Access Clause Not in Contract

150.5 – Access Clause Not in Contract (Rev. 27, 12-19-03) There may be situations where a provider, after applying the criteria of the regulation to a contract, erroneously decides that the contract does not require an access clause. In such unusual situations, if the provider demonstrates satisfactorily that the decision not to include the clause was made in good faith with a reasonable basis(es), and the provider and subcontractor amends its contract to include an access clause within an acceptable (to the contractor) period of time after being advised that such amendment is required, the contractor shall treat the contract as meeting the requirements of the regulation. An example of a provider response demonstrating good faith with a reasonable basis is a situation where the provider honestly concluded that the cost or value of the service component of a goods and services contract was less than $10,000. With respect to contracts where services or services and goods are still being provided, any such amendment must make clear that the access clause applies to books, documents, and records for the full term of the contract and not just for the period following the date of amendment. If a provider demonstrates satisfactorily that the decision not to include the clause was made in good faith with a reasonable basis, but cannot amend the contract because the subcontractor is no longer in business, the contractor shall make a determination as to the reasonableness of the costs of the subcontractor's services using available information. The contractor shall take appropriate disallowance and/or recoupment action with respect to the cost of the services of the subcontractor if either the provider or subcontractor refuses to amend the contract, or the provider does not demonstrate satisfactorily that the decision not to include the clause was made in good faith with a reasonable basis. There may also be situations in which an individual subcontractor refuses to enter into a contract containing the required access clause, or will not agree to the addition of the access clause to an existing contract, which becomes necessary because of a contract modification. Providers are instructed in PRM-1, §2441 to contact the CMS Regional Administrator in their area if they have difficulty in finding another organization that will agree to the clause and offer the needed services at a cost at least as competitive as that of the original organization. (A provider that does not notify the Regional Administrator but instead, on its own initiative, contracts with a more expensive subcontractor or omits the access clause, risks not being reimbursed for the full cost of the services furnished under the contract.) If the Regional Administrator's efforts to persuade a subcontractor to include the required clause are unsuccessful, and no other subcontractor is available that will furnish the services at a competitive price and agree to the access provision, a provider may find it necessary to contract with another organization willing to accept the access clause, even though the cost of the services may be greater. In this situation, providers are requested to contact their contractor before entering into a contract to assure that the greater cost incurred will be considered during the cost report settlement process; this is not intended to be a pre-approval requirement.