State Addendum: Texas
This State Addendum is incorporated into the Fella Medical Direct Health Care Program Membership Agreement (the “Agreement”) entered into between Fella Medical and the undersigned Member.
The undersigned Texas Member acknowledges, understands and agrees to the following:
- Member is receiving services within the State of Texas.
- Fella Medical Group, P.A. is the Fella Medical Practice that provides services to Members in the State of Texas.
- All capitalized terms not otherwise defined in this Addendum shall have the meanings set forth in the Agreement.
- Should any conflict arise between the provisions of this Addendum and the Agreement, this Addendum shall control.
- The following provisions apply to the services rendered in Texas.
A. Governing Law. The Agreement, as it applies to the provision of services subject to this State Addendum, shall be governed by the laws of the State of Texas.
B. Direct Primary Care. The Agreement is intended to adhere to Texas’ direct primary care law at Tex. Occ. Code §§ 162.251, et seq. Accordingly, the Member acknowledges, understands and agrees to the following:
(1) Not Health Insurance. The Agreement is a medical service agreement for direct primary care and is not insurance.
C. Binding Arbitration.
(1) Important Notice Regarding this Section. Arbitration does not limit or affect the legal claims Member may bring against Fella Medical. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved. Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties using the process set forth herein. THIS SECTION WILL REQUIRE MEMBER TO RESOLVE ANY CLAIM THAT MEMBER MAY HAVE AGAINST FELLA MEDICAL ON AN INDIVIDUAL BASIS PURSUANT TO THE TERMS OF THE AGREEMENT. EXCEPT AS MAY BE PROHIBITED BY APPLICABLE LAW, THIS SECTION WILL PRECLUDE MEMBER FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST FELLA MEDICAL; AND ALSO PRECLUDES MEMBER FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION BROUGHT AGAINST FELLA MEDICAL BY SOMEONE ELSE. The mere existence of such class, collective, and/or representative lawsuits, however, does not mean that such lawsuits will ultimately succeed. By agreeing to arbitration with Fella Medical, Member is agreeing in advance that Member will not participate in and therefore will not seek to recover monetary or other relief under such class, collective, and/or representative lawsuit (except as may be prohibited by applicable law). Member will not be precluded from bringing claims against Fella Medical in an individual arbitration proceeding. If successful on such claims, Member could be awarded money or other relief by an arbitrator.
(2) How This Section Applies. This Section applies to any Covered Dispute (as defined in sub-section 3 below) and survives after the Agreement terminates. Nothing contained in this Section shall be construed to prevent or excuse Member from utilizing any procedure for resolution of complaints established in this Agreement (if any), and this Section is not intended to be a substitute for the utilization of such procedures. Except as it otherwise provides, this arbitration Section is intended to apply to the resolution of Covered Disputes or any other disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. THIS ARBITRATION SECTION REQUIRES ALL SUCH DISPUTES TO BE RESOLVED ONLY BY AN ARBITRATOR THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY AND NOT BY WAY OF COURT OR JURY TRIAL, OR BY WAY OF CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION (EXCEPT AS MAY BE PROHIBITED BY APPLICABLE LAW). SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION SECTION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THIS ARBITRATION SECTION OR ANY PORTION OF THIS ARBITRATION SECTION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR, AND NOT BY A COURT OR JUDGE.
(3) Covered Disputes. Except as it otherwise provided herein, this arbitration Section applies, without limitation, to all “Covered Disputes,” defined as follows: disputes arising out of or related to this Agreement and disputes arising out of or related to Member’s relationship with Fella Medical, including termination of the relationship; claims based on any purported breach of contract, including breach of the covenant of good faith and fair dealing; claims based on any purported breach of duty arising in tort, including alleged violations of public policy and for emotional distress; claims of negligence; claims of defamation; claims of medical malpractice, including but not limited to any dispute relating to whether any medical services rendered in connection with this Agreement were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered; and claims relating in any manner to Fella Medical’s Direct Health Care Program. Covered Disputes also include, without limitation, disputes regarding unfair competition, harassment, and claims arising under the Civil Rights Act of 1964, Americans With Disabilities Act, Genetic Information Non-Discrimination Act, the and all similar state laws or any other statutory or common law scheme prohibiting, among other things, discrimination or harassment because of race, color, age, religious creed, national origin, ancestry, disability, sexual orientation, gender identity and sex, and all other similar federal and state statutory and common law claims. This Agreement is intended to require arbitration of every Covered Dispute, claim or other dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of the Agreement are expressly excluded from this arbitration Section.
(4) Federal Arbitration Act. The Federal Arbitration Act shall govern the interpretation and enforcement of all binding arbitration proceedings under this Agreement. To the extent that the Federal Arbitration Act is inapplicable, state law governing agreements to arbitrate shall apply. The arbitration findings will be final and binding except to the extent that state or federal law provides for the judicial review of arbitration proceedings.
(5) Limitation On How This Section Applies. Nothing in this Agreement is intended to require arbitration of any claim or dispute which the courts of the jurisdiction where Member resides have expressly held are not subject to mandatory arbitration. Nothing in this arbitration provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration.
(6) Initiating Arbitration. In the event a dispute should arise and Member wishes to initiate these arbitration procedures, Member must deliver a written request for arbitration to Fella Medical within the time limits which would apply to the filing of a civil complaint in court. Fella Medical will deliver a written request to Member for any claim it may wish to assert, also within the time limits which would apply to the filing of a civil complaint in court. If a request for arbitration is not submitted timely, the claim will be deemed to have been waived and forever released.
(7) Arbitration Procedure. The dispute will be decided by a single, neutral, decision-maker, called the arbitrator, through an organization called Judicial Arbitration and Mediation Services (“JAMS”). The arbitrator will be mutually selected by Fella Medical and Member. If the parties cannot mutually agree on an arbitrator, then an arbitrator will be selected by the parties according to the method of selection specified by JAMS in its Streamlined Arbitration Rules & Procedures, which can be obtained at www.jamsadr.com.
a. The arbitrator shall be bound by the provisions and procedures set forth in JAMS’ Streamlined Arbitration Rules & Procedures. The applicable substantive law shall be the law of the State of Texas.
b. The parties shall cooperate to the greatest extent practicable in the voluntary exchange of documents and information to expedite the arbitration. After selection of the arbitrator, the parties shall have the right to take depositions and to obtain discovery regarding the subject matter of the action and to use and exercise all of the same rights, remedies and procedures, and be subject to all of the same discovery duties, liabilities and objections as provided by the Federal Rules of Civil Procedure. The arbitrator shall have the authority to rule on motions (including the power to issue orders and determine appropriate remedies) regarding discovery and to issue any protective orders necessary to protect the privacy and/or rights of parties and/or witnesses.
c. The arbitrator shall have the same authority to award remedies and damages on the merits of the dispute as provided to a judge and/or jury under parallel circumstances. However, the arbitrator shall only be permitted to award those remedies in law or equity which are requested by the parties and which are supported by the credible, relevant evidence. The arbitrator shall issue a written final and binding opinion and award.
d. The parties expressly agree to resolve any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative action basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
e. Following the issuance of the arbitrator’s decision, any party may petition a court to confirm, enforce, correct or vacate the arbitrator’s opinion and award as set forth in the Federal Arbitration Act.
(8) Fees and Costs of Arbitration. Fees and costs shall be allocated in the following manner: Each party will be responsible for its own attorneys’ fees and expenses (except as otherwise provided by law) and the cost of a copy of the reporter’s transcript of the proceedings (if desired). The costs of the arbitration will be allocated per the JAMS Policy on Consumer Arbitrations.
(9) Arbitration Hearing and Award. The location of the arbitration proceeding shall be no more than 45 miles from the place where Fella Medical last provided services to Member under this Agreement, unless each party to the arbitration agrees in writing otherwise. The parties will arbitrate their dispute before the arbitrator, who shall confer with the parties regarding the conduct of the hearing and resolve any disputes the parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the parties or as ordered by the arbitrator, any party will have the right to prepare, serve on the other party and file with the arbitrator a brief. The arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this arbitration Section. The arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the arbitrator, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.