SETTLEMENT AGREEMENT AND RELEASE AMONG DR. DONALD P. PROHOVICH, D.D.S., P.C.

and COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES and COMMONWEALTH OF MASSSACHUSETTS OFFICE OF THE ATTORNEY GENERAL PARTIES This Settlement Agreement and Release ("Agreement") is entered into as of February , 2014 (the "Effective Date") among the Massachusetts Executive Office of Health and Human Services ("EOHHS"), limited to its role as the single state agency for Medicaid ("MassHealth"); the Medicaid Fraud Division ("MFD") of the Commonwealth of Massachusetts Office of the Attorney General ("Attorney General"); and Dr. Donald P. Prohovich, D.D.S ("Prohovich"), an approved dental provider in the MassHealth program. Prohovich's principal place of business is 44 Center St, North Easton, MA 02356. Together, EOHHS, the Attorney General, and Prohovich will be referred to as "the Parties." PREAMBLE A. WHEREAS, at all relevant times, Prohovich, operating under MassHealth provider numbers 110010533 and 110072236, was a dental practice that provided certain MassHealth members living in nursing homes and long-term care facilities with dental services for which Prohovich received payment from MassHealth; WHEREAS, MassHealth's dental benefits are administered by EOHHS according to the regulations set forth in the Code of Massachusetts Regulations ("C.M.R.") at 130 C.M.R. § 420.000 et. seq.; and MassHealth's administrative and billing regulations are administered by EOHHS under the CMR at 130 C.M.R. § 450.000 et seq. These regulations, all applicable state statutes including M.G.L.c. 12 §5B and M.G.L.c. 118E § 40, as well as information given to Prohovich in MassHealth's Dental Manual and related Transmittal Letters and Bulletins set forth the laws, rules and regulations governing Prohovich's participation as a MassHealth provider; WHEREAS, pursuant to a revision of MassHealth regulations effective July 1, 2010, MassHealth only pays for one house call to a nursing home or long-term care facility per day, in addition to other medically necessary MassHealth-covered services, 130 C.M.R. § 420.456(G);

B.

C.

D.

WHEREAS, this Agreement addresses the following Covered Conduct for the relevant time period of July 1, 2010 through September 1, 2013: 1. The Attorney General conducted an investigation into Prohovich's billing for house calls to provide dental services to MassHealth members in nursing homes or long-term care facilities; As a result of the investigation, the Attorney General contends that it has identified evidence that Prohovich was not in compliance with certain laws, regulations, and/or rules governing billing MassHealth for house calls to MassHealth members in nursing homes or long-term care facilities, resulting in overpayments for which the Attorney General has made demand. In particular, the Attorney General contends that: a. Prohovich submitted claims to MassHealth for reimbursement of house calls on multiple MassHealth members at the same facility on the same day, in reckess disregard of the limitation of coverage of house calls under 130 C.M.R. § 420.456(G) to once per facility per day;

2.

3.

Prohovich requested, received, and reviewed materials from the Attorney General regarding his billing practices; in response, Prohovich provided the Attorney General with factual and legal arguments to support his position that he did not intentionally submit improper claims for reimbursement or improperly retain overpayments resulting from billing for house calls to MassHealth members in nursing homes or long-term care facilities;

E.

WHEREAS, by entering into this Agreement, Prohovich neither admits nor denies the Attorney General's allegations. Rather, the Parties wish to avoid the costs and burdens of litigation proceedings and seek to reach an Agreement that will fully and finally settle the allegations set forth in Paragraph D of the Preamble and any and all related claims. TERMS AND CONDITIONS

NOW, THEREFORE, in reliance on the representations contained herein and in consideration of the mutual promises, covenants, and obligations set forth in this Agreement, and for good and valuable consideration as stated herein, the Parties set forth the following Terms and Conditions of Agreement: 1. Full and Final Settlement: This Agreement is intended to settle and resolve with finality the allegations set forth in Paragraph D of the Preamble. In order to effectuate such purpose, and in accordance with the mutual covenants and agreements contained herein, and with fully authority to enter into this Agreement, the Parties hereby enter into and execute this Agreement and agree to be bound by all of its provisions. This Agreement represents a final settlement between the Parties for the Covered Conduct only, and it shall not bind any private entity or any state government entity other than EOHHS, limited to its role as the single state agency for Medicaid, and the Attorney General, nor

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shall it release Prohovich from liability for any other conduct not specified in Paragraph D of the Preamble. This Agreement does not include or bind any federal government entity, including the United States. 2. Non-Financial Terms: By executing this Agreement, Prohovich, after the Effective Date of this Agreement, that he will: a. Ensure that he and all members of his staff, including those responsible for billing MassHealth, or any agent acting on behalf of Prohovich will review and comply with any MassHealth or EOHHS Transmittal Letter or Bulletin or on any amendments to the MassHealth Dental Manual distributed electronically or in hardcopy to Prohovich, regarding any changes to MassHealth rules, regulations or statutes; b. Maintain and preserve records, electronically or in hardcopy, identifying the person providing service to a MassHealth member; c. Comply with all applicable state and federal statutes, and all applicable state and/or federal rules and regulations governing participation in and material conditions of payment by MassHealth, including without limitation 130 C.M.R. § 420.456(G); M.G.L. c. 118E § 40; M.G.L. c. 12 § 5B; and M.G.L. c. 93A § 2. Prohovich acknowledges that he has read and understood all such applicable state and federal statutes, and all applicable state and/or federal rules and regulations participation in and material conditions of payment by MassHealth relating to the subject matter of the Covered Conduct specified in Paragraph D of the Preamble; d. For five (5) years from and after the Effective Date of this Agreement, and by the Effective Date of this Agreement each year, annually provide training to all Prohovich employees or any agent acting on behalf of Prohovich regarding applicable state and federal statutes, rules and regulations including without limitation M.G.L. c. 118E § 40 through § 42, 130 C.M.R. § 420.000 et seq., 130 C.M.R. §450.205, and the MassHealth Dental Manual; e. For five (5) years from and after the Effective Date of this Agreement, obtain and maintain written certification from each Prohovich employee or agent acting on behalf of Prohovich, to be signed under the pains and penalties of perjury and completed by the Effective Date of this Agreement each year, that each Prohovich employee or agent acting on behalf of Prohovich reasonably and in good faith believes he/she/it is compliant with all state and federal rules, regulations and statutes governing Medicaid and MassHealth; f. For five (5) years from and after the Effective Date of this Agreement, provide written certification signed under the pains and penalties of perjury to MassHealth annually, beginning on February ^ , 2014 and continuing on FebruaryQ>| of each subsequent year, of compliance with paragraph 2 of the Terms and

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Conditions, "Non-Financial Terms"; g. For five (5) years from and after the Effective Date of this Agreement, maintain and make available upon reasonable request, whether on-site or by delivery to MFD and/or MassHealth, whether electronically or in hardcopy, a copy of all written policies implemented to insure Prohovich's compliance with paragraph 2, "Non-Financial Terms," any training materials utilized or created to ensure compliance with paragraph 2, "Non-Financial Terms," and any documentation needed to be maintained under MassHealth regulations including, but not limited to, 130 C.M.R. §450.205; and h. For five (5) years from and after the Effective Date of this Agreement, make available, upon reasonable request, to MassHealth, MFD or any person acting on behalf of MFD and/or MassHealth, any and all current Prohovich employees for interview to ensure Prohovich's compliance with paragraph 2, "Non-Financial Terms." 3. Settlement Amount: a. Prohovich agrees to pay to the Commonwealth of Massachusetts the Total Settlement Amount of $400,000.00 as restitution for overpayments received for claims and payments received from MassHealth for house calls for more than one patient per facility per day. This payment, once complete, shall be in full satisfaction of Prohovich's obligations under and arising out of, and in connection with, this Agreement. Payments shall be made as follows: i. Initial Payment: Prohovich is to make an initial payment of $100,000.00 on the Effective Date of this Agreement by way of a certified or cashier's bank check made payable to the "Commonwealth of Massachusetts;" ii. Withholding: A 20% annual withholding of future MassHealth payments made to Prohovich under any provider number up to a maximum of $100,000.00 each year for three (3) years by the annual Effective Date until the $400,000.00 is paid; 1. In the event that the 20% annual withholding does not achieve the $100,000.00 payment by the Effective Date for a given year, Prohovich shall pay the difference owed, subtracting payments withheld that year, on that year's Effective Date, by a certified or cashier's bank check made payable to the "Commonwealth of Massachusetts." Any check, if necessary, shall be delivered to : Assistant Attorney General George Zachos, Chief of MFD or his designee Office of the Attorney General Commonwealth of Massachusetts

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One Ashburton Place, Room 1813 Boston, MA 02108 b. EOHHS and the Attorney General, acting on behalf of the Commonwealth of Massachusetts, agrees not to place a lien on any asset of Prohovich to secure the restitution payment on the condition that Prohovich annually satisfies the $100,000.00 payment by or on the Effective Date each year. If EOHHS and/or the Attorney General believe Prohovich has not made a payment that was due under this Agreement, they shall provide Prohovich with written notice of that default and Prohovich shall have ten (10) business days to cure said default before a lien may be secured; c. Receipt of the Total Settlement Amount as specified in Section a of this paragraph shall constitute full and final settlement of the Covered Conduct and all alleged overpayments related to the Covered Conduct described in Paragraph D of the Preamble. The Release: In consideration of the execution of this Agreement and conditioned upon Prohovich's payment in full of the Total Settlement Amount outlined in Paragraph 3 of Terms and Conditions: a. EOHHS and the Attorney General hereby release Prohovich, its predecessors, successors, transferees, heirs and assigns, and their current and former directors, officers, employees and agents individually and collectively from all civil, criminal or administrative claims or causes of action which were or could have been raised in any civil, criminal or administrative action or proceeding relating to the Covered Conduct described in Paragraph D of the Preamble. b. The release provided in Section a of Paragraph 4, "The Release," is limited to civil, criminal and administrative liability arising from the Covered Conduct described in Paragraph D of the Preamble, and does not extend to liability arising from any other conduct of Prohovich. c. This Agreement represents a final settlement between the Parties for the Covered Conduct only, and it shall not bind any private entity or any state government entity other than EOHHS, limited to its role as the single state agency for Medicaid, and the Attorney General, nor shall it release Prohovich from liability for any other conduct not specified in Paragraph D of the Preamble. Nor shall this Agreement bind any federal government entity, including the United States. d. Prohovich hereby releases EOHHS and the Attorney General, their successors, assigns, present or former officers, directors and employees from all civil or administrative liability, and from any claims, counterclaims, agreements, contracts, duties, damages, demands, costs, losses and expenses (including attorneys' fees and litigation costs actually incurred) of any nature whatsoever, in law or in equity, whether statutory or common law, arising in any way from the

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Agreement. 5. No Appeal: The terms of this Agreement shall not be subject to appeal in any forum. This Agreement is a settlement agreement. It is not a final agency action for the purpose of M.G.L. c. 3OA § 14. 6. Voluntary and Freely: The Parties each represent that this Agreement is freely and voluntarily entered into without any degree of duress or compulsion whatsoever. 7. Execution of Original Agreement in Triplicate: This Agreement consisting of seven (7) typewritten pages shall be executed in triplicate, each of which shall constitute an original, and all of which will constitute one and the same Agreement. 8. Signatories are Authorized to Sign: Each person who signs this Agreement in a representative capacity warrants that s/he is duly authorized to do so. 9. Agreement Effective Upon Signing: This Agreement shall be final and binding only upon a signing by each representative party hereto and shall be effective on the date it is signed. 10. Binding on Successors: This Agreement shall be binding on all successors, transferees, heirs and assigns of the Parties. 11. Entire Agreement: This Agreement constitutes the full and complete agreement between the Parties with respect to the subject matters hereof, and supersedes any and all other written or oral communications or agreements related thereto. 12. Won't Seek Payment: Prohovich shall not seek payment for any of the claims for restitution to be paid under this Agreement from any health care beneficiaries or their parents, sponsors, legally responsible individuals, or third party payors. 13. Governing Law: This Agreement shall be governed in all respects by the laws of the Commonwealth of Massachusetts. 14. Modification: This Agreement may be modified only in a writing signed by or on behalf of all Parties to this Agreement. 15. No Admission or Denial of Wrongdoing: This Agreement is not, nor shall it be construed to be a sanction of any kind. By entering into this Agreement, Prohovich neither admits nor denies the allegations specified in Paragraph D of the Preamble, and neither party will issue any public statement to the contrary, although the Parties may quote the provisions language of Paragraph D in public statements regarding this Agreement. This Agreement is not a concession by the Commonwealth of Massachusetts that its allegations were not well-founded.

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DR. DONALD P. PROHOVTCH, D.D.S., P.C.

By Dr. Donald P. Prohovich, D.D.S. Owner Dr. Donald P. Prohovich, D.D.S, P.C. 44 Center Street North Easton, MA 02356 s.
•— ,/\

Dated:

I^

Jv.

\f

A Paul Cirel, Esq. (As Counsel for Prohovich) Collora LLP 100 High Street, 20th Floor Boston, MA 02110

\

. 0- ">1 Dated:

EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, OFFICE OF MEDICAID

By: Kristin Thorn Medicaid Director Executive Office of Health and Human Services ih One Ashburton Place, 11 •loor Boston, MA 02108 MARTHA COAKLEY, ATTORNEY GENERAL
/ \

Dated ;

i-g-/1/

By:

Geor^rZachos, Chief, M aD Office of the Attorney Gdneral Commonwealth of Massachusetts One Ashburton Place, I8tl1 Floor Boston, MA 02108

Dated:

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