AND MEDICAID
ANTI-KICKBACK STATUTE, SET FORTH IN 42 U.S.C. §1320A-7B(B).
THE PARTIES AGREE
THAT, FOR THE PURPOSES OF THIS AGREEMENT, HPG IS ACTING AS A GROUP PURCHASING
ORGANIZATION.
THE PARTIES INTEND TO COMPLY WITH THE REQUIREMENTS OF THE "SAFE
HARBOR" REGULATIONS REGARDING PAYMENTS TO GROUP PURCHASING ORGANIZATIONS SET
FORTH IN 42 C.F.R.
§1001.952(J) AND THE PARTIES BELIEVE THAT THIS AGREEMENT
SATISFIES THOSE REQUIREMENTS.
(B)
SUBJECT TO THE TERMS AND CONDITIONS SET
FORTH IN THIS AGREEMENT AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
PARTICIPANT HEREBY ENGAGES HPG TO ACT AS ITS EXCLUSIVE INDEPENDENT GROUP
PURCHASING ORGANIZATION (OTHER THAN PACT), AND TO PROVIDE ACCESS TO THE VENDOR
CONTRACTS, PURSUANT TO WHICH PARTICIPANT AND ITS FACILITIES WILL PURCHASE
PRODUCTS AND SERVICES AVAILABLE THEREUNDER FOR USE IN THE FACILITIES.
THIS
EXCLUSIVE ENGAGEMENT DOES NOT LIMIT PARTICIPANT FROM CONTRACTING WITH PACT, OR
FROM PURCHASING PACT PRODUCTS AND SERVICES UNDER PACT VENDOR CONTRACTS.
PARTICIPANT HEREBY AUTHORIZES HPG, AS ITS AGENT FOR SUCH PURPOSES, TO (I)
NEGOTIATE THE TERMS OF AND ENTER INTO VENDOR CONTRACTS, AND TO CANCEL OR MODIFY
ANY VENDOR CONTRACTS AS IT DEEMS NECESSARY, ADVISABLE OR APPROPRIATE; (II)
RECEIVE REBATES FROM VENDORS BASED ON PARTICIPANT'S PURCHASES UNDER VENDOR
CONTRACTS, FOR PAYMENT BY HPG TO PARTICIPANT PURSUANT TO PARAGRAPH 6(B), AND
(III) TO RECEIVE FROM VENDORS, DISTRIBUTORS, AND E-COMMERCE COMPANIES, DATA
RELATING TO PURCHASES OF PRODUCTS AND SERVICES UNDER VENDOR CONTRACTS BY
PARTICIPANT AND FACILITIES. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIVITY
PROVISIONS STATED IN THIS PARAGRAPH 2(B) WITH RESPECT TO HPG AND PACT SHALL NOT
BE EFFECTIVE UNTIL MARCH 15, 2005 (AND THEREAFTER FOR UP TO 120 DAYS TO PERMIT
PARTICIPANT TO EFFECT AN ORDERLY AND EFFICIENT TRANSITION AWAY FROM THE VENDORS
ACCESSED PURSUANT TO PARTICIPANT'S GROUP PURCHASING ORGANIZATION AGREEMENT WITH
BROADLANE), AND UNTIL SUCH TIME THE RELATIONSHIP ESTABLISHED PURSUANT TO THIS
AGREEMENT SHALL BE DEEMED TO BE NON-EXCLUSIVE WITH RESPECT TO HPG AND PACT; AND
THROUGHOUT THE TERM OF THIS AGREEMENT, PARTICIPANT SHALL HAVE THE RIGHT (A) TO
RETAIN MEMBERSHIP WITH ANOTHER GROUP PURCHASING ORGANIZATION SOLELY FOR THE
PURPOSE OF ACCESSING THAT GPO'S CONTRACTS FOR NURSE STAFFING SERVICES, PROVIDED
AND CONTINGENT UPON SUCH GPO NOT PROVIDING INFORMATION OR NOTICES TO HPG VENDORS
THAT INDICATE PARTICIPANT IS A MEMBER OF SUCH GPO FOR ACCESSING CONTRACTS OTHER
THAN THOSE FOR NURSING STAFFING SERVICES; AND (B) TO RETAIN AND PERFORM THE
PURCHASING CONTRACTS IDENTIFIED ON EXHIBIT A HERETO AND IDENTIFIED AS
"GRANDFATHERED CONTRACTS".
(C)
THE FACILITIES IDENTIFIED ON EXHIBIT B
HERETO SHALL HAVE ACCESS TO THE PROGRAM AND SHALL
3
HAVE THE RIGHT TO PURCHASE PRODUCTS AND SERVICES UNDER HPG VENDOR CONTRACTS
LISTED IN EXHIBIT D TO THIS AGREEMENT, AND AS POSTED ON HPG'S WEBSITE
().
(D)
EACH FACILITY SHALL EXECUTE AND DELIVER TO
HPG THE GPO AFFILIATION CERTIFICATE (A COPY OF WHICH IS ATTACHED AS EXHIBIT C)
PRIOR TO BEING GRANTED ACCESS TO THE PROGRAM.
(E)
FROM TIME TO TIME, PARTICIPANT MAY REQUEST
IN WRITING THAT HPG CONSIDER APPROVING ADDITIONAL HOSPITALS OR OTHER HEALTHCARE
RELATED FACILITIES AS FACILITIES.
UPON APPROVAL BY HPG, WHICH SHALL NOT BE