EXHIBIT 2.6
SETTLEMENT AGREEMENT
This Settlement Agreement (Agreement) is entered into among the United States of America, acting through the United States Department of Justice and on behalf of the Office of Inspector General (OIG-HHS) of the Department of Health and Human Services (HHS) (collectively the United States); and Detroit Medical Center and Vanguard Health Systems, Inc. (hereafter collectively referred to as "the Parties"), through their authorized representatives.
RECITALS
A. Detroit Medical Center is a non-profit company that owns and operates eight hospitals and fifty outpatient facilities in Detroit. It is Detroit’s largest provider of hospital services to indigent patients, and its largest employer.
B. Vanguard Health Systems, Inc. (Vanguard) is a company headquartered in Nashville, Tennessee that owns and operates healthcare facilities in five states. Vanguard has entered into an agreement to purchase Detroit Medical Center’s facilities. Once the purchase is complete, Vanguard will assume Detroit Medical Center’s provider numbers and legal responsibility for its liabilities.
C. Between October 29, 2010 and December 8, 2010, Detroit Medical Center disclosed to the United States certain conduct that may have been unlawful. Specifically, Detroit Medical Center disclosed the following conduct (the Covered Conduct):
(1) Detroit Medical Center rented office space to a number of physicians without written and executed leases in effect for the entire term. The physicians at issue, and the time periods during which the physicians operated without written and executed leases, are listed in Attachment 1.
(2) Detroit Medical Center had compensation or other financial arrangements with a number of physicians who provided services to Detroit Medical Center where the parties’ arrangement was not memorialized in a written and executed contract for the full period of the arrangement. The physicians at issue, and the relevant time periods, are listed in Attachment 2.
(3) Detroit Medical Center had compensation, lease, or other financial arrangements with a number of physicians who provided services to Detroit Medical Center where the financial relationship may not have been consistent with fair market value and/or may have been commercially unreasonable. The physicians at issue, and the relevant time periods, are listed in Attachment 3.
(4) Between 2004 and 2010, Detroit Medical Center provided “business courtesies,” including tickets to sporting events, education events, charitable dinner events, and other meal and entertainment courtesies, to a number of physicians that were worth less than $2,000 per year but may have exceeded permissible limits.
(5) Detroit Medical Center provided signage and/or may have provided advertising and biographical materials for a number of physicians, on terms that may not have been commercially reasonable, fair market value terms. The physicians at issue, and the relevant time periods, are listed in Attachment 4.
(6) From January 1, 2007 through September 29, 2010, Detroit Medical Center submitted claims to Medicare and Medicaid using CPT codes 99201, 99203-5, 99211-15, 99220, 99223, 99231-33, 99239, 99243-44, and 99254 for certain physician evaluation and management services furnished by Detroit Medical Center’s employed physicians to Medicare, Medicaid, and Child Health Insurance Program beneficiaries, when available documentation did not support the level of service billed.
D. The United States contends that it has certain civil and administrative claims, as specified in paragraphs 2 and 3, below, against Detroit Medical Center arising out of the Covered Conduct.
E. This Agreement is neither an admission of any wrongdoing or liability by Detroit Medical Center nor a concession by the United States that its claims are not well founded.
F. To avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of the above claims, and in consideration of the mutual promises and obligations of this Settlement Agreement, Detroit Medical Center and Vanguard (collectively DMC) and the United States agree and covenant as follows:
TERMS AND CONDITIONS
1. DMC shall pay to the United States $30 million (the Settlement Amount) by electronic funds transfer pursuant to written instructions to be provided by the United States Attorney’s Office for the Eastern District of Michigan no later than five days after the Effective Date of this Agreement.
2. Subject to the exceptions in Paragraph 4 (concerning excluded claims) below, and conditioned upon DMC’s’s full payment of the Settlement Amount, the United States releases DMC, together with its subsidiaries and affiliates, from any civil or administrative monetary claim the United States has for the Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729-3733; the Civil Monetary Penalties Law, 42 U.S.C. § 1320a-7a; the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801-3812; the civil money penalty provisions of the Physician Self-Referral Law, 42 U.S.C. §§ 1395nn(g)(3) and (4); or the common law theories of payment by mistake, unjust enrichment, restitution, and fraud.
3. In consideration of the obligations of DMC in this Agreement, conditioned upon DMC’s full payment of the Settlement Amount, the OIG-HHS agrees to release and refrain from instituting, directing, or maintaining any administrative action against DMC seeking exclusion from Medicare, Medicaid, and other Federal health care programs (as defined in 42 U.S.C. § 1320a-7b(f)) under 42 U.S.C. § 1320a-7a (Civil Monetary Penalties Law) or 42 U.S.C. § 1320a-7(b)(7) (permissive exclusion for fraud, kickbacks, and other prohibited activities) for the Covered Conduct, except as reserved in Paragraph 4 (concerning excluded claims), below, and as reserved in this Paragraph. The OIG-HHS expressly reserves all rights to comply with any statutory obligations to exclude DMC from Medicare, Medicaid, and other Federal health care programs under 42 U.S.C. § 1320a-7(a) (mandatory exclusion) based upon the Covered Conduct. Nothing in this Paragraph precludes the OIG-HHS from taking action against entities or persons, or for conduct and practices, for which claims have been reserved in Paragraph 4, below.
4. Notwithstanding the releases given in paragraphs 2 and 3 of this Agreement, or any other term of this Agreement, the following claims of the United States are specifically reserved and are not released:
a. Any liability arising under Title 26, U.S. Code (Internal Revenue Code);
b. Any criminal liability;
c. Except as explicitly stated in this Agreement, any administrative liability, including mandatory exclusion from Federal health care programs;
d. Any liability to the United States (or its agencies) for any conduct other than the Covered Conduct;
e. Any liability based upon obligations created by this Agreement;
f. Any liability for express or implied warranty claims or other claims for defective or deficient products or services, including quality of goods and services;
g. Any liability for failure to deliver goods or services due;
h. Any liability for personal injury or property damage or for other consequential damages arising from the Covered Conduct; or
i. Any liability of individuals.
5. Detroit Medical Center has provided sworn financial disclosure statements (Financial Statements) to the United States and the United States has relied on the accuracy and completeness of those Financial Statements in reaching this Agreement. DMC warrants that the Financial Statements are complete, accurate, and current. If the United States learns of asset(s) in which Detroit Medical Center had an interest at the time of this Agreement that were not disclosed in the Financial Statements, or if the United States learns of any misrepresentation by Detroit Medical Center on, or in connection with, the Financial Statements, and if such nondisclosure or misrepresentation changes the estimated net worth set forth in the Financial Statements by $3 million or more, the United States may at its option: (a) rescind this Agreement and file suit based on the Covered Conduct, or (b) let the Agreement stand and collect the full Settlement Amount plus one hundred percent (100%) of the value of the net worth of Detroit Medical Center previously undisclosed. DMC agrees not to contest any collection action undertaken by the United States pursuant to this provision, and immediately to pay the United States all reasonable costs incurred in such an action, including attorney’s fees and expenses.
6. In the event that the United States, pursuant to Paragraph 5, above, opts to rescind this Agreement, DMC agrees not to plead, argue, or otherwise raise any defenses under the theories of statute of limitations, laches, estoppel, or similar theories, to any civil or administrative claims that (a) are filed by the United States within 60 calendar days of written notification to DMC that this Agreement has been rescinded, and (b) relate to the Covered Conduct, except to the extent these defenses were available on November 1, 2010.
7. DMC waives and shall not assert any defenses DMC may have to any criminal prosecution or administrative action relating to the Covered Conduct that may be based in whole or in part on a contention that, under the Double Jeopardy Clause in the Fifth Amendment of the Constitution, or under the Excessive Fines Clause in the Eighth Amendment of the Constitution, this Agreement bars a remedy sought in such criminal prosecution or administrative action. Nothing in this paragraph or any other provision of this Agreement constitutes an agreement by the United States concerning the characterization of the Settlement Amount for purposes of the Internal Revenue laws, Title 26 of the United States Code.
8. DMC fully and finally releases the United States, and its agencies, employees, servants, and agents from any claims (including attorney’s fees, costs, and expenses of every kind and however denominated) that DMC has asserted, could have asserted, or may assert in the future against the United States, and its agencies, employees, servants, and agents, related to the Covered Conduct and the United States’ investigation and prosecution thereof.
9. The Settlement Amount shall not be decreased as a result of the denial of claims for payment now being withheld from payment by any Medicare carrier or intermediary or any state payer, related to the Covered Conduct; and DMC agrees not to resubmit to any Medicare carrier or intermediary or any state payer any previously denied claims related to the Covered Conduct, and agrees not to appeal any such denials of claims.
10. a. Unallowable Costs Defined: All costs (as defined in the Federal Acquisition Regulation, 48 C.F.R. § 31.205-47; and in Titles XVIII and XIX of the Social Security Act, 42 U.S.C. §§ 1395-1395kkk-1 and 1396-1396w-5; and the regulations and official program directives promulgated thereunder) incurred by or on behalf of DMC, its present or former officers, directors, employees, shareholders, and agents in connection with:
(1) the matters covered by this Agreement;
(2) the United States’ audit and civil investigation of the matters covered by this Agreement;
(3) DMC’s investigation, defense, and corrective actions
undertaken in response to the United States’ audit and civil
investigation in connection with the matters covered by this
Agreement (including attorney’s fees);
(4) the negotiation and performance of this Agreement; and
(5) the payment DMC makes to the United States pursuant to this
Agreement.
b. Future Treatment of Unallowable Costs: Unallowable Costs shall be separately determined and accounted for in nonreimbursable cost centers by DMC, and DMC shall not charge such Unallowable Costs directly or indirectly to any contracts with the United States or any State Medicaid program, or seek payment for such Unallowable Costs through any cost report, cost statement, information statement, or payment request submitted by DMC or any of its subsidiaries or affiliates to the Medicare, Medicaid, TRICARE, or FEHBP Programs.
c. Treatment of Unallowable Costs Previously Submitted for Payment: DMC further agrees that within 90 days of the Effective Date of this Agreement it shall identify to applicable Medicare and TRICARE fiscal intermediaries, carriers, and/or contractors, and Medicaid and FEHBP fiscal agents, any Unallowable Costs (as defined in this Paragraph) included in payments previously sought from the United States, or any State Medicaid program, including, but not limited to, payments sought in any cost reports, cost statements, information reports, or payment requests already submitted by DMC or any of its subsidiaries or affiliates, and shall request, and agree, that such cost reports, cost statements, information reports, or payment requests, even if already settled, be adjusted to account for the effect of the inclusion of the unallowable costs. DMC agrees that the United States, at a minimum, shall be entitled to recoup from DMC any overpayment plus applicable interest and penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost reports, information reports, cost statements, or requests for payment.
Any payments due after the adjustments have been made shall be paid to the United States pursuant to the direction of the Department of Justice and/or the affected agencies. The United States reserves its rights to disagree with any calculations submitted by DMC or any of its subsidiaries or affiliates on the effect of inclusion of Unallowable Costs (as defined in this Paragraph) on DMC or any of its subsidiaries or affiliates’ cost reports, cost statements, or information reports.
d. Nothing in this Agreement shall constitute a waiver of the rights of the United States to audit, examine, or re-examine DMC’s books and records to determine that no Unallowable Costs have been claimed in accordance with the provisions of this Paragraph.
11. DMC agrees to cooperate fully and truthfully with the United States’ investigation of individuals and entities not released in this Agreement with respect to the Covered Conduct. Upon reasonable notice, DMC shall encourage, and agrees not to impair, the cooperation of its directors, officers, and employees, and shall use its best efforts to make available, and encourage, the cooperation of former directors, officers, and employees for interviews and testimony with respect to the Covered Conduct, consistent with the rights and privileges of such individuals. DMC further agrees to furnish to the United States, upon request, complete and unredacted copies of all non-privileged documents, reports, memoranda of interviews, and records in its possession, custody, or control concerning any investigation of the Covered Conduct that it has undertaken, or that has been performed by another on its behalf.
12. This Agreement is intended to be for the benefit of the Parties only. The Parties do not release any claims against any other person or entity, except to the extent provided for in Paragraph 13, below.
13. DMC agrees that it waives and shall not seek payment for any of the health care billings covered by this Agreement from any health care beneficiaries or their parents, sponsors, legally responsible individuals, or third party payors based upon the claims defined as Covered Conduct.
14. Each Party shall bear its own legal and other costs incurred in connection with this matter, including the preparation and performance of this Agreement.
15. Each party and signatory to this Agreement represents that it freely and voluntarily enters in to this Agreement without any degree of duress or compulsion.
16. This Agreement is governed by the laws of the United States. The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United States District Court for the Eastern District of Michigan. For purposes of construing this Agreement, this Agreement shall be deemed to have been drafted by all Parties to this Agreement and shall not, therefore, be construed against any Party for that reason in any subsequent dispute.
17. This Agreement, including the attachments hereto, constitutes the complete agreement between the Parties. This Agreement may not be amended except by written consent of the Parties.
18. The undersigned counsel represent and warrant that they are fully authorized to execute this Agreement on behalf of the persons and entities indicated below.
19. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement.
20. This Agreement is binding on DMC’s successors, transferees, and assigns.
21. All parties consent to the United States’ disclosure of this Agreement, and information about this Agreement, to the public.
22. The Effective Date of this Agreement shall be December 31, 2010. Facsimiles and pdf copies of signatures shall constitute acceptable, binding signatures for purposes of this Agreement.
THE UNITED STATES OF AMERICA
DATED: 12/23/10 BY: /s/ David T. Cohen
DAVID T. COHEN
Senior Trial Counsel
Commercial Litigation Branch
Civil Division
United States Department of Justice
DATED: 12/30/10 BY: /s/ Leslie Wizner
LESLIE WIZNER
Assistant United States Attorney
Eastern District of Michigan
DATED: 12/23/10 BY: /s/ Gregory E. Demske
GREGORY E. DEMSKE
Assistant Inspector General for Legal Affairs
Office of Counsel to the
Inspector General
Office of Inspector General
United States Department of
Health and Human Services
DETROIT MEDICAL CENTER
DATED: 12/29/10 BY:/s/ Michael E. Duggan
MICHAEL E. DUGGAN
Chief Executive Officer
Detroit Medical Center
DATED: BY:/s/ Floyd Allen
FLOYD ALLEN, ESQ.
General Counsel
Detroit Medical Center
VANGUARD HEALTH SYSTEMS INC.
DATED: 12/29/10 BY:/s/ James H. Spalding
JAMES H. SPALDING
Senior Vice President
Vanguard Health Systems, Inc.
DATED: 12/29/10 BY:/s/ Paul F. Lawrence
PAUL F. LAWRENCE
McDermott, Will & Emery
Counsel for Vanguard Health Systems
