PeakMed Colorado, LLC

This Membership Agreement (the “Agreement”) is entered into between PeakMed Colorado, LLC, a Colorado limited liability company located at 6915 Tutt Blvd Suite 100 Colorado Springs, Colorado (“PeakMed”), and, the individual agreeing to the terms hereof (“Patient” or “You”) and is effective as of the date this Agreement electronically agreed to by Patient (the “Effective Date”).

Background

            PeakMed, which specializes in providing family medicine, delivers care at various facilities as set forth on the www.peakmed.com website which may be modified from time to time.  In exchange for certain fees paid by You to PeakMed, PeakMed agrees to provide You the Services described in this Agreement on the terms and conditions set forth herein.

Agreement – Notices

  1. THIS AGREEMENT IS NOT, AND SHALL NOT, BE CONSTRUED AS INSURANCE OR AN INSURANCE POLICY.
  2. THE ADMINISTRATOR OF THIS PLAN IS Dr. Mark Tomasulo, 6915 Tutt Blvd, Colorado Springs, Colorado, 80923.
  3. A LISTING FOR PEAKMED WILL BE UPDATED AT LEAST SEMI-ANNUALLY AND IS AVAILABLE UPON REQUEST.
  4. SUBJECT TO SECTION 1 HEREOF, PATIENT MAY RECEIVE A REFUND IF PATIENT CANCELS THIS AGREEMENT WITHIN 30 DAYS OF SIGNING THIS AGREEMENT.

Agreement – Remaining Terms

  1. Services, Fees, and Proration.  As consideration for PeakMed’s provision of the Services as set forth in Appendix 1, Patient agrees to pay PeakMed a monthly fee (unless Patient’s fees are being paid by their or their spouse’s employer).   If paying directly, Patient shall be required to prepay the first Monthly Fee upon execution of, or, electronic agreement to, this Agreement. If this Agreement is cancelled by either party, then PeakMed shall refund the Patient’s prorated amount of the Monthly Fee remaining after deducting individual charges for Services rendered to Patient during such month prior the date of cancellation.
  1. Non-Participation in Insurance. Patient acknowledges and agrees that neither PeakMed, nor any of its providers participate in any health insurance or HMO plans or panels and has opted out of Medicare.  Neither PeakMed, nor any of its providers, make any representations whatsoever that any fees paid under this Agreement are covered by your health insurance or other third party payment plans applicable to the Patient and that  Patient shall retain full and complete responsibility for making any such determination.  If Patient is eligible for Medicare, or, during the term of this Agreement Patient becomes eligible for Medicare, then Patient hereby agrees and acknowledges that Patient shall promptly inform PeakMed of such event in writing and promptly sign the acknowledgement attached hereto as Appendix 2 whereby Patient acknowledges Patient’s understanding that PeakMed has opted out of Medicare, and as a result, Medicare cannot be billed for any Services performed by PeakMed.  Patient agrees that it shall not to bill Medicare or attempt Medicare reimbursement for any such Services provided by PeakMed.  In the instance Patient is or becomes eligible for Medicare, Patient shall be obligated to annually renew and sign the acknowledgement attached hereto as Appendix 2.
  1. Insurance or Other Medical Coverage. Patient agrees and acknowledges that this Agreement is not an insurance plan, and, not a substitute for health insurance or other health plan coverage such as membership in an HMO.  This Agreement does not provide any coverage for hospital services, or, any other services not provided by PeakMed or the PeakMed providers.  Patient acknowledges that PeakMed has advised Patient to obtain or keep in full force such health insurance policy(ies) or plans in order to provide Patient adequate coverage in the event Patient shall need any medical services, procedures or medications which are not the Services provided by PeakMed.  Patient hereby acknowledges that this Agreement is not a contract which provides health insurance, and, this Agreement is not intended to replace any existing or future health insurance or health plan coverage that Patient may otherwise enroll.
  1. Term; Termination. This Agreement shall commence on the Effective Date and shall automatically renew on a month to month basis thereafter so long as the Monthly Fee is properly remitted to PeakMed.  Notwithstanding the foregoing, both Patient and PeakMed shall have the absolute and unconditional right to terminate the Agreement upon giving the other party thirty (30) days prior written notice.  In the event this Agreement shall terminate, any Appendix to this Agreement shall also terminate as of such termination.
  1. Communications. You acknowledge that your communications with PeakMed using electronic mail, facsimile, video chat, instant messaging, and cell phone is not guaranteed to provide secure or confidential methods of communications.  As such, Patient hereby expressly waives PeakMed’s and any of its providers’ obligation to guarantee confidentiality with respect to such communications.  You agree and acknowledge that all such communications may become a part of your medical records.   By providing Patient’s electronic mail address on the attached Appendix 1, Patient hereby authorizes PeakMed, and its providers to communicate with Patient by electronic mail regarding Patient’s “protected health information” (“PHI”) (as that term is defined in the Health Insurance Portability and Accountability Act (“HIPAA”) of 1996 and it’s implementing regulations). By providing Patient’s electronic mail address on the attached Appendix 1, Patient agrees and acknowledges that:
  • Electronic mail is not necessarily a secure medium for sending or receiving PHI, and, there is always a possibility that a third party may gain access to such PHI through Patient’s and PeakMed’s use of electronic mail to transmit such PHI;
  • Although PeakMed will make all reasonable efforts to keep electronic mail, facsimile, video chat, instant messaging, and cell phone communications confidential and secure, neither PeakMed nor any of its providers, can assure or guarantee the absolute confidentiality of such communications;
  • In the discretion of PeakMed, communications may be made a part of Patient’s permanent medical record; and
  • Patient understands and agrees that electronic mail is not an appropriate means of communication regarding emergency or other time-sensitive issues or for inquiries regarding sensitive information. In the event of an emergency, or a situation in which Patient’s condition could develop into an emergency, Patient agrees and acknowledge that Patient shall immediately call 911 or visit the nearest emergency room and follow the directions of emergency personnel.

If Patient does not receive a response to an electronic mail message within one day, Patient hereby agrees to use another means of communication to contact PeakMed.  Neither PeakMed nor any of its providers shall be liable to Patient for any loss, cost, injury, or expense caused by, or resulting from, a delay in responding to Patient as a result of technical failures or failures to respond to such communications, including, but limited to, (i) technical failures attributable to any internet service provider, (ii) power outages, failure of any electronic messaging software; (iii) PeakMed’s failure to timely or accurately respond to electronic mail messages, (iv) failure of PeakMed’s computers or computer network, or faulty telephone or cable data transmission, (v) any interception of electronic mail communications by a third-party; or (vi) Patient’s failure to comply with the PeakMed policies regarding use of electronic mail communications.

  1. Change of Law. If there is a change of law, regulation or rule, federal, state or local, which affects this Agreement or any Appendix hereto, or affects the rights and responsibilities of either party under the Agreement, or there is any change in the judicial or administrative interpretation of any such law, regulation or rule, and either party reasonably believes in good faith that such change will have a an adverse effect on that party’s rights and responsibilities associated with this Agreement or any Appendix hereto, then that party may, upon written notice, require the other party to enter into good faith negotiations to renegotiate the terms of this Agreement or any Appendix hereto.  If the parties are unable to reach an agreement concerning the modification of the Agreement or any Appendix hereto to within thirty (30) days after providing written notice to such party, then either party may immediately terminate the Agreement by notifying the other party in writing of the termination of this Agreement.
  1. Reimbursement for Services Rendered. If (i) Patient terminates this Agreement on a date which is not the last day of such month and Patient is thus entitled to a reimbursement of the Patient’s prorated portion of its Monthly Fee for such month as a result of such termination; or (ii) this Agreement is held to be invalid or unenforceable for any reason, and, as a result of such determination, PeakMed is required to refund all or any portion of any fees paid by Patient to PeakMed, then Patient agrees to pay PeakMed an amount equal to the reasonable value of the Services actually rendered to Patient by PeakMed during the period of time for which the refunded fees were paid by Patient, as such amount is reasonably determined by PeakMed.
  1. No amendment of the Agreement shall be binding on a party unless it is made in writing and signed by or electronically agreed to by the parties.  Notwithstanding the foregoing, PeakMed may unilaterally amend this Agreement to the extent required to comply with federal, state, or local law (“Applicable Law”) by providing Patient thirty (30) days advance written notice of such amendment.  Any such amendment shall be incorporated by reference into this Agreement.  Furthermore, Patient agrees and acknowledges that upon the request of PeakMed, Patient shall execute and return any documents in order to confirm Patient’s acknowledgement of such change.  Moreover, if Applicable Law requires this Agreement to contain provisions that are not expressly set forth in this Agreement, then, to the extent necessary, such provisions shall be incorporated by reference into this Agreement and shall be deemed a part of the Agreement as though they had been expressly set forth in this Agreement.
  1. This Agreement and any Appendix hereto may not be assigned by Patient.
  1. Relationship of Parties. Patient and PeakMed intend and agree that PeakMed, in performing the Services under this Agreement, is an independent contractor, as defined by the guidelines promulgated by the United States Internal Revenue Service and/or the United States Department of Labor, and PeakMed shall at all times retain exclusive control of its work and the manner in which it is performed.
  1. Right to Counsel. Patient acknowledges that this Agreement is a legal document and creates certain rights and responsibilities.  Patient also acknowledges having had adequate opportunity to confer with legal counsel regarding this Agreement and has either chosen not to confer with legal counsel or has done so and is satisfied with the provisions of this Agreement.
  1. Miscellaneous
    1. Entire Agreement. This Agreement and any Appendix hereto constitutes the entire agreement among the parties with respect to the subject matter hereof.  It supersedes any and all other agreements, either oral or written, between PeakMed and its affiliates and Patient with respect to the subject matter hereof, and contains all of the covenants and agreements between the parties relating in any way to services provided in this Agreement.  No course of dealing between PeakMed and Patient, or any waiver by either party of a breach of any provision of this Agreement, or delay in exercising any right under this Agreement, shall operate or be construed as a waiver of any subsequent breach by either party.
    2. Governing Law. This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the law of the State of Colorado without regard to the conflicts of law principles of any jurisdiction.
    3. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part of this Agreement.  The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement.
    4. Effect. Except as herein otherwise specifically provided, this Agreement shall be binding upon and inure to the benefit of the parties and their legal representatives, successors and permitted assigns.
    5. Captions. Captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provision hereof.
    6. Dispute Resolution. Each party recognizes that compliance with the terms of this Agreement may give rise to the need to resolve disputes between the parties.  Each party wishes to avoid the expense and disruption caused by lawsuits and therefore agrees to attempt to first resolve disputes through direct negotiation with each other.  If this fails, the parties agree to submit their dispute to a third-party mediator jointly selected by the parties.  If the parties are unable to select a mediator, then the parties shall consult with the American Arbitration Association who shall independently select a mediator and this selection shall be binding on the parties.  The parties agree to work cooperatively with the mediator in exploring and implementing appropriate alternative resolution procedures whereby the parties can reach an early and effective resolution of their dispute.  All expenses related to mediation shall be split evenly between the parties.  If a resolution is not reached within sixty (60) days after the parties submit their dispute to the mediator or if any party to the dispute believes that the finding and opinions of the mediator are not satisfactory, then any party may proceed with litigation and pursue any and all appropriate legal remedies permitted by law.  All dispute resolution proceedings and litigation shall be conducted in State court in Denver, County, Colorado or the Federal District Court of appropriate jurisdiction for Denver County, Colorado. 
    7. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTER-CLAIM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER.
    8. Notices. All notices, demands or requests required or permitted under this Agreement must be in writing, and shall be made by hand delivery, certified mail, or overnight courier service. The address to send such materials to PeakMed is 6915 Tutt Blvd., Suite 100, Colorado Springs, Colorado 80923, and, the address to send such materials to Patient shall be Patient’s address as provided by Patient as set forth on Appendix I. 
    9. Survival. The Parties’ obligations under Sections 2, 3, 7, 10, 11 and 12 shall survive any termination of this Agreement.
    10. Prevailing Party Legal Fees. The prevailing party shall be entitled to recover, in addition to any other amounts awarded, an amount for legal and other related costs and expenses, including attorneys' fees, incurred thereby that is reasonable and equitable in relation to the award.

    The parties hereby affix their electronic signature and acknowledgment to be bound to the terms of this Agreement.

PeakMed Colorado, LLC

By: [Electronically Agreed to by PeakMed Colorado, LLC]

Mark Tomasulo, DO, Manager

Patient:

[Electronically Agreed to by Patient]

Appendix 1

Services

  1. As used in this Agreement, the term “Services” shall mean those medical services that PeakMed, or its providers, are permitted to perform under the laws of the State of Colorado and that are consistent with a PeakMed provider’s training and experience as a family medicine provider, as the case may be.  PeakMed membership includes all services that are typically offered in a family practice office such as:
  • Urgent (non-life threatening) Care;
  • Pediatric care;
  • Adult medicine and wellness care;
  • Chronic disease management (high blood pressure, diabetes, cholesterol etc.);
  • Preventative medicine care;
  • Sports medicine;
  • Minor wound repair (including: stitches, staples or surgical glue);
  • All office minor procedures (such as skin tag removal, wart removal, skin biopsies, etc…);
  • Routine Physicals (including: sports, school, work, etc.);
  • Telemedicine access to your physician via phone, video chat, text messaging, or e-mail;
  • Access to cost plus medications and laboratory services through our onsite pharmacy and lab;
  • EKG’s; and
  • Pulmonary Function Testing.

PeakMed may from time to time, due to vacations, sick days, and other similar scheduling situations, not be available to provide the Services referred to above in this Appendix 1.  During such times, Patient’s calls to PeakMed or to a PeakMed provider may be directed to a provider who may be available.  PeakMed will make reasonable efforts to arrange for coverage but cannot guarantee such coverage.

  1. Non-Medical, Personalized Services. PeakMed shall also provide Patient with the following non-medical Services:
  • 24/7 Access.  Patient shall have access to PeakMed via instant messaging and video chat.  Patient shall also have direct telephone access to PeakMed on a twenty-four hour per day, seven day per week basis.  Patient shall be given a phone number where Patient may reach, or leave a message with a PeakMed provider.  During a PeakMed provider’s absence for vacations, continuing medical education, illness, emergencies, or days off, PeakMed will make reasonable efforts to provide the Services through a different licensed healthcare provider which shall provider the Services in PeakMed’s absence.  Patient shall be given instruction as to how to contact such healthcare provider.
  • E-Mail Access. Patient shall be provided PeakMed’s e-mail address to which non-urgent communications can be addressed. 
  • No Wait or Minimal wait Appointments. Reasonable efforts shall be made to assure that Patient is seen by a PeakMed provider within a reasonable time after arriving for a scheduled office visit or after only a minimal wait.  If PeakMed foresees a minimal wait time, Patient may be contacted and advised of the projected wait time.
  • Same Day/Next Day Appointments. When Patient call or e-mails PeakMed prior to noon on a normal office day (Monday through Friday) to schedule an appointment, a reasonable effort shall be made to schedule an appointment with a PeakMed provider on the same day.  If the Patient calls or e-mails PeakMed after noon on a normal office day (Monday through Friday) to schedule an appointment, a reasonable effort shall be made to schedule an appointment with a PeakMed provider on the following normal office day.
  • Visitors. Family members* temporarily visiting Patient from out of town may, for a two-week period, take advantage of the Services described in subparagraphs (a), (c) and (d) of this paragraph and such Services rendered to Patient’s visitors shall be charged on a fee-for-service basis.

*Family members who are Medicare beneficiaries must be covered by a Medicare opt out waiver agreement in order to be treated by a PeakMed provider.

  • Specialist. Where reasonable, a PeakMed provider will make reasonable efforts to coordinate with medical specialists to whom Patient is referred to assist Patient in obtaining specialty care.  Patient understands that fees paid under this Agreement do not include and do not cover specialist fees or fees due to any medical professional other than PeakMed.

Appendix 2

 

Medicare Opt Out Agreement

This Medical Opt Out Agreement (“Agreement”) is entered into by and between PeakMed Colorado, LLC, a Colorado limited liability company, operated by Dr Mark Tomasulo, DO, (the “Provider”), whose principal medical office is located at  6915 Tutt Blvd Suite 100 Colorado Springs, Colorado, and  __________________________________, a beneficiary enrolled in Medicare Part B (“Beneficiary”), who resides at ___________________________, ________________, Colorado  ________.                                                        

Introduction

The Balanced Budget Act of 1997 allows providers to “opt out” of Medicare and enter into private contracts with patients who are Medicare beneficiaries.  In order to opt out, providers are required to file an affidavit with each Medicare carrier that has jurisdiction over claims that they have filed (or that would have jurisdiction over claims had the providers not opted out of Medicare). In essence, the provider must agree not to submit any Medicare claims nor receive any payment from Medicare for items or services provided to any Medicare beneficiary for two years.  

This Agreement between Beneficiary and Provider is intended to be the contract providers are required to have with Medicare beneficiaries when providers opt-out of Medicare.  This Agreement is limited to the financial agreement between Provider and Beneficiary and is not intended to obligate either party to a specific course or duration of treatment.

Provider Responsibilities

(1)        Provider agrees to provide Beneficiary such treatment as may be mutually agreed upon and at mutually agreed upon fees.

(2)        Provider agrees not to submit any claims under the Medicare program for any items or services, even if such items or services are otherwise covered by Medicare.

(3)        Provider agrees not to execute this contract at a time when Beneficiary is facing an emergency or urgent healthcare situation.

(4)        Provider agrees to provide Beneficiary with a signed copy of this document before items or services are furnished to Beneficiary under its terms.  Provider also agrees to retain a copy of this document for the duration of the opt-out period.

(5)        Provider agrees to submit copies of this contract to the Centers for Medicare and Medicaid Services (CMS) upon the request of CMS.

 

Beneficiary Responsibilities

(1)        Beneficiary agrees to pay for all items or services furnished by Provider and understands that no reimbursement will be provided under the Medicare program for such items or services.

(2)        Beneficiary understands that no limits under the Medicare program apply to amounts that may be charged by Provider for such items or services.

(3)        Beneficiary agrees not to submit a claim to Medicare and not to ask Provider to submit a claim to Medicare.

(4)        Beneficiary understands that Medicare payment will not be made for any items or services furnished by Provider that otherwise would have been covered by Medicare if there were no private contract and a proper Medicare claim had been submitted.

(5)        Beneficiary understands that Beneficiary has the right to obtain Medicare-covered items and services from providers and practitioners who have not opted out of Medicare, and that Beneficiary is not compelled to enter into private contracts that apply to other Medicare-covered items and services furnished by other providers or practitioners who have not opted out of Medicare.

(6)        Beneficiary understands that Medigap plans (under section 1882 of the Social Security Act) do not,  and other supplemental insurance plans may elect not to, make payments for such items and services not paid for by Medicare.

(7)        Beneficiary understands that CMS has the right to obtain copies of this contract upon request.

Medicare Exclusion Status of Provider

Beneficiary understands that Provider has not been excluded from participation under the Medicare program under section 1128, 1156, 1892, or any other sections of the Social Security Act.

Duration of the Contract

This contract becomes effective on _______________________, 20__, and will continue in effect until ____________________, 20__.  Either party may terminate treatment with reasonable notice to the other party.  Notwithstanding this right to terminate treatment, both Provider and Beneficiary agree that the obligation not to pursue Medicare reimbursement for items and services provided under this contract will survive this contract.

Successors and Assigns

The parties agree that this agreement will be fully binding on their heirs, successors, and assigns.

Provider and Beneficiary intend to be legally bound by signing this agreement on the date set forth below.

________________________________

Dr Mark Tomasulo

 

PeakMed Colorado, LLC

By____________________________

            Dr Mark Tomasulo, Manager

 

_____________________, 20__

Date Signed by Provider and Limited Liability Company

 

                                                                        

Name of Beneficiary (printed)

                                                                        

Signature of Beneficiary

                                                                        

Date Signed