exv10w40



 





Exhibit 10.40




VISTACARE, INC.




CODE OF BUSINESS CONDUCT AND ETHICS




VistaCare’s mission:




     The passionate pursuit of excellence in nurturing the physical, spiritual and
emotional well-being of our patients and their families while being responsible
stewards of our human and financial resources.



     In pursuing our mission, we strive to achieve the highest business and
personal ethical standards as well as compliance with the laws and regulations
that apply to our business. Employees, officers, directors, volunteers and all
other company agents and representatives must act in conformity with the
principles expressed in this Code of Business Conduct and Ethics (the “Code”).
In addition, every supervisor and manager is responsible for helping employees
understand and comply with the Code.



     This Code is an overview of VistaCare’s principles of business conduct and
ethics; it is intended to set standards of conduct and is not a restatement of
VistaCare policies and procedures. This Code cannot and is not intended to
cover every applicable law or provide answers to all questions that might
arise; for that we must ultimately rely on each person’s good sense of what is
right, including a sense of when it is proper to seek guidance from others on
the appropriate course of conduct.



     It is the obligation of each and every director, officer and employee of
VistaCare to become familiar with the goals and policies of the company and
integrate them into every aspect of our business. VistaCare regards violation
of the law, company policies or this Code as a serious matter since violations
may put the company and employees at risk. Therefore, if you violate them, you
subject yourself to disciplinary action and possible dismissal. Those who work
with us, such as contractors, consultants, agents, volunteers, representatives
and suppliers, are also required to follow these standards. Certain violations
may be referred to legal authorities for investigation and civil or criminal
prosecution.



CONFLICTS OF INTEREST




     Directors, officers and employees of VistaCare have a duty of loyalty to
the company, and must therefore avoid any actual or apparent conflict of
interest with the company. A conflict of interest exists when your personal
interests are in conflict with VistaCare’s interests or when your personal
interests interfere with your ability to perform your duties and
responsibilities at work. Conflicts of interest also arise when an employee,
officer, or director, or a member of his or her family, receives improper
personal benefits as a result of his or her position in the company.



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     Specific situations that could be considered conflicts of interest
include:




	•	 	Accepting gifts and services from suppliers or
contractors






	•	 	Employment by or ownership of a business that
competes with VistaCare






	•	 	Use of company assets for personal purposes






	•	 	Selection of suppliers and persons seeking to do
business with the company based on any considerations other than
the best interests of the company





     Additionally, certain situations may create the appearance of a conflict
when it appears to persons outside the company that a conflict exists. In
these situations as well, you should apply the principles of this Code in
deciding how to correct the situation based on the company’s best interest.



     If a conflict of interest arises, employees and officers must immediately
report the circumstances to the General Counsel of the company. The Chief
Executive Officer and members of the Board of Directors must report any such
circumstances to the Corporate Governance Committee.



CORPORATE OPPORTUNITIES




     No director, officer or employee may: (a) take for himself or herself
personally opportunities that are discovered through the use of company
property, information or position; (b) use company property, information or
position for personal gain; or (c) compete with the company. Employees,
officers and directors owe a duty to the company to advance its legitimate
interests when the opportunity to do so arises.



USE OF INSIDE INFORMATION




     It is the company’s goal to protect shareholder investments through strict
enforcement of the prohibition against insider trading set forth in federal
securities laws and regulations. Insider trading generally refers to the
buying or selling of a security by a person who is aware of material non-public
information relating to the security.



     Three basic rules to follow:




	•	 	Don’t buy or sell securities while in possession of
material non-public information.






	•	 	Don’t pass such information on to others who may
buy or sell securities.






	•	 	If such information has been publicly disclosed,
allow sufficient time for the information to be disseminated
and absorbed by the marketplace before acting on it or passing
that information on to others.




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     The company has adopted a policy regarding securities trading that applies
to directors, officers and employees. This policy explains in detail the
company’s rules regarding securities trading and can be viewed on the company’s
intranet. All affected persons are required to read, understand and comply
with the trading policy.



ACCOUNTING PRACTICES




     VistaCare’s policy is to fully and fairly disclose the financial condition
of the company in compliance with applicable accounting principles, laws, rules
and regulations. All books and records of VistaCare shall be kept in such a
way as to fully and fairly reflect all company transactions.



CORPORATE DISCLOSURE STANDARDS




     VistaCare’s policy is to make full, fair, accurate, timely and
understandable disclosure in reports and documents that it files with, or
submits to, the Securities and Exchange Commission and in its other public
communications. All employees, officers and directors involved with such
disclosure must ensure that our corporate disclosure is made in accordance with
such standards. Only designated VistaCare representatives are authorized to
disclose to the public, whether through filings with or submissions to the SEC,
press releases, interviews or otherwise, significant news and information about
VistaCare. Each affected person shall comply with any additional policies and
procedures that may be adopted from time to time in that regard.



FAIR DEALING




     Each director, officer and employee shall endeavor to deal fairly and in
good faith with VistaCare customers, shareholders, employees, suppliers,
regulators, business partners, competitors and others. No director, officer or
employee shall take unfair advantage of anyone through manipulation,
concealment, abuse of privileged or confidential information,
misrepresentation, fraudulent behavior or any other unfair dealing practice.



CONFIDENTIALITY




     Our information and business data, and the security of that information
and data, is important to our success. We must safeguard confidential
information against improper disclosure. All directors, officers and employees
should maintain the confidentiality of information entrusted to them by the
company. As a condition of employment, all VistaCare employees are required to
enter into a confidentiality agreement with the company.



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PATIENT PRIVACY




     VistaCare receives health and other information about patients and their
families. All medical records and information regarding patients and patient
families is to be treated as confidential.



     VistaCare has adopted policies and procedures regarding confidentiality of
health information in compliance with federal and state law. All affected
persons are required to comply with these policies.



COMPLIANCE WITH LAWS AND REGULATIONS




     VistaCare takes a proactive stance on compliance with all applicable laws,
rules and regulations.



     1. VistaCare’s commitment to comply with all Federal, State and private
insurer standards:



Eligibility for and election of the hospice benefit




     VistaCare provides complete and accurate information to patients about the
palliative nature of hospice care, the Medicare Hospice Benefit and eligibility
requirements. VistaCare ensures that the patients who elect the Medicare or
Medicaid Hospice Benefit meet eligibility requirements and continue to be
eligible while under the care of VistaCare.



Fraud and Abuse




     VistaCare will not provide to or accept gifts, services or any form of
remuneration from potential patients or referral sources. VistaCare will not
knowingly employ or contract with any person or entity, or knowingly receive
certifications and/or orders from any physician, who has been excluded from the
Medicare or Medicaid programs.



Medicare, Medicaid and state hospice regulations




     All persons are required to comply with VistaCare’s policies and
procedures regarding Medicare, Medicaid and state hospice regulations



     2. Work-place policies and applicable laws and regulations:



Equal Employment Opportunity




     VistaCare provides equal employment opportunities to all applicants and
equal advancement opportunities to all employees without regard to race, color,
religion,



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gender, national origin, age, disability, or veteran status. In addition,
VistaCare complies with applicable federal, state and local laws governing
nondiscrimination in employment in every location in which it has operations.




Unlawful Harassment




     VistaCare is committed to a policy of prohibiting any personnel from
engaging in any unlawful or sexual harassment of other personnel, job
applicants, or patients. Any personnel violating this policy may be subject to
immediate termination. If personnel feel they have been unlawfully or sexually
harassed, they must notify the appropriate person as provided by company
policies and procedures as soon as reasonably possible.



     VistaCare will not tolerate sexual harassment or any other unlawful
harassment and complaints of harassment will be promptly investigated. Any
employee who engages in any form of sexual harassment or other unlawful
harassment will be subject to disciplinary action, up to and including
discharge. Supervisors and managers have a special obligation under the law to
report all possible sexual harassment or other unlawful harassment as provided
by company policies and procedures even if they have not received a complaint.



Drug and Alcohol Abuse




     VistaCare’s goal is to maintain a work environment that is safe for our
employees, patients, visitors and others having business with us, and an
environment that is conducive to high work standards. To this end, VistaCare
prohibits the unlawful manufacture, distribution, dispensation, possession,
sale or use of narcotics, illegal drugs, drug paraphernalia or alcohol in the
workplace or while engaged in company business. It is also against company
policy for an employee to report to work under the influence of drugs or
alcohol. Further, such conduct is prohibited during non-work time to the
extent that, in the company’s opinion, it impairs an employee’s ability to
perform on the job or threatens the reputation or integrity of VistaCare.



The Environment




     The company requires its operations to be in compliance with all national,
regional, and local regulations relating to the environment, such as those
affecting air emissions, water purity and waste disposal. Compliance with
legal requirements is only a minimum standard. All employees are expected to
be alert to environmental issues.



HEALTH AND SAFETY




     VistaCare is committed to providing safe and healthful working conditions
for its employees, contractors and visitors. The company will conduct its
operations in a manner that protects human health and the quality of life.



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     The company recognizes that the responsibilities for safe and healthful
working conditions are shared in the following ways:



1. The company will establish and implement health and safety programs
and provide the safeguards required to ensure safe and healthful
conditions;



2. Supervisors and managers will create an environment where employees
have genuine concern for safety and all operations are performed with the
utmost regard for the safety and health of all personnel involved; and



3. All employees are expected to conduct their work in a safe manner and
comply with all health and safety programs, policies, procedures and
laws.



     No employee may bring a firearm, weapon or explosive substance into the
workplace.



WAIVERS OF THE CODE OF BUSINESS CONDUCT AND ETHICS




     Any waiver of this Code with respect to an employee who is not an
executive officer or director of the company may be granted only by the
company’s CEO.



     Any waiver of this Code with respect to an executive officer or director
of the company may be granted only by a committee of independent members of the
company’s Board of Directors.



REPORTING OF POSSIBLE ISSUES




     Every director, officer and employee has a duty to adhere to this Code and
all existing company policies, and to report to the company any suspected
violations in accordance with applicable procedures.



Questions




     An employee who has a question regarding the applicability or
interpretation of this Code should contact the company’s General Counsel,
either in person, in writing, or by telephone at 480-648-8721 or by fax at
480-648-4555.



Reporting of Violations




     If an employee knows of a violation or possible violation of this Code,
the employee must immediately report it to his or her supervisor, another
managerial employee, a human resources representative or the General Counsel.
Any manager or human resources representative receiving such a report must
immediately advise the General Counsel at 480-648-8721 or by fax at
480-648-4555. Written reports should be



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addressed to VistaCare, Inc., 4800 N. Scottsdale Road, Suite 5000, Scottsdale,
AZ 85251 and marked “CONFIDENTIAL – TO BE OPENED BY THE GENERAL COUNSEL.”




     There shall be no reprisals for good faith reporting of actual or possible
violations.



     Although it is strongly preferred that the caller identify himself or
herself, a call may be made anonymously by stating at the outset that the
caller prefers to remain unidentified but wishes to report a violation or
discuss or inquire about the Code.



Investigations of Reports of Violations




     All reports of allegations of violations will be promptly investigated by
the company and will be treated confidentially to the extent consistent with
the company’s interests and its legal obligations. The General Counsel will
determine the appropriate nature of the investigation.



     Employees are expected to cooperate in the investigation of alleged
violations. It the result of the investigation indicates that corrective
action is required, the company will decide what steps it should take,
including, when appropriate, legal proceedings to rectify the problem and avoid
the likelihood of its recurrence.



Discipline for Violations




     Disciplinary action may be taken for:



1. Authorization or participation in actions that violate the Code.



2. Failure to report a violation of the Code.



3. Refusal to cooperate in the investigation of a possible violation.



4. Failure by a violator’s supervisors(s) to detect and report a
violation, if such failure reflects inadequate supervision.



5. Retaliation against an individual for reporting a possible violation.



     The nature of any disciplinary action taken will depend on the nature of
the violation and the circumstances involved. When appropriate, the
disciplinary action may include dismissal. Any disciplinary action will be
reviewed and approved by the employee’s supervisor, the Human Resources
Department and the General Counsel.



Acknowledgement of Receipt of Code




     The company requires that all employees, officers and directors sign an
Acknowledgement of Receipt confirming that they have received, read and
understand



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the Code, that they will comply with it and that they understand conduct
violating the Code may result in disciplinary action.




     In addition, persons subject to the Code may be asked periodically to
certify that since their previous certification they have complied with the
Code and have no knowledge of any violation that has not been appropriately
reported.



ADDITIONAL INFORMATION




EMPLOYEE HOTLINE



IN SITUATIONS WHERE YOU DO NOT WANT TO USE THE NORMAL CHANNELS OF
COMMUNICATION, YOU CAN CALL 1-866-872-6498 (TOLL FREE IN THE U.S.) Or
480-648-8646.



The employee hotline will connect you with the company’s General Counsel, who
will respond to your questions or collect information and initiate appropriate
follow-up action. All calls will be handled in a confidential manner and, if
you wish, you will not need to identify yourself. If you call at times other
than 8:00 a.m. to 5:30 p.m. (MST) or if the General Counsel is unavailable, you
can leave a confidential voicemail message.




OTHER RESOURCES



If you wish to register any complaints directly to the Audit Committee of the
Board of Directors regarding accounting, internal accounting controls or
auditing matters, or if you wish to deliver an anonymous submission of concerns
regarding questionable accounting or auditing matters, you may write to the
chairman of the Audit Committee at the address published on the company’s
website.



If you wish to make any concerns known to the directors of VistaCare, Inc. who
are not members of VistaCare management, you may directly contact these
directors by writing to them at the addresses published on the company’s
website.





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