Mulebriar Publishes Redacted DPC Agreement

The Mulebriar organization has just released a redacted copy of a Direct Primary Care contract (DPC) of an organization that recently touted on social media they were the largest DPC provider in the United States.

Social media members were astounded and posted “congrats” and “would like to learn more” comments.

To date no response has been posted by the “country’s largest DPC provider.”

In an unusual weekend press release, Molly Mulebriar states “The public has a right to know. Claiming to be one of the largest DPC providers no one has ever heard of creates interest in learning more. Our organization is committed to full transparency as it is always in the consumers best interest to be fully informed.” 

REDACTED DPC AGREEMENT:

 

AGREEMENT FOR MEMBER COVERAGE

This Agreement is entered into between ——————-  (“Physician”), and
——————-, a ———— limited liability company, to be ———————– (the “Effective Date”).

RECITALS

WHEREAS, —————–arranges for the provision of medical services to patients thatparticipate in ——————–‘s membership program (the “Members”);

WHEREAS, Physician is qualified to provide medical services to the Members;

WHEREAS, ——————- desires to contract with Physician to make certain medical
services available to the Members; and

WHEREAS, Physician desires to contract with ——————— to provide medical services to
the Members;

NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties
agree as follows:

1. SPECIFIC DUTIES OF PHYSICIAN

1.1. Licensure. Physician is and at all times during the term hereof shall remain, duly
licensed, registered and in good standing under the laws of the State of —————to
engage in the practice of medicine and to administer and prescribe controlled
substances. Physician warrants that Physician’s license to practice medicine and
certificate to prescribe in the State of ———— or in any other jurisdiction has never
been denied, terminated, suspended, probated, revoked, voluntarily relinquished
under threat of disciplinary action.

1.2. Services. Physician agrees to provide the services identified on Exhibit A (the
“Services”), attached hereto and incorporated herein by reference, in the manner
provided for in this Agreement, and to be available with respect to all Members in
accordance with this Agreement.

1.3. Maintenance of Medical Records. Physician shall make timely updates to their clinic
managed electronic medical record with appropriate care notices and make available
to ——————– with reasonable notice. Physician will be responsible for validating
membership via Practice Fusion to determine active status of membership.

1.4. Facilities. Physician will provide the Services at a location maintained by Physician
at Physician’s expense.

1.5. Devotion of Time. Physician shall devote such time to the performance of
Physician’s duties under this Agreement as is reasonably necessary for satisfactory
performance of such duties.

1.6. Vacation. Physician shall provide an appropriate substitute physician or physician
extender when on vacation or leave.

1.7. Insurance.

1.7.1. Malpractice Insurance. Physician will purchase and maintain claims made
professional liability insurance in the minimum amount of $200,000 for any
single occurrence and $600,000 in the aggregate, for all claims in any one
year. Physician will notify ———————- immediately in the event
Physician’s malpractice insurance is canceled or not renewed. Physician
further agrees to provide evidence of the above coverage to ——————– by
providing ———————— with certificates of insurance.

1.7.2. “Tail” Coverage.

Upon the termination or expiration of this Agreement, for
the policy or policies obtained pursuant to Section 1.6.1, Physician shall
either (a) purchase an unlimited reporting endorsement or extended coverage
policy (i.e. “tail” coverage) in the amount of the prior policy covering all acts
or occurrences during the term of this Agreement as to which claims may
still be asserted, or (b) continue in full force and effect the same level of
liability insurance coverage on a claims made basis until the longest statute
of limitations for professional liability for acts committed has expired
(recognizing that the statute of limitations for minors is tolled until they
reach the age of majority).

1.8. Indemnity.

PHYSICIAN AGREES TO INDEMNIFY, DEFEND, AND HOLD
HARMLESS HEALTHCARE2U WITH RESPECT TO ANY LIABILITY
ARISING OUT OF ANY ACT OR OMISSION BY PHYSICIAN OR THIS
AGREEMENT, EXCEPT FOR ANY LIABILITY DUE TO
——————–‘S SOLE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.

1.9. Physician’s Responsibilities with Respect to Members. When providing the Services
to the Members, Physician shall:

1.9.1. Provide the necessary medical services in a manner so that the medical
needs of each Member are met consistent with this Agreement.

1.9.2. Be cognizant of the manner in which Members are received, the efforts
to meet their needs, and other aspects of courtesy, compassion and
sound nursing and medical care for every Member;

1.9.3. Render services which are consistent with usual and customary medical
community standards; and

1.9.4. Cooperate with ——————— in the resolution of any Member
complaints arising out of the services provided hereunder.

1.9.5. Notwithstanding anything contained herein to the contrary, no rule or
regulation contained in this Agreement shall operate to delay medical treatment
when immediate attention is required. The parties acknowledge the primary purpose
of this Agreement is to make medical services available to ———————-‘s
Members.

1.10. Notice to ————————- of Investigation or Audit. Physician agrees to notify
——————— in writing within five (5) calendar days of (a) receipt of notice of the
commencement of any investigation into (or regulatory action involving)
Physician’s practice, medical license, or registration to provide controlled
substances; (b) receipt of notice of any investigation or audit being conducted by the
U.S. Department of Health & Human Services (“HHS”), an entity that conducts
investigations or audits through a contract with HHS, including but not limited to
Recovery Audit Contractors or Zone Program Integrity Contractors, or any other
governmental agency; or (iii) loss of any insurance coverage required hereunder.

2. TERM AND TERMINATION

2.1. Term. This Agreement is for a term of twelve (12) months commencing on the
Effective Date (the “Initial Term”).

2.2. Automatic Renewal. At the end of the term described in Section 2.1, this Agreement
shall be automatically renewed for successive terms of twelve (12) months unless
one party notifies the other on or before ninety (90) days prior to the end of the then
current term, in writing, of its intent to terminate.

2.3. Termination Without Cause. Either party shall have the right to terminate this
Agreement, in its sole discretion and without cause, upon thirty (30) days prior
written notice to the other party. Upon or after the giving of notice of termination
without cause by ———————,—————— shall specifically have the right to
terminate the active services of Physician under this Agreement and to pay
Physician the compensation due hereunder for the duration of the termination notice
period. Physician agrees that if termination is initiated by physician, then physician
agrees to continue servicing ————————— members through a transision of no
longer than (60) days,

2.4. Termination Upon Mutual Consent. This Agreement may be terminated at any time
by mutual written agreement of the parties.

2.5. Termination for Default. If either party defaults in the performance of its obligations
(including compliance with any covenants) under this Agreement and such default is
not cured within thirty (30) days of the receipt of written notice thereof, then the
non-defaulting party shall have the right (in addition to any other rights it may have)
by further written notice to terminate this Agreement on any future date not less than
ten (10) days from the date of such further notice. This provision shall not constitute
an election of remedies by the terminating party or liquidated damages to the
terminating party, and the terminating party shall have and retain all rights to
damages at law and rights to equitable relief in the event of breach by the defaulting
per’

2.6. Termination by —————- for Cause. —————– shall have the right, in its
sole discretion, to immediately terminate this Agreement upon the occurrence of any
of the following:

2.6.1. Failure by Physician to meet the qualifications required of Physician
hereunder;

2.6.2. Loss or failure by Physician to provide evidence of liability insurance
coverage as required herein;

2.6.3. Suspension, cessation or loss of Physician’s (i) qualifications to practice
medicine in the State of ————–; (ii) state or federal authorization to
administer or prescribe controlled substances;

2.6.4. Reasonable determination by ——————–  that Member health or
safety is in imminent and serious danger from Physician’s actions or
inactions;

2.6.5. Reasonable determination by ————————- that Physician has caused
material harm to the business reputation of ———————— ;

2.6.6. Failure by Physician to cooperate with ————————;

2.6.7. Conviction of Physician of a felony;

2.6.8. Permanent disability (ill health or other disability) of Physician which
prevents his or her continued practice of medicine as contemplated by
this Agreement; or

2.6.9. Death of Physician.

2.7. Post-Termination Obligations. The termination of this Agreement shall not relieve either
party of any obligation pursuant to this Agreement which arose on or before the date of
termination, and those sections of this Agreement which by their terms extend beyond
termination or expiration of this Agreement shall survive and continue in full force and
effect after the expiration or termination of this Agreement.

3. COMPENSATION AND POTENTIAL EMPLOYMENT

3.1. Compensation.

3.1.1. Retainer. —————————- shall pay Physician a retainer fee in the amount of
$—————- per month.

3.1.2. Additional Compensation. Once a member chooses Physician as their
primary care physician during the sign up process and has successfully paid their
membership fees, ——————— will begin to pay Physician $3 each month the
member continues to pay their membership. Once Physician has begun providing
Services for a member, ————– shall pay Physician a membership fee
ranging from $6 to $12 depending on the selling source of the member.
Payments received prior to the 15th of each month, will be included on that
months physician compensation. If payment is received after the 15th of each
month, the physician compensation will be paid the following month.

3.2. Compensation Payable. Upon termination of this Agreement, Physician shall be
entitled to receive only the compensation accrued but unpaid as of the date of
termination and shall not be entitled to additional compensation except as expressly
provided in this Agreement.

3.3. First Right of Refusal. Physician shall have first right of refusal to serve as a
physician in any —————– clinic or facility that ——————- operates, in its
sole discretion, may or may not open in ———————— or the surrounding
area. This first right of refusal ends upon termination, expiration or non-renewal of
this Agreement.

4. CONFIDENTIALITY

4.1. Agreement. Physician agrees to keep this Agreement and its contents confidential
and shall not disclose this Agreement or its contents to any third party, other than
Physician’s attorneys, accountants, or other engaged third parties, unless required by
law, without the written consent of the ——————-. ——————agrees to keep
this Agreement and its contents confidential and shall not disclose this Agreement or
its contents to any third party, other than its attorneys, accountants, or other engaged
third parties, unless required by law, without the written consent of the Physician.

4.2. Proprietary Information. Physician acknowledges that in connection with the
performance of the services under this Agreement, Physician will be acquiring and
making use of certain confidential information and trade secrets of ———————–
which may include management reports, financial statements, internal memoranda,
reports, Member and customer lists, confidential technology and other materials,
records and/or information of a proprietary nature (“Confidential Information”).
Therefore, in order to protect the Confidential Information, Physician shall not after
the date hereof use the Confidential Information except in connection with the
performance of the services pursuant to this Agreement, or divulge the Confidential
Information to any third party, unless ——————– consents in writing or such use
or divulgence or disclosure is required by law. In the event Physician receives a
request or demand for the disclosure of Confidential Information, Physician, upon
receiving such request or demand, shall immediately provide written notice to
———————of such request or demand, including a copy of any written element of
such request or demand. Upon termination of this Agreement, Physician will not
take or retain, without prior written authorization from ———————–, any papers,
Member lists, fee books, Member records, files, or other documents or copies
thereof or other Confidential Information of any kind belonging to —————————
pertaining to Members, business, sales, financial condition, or products of
————————–. Without limiting other possible remedies for the breach of this
covenant, the parties agree that immediate injunctive or other equitable relief shall
be available to enforce this covenant, such relief to be without the necessity of
posting a bond, cash or otherwise.

5. NON-COMPETE

5.1 Post-Termination Solicitation of ———————-Members. As a material inducement
to ———————— to enter into this Agreement and to pay to Physician the
compensation stated herein, and in consideration of ———————–‘s obligation to
provide the Confidential Information to Physician, Physician covenants and agrees
during the term and for a period of one (1) year after this Agreement terminates,
expires, or is not renewed, that Physician shall not solicit or endeavor to entice away
the Members from ————————-. For the purposes of Article 5, “Members” means
persons who received services from Physician or any employee or independent
contractor of Physician at any time during the Initial Term of any renewal term of
this Agreement.

5.2. Member List. ———————-shall not deny Physician access to a list of Members
whom Physician had seen or treated within one (1) year of termination of the
Agreement.

5.3. Access to Medical Records. For a reasonable fee and at Physician’s sole expense,
Physician shall have access to and copies of medical records of any Members that
have authorized Physician to access and have copies of their medical records. The
amount of the fee shall be the fee amount established by ———— Board of Medical
Examiners under Section ————–, Occupations Code. Access to a list of Members
or to Members’ medical records after termination of the Agreement shall not require
such list or records to be provided in a format different than that by which such
records are maintained, except by mutual consent of the parties to the Agreement.

5.4. Continued Treatment Permitted in Certain Situations. Physician will not be
prohibited from providing continuing care and treatment to a specific Member or
Members even after the Agreement has been terminated.

5.5. Injunctive Relief. Without limiting other possible remedies for the breach of the
covenants of this Article 5, the parties agree that injunctive or other equitable relief
shall be available to enforce the covenants of this Article 5, such relief to be without
the necessity of posting a bond, cash or otherwise.

5.6. Buy-Out Option. Notwithstanding anything to the contrary herein, ——————–
shall have no further right to enforce the provisions of this Article 5 against Doctor
if Doctor elects to pay to ——————– equal to $300,000 per 1,000 patients which
both parties hereto agree is a reasonable amount for Doctor to purchase protection
from ——————–‘s ability to enforce the provisions of this Article 5.

6. RECORDS

6.1. Medical Records and Reports. In performing the services hereunder, Physician
agrees that Physician may generate medical records and reports pertaining to
Members treated, which records and reports shall be kept in the format as
determined by the physician. All such records and reports shall be and remain the
property of the physician. The physician will provide copies of the medical records
on a physician to physician basis as appropriate. The parties recognize that the
patient has the legal right to have access to his or her medical records, and that such
records are confidential and privileged under state and federal law.

6.2. Access to Books and Records. Each party agrees to comply with the following
requirements governing the maintenance of documentation to verify the cost of
services rendered under this Agreement:

6.2.1. Availability of Records. Until the expiration of four (4) years after the
furnishing of services pursuant to this Agreement, each party shall make
available, upon written request of the Secretary of HHS (the
“Secretary”), or upon request of the Comptroller General of the United
States, or any of their duly authorized representatives, this Agreement,
and books, documents, and records of such party that are necessary to
certify the nature and extent of such costs.

6.2.2. Subcontracts. If a party carries out any of the duties of this Agreement
through a subcontract, with a value or cost of Ten Thousand Dollars
($10,000.00) or more over a twelve (12) month period, with a related
organization, such subcontract shall contain a clause to the effect that,
until the expiration of four (4) years after the furnishing of such services
pursuant to such subcontract, the related organization shall make
available, upon written request of the Secretary, or upon request of the
Comptroller General of the United States, or any of their duly authorized
representatives, the subcontract, and books, documents, and records of
such organization that are necessary to verify the nature and extent of
such costs.

6.2.3. Notice to —————–. If Physician receives a request or demand to
disclose any books, documents or records relevant to this Agreement for
the purpose of an audit or investigation, Physician shall immediately (and
no later than two (2) business days after receipt of such request or
demand) notify ——————– in writing of the nature and scope of such
request or demand. Physician shall make available to ———————,
upon written request of ———————, all such books, documents or
records.

7. RELATIONSHIP OF PARTIES

7.1. Independent Contractor Status. In performing his or her responsibilities pursuant to
this Agreement, it is understood and agreed that Physician is at all times acting as an
independent contractor and that Physician is not a partner, joint venturer, or
employee of —————–. —————— shall neither have nor exercise any
control or direction over the medical judgment of Physician nor over the methods or
manner by which Physician performs his or her work and functions under this
Agreement as they relate to the diagnosis or treatment of any disease, disorder,
physical deformity, or injury. Nothing in this Agreement shall alter or is intended to
alter the physician-patient relationship. The interest and responsibility of
——————-is to ensure that the services offered at ——————- and covered by
this Agreement shall be performed and rendered in a competent, efficient, and
satisfactory manner. It is expressly agreed that Physician will not for any purpose be
deemed to be the agent, ostensible or apparent agent, or servant of ————————-,
and the parties agree to take any and all such action as may be reasonably requested
by ————————– to inform the public, Members of ———————-, and others
utilizing the professional services of Physician of such fact.

7.2. Compensation, Fringe Benefits, Taxes. Physician hereby acknowledges and agrees
that: (i) Physician shall not be entitled to any salary from ————————– or to any
employee benefits provided by ————————-, including, but not limited to
disability, life insurance, pension and annuity benefits, educational allowances,
professional membership dues, and sick, holiday, or vacation pay; (ii) ———————–
will not withhold income taxes or pay Social Security or unemployment taxes for
Physician, such being the exclusive responsibility of the Physician, which Physician
agrees to discharge fully; and (iii) Physician shall indemnify and hold harmless
———————-against any and all liability related to withholding or failure to
withhold income taxes or paying or not paying Social Security or unemployment
taxes for Physician. If the Internal Revenue Service or any other governmental
agency challenges the independent contractor status of Physician, the parties agree
that Physician and ——————-shall have the right to participate in any discussion
or negotiation that occurs in the course of such challenge.

8. CORPORATE PRACTICE OF MEDICINE

Nothing contained herein is intended to constitute the use of a medical license for the
practice of medicine by anyone other than a licensed physician, aid ——————– or any
other business organization to practice medicine when in fact such business organization is
not licensed to practice medicine, or do any other act or create any other arrangements in
violation of the —————————-Act. The parties specifically acknowledge the
following:

8.1. This Agreement contemplates nothing more than the delivery of medical services by
Physician to ———————– Members. Physician shall remain entirely independent of
——————— as to the diagnosis and treatment of patients and all of Physician’s
other medical, professional and ethical affairs. Physician shall accept full
responsibility to the Members for the nature and character of all professional
medical services rendered.

8.2. There shall be no sharing of profits between Physician and ————————

.
8.3. ———————– claims no right, title or interest in any of the assets of Physician, none
of which assets shall be used for the benefit of —————————

9. MISCELLANEOUS

9.1. Notices. Any notices to be given hereunder by either party to the other may be
effected either by personal delivery in writing or by mail, registered or certified,
postage prepaid, with return receipt requested, addressed as follows:

9.2. Governing Law. The validity of this Agreement and of any of its term and
provisions, as well as the rights and duties of the parties hereunder, shall be
governed by the laws of the State of ——————-

.
9.3. Venue. Venue for any dispute arising hereunder shall be in court of appropriate
jurisdiction in ——————————-.

9.4. Attorney’s Fees. If any action at law or in equity is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to reasonable
attorney’s fees in addition to any other relief to which he or she may be entitled.

9.5. Amendment. This Agreement may be amended only by the mutual agreement of the
parties hereto in a writing to be attached to and incorporated into this Agreement.

9.6. Assignment. Neither this Agreement nor any duties or obligations hereunder shall be
assignable by Physician without the prior written consent of ——————–. In the
event of an assignment by Physician to which ————————- has consented, the
assignee or their legal representative shall agree in writing with ———————– to
personally assume, perform, and be bound by the covenants, obligations and
agreements contained herein.

9.7. Successors and Assigns. Subject to the provision regarding assignment, this
Agreement shall be binding on to heirs, executors, administrators, legal
representatives, successors, and assigns of the respective parties.

9.8. Entire Agreement. This Agreement supersedes any and all other agreements, either
oral or in writing, between the parties hereto with respect to the subject matter
hereof, and no other agreement, statement or promise relating to the subject matter
of this Agreement which is not contained herein shall be valid or binding.

9.9. Severability. In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision
hereof and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.

9.10. Conformance with Law. The parties recognize that this Agreement is subject to, and
agree to comply with, applicable local, state, and federal statutes, rules and
regulations, including without limitation any state and federal Medicare and
Medicaid fraud and abuse laws, the ———————— Act, and the ———
Health & Safety Code. Physician shall comply with all laws, rules and regulations
relating to the confidentiality of patient information, including the applicable
provisions of ————-law and the privacy regulations promulgated pursuant to Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”). Any provisions of
applicable statutes, rules, or regulations that invalidate any term of this Agreement,
that are inconsistent with any term of this Agreement, or that would cause one or
both of the parties hereto to be in violation of law shall be deemed to have
superseded the terms of this Agreement; provided, however, that the parties shall use
their best efforts to accommodate the terms and intent of this Agreement to the
greatest extent possible consistent with the requirements of applicable statutes, rules
and regulations and negotiate in good faith toward amendment of this Agreement in
such respect. In addition, in the event the legal counsel of Physician or
—————————, in its reasonable opinion, determines that this Agreement or any
material provision of this Agreement violates any federal or state law, rule or
regulation, the parties shall negotiate in good faith to amend this Agreement or the
relevant provision thereof to remedy such violation in a manner that will not be
inconsistent with the intent of the parties or such provision. If the parties cannot
reach an agreement on such amendment, however, then either party may terminate
this Agreement immediately. Section 9.10 shall survive the termination of this
Agreement.

9.11. Intent. Notwithstanding any unanticipated effect of any of the provisions herein,
neither party intends to violate the Medicare and Medicaid fraud and abuse or antikickback
provisions (including 42 U.S.C. §§ 1395nn and 1396 and 42 U.S.C. §
1320a-7b); the ————–illegal remuneration statute, ————— Occupations Code,
§§ 102.001-102.011; the ————–Medical Practice Act, ————— Occupations Code,
Title 3, Subtitle B; or the —————–Civil Medicaid Fraud Act, —————— Human Resources
Code, Chapter 36.

EXHIBIT A

Services

Physician consents and agrees as follows:

A. ———————- may use Physician’s name in its literature and advertisements.

B. ——————— may place literature for membership enrollment and other appropriate
branding material at the receptionist counter of Physician’s place of business, as agreed to
by both parties. Such literature and branding material will be provided by and paid for by
—————————.

C. ——————– may place —————— signage showing that Physician’s practice is a
———————— partner. Such signage will be in view of the public, including on the outside
of the office or on the office’s sign. Such signage will be provided by and paid for by
————————. Location and appearance of such signage will be agreed to by both parties.

D. Physician agrees to see Members between the ages of two (2) and sixty-five (65) years.

E. Physician agrees to be available, on call, to Members twenty-four (24) hours a day, seven
days a week.

F. Physician agrees to provide same-day service for Member minor emergencies except in
extraordinary circumstances, in which case Physician will see the Member the following
day.

G. In addition, Physician agrees to perform, at a minimum, the following services, as
necessary:

– Well woman exams;
– Annual physical exams and blood draws for labs;
– Children’s vaccines;
– Management of most chronic diseases, including but not limited to hypertension,
diabetes II, obesity, hypothyroidism, hypotestosteronism, menopause, and high
cholesterol;
– General psychiatry services, including but not limited to anxiety disorders,
depression, uncomplicated bipolar d/o, ADD, and ADHD;
– Weight loss care and consultation;
– Stress management care and consultation;
– EKG interpretation; and Acute care services, including but not limited to care for
minor trauma, minor skin laceration repair, skin infections, I+D of simple skin
abscesses, ear lavage, and gout.

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