Ryan White HIV/AIDS Program Part A Manual

Conflict of interest can be defined as an actual or perceived interest in an action that will result—or has the appearance of resulting—in personal, organizational, or professional gain. To illustrate, conflict of interest occurs when a planning council member has a monetary, personal, or professional interest in a planning council decision or vote.  Any group making funding decisions, be it a planning council or a TGA group, should be free from conflicts of interest. 

Ryan White legislative provisions on conflict of interest for the planning council as a whole are limited to restrictions on planning council involvement in the management of grant funds and participation in the selection of particular entities as recipients of those funds. In addition, planning council membership requirements for representation by "unaligned" consumer members require attention to conflict of interest.

Because the potential for conflict of interest is inherent in all of the activities of the planning council, HAB/DSS has broader expectations and requirements regarding minimizing and managing conflict of interest in the general functioning of the planning council. Each of these areas is discussed below.

Ryan White legislative provisions on conflict of interest prohibit three types of activities:

• Planning council involvement in the management of grant funds.

• Planning council participation in the selection of particular entities as recipients of those funds (procurement).

• A financial or governance relationship with funded providers on the part of "unaligned" consumer members of the planning council.

Ryan White legislative provisions governing these restrictions are as follows:

Section 2602(b)(1) requires that candidates for planning council membership "be selected based on locally delineated and publicized criteria" and that "such criteria shall include a conflict-of-interest standard for that is in accordance with paragraph (5)."

Section 2602(b)(5)(A) (the "paragraph 5" referenced above) addresses conflict of interest for the planning council as a whole. It requires that "The planning council…may not be directly involved in the administration of a grant…[and] may not designate (or otherwise be involved in the selection of) particular entities as recipients of any of the amounts provided in the [Part A] grant."

Section 2602(b)(5)(B) addresses conflict of interest for individual members of the planning council. It states that "An individual may serve on the planning council…only if the individual agrees that if the individual has a financial interest in an entity, if the individual is an employee of a public or private entity, or if the individual is a member of a public or private organization, and such entity or organization is seeking [Part A funding], the individual will not, with respect to the purpose for which the entity seeks such amounts, participate (directly or in an advisory capacity) in the process of selecting entities to receive such amounts for such purpose."

It is the intent of the legislation that the planning council "provide guidance to the grantee regarding the types of organizations that may best meet each service priority established by the planning council" and "help to guide the grantee in how best to meet the established service priorities." It is not intended "that the planning council select which particular organizations receive funding, either by specific direction or by narrowly describing a type of organization. The legislation clearly states that such a planning council role is prohibited." 

Regarding conflict of interest by "unaligned" consumer representatives on planning councils, Section 2602(b)(5)(C) of the Act requires that consumer representatives be individuals "who are receiving HIV-related services" from Part A funded providers; but "who are not officers, employees, or consultants to any entity that receives amounts from such a grant, and do not represent any such entity."

Below are HAB/DSS expectations and requirements for addressing conflict of interest-overall and in specific areas.

General Requirements

Ryan White HIV/AIDS Program conflict-of-interest provisions reinforce the distinction between the planning council's responsibility to set priorities and the grantee's responsibility to procure particular services.

Specifically, the law prohibits the planning council as a whole from being directly involved in either the administration of a grant or in the selection of particular entities to receive Part A funds. This means that planning councils may not:

• Name, recommend, or approve particular entities for funding

• Be involved in the management of the contracts that govern the procurement of services, or

• Participate or otherwise be involved in the review of funding applications or selection of providers of services.

Because of their relationship to the planning council, sound practice is not to have individual members of planning councils serve on external review panels for the selection of Part A providers.

Such activities are responsibilities of the grantee and/or the administrative agent of the grantee. They include developing requests for proposals (RFPs), conducting technical assistance and bidders' conferences, conducting the application review process (typically using external review panels), negotiating contracts, awarding funds, developing reimbursement and accounting systems, and conducting program and fiscal monitoring.

Because planning council members may include representatives of the Part A grantee, use of Ryan White Part A funds by the grantee may pose conflict of interest issues. Use of Part A funds by the Part A grantee for delivery of particular services (e.g., medical care through a health department clinic) should be based on direction from the planning council and/or an objective review process. While local rules on procurement of services may allow the grantee to use funds it administers for its own services, HAB/DSS expects that such use will be subject to a public process if other entities in the community could provide the same services. Such a process is in keeping with the spirit of the Ryan White HIV/AIDS Program, which bases the appropriate and efficient use of scarce resources on input from community and organizational representatives who are directly affected by the HIV epidemic.

Planning Council Support

While the legislation prohibits planning councils from participating or otherwise being involved in selecting particular entities for funding, they may be involved in selecting particular entities and individuals to carry out activities directly related to planning council functions and responsibilities. These activities include:

• General planning council administrative duties

• Needs assessments

• Study barriers to care

• Planning activities such as writing the comprehensive plan

• Assessment of the administrative mechanism

• Technical assistance

• Program evaluation, and

• Assessment of service delivery patterns.

In making determinations about who will carry out these activities, planning councils should be keenly attuned to potential conflicts of interest (real or perceived). HAB/DSS expects that planning councils and grantees will work together to ensure that high quality planning council support is available and that conflict of interest will be minimized through a mutually agreeable process. The planning council must use an open, public process to contract for planning council support services-preferably a competitive RFP process under the direction of the grantee. If a planning council's procedures allow planning council members or the agencies they represent to compete in this process, the planning council must define specific parameters and processes to manage real or perceived conflicts of interest. A planning council member who has a financial interest in, is an employee of, or is a member of that entity should not be involved or otherwise participate in the selection process.

The Ryan White legislation gives planning councils the responsibility not only to set priorities, but also to establish how best to meet those priorities. The intent of this legislative provision is to establish a role for the planning council in guiding the grantee in identifying the types of organizations and service delivery mechanisms that best meet each service priority established by the council. Types of organizations may include, for example, outpatient clinics, community-based organizations that serve affected populations and historically underserved communities, and other types of entities that have been identified as effective in serving identified populations. Planning councils may also identify certain population groups that need to be served, geographic areas in which services should be delivered, and particular State or local government programs that the planning council feels best meet the needs of people living with HIV/AIDS (e.g., a State AIDS Drug Assistance Program [ADAP] or health department clinic).

The language developed by the planning council regarding how best to meet each service priority may not name particular providers as recipients of funds. Nor may the planning council participate or otherwise be involved with drafting specific contract proposal review criteria, reviewing funding applications, and selecting service providers. The grantee, not the planning council, is responsible for developing and implementing an RFP and contract award process. The grantee is obligated to ensure that the outcome of that process meets the priorities established by the council, including directions from the planning council regarding how best to meet the priorities and the dollar amounts allocated to each priority area.

HAB/DSS recognizes that in some EMAs/TGAs and for some service categories with a small provider pool, language on how best to meet the priority may result in only a few or a single provider applying for funds. As long as the planning council does not name a particular provider, however, the council is not in violation of the conflict of interest requirements in the Act. A planning council's designation of the State ADAP program and/or a local health department program as the best way to meet a service priority does not violate conflict of interest requirements.

Monitoring Contracts and Redistribution of Funds

The planning council is prohibited from being involved in grant administration, and therefore, may not be involved in monitoring the fiscal or program performance of individual contractors. These activities are the responsibility of the grantee.

Planning councils cannot name, recommend, or otherwise be involved in the approval of particular providers if a grantee redistributes program funds based on monitoring of individual contracts. However, the planning council must be informed of the changes to service priority allocations that result from any redistribution of program funds by the grantee. As with the initial disbursement of funds, the outcome of the redistribution must be consistent with the priorities and resource allocations of the planning council.

The grantee must also share information with the planning council so that both can monitor spending on each of the service categories identified as priorities by the planning council. The planning council should be able to readily evaluate the level of expenditure, number of people served, and other aggregate information for particular service categories and target populations.

If money is not being spent in a timely fashion, or target populations are not being served, the planning council can reallocate funds to another service category. The grantee and the planning council must work together to share appropriate information and ensure that any changes to the planning council priorities are reflected in the grantee's disbursement (or re-disbursement) of funds.

HAB/DSS expects planning councils to include in their bylaws and operating procedures provisions for handling conflict of interest in carrying out all planning council activities. Provisions should define conflict of interest and outline ways to manage it. These areas are described below.

Defining Conflict of Interest

Conflict of interest can be defined as an actual or perceived interest by the member in an action that results or has the appearance of resulting in personal, organizational, or professional gain.

As appropriate, the definition may cover both the member and a close relative, such as a domestic partner, sibling, parent or child.

This actual or perceived bias in the decision-making process is based on the dual role played by a planning council members who is are aligned with other organizations as an employee, a Board member, a member, or in some other capacity. Most State and local governments have conflict of interest standards in place. Planning councils may wish to refer to them and assess whether they are applicable or can be adapted to the needs of the planning council.

Areas Where conflict of Interest Can Happen

Although the legislation does not define conflict of interest beyond its relationship to the selection of particular entities, the potential for conflict of interest is present in all Ryan White Part A processes: needs assessment, comprehensive planning, priority setting, allocation of funds, and evaluation. Because the activities of the planning council are so central to the allocation and disbursement of resources within an EMA/TGA, the actions of any one member or a group of planning council members can actually be-or be perceived to be-based on individual rather than common interest. It is the responsibility of the planning council as a whole to define conflict of interest, and to specify those actions to which it applies and the types of relationships covered by it.

Following are conflict of interest considerations for specific areas:

Membership. In most instances, conflict of interest does not refer to persons living with HIV/AIDS (PLWHA) whose sole relationship to a Part A-funded provider is as a client receiving services or serving as an uncompensated volunteer. However, PLWHA, like other planning council 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, Board members, employees, or paid consultants to Part A provider agencies or to the administrative agency that administers that Part A grant.

Many members wear "multiple hats" and thus 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 PLWHA, and is a member of a community of color.

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 PLWHA either come with a personal agenda or advocate for a particular service provider.

Leadership. An actual or perceived conflict of interest can occur when planning councils are chaired solely by a representative of the grantee. Therefore the Ryan White legislation stipulates that councils cannot be chaired solely by an employee of the grantee. It can, however, be co-chaired by a grantee representative along with another member of the council. 

Needs Assessment. An actual or perceived conflict of interest can occur in the conduct of a needs assessment, particularly with respect to its implementation in planning, priority setting, and resource allocation. Conflict of interest can emerge at decision points of the needs assessment process such as the following:

• How to conduct a needs assessment

• Which groups to survey

• What questions to ask

• How to phrase the questions

• How to interpret the results

• How to review external data, such as epidemiologic data

• Which data to use, and

• Which results to implement.

A good needs assessment contains input from consumers and Part A providers, as well as agencies beyond the currently funded providers. As such, examples of conflict of interest regarding their input into a needs assessment process might include the following:

• A provider convinces the council to overemphasize the input of its own clients

• A provider representative determines which agency clients (e.g., the happy ones!) should be targeted for the needs assessment, and

• The needs assessment is limited to soliciting the opinions of planning council members and no one else.

Priority Setting and Resource Allocation. Examples of conflict of interest in the priority-setting process include the following:

• Failure to use the council's criteria to set priorities, and instead advocating for one's own interests.

• A choice to fund services that do not match the needs identified in the needs assessment.

• Priorities that are set based on who was the most vocal at the priority-setting meeting.

When setting priorities, planning councils should look at the big picture—the continuum of care—rather than focus on individual categories of funding. An overall plan minimizes the chances for a single advocacy group to dominate. The setting of priorities and the allocation of resources should flow from the data, such as the results of the needs assessment and other data, not from the individual interests of the members. Funding decisions should reflect changes in the local epidemic and be designed to meet the service gaps and unmet need of PLWHA in their region. In justifying priorities, planning councils should discuss the availability of other funding sources to lessen the need for Part A funding of a particular service and reduce duplication of effort.

Comprehensive Planning. In comprehensive planning, conflict of interest can lead to problems such as the following:

• Inadequate planning for underserved populations and subpopulation groups

• Lack of follow-through with the results of needs assessments, and

• An ineffective planning process that results in an ineffective service delivery system not responsive to a changing epidemic.

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. Planning councils are responsible for evaluating their own planning process and their cost-effectiveness and efficiency of funded services in meeting the needs identified by their needs assessment. The results of this evaluation should be used to improve the council's ability to plan and the EMA's/TGA's ability to deliver high quality, cost-effective services to meet the needs of PLWHA in their communities. However, conflict of interest can influence: [NOTE: The planning council does not deliver services.]

• The extent to which evaluation is conducted

• How it is conducted

• Who can conduct it

• What the results are, and

• How the results are interpreted and used.

Conflict of interest can lead to a stagnant process where the status quo is maintained with no real evaluation of the planning council's efficiency and effectiveness or the cost-effectiveness and outcomes of the services provided by the EMA/TGA.

Techniques for Managing conflict of Interest

HAB/DSS expects planning councils to 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 planning councils require members to complete forms that identify any 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 council, including the nature of the conflict (i.e., the person or organization that can benefit from the action)

  • The relationship that causes the potential conflict of interest

  • The duration of the conflict of interest, and

  • A description of what actions will be used to resolve a conflict of interest.

Disclosure forms should be updated routinely to maintain accurate information.

Members might be required to declare their potential conflicts of interest annually, semiannually, 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.

• Reminders of conflict of Interest. Among other actions that may be useful in increasing planning council member awareness of conflict of interest are the following reminders:

  • Provide a matrix of members and their conflicts of interest at every meeting

  • Provide members with the planning council's mission statement to remind them of the purpose of their work, and

  • Require members to sign a declaration of commitment to the purposes of the planning council.
    

• Input During Meetings. Orderly processes that can reduce conflict include allowing for regular input from planning council 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 planning council 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 planning council 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 and the allocation of resources must flow from the results of the needs assessment and comprehensive planning process.

• Memorandum of Understanding Between Planning Council 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 council decisions. Such standards should be outlined in the planning council's bylaws. The planning council 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:

  • Prohibit those with a potential conflict of interest from voting on issues relating to a particular organization or category of service.

  • Ask anyone with a potential conflict of interest to leave the room during the discussion of that category of service or organization as well as while a vote is being taken.

  • Allow a person with a conflict of interest to answer direct questions but not to initiate discussion about a service category for which that person has a conflict of interest.

  • Assign a co-chair or a committee to review all conflict of interest concerns. Authorize any planning council member to make a request for review of a perceived conflict of interest; define the process of review in writing, establishing timelines so that any review is undertaken in an expeditious manner; and establish policies for dealing with members who engaged in a conflict of interest and/or refused to cooperate in a conflict of interest review.
    

• Grievance Procedures. In cases where a conflict of interest evolves into a dispute, the planning council may need to turn to grievance procedures to resolve the situation (see the chapter on Grievance Procedures).