THIS ENGAGEMENT AGREEMENT, along with the Terms and Conditions specified here and made a part hereof (together, the “Agreement”), is by and between TheraClosure, LLC (“TheraClosure”), located at 4400 East West Highway, Suite G, Bethesda, MD 20814 and me hereafter known as the “Client."
BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, THE CLIENT AGREES TO AND BECOMES A PARTY TO THIS AGREEMENT. IF AN INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF THE CLIENT, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THE CLIENT IDENTIFIED IN THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS OR CONDITIONS OF THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT.
The Client hereby engages TheraClosure to provide specific services specified below, which will include assistance in creating and storing a Professional Will for the Client’s psychotherapy practice (the “Practice”), and, pursuant to the terms set forth below, retaining TheraClosure to serve as the “Practice executor” to work to carry out the goals of the Client’s Professional Will upon the Client’s incapacitation or death, as described below and hereafter known as an “Incident”.
The term “Services” shall include all services specified hereunder.
For Clients who are owners of group practices consisting of more than one provider, this Agreement pertains only to the Client’s patients for whom the Client provides direct services, but not the patients of employees/contractors of the Practice unless they have entered into this Agreement and retained TheraClosure.
For the avoidance of doubt, this Agreement shall be effective upon the payment of the initial fee and the submission of the Professional Will, as described below.Initially, as described below, TheraClosure shall provide Services to prepare for an Incident.
TheraClosure will also provide Services following an Incident; provided, however, in order for TheraClosure to provide post-Incident Services, the Client’s personal representative or any other party having the legal authority to act on behalf of the Client (hereinafter, the “Personal Representative”) shall provide TheraClosure written notice of the Incident and an acknowledgment of the Client’s engagement of TheraClosure hereunder, pursuant to such written instrument required by TheraClosure from time to time.
To initiate Services, the Client must pay in full for year 1 of a coverage plan of their choice (detailed below) plus an additional charge of a $200 set up fee. TheraClosure is a subscription service, so that the Client must pay an advance annual fee for the Services. TheraClosure Coverage is currently $450 per year and is subject to annual increases of 3%.
For those Clients who retain paper medical records, the Client is responsible for all fees related to the digitization of such records, so that TheraClosure will be able to remotely access the records to discharge duties outlined in this agreement. If Client’s estate is in possession of paper records at the time of an Incident, the Client’s estate will pay all associated shipping and digitization fees.
Initial Services include:
(a) One consultation session with a TheraClosure clinician to discuss details of the Client’s practice and professional will.
(b) Access to TheraClosure template to develop a professional will.
(c) TheraClosure will be named in the professional will as the Practice Executor in the event of an Incident.
(d) Access to create a “Client Portal” with TheraClosure to provide all necessary documentation regarding their Practice which would enable TheraClosure to function as Practice Executor. Any personal health care information will be securely stored with encrypted and HIPAA compliant means.
(e) A free password manager.
(f) Client who choses to digitize paper records for electronic archiving may arrange to do so independently, or they may request TheraClosure to faciliate digitization. All costs of the digitization are the responsibility of the Client.
This Enrollment Agreement is in effect for 1 year from date of payment and initial signature. In the first year of enrollment, the designation of TheraClosure as the Practice Executor only occurs, and TheraClosure's duty to execute the Professional Will only begins, when the Professional Will is signed, and will end on the anniversary of the Enrollment Agreement. The Client understands that the timing of the completion of TheraClosure documents needed to create the Professional Will depends entirely on the Client.
The Personal Representative’s shall notify TheraClosure of an “Incident,” which is defined as an illness, accident, injury, or disappearance such that the Client is physically or mentally unable to fulfill the professional duties of his/her Practice, which may include without limitation the psychotherapy, psychological testing, coaching, or other mental health treatments or services Client typically provides for “patients” or “clients” of the Practice. An Incident will not include a physical condition in which the Client retains adequate mental faculties and physical capabilities to be present for patients (in person or virtually) or to arrange coverage with a qualified colleague for routine matters such as crisis coverage during a brief absence (i.e., maternity leave, vacation, minor injury, planned surgery, and the like). Absent an Incident, the Client understands he/she will continue to arrange for such coverage for their Practice even if unavailable.
Yearly services include:Prior to the occurrence of an Incident, TheraClosure remains on retainer to provide the services described below.
(a) Continued access to the “Client Portal” to update information as needed to enable TheraClosure to function as Practice Executor.
(b) Continued use of free password manager.
For those Clients who have digitized paper records and choose to have TheraClosure store those records Pre-Incident, the cost is $50/year, plus $100 per requested file transfer.
Upon the occurrence of an Incident, and the Personal Representative satisfying the duties set forth in Section 1 above, a TheraClosure clinician will be assigned to serve as the Client’s Practice Executor (the “PE”) to provide the Services outlined below throughout three (3) phases:
Post-Incident Phase I: Immediate Triage of Active Patients and Securing of Records:
-Confirm that medical records are securely stored.
-To the extent accessible to TheraClosure, change voicemail, email, and websites to direct patients to the executor, eliminating ways for them to attempt to contact the therapist or her family.
-Obtain contact information for current patients and identify the order in which patients need to be notified to cancel upcoming appointments.
-The PE memorializes all contact with patients, and this is stored by TheraClosure.
The following Phase I Services pertain only to psychotherapy patients, not to psychopharmacology patients:
-Review clinical summaries stored with TheraClosure which pertain to Client’s current active psychotherapy patients in order to consider clinical approach and to procure appropriate referrals.
-Endeavor to contact psychotherapy patients (in manner instructed in PW) with notification of death or of practice interruption due to incapacitation. Endeavor to identify available psychotherapy referrals to match patient needs (using TheraClosure partners who identify therapists with immediate availability). If indicated as the therapist’s preference in the PW, TheraClosure will confirm the availability of the therapist’s own referral colleagues for on-going therapy, then turn to network referrals as necessary, in order to attempt to effectuate a transfer of care.
-Endeavor to facilitate psychotherapy referrals and assist with transfers.
Clients in possession of paper records at the time of an Incident understand and agree that TheraClosure requires the cooperation of the Personal Representative or an Identified Individual the Client has named in order to gain digital access to scheduling, patient contact information, and medical records. The Client will have planned with such individuals to ensure the mechanisms by which their representative will fulfill this duty, understanding that TheraClosure is unable to administer the Professional Will without such access.
Client understands that TheraClosure will not take custody of paper records, but that TheraClosure will assist the Personal Representative or other Identified Individual with directions regarding those files. TheraClosure is not able to accept custodianship or responsibility for the confidentiality or security of any medical records remaining in paper form. TheraClosure will collaborate with Personal Representative or Identified Individual to ship those files to a medical record scanning company to digitize those records and then destroy them in compliance with HIPAA standards.. All costs of the digitization are the responsibility of the Client’s Estate. TheraClosure accepts responsibility for the storage and transfer of those digitized records Post-Incident at no additional cost.
FOR THE AVOIDANCE OF DOUBT, WHILE THERACLOSURE SHALL ENDEAVOR TO TRANSITION PATIENTS TO NEW PROVIDERS, THERACLOSURE CANNOT GUARANTEE THAT IT WILL BE POSSIBLE TO TRANSITION EACH PATIENT TO A NEW PROVIDER.
For psychopharmacology patients scheduled within 2 weeks following receiving notice of an Incident, TheraClosure will endeavor to contact patients to cancel upcoming appointments. For them, and for all other psychopharmacology patients, notification and general referrals, if feasible, will be provided by written letter. If TheraClosure is not able to match psychopharmacology patients to specific providers nor to determine provider availability, TheraClosure will endeavor to provide patients with psychopharmacology referrals with which to begin to determine follow-up care.
Post-Incident Phase II: Billing aspects of Practice (to be handled by TheraClosure billing specialist)
-Using EHR/ billing programs, endeavor to issue bills on behalf of Client’s practice for uncollected fees for completed services provided by Client to patients.
-Direct those incoming payments to Client’s Estate.
-Provide insurance statements as needed to patients to assist with their reimbursement according to the policy the therapist had used.
-Complete insurance reimbursement cycle for any outstanding bills.Provide closure of account notices to patients.
Post-Incident Phase III: Closing the Practice
-Determine which files can be deleted based on legal record retention requirements of the jurisdiction; consider any law requiring notification before destruction.
-Transfer storage of active files (past and present) to TheraClosure online storage platform (or its service provider) so that they are secured but available to patients in the future.
-Determine state-specific requirements regarding public notification when records will be transferred. Provide former patients with notice as required.
-Endeavor to be available in the future to former patients trying to reach the deceased therapist.
-Endeavor to contact applicable vendors to cancel autopayments, as long as Client (or the Personal Representative) provides TheraClosure with a list of autopayments to be cancelled. Client’s Estate to continue to pay for website, telephone, lease bills, etc. that remain in Client’s name for the length of time instructed by TheraClosure, LLC (typically for one year after practice closure).
-Endeavor to contact professional organizations, licensing boards, and malpractice insurance to inform them of the death.
-The Client’s account and PE duties are completed after 1 year, except for retention of records for the duration legally required.
(a) All payments are non-refundable.
(b) The Client understands that if he/she fails to renew the Coverage by submitting payment for the yearly fee, this Agreement will be terminated, and TheraClosure will no longer be on retainer to provide the Services and to serve as Practice Executor in the event of an Incident, even if the Client has not made alternate arrangements at that time.
(c) In event of the Client’s failure to renew (or the Client wished to terminate services with TheraClosure as permitted hereunder), the Client will be given 90 days in which it may extract any information already stored in their TheraClosure Client portal, though new information may not be added. After 90 days or sooner if the Client notifies TheraClosure in writing of their wishes, TheraClosure will delete stored practice information, including passwords and access information. The Client understands that TheraClosure will have no responsibility for data which is stored with integrated service partners, i.e. electronic health record systems.
Upon the occurrence of an Incident and the Personal Representative complying with this Agreement, TheraClosure shall serve as the custodian of the patient records in compliance with the Business Associate Agreement by and between TheraClosure and Client (the “Business Associate Agreement”), which shall be executed upon the completion of the Professional Will. The Client understands he/she is responsible for the following:
-Inform TheraClosure in writing of any specific wishes or instructions regarding the management of patient records upon occurrence of Incident.
-Ensure that this Agreement is acknowledged by the Personal Representative of the estate to facilitate the execution of the custodian of record responsibilities.
-Complete all practice forms and update practice and password information routinely so that TheraClosure will be able to access the necessary information to execute the Professional Will.
-Client understands that record custody and retention services apply only to EHR, not paper records, for which TheraClosure accepts no responsibility.
TheraClosure does not assume responsibility for any deliverables owed by the Client’s Practice. Any debt will be forwarded to the Estate or Personal Representative, or paid per the Client’s instruction, using monies authorized by the Estate.
(a) These terms and conditions (these "Terms") and the Engagement Agreement are the only terms that govern the provision of services ("Services") by TheraClosure, LLC (“TheraClosure”) to the Client named on the Agreement ("Client").
(b) The accompanying TheraClosure Engagement Agreement (the "Engagement Agreement") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Client's general terms and conditions of purchase regardless of whether or when Client has submitted its purchase order or such terms. Fulfillment of Client's order does not constitute acceptance of any of Client's terms and conditions and does not serve to modify or amend these Terms.
(c) Notwithstanding anything to the contrary contained in this Agreement, TheraClosure may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees set forth in the Engagement Agreement.
(a) Cooperation. With respect to the Services, Client shall (i) cooperate with TheraClosure in all matters relating to the Services and provide such access to Client's data, files and software and other records as may reasonably be requested by TheraClosure, for the purposes of performing the Services; (ii) respond promptly to any TheraClosure request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for TheraClosure to perform Services in accordance with the requirements of this Agreement; (iii) provide such materials or information as TheraClosure may request to carry out the Services in a timely manner and ensure that such patient materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents. In order to provide requisite services following an Incident, the estate or personal representative of the Client shall notify TheraClosure of the Incident and execute an acknowledgment with TheraClosure to reaffirm the terms and conditions set forth herein.
(b) Clinical Services. TheraClosure agrees and acknowledges that the Client shall provide, and shall be responsible for providing, all clinical services for the Practice conducted by the Practice and that the Services provided by the Company hereunder shall be limited only to the business, management, and non-clinical services as further described in this Agreement.
(c) Relationship of the Parties. TheraClosure and Client are not joint venturers, partners, employees or agents of each other and, except as provided herein, neither party shall have any authority to bind the other party. No partnership of any kind is intended to be created pursuant to this Agreement or the provision of the Services by TheraClosure.
(d) Regulatory Compliance. Client shall conduct the Practice at all times in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, including, without limitation, with respect to the licensing, credentialing and certification of its professional service providers.
If TheraClosure's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, TheraClosure shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
(a) Client shall purchase the Services from TheraClosure at the prices (the "Prices") set forth in the Engagement Agreement.
(b) Client agrees to reimburse TheraClosure for all out-of-pocket expenses incurred by TheraClosure in connection with the performance of the Services.
(a) As applicable, Client shall pay all invoiced amounts due to TheraClosure on receipt of TheraClosure's invoice. Client shall make all payments hereunder by wire transfer/check and in US dollars.
(b) Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse TheraClosure for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which TheraClosure does not waive by the exercise of any rights hereunder), TheraClosure shall be entitled to suspend the performance of any Services if Client fails to pay any amounts when due hereunder.
(c) Client shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with TheraClosure, whether relating to TheraClosure's breach, bankruptcy, or otherwise.
(a) TheraClosure warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) EXCEPT FOR THE SERVICE WARRANTIES SET FORTH HEREIN, THERACLOSURE MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED. THERACLOSURE PROVIDES THE SERVICES “AS IS”, WITHOUT WARRANTY OF ANY KIND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THERACLOSURE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED.
(c) THERACLOSURE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(a) IN NO EVENT SHALL THERACLOSURE BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THERACLOSURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL THERACLOSURE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE ANNUAL AMOUNT PAID TO THERACLOSURE FOR THE MOST RECENT YEAR.
TheraClosure and Client agree that the Client is a “covered entity” and TheraClosure is a “business associate” as such phrases are defined by the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act (“HIPAA”) and that, in the performance of Services hereunder, TheraClosure will have access to the Client’s patients’ “protected health information,” as such phrase is defined by HIPAA. The parties, therefore, agree to execute a Business Associate Agreement in the form set forth on Exhibit “A,” which is attached hereto and incorporated by reference. TheraClosure agrees to perform its Services involving any “protected health information” in accordance with such Business Associate Agreement.
Client shall comply with all applicable laws, regulations, and ordinances. Client shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
In addition to any remedies that may be provided under these Terms, TheraClosure may terminate this Agreement with immediate effect upon written notice to Client, if Client: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
No waiver by TheraClosure of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by TheraClosure. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
All non-public, confidential or proprietary information of TheraClosure, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by TheraClosure to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by TheraClosure in writing. Upon TheraClosure's request, Client shall promptly return all documents and other materials received from TheraClosure. TheraClosure shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party.
No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to TheraClosure hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) telecommunication breakdowns, power outages or shortages; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within twenty (20) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of ninety (90) consecutive days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon written notice.
Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of TheraClosure. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Maryland without giving effect to any choice or conflict of law provision or rule (whether of the State of Maryland or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Maryland.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Maryland, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Engagement Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.