Settlement ends ambulance company's lawsuit against Jersey City

TERMS

1. EMS PATUENT TRANSPORT GRID PROTOCOL FOR JERSEY CITY:

a. Beginning on July 1, 2016, JCMC will utilize a grid-based protocol to identify the

closest appropriate facility for all EMS patient transports within Jersey City, HJ. .(the "Grid

Protocol"). This Grid Protocol will be used for all EMS patient transports whether such

transport results from a BLS or ALS designated call and shall include, but not be limited to,

transports performed pursuant to the BLS Contract. JCMC will utilize the grid annexed hereto

as Exhibit A. As set forth on the attached grid,' the Grid Protocol separates the City of Jersey

City into separate geographic zones, based on the closest medical facility. Except in cases

involving Level 2 trauma, sexual assault, physician directive, where the patient chooses

otherwise, or where JCMC's EMS destination software chooses otherwise, patient pick-ups

originating from a designated grid zone will be transported by JCMC to the medical facility

identified on the grid for that geographic grid.zone. EMS patient pick-ups from grid zones with

overlapping designated medical facilities ("Overlap Zones") shall be brought to the closest

facility as determined by GPS. To the extent permissible under the Health Insurance Portability

and Accountability Act ("HIPAA"), GPS transport- determinations shall be documented on the

monthly reports described in Section 2, infra. The Grid Protocol will be utilized for the duration


of the BLS Contract (including . extensions thereto) or until McCabe makes its election, to

terminate the Grid Protocol pursuant to Section l(d), infra, or by mutual agreement of the

Parties, whichever is earliest.. Should the Grid Protocol raise a bona fide legal compliance issue

that cannot be resolved, the Parties will negotiate a mutually agreeable alternative transport

protocol. ? ' .

i. All three medical facilities designated in the Grid Protocol currently possess the

specialties to treat patients with symptoms of stroke or myocardial infarction. If

any of those facilities should subsequently lose the specialty to treat such

symptom(s), then transports to that facility for such symptom(s) will be an

exception to the Grid Protocol.

b, JCMC warrants and represents that, during' the course of its training of JCMC

EMS personnel, it will emphasize that, in asking patients if they wish to be transported to a

particular facility, the EMS personnel shall not take any action, or make any statements, to

influence or persuade a patient's choice. Should it be brought to JCMC's attention that its EMS

personnel are engaging in such conduct, JCMC will take appropriate corrective action.

c. The term "trauma", as used herein, means a patient whose condition requires

transport to a Level 2 trauma center m accordance with Centers for Disease Control Guidelines

relating to the National Trauma Triage Protocol, or other Guideline recognized by the .State of

New Jersey.

d. In conjunction with the use of the Grid Protocol, JCMC will incorporate EMS

destination software (the "EMS Software") into the Grid Protocol. This EMS Software will

provide real time trafflc/road conditions, as well as detailed information concerning EMS pick-
up locations. Upon becoming fully operational, in the event that the destination software, based

on real-time traffic/road conditions, recommends that a patient be transported to a medical

facility that is not the medical facility identified on the geographic grid zone from where the

patient pick-up- originated, the medical facility recommended by the EMS Software shall be

utilized* This EMS Software shall not impact patient destination for cases involving trauma as

defined in paragraph l(c), sexual assault, physician directive or where the patient chooses

otherwise,

e. Within fourteen (14) days of the effective date of this Agreement, JCMC will

provide the City and McCabe with the details of the training materials to be used to train

employees on the new Grid Protocol. JCMC's employee trainiag shall include: (i) provisions for

the assessment and transport of trauma patients; (ii) proper protocol for physician directed

tFansports; (iii) proper protocQl for patient choice transports,; and (iv) proper protocol for

transports involving victims of sexual assault.

f. The initial six (6) month time period following the execution of the Agreement

(the "Initial Period") will serve as a trial period for Ifae Grid Protocol during which time JCMC

can continue training personnel and making necessary adjustments to the Grid Protocol, in

conjunction with feedback from the Parties herein. During the Initial Period, JCMC will also

87055 3.DOC

consult with the Parties in good faith, and in conjunction with feedback from the Auditor (as set

forth in Section 3, infra.), concerning: (i) the potential to re-designate some, or all of the Overlap

Zones; (ii) developing a method to document trauma b-ansport cases for review. During the

Initial Period the City, McCabe and/or CarePoint, or theu- respective software consultants may,

upon reasonable notice to JCMC, inspect and examine the EMS Software. After the Initial

Period, such mspection/examination may occur ifJCMC modifies or materially updates the EMS

Software.

g. After the Initial Period, should the percentage of patient drop-offs at Christ

Hospital relative to all patient drop-offs decrease by at least 10% on average over any (6) six

month period within the (12) twelve months following the Initial Period, McCabe may, at its

option, elect to have JCMC temiinate the Grid Protocol. In the event of such election, JCMC

shall revert back to the pre-Grid Protocol patient transport system utilized by JCMC, unless the

Parties mutually agree to an alternative transpojrt protocol. In the event fhat McCabe makes this

election, the remaining duties and obligations set forth in this Agreement, e^&., monthly reports,

JCMC's'quarterly reports to the Auditor, quarterly Audits, shall remain in full force and effect.

2. MONTHLY REPORTS:

a. Beginning wifh the month that this Agreement is executed, JCMC shall, on a

monthly basis, provide the Parties with monthly reports for each ALS and BLS emergency

patient transport originating in Jersey City, N.J. For each patient transport, to the extent

permitted under HIPAA, the monthly reports shall contain the data points and be in the format as

the sample report attached hereto as Exhibit B. JCMC shall provide these monthly reports for

the duration of the BLS Contract, including extensions thereof. These reports'shall be provided

to the Parties on a monthly basis, within ten (1 0) days after the close of a month. .

b. There shall be no audits of the monthly reports for patient transports for the year

2015, which were already provided to McCabe.

c. Any transport that was not to the closest facility designated in the Grid Protocol

will be deemed a "Fallout Transport".

3. EMS TRANSPORT AUDIT:

a. Simultaneously with fhe execution and delivery of this Agreement, JCMC shall

retain an independent auditor (the "Auditor") to monitor EMS transports within -Jersey City,

i'ncludiag transports performed pursuant to the current BLS Contract. Prior to commencing any

work under tills Agreement, the Auditor will be required to enter a Business Associate

Agreement with JCMC. The Auditor's fimction. shall include reviewing data provided by both

the ALS and BLS provider (JCMC) to monitor the emergency transport of patients. The services

provided by the Auditor shall be. those services set forth in Exhibit C hereto*

b. During the initial six (6) months of the Grid Protocol's use, JCMC will cause the

Auditor to conduct two (2) separate audits oftibie EMS transports: (i) at the conclusion of the

initial three (3) months of Grid Protocol use; and (ii) af the conclusion of the mitial six (6) month

time period of Grid Protocol use -(collectively, the "Initial Audits"). The results of the Initial

Audits, or any portion thereof, will only be disclosed to the extent pemiitted under HIPAA.

Such results will not be used by the City m assessing JCMC's performance under the BLS

Contract.

c. After the conclusion of the initial six (6) month time period, JCMC will cause the

Auditor to conduct audits of the EMS transports every tb:ee [3) months thereafter,, for the

duration of the BLS Contract (hereinafter, the "Duration Audits"). The results of the Duration

Audits will be reflected in a HIPAA-compliant report that may be used by the City in assessing

JCMC's performance under the BLS Contract. ' . ?

d. For each Initial and Duration Audit,, the Auditor may select, from the monthly

reports, individual- Fallout Transports to be reviewed by the Auditor (the "Selected

Transport(s)"). The number of .Fallout Transports to be reviewed "will be the minimum number

necessary to be statistically significant, e.g. by applying a 90% confidence level with a 5?/o+/-

confidence interval.

e. In addition, JCMC shall establish a reporting mechanism whereby the Parties may

designate from the monthly reports Fallout Transports up to 10 Fallout Transports per quarter to

be reviewed by the Auditor. The results-of those designated cases will-be included in the

Auditor's reports but will be for informational purposes only and will not count toward

establishing any percentage set forth in this Agreement, see e.g., Section. l(g), 5(a).

f. In performing its services for BLS and ALS Selected Transports, the Auditor shall

initially review the information, set forth in the monthly reports described in Section. 2 herein and

the quarterly reports and requested- information described in Section 4 herein, to monitor whether

the vendor's performance complies with the Grid Protocol set forth in. Section 1 of this

Agreement. As part of its services, the Auditor may request additional specified information

from JCMC, includuig available o'bjective documentation {e.g., tlie signature of the patient or

his/her family member) supporting the decision not to transport to the closest facility designated

in the Grid Protocol.

g. JCMC will establish a reporting mechanism for transport related patient/physician

complaints. In the event that JCMC receives a specific patient complaint, JCMC shall report

same to the Auditor, and the Auditor may, with the participation of JCMC, and consistent with.

HIPAA, contact the patients to investigate the complaint. Those instances shall be included in

the Auditor's reports. With respect to specific physician complaints concerning the location to

which a patient was transported, JCMG shall contact the physician to engage iu a 'peer to peer'

discussion of the complaint and take any necessary good faith action to resolve the issue.

h. The Auditor shall be O'Conco Health Consultants, located in Manasquan, New

Jersey ("O'Conco"). JCMC shall retain the Auditor on an annual basis. The City and JCMC

reserve the right to review the Auditor's performance and, if agreed by both of them (such

consent shall not be urffeasonably withheld), to change the Auditor at the conclusion of each

contract year. In the event that the Auditor is replaced, the audit scope of services shall not be

reduced, altered or limited, unless.agreed to by the Parties

i. The Auditor shall serve at a cost not to exceed $25,000 per year, for the life of the

BLS Contract (including extensions thereto), except that in Year 1, auditor will charge an

additional $10,000 "set up" fee. Cost of the audit shall be shared equally between JCMC and

McCabe. 'Payment of McCabe's share of the audit costs shall be guaranteed by CarePoint

JCMC shall provided copies of Auditor's invoices to McCabe and CarePomt containing

sufficient detail to confirm the accuracy and legitimacy of the charges. Payments shall be

provided within thirty (30) days of receipt. If payment is not made wlthiu thirty (30.) days of

receipt, JCMC shall provide McCabe/CarePoint with written notice and a reasonable opportunity

to cure. Thereafter, the Auditor may be terminated.

4. JCMC REPORTS TQ_AUDITOR:

a. JCMC shall provide the Auditor with quarterly reports sufficiently detailing, with

respect to each Selected Transport, the following infonnation: (a) Pick-up location by street

address & grid section; (b) Diagnosis at the scene; (c) Drop-off location (facility); (d) Payor

source; and (e) indicate whether the transport was designated BLS or ALS;

b. Each quarterly report supplied by JCMC shall also identify, for each Selected

Transport, the reason for said transport destination.

c. With respect to each Selected Transport, upon request by the Auditor, JCMC shall

provide the Auditor with additional requested information needed by the Auditor to perform

his/her function, including, but not limited to: (a) providing objective medical documentation

supporting the decision for the specific transport destination; (b) justification for why an EMS

unit (or its medical control) bypassed the closest appropriate facility (other than transports

designated as" a patient choice destination); and (c) for transports pursuant to patient choice,

ixifonnation confirming that the transport comported with the patient's request.

d. The BLS Contract shall remain in full force and effect to the.extent not effected

by this Agreement.

5. AUDITOR'S REPORTS TO CITY:

a. The Auditor shall issue HEPAA-compliant quarterly reports to the City. These

reports shall be limited to findings concerning the compliance of the EMS transports, i.e.,

whether the transports comply with the Grid Protocol. Moreover, with respect to BLS transports,

the reports shall detail whether the BLS vendor's perfomiance complied with Article IV of the

BLS Contract (e.g., patient transport requirements). With respect to instances of non-
compliance, if any, the reports shall include data/documentation to support the particular finding.

Should the reports, together with the audit results, show that JCMC's drop-offs, are correct in at

least 90% of the cases, then JCMC will be deemed to be compliant with the terms of Hie BLS

Contract between the City and JCMC and with this Agreement.

b. JCMC shall be afforded a reasonable opportunity to review .the Auditor's reports

with the City for the purpose of discussion, analysis or future corrective action,, if any, and to

cure any deficiencies noted by the auditor.

c, . The City may use the findings received as part of a Duration Audit to assess

JCMC's compliance with the BLS Contract. Failure ofJCMC to comply with the terms of this

Agreement or reasonably cooperate with the Auditor in the performance of its function shall,'.

after notice and a reasonable opportunity to cure, constitute a material breach of the BLS

Contract and sufficient grounds for terminating the BLS Contoact if it so chooses.

d. ' A copy of each Auditor's report shall be supplied to McCabe and CarePoint,

6. DISMISSAL Q1THE COMPLAINT:

a. Upon the execution and delivery of this Agreement, McCabe and CarePoint,

through their counsel shall execute and file a Stipulation of Dismissal, dismissing the Complaint

and all of the claims in the Lawsuit,.with prejudice and without costs.

7. CONFIDENTIALITY:

a. Except as required by law, the existence and terms of this Agreement are

confidential and shall not be disclosed or externally discussed by any Party. Notwithstanding the

foregoing, upon this Agreement being executed'by the Plaintiff and Defendants^ if an inquiry is-
made by the public or any news organization, the Parties may publicly state, in substance, that

-the above-named civil action that Plaintiffs filed against the Defendants has been settled, and that

they will have no comment on the terms of the settlement. The Parties may also disclose the

terms of this Agreement (i) to their respective attorneys, accountants, business associates, and

insurers, or as otherwise necessary for the preparation and filing of any income tax return or

similar filing or (ii) 'to enforce the terms of this Agreement. The parties -will not make any other

disclosures concerning the action or the'settlement terms except as required by law.

8. MUTUAL RELEASE:

a. In consideration of the undertakings of this. Agreement, -this mutual release,

McCabe's agreement to dismiss the Lawsuit, and other valuable consideration, the receipt and

sufficiency of which the Parties acknowledge, the Parties their parent companies, members,

affiliates, subsidiaries, du'ectors, officers, employees, heirs, agents and assigns hereby

completely and unconditionally release, acquit, and forever discharge each other from any and

all claims, potential claims, demands, manner 'of action and actions, cause and causes of action,

suits,-debts, liabilities, losses, damages, attorneys' fees, costs, expenses, judgments, settlements,

interest, fines, punitive damages and extra-contractual damages of whatever nature, in law or in

equity, .whether known or unknown, liquidated or unliquidated, accrued oi unaccmed, from the

begmning of time through the date hereof, that are related to^ or arising out of; (a) the Initial

?RFP process; (b) the Current KJFP process; (c) Jersey City's award of the BLS Contract to

JCMC; and (d) the claims asserted in the Lawsuit (collectively the "Released Items"),

K Nothing contained in this Section 9, or this Agreement, shall be construed to

prevent any of the Parties from: (i) instituting a legal proceeding to enforce the terms of this

Agreement; or (ii) asserting claims against each other arising out of third-party claims for

professional liability or violations of employment laws. The Parties expressly intend and agree

that the release contained herein shall not preclude any party from seeking to enforce the terms

of this Agreement.

9. NO ADMISSION OF WRONGDOING:

a. Any action taken or not taken by any Party in connection with this Agreement,

does not constitute and/or shall not be deemed to be an admission of fault or liability, such'fault

and liability being, expressly denied. Furthermore, the Parties agree that this Agreement does not

constitxfce an admission by any of them of any of the matters alleged m the Lawsuit or of any

violation by them of aay federal, state or local law, ordinance or regulation, or of any violation of

any policy or procedure, or of any liability or wrongdoing whatsoever. Neither this Agreement

nor anything in this Agreement shall be construed to be or shall be admissible in any proceeding

as evidence of liability or wrongdoing, except to the extent the proceeding or litigation is brought

to enforce or interpret the terms of this Agreement.

10. COUNTEBPARTS:

a. This Agreement may be executed in one or more duplicate counterparts, all of

which, when executed, shall be deemed to constitute one original. A facsimile or electronic

signature shall be accepted with. the same force and effect as that of an original,

11. SECTION HEADINGS:

a. Section headings contained in this Agreement are for convenience of reference

only and shall not affect the meaning of any provision herein.

12. SEVERABILITY:

a. Should any tenn or provision of this Agreement be declared illegal, invalid or

unenforceable by any court of competent jurisdiction, and .if such provision cannot be modified to

be enforceable, such provision shall immediately become null and void, leaving the remainder of

this Agreement in full force and effect. The language of all parts of this Agreement shall in all

cases be construed as a whole, according to its fair meaning, and not strictly for or against any of

the parties.

13. ENTIRE AGREEMENT:

a. This Agreement sets forth- the entire agreement between the parties hereto and

fully supersedes any and all prior and/or supplemental understandings, whether written or oral,

between the panics concerning the subject matter of this Agreement. The Plaintiff acknowledges

that it has not relied on any representations, promises or agreements of any kind made to them in

cormection with their decision to accept the terms of this- Agreement, except for the

' representations^ promises and agreements herein.

14. AMENDMENTS:

a. Any modification to this Agreement must be in writing and signed by all Parties.

15. GQVERNINGIAW:

a. This Agreement 'shall be governed by and conformed in accordance with the laws

of the State of New Jersey without regard to its conflict of laws provisions,

16. SUCCESSQKS AND ASSIGNS:

a. This Agreement shall be binding upon and inure to the benefit of the Parties'

respective successors and assigns.

17. CONSTRUCTION:

a. The language of'all parts of this Agreement shall be construed as a whole,

according to its fair meaning, and not strictly for or against any party. This Agreement was

drafted with input from all parties and no ambiguities shall be construed against any party.

18. AUTHORIZATION TO ACT:

a. Each person signing this Agreement is authorized to execute this Agreement on

their own behalf and on behalf of any person, marital community, or entity for which they have

signed the Agreement.

19. CO?UCT:

a. To the ex-tent of any conflict between this Agreement, .on the one hand, and the

BLS Contract or applicable law on the other hand, the latter shall control.

IN WITNESS WHEREOF, the Parties, by their duly authorized representatives, affix-
their signatures hereto:

McCabe Ambulance

Service, Inc.

Jersey City Medical Center

By: By:

Name: H. Mickey McCabe

Title: President

Date: July _, 2016

Name: Joseph F. Scott

Title: President & Chief Executive Officer

Date: July _?, 2016

CarePoinf Health Management

Associates, LLC

City of Jersey City

By:

Name: Gary S. Bryant

Title: Executive Vice President & Chief

Financial Officer

Date:' July ?, 2016

By:

Name:

Title:

Date: July _, 2016