7. Conflict of Interest
Conflict of Interest
The CARE Act allows States to use consortia to guide the development of Title II HIV/AIDS services and requires them to utilize a public planning process to develop their comprehensive plans. Inclusion of broad membership, including providers of HIV/AIDS services and recipients of HIV services, is required. In mandating membership from individual or organizational representatives with direct personal or professional expertise related to HIV/AIDS services, Congress has built a conflict of interest challenge into consortium and planning operations.
Conflict of interest occurs when an appointed or voting member has a direct or indirect fiduciary or other personal or professional interest in a decision or in the outcome of a vote. Conflict of interest also occurs when members use their positions for purposes that are—or appear to be—motivated by pursuit of private gain for themselves or their families, friends, or business associates.
The greatest challenges in conflict of interest occur when members are funded service providers who actively participate in all aspects of the planning process. Planning activities that may breed conflict of interest include:
Because many Title II grantees have designated consortia as responsible for not only the prioritization of service needs but the actual selection of service providers, management of conflict of interest is essential. (Note: Not all consortia have responsibility for services procurement.)
To minimize the negative impact of conflict of interest, processes must be open and based on clear policies, which include: a definition of conflict of interest, a method of disclosure of conflict of interest, a duration that a conflict of interest disclosure is effective, and a method or methods of resolution when a conflict of interest action arises that violates policies and procedures.
Conflict of interest is most often defined as an actual or perceived interest by a member in an action that results in, or has the appearance of resulting in, personal, organizational, or professional gain. Any action which could be seen as an attempt to influence the process for personal, organizational, or professional gain should be included in a definition of conflict of interest. This bias, or appearance of bias, in the decision making process would reflect the dual role played by many members, who in addition to serving on the planning body are often affiliated with other organizations, either as an employee, a member, a board member, a volunteer, or in some other capacity.
Safeguards are needed to prevent members and employees from using their positions for private gain. The best way to establish safeguards and manage conflict of interest is to develop a definition of conflict of interest and a plan to manage it. This plan should include specific actions to be taken when someone violates conflict of interest policies.
Most States and local governments have conflict of interest standards in place, which can be reviewed to determine if they govern the activities of the planning body or can be adopted for this purpose.
The potential for conflict of interest is present in all planning processes: needs assessment, comprehensive plan development, priority setting, allocation of funds, and evaluation. In particular, priority setting and allocation of resources should be kept separate from those actions that procure services and select service providers. Some consortia have implemented policies that allow a lead agency to coordinate processes but not apply for Title II funding. However, many have limited resources and members, making this recommendation difficult to apply.
Following are conflict of interest considerations for specific areas:
Membership. In most instances, conflict of interest does not refer to PLWH whose sole relationship to a Title II-funded provider is as a client receiving services or serving as an uncompensated volunteer. However, PLWH, like other planning body members, should not be involved in decisions that can affect entities in which they have a financial interest or a governance responsibility. Examples of financial interest include being officers, employees, or paid consultants to Title II provider agencies or to the administrative agency that administers that Title II grant.
Expectations should be clearly defined for members who represent a community. A good planning process gathers diverse perspectives. However, the role of a representative should be communicated clearly, including a job description stating how the representative is expected to communicate with members of the community they represent. This would help deal with a problem where PLWH either come with a personal agenda or advocate for a particular service provider.
Members who have more than one role need to clearly identify the perspective they are representing in their membership. A good example of this is the member who is an employee of a funded provider, is a PLWH, and is a member of a community of color. Which perspective do they represent? The goal of a diverse, well-represented planning process should be to have more perspectives represented by more members, not fewer members trying to represent all the perspectives necessary to make truly informed decisions.
Leadership. Many groups do not allow the sole Chair of the planning group to be an employee of the State, the lead agency, or a funded provider. Some use a Co-Chair structure, where, on all matters, at least one Chair must not be in conflict of interest according to the definition. Some groups do not allow employees of the lead agency or grantee to be voting members.
Needs Assessment. An actual or perceived conflict of interest can occur in conducting the needs assessment and using its results in preparing the comprehensive plan and conducting priority setting and resource allocation. Conflict of interest can emerge at the following decision points of the needs assessment process:
A good needs assessment contains input from consumers and providers, as well as those beyond currently funded providers. As such, examples of conflict of interest regarding input into a needs assessment process might include the following:
Priority Setting and Resource Allocation. Examples of conflict of interest in priority setting include the following:
When setting priorities, look at the big picture—the continuum of care—rather than individual categories of funding. An overall plan minimizes the chances for any single group to dominate. The setting of priorities should flow from the results of the needs assessment, not from the individual interests of members.
Funding decisions should reflect changes in the local epidemic and in meeting the service gaps and unmet needs of PLWH in their region, including those persons not in care. In justifying priorities, discuss the availability of other funding sources to lessen the need for Title II funding of a particular service and reduce duplication of effort. Priorities should seem reasonable to an objective viewer.
Comprehensive Plan. In the comprehensive plan, conflict of interest can lead to problems such as the following:
For effective planning, develop a structure for planning that includes specific steps in the development of a plan and a timeline for implementation. A clearly defined planning process prevents persons or organizations with conflicts of interest from directing the process in a biased or unfair way and helps ensure that a plan is followed.
Evaluation. Consortia are responsible for evaluating their own planning process and their cost effectiveness in meeting the needs identified by their needs assessment. The results of this evaluation should be used to improve the consortium’s ability to plan and deliver high quality, cost-effective services to meet the needs of PLWH in their communities. States are required to assess the efficiency of the administrative mechanism for rapidly allocating funds to areas of greatest need in the State. However, conflict of interest can influence:
Conflict of interest can lead to a stagnant process where the status quo is maintained with no real evaluation of efficiency and effectiveness.
Groups should employ a variety of strategies to minimize conflict of interest and its potential adverse effects, such as keeping members self-aware of the potential for conflict of interest and using procedures that can minimize or address conflicts. Examples are as follows.
Disclosure Forms. Many groups require members to complete forms that identify any potential conflicts. The form might include all of the following:
Relationships the member has to an organization that could benefit from an action by the planning body, including the nature of the conflict (i.e., the person or organization that can benefit from the action).
Members might be required to declare their potential conflicts of interest annually, semi-annually, or even at every meeting. Sometimes disclosure is specifically required any time discussion or decision making involves an entity or situation in which the member has a real or perceived conflict of interest. Disclosure forms should be updated routinely to maintain accurate information. (A sample disclosure form is attached to this chapter).
Reminders of Potential Conflict of Interest. Among other actions that may be useful in increasing member awareness of conflict of interest are the following reminders:
Input During Meetings. Orderly processes that can reduce conflict include allowing for regular input from planning body and community members at meetings. Requests for time to comment on concerns should be submitted in advance of meetings and the time allocated should be limited, while allowing for diverse expression and full debate.
Other Forums for Input. Input beyond the membership can include consumer caucuses, provider caucuses, support groups, and ad hoc committees to get input at each step of the process.
Clear Processes With Open Participation. Processes that are well defined and open to the public protect the interests of all members. Included in those processes should be avenues for broad and balanced input from a variety of sources. The needs assessment process, for example, must include input from providers and consumers and should not be dominated by a particular group. Similarly, comprehensive planning activities should be based on a clear structure and process that identifies action steps, timelines, and specific roles and responsibilities. Perhaps most important, the setting of priorities must flow from the results of the needs assessment and comprehensive planning process.
Memorandum of Understanding Between Planning Body and Grantee. This document can outline duties of each entity and the roles of particular staff so that expectations are clear.
Member Term Limits and Staggered Terms. This can allow for new voices to be heard.
Conflict of Interest Standards. Successful resolution of conflict of interest situations requires adoption of conflict of interest standards and their routine application in planning body decisions. Such standards should be outlined in the planning body’s bylaws. The planning body needs to decide what it considers to be a fair and practical method to manage and resolve conflict of interest issues, recognizing that no solution is perfect. Conflict of interest cannot be fully prevented or resolved; it can be managed consistently and fairly. Specific standards include the following:
Grievance Procedures. In cases where a conflict of interest evolves into a dispute, the planning body may need to turn to grievance procedures to resolve the situation (See the chapter on grievance procedures in this section).
Contracting. Objective review committees funding applications should be composed of persons who are not involved in any way with the applicant organizations. The criteria for review, the process of selection, and the appeal process should be published beforehand.
SOME SPECIAL SITUATIONS
In small and very remote places where there are few providers, there may be no question as to who will provide a particular service. The group should proceed in its deliberations but, at the same time, remain aware that its decision not to change the delivery of certain services may be related to protecting its members own interests. In the situation where the group feels there is only one possible provider for a service, the services evaluation process becomes critically important.
In States where contracting requirements mandate a competitive bidding process, consortia should consult with their grantees about such requirements before assuming that they can award a sole source contract. Many States will allow exceptions when certain criteria are met, but consortia must meet their State requirements for contracting. In any event, awareness of a potential conflict of interest keeps everyone alert as to the factors that influence decision making.
Some groups share expertise across regions in order to bring fresh ideas to their planning. For example, some consortia are encouraged to assist each other not only in planning but in the RFP and allocation process. People with expertise in case management sit on the review panel for another area’s case management RFP.
Health Resources and Services Administration, HIV/AIDS Bureau, Division of Service Systems. TA Topics #1: Managing the Conflict of Interest Challenge. November 1994.