Attachment 10 - QIC COI clause.pdf

SECTION H – SPECIAL CONTRACT REQUIREMENTS

H.2 CONFLICT OF INTEREST (JUN 2026)

1. General: The contractor and the services provided under this contract shall be free, to the greatest extent possible, of all Organizational and Personal Conflicts of Interest.

Consistent with these terms and conditions, all references to Organizational and/or Personal Conflicts of Interests will be referred to individually or collectively, as Conflicts of Interest (COI). Except as defined by these terms and conditions and in accordance with FAR 9.503, the Contracting Officer shall not maintain a contract with a contractor the Contracting Officer (CO) determines has, or has the potential for, an unresolved COI.

2. Definitions:

• Actual COI–The COI is either currently in existence as determined by the contractor or CMS. This form of COI will require avoidance, neutralization or mitigation acceptable to CMS.

• Affiliates–Associated business concerns or individual(s) if, directly or indirectly, either one controls or can control the other; or a third party controls or can control both.

• Apparent (Perceived) COI–The COI on first observation appears to be an actual or potential COI, but may or may not be after analysis.

• Avoidance–To prevent the occurrence of a COI through actions such as exclusion of sources or modification of requirements. Avoidance precludes the conflict.

• Contractor–The term contractor is used synonymously with offeror.

• Financial Relationships–A direct or indirect ownership or investment interest (including a stock option or non-vested interest) in any entity that exists through equity, debt, or other means and includes any indirect ownership or investment interest no matter how many levels removed from a direct interest.

• Mitigation–To reduce the effects of a COI to an acceptable level of risk so that the Government’s interest with regard to fair competition and/or contract performance are not impaired. The conflict remains but action was taken that minimizes the impact of the conflict to an acceptable level of risk.

• Mitigation Plan–The contractor’s written approach to mitigating a COI as documented in J.x Section C.4.

• Neutralization–To counteract, through a specific action, the effects of potential or actual COI. The conflict remains, but the impact of the conflict has been negated.

• Organizational Conflict of Interest–Occurs when other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.

• Personal Conflicts of Interest– A situation in which a person has a financial interest, personal activity, or relationship that could impair the person’s ability to act impartially and in the best interest of the Government when performing under this contract.

• Potential COI–A future situation or circumstance that would create a conflict of interest.

• Three (3) Types of COIs include:

Conflict Types Definitions

Biased Ground Rules

Consists of situations where a contractor and/or its affiliate(s), as part of its performance of a Government contract, has helped (or is in a position to help) set the ground rules for another Government contract by, for example, writing the statement of work or the specifications, or establishing source-selection criteria. In these “biased ground rules” cases, the primary concern is that the entity could skew the competition, whether intentionally or not, in favor of itself and/or its affiliates.

Impaired Objectivity

Consists of situations where a contractor and/or its affiliate(s)has an interest (typically financial) that may conflict with the interest of the Government to whom the contractor has a contractual obligation, and where the entity’s work under the Government contract could give the contractor the opportunity to benefit its other business interests. If the entity is providing recommendations, judgment or advice, and its other business interests could be affected by that recommendation, judgment or advice, it’s objectivity may be impaired. An example is where the entity was evaluating itself or evaluating an affiliate or a competitor, either through an assessment of performance under another contract or an evaluation of proposals.

Unequal Access to Information

“Unfair” access to non-public information – Consists of situations where a contractor and/or its affiliate(s)has access to nonpublic information (including proprietary information and non-public source-selection information) as part of its performance of a Government contract and that information may provide the entity with a competitive advantage in a later competition for a Government contract. In these “unequal access to information” cases, the concern is limited to the risk of the contractor and/or its affiliates gaining an unfair competitive advantage; there is no issue of

Conflict Types Definitions bias. Note: Incumbency alone does not constitute “unequal access to information.”

3. Restrictions on Former Federal Employees

Offerors are advised that restrictions on post-government employment apply to former federal employees. These restrictions are primarily governed by 18 U.S.C. §207 and the Procurement Integrity Act (41 U.S.C. Chapter 21). If the contractor hires an individual that it knows was formerly a Federal employee, the contractor shall perform reasonable due diligence in order to avoid employing a former Federal employee in the performance of this contract in violation of 18 U.S.C. §207. Knowingly employing a former Federal official in violation of these post-employment restrictions, or complicity in the violation of Procurement Integrity Act requirements, may result in the imposition of civil and criminal penalties against the contractor as well as the termination of this contract.

This provision is not intended to impose any obligations on the contractor beyond those imposed by the identified statutes

4. Significant Potential Conflict of Interest:

1. Nature of Conflict: Although not all inclusive, the following are considered to be an actual, potential or apparent COI with the work to be performed under this contract. The contractor shall promptly notify the CO if it is an entity, or affiliated with an entity, where any of the following circumstances exist:

1. Biased Ground rules, impaired objectivity or unequal access to information as explained in the definitions above and/or;

2. Within the three types of conflicts of interest, the CO has identified the following specific circumstances of conflicts:

Impaired Objectivity:

i. Would review or does review, under the Qualified Independent Contractor (QIC) contract, Medicare services furnished by a provider or supplier that is a direct competitor of the Contractor/Subcontractor; or

ii. Adjudicates claims, conducts medical or other reviews of claims, that would be or could be later reviewed under the QIC contracts; or

iii. Has other contracts and grants with the Federal Government such as, but not limited to:

• Medicare Administrative Contractor (MAC),

• Recovery Audit Contractor (RAC),

• Unified Program Integrity Contractor (UPIC),

• Supplemental Medical Review Contractor (SMRC),

• Beneficiary Family Centered Care-Quality Improvement

Organization (BFCC-QIO)

• Medicare Secondary Payer – Benefits Coordination

Recovery Contractor (BCRC) in the same jurisdiction as a

QIC.

Please note: This includes any other contract or grant with the Federal Government that involves medical review, claim review, or other analysis/activities that would or could be subject to a reconsideration in the respective QIC jurisdiction. Operating as any of the entities previously discussed in the same jurisdiction that an entity would also be a QIC could result in that entity (contractor) reviewing an initial determination, a revised initial determination, or a redetermination it has made (or a subsidiary of the QIC has made).

5. Proposed Restraint on Future Contractor Activities: CMS is proposing to restrain future contractor activities as follows:

A QIC may not become a MAC, RAC, UPIC, SMRC, BFCC-QIO, or BCRC, or any entity that performs as a prime or subcontractor any medical review of claims at any time in the same jurisdiction the QIC holds a QIC contract to adjudicate reconsiderations.

Further, the QIC may not serve as a subcontractor for the above entities in a capacity to support medical or other claim reviews of Medicare claims that would or could be later reviewed under the QIC contract(s).

Please Note: the above restraints may not be all inclusive. A QIC is prohibited from maintaining concurrent contracts with any entity in which it provides support for or conducts medical review or claim review activities related to claims that would be or could be later reviewed under the respective QIC contract.

Further, an entity that contracts with the Federal Government to conduct the Administrative QIC (Ad QIC) contract may not become a QIC that conducts reconsiderations under the Medicare Fee-For-Service program. The AdQIC cannot be a QIC that conducts reconsiderations (as a prime or subcontractor).

A QIC may not conduct activities or serve as a consultant related to the Medicare Appeals System (MAS) contract (as a prime contractor or subcontractor). The QICs are precluded due to the actual or potential unequal access to information conflict of interest as the MAS contactor has total access to all the information and reporting for all QIC jurisdictions. An actual or potential impaired objectivity conflict of interest is also possible as MAS programing, changes, enhancements, etc. could dictate or impact how appeals are processed within MAS, and steer processing/system use toward that contractor’s ease of use as opposed to taking into consideration the entire MAS user community and/or the Government’s best interest.

6. Conflict of Interest Oversight and Mitigation Plan:

1. Conflict of Interest Oversight Program: The contractor shall maintain an effective COI Oversight Program throughout the performance of the contract which includes procedures to monitor and disclose all Organizational and Personal Conflicts of Interest. A COI oversight program should include the monitoring of personal conflicts of interest such as, but not limited to:

1. Key Personnel (as defined in HHSAR 352.237-75 Key Personnel) and managers who would be, or are involved with, the performance of this contract, including any former federal employees;

2. Governing Body Members (e.g., Board of Directors; Trustees); and

3. Principals of the organization as defined by FAR 52.203-13, Contractor Code of Business Ethics and Conduct.

2. Mitigation Plan: At any time during the performance of the contract if an actual, potential, or apparent COI is identified whether by the CO, the contractor or otherwise, the contractor shall submit a mitigation plan (J.x Contractor/Offeror COI Submission Template) within 30 days unless otherwise specified by the CO.

It is the contractor’s responsibility under the terms and conditions to provide timely notification to the CO those COIs that are self-identified. The CO will notify the contractor regarding the specifics for submission. The Government will review the submission at which time a determination will be made whether a COI has been satisfactorily mitigated or if further action is necessary and will notify the contractor accordingly. In cases where a COI cannot be, or has not been, mitigated to the Government’s satisfaction, the Government may take the following actions (this list is not all inclusive):

1. Request a waiver in accordance with FAR 9.503 Waiver, from the Head of the Contracting Activity;

2. Make changes to the requirements of the contract;

3. Require a subcontractor change (if the conflict lies with the subcontractor);and/or

4. Terminate the contract in whole or in part.

7. Subcontractor Flow-Down Terms and Conditions: The prime contractor is responsible for avoiding, neutralizing and mitigating all actual, potential, or apparent COIs of its subcontractors, in accordance with these terms and conditions. Therefore, the prime contractor shall flow-down terms and conditions H.1 Conflict of Interest, of this contract in all subcontracts. For subcontractors, wherever the term “contractor” is used, insert “subcontractor.”

H.2 CONFLICT OF INTEREST (JUN 2026)