This Agreement for Provision of CDPAS to

(the “Consumer”), executed on the date note below, is hereby entered into by and between the Consumer and Xincon Home Health Care Services, Inc. (“Xincon”) to expressly outline the parties’ responsibilities with respect to provision of CDPAS to the Consumer. As a condition of the Consumer enrolling in Xincon’s Consumer Directed Personal Assistant Services Program and receiving Xincon’s fiscal intermediary services, the Consumer hereby agrees and promises the following:

1. The Consumer will be solely responsible for managing the plan of care authorized by the Managed Care Organization;
2. The Consumer will be solely responsible for recruiting and hiring a sufficient number of individuals to provide authorized services that are included in the plan of care;
3. The Consumer will be solely responsible for training, supervising and scheduling each assistant, for each shift;
4. The Consumer will be solely responsible for terminating each of his/her personal assistants’ employment;
5. The Consumer will ensure that each personal assistant competently and safely performs the personal care services, home health aide services and skilled nursing tasks that are included on the Consumer’s plan of care. Xincon will not perform any oversight over the services performed by the personal assistant in the CDPAP. To the extent the Consumer receives any services other than CDPAP from Xincon, the terms and conditions of such service will be governed by a separate agreement.
6. The Consumer will be responsible for agrees to notify the Managed Care Organization and Xincon within five (5) business days of any changes in the Consumer’s medical condition or social circumstances including, but not limited to, any hospitalization of the consumer or change in the consumer’s address, telephone number or employment, or any changes to the Consumer’s personal assistant’s name, contact information, and hours worked;
7. The Consumer will ensure the Personal Assistant(s) is/are authorized to work in the United States
8. The Consumer will timely notify Xincon of any changes in the employment status of each personal assistant;
9. The Consumer will confirm and attest to the accuracy of each personal assistant’s time records;
10. The Consumer will ensure that Xincon receives the personal assistant’s time sheets each week;
11. The Consumer will timely distribute each personal assistant’s paycheck, if needed;
12. The Consumer will arrange and schedule substitute coverage when a personal assistant is temporarily unavailable for any reason;
13. The Consumer will comply with any applicable labor laws and provide equal employment opportunities to personal assistants in accordance with applicable laws;
14. The Consumer will keep confidential any information pertaining to the Managed Care Organization’s business (including the compensation arrangements between the Managed Care Organization and Xincon and the compensation of the personal assistant), and promptly notifying Xincon or the MCO if such information is disclosed;
15. The Consumer will provide any equipment or supplies necessary for the personal assistant’s work (e.g., gloves Xincon will not reimburse the patient for any costs incurred for the equipment or supplies;
16. The Consumer will provide training, if any, to his/her personal assistant(s) regarding occupational safety and health and offer and pay for any vaccinations (e.g., Hepatitis B);
17. The Consumer will specify the manner and means of how the personal assistant performs his/her services (Xincon will not provide any training to the personal assistant on how work is to be done);
18. The Consumer will identify the employment criteria for his/her personal assistant and ensure that a personal assistant is qualified to perform the services. The consumer understands that Xincon will not pre-screen any applicants who will work for the consumer, verify work experience or educational background, or conduct a background check on the prospective personal assistant;
19. The Consumer will monitor the personal assistant’s hours to ensure they do not exceed the authorized number of hours;
20. The Consumer will provide education and training to the personal assistant concerning his/her work (e.g., training on how to lift a consumer properly and bathe a consumer);
21. The Consumer will conduct a background check for any personal assistant that is hired, pay for such background check, and analyze the results of any such background check;
22. The Consumer will develop a system for communicating with the personal assistant – Xincon will not be involved in relaying messages to the personal assistant on behalf of the consumer or vice-versa;
23. The Consumer will determine, with the personal assistant, the method of pay (e.g., direct deposit, check pick-up, mailing);
24. The Consumer will establish the rules and code of conduct for the personal assistant and enforce such rules, including administration of discipline;
25. The Consumer will comply with the requirement to provide the personal assistant time off under any federal, state, or local law;
26. The Consumer will secure any short-term replacements or substitutes when a personal assistant is not available for work, understanding that any such substitute must be registered with Xincon;
27. The Consumer agrees to report any fraudulent activity by the personal assistant to the MLTC and, to the extent related to Xincon’s role as a fiscal intermediary, to Xincon;
28. The Consumer will purchase and provide to the personal assistant any uniforms that the consumer may require the personal assistant to wear. Xincon does not require personal assistants to wear any particular uniform. Xincon will not reimburse the consumer or a personal assistant for the cost of any uniform or uniform maintenance. Any such costs must be borne by the consumer;
29. The Consumer accepts responsibility for any and all items removed from or destroyed within the Consumer’s primary residence or vehicle without the Consumers consent;
30. The Consumer will conduct and pay for any fingerprinting tests for purposes of a background check, if you decide to perform such a background check on the personal assistant. Xincon will not be fingerprinting the personal assistant for any purposes;
31. The Consumer will provide his/her personal assistant with the applicable workplace posters;
32. The Consumer understands that personal assistant services will not be paid by Xincon until all paperwork is completed and returned to the office;
33. The Consumer must have Medicaid and provide assurances that it remains current;
34. Consumers who become ineligible for Medicaid benefits and who fail to notify Xincon of their ineligibility status, and nonetheless continue to receive CDPAS from Xincon during the period of ineligibility will be responsible for repayment to Xincon of any compensation received by the personal assistant during said period;
35. The Consumer will meet the monthly spend down if applicable;
36. Any arrangements regarding transportation of the Consumer as a duty of the personal assistant shall be an agreement made strictly between the Consumer and the personal assistant. It is understood that Xincon neither condones nor discourages this activity and accepts no liability in the event of accident or injury. 
37. The Consumer will provide Xincon with all authorization and re-authorization forms and any other documents that Xincon needs to provide CDPAP to the Consumer.

In addition, by signing the acknowledgment page at the bottom of this manual, the consumer acknowledges and agrees that: (1) any person who receives, directly or indirectly, an overpayment from the Medicaid program is obligated to report and return the overpayment, within 60 days of the identification of the overpayment. Failure to do so may expose the person to liability under the False Claims Act, including whistleblower actions, treble damage and penalties; and (2) that the Office of the Medicaid Inspector General or the managed care organization may suspend payments to the Xincon and the consumer’s personal assistant, if applicable, pending an investigation of a credible allegation of fraud against Xincon or the consumer’s personal assistant, as applicable, unless the state determines there is good cause not to suspend such payments.

Xincon hereby agrees to perform the following in the CDPAS:

1. Process each personal assistant’s wages and benefits;
2. Process all income tax and other required wage withholdings;
3. Comply with worker’s compensation, disability and unemployment insurance requirements;
4. Ensure that the health status of each personal assistant is assessed in accordance with applicable regulations;
5. Maintain personnel records for each personal assistant, but such records will be limited to time sheets and other documentation needed for wages and benefit processing, and necessary medical documentation;
6. Maintain records for each consumer;
7. Monitor the consumer’s or, if applicable, the consumer’s designated representative’s, continuing ability to fulfill the responsibilities under the CDPAP
8. Promptly notify the social services district or the managed care organization of any circumstance that may affect the consumer’s or, if applicable, the consumer’s designated representative’s ability to fulfill such responsibilities;
9. Comply with the Department of Health regulations that specify the responsibilities of providers enrolled in the medical assistance program; and
10. Enter into a contract with the social services district for the provision of fiscal intermediary services.

By enrolling in the CDPAP, the consumer affirms that the consumer understands and acknowledges that Xincon will render services in accordance with the regulatory and statutory mandates applicable to fiscal intermediaries. The Consumer acknowledges that he/she cannot authorize or permit the personal assistant to work in excess of the hours that were authorized by the managed care organization.

We will not discriminate in the provision of CDPAS on the basis of handicap, race, color, religion, national origin, sex, or age. Our services will be provided to consumers regardless of any of these protected characteristics. Denial of services will be based on legitimate and nondiscriminatory reasons. Any consumer that believes he or she was denied services in violation of this policy should report it to Administrator at Xincon Home Health Care Services, Inc.. All complaints will be investigated promptly and, to the extent appropriate, confidentially.

I agree to track and accurately record all hours worked by my Personal Assistant(s I will select the method for tracking my Personal Assistants’ hours of work.

I understand that the Personal Assistant can only work the hours that have been pre-approved by the Managed Care Organization for my care, and that I do not have authority to authorize the Personal Assistant to work additional hours. I understand that I can submit to Xincon for processing only time sheets for hours worked and, thus, when I am out of town, in a hospital, or other similar situation where CDPAS is not provided, I will not report hours worked on my personal assistant’s timesheet. Should my condition change and necessitate additional hours of care, I agree to bring such issues to Xincon’s and Managed Care Organization’s attention immediately. I understand that Xincon has no responsibility to schedule the number of hours my Personal Assistant works, or the days that the Personal Assistant works or takes off, and that I am solely responsible for any and all scheduling of hours by the Personal Assistant.

I acknowledge and agree that (1) any person who receives, directly or indirectly, an overpayment from the Medicaid program is obligated to report and return the overpayment, within 5 days of the identification of the overpayment. Failure to do so may expose the person to liability under the False Claims Act, including whistleblower actions, treble damage and penalties; and (2) that the Office of the Medicaid Inspector General or MCO may suspend payments to Xincon and Personal Assistant, if applicable, pending an investigation of a credible allegation of fraud against Xincon or the Personal Assistant, as applicable, unless the state determines there is good cause not to suspend such payments.

If a Personal Assistant works hours that are not authorized by the Managed Care Organization and I ask that the Personal Assistant be paid for those hours by Xincon, I understand that I may be criminally charged for Medicaid fraud and assessed civil penalties. I also understand that I will be required to repay to Xincon any and all amounts erroneously paid by Xincon to the personal assistant.

I affirm and acknowledge that I am solely responsible for ensuring that all timesheets submitted to Xincon concerning my Personal Assistant(s)’ work hours are accurate. Each week, before submitting the timesheets/record of work hours to Xincon for processing and payment, I will review the Personal Assistant’s timesheet/record of work hours to ensure that they accurately reflect all hours worked by the Personal Assistant.

Xincon’s workweek begins on Saturday at 12:00 AM and ends on Friday Midnight 12:00 AM. No later than Monday following the end of the pay period, I will submit (either by fax, email, call-in, or personal delivery to Xincon’s office) the Personal Assistant’s time sheet to Xincon, to ensure prompt processing of the Personal Assistant’s wages.

Xincon CDPAP does not perform background checks of any kind on personal assistants employed by consumers. Our role is solely limited to confirming that the personal assistant is not on the Medicaid and/or Medicare Exclusion List. Consumers, however, are free to conduct such background checks on any personal assistant they may consider hiring or personal assistants they have hired. Consumers will be solely responsible for ordering, paying for, and reviewing any such background reports and complying with any legal requirements related to the processing or use of background checks in employment of their personal assistants.

Should I choose to have my personal assistant drive or transport me anywhere, I understand that it is my or my designated representative’s sole responsibility, as the employer of the personal assistant, to train and instruct my personal assistant on how he or she should transport me and drive his or my vehicle. I understand and acknowledge that it is my or my designated representative’s sole responsibility to gather and review the driving record and driving ability of my personal assistant.

I affirm and acknowledge that my personal assistant(s) is not an employee of Xincon Home Care (“Fiscal Intermediary”) and, therefore, the Fiscal Intermediary has not reviewed my personal assistant’s driving record or driving abilities, and the Fiscal Intermediary has not provided any training to my personal assistant on driving, transporting consumers, or any similar tasks that are related to or involved in transporting a consumer from one location to another or in a vehicle.

I understand that I may ask my personal assistant to transport me in his/her vehicle or in my vehicle.

I understand that there is an inherent risk and danger of injury, including death, when being driven by another individual or being a passenger in a vehicle. I, and on behalf of any of my successors, assigns, heirs, executors, and administrators, do hereby waive, release, and forever discharge the Fiscal Intermediary and any of its related companies, affiliates, officers, agents, employees, representatives, executors, assigns, and all others associated with the Fiscal Intermediary or acting on its behalf, from any and all responsibilities or liability for injuries or damages that may result from having my personal assistant drive me to and from any location.

I, and on behalf of any of my successors, assigns, heirs, executors, and administrators, do also hereby release the Fiscal Intermediary and any of its related companies, affiliates, officers, agents, employees, representatives, and assigns from any responsibility or liability for any injury or damage to myself or others who may make a derivative claim for injury or damage to me, including those injuries or damages caused by the negligent act or omission of the Fiscal Intermediary or in any way arising out of or connected with my being driven by my personal assistant. My release of liability and waiver of claims expressly releases the Fiscal Intermediary from its own negligence which may result in any injury or damage to me or others, regardless of how such injury or damage may arise, and regardless of who is at fault.

To the fullest extent permitted by law, on behalf of myself, my personal representatives, and my heirs, administrators, executors, successors, and assigns, I hereby agree to fully release, waive, discharge, defend, indemnify, and hold harmless the Fiscal Intermediary and any of its affiliates or related companies, its officers, partners, representatives, agents, and employees from any and all claims, actions, damages, causes of action, or losses for bodily injury, illness, wrongful death, loss of services, other damages, or otherwise which may arise out of the fact that I was driven and transported by my personal assistant, whether in law or in equity, known or unknown, presently due or contingent, liquidated or unliquidated.

The Fiscal Intermediary and any of its related entities or affiliates, officers, partners, representatives, agents, and employees are not responsible for any loss or theft of personal property that may be caused by my personal assistant, whether such loss was caused by the personal assistant indirectly (i.e., through the personal assistant’s negligent care of my belongings) or directly (i.e., through the personal assistant’s theft of my belongings), and I release the Fiscal Intermediary and any of its related entities or affiliates, its officers, partners, representatives, agents, and employees from any liability for such loss or theft.

I have read and fully understand this release and waiver of liability and, to the extent I wished to discuss it with my own legal counsel or other adviser, I have had an opportunity to do so. I confirm that I am 18 years old or older. I am signing this document voluntarily. I understand that this signed form will be retained in my personnel file.

It is our policy to be in compliance with all Federal and State rules, laws and regulations, including applicable Medicaid regulations and policies. The Consumer Directed Personal Assistance Program (“CDPAP”) is administered pursuant to the Xincon Corporate Compliance Program. The following outlines specific provisions of the Compliance Program applicable to CDPAP consumers and personal assistants (“PAs”).

A. CDPAP Compliance Issues

Consumers and PAs must accurately record and report time for all CDPAP services rendered. The submission of inaccurate timesheets to Xincon will cause Xincon to submit false claims to the Medicaid program, including managed care organizations, and result in overpayment liability. The intentional falsification of timesheets or other business records relating to the CDPAP program may constitute criminal conduct and result in civil and criminal prosecution. Xincon monitors timesheets submitted for CDPAP and will investigate any abnormalities. Referrals to the appropriate legal authorities will be made in circumstances where Xincon discovers intentional criminal conduct or civil mal

B. PA Expectations

As part of this compliance program, all consumers and PAs are urged to raise any concerns about the accuracy or propriety of any documentation or billing practice or any other compliance issue without concern for retaliation. Any direction from a consumer to inaccurately report, or falsify, timesheets or other business records should be immediately reported. Similarly, any direction from a PA to a consumer to inaccurately report, or to falsify, timesheets or other business records should be immediately reported.

C. Applicable Laws

Specific laws implicated by CDPAP include:

1) Fraud and Abuse

Consumers and PAs shall refrain from conduct which may violate the fraud and abuse laws. These laws prohibit (1) direct, indirect or disguised payments in exchange for the referral of patients: (2) the submission (or causing submission) of false, fraudulent or misleading claims to any government entity or third party payer, including claims for services not rendered, claims which characterize the service differently than the service actually rendered or claims which do not otherwise comply with applicable program or contractual requirements; and (3) making false representations to any person or entity in order to gain or retain participation in a program or to obtain payment or excessive payment for any service.

2) False Claims Act

The Federal False Claims Act is a law that prohibits a person or entity, such as Xincon, from “knowingly” presenting or causing to be presented a false or fraudulent claim for payment or approval to the Federal Government and from “knowingly” making, using or causing to be made a false record or statement to get a false or fraudulent claim paid or approved by the Federal Government. These prohibitions extend to claims submitted to federal health care programs, such as Medicaid. The terms “knowing” and “knowingly” is having knowledge of the information and acts in reckless disregard of the truth or falsity of the information.

A person or entity found guilty of violation can be obligated to civil penalty up to $11,000 plus three times the amount of actual damages. A person or entity can also find themselves excluded from the Medicaid Programs if found in violation.

Note: A private person who brings civil actions for violations to the False Claims Act is entitled to receive percentages of monies obtained through settlements and is protected by the Non-Retaliation and Non-Retribution for Reporting Policy of the Compliance Program.

New York State False Claims Act makes it unlawful to knowingly make a false statement or representation (or deliberate concealment of any material fact or other fraudulent scheme or device) to attempt to obtain Medicaid payments for services or supplies furnished under the New York State Medical Assistance Program. A violation of this Act can result in civil damages three times overstated amount of $5,000 whichever is greater. Xincon or the individual may also be required to pay civil monetary penalty to the Medicaid program if it was known that the services or supplies were not medically necessary, not provided as claimed, if the person requesting such was excluded from the program or the services or supplies for which payment was received but not provided.

New York State may also impose the threat of criminal prosecution who had the intent to defraud the State program a Class A misdemeanor punished in accordance with the penalties fixed by such law.

 

E. Non-Retaliation and Non-Retribution for Reporting

PAs and consumers who wish to report concerns of potential violations of this policy or the law may do so through the Compliance Line, or directly to the Compliance Officer. We have a non-retaliation/ non-retribution policy. Xincon managers and supervisors are not permitted to engage in retaliation, retribution or any form of harassment directed against a PA or a consumer who reports a Compliance concern.

Any Xincon employee who engages in retribution, retaliation or harassment against a reporting consumer or PA is subject to discipline up to and including dismissal.

Neither consumers nor PAs should not be apprehensive about reporting Compliance concerns.

F. Corporate Compliance Program Operation

Consumers and PAs may confidentially report concerns through our compliance line at 1-855-400-0094.

Alternately, consumers and PAs may reach our Compliance Officer, _Emmi Chen th _212-560-9218_, via e-mail at _emmic@xinconcare.com_, or in person at _224 West 35 Street, Suite 708 New York NY 10001

PAs and consumers may also request and obtain additional information on the Xincon Corporate Compliance Program, or ask any questions of the Compliance Officer, at any time.

I Hereby acknowledge that I have received, reviewed, and understand, the compliance issues, expectations and program operation of the Xincon CDPAP.

This Dispute Resolution Agreement (the “Agreement”) is entered into by and between Xincon Home Health Care Services, inc. and

(“the Consumer”), and shall be effective as of the date the parties sign this Agreement.

WHEREAS, the Consumer wishes to receive certain Consumer Directed Services from Xincon Home Care;

WHEREAS, Xincon provides such services and wishes to make Consumer one of the recipients of its services;

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:

The Consumer and Xincon desire to avoid traditional litigation for disputes of limited monetary value and, therefore, agree that any controversy, claim or dispute arising under, concerning or otherwise relating to the Consumer’s receipt of CDPAS from Xincon (“Dispute”) shall be resolved exclusively as set forth in this Dispute Resolution Agreement. In the event of a Dispute, the parties shall use all reasonable efforts to resolve the Dispute through direct discussions. Within thirty (30) days of written notice that there is a Dispute, the parties shall meet in a location that is mutually agreed upon by the parties, or will confer by telephone in an effort to reach an amicable settlement and to explore alternative means to resolve the Dispute expeditiously (e.g., mediation If the Dispute has not been resolved within thirty (30) days of the initial written notice that there is a Dispute (or such additional time to which the parties may agree), the matter shall be resolved by final and binding arbitration before a single arbitrator in location that is mutually agreed upon by the parties. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, and the parties agree that the arbitrator may impose sanctions in his or her discretion to enforce compliance with discovery and other obligations. The arbitrator’s decision shall be final and binding upon the parties, and judgment on an arbitral award may be entered by any court of competent jurisdiction, or application may be made to such a court for judicial acceptance of the award and any appropriate order including enforcement. The arbitrator shall have the power to grant temporary, preliminary and permanent relief, including injunctive relief and specific performance. The arbitrator shall award the successful or prevailing party reasonable attorneys’ fees and other costs incurred in connection with that action or proceeding, in addition to any other relief to which it may be entitled. If any other proceeding is brought by one party against another to enforce an arbitration award, the successful or prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.

This Agreement is made pursuant to and shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflict of law.

I am a Consumer or a Designated Representative of a Consumer who is enrolled in the Xincon Home Health Care Services Inc.’s CDPAP. Upon my enrollment into the CDPAP I received an orientation by a Xincon Consumer Service Representative. At the time of this orientation to CDPAP, the rules and regulations for participation in Xincon’s CDPAP were explained to me, and I have had my questions answered. If I have any questions in the future, I have been provided with the name and contact information of my Consumer Service Representative who I can call at any time. I agree to abide by all the terms and conditions contained in this Welcome Packet for the Consumer.

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