§ 800.401 Contract performance. ( a ) *General.* An MSP issuer must perform an MSP Program contract with OPM in accordance with the requirements of section 1334 of the Affordable Care Act and this part. The MSP issuer must continue to meet such requirements while under an MSP Program contract with OPM.
( b ) *Specific requirements for issuers.* In addition to the requirements described in paragraph (a) of this section, each MSP issuer must: ( 1 ) Have, in the judgment of OPM, the financial resources to carry out its obligations under the MSP Program;
( 2 ) Keep such reasonable financial and statistical records, and furnish to OPM such reasonable financial and statistical reports with respect to the MSP option or the MSP issuer, as may be requested by OPM;
( 3 ) Permit representatives of OPM (including the OPM Office of Inspector General), the U.S. Government Accountability Office, and any other applicable Federal Government auditing entities to audit and examine its records and accounts that pertain, directly or indirectly, to the MSP option at such reasonable times and places as may be designated by OPM or the U.S. Government Accountability Office;
( 4 ) Timely submit to OPM a properly completed and signed novation or change-of-name agreement in accordance with subpart 42.12 of 48 CFR part 42;
( 5 ) Perform the MSP Program contract in accordance with prudent business practices, as described in paragraph (c) of this section; and
( 6 ) Not perform the MSP Program contract in accordance with poor business practices, as described in paragraph (d) of this section.
( c ) *Prudent business practices.* OPM will consider an MSP issuer's specific circumstances and facts in using its discretion to determine compliance with paragraph (b)(5) of this section. For purposes of paragraph (b)(5) of this section, prudent business practices include, but are not limited to, the following: ( 1 ) Timely compliance with OPM instructions and directives;
( 2 ) Legal and ethical business and health care practices;
( 3 ) Compliance with the terms of the MSP Program contract, regulations, and statutes;
( 4 ) Timely and accurate adjudication of claims or rendering of medical services;
( 5 ) Operating a system for accounting for costs incurred under the MSP Program contract, which includes segregating and pricing MSP option medical utilization and allocating indirect and administrative costs in a reasonable and equitable manner;
( 6 ) Maintaining accurate accounting reports of costs incurred in the administration of the MSP Program contract;
( 7 ) Applying performance standards for assuring contract quality as outlined at § 800.402; and
( 8 ) Establishing and maintaining a system of internal controls that provides reasonable assurance that: ( i ) The provision and payments of benefits and other expenses comply with legal, regulatory, and contractual guidelines;
( ii ) MSP funds, property, and other assets are safeguarded against waste, loss, unauthorized use, or misappropriation; and
( iii ) Data is accurately and fairly disclosed in all reports required by OPM.
( d ) *Poor business practices.* OPM will consider an MSP issuer's specific circumstances and facts in using its discretion to determine compliance with paragraph (b)(6) of this section. For purposes of paragraph (b)(6) of this section, poor business practices include, but are not limited to, the following: ( 1 ) Using fraudulent or unethical business or health care practices or otherwise displaying a lack of business integrity or honesty;
( 2 ) Repeatedly or knowingly providing false or misleading information in the rate setting process;
( 3 ) Failing to comply with OPM instructions and directives;
( 4 ) Having an accounting system that is incapable of separately accounting for costs incurred under the contract and/or that lacks the internal controls necessary to fulfill the terms of the contract;
( 5 ) Failing to ensure that the MSP issuer properly pays or denies claims, or, if applicable, provides medical services that are inconsistent with standards of good medical practice; and
( 6 ) Entering into contracts or employment agreements with providers, provider groups, or health care workers that include provisions or financial incentives that directly or indirectly create an inducement to limit or restrict communication about medically necessary services to any individual covered under the MSP Program. Financial incentives are defined as bonuses, withholds, commissions, profit sharing or other similar adjustments to basic compensation (*e.g.,* service fee, capitation, salary) which have the effect of limiting or reducing communication about appropriate medically necessary services.
( e ) *Performance escrow account.* OPM may require MSP issuers to pay an assessment into an escrow account to ensure contract compliance and benefit MSP enrollees.