PROFESSIONAL SERVICES AND
SUPPORT AGREEMENT
THIS PROFESSIONAL SERVICES AND
SUPPORT AGREEMENT is entered into effective as of the 2nd day of
April, 2007 by OPTICARE EYE HEALTH CENTERS, INC. (“
Centers ”), a Connecticut corporation, with offices in
Waterbury, Connecticut, and OPTICARE, P.C., a Connecticut
professional corporation having its principal place of business at
87 Grandview Avenue, Waterbury, Connecticut (“
Professional Corporation ”).
W I T N E S S E T H:
WHEREAS, the Professional
Corporation is a Connecticut professional corporation engaged in
the practice of medicine and surgery, all through the work of
ophthalmologists, optometrists, nurses and other professionals who
are either employed by the Professional Corporation or under
contract with it to provide services consistent with the laws of
the State of Connecticut pertaining to the delivery of such
services (hereinafter the “ Staff ”);
WHEREAS, Centers is in the business
of conducting or operating, directly or in concert with the efforts
of others, eye health centers, ambulatory surgery centers, retail
eye wear sales and fitting services, eye wear manufacturing and
providing administrative support for professional ophthalmology and
optometry practices (collectively, the “ Business
”); and
WHEREAS, the Professional
Corporation desires to contract with Centers for the provision of
administrative support services in furtherance of the Professional
Corporation’s conduct of its professional practice;
and
WHEREAS, Centers desires to have the
Professional Corporation, through its Staff, provide the medical,
optometric and other ancillary services thereto, in space to be
leased by Centers to the Professional Corporation so as to create a
convenient venue for such services proximate to the independent
locations of Center’s retail Business operations, on an
exclusive basis; and
WHEREAS, the Professional
Corporation desires to provide such services.
NOW THEREFORE, in consideration of
the foregoing and the mutual covenants and conditions contained
herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to certain terms defined
elsewhere in this Services Agreement, the following terms shall be
defined as set forth below.
“Business” has the
meaning assigned to such term in the second Recital.
“Centers” has the
meaning assigned to such term in the Preamble.
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“Competitive Business”
means any person, firm, partnership, association, corporation or
business organization, entity or enterprise, which is engaged in
the sale of spectacles, frames, contact lens or any ancillary
vision products within a fifteen (15) mile radius from (i) any eye
health centers being operated or administered by Centers within the
State of Connecticut and (ii) any planned new eye health centers
for which Centers has made firm commitments.
“Initial Term” has the
meaning assigned to such term in paragraph X(a).
“Practice” has the
meaning assigned to such term in Article II.
“Professional
Corporation” has the meaning assigned to such term in the
Preamble.
“Renewal Term” has the
meaning assigned to such term in paragraph X(a).
“Services” means the
professional services in the fields of ophthalmology, optometry,
and such other areas of medicine or other related professional
services within the professional qualifications and capabilities of
the Professional Corporation and its Staff and customary for a full
service ophthalmologic and optometric professional
practice.
“Services Agreement” has
the meaning assigned to such term in Article II.
“Staff” has the meaning
assigned to such term in the first Recital.
ARTICLE II
SERVICES AGREEMENT
The parties hereby agree to provide
the following services subject to the terms of this Agreement
(referred to herein as the “ Services Agreement
”). References herein to the “ Practice ”
are to the combined medical, business and other operations of the
Professional Corporation and its Staff.
ARTICLE III
DUTIES OF THE PROFESSIONAL
CORPORATION
During the term of this Services
Agreement, the Professional Corporation shall, at its
expense:
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(a)
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maintain a Staff capable of
providing the Services.
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(b) require the
members of its Staff to devote substantially all of their
professional time and efforts to providing the Services at space
provided by Centers to the Professional Corporation. Schedule A
hereto sets forth such locations as of the date hereof, and it is
understood that same may change from time to time.
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(c) subject
to its independent clinical judgment, establish and implement
practice standards, policies and protocols, and provide Services,
at least consistent with generally accepted professional standards
for the practices of ophthalmology, optometry, and its other
services, including those recommended for the practice of
ophthalmology from time to time by the American Board of
Ophthalmology, and in compliance with all credentialing, quality
assurance, practice standardization, risk management, access,
and/or utilization management programs, criteria and procedures
which the Professional Corporation may adopt, and/or with which the
Professional Corporation is required to comply by virtue of
licensure or contract, including without limitation, any such
programs, criteria or procedures required by third-party payors,
governmental agencies and accrediting bodies;
(d) comply with all
applicable provisions of the law and of the rules and regulations
of all governmental authorities relating to (i) the licensing and
the regulation of physicians, optometrists, nurses and other
licensed professionals engaged by the Professional Corporation and
(ii) the delivery of Services;
(e) maintain in
good repair the types and amounts of clinical equipment and medical
supplies required for the Practice:
(f) work with
Centers in all billing and collection matters conducted by Centers
on behalf of the Professional Corporation and oversee and make
recommendations to Centers concerning such matters;
(g) develop
training guidelines and provide for the training and supervision of
the Staff rendering the Services, all as required by applicable law
or the conditions of participation of third-party
payors;
(h) submit
accurate, complete and timely data required for the billing and
collection by Centers on behalf of the Professional Corporation of
fees for the Services;
(i) keep
accurate and complete medical records of the Services performed by
the Staff;
(j) monitor
utilization and quality of the Services and implement all necessary
steps to remedy any and all deficiencies in the efficiency or
quality of the care provided;
(k) work with
Centers so as to obtain professional liability insurance with the
Practice as the primary insured and Centers as an additional named
insured; and
(l) the
Professional Corporation shall have the exclusive authority to
negotiate and administer its reimbursement from, and participation
contractually with, all third party payors, employer groups, joint
venturers and others for the provision of all Services, including,
without limitation, all provider agreements, managed care
agreements, network access agreements, and all capitation and
reimbursement agreements. The Professional Corporation and Centers
recognize and agree that they each will derive economic benefit
from their participation in the same programs of third party
payment for services, including the ability of the Professional
Corporation’s physicians to provide services in concert with
Centers’ ambulatory surgery center. Consequently, while each
party shall independently negotiate its reimbursement and terms of
participation, the Professional Corporation and Centers each shall
use all reasonable efforts to
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participate in all such programs in
which one or the other of the parties participates unless precluded
or impracticable under terms established by the third party
payor.
(m) During
the term of this Agreement, the Professional Corporation shall have
exclusive and independent authority to structure and control its
internal organization, corporate structure, professional hiring and
clinical activities.
(n) In
order to promote effective delivery of care and coordination of the
activities of the parties hereunder and the orderly conduct of the
Professional Corporation’s activities, the Professional
Corporation shall maintain its stock ownership exclusively with
physicians who have been engaged by, and included in the management
of, the Professional Corporation for a period of not less than two
(2) years.
ARTICLE IV
STAFFING AND HOURS OF
OPERATION
(a) The
Professional Corporation shall cause each office and facility
covered by this Services Agreement as set forth in Exhibit A to be
adequately staffed with appropriately trained and licensed
ophthalmologists and optometrists during the business hours of said
venue as needed.
(b) Services
furnished hereunder shall be provided only by Staff members or
other personnel engaged by the Professional Corporation who meet
the requirements of this Services Agreement for rendering Services,
and who will comply with the provisions of this Services Agreement.
Each such Staff member or other approved personnel
shall:
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(i)
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provide clinical services consistent
with generally accepted professional medical standards and the
requirements of this Services Agreement;
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(ii)
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(as to ophthalmologists only) be
certified by the American Board of Ophthalmology or be eligible by
training and experience to be certified by such organization;
and
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(iii)
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be appropriately licensed as
applicable to practice in the State of Connecticut.
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(c) The
Professional Corporation shall be responsible for hiring or
entering into contracts with sufficient qualified medical and other
personnel to ensure that the Professional Corporation’s Staff
is adequate to meet the Professional Corporation’s
obligations under this Services Agreement.
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ARTICLE V
DUTIES OF CENTERS AND
FEES
During the term of this Services
Agreement, Centers shall, at its expense:
(a) provide
appropriate space within Centers’ offices, consistent with
the terms of the Agreement and the fee and cost allocations set
forth in Exhibit B hereto;
(b) provide
non-core business support services not relating to decision-making
or control of any clinical aspects of the Practice as such specific
support services are set forth herein;
(c) provide
all accounting, bookkeeping, and accounting control services
relating to the Practice, including, without limitation,
development of a system of accounts, preparation of monthly
financial statements, development of accounting procedures and
controls, and assisting any outside auditors, it being understood
that Centers shall be the sole and exclusive owner of any such
systems developed hereunder;
(d) provide billing
and collection services for all Professional Services rendered by
the Professional Corporation as provided herein, consistent with
the provisions of Article VI hereof; and
(e) assist
the Professional Corporation in securing professional liability
(malpractice) coverage and other customary and reasonable types of
insurance for the Practice, with limits, deductibles and co-payment
levels determined by the Professional Corporation with the
Professional Corporation as the primary insured and with Centers
being named as an additional insured, and to assist in handling the
defense and settlement of all claims made against such insurance at
the direction of the Professional Corporation, it being understood
that the premiums for all such insurance policies shall be paid for
by the Professional Corporation.
Payments between the parties for the
services that Centers has agreed to provide under this Article V
shall be calculated and paid monthly, within thirty (30) days of
invoice, unless otherwise provided. The parties hereto agree that
the service fees and cost allocations set forth in Exhibit B
reflect their best efforts to agree upon fair value of the services
to be provided to the Professional Corporation by Centers and are
not conditional upon, or in any way relate to, the value or value
of any health care services or referrals between the parties. The
fees and cost allocations set forth in Exhibit B shall be subject
to annual adjustment by agreement of the parties to reflect the
then-current value of services to be provided hereunder.
ARTICLE VI
BILLING AND
COLLECTION
(a) Centers,
on behalf of the Professional Corporation, shall bill, collect and
receive payment for Services rendered by the Professional
Corporation. Sums received for the Services of the Professional
Corporation shall immediately be deposited in an account for the
benefit of the Professional Corporation. Centers shall submit, in a
timely manner and consistent with all
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applicable laws, regulations and
third party payor requirements as to the billing for health care
and related services, all claims and other doc
