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HomeMy WebLinkAboutSigned Consulting Agreement for Samaritan FundCONSULTING AGREEMENT This Consulting Agreement (the "Agreement") is entered into on t4i �,° (the "Effective Date") by and between Samaritan Fund Program, LLC ("SFP") and ("Employer"). RECITALS SFP has developed and presently operates the Samaritan Fund Program (the "Program"), which provides professional services as further described in Section 1 hereof. Employer sponsors a group medical plan and desires to engage SFP to operate the Program in conjunction with Employer's group medical plan, on the terms and conditions set forth below. 1. CONSULTING SERVICES 1.1 SFP shall provide educational assistance to covered participants (including COBRA qualified beneficiaries) under Employer's group medical plan.. -Such assistance shall include personalized guidance on individual insurance market alternatives to Employer's group plan coverage, as well as advice regarding potential financial assistance available through various charities and foundations to cover out-of- pocket expenses associated with individual market coverage. 1.2 SFP shall implement the Program for Employer's employees, COBRA qualified beneficiaries, and their dependents that elect to voluntarily participate in the Program (any individuals that participate in the Program referred to as "Program Participants"). Such implementation services shall include coordinating individual market coverage and financial assistance for eligible individuals, as well as accepting and holding monetary amounts from third parties for the benefit of Program Participants. SFP may also provide use of an electronic debit card for Program Participants to utilize for payment of out-of-pocket expenditures. 1.3 SFP shall administer the Program on an ongoing basis until the Program is terminated in accordance with this Agreement. Such services may include updating the Employer or Program Participants regarding engagement and usage and determining re -qualification standards for Program participants. 1.4 In performing its duties and obligations under this Agreement, SFP is acting only as an independent consultant, and shall not be deemed to be an agent of Employer or a fiduciary, sponsor, trustee, insurer, underwriter, or guarantor of any employee benefit plan sponsored or maintained by Employer, nor shall SFP be considered an insurer or guarantor of any benefits provided under any employee benefit plan or any individual policy of insurance. SFP shall be entitled to rely upon, and shall not be liable for any actions taken in reliance upon any information provided by, and any oral or written representations of, Employer or any agent or employee of Employer. 2. USE OF CONFIDENTIAL MEDICAL INFORMATION 2.1 Employer may provide SFP with medical data and other personal medical information which shall be necessary or advisable for SFP to perform the consulting services described in this Agreement. Employer and SFP will use best efforts to ensure that any information exchanged between the parties is not protected health information ("PHI"), as defined under the Health Insurance Portability and Accountability 4102106123v2.11 Act ("HIPAA"). In order to facilitate the exchange of information between the Employer and SFP, each Program Participant shall execute an authorization in form and substance similar to the attached Exhibit B. All information exchanged between Employer and SFP is confidential, and neither SFP nor Employer shall disclose such information to any third parties without the express written consent of SFP, Employer, and any Program Participant unless in SFP's judgment such disclosure is reasonably necessary for purposes of administering the Program or is required to be disclosed by law. 2.2 If and to the extent SFP requires disclosures from medical providers in order to facilitate and operate the Program, SFP shall require the medical provider to execute a HIPAA-compliant Business Associate Agreement with SFP prior to the exchange of information. 2.3 In SFP's discretion, SFP may require an Employer to execute a HIPAA-compliant Business Associate Agreement prior to receiving information relating to a Program Participant. 3. FEES AND COMPENSATION 3.1 In exchange for the services described in this Agreement, Employer shall pay SFP a services fee as set forth on Exhibit A based on the number of participants who participate in the Program during year that Employer sponsors its group medical plan and participates in the Program (the "Plan Year"). Such fee is not a contribution to or portion of any benefits offered under the Program and specifically does not represent any portion of any premium for any medical coverage made available under the Program. Employer shall pay to SFP the services fee at such time or time(s) as Program Participants become eligible for the Program, with the express understanding that most or all of such fee shall become due and owing after the annual open enrollment period under the Employer's group medical plan. SFP shall invoice Employer within a reasonable time as and when participants become eligible to participate in the Program. The services fee represents payment for SFP's services and Employer's use of the Program for a particular Plan Year. Each successive Plan Year shall require payment of an additional services fee from the Employer to SFP. 4. EMPLOYER'S OBLIGATIONS AND RESPONSIBILITIES 4.1 In providing any information concerning the Program to its employees, and in providing any information to SFP, Employer is only disclosing the terms and conditions of the Program and providing information reasonably necessary for SFP's administration of the Program. Employer shall not endorse the Program and specifically is not establishing or maintaining an employee benefit plan as a result of its participation in the Program. Employer will not pay any portion of the premiums for any medical insurance provided under the Program and will not receive any compensation from SFP, the Program, any insurance policy, or any agent or representative of any of the foregoing as a result of disclosing the Program or as a result of any individual's participation in the Program. Employer shall bear sole and exclusive responsibility for any claims, liabilities, or damages resulting from inaccurate information regarding the Program being provided by the Employer to its employees. 4.2 Participation in the Program by any of Employer's employees, COBRA qualified beneficiaries, and their dependents is completely voluntary. Employer acknowledges and agrees that it will not coerce or convince any individual to participate in the Program and will not dissuade, or otherwise influence any individual to refrain from participating in Employer's group medical plan. Any responsibility for claims, liabilities, or damages resulting from allegations that Employer took the foregoing actions shall be the sole liability of Employer. 4.3 Employer agrees and represents that all communications that Employer and its agents and employees make regarding the Program shall be undertaken without consideration or basis of an individual's adverse health conditions. 2 #102106123v2.11 4.4 If the Employer agrees to execute a Nondisclosure Agreement, it shall remain in frill force and effect from the Effective Date and at all times after the termination of this Agreement (the "Nondisclosure Agreement"). 5. TERM AND TERMINATION 5.1 The term of this Agreement shall commence on the Effective Date and shall continue for a period of one year. Thereafter, the term of this Agreement will automatically renew for an additional one- year period unless and until either party gives notice to the other, not less than 30 days prior to the end of the then current term, of its intent not to renew this Agreement. This Agreement may also be terminated as provided below. If this Agreement terminates for any reason, SFP will continue to be owed any unpaid fees by Employer for the Plan Year in which the termination of this Agreement occurs. 5.2 If either party breaches any material provision of this Agreement, the non -breaching party shall have the right to terminate this Agreement on 30 days prior written notice to the breaching party, provided that the breach has not been cured by the allegedly breaching party (or the breaching party has not taken reasonable steps to cure the breach) within such 30-day period. No termination shall affect any rights of either party to collect damages or assert any other remedy for breach of this Agreement. 5.3 Either party may terminate the Agreement upon written notice to the other party if the other party shall be adjudicated bankrupt or insolvent or otherwise institutes (by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceedings under the laws of any jurisdiction; or if any such proceeding shall be instituted (by petition, application or otherwise) against the other party concerning the foregoing. Either party may further terminate the Agreement if the other party admits in writing its inability to pay its debts as they mature, or makes any assigiunent for the benefit of its creditors; or if the other party shall apply for or consent to the appointment of any receiver, trustee, or similar officer for it or for all or any substantial part of its property; or if a debt of the other party shall continue undischarged for a period of 30 days. 5.4 This Agreement may be immediately terminated by SFP if (i) none of Employer's employees, COBRA qualified beneficiaries, or their dependents are enrolled in the Program; (ii) SFP decides to terminate the Program with respect to all participating Employers, or (iii) Employer terminates its group medical plan. 5.5 SFP may terminate this Agreement in SFP's discretion without prior notice if Employer does not pay any undisputed fees within 30 days of the date reflected on the applicable SFP invoice. Employer may dispute any fee within 14 days of receipt of the SFP invoice. For any fee in dispute, the parties shall have 30 days from notice of the dispute to resolve said dispute. If any fee remains in dispute after 30 days, SFP may terminate this Agreement in its discretion. 5.6 Termination of this Agreement shall not have any effect on Employer's confidentiality obligations under the Nondisclosure Agreement. 5.7 In the event the Agreement terminates in the middle of a Plan Year, SFP shall continue to administer and operate the Program through the end of the applicable Plan Year, but no additional participants shall be eligible to be added to the Program after termination. 5.8 Each Party agrees to return to the other party either before or immediately upon the termination of this Agreement any and all written information, materials or equipment which constitutes, contains or relates in any way to proprietary or confidential information of the disclosing party, and any other documents, equipment and materials of any kind relating in any way to the business of the disclosing party which are or may be in its possession, custody and control and which are or may be the property of the disclosing party whether or not confidential. For any information that is in electronic form that is required to 3 4102106123v2.11 be returned pursuant to the foregoing paragraph, the parties agree to delete and permanently destroy all copies of any electronic information disclosed and shall communicate and verify in writing that all such information has been deleted and destroyed. 6. SFP REPRESENTATIONS AND OBLIGATIONS 6.1 SFP has obtained independent advice regarding the Program's compliance with relevant laws, including the Employee Retirement Income Security Act ("ERISA"), HIPAA, relevant provisions of the Internal Revenue Code, the Medicare Secondary Payor Act, the Affordable Care Act, and the Age Discrimination in Employment Act. SFP agrees to administer and operate the Program in a manner such that the Program is compliant with, or otherwise exempt from, the foregoing laws. SFP represents that the Program is not intended to be an "employee welfare benefit plan" under ERISA and further represents that SFP will operate the Program in a manner that the Program is exempt from ERISA. Neither the Program nor this Agreement is intended to establish, supplement, or amend any employee benefit plan, including any employee benefit plan sponsored, maintained, or contributed to by Employer or SFP. 6.2 SFP shall hold any financial assistance provided by third party payors (i.e. charities and foundations) in a separate segregated bank account, for the sole benefit of Program Participants as directed by such third parry payors and consistent with the Program. 6.3 To the extent SFP is in possession of PHI, SFP shall treat PHI in accordance with the rules and limitations provided for under HIPAA and in accordance with applicable authorizations from Program Participants. 7. MISCELLANEOUS 7.1 Notices. Any notice under this Agreement shall be given by personal delivery, overnight carrier or by mail, registered or certified, or postage prepaid with return receipt requested. Notices shall be addressed to the parties at the addresses appearing on the signature page of this Agreement. Notices may also be delivered via electronic mail at the e-mail addresses on the signature page of this Agreement, read receipt requested. 7.2 Waiver and Amendment. This Agreement may be modified, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. 7.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Louisiana (notwithstanding any conflict -of -laws doctrines under Louisiana law). 7.4 No Other Beneficiaries. This Agreement is being made and entered into solely for the benefit of the parties hereto, and neither party intends to create any rights in favor of any other person as a third -party beneficiary of this Agreement or otherwise. 7.5 Severability. The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions. 7.6 Successors: Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No party may assign either this Agreement or any of its rights, interests, or obligations render this Agreement without the prior written approval of the other party. 4 4102106123v2.11 7.7 Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures had been on one document. 7.8 Liability For Damages. UNDER NO CIRCUMSTANCES UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE IMPLEMENTATION OF THE PROGRAM OR ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE FINANCIAL IMPACT OF THE PROGRAM ON EMPLOYER OR SFP, INCLUDING ANY WARRANTY OR REPRESENTATION CONCERNING THE PROGRAM. 7.9 Indemni1y. Employer agrees to indemnify and hold harmless SFP from all reasonable expenses (including attorneys' fees), judgments, files, damages, losses, claims, penalties, and other amounts or liabilities paid in settlement or incurred by SFP in connection with any threatened, pending, or future legal claim, investigative or administrative action, suit, or proceeding that SFP may become subject to or liable for by reason of providing the services contemplated under this Agreement, provided that no indemnification shall be owed in the event such liability results from the gross negligence or intentional misconduct of SFP. Any determination of gross negligence or intentional misconduct shall be made by a court of competent jurisdiction or the arbitrator, as the case may be, in the form of a final, non -appealable judgment or decision. 7.10 No Legal Advice. SFP makes no representations regarding the legality of the Program and does not offer legal advice regarding Employer's participation in the Program. Employer agrees to consult with, and rely on, its own attorney with respect to any legal issues relating to the development, implementation, or operation of the Program. 7.11 Cooperation. SFP agrees that it will provide reasonable cooperation and assistance to the Employer in the event of any court action, governmental investigation, arbitration, mediation, or other legal, equitable, or business matters or proceedings which involve the Program. Such cooperation and assistance may include, but is not limited to, meetings and conferences deemed necessary in preparation for the defense or prosecution of any such matters or proceedings as well as the provision of testimony under legal oath related to such matters or proceedings. 8. DISPUTE RESOLUTION AND FORUM SELECTION. (a) The parties hereby express their mutual agreement on the manner in which any disputes relating to or arising under the terms or performance of this Agreement or the breach of the Agreement shall be resolved. (b) Should such a dispute arise and the dispute cannot be settled through direct discussions, the party seeking to resolve the dispute shall notify the other party of the dispute and of its proposed resolution, in writing, and shall offer the other party ten (10) business days within which to respond in writing, as to its willingness to address and clue the issue(s) over which the dispute arose. #102106123v2.11 (c) The parties further agree any unresolved dispute after written notification shall be submitted to mandatory arbitration administered by the American Arbitration Association (the "AAA") in accordance with its Commercial Arbitration Rules. Arbitration will be held in the State of Louisiana before a single arbitrator selected pursuant to the AAA Rules. The arbitrator will have no authority to award punitive, consequential or other damages not measured by the prevailing party's actual damages, except as may be required by statute, and in any event may not award damages specified in Section 7.8 hereof. Any award in an arbitration initiated under this Section will be limited to monetary damages and will include no injunction or direction to any party other than the direction to pay a monetary amount. All decisions of the arbitrator will be final, binding, and conclusive on the parties. The parties will equally share the costs of the arbitrator and the arbitration fee (if any). Each party will bear its own attorneys' fees and costs, and the prevailing party will not be entitled to reimbursement by the other party of any fees or costs incurred by the prevailing party in connection with the arbitration hereunder, regardless of any rule to the contrary in the applicable arbitration rules. (d) Either party may seek confirmation of the arbitration award in a court of competent jurisdiction within the State of Louisiana, and each party hereby consents to the exclusive jurisdiction and venue of the State of Louisiana, Parish of Jefferson in any claim or action arising hereunder. The parties agree to waive any and all rights to a jury trial regarding any dispute and its right to go to court to resolve any dispute by a judge. The Parties have executed this Agreement effective as of the date noted above. Samaritan Fund Program LLC 3 1212Is' Street Metairie, LA 70002 Brett Morris, CEO Email Address: bmorris@samaritanfundprogram.com Employer Address: a 4 cvj Li X Iizi a By: Am Print Name & Title: Email Address: 6 #I 02106123v2,1 I EXHIBIT A COMPENSATION SFP's fee for services under this Agreement shall be: • Calculated on an annualized basis and invoiced as and when Program Participants become eligible to participate in the Program. Any and all fees earned become due and owing at the time approval to move forward with a qualified applicant is received in writing either directly from Employer or through Employer's insurance broker/ agent. $55,000 annually for each participating individual, plus an additional $15,000 for every additional family member of such participating individual, up to a maximum of $100,000 for each family unit. For current Program Participants that drop out of benefits eligibility during the pendency of this Agreement who would have otherwise be eligible for COBRA if they had been on the Employer's group medical plan, the fee will automatically renew for the duration of what would have been the COBRA eligibility period, unless the Program Participant becomes eligible for another group medical plan as an employee elsewhere. This period is typically 18 months but could be 29 months if the participant qualifies for Social Security Disability COBRA extension. 4102106123v2.11 Applicant First Name: _ Employer: Date of Birth: Phone: Address: Do you have Medicare? AUTHORIZATION TO DISCLOSE HEALTH INFORMATION Last Name: Employee Name (if different): Social Security Number: Email: L s ® Diagnosis: County: 1) 1 authorize the use and/or disclosure of the above -named individual's health information described below, 2) The following individual or organization is authorized to make the disclosure: 3) A true and complete copy of all medical records including, but not limited to, all emergency room records, in- patient records, out -patient records, medical reports, narratives, history and physical reports, discharge summaries, x-ray reports, x-ray and imaging study films, diagnostic test results and reports, laboratory test results and reports, medication administration records, billing records and invoices concerning treatment and/or care of said patient, operative reports, pathology reports and records, cytology reports and records, doctors' notes, nurses' notes, consultants' reports, consent forms; any attachments to the jackets containing the medical records of said Patient; a copy of any information related in any way to the Patient which you have transmitted to any company, public or private agency, or person; any other documents in your possession relating to examinations, hospital admissions, and diagnostic testing. 4) 1 understand that the information in my health record may contain information relating to sexually transmitted disease, and/or information about behavioral or mental health services, and treatment for alcohol and drug abuse. 5) This information may be disclosed to and used by Samaritan Fund Program. 6) 1 understand I have the right to revoke this authorization at any time. I understand that if I revoke this authorization, I must do so in writing and present my written revocation to the Samaritan Fund Program. I understand that revocation will not apply to information that has already been released in response to this authorization. I understand that the revocation will not apply to my insurance company, when the law provides my insurer with the right to contest a claim under my policy. Unless otherwise revoked, this authorization will expire upon the acceptance or denial of acceptance into the Samaritan Fund Program. 7) 1 understand that authorizing the disclosure of this health information is voluntary, I can refuse to sign this authorization. I need not sign this form as a condition to enrollment or eligibility for benefits. I understand I may inspect or copy the information to be used or disclosed, as provided in CFR 164,524. 8) 1 understand any disclosure of information carries with it the potential for an unauthorized re -disclosure and the information may not be protected by federal confidentiality rules. 9) A photostatic copy of this authorization shall serve in its stead, 1, , declare under penalty of perjury that all statements contained in this request and any accompanying documents are true and correct. Date Signature **Please submit completed form to: service @samaritanfundprogram,com** 2 #102106123v2.11