Contractor, and shall not be disclosed to a third
party in the absence of a written waiver by the Authority, except as may
be required by law, provided, however, that any such information may be
disclosed to the Contractor's employees, agents and advisors who need to
know such information for the sole purpose of effectuating this
Agreement, it being understood that such employees, agents and advisors
shall be informed by Contractor of the confidential nature of such
information, shall be directed by Contractor to treat such information
confidential and that Contractor shall be responsible for any breach of
this Agreement by such employees, agents and advisors.
1.3.2 All proprietary or confidential information of Contractor obtained
or developed during the performance of this Agreement shall be marked
"PROPRIETARY AND CONFIDENTIAL" by the Contractor prior to the
provision of such information to the Authority. The Authority shall keep
all information designated "PROPRIETARY AND CONFIDENTIAL"
confidential and shall not disclose such information to a third party in
the absence of a written waiver by the Contractor, except as may be
required by law.
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1.4 Organizational Conflicts of
Interest
As an independent contractor of the Authority, the
Contractor's primary responsibility and allegiance is to the Authority.
Therefore, the Contractor shall take special care to avoid even the
appearance of a conflict of interest in its dealings with the Authority.
The Contractor shall provide the Authority with a list of past
professional relationships with any of the principal contractors,
subcontractors, and consultants with which it contracts directly.
1.4.2 An organizational conflict of interest exists when the nature of
the work to be performed under the Agreement may:
a. result in an unfair competitive
advantage to the Contractor, or
b. impair the Contractor's objectivity in performing the work under
the Agreement.
1.4.3 The Contractor warrants that, to the best of the Contractor's
knowledge and belief, there are no facts or circumstances which could
give rise to an actual or potential conflict of interest or
organizational conflict of interest or that the Contractor has disclosed
all such information, if any.
1.4.4 The Contractor agrees that if an actual or potential
organizational conflict of interest is discovered after award of the
Agreement to the Contractor, the Contractor will make a full disclosure
in writing to the District of Columbia contracting officer responsible
for this Agreement ("the Contracting Officer"). This
disclosure shall include a description of actions, which the Contractor
has taken or proposes to take, after consultation with the Contracting
Officer, to avoid, mitigate, or neutralize the actual or potential
conflict.
1.4.5 The Authority may terminate this Agreement for convenience, in
whole or in part, if it deems such termination necessary to avoid a
conflict of interest or an organizational conflict of interest. If the
Contractor becomes aware of a potential conflict of interest after the
Effective Date of the Agreement and does not immediately disclose it to
the Authority, or if the Contractor misrepresents relevant information
to the Contracting Officer, the Authority may terminate this Agreement
for default pursuant to Section 1.19.1, debar the Contractor from
any/all future Authority or District contracting, or pursue such other
remedies as may be permitted by law or the Agreement.
1.4.6 The Contractor agrees to insert in any subcontract or
consultant agreement hereunder, provisions which shall conform
substantially to the language of this Section 1.4.
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1.5 Recovery Of Debt Owed The District
The Contractor hereby agrees that the District of
Columbia or the Authority at any time may use all or any portion of any
consideration or refund due to the Contractor under this Agreement to
satisfy, in whole or in part, any debt due to the Authority or the
District by Contractor.
1.6 Invoicing For and Payment to
Contractor
1.6.1 During the term of this Agreement, the
Authority shall pay, or cause to be paid, to its Disbursing Agent (as
defined below) on a monthly basis in advance the budgeted amounts set
forth in this Agreement for Health Care Services (as defined in Section
4 of Exhibit A), Administrative Services (as defined in Section 5 of
Exhibit A), Supplemental Administrative Services (as set forth in
Section 1.7.2 hereof), School Health Services (as defined in Section 6
of Exhibit A), Other Miscellaneous Health Care Services (as defined in
Section 7 of Exhibit A), Corrections Health Care Services (as defined in
Section 8 of Exhibit A), Corrections Administrative Services (as defined
in Section 8 of Exhibit A), and Pharmacy Services (as defined in Section
4.6 of Exhibit A). The Disbursing Agent shall be responsible for making
payment to the Contractor or its designee(s) for services provided
pursuant to this Agreement. Notwithstanding the monthly transfer of
funds to the Disbursing Agent, the Authority shall retain title to and
control of such funds until such time as the funds have been disbursed
to Contractor or its designee(s) by the Disbursing Agent pursuant to
instructions given by the Authority. In addition, any payments made by
the Disbursing Agent to Contractor or its designee(s) for Health Care
Services, Administrative Services, Corrections Health Care Services or
Corrections Administrative Services shall remain subject to the
reconciliation provisions set forth in this Agreement.
1.6.2 Contractor or its designee(s) shall, on a biweekly basis, submit
to the Disbursing Agent invoices containing claims relating to Health
Care Services and Corrections Health Care Services, and shall submit to
the Disbursing Agent invoices for Administrative Services, Supplemental
Administrative Services, Corrections Administrative Services, School
Health Services, Other Miscellaneous Health Care Services and Pharmacy
Services that have been provided by Contractor or its designee(s)
pursuant to the terms of this Agreement. Prior to submission of invoices
containing claims for Health Care Services and Corrections Health Care
Services, Contractor or its designee(s) shall have reviewed the
eligibility of such claims for reimbursement under this Agreement and
approved the submission of such claims, and shall provide the Disbursing
Agent with information describing and summarizing the claims that are
being submitted for reimbursement.
1.6.3 Except as otherwise specifically set forth in this Agreement,
all invoices must be submitted by the Contractor or its designee(s) to
the Disbursing Agent in original form with three (3) copies, must be
signed by an officer or principal of the Contractor or its designee(s),
and must certify that the amounts being billed submitted for
reimbursement are correct and proper. To be correct and proper, invoices
must contain the name of the Contractor, the address, the telephone
number, contract number, the task order number, the purchase order
number, the period of performance, the Federal ID number, the D-U-N-S
number, the address to which payment must be mailed, and must clearly
indicate the charges for which the Contractor is seeking payment. All
charges must be in accordance with the costs as awarded. Invoices
failing to comply with these requirements may result in a delay of
payment to the Contractor.
1.6.4 For the purposes of this Agreement, the Disbursing Agent shall
be [Insert name of Disbursing Agent]. The Authority shall be
solely responsible for all costs and expenses related to the Disbursing
Agent.
1.6.5 Invoices shall be submitted to:
Disbursing Agent:
[Name ]
[Address]
[City, State, Zip]
District of Columbia Government
Department Of Health
825 North Capitol Street, N.W.
Washington, D.C. 20001
Attn: Contracting Officer Technical Representative
(Contract No: DCFRA 00-039)
1.6.6 A copy of any invoice sent to the Disbursing
Agent and the District of Columbia Government shall also be sent to the
Authority's Chief Financial Officer at DCFRA, 441 Fourth Street, NW,
Suite 570, Washington, DC 20001 The Contractor acknowledges that
services performed in excess of the amount authorized under this
Agreement will not be paid, except as otherwise agreed to in writing by
the Authority pursuant to Section 1.17 hereof. The Contractor shall
carefully monitor contracted payment rates and utilization incurred in
the performance of the Agreement and advise the Disbursing Agent, the
Contract Administrator, the Contracting Officer Technical Representative
(COTR), and the Contract Officer in writing once the Contractor, or its
designee(s), has invoiced in excess of 75% of the Health Care Services
Amount or 75% of the School Health Services Amount or 75% of the
Corrections Services Amount for a particular
Contract Year. The Authority shall not be responsible for rendering
payment under the Agreement. Subject to limitations of Section 1.34
hereof, payment shall be the responsibility of the District of Columbia
government.
1.6.7 Any interest accruing on the District's account(s) that are
accessed by the Disbursing Agent for the purposes set forth in this
Agreement shall be calculated by the Disbursing Agent and paid to the
Contractor pursuant to the schedule for Budget Reconciliations set forth
in Section 1.7.4.3.
1.6.8 Exhibit H, sets forth the total estimated amount which may be
payable to Contractor or its designee(s) during the First Contract Year,
as well as the estimated amount which may be payable to Contractor or
its designee(s) during the initial term of the Agreement and any renewal
terms, for services provided pursuant to this Agreement.
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1.7 Health Care Services
1.7.1 Capitalized terms in this Agreement shall have the following
meanings:
1.7.1.1 "Actual Costs" shall mean the Payment Rates
specified for each type of Health Care Service for any particular
Contract Year multiplied by the Actual Utilization for the same
Contract Year.
1.7.1.2 "Actual Utilization" shall mean the actual number
of inpatient hospital discharges (as adjusted by the inpatient
hospital casemix index and the inpatient hospital outlier percentage);
the actual number of visits; or the actual number of procedures, as
appropriate.
1.7.1.3 "Adjusted Health Care Services Amount (AHCSA)"
shall mean the Health Care Services Amount for any particular Contract
Year after application of the adjustments set forth in Section 1.7.4.
1.7.1.4 "Adjusted Administrative Services Amount" shall
mean twelve percent (12%) of the Adjusted Health Care Services
Amount.
1.7.1.5 "Adjusted Payment Rates" shall mean the amounts
derived for any Contract Year pursuant to the calculations set forth
in Section 1.7.7.
1.7.1.6 "Administrative Services Amount" shall mean
twelve percent (12%) of the Health Care Services Amount during any
Contract Year.
1.7.1.7 "Contract Year" shall mean any of the Contract Years
defined in the Agreement.
1.7.1.8 "Expected Utilization" for any particular
Contract Year shall mean the service-specific Actual Utilization for
the prior Contract Year (including, for inpatient hospital discharges,
the effect of applying the actual casemix index and the actual outlier
adjustment to the number of discharges). The Expected Utilization for
the First Contract Year is set forth in Exhibit E.
1.7.1.9 "First Contract Year" shall mean the period
commencing on May l, 2001 and ending on April 30, 2002; the
"Second Contract Year" shall mean the period commencing on
May 1, 2002 and ending on April 30, 2003; the "Third Contract
Year" shall mean the period commencing on May 1, 2003 and ending
on April 30, 2004; the "Fourth Contract Year" shall meant
the period commencing on May 1, 2004 and ending on April 30, 2005; and
the "Fifth Contract Year" shall mean the period commencing
on May 1, 2005 and ending on April 30, 2006.]
1.7.1.10 "Health Care Services Amount (HCSA)" shall mean
the annual amount budgeted for payment to the Contractor for the
provision of Health Care Services to Eligible Uninsureds. The HCSA is
determined by multiplying the Payment Rates for any particular
Contract Year by the Expected Utilization for that Contract Year and
summing the results of these service-specific computations.
1.7.1.11 "Index Factor" for any Contract Year shall mean
the simple, unweighted average of the change in the U.S. CPIU for All
Items and the change in the U.S. CPI-U (Medical Care), as reported by
the Bureau of Labor Statistics, for the twelve months ended as of the
immediately preceding December. For example, the change measured in
these equally weighted items for the twelve months ended as of
December 2001 will be compared to the equally weighted average of
these items for the twelve months ended as of December 2000 to
determine the Index Factor to be applied to the Contract Year that is
scheduled to begin on May 1, 2002.
1.7.1.12 "Monthly Administrative Services Amount" shall mean
one-twelfth of the Administrative Services Amount for any Contract
Year.
1.7.1.13 "Monthly Health Care Services Amount" shall mean
one-twelfth of the Health Care Services Amount for any Contract Year.
1.7.1.14 "Payment Rates" shall mean the rates that the
Authority budgets for payment per unit of services s (Le., per
discharge, visit, procedure, etc.) in the various categories of Health
Care Services in any particular Contract Year, as set forth on Exhibit
E for the First Contract Year and as adjusted pursuant to this
Agreement.
1.7.2 To supplement the Administrative Services Fee for the start-up
and operation of the program (the "Supplemental Administrative
Services"), the Authority will pay to the Contractor a supplemental
administrative services fee (the "Supplemental Administrative
Services Fee"), in an amount not to exceed One Million Five Hundred
Thousand Dollars ($1,500,000.00), payable in equal installments on a
monthly basis, during the First Contract Year only.
1.7.3 Notwithstanding anything contained herein to the contrary, during
the First Contract Year, the payments to Contractor for Health Care
Services and Administrative Services shall not in combination exceed
Sixty Six Million, Two Hundred and Seventy-Six Thousand, Two Hundred and
Forty-Four Dollars ($66,276,244). Contractor acknowledges and agrees
that payments to Contractor under this Agreement may be comprised of any
combination of District of Columbia funds.
1.7.4 In the event that the Actual Utilization for the First Contract
Year differs from the Expected Utilization, the following payment
adjustments shall be made:
1.7.4.1 If the Actual Costs are greater than the Health Care
Services Amount, the Contractor will be paid an amount equal to the
Health Care Services Amount plus fifty percent (50%) of the amount by
which the Actual Costs were greater than the Health Care Services
Amount; provided, however, that if the Actual Costs are more than one
hundred and twenty percent (120%) of the Health Care Services Amount,
the parties to this Agreement will use best efforts to negotiate
additional payments, if any, that will be made by the Authority to the
Contractor for costs beyond the 120% threshold.
1.7.4.2 If the Actual Costs are less than the Health Care Services
Amount, the Contractor will be paid the Adjusted Health Care Services
Amount. The Adjusted Health Care Services Amount will be equal to the
Health Care Services Amount minus fifty percent (50%) of the amount by
which the Health Care Services Amount exceeded Actual Costs; provided,
however, that if the Actual Costs are less than eighty percent (80%)
of the Health Care Services Amount, the Contractor will be paid for
its Actual Costs plus fifty percent (50%) of the difference between
the Health Care Services Amount and eighty percent (80%) of the Health
Care Services Amount. For example, if the HCSA for a particular
Contract Year was $50,000,000, and the Actual Costs for that same year
were only $30,000,000, the Contractor would be entitled to receive
$35,000,000 (i.e., $30,000,000 + .5[$50,000,000-($50,000,000 x .80)] =
$35,000,000). The parties will use best efforts to negotiate
appropriate adjustments, if any, to this amount for the purpose of
establishing the Health Care Services Amount for the subsequent
Contract Year.
1.7.4.3 The Contractor shall perform the initial computations
necessary to (a) determine the Actual Costs, the Actual Utilization,
the Adjusted Payment Rates and the Adjusted Health Care Services
Amount; (b) compare the Actual Costs to the Health Care Services
Amount; (c) to determine the amounts due from one party to the other,
and the need for additional negotiations if the Actual Cost differs
from the Health Care Services Amount by more than twenty percent
(20%); and (d) determine the Payment Rates, Expected Utilization and
Health Care Services Amount for the next Contract Year. The Contractor
shall include reasonable estimates of "Incurred But Not Reported
Claims" (IBNR) in these computations and shall describe the IBNR
formulae used in making the IBNR estimates. The Budget Reconciliations
for the First Contract Year, and the calculation of the Health Care
Services Amount, the Expected Utilization and the Payment Rates for
the Second Contract Year, will be adjusted as necessary to reflect the
fact that the Contractor will not be providing Health Care Services
for the entire twelve month period during the First Contract Year. The
Contractor shall perform these computations (the "Budget
Reconciliations") and provide them to the Authority within sixty
(60) days after the end of the second quarter of any Contract Year,
and within ninety (90) days after the end of any Contract Year. The
Authority shall review these Budget Reconciliations and, the parties
shall meet to discuss the computations and any adjustments that may be
needed within sixty (60) days after the Contractor provides the Budget
Reconciliations to the Authority. Any payments or repayments that are
due pursuant to this process will be made by check (or by other
mutually acceptable means) by the owing party to the other party
within the sixty (60) days after the computations are submitted by
Contractor to the Authority.
1.7.5 The Health Care Services Amount and the
Administrative Services Amount for the Second Contract Year, and for
subsequent Contract Years shall be determined as follows:
1.7.5.1 The Health Care Services Amount for the Second Contract Year
shall be equal to the Adjusted Health Care Services Amount for the
First Contract Year multiplied by the Index Factor specified in
Section 1.7.1.11; the Health Care Services Amount for the Third
Contract Year shall be equal to the Adjusted Health Care Services
Amount for the Second Contract Year multiplied by the Index Factor
specified in Section 1.7.1.11; and so on in this manner for each
subsequent Contract Year.
1.7.5.2 The Administrative Services Amount shall be equal to twelve
percent (12%) of the Health Care Services Amount for the Second
Contract Year; and the Administrative Services Amount for each
subsequent Contract Year shall be equal to twelve percent (12%) of the
Health Care Services Amount for each of those respective Contract
Years.
1.7.6 The amounts payable for Health Care Services and for Adjusted
Administrative Services for each subsequent Contract Year shall be equal
to the sum of the Adjusted Health Care Services Amount and the Adjusted
Administrative Services Amount for the particular Contract Year.
1.7.7 The Actual Costs incurred in any Contract Year will be computed
by multiplying the Actual Utilization for the Contract Year by the
Payment Rates for the Contract Year. The Adjusted Payment Rates for any
item or service for any Contract Year shall be the amount derived by
dividing the Adjusted Health Care Services Amount for that Contract Year
by the Actual Utilization for any item or service for that Contract
Year.
1.7.8 The Contractor agrees that it will pay at least ninety percent
(90%) of the Adjusted Health Care Services Amount it receives under this
Agreement to the licensed health care facilities and/or health care
professionals who provide Health Care Services pursuant to this
Agreement.
1.7.9 The Contractor acknowledges and agrees that the District may
expand other government-funded health care programs for District
residents and that the expansion of such programs or the creation of new
programs may cause the Actual Utilization of Health Care Services to
decrease. In such case, the parties hereby acknowledge and agree that
they will mutually agree upon an appropriate reduction in the Health
Care Services Amount established under this Agreement to reflect
decreased utilization levels.
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1.8 School Health Services
1.8.1 The Contractor shall provide, or arrange for
the provision of, the School Health Services and related administrative
services described in Section 6 of Exhibit A.
1.8.2 During the First Contract Year, the Contractor or its designee(s)
shall be paid the School Health Services Amount set forth on Exhibit F,
payable in twelve (12) equal monthly installments for School Health
Services and related administrative services that are performed pursuant
to this Agreement.
1.8.3 The Contractor or its designee(s) shall submit monthly invoices
for the Monthly School Health Services Amount set forth on Exhibit F, to
the Disbursing Agent in the same manner as invoices are submitted by
Contractor or its designee(s) for Health Care Services.
1.8.4 The School Health Services Amount paid to Contractor or its
designee(s) during the Second Contract Year, and for any subsequent
Contract Year, will be adjusted by multiplying the total amount paid
during the prior Contract Year by the Index Factor.
1.9 Other Miscellaneous Health Care Services
The Contractor or its designee(s) shall bill the
Disbursing Agent and shall be paid for any Other Miscellaneous Health Care
Services (as defined in Section 7 of Exhibit A that are performed by
Contractor or its designee(s) pursuant to this Agreement. Specifically,
the Contractor or its designee(s) shall submit invoices to the Disbursing
Agent based on the Other Miscellaneous Health Care Services provided in
the same manner and at the same times as invoices are submitted by
Contractor or its designee(s) for Health Care Services.
1.10 Corrections Health Care Services
1.10.1 The Contractor shall provide or arrange for the provision of
Corrections Health Care Services and related Corrections Administrative
Services, as described in Section 8 of Exhibit A to the Department of
Corrections.
1.10.2 During the First Contract Year, the Contractor ox its designee(s)
shall bill the Disbursing Agent and shall be paid for the Corrections
Health Care Services and related Corrections Administrative Services, as
defined in Section 8 of Exhibit A, that are provided pursuant to this
Agreement. For each subsequent Contract Year, the Contractor and the
Department of Corrections shall meet at least ninety (90) days prior to
the start of the Contract Year and mutually agree upon the amount of
Corrections Health Care Services and Corrections Administrative Services
estimated to be provided by Contractor during such Contract Year.
1.10.3 The Corrections Health Care Services Amount shall be as set
forth on Exhibit G. The Corrections Administrative Services Amount shall
be as set forth on Exhibit G.
1.10.4 The Contractor or its designee(s) shall submit invoices to the
Disbursing Agent based on the Corrections Health Care Services provided,
in the same manner and at the same times as invoices are submitted by
Contractor or its designee(s) for Health Care Services.
1.10.5 The Contractor shall carefully monitor the contracted payment
rates and utilization incurred in the performance of the Agreement and
advise the Disbursing Agent, Contract Administrator, the COTR, and the
Contract Officer when reaching 75% of the total annual Corrections
Health Care Services Amount and related Corrections Administrative
Services Amount. The Authority shall render payment or cause payment to
be rendered to Contractor for the Corrections Services Amount out of
appropriations made available to the Department of Corrections.
1.10.6 The Parties shall perform semi-annual reconciliations between
the actual and budgeted levels of Corrections Health Care Services and
Corrections Administrative Services. The first reconciliation shall
occur within sixty (60) days after the close of the second quarter
during each Contract Year (the "Mid-Year Reconciliation") and
a final reconciliation shall occur within one hundred and twenty (120)
days after the end of each Contract Year (the "Final
Reconciliation").
1.10.7 The actual level of Corrections Health Care Services provided
during any six (6) month period shall be determined by multiplying the
Payment Rates, as adjusted for the applicable Contract Year, by the
actual level of utilization for such six (6) month period. Contractor
shall be paid for any Corrections Health Care Services and Corrections
Administrative Services provided in excess of expected utilization, if
any, at the same rates, within thirty (30) days of the Mid-Year
Reconciliation or Final Reconciliation. If actual utilization was less
than expected utilization, Contractor shall refund any excess payments
to the Department of Corrections of the District of Columbia within
thirty (30) days of the MidYear Reconciliation or Final Reconciliation.
1.10.8 The Contractor shall not be required to provide Corrections
Health Care Services or Corrections Administrative Services in excess of
the amounts set forth on Exhibit G.
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1.11 Pharmacy Services
1.11.1 The Contractor shall provide, or arrange for
the provision of, the pharmacy services described in Section 4.6 of
Exhibit A (the "Pharmacy Services").
1.11.2 During the First Contract Year of this Agreement, the Contractor
or its designee(s) shall be paid an amount not to exceed Three Million
Four Hundred Thousand Dollars ($3,400,000.00), payable in twelve (12)
equal monthly installments for the provision of Pharmacy Services
pursuant to this Agreement.
1.11.3 The Contractor or its designee(s) shall submit bi-weekly
invoices for the Pharmacy Services to the Disbursing Agent. Such
invoices shall set forth the amounts expended by Contractor or its
designee(s) for the acquisition of pharmaceuticals and shall set forth
the dispensing fee (not to exceed $3.75 per prescription) for
prescriptions that have been filled by the Contractor or its
designee(s).
1.11.4 During the ninety (90) day period ("Evaluation Period")
commencing on the Effective Date the Contractor or its designee(s) shall
evaluate its ability to provide the Pharmacy Services at the amounts
stated herein. In the event that the Contractor determines that it is
unable to provide the Pharmacy Services for the amounts set forth
herein, the parties shall attempt to renegotiate such amounts in good
faith. If the parties fail to reach agreement on the amounts required to
provide the Pharmacy Services within thirty (30) days of the expiration
of the Evaluation Period, the Contractor shall discontinue the provision
of Pharmacy Services hereunder. Discontinuation of the provision of
Pharmacy Services pursuant to this Section 1.11 shall not be deemed to
be a default under this Agreement.
1.12 Health Care Services to Other District
Agencies
Upon request, the Contractor shall provide Health Care
Services to Other District Agencies (as defined in Section 9 of Exhibit A
. Such services shall be provided at the same payment rates as set forth
in this Agreement.
1.13 Authority Rights In Data
All information and documentation supplied to the
Contractor by the Authority or by the District, or technical reports and
memoranda produced by the Contractor in the performance of this Agreement,
shall be the sole property of the Authority and the District. The
Contractor retains ownership of intellectual property and personal
documents used in- the performance of this Agreement (except to the extent
created or generated -as a result of this Agreement). All data produced by
the Contractor are works made for hire and are the sole property of the
Authority and the District, and except as otherwise required to be
maintained by Contractor pursuant to applicable law, shall be returned to
the Authority or the District following any termination or expiration of
this Agreement. Except as required hereunder or as required by law or
regulation, the Contractor shall not publish or reproduce such data in
whole or in part or in any manner or form, or authorize others to do so,
or make any other use of such data, without the written consent of the
Authority until such time as the Authority or the District may have
released such data to the public provided, however, that during the term
of this Agreement, Contractor shall have the right to maintain and utilize
any such data for the sole purpose of fulfilling the requirements of this
Agreement.
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1.14 Press Releases And Other Public Announcements
The Contractor shall not issue any press releases or
make other public announcements of any sort with respect to the subject
matter of this Agreement without prior written permission of the
Authority.
1.15 Type Of Contract
This Agreement is a "Fixed Price Incentive Based
Redetermination" contract.
1.16 Disputes
All disputes arising under or relating to this
Agreement shall be resolved as provided herein. Either party may bring a
dispute to the attention of the Contracting Officer at any time by
submitting a written description of the dispute to the Contracting
Officer.
1.16.1 Prior to the assignment of this Agreement by the Authority to the
District, all disputes shall be resolved by the Contracting Officer,
whose authority shall be final and not subject to protest or review. The
Contracting Officer shall use best efforts to resolve any dispute within
ninety (90) days from the date of Contracting Officer's receipt of all
information relevant to the resolution of such dispute.
1.16.2 Following the assignment of this Agreement by the Authority to
the District, or any other governmental authority, all disputes shall be
resolved in accordance with the dispute resolution procedures set forth
in the D.C. Code procurement provisions.
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The Contracting Officer may, at any time, by written
order, and without notice to the surety, if any, make changes in the
Agreement within the general scope hereof. Any claim for adjustment
pursuant to a change requested under this Section 1.17 shall be asserted
within thirty (30) days from the date the change is offered, provided,
however, that the Contracting Officer, if he or she determines that the
facts justify such action, may receive, consider and adjust any such claim
asserted at any time prior to the date of the annual reconciliation of the
Agreement. If the parties fail to agree upon the adjustment to be made,
the dispute shall be determined as provided in Section 1.16 hereof.
Nothing in this clause shall excuse the Contractor from proceeding with
the Agreement as changed. Provisional payments may be made by the
Authority on a monthly basis for services of Contractor under this
Section, subject to interim or final reconciliation by the Authority.
1.18 Term Of Agreement
The term of this Agreement shall commence upon
execution of this Agreement by the authorized parties. The duration of the
Agreement will be for an initial term commencing on May 1, 2001 and ending
on April 30, 2006, and the Agreement shall automatically renew for two (2)
additional two (2) year terms unless either party notifies the other party
in writing at least ninety (90) days prior to any such term.
1.19 Termination By Default
1.19.1 The Authority may by written notice of default to the
Contractor, terminate this Agreement in whole or in part in any of the
following circumstances:
1.19.1.1 If the Contractor fails to perform the services within the
time specified in this Agreement or any extension, fails to perform
any of the other provisions of this Agreement, or so fails to make
progress as to endanger performance of this Agreement in accordance
with its terms and fails to submit a corrective action plan to the
Contracting Officer within a period of fifteen (15) days (or such
longer period as the Contracting Officer may authorize in writing)
after receipt of notice of noncompliance from the Contracting Officer
specifying such failure; or
1.19.1.2 If the Contractor fails to complete any corrective action
plan within the time frame established by the Contracting Officer for
the cure of any failures to perform under this Agreement.
1.19.2 If this Agreement is terminated as provided in this Section 1.19,
the Authority, in addition to any other rights provided in this
Agreement, may require the Contractor to transfer title and deliver to
the Authority or the District, in the manner and to the extent directed
by the Contracting Officer, any and all data, documentation and other
information that the Contractor has specifically produced or acquired or
obtained for the performance of this Agreement. Upon direction of the
Contracting Officer, the Contractor shall also protect and preserve
property in its possession in which the Authority or District has an
interest. Payment for services provided pursuant to this Agreement shall
be at the price set forth in the Agreement. The Authority or the
District may withhold from amounts otherwise due the Contractor such sum
as the Contracting Officer determines to be reasonably necessary to
protect the Authority or the District against loss because of default,
outstanding damages the Authority or District may incur, or outstanding
liens or claims of former lien holders.
1.19.3 If, after notice of termination pursuant to the provisions of
this Section 1.19, it is determined that the Contractor was not in
default, or that the default was excusable pursuant to the provisions of
this Section 1.19, the rights and obligations of the parties shall be
determined as if the notice of termination had been issued for the
convenience of the Authority pursuant to Section 1.24 hereof.
1.19.4 The rights and remedies of the Authority provided in this Section
1.19 are in addition to any other rights and remedies provided by law or
under this Agreement.
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1.20 Indemnification
1.20.1 The Contractor shall indemnify and hold harmless the Authority
and the District and all their officers, agents and servants against any
and all claims or liability arising from or based on, or as consequence
of or result of, any negligent act, omission or default of the
Contractor, its employees, or its subcontractors, in the performance of
this Agreement.
1.20.2 Monies due or becoming due the Contractor under this Agreement
may be retained by the Authority or the District as necessary to satisfy
any other outstanding claim -- i.e., other than monies due under this
Agreement -- that the Authority or the District may have against the
Contractor.
1.21 Failure to Perform
Except for defaults of Contractor's subcontractors at
any tier, no Party shall be liable for any default or delay in the
performance of its obligations under this Agreement (i) if and to the
extent such default or delay is caused, directly or indirectly, by: fire,
flood, earthquake, elements of nature or acts of God; riots, civil
disorders or rebellions; or any other cause beyond the control of such
party, (ii) provided the non-performing party is without fault in causing
such default or delay, and such default or delay could not have been
prevented by reasonable precautions and cannot reasonably be circumvented
by the non-performing party through the use of reasonable and commercially
feasible alternate sources.
1.22 Drug Free Workplace (July 1990)
1.22.1 Definitions used in this Section 1.22 are as follows:
1.22.1.1 "Controlled substance" means a controlled substance
as defined in schedules I through V of Section 202 of the Controlled
Substances Act (21 U.S.C. 812) and as further defined in the
regulation at 21 CFR 1308.11 - 1308.15.
1.22.1.2 "Conviction" means a finding of guilt (including
a plea of no contest) or imposition of sentence, or both, by any
judicial body charged with the responsibility to determine violations
of the Federal or State criminal drug statutes.
1.22.1.3 "Criminal drug statute" means a Federal or
Non-Federal criminal statute involving the manufacture, distribution,
dispensing, possession, or use of any controlled substance.
1.22.1.4 "Drug-free workplace" means the site(s) for the
performance of work done by the Contractor in connection with this
Agreement at which employees of the Contractors are prohibited from
engaging in the unlawful manufacture, distribution, dispensing,
possession, or use of a controlled substance.
1.22.1.5 "Employee" means an employee of Contractor directly
engaged in the performance of work under a Government contract.
"Directly engaged" is defined to include all direct cost
employees and all other Contractor employees who have other than a
minimal impact or involvement in Agreement performance.
1.22.1.6 "Individual" means a Contractor that has no more
than one employee including the Contractor.
1.22.2 The Contractor, shall, within thirty (30) calendar days of
award:
1.22.2.1 Publish a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the Contractor's workplace and
specifying the actions that will be taken against employees for
violations of each prohibition;
1.22.2.2 Establish an on going drug-free awareness program to
inform such employees about:
1.22.2.2.1 the dangers of drug abuse in the workplace;
1.22.2.2.2 the Contractor's policy of maintaining a drug free
workplace;
1.22.2.2.3 any available drug counseling, rehabilitation and
employee assistance programs; and
1.22.2.2.4 the penalties that may be imposed upon employees for
drug abuse violations occurring in the workplace.
1.22.2.3 Provide all employees engaged in the performance of the
Agreement with a copy of the statement required by this Section 1.22;
1.22.2.4 Notify such employees, in writing, of the statement
required in this Section 1.22 that as a condition of continued
employment on this Agreement, the employee will abide by the terms of
the statement and notify the Contractor in writing of the employee's
conviction for a criminal drug statute for a violation occurring in
the workplace no later than five (5) calendar days after such
conviction.
1.22.2.5 The Contractor should notify the Contracting Officer, in
writing, within ten (10) calendar days after receiving notice under
this Section, from an employee or otherwise receiving actual notice of
such conviction. The notice shall include the position and the title
of the employee;
1.22.2.6 Within thirty (30) calendar days after receiving notice under
this Section 1.22 of a conviction, take one of the following actions
with respect to any employee who is convicted of a drug abuse
violation occurring in the workplace:
1.22.2.6.1 Take appropriate personnel action against such
employee up to and including termination; or
1.22.2.6.2 Require such employee to satisfactorily participate in a
drug abuse assistance or rehabilitation program approved for such
purpose by a Federal, State or local health, law enforcement or
other appropriate agency.
1.22.2.7 Make a good faith effort to maintain a drug-free workplace
through implementation of this Section 1.22.
1.22.2.8 In addition to other remedies available to the Government,
the Contractor's failure to comply with the requirements of this
Section may render the Contractor subject to suspension of payments
under the Agreement, termination of the Agreement for default, and
suspension or debarment.
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The Authority and the Government of the District of
Columbia are exempt from, and will not pay, Federal Excise Taxes and D.C.
Sales and Use Tax.
1.24 Termination For The Convenience Of The
Authority
The parties acknowledge and agree that the provisions
of this Agreement are bargained for by the Authority and critical to its
governmental authority and obligation to provide for the health, safety
and welfare of District residents. The Authority may terminate performance
of work under this Agreement in whole or in part if it determines that
termination is in the Authority's interest or in the interest of District
residents. Delivering a Notice of Termination to the Contractor shall
effect such termination. In the event of termination, the Contractor shall
be paid for work performed, but no payment shall be made for work not
performed. The Contractor shall:
1.24.1 Place no further subcontracts or orders (referred to as
subcontracts in this clause) for materials, services, or facilities,
except as necessary to complete the continued portion of the Agreement.
1.24.2 Except as otherwise instructed by the Authority or the
District, terminate all subcontracts to the extent they relate to the
work terminated.
1.24.3 Assign to the Authority or District, as directed by the
Contracting Officer, all rights, title and interest of the Contractor
under the subcontracts terminated, in which case the Authority or
District shall have the right and obligation to settle or pay any
termination settlement proposal arising out of those terminations.
1.24.4 With approval or ratification to the extent required by the Contracting Officer,
settle all outstanding liabilities and termination settlement proposals
arising from the termination of subcontracts. The approval or
ratification will be final for purposes of this clause.
1.24.5 As directed by the Contracting Officer, transfer title and
deliver to the Authority or the District (i) the fabricated or
unfabricated parts, work in process, completed work, supplies, and other
materials produced or acquired for the work terminated, and (ii) the
completed or partially completed plans, drawings, information, and other
property that, if the Agreement has been completed, would be required to
be furnished to the District.
1.25 Assignment
The Contractor may not assign its rights and
obligations under this Agreement in whole or in part. At any time, upon
written notice to Contractor, the Authority may assign all its rights and
obligations under this Agreement to the District of Columbia, or any
governmental or organizational unit thereof, whereupon the Authority will
be no longer a party to or liable under this Agreement. With respect to
proceedings pursuant to Section 365 of 11 U.S.C. et. seq. of the United
States Bankruptcy Code, the Parties acknowledge that the Authority
selected the Contractor based on its unique abilities and qualifications
to provide the services contemplated hereunder, and further that this
Agreement is of a personal services nature. This provision is necessary
and critical because the purpose of this Agreement is to provide for the
health, safety and welfare of residents of the District of Columbia.
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1.26 Waiver Of Rights
The failure of the Authority or the Contractor to
insist upon strict performance of the terms and conditions of this
Agreement, or to exercise any rights or remedies, shall not be construed
as a waiver of that party's rights to any exercise of such rights, or to
rely on any such terms or conditions at any time thereafter.
1.27 Insurance
At all times during the performance of this Agreement,
the Contractor shall carry insurance of the types and in the minimum
amounts required by law and present evidence thereof to the Contracting
Officer upon execution of this Agreement.
1.28 Performance Bond
Contractor or its parent, Doctors Community Healthcare
Corporation, must have in place sufficient financial reserves to ensure
against any unexpected changes in the Contractor's financial condition.
This financial assurance shall be met, in part, by a performance bond
equal to the value of two months of the Monthly Administrative Services
Amount and two months of the Monthly Health Services Amount. The
Contractor shall provide the performance bond for review and approval by
the Authority, in its sole discretion, prior to execution of this
Agreement.
1.29 Contractor's Working Files
The Contractor must maintain working files on all work
performed under this Agreement. The Contracting Officer can require that
the Contractor provide the Authority or the District with access to the
working files or all such information contained in the working files.
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1.30 Financial Standards
1.30.1 Contractor shall provide the following financial information
upon execution of this Agreement:
1.30.1.1 Audited financial statements for the three most recent
fiscal years for which statements are available. The statements must
include a balance sheet, statement of revenue and expenses, and a
statement of cash flows. Statements must include the auditors'
opinion, the notes to the financial statements and management letters
submitted by the auditor to the Contractor. If no audited financial
statements are available, the Contractor shall explain the reason and
submit unaudited financial statements, prepared in accordance with
Generally Accepted Accounting Principles ("GAAP") and
containing information comparable to the information that would be
provided in the footnotes of audited financial statements.
1.30.1.2 Unaudited financial statements prepared in accordance with
Generally Accepted Accounting Principles ("GAAP") and
containing information comparable to the information that would be
provided in the footnotes of audited financial statements, for the
period between the last month covered by the audited statements
required above and the month before this Agreement was executed. Such
statements shall include an analysis and evaluation of future
financial condition and stability and provide sources of credit that
are available to the Contractor.
1.30.2 The Contractor shall provide financial information delineated
above for all of its primary subcontractors. The Contractor and its
primary subcontractors shall provide audited financials within one
hundred fifty (150) days after the fiscal year end.
1.30.3 Contractor must present information that establishes its
possession of the financial resources and protections that are
commensurate with the financial responsibilities, opportunities and
risks that are inherent in this project, as set forth in Section 1.43.
1.31 Subcontracting
The Contractor shall advise the Contracting Officer
before awarding any subcontracts above twenty-five thousand dollars
($25,000). All subcontracts executed by Contractor above twenty-five
thousand dollars ($25,000) are subject to the approval of the Contracting
Officer. Such subcontracts shall be submitted to the Contracting Officer
for approval. The Contracting Officer shall approve or disapprove the
subcontract in writing within ten (10) business days of receipt of the
subcontract from Contractor. In the event that the subcontract has not
been approved or disapproved in writing within (10) business days of
receipt by the Contracting Officer, the subcontract shall be deemed to
have been approved. The Contractor and its primary subcontractors shall
include in all subcontracts a provision that requires the subcontractor to
look solely to the Contractor for payment for services rendered
thereunder. Further, each subcontract shall contain a provision that upon
termination of this Agreement for any reason, such subcontract shall be
freely assignable to the Authority or the District, at the option of the
Authority or the District.
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1.32 Audit And Records
At any time during the term of this Agreement, and for
three (3) years thereafter, the Authority may audit the Contractor's and
any subcontractor's invoices and all payments and reimbursements,
patient-specific data comparable to that contained on forms UB-92 and HCFA
1500, listing of patients, performance records, cost records, and
proposals, reports and all other information and data pertaining this
Agreement. The Contractor shall provide and shall cause any subcontractor
to provide the information requested by the Authority within thirty (30)
days. The Authority may reduce any payment by an amount(s) reasonably
determined to constitute unallowable payments.
1.33 Independent Contractor
In performing work under this Agreement, the Contractor
is acting solely as an independent contractor and not as an employee or
agent of the Authority. Specifically, the Contractor is forbidden from
representing itself to third parties as an Authority employee or agent,
including District of Columbia government officials and employees;
determining Authority policy; independently interpreting Authority
policies or regulations on behalf of the Authority; purporting to issue
orders or take other action on behalf of the Authority; and preparing
documents on Authority letterhead. The Contractor shall include a
comparable provision in any subcontract entered into in connection with
this Agreement.
1.34 Appropriation of Funds
The Authority's and District's liability under this
Agreement is contingent upon the future availability of appropriated funds
with which to make payment for Agreement purposes. The Authority's and
District's liability for the payment hereunder shall not arise unless and
until such appropriation shall have been provided. The Contractor shall
not be liable to perform any services under this Agreement if the payment
to the Contractor pursuant to this Agreement is not appropriated.
1.35 Employment Agreement
The Contractor recognizes that one of the primary goals
of the District government is the creation of job opportunities for
District residents. Accordingly, the Contractor agrees to pursue the
District's following goals for utilization of residents of the District of
Columbia with respect to this Agreement and in compliance with Mayor's
Order 83-265. (1) at least fifty-one percent (51 %) of all jobs created
are to be performed by employees who are residents of the District of
Columbia and (2) at least fifty-one percent (51 %) of apprentices and
trainees employed shall be residents of the District of Columbia
registered in programs approved by the D.C. Apprenticeship Council. The
Contractor also agrees to notify all prospective subcontractors, prior to
execution of any contractual agreements, that the subcontractors are
expected to implement Mayor's Order 83265 in their own employment
practices. The Contractor understands and will comply with the
requirements of the Volunteer Apprenticeship Act of 1978, D.C. Code
Section 36-401 et. seq. and the First Source Employment Agreement Act of
1984., D.C. Code 1-1161 et seq.
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1.36 Hiring of District Residents
All new employment resulting from this Agreement or
subcontracts hereto, as defined in Mayor's Order 83-265 and implementing
instructions, shall include the following basic goals and objectives for
utilization of residents of the District of Columbia in each project's
labor force:
1.36.1 at least fifty-one percent (51 %) of all jobs created are to be
performed by employees who are residents of the District of Columbia.
1.36.2 at least fifty-one percent (51%) of apprentices and trainees
employed shall be residents of the District of Columbia registered in
programs approved by the District of Columbia Apprenticeship Council.
The Contractor shall negotiate an Employment Agreement with the District
of Columbia Department of Employment Services for jobs created as a
result of this Agreement. The Department of Employment Services shall be
the Contractor's first source of referral for qualified applicants,
trainees and other workers in the implementation of employment goals
contained in this Section 1.36.
1.37.1 Notices provided for herein, unless expressly provided for
otherwise in this Agreement shall be in writing and may be delivered
personally or by placing them in the U.S. mail, first class and
certified, return receipt requested, with postage prepaid and addressed
as follows:
If to the Authority:
District of Columbia Financial Responsibility and Management
Assistance Authority
441 Fourth Street, N.W., Suite 570N
Washington, D.C. 20001
Attention: Contracting Officer (Contract No. DCFRA #00-C-039)
Tel: 202-504-3400
If to the District:
District of Columbia Government
Department of Health.
825 North Capitol Street, N.E.
Washington, D.C. 20001
Attention: Contracting Officer Technical Representative (Contract No.
DCFRA #00-C-039)
Tel: 202-442-5999
If to the Contractor:
Greater Southeast Community Hospital Corporation I
1310 Southern Avenue, SE
Washington D.C. 20032
Attention: Ana Raley, Chief Executive Officer
Attention: Cindy Sehr, Esq., Legal Department
Tel: 202-574-6611
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1.38 Compliance
1.38.1 Contractor acknowledges that the Authority, the District and
all of their employees and contractors must comply with applicable
federal and state laws including, but not limited to, federal and state
health care fraud and abuse laws.
1.38.2 Contractor represents and warrants as follows:
1.3 8.2.1 Contractor currently is in compliance with applicable
federal and state laws including, but not limited to, federal and
state health care fraud and abuse laws;
1.38.2.2 To the best of Contractor's knowledge, Contractor is not a
target or subject of a federal or state criminal, civil, or
administrative investigation;
1.38.2.3 Contractor is not a party to a criminal, civil or
administrative action or proceeding concerning a potential violation
of federal or state laws including, but not limited to, federal or
state health care fraud and abuse laws; and
1.38.2.4 Contractor currently is not excluded, debarred, or
suspended from participating in any federal or state health care
program or other federal or state program.
1.38.3 During the term of this Agreement, Contractor shall take
reasonable steps to ensure that Contractor conducts its business in
compliance with (a) all applicable federal and state laws including, but
not limited to, federal and state health care fraud and abuse laws, (b)
the policies and procedures adopted by the Authority or the District,
and (c) the Standards of Conduct ("Standards") adopted by the
Authority or the District.
1.38.4 During the term of this Agreement, Contractor shall promptly
notify the Authority in writing in the event that Contractor (a) fails
to conduct its business in any material regard with (i) all applicable
federal and state laws including, but not limited to, federal and state
healthcare fraud and abuse laws, (ii) the Standards, or (iii) the
policies and procedures adopted by the Authority or the District, (b)
becomes the subject or target of a federal or state criminal, civil, or
administrative investigation, (c) becomes a party to a criminal, civil,
or administrative action or proceeding concerning a potential violation
of any federal or state laws including, but not limited to, federal or
state health care fraud and abuse laws, or (d) is excluded, debarred or
suspended from participation in any federal or state health care program
or other federal or state program.
1.38.5 The failure of Contractor to honor its duties and obligations
under Sections 1.38.3 or 1.38.4 shall constitute a material breach of
the Agreement; provided, however, that the Authority shall give
Contractor written notice of any such breach and an opportunity to cure
the breach in its entirety within ten (10) days of the delivery of the
written notice. In the event that Contractor does not cure the breach in
its entirety within the referenced ten (10) day cure period, the
Authority shall be entitled to terminate the Agreement without further
notice and to seek damages and any other relief that is otherwise
available to the Authority under the Agreement, at law or in equity.
1.38.6 Contractor agrees to indemnify and hold harmless the Authority
and the District and all of their officers, agents and servants against
any and all claims or liabilities arising from or based on, or as a
consequence of or result of (a) any material inaccuracy in the
representations and warranties set forth in Section 1.38.2 or (b) the
Contractor's failure (or alleged failure) to comply with its duties and
obligations under Sections 1.38.3 or 1.38.4.
1.39 Representations and Certifications
All Representations and Certifications included in the
Contractor's proposal (including those in the RFP which are accepted by
submission of a proposal) are incorporated as a part of this Agreement
and, unless otherwise specifically limited in this Agreement, will remain
in effect and in full force for the duration of this Agreement.
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1.40 Reports Prepared by Contractor
The Contractor shall prepare the technical reports set
forth in the Statement of Work, the management reports set forth on
Exhibit D, the financial reports set forth in Section 1.30, and such other
reports as the Authority may reasonably request from time to time. The
reports shall be in a format specified by the Authority and contain such
information as requested by the Authority. In the event that any report
set forth in this Agreement, the Statement of Work or the attached
Schedule, or any other report requested by the Authority, is not provided
to the Authority or is not received in a form that is acceptable to the
Authority within ten (10) days of the date due, the Authority shall
provide written notice to Contractor of such reporting deficiency. If
Contractor fails to cure such deficiency within fifteen (15) days of such
notice, the Authority may withhold five percent (5%) of the next monthly
payment due to Contractor pursuant to Section 1.6 hereof until such time
as the report is received by the Authority in a form that is acceptable to
the Authority.
1.41 Maintenance of Effort
1.41.1 In addition to the Health Care Services to be provided to
Eligible Uninsureds and compensated under this Agreement, the Contractor
shall continue to provide at least its historical level of charity care
services to residents of the District of Columbia. Such continued
charity care shall not be compensated under this Agreement. This amount
shall be equal on an annual basis during the term of this Agreement to
at least: (a) that portion of the Eight Million Four Hundred Thousand
Dollars ($8,400,000.00) of charity care that was provided to District of
Columbia residents-- measured at the level of charges reduced to
estimated costs by the application of Greater Southeast Community
Hospital's (GSCHC's) ratio of costs to charges (RCC) - for the time
period during which the $8,400,000.00 of charity care was provided. The
Contractor shall present to the Authority, on at least a quarterly
basis, such information and data as may be necessary to establish its
ongoing compliance with this requirement.
1.41.2 Contractor shall supply the Authority with a report showing the
portion of the $8,400,000.00 amount of charity care that was provided to
District of Columbia residents and with a copy of the Uncompensated Care
(i.e., bad debt and charity care) policies and standards that were in
place at GSCHC during the time period in which it supplied the
$8,400,000.00 in charity care referred to above. In addition, the
Contractor shall notify and discuss with the Authority any proposed
changes in those policies and standards during the term of this
Agreement and seek the Authority's approval of such changes.
1.41.3 Contractor shall submit UB-92 and HCFA 1500 data elements for
all charity care patients who are District of Columbia residents in the
same formats and within the same timeframes as required for all Eligible
Uninsureds. The amount of charges waived as charity care for these
patients shall be reported to the Authority on a patient-specific basis
by the Contractor.
1.41.4 The Authority shall have the right to audit GSCHC's charity
care accounting practices, standards, policies and utilization and its
compliance with this requirement and shall have the right to reduce its
payments as needed to offset any under provision of charity care by
GSCHC during the term of this Agreement. If the overall volume of
services provided by GSCHC to all patients declines by more than ten
percent (10%), GSCHC shall have the right to request a proportional
downward adjustment in its charity care requirement.
1.41.5 All other providers in the District of Columbia, including
program providers, will be expected to continue to provide at least
their historical level of charity care (updated by the Annual Payment
Rate Index Factor) to District of Columbia residents during the term of
the Agreement. The Authority recognizes that the Department of Health
has the right to audit these providers' charity care accounting
practices, standards, policies and utilization and their compliance with
this requirement and shall have the right to reduce their payments as
needed to offset any under provision of charity care by them.
1.41.6 For the purpose of monitoring the provision of charity care by
GSCHC during any Contract Year, the Authority shall multiply the amount
of charity care reported by GSCHC at the charge level by the overall
cost to charge ratio (RCC) reported by GSCHC on its most recently filed
Medicaid cost report. At the time of the Final Reconciliation, or at the
earliest time subsequently possible, the Authority will apply the actual
cost to charge ratio (RCC) for GSCHC for the period during which the
charity care was provided to determine whether GSCHC met the charity
care requirement specified in this Section. If it is found that GSCHC
provided less charity care than was required, the Authority shall either
require GSCHC to repay the amount by means of a check written to the
District within thirty (30) days of such determination by the Authority,
or by means of a reduction to upcoming payments that would otherwise be
made to Contractor under this Agreement. that would otherwise be
applicable to the upcoming Contract Year, or by another mutually
satisfactory method.
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1.42 Capital Expenditures
1.42.1 The Authority shall provide Contractor, through a combination
of direct payments and loans, an aggregate amount up to Eleven Million,
Eight Hundred Thousand Dollars ($11,800,000.00) for reasonable and
necessary capital expenditures made by Contractor to renovate, modify or
replace the existing Public Benefit Corporation (PBC) Clinics, D.C.
General Hospital and GSCHC. The purpose of such renovations and
modifications is to ensure that (i) the PBC Clinics and D.C. General
Hospital meet all applicable certification and licensure standards and
(ii) GSCHC will be able to accommodate the increased volume of patient
care services anticipated hereunder.
1.42.2 Such renovations and modifications at GSCHC shall include, but
are not limited to, expansion of the intensive care unit, reopening
closed nursing unit(s), addition of a dedicated corrections unit,
relocation of the current psychiatric unit, upgrades to the operating
rooms, upgrades to the emergency department, and certain patient room
modifications on the hospital's eighth floor.
1.42.3 Amounts for approved capital expenditures at GSCHC shall be
loaned by Authority to Contractor pursuant to a loan agreement and
promissory note, the form of which are attached hereto as Exhibit B and
Exhibit C, respectively. Repayment of amounts due from Contractor under
the Promissory Note shall be ratably forgiven over the initial term of
this Agreement, so long as this Agreement remains in full force and
effect. Contractor shall provide Authority with such security interests
as the Authority deems reasonably necessary to protect Authority's
interests under this Section. Capital attributable to corrections
improvements shall be ratably forgiven prior to the forgiveness of other
amounts.
1.42.4 Capital expenditures hereunder shall only be reimbursed by
Authority if such expenditure has been reviewed in advance and approved
in writing by the Authority or its designee. Upon receipt of appropriate
documentation evidencing the expenditure of capital or the incurrence of
an obligation for purposes that were previously approved in writing
pursuant to this Section, the Authority shall reimburse the Contractor
within thirty (30) days of receipt of evidence of such expenditure
including all supporting documentation, in a. form acceptable to
Contracting Officer, through the aforementioned direct payments or
loans, as appropriate. Notwithstanding anything contained herein to the
contrary, in no event shall the total capital expenditures funded by
Authority exceed $11.8 million.
1.43 Financial Representations and Warranties of
Contractor
1.43.1 During the term of this Agreement, the Contractor warrants and
represents that Contractor and its primary subcontractors shall:
1.43.1.1 Pay ninety five percent (95%) of all claims within thirty
(30) days of a claim being considered a clean claim;
1.43.1.2 Pay provider claims of Contractor and primary subcontractors
(including, for example, D.C. Chartered Health Plan, Inc.) in the same
manner and pursuant to the same time schedule as claims from other
providers (and not any more expeditiously);
1.43.1.3 As part of the monthly financial reporting, provide the
Authority with notice of additional debt in excess of One Million
Dollars ($1,000,000.00). Such notice shall specify the creditor,
amount of debt and use of the proceeds of the debt; and
1.43.1.4 Invest at least Three Million Dollars ($3,000,000.00) per
year during each Contract Year during the term of this Agreement in
capital improvements, fixtures, furnishings or equipment at GSCHC.
This requirement shall be cumulative, and Contractor shall be
permitted to invest more or less in a particular year, provided,
however, that at least One Million Five Hundred Thousand Dollars
($1,500,000.00) is invested each year and at least Fifteen Million
Dollars ($15,000,000.00) has been invested prior to the end of the
initial five-year term of the Agreement. For the purposes of
determining the amount of capital investment that Contractor has made
each year to satisfy this requirement, the parties shall not include
any capital expenditures or improvements paid for by or on behalf of
the Authority or the District of Columbia, including, but not limited
to, the capital expenditures referenced in Section 1.42. During the
term of this Agreement, the Contractor shall report the above
financial information, together with any other information reasonably
requested by the Authority, on a monthly basis.
1.43.3 Funds received from the Authority under this Agreement shall
be maintained in a segregated, earmarked account and disbursements from
such account shall only be made for Health Care Services, other health
services subject to this Agreement, and reasonably related
administrative expenses incurred in carrying out this Agreement.
Disbursements for Health Care Services or other health services shall
not be made until such services are rendered and appropriate claims
therefor are submitted to Contractor for payment. During the term of
this Agreement and for any reconciliation period thereafter, Contractor
shall provide the Authority or the District with such other security
interests as are deemed reasonably necessary to protect the Authority's
interests under this Agreement.
1.43.4 In the event that Contractor fails to comply with any of the
requirements of this Section 1.43 within ten (10) days of the date due,
the Authority shall provide written notice to Contractor of such
deficiency. If Contractor fails to cure such deficiency within fifteen
(15) days of such notice, the Authority may withhold five percent (5%)
of the next monthly payment due Contractor pursuant to Section 1.6
thereof until such time as the deficiency is corrected in a manner
acceptable to the Authority.
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1.44 Operating Committee
The Parties agree to convene an operating committee
(the "Operating Committee") which shall serve in an advisory
capacity to the Authority and the Contractor and shall address operating
issues that arise with respect to the implementation of the program and
such other matters as may be delegated by the Parties. The Operating
Committee shall be comprised of, one (1) person designated by the
Contractor, one (1) person designated by the Authority, (1) one person
designated by the Department of Health and representatives of primary
subcontractors of Contractor, as mutually agreed by the Parties.
1.45 Leases/Subleases
1.45.1 Contractor agrees to execute, within thirty (30) days of the
Effective Date, the Master Lease Agreement, and such other leases,
subleases and other documents as may be necessary to convey use of the
D.C. General Hospital premises and PBC Clinics to Contractor during the
term of this Agreement. The Master Lease Agreement to be executed by the
parties shall be substantially in the form set forth at Exhibit H.
1.45.2 Provided no default by GSCHC has occurred under this
Agreement, GSCHC and/or its directors, officers, contractors, agents,
employees, and/or invitees (collectively, "Invitees") shall
have the right to enter upon those certain premises (collectively, the
"Leased Premises") to be leased by the Authority to GSCHC
pursuant to the Master Lease Agreement (the "Lease") during
the Early Access Period (as hereinafter defined) for the sole purpose of
inspecting the Leased Premises as shall be reasonably necessary to
prepare a proposal regarding capital expenditures, as more particularly
described in Section 1.42 hereof; provided that (i) GSCHC shall give the
Authority not less than one (1) business day's prior written notice
before each such entry, (ii) the first such notice shall include
sufficient information to permit the Authority to review the scope of
the proposed inspection, and (iii) neither GSCHC not its Invitees shall
permit any invasive tests on the Leased Premises without the Authority's
prior written consent. Any entry onto the Leased Premises shall be at
the sole risk, expense, and liability of GSCHC and its Invitees and
shall be coordinated with the Authority to ensure that such inspection
does not interfere with the operation of any of the Leased Premises.
1.45.3 If the Authority determines that GSCHC or any Invitee is
interfering with the operation of the Leased Premises, then the
Authority shall have the right to require the offending party to leave
such Leased Premises. GSCHC shall: (a) promptly repair any damage
resulting from any inspection to the Leased Premises and/or the personal
property located therein; (b) fully comply with all applicable laws, (c)
permit the Authority to have a representative present during all
inspections, (d) promptly furnish to the Authority, if requested, copies
of all studies and reports relating to the inspections which are not
proprietary in nature, (e) maintain or cause to be maintained at GSCHC's
expense insurance as required in the Lease, and (f) indemnify and hold
the Authority harmless from and against any and all losses, damages,
liabilities, actions, claims, costs and expenses, including court costs
and reasonable attorneys' fees, to the extent arising out of or relating
to GSCHC's and/or any Invitee's entry into any of the Leased Premises or
any part thereof. The "Early Access Period" shall commence on
the date of this Agreement and continue for thirty (30) days following
the date hereof.
INTENDING TO BE BOUND, the parties execute this Agreement as of the
date first above written.
District of Columbia Financial Responsibility and Management Assistance
Authority
By: _______________________
Title: _______________________
Print Name: _______________________
Greater Southeast Community Hospital Corporation I
By: _______________________
Title: _______________________
Print Name: _______________________
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