CMS Pub. 100-06, ch. 8, § 150.4

There are also monetary criteria to be considered in determining if a contract must

contain the access clause. If a contract is subject to the regulation as described in the

preceding paragraph and one of the following criteria is met, the clause must be included

in the contract:

y Any contract for services for 12 months or less that is valued at $10,000 or more

(e.g., a $12,000 contract for services that are completed in 2 months);

y Any series of contracts with a subcontractor for a service(s) that total $10,000 or

more over a consecutive 12-month period (e.g., two contracts for 6 months each

that are valued at $8,000 each, or 12 contracts for 1 month each valued at $1,000

each, or a series of contracts costing $1,000 each for 10 months);

y Any contract that runs for more than 12 months, the apportioned value of which is

$10,000 or more for a 12-month period (e.g., a contract for 18 months valued at

$18,000 (the 12-month value is $12,000) or a contract for 24 months valued at

$20,000, the 12-month value of which is $10,000); or,

y Any contract in which the cost or value of the services or service component is

not specified, but the provider-projected services' value is $10,000 or more. (If a

contract does not contain the cost or value of the services and does not include the

access clause, and it is subsequently determined by an intermediary (or other

representative of the HHS Secretary) that the contract is subject to the statute, the

provider risks not being reimbursed for the cost of the services under Medicare

unless a good faith showing is made that would permit modification of the

contract.)

These contracts between providers and subcontractors may be written or oral. With

respect to a written contract, the access clause must be made a part of the contract.

Regarding an oral contract, a provider is required to have a written agreement (with a

subcontractor) in the form of a letter of understanding that allows access to the pertinent

books.

Providers are advised in PRM-1, §2440.4 that the following sample access clause

language (which complies with the regulation) may be used:

"Until the expiration of four years after the furnishing of the services provided

under this contract, (Name of Subcontractor) will make available to the

Secretary, U.S. Department of Health and Human Services, and the U.S.

Comptroller General, and their representatives, this contract and all books,

documents, and records necessary to certify the nature and extent of the costs of

those services. If (Name of Subcontractor) carries out the duties of the contract

through a subcontract worth $10,000 or more over a 12-month period with a

related organization, the subcontract will also contain an access clause to permit

access by the Secretary, Comptroller General, and their representatives to the

related organization's books and records."

This language may not be suitable to all contracts. Therefore, contracting parties may use

other clause language provided it contains the elements required in the regulation with

respect to the nature of their contractual arrangement. Also, in those cases where the

access provision is contained in a document other than the contract to which it applies,

the sample clause will have to be modified accordingly.