                                                                                           ACCEPTED
                                                                                      01-13-01034-CV
                                                                            FIRST COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                 1/20/2015 6:54:13 PM
                                                                                  CHRISTOPHER PRINE
                                                                                               CLERK

                              NO. 01-13-01034-CV

                             In the Court of Appeals                FILED IN
                                                             1st COURT OF APPEALS
                          for the First Judicial District        HOUSTON, TEXAS
                                  Houston, Texas             1/20/2015 6:54:13 PM
                                                             CHRISTOPHER A. PRINE
                                                                     Clerk

 SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE
 ESTATE OF SHANA LENOIR AND CHRISTOPHER MCKNIGHT, INDIVIDUALLY AND
                  AS NEXT FRIEND OF NAYLA MCKNIGHT
                                                    Appellants,
VS.

LEAH ANN GONSKI MARINO F/K/A LEAH ANNE GONSKI AND JAOU-CHEN HUANG,
                               M.D.

                                                              Appellants.


    On Appeal From the 164th Judicial District Court of Harris County, Texas
                     Trial Court Cause No. 2012-35806A
          The Honorable Alexandra Smoots-Hogan, Judge Presiding


                APPELLANTS’ MOTION FOR REHEARING


TO THE HONORABLE FIRST COURT OF APPEALS:

      Appellants, Shirley Lenoir, Individually and as Personal Representative of

the Estate of Shana Lenoir and Christopher McKnight, Individually and as next

friend of Nayla McKnight, pursuant to TEX. R. APP. P. §52.9, file this motion for

rehearing of that portion of the Court’s opinion, issued on November 25, 2014,




                                                                        Page 1 of 8
affirming the trial court’s dismissal of Appellee Jaou-Chen Huang under TEX. CIV.

PRAC. & REM. CODE §101.106 (f).

                                          I.

      The Lenoirs filed a lawsuit against Dr. Huang in his individual capacity

because they alleged that his violations of state law proximately caused Shana

Lenoir’s death. In the Court’s opinion regarding Dr. Huang, the Court stated,

“Lenoir does not dispute that the Health Science Center is a governmental unit.

What she challenges is whether Dr. Huang was acting within the scope of his

employment with the Health Science Center when he oversaw Dr. Gonski’s care of

Lenoir.” Op. at 22.

      While it is true that the Lenoirs challenged whether Dr. Huang was in the

scope of his employment for UTHSCH, the Lenoirs also challenged whether Dr.

Huang was acting as UTHSCH’s employee at the time of the incident in question.

See, Appellants’ Brief at 28-44. An alleged governmental employee has the burden

to establish—as a matter of law—that he is an employee of a governmental unit

and evidence that is disputed or insufficient cannot support a dismissal. Op. at 8.

      However, the Court’s opinion does not discuss Dr. Huang’s status as an

employee of a governmental unit, even though the issue is hotly contested by the

Lenoirs. As defined by TEX. CIV. PRAC. & REM. CODE §101.001(2):

      “Employee” means a person, including an officer or agent, who is in
      the paid service of a governmental unit by competent authority, but
                                                                             Page 2 of 8
      does not include an independent contractor, an agent or employee of
      an independent contractor, or a person who performs tasks the details
      of which the governmental unit does not have the legal right to
      control.

      Dr. Huang offered two affidavits in support of his argument that he was

acting as an employee of UTHSCH at the time of the incident. CR 333-334, 803-

807. No exhibits are attached to these affidavits or referenced in the affidavits.

The Lenoirs objected that statements in these affidavits were conclusory and were

contradicted by other evidence, including Dr. Huang’s contract with UT

Physicians, but the Court overruled these objections. Op. 26-28.

      In City of Keller v. Wilson, 168 S.W. 3d 802, 812 (Tex. 2005), the Court

discussed the rule that incompetent evidence is legally insufficient to support a

judgment, even if admitted without objection.        The Court stated, “[Evidence

showing it to be incompetent cannot be disregarded, even if the result is contrary to

the verdict. If the rule were otherwise, incompetent evidence would always be

legally sufficient, because the evidence showing it to be incompetent could never

be considered.” The Court then gave the following example of when evidence is

legally insufficient:

      Similarly, an employee's testimony that he was in the course and
      scope of his employment is legally insufficient to support a verdict
      against his employer if the evidence shows that legal conclusion to be
      incompetent.
      Id.



                                                                            Page 3 of 8
      Thus, Dr. Huang’s statements that he was an employee of UTHSCH at the

time of the incident are incompetent legal conclusions that cannot support his

dismissal, if the statements are contradicted by other evidence.

      UT Physicians (formerly Uni Care Plus) is a Texas certified non-profit

health corporation which is regulated by TEX. OCC. CODE §162.001, et seq. CR

1046. Dr. Huang was working at a UT Physicians’ clinic at the time of the

incident performing medical services for professional fees. Dr. Huang signed a

written contract with UT Physicians to work at the facility. CR 1046-1062. UT

Physicians had the right to terminate Dr. Huang’s practice at its facility. CR 1049-

1050. Dr. Huang agreed to comply with UT Physicians’ conditions of employment

listed in the contract, including the requirement that he provide only “Medically

Necessary” medical services and comply with UT Physicians’ bylaws. CR 1046-

1049. The contract expressly states, “Participation in University Care Plus (now

U.T Physicians) has no effect on or relationship to faculty status at UT-H or

medical staff privileges at any hospital…”.          CR 1049 at D.1 (“Effect of

Participation in University Care Plus”). More importantly for the Lenoirs’ claim

against him, Dr. Huang agreed to comply with UT Physicians’ billing policies and

to submit claims for his professional services using UT Physicians’ billing forms.

CR 1048, at ¶¶8-9. There is no mention of Dr. Huang supervising residents in the

UT Physicians’ contract and the Lenoirs have disputed that UT Physicians is a part


                                                                           Page 4 of 8
of the UTHSCH residency training program. See, Appellants’ Brief regarding Dr.

Gonski.

      Thus, UT Physicians had the legal right to control the details of Dr. Huang’s

work at its facility that the Lenoirs allege caused their decedent’s death, not

UTHSCH.      Dr. Huang cannot claim he is entitled to governmental immunity

because of his faculty status at UTHSCH when the contract he signed to work at

the UT Physicians’ clinic says that the work is unrelated to his faculty status at

UTHSCH.

      Finally, this Court rejected the Lenoirs’ ultra vires argument stating that

more recent case law indicates that an employee is within his scope of

employment, even if acts wrongly or negligently. However, the Lenoirs also cited

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) in support of their ultra

vires argument. In Heinrich, the Texas Supreme Court stated, “[A]n action to

determine or protect a private party's rights against a state official who has acted

without legal or statutory authority is not a suit against the State that sovereign

immunity bars.” Id. at 368, quoting Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401,

405 (Tex.1997). The Court also recognized a cause of action for money damages

against a government official in his individual capacity for wrongful or

unconstitutional conduct. Id. at 373, n. 7. Since the Court does not discuss




                                                                           Page 5 of 8
Heinrich in its opinion, it is unclear why this case is not applicable to authorize the

Lenoirs’ claim.

                                      PRAYER

      For the reasons set forth above, Appellants respectfully request that this

Court rehear its opinion regarding Dr. Huang and upon rehearing, reverse the trial

court’s ruling dismissing Dr. Huang and remand this case for further proceedings

and grant Appellants all other relief to which they may be entitled.

                                              Respectfully submitted,

                                              THE GOURRIER LAW FIRM, PLLC

                                              By: /s/ Joseph M. Gourrier
                                              JOSEPH M. GOURRIER
                                              Texas State Bar No. 24007258
                                              530 Lovett Boulevard, Suite B
                                              Houston, Texas 77006
                                              joseph@gourrierlaw.com
                                              Telephone: 713-533-9077
                                              Facsimile: 713-533-9376
                                              ATTORNEY FOR APPELLANTS

                      CERTIFICATE OF COMPLIANCE

       As required by Texas Rule of Appellate Procedure 9.4(i)(3), Appellants
certify that this brief is 1,061 words which is in compliance with Texas Rule of
Appellate Procedure 9.4(i)(2).

                                        By:    /s/ Joseph M. Gourrier
                                              JOSEPH M. GOURRIER
                                               Texas State Bar No. 24007258




                                                                             Page 6 of 8
                          CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing document has
been forwarded to all known counsel of record in this cause in accordance with the
Texas Rules of Civil Procedure via U.S. Mail, certified, return receipt requested, e-
service, and/or facsimile and/or hand delivery, on this 20th day of January 2015.

Charles B. Holm                           John R. Strawn, Jr.
Kyle M. Smith                             Victoria P. Skinner
Holm Bambace, LLP                         Pennzoil Place, South Tower
1010 Lamar, Suite 1100                    711 Louisiana, Suite 1850
Houston, Texas 77002                      Houston, Texas 77002
Telephone: (713) 652-9700                 Telephone: (713) 659-9600
Facsimile: (713) 652-9702                 Facsimile: (713) 659-9601
Attorneys for Defendants Leah Ann         Attorneys for Defendant Leah Ann
Gonski Marino f/k/a Leah Anne             Gonski Marino f/k/a Leah Anne
Gonski and Jaou-Chen Huang, M.D.          Gonski

                                                    /s/ Joseph M. Gourrier
                                                    Joseph M. Gourrier




                                                                             Page 7 of 8
                                                      Appendix

Acknowledgment of Physician Participation in University Care Plus (Dr. Huang’s
Contract with U. T Physicians) .................................................................................... Tab 1




                                                                                                     Page 8 of 8
                                 TAB 1

        i, Ju -'C,4e (ILt&h16 çPhysiciaifl acknowledge and understand.the conditions
for participation in University Cam Phis ru'uvsity Care Plus'), a Texas certified non-profit
medical corporation, which has entered into an agreement with The University of Texas Health
Science Center of Houston ("UT-W) pursuant to which I and other faculty physicians will
participate in the professional activities of University Care Plus. By my signature below, I
acknowledge that I am bound by the participation requirements herein.

       A.      Pu rPOSK of tTnkBrsty Calm Ph i s.         University Can Plus      is   a non-profit
organization of physicians which has as its purposes:

               1.     To function as a. physician organization to arra4e for the provision of
                      medical services by its participating physicians;

               2.     To support the provision of quality, cost-effective medical services and the
                      development of new services and products for the community;

                       To more effectively market the medical services provided by its
                       participating physicians to third party payors and the community;

               4.      To accomplish all objectives through the joint, cooperthve action of its
                       participating physicians; and

               5.      To transact any and all other business which    a Texas non-profit medical
                       corporation Sy do.

        B.      ObligafloinatTTth,prity CirtVl. University Care Plus agrees to units beat
 efforts to negotiate and enter into agreements with potential third-party payors Ccrouo
 Contracts"), including employers, insurance companies, health benefit and managed care plans,
 in order to enable Thñversfty Care Plus to arrange for the delivery of health: care services to
 patients covered under Group Contracts (&MenzberC) by its participating physicians, including
 Physician. University Care Plus shall also satisfy such other criteria as the Board of Directors
 may from time to time determine.

         C.     Cnnvflttanc at P'r4t.r4pattnn. Physician understands and agrees to comply with
 the following conditions of participation, which apply to all participating physiói2th of University
 Care Plus:

                I..     To participate in and provide Physician's usual range of medical services
                        under any and all Group Contracts with which University Care Plus
                        contracts that require the Physician's participation (recognizing and
                        agreeing to the fact that not all contracts may request or, require that
                        Physician be included In the panel of contracting providers) and that

 EtT$WAL4ZJ/2768fl
                                                   HIBIT


                                                                                                1046
                       conform to the Fee Schedule agreed to by UT-H (Attwhrne.tt A') and/or
                       that are otherwise executed by University Care Plus in accordance with
                       Section F of this Agreement;

         2.           To accept Members as long as Physician's practict is open to new patients
                      in general, unless IThH provides University Can PM with thirty (30) days
                   •  written notice that Physician is closing his or her practice to all new
                   • patients. In the event of such notice by UTH. Physician. may not accept
                       any new Members. Physician may reopen his or her practice to new
                       Members upai thirty (30) days written notice by UT-H to University Care
                       Plus, after which Physician shall again accept Members under all Group
                       Contracts then in effect.

                       To provide or arrange for the provision of Medically Necessary services
                       required by Members which Physician customarily provides to his at her
                       other patients and in accordance with. the standards and procedures
                       applicable to Physician's other patients. For purposes of this Agreement,
                        Itflcally Necessary' means those health are services that, in accordance
                       with applicable utilization management policies of University Care Plus
                       and/or a payor, are determined to be

                        (a)    appropriate for the symptoms and diagnosis or treatment of the
                               Member's condition, illness, disease orinjury
                          ) provided for the diagnosis, or the direct care and treatment of the
                               Member's condition, illness, disease or injury;

                        (c)    in accordance with current standards of good medical practice;

                        (d)    not primarily for the convenience of the Member or Physician; and
                        (e)    the moat appropriate supply or level of service that can safely be
                               provided to the Member.

                        When applied to hospitalization, this further means that the Member
                        requires acute rat an inpatient due to the nature of the services rendered
                        or the Member's condition, and the Member cannot receive safe or
                        adequate care as an outpatient
              4.        If required by a particular Group Contract, to admit or refer only to
                        providers affiliated with University Cam Plus, except in the even: of an
                        emergency or when services or facilities are not available from such
                        providers;




atMaU/rldsWZ




                                                                                             1047
5.         To provide or make medical coverage available and accessible twenty-four
           hours a day, seven days a week for Members requiring urgent or
           emergency services;

6.         To maintain a level of clinical activity as appropriate to Physician's practice
           specialty and at such hospital(s) or clinics designated :by University Care
           Plus' Board sufficient to allow University Care Plus to àbjcctively measure
           the cost, utilization and quality Of services provided to Members;

7.         To comply with the Bylaws of University Care Plus and all other policies
           and procedures. of University Care Plus that have been or will be enacted
           by University Care Plus' Tha4 (and any amendments thereto), including.
           but not limited to Participation Criteria (Attnehment R), Antitrust Policy
           (A1tacbmti4C), and this Agreement;

 8.         To comply with the requirements of the utilization management,
            cStialing, claims payment adinhiirnzdon,. billing) verification,
            coordination of benefits and quality improvement programs (and any
            amendments thereto) of University Care Plus and Group Contracts upon
            provision of copies of such documents to Physician;.

 9.         To submit an itented claim for Physician's sezvices using the RCPA- 1500
            billing form, or a form containing equivalent information, within the time
            frame required by the Board pursuant to various contracts for completion
            of the Member's course of treatment;

     10.    To allow University Care Plus to publish Physician's name, specialty,
            address and telephone number in University Care. Plus' and Group
            Contracts' marketing materials;

     11.    To wo& cooperatively with other physicians, health professionals, the staff
            of University Care Plus in order to perform the Thnctions, duties and
            obligations required by Group Contracts, University Cart Plus Bylaws, and
            this Agreement;

     12.    To address all grievances relating to University . Cut fl 1 internal
            operations through the Grievance Policy adoptS by University Care Plus


     13. . To comply with the participation renewal requirements and procedures
           utilized by University Care Pius;

     14.     To agree that Physician's voluntary cancellation of his/herpanicipatian in
             University Care Plus requires both ninety O) days notice to the University
             Care Plus Board of Directors, written approval by UT-H and compliance
                     with the tcnninadon provisions of all managed care agreements into which
                     Physician has entered; and

              15. To advise University Care Plus immediately upon any change in the
                      information provided in Physician's application for University Care Plus,
                   - including but not limited to conflicts of interest the Physician has or may


      D.      fltert at rttt4pntInn in Thdvswcity r2n Phis        Physician has reviewed the
Bylaws and policies of University Care Plus and understands and agrees that:

              1.     Participation in University Care Plus has no effect on or relationship to
                     faculty Uamz at UT-B or medical staff privileges at any hospital, except
                     that loss of faculty status at UT-H or medical smif privileges results in
                     termination of University Can Plus participation in accordance with
                •    Section Eof this Agreement',

              2.      Participation is not transferable, and no individual may sell, assign, transfer
                      or convey his or her Physician participation in University Care Plus to any
                      other person at any other time;

               3.     In no event shall any Physician bill, charge, collect a deposit from, seek
                      compensation, rtmunolion or reimbursement from or have any recourse
                      against any Member except as expressly permitted by and in accordance
                      with applicable Group Contracts or payor policies, such as for Member
                      deductibles and/or copayments.            -




               4.     Stequit to Physicià&s execution of this Agreements Physician shall not
                      independently contract with any party with whom University Care Plus
                      holds a Group Contract for those services and/or products covered by
                      University Came Plus' Group Contract

               5.     Nothing shall prohibit Physician from providing on an individual basis any
                      medical services not subject to a Group Contract to any patient, or from
                      providing medical services of any type to any patient who is not covered
                      under any Group Contract.

        E.     Tn,nnntnn 4 Psit{4ittan.         Physician understands that the following actions
 shall cause the Board to taminate Physician's participation in University Care Plus:

                1.     Upon   Physicians departure or resignation from the faculty of UT-H or
                       retirement from the active practice of medicine, VT-H shall so notify
                       Unity Cue jjn .andPhysician's participation in University Care Plus
                       shall be automatically terminated upon the date spcci$ed by University
                       Care Plus' Board or its designee.


                                                  4


                                                                                                   1049
         2.            Physician's participation in University Care Plus shall be terminated
                       immcdiate3y in the event that Physician ceases to be duly licensed to
                       practice medicine in the State of Texas.

          3.           Physician's participation shall be automatically terminated if Physician
                       ceases for whatever reason to maintain appropriate privileges at the
                       hospital(s) designated by University Care Plus' Board.

          4.           The Board of Directors may terminate Physician's participation in
                       University Care Plus for Physician's failure to comply with the
                       requirements of any Group Contracts, this Agreement, the Bylaws of
                       University Care Plus or any policy adopted by the Board.:

          5.            Physician and UT-H shall be notified by University Care Plus' BeanS or 115
                        designee in writing of his or her sure to comply with any University Care
                        Plus or Group Contract programs, criteria, or policies and procedures.
                        University Care Plus' Board or its designee shall determine in its sole
                        discretion and shall state in the notice to Physician the number of days in
                        which to remedy such non-compliance. If Physician does not resolve such
                        issues, PhysiSfs panicipadon shall be terminated effective on the date set
                        forth in the notice.

              6.        The dissolution or bankruptcy of University Cart Plus.

              7.         Upon termination of this Agreement for any reason. Physician shall
                         continue to provide Medially Necessary services to all Members currently
                         under active freabnent by Physician an the date of wmtinatiod until (a) such
                   •     Member's care is transferred to another participating physician, (b)
                         treatment is completed, or (c) for a period of three months, whichever
                         occurs first

     K         sfrw,,trrrr *Ec..rcnLLwxrl

                         Pursuant to the provisions of the agreement between University Care Plus
                         and 13T-H regarding beulty physicians, participatiân in University Care
                         Plus and subject to the limitations set forth below, Physician hereby
                         constitutes, and appoints University Care Plus as Physician's tne and lawful
                         atney-in-fact for the limited purposes of negotiating and executing Group
                         Conttt1i on behalf of Physician, as well as modifications, extensions and
                         renewals of such Group Contracts, all of which shall be binding upon
                         Physician. Physician thither designates Univasity Care Plus ,as Physician's
                         true and lawflul agent for the further limited purpose of giving, and receiving
                         notices required or permitted to be given and received under such Group
                          Contncts, including nodcas of termSflon. Any notice received by
                         University Care Plus on behalf of Physician shall promptly be txaxsrnitted
                         to Physician.

BLThtALSIi26W2




                                                                                                  1050
           2.        University Care Plus authority to act as Physicians ittorney-in-fact and
                     agent, as authorized by this Section, is limited by the following conditions
                     and requirements:

                     (a)       University Care Plus shall not execute, nor shall Physician be bound
                               by, any Group Contract that conforms to the Fee Schedule in
                               Atbrhment A, unless at least thirty (30) days after execution of
                               such Group Contract, University Case Plus notifies UT-H and
                               Physician in writing of the content of such Group Contract

                      (b)       University Care Plus shall not execut*, nor shall Physician be bound
                                by, any Group Contract that obligates PitysiClait it provide services
                                ata compensation rate t than that contained in the Pee Schedule
                                in At1ehme* A, unless at len thirty (30) diys prior to such lesser
                            • cotnpeaficn am becoming effective, University Care Plus notifies
                                UT-H and Physician in writing of such lesser compensation raze,
                             • and during suck thirty M day period, neither Physician nor UT-H
                                 notifies University Can Plus in writing of an objection to such
                                 lesser compensation a

                       (c)      University Care Plus shall not aicecwe, nor shall Physician be bound
                                by, any modification, extension or renewal of any existing Group
                                Contract in which Physician is a wticipant that in any material
                                respect changes the. rights and oblizations of Physician, unless at
                                least thirty (30) days prior to the same becoming effective,
                                University Cart Plus notifies UT-H and Physician, in writing of
                                Such modification, extent or renewal, and during such thirty (30)
                                 day period, neither Physician nor UT-H notifies University Care
                                Plus in writhrg of an objection to such modification, extension or
                                 renewal.

                3,     Whenever Physician is required by this Article to itotify tlniversfty Care
                       Plus in writing of any objection to the content of a Group Cohuact, a
                       modification, extension or renewal thereof;, or any decrease in
                       compensation, and Pbytidn fails to do so within the specified 30-day
                       period, Physician shall be conclusively presumed 10 have approved, and
                       University Care Plus shall be conclusjvdyiuthorized to bind Physician to,
                       thflame.

                4.      This power of attorney and special agent appointznentisgranted for the
                        term of this Agreement, and for any renewal term hereof, and shall be
                        revoked effective upon the termination of this Agreement.
       G. rnSWnthThy. Physician hereby Thither acknowledges and agrS that Physician
will maintain in cuffidence the terms of this Agreement and any payor agreements, including but

nmus.ilvawa


                                                                                                 1051
not Limited to fee schedules thereof, as well as all business information that may Caine into
Physician's possession by virtue of Physician's status as a participating physician in University
Care Plus or an investor, partner, contractor, or supplier of any veniuredeveloped or managed
by University Care Plus and will not ditiose any such information to any person other than other
participating physicians of University Can Plus or the applicable venture absent a release or a
consent to release of such information by University Care Plus or the applicable venwzt

        EL     Inde Nnnn Neither party shall utilize any trade name, service mark, or any
material or property protected by patent trademark, or copyright of the other party except as
expressly permitted by this Agreement or otherwise in writing.

        L       Nthi. Any notice required under this Agreement shall be in writing and sent by
certified or registered mail, return receipt requested, postage prepaid, by express mail, or by
delivery in person to the parties at the following addresser

 If to University Care Plus:                                        If to Physician:

 University Care Plus
 P.O. Box 20627
 Houston, Texas 772254k327
 Arm: President
        J.      Fntira AgrnnenL      This Agreement embodies the entire Agreement between
 University Cam Plus and Physician and there are no agreements, representations, or warranties,
 oral or written, between University Care Plus and Physician other than those set forth in this
 Agreement.

    •    K. Wttc units' 11th AgrPemt This Agreenteg shall bind lad inure to the benefit
 of the parties here*. Nothing contained in this Agreement is intended to confer upon any person
 other than Physician and University Care Plus, any rights, remedies; obligations or liabilities
 wider or by mason of this Agreement.

         L       Aecatt$nnkc nntRecnrdc if Uth Agreement is determined to be subject to
 the provisions of Section 952 of F-L 96499, or its equivalent, which governs access to books
 and records of subeontactors of services to Medicaxe providers when the cost or value of such
 services under tSttxaa nes'dc $10,000 over a 12-month period, University Care Plus agrees
 to permit representatives of the Secretary of the Department of leaftj and EiSa Services and
 the Comptroller General, in accordance with criteria and procedures contained in applicable
 federal regulations, to have access to its books, documents and records as necessary to verify the
 cost of services provided under this Agreement.

        I have read and understand this Physician Participation Acknowledgement and the Bylaws
 of University Care Phis as well as the Attachments listed below, and hereby acknowledge that I
 am bound by the conditions of participation in University Care Plus.



                                                  7

                                                                                              1052
                    AaachmentA
                   PEE SCHEDULE




W.X7dD4L6&.1I7M$




                                  1053
                              Atthdiment 1%
                   PHYSICIAN PARTICIPATION CRITERIA




RLThDM.dIJ12lafl



                                                      1054
                                   Attachment B
                       PHYSICIAN PARTICIPATION CRITERIA


F                        -          eavnsm CARE PLUS
                                   PARTLCIPA'IION cRFFEIUAT

university Cart Plus' Board of Directors rBoard") has the sole discretion with respect to the
athbility of each applicant's credentials for purposes of initial and continued participation in
University Care Plus. To be accepted for jBrt!cipadon and to maintain participation in University
Care Plus, evay applicant must demonstrate that he or she fulfills all of the following criteria
(unless specifically waived by the Board) and advise University Care Plus of any changes in any
of the requested information within thirty (30) days of occurrence:

I.       PK0FESSI0Z4ALcRUUU.

I.       Graduation from a school of medicine, osteopathy or dentistry, which is:

          •         Accredited by the Liaison Committee on Medical Education and listed in the
                    AAMC Directory of American Medical Education: or American Osteopathic
                    Educado
          •         Listed in the World Directory of Medical, Osteopathy or Dental Schools; or

          •         Appropriately recognized or accredited according to allied health professional


 2.       Valid, cnrrva professional licetsure for the State of Tens.

 3.       ValId, qinit Drug Enibroement Administration (DA) registration and Stare Narcotics
          License; OR, evidence that the applicant does not require flEA registration in order to
          deliver — ca

 4.       cant pttc&ial liability insurance coverage in the arnowit of $500,000 per occurrence
          and $1,500,000 allmpm for one (1) yr or in such - aniounL;required by University
          Care Pius with a artier tint is acceptable to University Care Plus. Individual exceptions
          tots maybe granted by the University Care Plus Board.

 F.


 6.       Maintenance of a ISe! of clinical activity at a hospital specified by the Board sufficient to
          allow University Care Plus to objectively measure the cost, utilization and quality of
          services provided to enrolled patients.
 7.        Board certification (or eligibility) in a specialty recognized by the American Board of
           Medical Specialties or its international equivalent or the Amcrican Osteopathic



  D3GGLfl4 278194


                                                                                                    1055
      Association. Exceptions to this may be granted by the Board upon naluation of training
      and experience. Applicants who have recently completed training and are board eligible
      may be considered for probationary membership pending board certitiäalion. Any
      applicant who is cetlifled by a board that requires recertification but fails to be recertified
      shall be automatically terminated as a Participating Provider. Physicians will accept
      patients only to that portion of their practice in which they are board certified.

&     Willingness to accept patients under each contact negotiated by University Care Plus.

9.    Willingness to pay, in a timely maimer, such dues and assessments as may be imposed
      from time to time by University Care Plus.

10.   WWingnes to work cooperatively with other physicians, health professionals, the staff of
      University Care Plus in order to pcit the functions, duties, and obligations required
      by payor contacts, University Care Plus Bylaws, and the Physician Participation
      Agreement

11.    Attendance at a minimum of one educational program per year spoisoied or endorsed by
       University Cam Plus.

12.    Proof of annual participation in appropriate specialty continuing medical education.

13.    Jnformaticn concerning involvement in OR sasisfactory resolution of the following:

       a.      Involvement in a professional liability suit, arbitration or settlement or any legal
               or t'egulatoq action in connection with the applicant's pmtessionai pncticc.

       b.      Denial or cancellation of professional liability insurance.

       C.      kecagniSg the requirements of the Americans. with Disabilities Act, current
               physical or nal health pxthlems which may interkre with the ability to practice
               medicine.

       4.      ProfessionaL disciplinary action by any stare or local meL society, specialty
               society, or state beard of medical omminers.

       e.      Sanczicms Of MY thid by the flEA, any stare drug agency, or any person or entity
               for improper prescribing procedures or actions.

       L       rnvoluniazy Suction, Ent,&1, suspension, or termination of hospital privileges,
               employment, or physician services contract, or imposition of proctorship or
               probation by any hospital at which qTfimt has had mcdi1 staff ptivUegcs.

       g.       Quality sanctions by a Professional Review Organization (PRO).



                                                  2
                                                                                                - 1056
      h.     Restricons (torn riving payments fttm Medicare, Medicaid, Or any other third
             party reimbursement proxams.

      1.     Any felony criminal charges brought against the physician applicant.

14.   Provide his or her personal profile from the NationalPractitioner Data Bank, airrent
      within six (6) months or provide satisfactory explanation of rnediafly-r&ated lawsuits,
      claims and settlements.

15.   Maintain a practice consistent with the goals of University Care plus and scrupulously
      observe the highest professional ethics.

16.   Accurate and tzuthM completion of an Application and the appropriate release directing
      any and all çttfr1 that may have infin2alion with xpect to applicant's ability to practice
      medicine to provide such infennatica to University Can Plus and its agents on request

it Execution and agreement to abide by the terms of the University Care Plus Physician
       Participation Agroenient.

I!-

       University Cam Plus shall evaluate statistics on a sufficient number of applicant's patient
       contacts at University Care Plus participadng hospitals to evaluate the cost effectiveness
       of applSnt's utilization of hhh care raources. This requirement may be wait or
       amended for applicants whose practices mrely require hospitalization of patients.
       Evaluation may include, without limimfinn:

       a..    Pzequencyofservice
       b4     Intensity ofsnvice
       g.     Average cad dDRG;
       d-     Avenge cost per office encounter,
       C.     Usage of ancillary senices
       I.     Applicant's charge patterns; and
       g.     wiThngnSs to participate in, accept the results of, and comply with the
              requftemaus of the inilinti,r management and quality improvement programs of
              tTniversity Care Plus and Its ecntrnd payors.

A significant deviation by applicant in the&ctcrs evaluated may indicate a practice style and
philosophy incompatible with the business objectives Of University Care Plus. University Case
Plus may determine, in its We discretion, to decline to execute a Participating Physician
Agreement or terminate an existing Participating Physician Agreement based upon this
information.




 mrataos. tins,,
                                                                                                1057
   AThThhThPnI   r
ANTiTRUST POLICY




                     1058
                                         ANJIFRtJfl POLICY           -




                              ANTITRUST POLICY AND PROCEDURE
                                             OF


         A.      To ftdilitate managed care contracting by:

                 1.      Offering flyers an advantage by providing a past of physicians for participation
                         in that managed case plans without the need for cumbersome, costly negotiations
                         and other athninistntivc costs with each individual provider.

                 2.      Offering Payots a new product—a group of qualified paththpating physicians from
                         a wide variety of specialties who have agreed to participate in. UR, QA and
                         credendaling programs established or adopted by the University Cue Plus
                         (Corporaflcn').

         B.      Payers are still free to negodate and contact with individual physicians.

IL       Services of the Corporation:
         A.      In facilitating participation in managed care plans, the Corporation wITh
                  I.     Provide information to Payors regarding panicfpafingphysiciaós' fees, which
                         may include the usual and customary fees and the fees at which they have
                         individuafly et.'A thSr gezvnl willingness to participate In managed r plans;
                 2.      Maintain confidentiality of fee information by ivhlbiqg an independent non-
                         physician consultant or employee who will not sham fee b rmatio'a with
                         competing physicians

                 3.      Report to Payor the non-price terms under whichparticipating physicians have
                         individually indicated they are generally willing to participate in. managed care
                         plans

                 4.      Allow any Payer to approach participating physicians directly, and allow
                         participating physicians to negotiate with Payors, subject to any employment
                         constraints imposed on those physicians by .th* faculty or othet employee S
                 S*      Encourage contractual relationships between Payers and participating physicians
                         to provide covered services on terms acceptable to the Payor and participating
                         Physicians-
         B.      In any circumstances, the Corporation with

                  I-     Not promote, tate or participate in collective decisions by competing
                         physicians to participate in or refuse Payer's fee.fa-seMcs plans;

                 2.      HS dictate terms (price or otherwise) on which participating physicians will
                         participate in Payor's feefor-scvia plans; and.

                 3.       Jt share information among competing physicians as to terms (1xr1cc or
                         otherwise) on which they will coafract or do business with any Pay& sfee-for-
                         arñceplasr, other than disclosing the terms agreed to with a. particular Payor in
                         the course of negotiations as described above.



     YL!W31J41412751*2


                                                                                                     1059
2.        Each applicant tall be evaluated to determine if his or her participation enhances
          University Care Plus' ability to fulfill its business needs. The evaluation shall include,
          without limitation:

           a.     Applicant's specially;
           1,.    The need for a physician in a specific geographic area
           C.     The number of physicians necessary to service the population;
           4.     The relaticm ship of an applicant to other Participating Physicians ,, and
           e.     Unique skills or characteristics such as foreign language proficiency or a fen2le
                  physician offering obstetrical or gynecological services when patient or payor
                  deniands indicate unmet needs for such physicians.




     nnwaL•647t.il275tn                             4

                                                                                                   1060
•                                               kttaehwit U
                                              GRIEVANCE POLICY


                                          UMVERSITY CARE PLUS
                •         POLIC'! Mi! PROCEDURE FOR GRiEVANCES AND

                                ApvcAis OF ADVERSE DETERMINATIONS
            l'ttituis of this pmcthzre Is to offer a fair opportunity to any Pardoipating Physician
    of University On Plus (the 'Co poaioa') to S relajal grievances or complaints or to appeal
    a decision by Corporation to troinare his or her patticipalian in the Corporation.
           j,            Apj1inbUty.     Wbeaeve

                         a.     A Partleipoting Physician has a grievance or complaint reug the
                                Operation oft Corporation, or

                         b.     The Board has under corWderefluji a recommendation by the Participation
                                Committee ott method trecommendation to tern*iztate or sanction the
                                participation of Physician Patticipathn for at or more of the specific
                                zea'j set out in the polieJes and pmceduzts of Corporation,

    the Board may off& the affect Participating Physician the opportunity to disms the matter prior
    to final action. The Corporation Board may, suspertd petttpnnon pending the outcome of the
    xcvww and appabpra

            2.    W.4ttvsn R.qn.t pa**a&g Physid mus Mfta a wrifli nqutst to appeal
    a recoaimeadation to torminnt. ptffcipasicn to the Boad in writing within fartyflve (45) days
    of receiving notitibi dthe adverse deciSs Paihne to submit such request during this period
    will zJth waiver of any right to appeal. PsrbthpaSg Physicians who wish to air grievrinces
    or complaints mug also submit a Written request for renew to the Board.:
      •     3,     Rs'iew P,,o.i The review panel, comprised of either the E.ucnt.ve Committee
    or a special commifte appointed by the Board at its dscreaion, will disainthc mater with the
    Participating Physidan and report its flndhigsto the entire Board.



                         L       The review, whether for purposes of airing grievancesInd complaints or
                                 reviewing adverse membership deserminatioris, is intended to S the
                                 Participating Phyician an oççortuity to address any srciai cilcumsthrces
                                 that may apply, and to respond to questions and resolve any outstanding
                                 issues the review pand may have,




    1O5 2Th1*2




                    b.        Because neither a review of a Participating Physician's grievance or
                              complaint regarding the Corpontion's operation nor the decision by
                              Corporation to tcrmMate the Paitpadng Physicia&s pttigifltin in the
                              Corporation will affect faculty status at University of Texas - Houston
                              Ecaith Science Center or the Pardcipatiug Physician's privileges at any
                              çartidpafing hospital or be reportable as a peer review action, the conduct
                               of the            tbe informal innana                                        1061
                                                               4:
                  Fee Schedule(s)
                  (indicate type(s) of Fee Schedule(s) attached hereto)
                           X Discounted Fee-for-service
                                 -AND/OR-
                         JL Capitated
                  Physician Participation Crittha
                  Antitrust Policy
                  Qxievajwe Policy




                                                 (&gaaturc)
                                                                          f+o,4A1tT
                                                 N)
                                                              pXt (-9)1,IflS$ 3 -24
                                                              'f3 I 5nnni , tjjstc, TX 77
                                                 (Mdius)
                                                              713-742-360
                                                 (TeIepbeo Number)

ACKNOWLEDGED AND ACCEPTED THIS
 Ir DAY GF F''     ,1996:

UNIVERSITY C
          t   .




     President




                                            'a

                                                                                 1062
