ARTICLE 1
GENERAL PROVISIONS

1.1.          Participant Provider Agreement.  All terms and conditions below apply to that certain Participant Provider Agreement by and between Provider and the ACO (the “Participant Provider Agreement”).  Provider agrees to comply with all terms and conditions of the Participant Provider Agreement and those set forth in these Provider ACO REACH Terms and Conditions.  Capitalized terms used below that are not defined below have the meaning given to them in the Participant Provider Agreement, unless otherwise specified below.

1.2.          Care Improvement.  The Parties acknowledge and agree that a purpose of the ACO REACH Model is to improve the quality of care provided to Beneficiaries while streamlining the measurement of such improvement compared to other shared savings and managed care models.  The Parties additionally acknowledge and agree that the Parties will implement the ACO REACH Model’s quality improvement standards as follows:

(a)            Clinical Protocols and Care Management.  Provider acknowledges and agrees that ACO will identify strategies intended to improve quality as measured by CMS for the ACO REACH Model.  Such strategies will be reviewed by the ACO Board of Directors
(the “Board”), which shall determine the allocation of resources to implement such strategies
(the “Care Initiatives”).  The Care Initiatives will be adopted, implemented, and enforced by ACO.  Provider agrees, and shall cause each physician, allied health professional, and other clinician employed by or contracted with Provider (each, a “Provider Clinician,” and, collectively, the “Provider Clinicians”) to agree, to participate actively and meaningfully in all initiatives, efforts and requirements related to the design, development, implementation, and operation of the Care Initiatives, and at all times to abide by all of the terms and conditions of the ACO as forth in ACO’s policies and procedures (“Care Initiative Policies”), as ACO may amend them from time to time.  Provider understands and acknowledges, and shall ensure that each Provider Clinician understands and acknowledges, that compliance with the Care Initiatives will be monitored, and that the failure to comply could result in corrective action by the ACO against Provider and/or one or more Provider Clinicians.  Persistent non-compliance by Provider and/or one or more of its Provider Clinicians with the Care Initiatives will be a sufficient basis for termination of the Participant Provider Agreement by ACO, or the removal of the non-compliant Provider Clinician(s) from service under the Participant Provider Agreement.  Provider further agrees, and shall cause each Provider Clinician to agree, to abide by all final decisions of ACO regarding the Care Initiatives.

(b)            Coordinated Care.  A goal of ACO is to ensure that Beneficiaries have the benefit of the Care Initiatives throughout their continuum of care.  Accordingly, Provider shall endeavor, and shall cause each Provider Clinician to endeavor, to utilize the resources of, and refer Beneficiaries being treated pursuant to and within the scope of the Participant Provider Agreement to, Preferred Providers, if any, and other participating providers of ACO or suppliers of such participating providers.  The foregoing shall be implemented in full conformance with the Participation Agreement, which prohibits Participant Providers and Preferred Providers from requiring that Beneficiaries be referred only to Participant Providers and Preferred Providers or to any other provider or supplier, as well as applicable law including, without limitation, 42 C.F.R. § 411.354(d)(4), which limits any requirement as to referrals if: (a) the patient independently expresses a preference for a different provider, practitioner, or supplier; (b) the patient’s insurer determines the provider, practitioner, or supplier; or (c) the referral is not in the patient’s best medical interests in Provider’s or the Provider Clinician’s judgment.  Nothing in the Participant Provider Agreement shall be interpreted or deemed to prohibit or otherwise restrict Provider or any Provider Clinician from advising, or advocating on behalf of, a patient about the patient’s health status, medical care, or treatment options (including any alternative treatments that may be self-administered).  At all times, Provider Clinicians shall maintain their physician-patient relationship with Beneficiaries who receive physician services.

(c)            Communications between Provider and ACO.  Provider shall identify individual(s) within Provider to serve as point(s) of contact for ACO with respect to Provider functions related to the Care Initiatives including information technology, care management, and compliance, and shall cause such identified individuals to cooperate with ACO and its representatives in the performance of the Participant Provider Agreement.

1.3.          Non-Discrimination; Closing of Practice.  Provider shall accept Beneficiaries for services without regard to race, color, religion, gender, gender identity, sexual orientation, national origin, age, marital status, health status, disability, source of payment for services, or any other basis prohibited by state or federal law or the Participation Agreement.  A Provider Clinician may close his/her practice to new Beneficiaries only if such Provider Clinician closes his/her practice to all new patients.

1.4.           Monitoring and Enforcement.  Provider understands and acknowledges that compliance with Care Initiative Policies and other ACO policies will be monitored, and that the failure to comply with Care Initiative Policies and other ACO policies, the Participant Provider Agreement, CMS policies, including program integrity requirements, or the Participation Agreement could result in remedial action, including imposition of a corrective action plan, denial of any payments, and/or termination of the Participant Provider Agreement (subject to provision of a reasonable cure period).  Provider agrees that ACO may require Provider to take remedial action against its Provider Clinicians.  Persistent non-compliance will be considered in connection with re-credentialing of Provider to be a Participant Provider, and will be a sufficient basis for termination of Provider’s participation in ACO.  Provider further agrees to abide by all final decisions of ACO regarding quality improvement activities.

1.5.          Clinical Data Collection, Data Warehouse and Information Technology.

(a)            The active and effective use of information technology by each of the ACO REACH Participants is acknowledged as a critical success factor in the operation and performance of ACO.  Subject to the right of individual Beneficiaries assigned under the Participation Agreement to opt out of applicable data sharing and the confidentiality provisions of the Participant Provider Agreement, Provider shall, and shall cause each Provider Clinician to, submit, or otherwise make available, to ACO practice data and medical records for ACO’s use in connection with developing, reviewing, monitoring, and enforcing clinical practice and quality performance guidelines established by ACO.  Without limiting the foregoing, Provider shall provide ACO such claims data as is necessary to populate its health information exchange such that ACO can uniformly collect and disseminate health information specifically relevant to ACO REACH Participants and the community of Beneficiaries served by ACO REACH Participants, ensure the accurate and timely sharing of information necessary to support clinical integration, and create disease registries that will be tied to evidence-based protocols.  Provider shall submit, or otherwise make available, to ACO such required data as soon as practicable following the date of service, but in all cases by no later than thirty (30) days after the date of service, in a form and manner specified by ACO.  ACO reserves the right to change the required frequency of reporting of patient data under this Section at any time.

(b)            Provider acknowledges and agrees, and shall ensure that each Provider Clinician acknowledges and agrees, that Provider’s and each Provider Clinician’s performance is measured against performance measures and further acknowledges that if Provider or a Provider Clinician fails to meet performance measures, such failure can result in sanctions including termination of the Participant Provider Agreement or removal of the applicable Provider Clinician.

(c)            Provider shall cooperate diligently and in all respects with ACO’s information technology efforts, including, without limitation, complying with such information technology standards as may be adopted by ACO from time to time. 

1.6.          Reporting and Compliance.

(a)            Provider shall provide QR and UR and other performance indicators specified by ACO annually to ACO within thirty (30) days of the end of each contract year under the Participant Provider Agreement.

(b)            Provider shall cause its Provider Clinicians to complete all compliance training modules that ACO assigns.  Provider must complete such modules within one hundred twenty (120) days of the Effective Date, and annually thereafter.

1.7.          Advertising.  ACO may use Provider’s and any Provider Clinician’s name in the usual course of advertising and promotion and may list each Provider Clinician’s name, specialty, address, telephone number and a description of the Provider Clinicians and services in any provider directory or other marketing materials; provided, however, that such advertising shall be in accordance with all applicable state and federal laws, regulations, and the Participation Agreement.  Provider shall, if requested by ACO, place a sign at each of its offices indicating that Provider and the Provider Clinicians are a “participating provider” in the ACO REACH Model and that Beneficiaries retain all FFS Medicare benefits and rights.  The signs shall be of a size and content customary and appropriate for display in a physician’s office.  Any such signage shall be promptly removed in the event Provider ceases to participate as a Participant Provider.

1.8.          Exclusion Lists Screening.  On a regular basis, but no less often than monthly (unless otherwise required by law), Provider shall screen all of its current and prospective owners, legal entities, officers, directors, employees, contractors, and agents (“Screened Persons”) against: (a) the United States Department of Health and Human Services/Office of Inspector General List of Excluded Individuals/Entities (available through the Internet at http://www.oig.hhs.gov), (b) the General Services Administration’s List of Parties Excluded from Federal Programs, and (c) any applicable state healthcare exclusion list (available through the Internet at http://www.epls.gov) (collectively, the “Exclusion Lists”) to ensure that none of the Screened Persons are currently excluded, debarred, suspended, or otherwise ineligible to participate in Federal healthcare programs or in Federal procurement or nonprocurement programs, or have been convicted of a criminal offense that falls within the ambit of 42 U.S.C. § 1320a-7(a), but have not yet been excluded, debarred, suspended, or otherwise declared ineligible (each, an “Ineligible Person”).  If, at any time during the Term of the Participant Provider Agreement any Screened Person becomes an Ineligible Person or proposed to be an Ineligible Person, Provider shall immediately notify ACO of the same.  Screened Persons shall not include any employee, contractor or agent who is not providing covered services pursuant to the Participant Provider Agreement.

ARTICLE 2

RELATIONSHIP BETWEEN THE PARTIES

2.1.          Disclosures.  Provider shall promptly disclose to ACO if Provider, or any Provider Clinician: (a) is related to or has an affiliation with another accountable care organization in the ACO REACH Model; or (b) has ever participated in the ACO REACH Model or CMS’ Direct Contracting Model or under the same or a different name and, if so, has ever been voluntarily or involuntarily terminated from the ACO REACH Model or CMS’ Direct Contracting Model.

2.2.          Clinician-Patient Relationship.  Each Provider Clinician shall maintain an independent clinician-patient relationship with all individuals who are his/her patients and exercise his/her independent professional judgment consistent with accepted standards of health care in rendering treatment to such patients.  Each Provider Clinician also acknowledges that he/she is solely responsible to such patients for all treatment he/she renders and that actions by ACO pursuant to the Care Initiative Policies, utilization management, referral management or other programs do not absolve the Provider Clinician of the responsibility to provide appropriate health care to patients. 

2.3.          Independent Contractor.  Provider is and shall at all times be an independent contractor with respect to ACO in the performance of its obligations under the Participant Provider Agreement.  Nothing in the Participant Provider Agreement shall be construed to create an employer/employee, joint venture, lease or landlord/tenant relationship between ACO and Provider, any Provider Clinician, or any Provider agent.  Provider shall not, and shall ensure that each Provider Clinician and Provider agent, does not, hold itself, himself or herself out as an officer, agent or employee of ACO, or incur any contractual or financial obligation on behalf of ACO, without ACO’s prior written consent.  Provider shall be solely responsible for all expenses related to Provider, including compensation, health and disability insurance, workers’ compensation insurance, life insurance, retirement plan contributions, employee benefits, income taxes, FICA, FUTA, SDI and all other payroll, employment or other taxes and withholdings, with respect to Provider Clinicians and any other person employed by or contracting with Provider, and the cost of any and all accountants, attorneys, consultants and other professional advisors engaged by Provider from time to time.

2.4.          Records Available to ACO.  Both during and after the term of the Participant Provider Agreement, Provider shall permit ACO and its agents to inspect and/or duplicate, at ACO’s sole cost and expense, any medical chart and record to the extent necessary to meet ACO’s obligations, provided such inspection or duplication is conducted in accordance with the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, and the regulations promulgated thereunder, as amended (collectively “HIPAA”), other applicable laws, and commonly accepted standards of patient confidentiality.

ARTICLE 3

INSURANCE AND INDEMNIFICATION

3.1.          Insurance.

(a)            Provider Coverage Requirements.  During the term of the Participant Provider Agreement, Provider shall maintain policies of professional liability, general liability and worker’s compensation insurance upon the terms and subject to the conditions set forth in this Section.  The professional liability and general liability insurance policies shall: (i) in the case of the professional liability insurance policy, provide coverage for negligent acts or omissions of Provider and each Provider Clinician in the performance of professional services; (ii) in the case of the general liability insurance policy, provide coverage for bodily injury and property damages resulting from negligent acts or omissions of Provider and any Provider Clinician (other than those matters covered by the professional liability insurance policy); (iii) name Provider and/or Provider Clinician, as applicable, as named insured parties; (iv) be issued by an insurance company or trust licensed or otherwise qualified to issue professional liability and general liability insurance policies or coverage in each state or commonwealth in which Provider provides professional medical services; and (v) provide for minimum coverage limits of no less than One Million Dollars ($1,000,000) per claim and Three Million Dollars ($3,000,000) annual aggregate.  Provider provides worker’s compensation insurance coverage for each Provider Clinician, either by programs of self-insurance or through a policy issued by an insurance company or trust licensed or otherwise qualified to issue worker’s compensation policies or coverage in each state or commonwealth in which each Provider Clinician provides professional medical services, at the minimum coverage limits consistent with applicable laws.

(b)            Continuous Coverage.  “Insurance Period” means the term from the Effective Date, continuing during the term of the Participant Provider Agreement, and, with respect to professional liability and general liability insurance, expiring not less than three (3) years following the expiration or earlier termination of the Participant Provider Agreement.  If for any reason any insurance policy maintained by Provider pursuant to this Section is terminated, reduced below the minimum coverage requirements set forth in this Section, not renewed or cancelled (whether by action of the insurance company or Provider) prior to the expiration of the Insurance Period, Provider shall: (i) cause a replacement insurance policy meeting the requirements of this Section to be in effect as of the effective date of the termination, reduction, non-renewal or cancellation of the prior insurance policy; and (ii) contractually require any applicable Provider Clinician that would not continue to be covered during the Insurance Period to acquire extended reporting coverage (i.e., “tail” coverage) or prior acts coverage (i.e., “nose” coverage) as necessary to meet the requirements of this Section.  “Tail” coverage must provide for either an unlimited discovery/reporting period or a discovery/reporting period that would extend through the end of the Insurance Period, and “nose” coverage must provide for a retroactive discovery/reporting period at least as of the start of the Insurance Period.

(c)            Certificates of Insurance.  Provider shall provide ACO with certificates of insurance or other written evidence of the insurance policies required by this Section to be provided by Provider in a form satisfactory to ACO prior to the Effective Date, on each annual renewal of such insurance policies during the Insurance Period and as requested by ACO.

(d)            Replacement Insurance.  In the event Provider fails to procure, maintain or pay for any insurance policy required to be maintained by Provider under this Section, ACO shall have the right, but not the obligation, to procure such insurance policy; provided, however, that all reasonable costs associated with any such insurance policy procured by ACO on behalf of Provider shall be borne by Provider and subject to ACO’s right of offset as set forth in the Participant Provider Agreement. 

3.2.          Indemnification.

(a)            Indemnification by ACO.  ACO shall indemnify and hold harmless Provider and its owners, shareholders, members, managers, directors, officers, employees or agents from and against any and all claims, causes of action, liabilities, losses, damages, penalties, assessments, judgments, awards or costs, including reasonable attorneys’ fees and costs, arising out of, resulting from, or relating to: (i) a material breach of or misrepresentation under the Participant Provider Agreement by ACO; or (ii) the grossly negligent acts or omissions or willful misconduct of ACO or any employee or agent of ACO in the performance of ACO’s obligations under the Participant Provider Agreement.

(b)            Indemnification by Provider.  Provider shall indemnify and hold harmless ACO, Florence, their respective affiliates, and each of the foregoing’s respective owners, shareholders, members, directors, officers, affiliates, employees or agents, from and against any and all claims, causes of action, liabilities, losses, damages, penalties, assessments, judgments, awards or costs, including reasonable attorneys’ fees and costs, arising out of, resulting from, or relating to: (i) a material breach of or misrepresentation under the Participant Provider Agreement by Provider or any Provider Clinician; (ii) the grossly negligent acts or omissions or willful misconduct of Provider or any employee or agent of Provider, including any Provider Clinician or any Provider agent; or (iii) wages, salaries, employee benefits, income taxes, FICA, FUTA, SDI and all other payroll, employment or other taxes, and withholdings payable by Provider or any of its affiliates to, or on behalf of, Provider, any Provider Clinician, or any other personnel employed or contracted by Provider, whether or not providing services under the Participant Provider Agreement.

The provisions of this Section are intended to apply only to claims and liabilities that are not covered by or that exceed the policy limits of applicable insurance coverage and for which liability has not been otherwise allocated by agreement of the Parties.  This Section shall not apply if and to the extent that the effect of such provision would be to negate insurance coverage that would otherwise be available but for these contractual indemnity provisions.  Nothing contained in this Section is intended or should be construed to (i) create any liability to or right of recovery or subrogation on the part of any insurance carrier or any other third party against either of the Parties; or (ii) affect the allocation of responsibilities among insurance carriers or other persons who may have responsibility for satisfaction of all or any part of any claim made against either Party.

ARTICLE 4

STANDARD TERMS

4.1.          Headings.  The headings in the Participant Provider Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of the Participant Provider Agreement.

4.2.          Amendments.  Except as otherwise provided for in the Participant Provider Agreement (including as it relates to ACO’s unilateral ability to update Exhibit 1 of the Participant Provider Agreement as set forth in the Provider ACO Reach Model Requirements), the Participant Provider Agreement may be modified or amended only by mutual written agreement of the Parties.  Any such modification or amendment must be in writing, dated and signed by the Parties, and explicitly indicate that such writing modifies or amends the Participant Provider Agreement.  Notwithstanding the foregoing, ACO shall have the right to unilaterally amend the Participant Provider Agreement as necessary to comply the Participation Agreement, the ACO REACH Model, and/or applicable law (including CMS requirements).

4.3.          Contract Modifications for Prospective Legal Events.  In the event of any change in law which affects the relationship described herein, and which change in any way makes the Participant Provider Agreement illegal or improper or has a material adverse effect on a Party’s operations (“Change in Law”), the Parties hereto shall attempt in good faith to renegotiate the Participant Provider Agreement to eliminate such adverse impact.  In the event the Parties are unable to negotiate such an amendment within thirty (30) calendar days following written notice by either Party of the Change in Law, then either Party may terminate the Participant Provider Agreement with ten (10) calendar days’ prior written notice to the other Party, subject to the conditions set forth in Section 3.8 of the Participant Provider Agreement.

4.4.          ACO’s Confidential Information.

(a)            “ACO’s Confidential Information” means the Participant Provider Agreement and any information related to the past, current or proposed operations, business or strategic plans, financial statements or reports, technology or services of ACO or any of its affiliates that ACO discloses or otherwise makes available in any manner to either Provider or any Provider Clinician or Provider agent, or to which Provider or any Provider Clinician may gain access in the performance of services under the Participant Provider Agreement, or that either Provider or any Provider Clinician knows or has reason to know is confidential information of ACO or any of its affiliates, whether such information is disclosed orally, visually or in writing, and whether or not bearing any legend or marking indicating that such information is confidential.  By way of example, but not limitation, ACO’s Confidential Information includes any and all know-how, processes, trade secrets, manuals, confidential reports, procedures and methods of ACO, and any information, records and proceedings of ACO, peer review bodies, quality committees and other committees or bodies charged with the evaluation and improvement of the quality of care.  ACO’s Confidential Information also includes proprietary or confidential information of any third party that may be in ACO’s or any of its affiliates’ possession.  ACO’s Confidential Information shall not include information that is: (i) or becomes part of the public domain without violation of the Participant Provider Agreement; (ii) known by Provider prior to disclosure by ACO; (iii) lawfully obtained by Provider from a third-party source not subject to legal or contractual confidentiality obligations with respect to such information; (iv) developed by Provider independently of any such disclosure by ACO; or (v) readily ascertainable from a commercially available product of ACO.

(b)            ACO’s Confidential Information shall be and remain the sole property of ACO.  Provider shall not, and shall ensure that Provider Clinicians do not, use any of ACO’s Confidential Information for any purpose not expressly permitted by the Participant Provider Agreement, or disclose ACO’s Confidential Information to any person or entity (other than Provider’s attorneys, accountants, or consultants who agree to maintain the confidentiality of such information) without the prior written consent of ACO unless and only to the extent such disclosure is required by law, subpoena or legal process.  Provider shall cause each Provider Clinician to protect ACO’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Provider protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. 

(c)            Provider and each Provider Clinician shall return to ACO or destroy (and confirm such destruction in writing, including via email) all of ACO’s Confidential Information and all copies thereof in Provider’s or such Provider Clinician’s possession or control, and permanently erase all electronic copies of such ACO’s Confidential Information, promptly upon the written request of ACO, or the termination or expiration of the Participant Provider Agreement, other than electronic copies saved on backup storage not utilized in the operations of Provider or the Provider Clinician; provided, that, all Confidential Information so retained will continue to be subject to the confidentiality provisions set forth herein.

(d)            This Section shall survive the expiration or termination of the Participant Provider Agreement.

4.5.          Provider’s Confidential Information.

(a)            “Provider’s Confidential Information” means the Participant Provider Agreement and any information related to the past, current or proposed operations, financial statements or reports, or services of Provider that Provider discloses or otherwise makes available in any manner to either ACO or any of its affiliates, or to which ACO or any of its affiliates may gain access in the performance of its obligations under the Participant Provider Agreement, or that either ACO or any of its affiliates knows or has reason to know is confidential information of Provider, whether such information is disclosed orally, visually or in writing, and whether or not bearing any legend or marking indicating that such information is confidential, including any information, records and proceedings of Provider’s committees, peer review bodies, quality committees and other committees or bodies charged with the evaluation and improvement of the quality of care.  Provider’s Confidential Information shall not include information that is: (i) or becomes part of the public domain without violation of the Participant Provider Agreement; (ii) known by ACO prior to disclosure by Provider; (iii) lawfully obtained by ACO from a third-party source not subject to legal or contractual confidentiality obligations with respect to such information; (iv) developed by ACO independently of any such disclosure by Provider; or (v) readily ascertainable from a commercially available product.

(b)            Provider’s Confidential Information shall be and remain the sole property of Provider.  ACO shall not, and shall ensure that ACO or its affiliates do not, use any of Provider’s Confidential Information for any purpose not expressly permitted by the Participant Provider Agreement, or disclose Provider’s Confidential Information to any person or entity (other than ACO’s attorneys, accountants, or consultants who agree to maintain the confidentiality of such information) without the prior written consent of Provider unless and only to the extent such disclosure is required by law, subpoena or legal process.  ACO shall cause and its affiliates to protect Provider’s Confidential Information from unauthorized use, access, or disclosure in the same manner as ACO protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

(c)            ACO and its affiliates shall return to Provider or destroy (and confirm such destruction in writing, including via email)  all of Provider’s Confidential Information and all copies thereof in ACO’s or its affiliates’ possession or control, and permanently erase all electronic copies of such Provider’s Confidential Information, promptly upon the written request of Provider, or the termination or expiration of the Participant Provider Agreement, other than electronic copies saved on backup storage not utilized in the operations of ACO; provided, that, all Confidential Information so retained will continue to be subject to the confidentiality provisions set forth herein.

(d)            Subject to ACO’s limited continuing use set forth in Section 2.4, as between Provider and ACO, Provider’s Confidential Information includes any and all health care data belonging to or generated by Provider and Provider Clinicians, including without limitation medical record data, claim submission data and population health management-related data, whether or not generated pursuant to or incident to professional services.

(e)            This Section 4.5 shall survive the expiration or termination of the Participant Provider Agreement.

4.6.          Disclosure of Agreement.  Notwithstanding Sections 4.4 and 4.5 above, ACO or Provider may disclose the provisions of the Participant Provider Agreement to any person or entity without the prior written consent of the other Party to the extent such disclosure is requested or required by fiscal intermediaries, public agencies or commissions with governmental powers and duties related to disclosure of information that have the right to compel disclosure of such information.  Either Party may also disclose all or a portion of the Participant Provider Agreement to Florence. 

4.7.          Waiver.  No delay or failure to require performance of any provision of the Participant Provider Agreement shall constitute a waiver of the performance of such provision or any other instance.  Any waiver granted by a Party must be in writing, and shall apply solely to the specific instance expressly stated.  A waiver of any term or condition of the Participant Provider Agreement shall not be construed as a waiver of any other terms and conditions of the Participant Provider Agreement, nor shall any waiver constitute a continuing waiver.

4.8.          Successors and Assigns.  The Participant Provider Agreement is entered into by ACO in reliance on the professional and administrative skills of Provider and Provider Clinicians.  Provider shall be solely responsible for providing services and otherwise fulfilling the terms of the Participant Provider Agreement through the services of the Provider Clinicians, except as specifically set forth in the Participant Provider Agreement.  Provider may not assign or subcontract any of its rights, interests, duties, or obligations under the Participant Provider Agreement without the prior written consent of ACO, which consent may be given or withheld in ACO’s sole discretion, and any attempted or purported assignment in violation of this Section shall be void.  ACO may, without the prior written consent of Provider, subcontract any or all of its duties or obligations hereunder to Florence, provided that ACO remains liable for each such subcontracted duty or obligation.  Subject to the foregoing, the Participant Provider Agreement shall be binding on and shall inure to the benefit of ACO and its respective heirs, successors, assigns and representatives.

4.9.          Force Majeure.  No Party shall be liable for nonperformance, defective performance or late performance of any of its obligations under the Participant Provider Agreement to the extent and for such periods of time as such nonperformance, defective performance or late performance is due to reasons outside such Party’s control, including acts of God, war (declared or undeclared), terrorism, action of any governmental authority, civil disturbances, riots, revolutions, vandalism, accidents, fire, floods, explosions, sabotage, nuclear incidents, lightning, weather, earthquakes, storms, sinkholes, epidemics, failure of transportation infrastructure, disruption of public utilities, supply chain interruptions, information systems interruptions or failures, breakdown of machinery or strikes (or similar nonperformance, defective performance or late performance of employees, suppliers or subcontractors); provided, however, that in any such event, each Party shall use its good faith efforts to perform its duties and obligations under the Participant Provider Agreement.

4.10.       Record Maintenance.  Each Party shall maintain, for such periods as required by applicable law, such records and provide such information to the other Party as is reasonably required to effect the terms of the Participant Provider Agreement.  All records, books, and papers of a Party pertaining to Beneficiaries, as well as a Party’s office facilities, shall be open to inspection by the other Party and authorized state and federal authorities for purposes of quality assurance and utilization review and as otherwise required by state and federal laws and the ACO REACH Model.  Such disclosure shall be subject to and limited by all pertinent state and federal laws relating to the privacy and confidentiality of patient records.

4.11.       Meaning of Certain Words.  Wherever the context may require, any pronouns used in the Participant Provider Agreement shall include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns shall include the plural and vice versa.  Unless otherwise specified, “days” shall be considered “calendar days” and “months” shall be considered “calendar months” in the Participant Provider Agreement and its Exhibits and attachments.

4.12.       Third Party Beneficiaries.  Except as provided below in this Section 4.12, the Participant Provider Agreement shall not confer or be construed to confer any rights or benefits to any person or entity other than the Parties.  Notwithstanding the foregoing, and despite the fact that Florence is not a party to the Participant Provider Agreement, Florence is an intended third party beneficiary of Sections 3.2(b), and may enforce the terms thereof against Provider.

4.13.   Severability.  If any provision of the Participant Provider Agreement, in whole or in part, or the application of any provision, in whole or in part, is determined to be illegal, invalid or unenforceable by a court of competent jurisdiction, such provision, or part of such provision, shall be severed from the Participant Provider Agreement.  The illegality, invalidity or unenforceability of any provision, or part of any provision, of the Participant Provider Agreement shall have no effect on the remainder of the Participant Provider Agreement, which shall continue in full force and effect.

4.14.   Representations.  Each Party represents with respect to itself that (i) no representation or promise not expressly contained in the Participant Provider Agreement has been made by the other Party or by the other Party’s agents, employees, representatives or attorneys; (ii) the Participant Provider Agreement is not being entered into on the basis of, or in reliance on, any promise or representation, express or implied, other than such as are set forth expressly in the Participant Provider Agreement; (iii) such Party has been represented by legal counsel of Party’s own choice; (iv) the execution and delivery of the Participant Provider Agreement has been duly approved by all necessary action on the part of such Party, including approval by such Party’s governing body, if necessary; (v) the signatory to the Participant Provider Agreement on behalf of such Party has the power and authority to execute and deliver the Participant Provider Agreement on behalf of such Party; and (vi) upon execution and delivery of the Participant Provider Agreement by such Party’s signatory, the Participant Provider Agreement will constitute a valid and legally binding obligation of such Party, enforceable against such Party in accordance with its terms.

Last revised May 30, 2023