[Federal Register Volume 73, Number 96 (Friday, May 16, 2008)]
[Notices]
[Pages 28472-28478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11015]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Program Reporting and Accountability Changes to the Hospital
Preparedness Program (HPP)
AGENCY: Department of Health and Human Services, Office of the
Assistant Secretary for Preparedness and Response, ASPR (HHS).
ACTION: Notification of intent to fund and information on: (1)
Maintenance of Funding (MOF); (2) Evidenced-Based Benchmarks and
Objective Standards; (3) Reporting; (4) Funding Formula; (5)
Withholding; and (6) Maximum Carryover Amount.
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The final FY 2008 Funding Opportunity Announcement (FOA) for the
Hospital Preparedness Program (HPP) will be available in the coming
weeks at http://www.grants.gov.
SUMMARY: The Department of Health and Human Services (HHS or the
Department) is issuing in the third quarter of FY 2008 a Funding
Opportunity Announcement (FOA) for the HPP, authorized under section
319C-2 of the Public Health Service (PHS) Act, as amended by the
Pandemic and All-Hazards Preparedness Act (PAHPA) (Pub. L. 109-417).
The Consolidated Appropriations Act, 2008, provides funding for these
awards (Pub. L. 110-161). This Federal Register notice provides
information concerning critical aspects of this program including:
Program Background;
Program Requirements:
[cir] Maintenance of Funding;
[cir] Evidenced Based Benchmarks and Objective Standards;
[cir] Reporting;
[cir] Funding Formula;
[cir] Withholding;
[cir] Maximum Carryover Amount;
Important Dates.
FOR FURTHER INFORMATION CONTACT: CDR Melissa Sanders at (202) 245-0763,
or [email protected].
SUPPLEMENTARY INFORMATION:
Program Background
Building on the lessons learned from the attacks of September 11th,
2001, and Hurricanes Katrina and Rita, PAHPA was enacted in December
2006 to improve the Nation's public health and medical preparedness and
response capabilities for emergencies, whether deliberate, accidental,
or natural. PAHPA amended and added new sections to the PHS Act.
Examples of these changes include: identifying the Secretary of Health
and Human Services as the lead official for all Federal public health
and medical responses to public health emergencies and other incidents
covered by the National Response Framework; establishing the position
of the Assistant Secretary for Preparedness and Response (ASPR), who
will lead and coordinate HHS preparedness and response activities,
advise the Secretary of HHS during an emergency, and lead the
coordination of emergency preparedness and response efforts between HHS
and other Federal agencies; consolidating Federal public health and
medical response programs under the Assistant Secretary for
Preparedness and Response (ASPR); requiring the development and
implementation of the National Health Security Strategy; and
reauthorizing the Public Health and Emergency Preparedness (PHEP)
cooperative agreements administered by the CDC and the HPP grants
administered by the ASPR. In addition to reauthorizing these two
cooperative agreement programs, PAHPA amended these grant programs to
add certain new requirements that awardees must meet. The purpose of
this notice is to notify HPP awardees about critical aspects and
requirements of the HPP as amended by PAHPA.
Purpose: The purpose of the Hospital Preparedness Program (HPP) is
to provide funding to improve surge capacity and realize the following
preparedness goals:
Integration: Ensuring the integration of public and
private medical capabilities with public health and other first
responder systems, including--
1. Periodically evaluating preparedness and response capabilities
through drills and exercises; and
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2. Integrating public and private sector public health and medical
donations and volunteers.
Medical: Increasing the preparedness, response
capabilities, and surge capacity of hospitals, other health care
facilities (including mental health facilities), and trauma care and
emergency medical service systems, with respect to public health
emergencies. This shall include developing plans for the following:
1. Strengthening public health emergency medical management and
treatment capabilities.
2. Improving medical evacuation and fatality management
capabilities.
3. Rapidly distributing and administering medical countermeasures,
specifically to hospital based health care workers and their family
members or partnership entities.
4. Utilizing effectively any available public and private mobile
medical assets and integration of other Federal assets.
5. Protecting health care workers and health care first responders
from workplace exposures during a public health emergency.
At-Risk Individuals: Preparing for the medical needs of
at-risk individuals in their community in the event of a public health
emergency. Medical needs include behavioral health consisting of both
mental health and substance abuse considerations. The term ``at-risk
individuals'' means children, pregnant women, senior citizens and other
individuals who have special needs in the event of a public health
emergency. Before, during and after an incident, members of at-risk
populations may have additional needs in one or more of the following
functional areas: maintaining independence, communications,
transportation, supervision and medical care. In addition to those
individuals specifically identified as at-risk in the above definition,
individuals who may need additional response assistance should include
those who:
1. Have disabilities;
2. Live in institutionalized settings;
3. Are from diverse cultures;
4. Have limited English proficiency or are non-English speaking;
5. Are transportation disadvantaged;
6. Have chronic medical disorders; and
7. Have pharmacologic dependency.
Coordination: Minimizing duplication of, and ensuring
coordination between, Federal, State, local, and tribal planning,
preparedness, response and recovery activities (including the State
Emergency Management Assistance Compact).
Continuity of Operations: Maintaining vital public health
and medical services to allow for optimal Federal, State, local, and
tribal operations in the event of a public health emergency.
Eligibility: The following are eligible entities:
A State;
A political subdivision determined to be eligible for an
award under section 319C-1 of the PHS Act; or
A consortium of States.
Program Requirements
1. Maintenance of Funding (MOF)
Award recipients must maintain their health care preparedness
expenditures at a level that is not less than the average of
expenditures made during the preceding two year period (i.e., federal
FY 2006 and FY 2007). The MOF requirement refers to the awardee's
expenditures (i.e., state (or political subdivision) contributions for
health care preparedness, not Federal dollars) and may include
expenditures for surge capacity investments such as:
a. Beds;
b. Isolation;
c. Decontamination;
d. Personal Protective Equipment;
e. Pharmaceuticals;
f. Mobile Medical Assets;
g. Interoperable communications equipment;
h. Laboratory equipment and trainings.
2. Evidence-Based Benchmarks and Objective Standards
In accordance with section 319C-1(g) of the PHS Act, ASPR has
established evidence-based benchmarks and targets to be achieved at the
mid-year and end-of-year reporting times. Please see the FY08 HPP FOA
for the specific benchmarks that awardees must achieve. As noted in
more detail below, HPP awardees will have funds withheld from their FY
2009 awards if, when expending their FY 2008 HPP awards, they fail
substantially to meet the benchmarks described in the FY 2008 HPP FOA.
3. Reporting
In order to ensure all awardees are able to demonstrate compliance
with newly established benchmarks and other reporting requirements, HHS
will require semi-annual reporting information. Please see the FY08 HPP
FOA for actual reporting targets to be met.
4. Funding Formula
Per section 319C-2(j) of the PHS Act, funding for this mandatory
cooperative agreement is determined in the same manner as amounts are
determined for PHEP awardees under section 319C-1(i) of the PHS Act,
via a statutory formula that employs a base allocation with an
adjustment for population.
5. Withholding
The Secretary of HHS is required under section 319C-1(g) of the PHS
Act to develop and require application of measurable benchmarks and
objective standards that measure levels of preparedness with respect to
HPP activities. The Secretary shall withhold funds beginning in FY 2009
from HPP awardees who fail substantially to meet the applicable
benchmarks for the immediate preceding fiscal year and/or who fail to
submit a Pandemic Influenza Plan. Thus, HPP awardees will have funds
withheld from their FY 2009 awards if, when expending their FY 2008 HPP
awards, they fail substantially to meet the benchmarks described in the
FY 2008 FOA or to submit a Pandemic Influenza Plan. The amounts to be
withheld are as follows:
(i) For the fiscal year immediately following a fiscal year in
which an entity experienced a failure, an amount equal to 10 percent of
the amount the entity was eligible to receive;
(ii) For the fiscal year immediately following two consecutive
fiscal years in which an entity experienced a failure, an amount equal
to 15 percent of the amount the entity was eligible to receive, taking
into account the withholding of funds for the immediately preceding
fiscal year;
(iii) For the fiscal year immediately following three consecutive
fiscal years in which an entity experienced such a failure, an amount
equal to 20 percent of the amount the entity was eligible to receive,
taking into account the withholding of funds for the immediately
preceding two fiscal years;
(iv) For the fiscal year immediately following four consecutive
fiscal years in which an entity experienced such a failure, an amount
equal to 25 percent of the amount the entity was eligible to receive,
taking into account the withholding of funds for the three preceding
fiscal years.
Each failure to meet the benchmarks for the immediately preceding
fiscal year or to submit a Pandemic Influenza Plan will be treated as a
separate failure for purposes of calculating amounts withheld. The
Secretary is required to develop and implement a process to notify
entities who have failed substantially to meet the evidence-based
benchmarks or who have failed to submit a Pandemic Influenza Plan. HHS
will notify awardees during the mid-
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year reporting period that are determined to have failed to meet the
benchmark targets that are described in the FOA. Awardees will have the
opportunity to seek intensive technical assistance from project
officers and be involved in the development of such technical
assistance. Should awardees fail to correct their failures, they shall
be subject to the withholding amounts described previously.
6. Maximum Carryover Amount
Per section 319C-1(j)(3) of the PHS Act the Secretary shall
determine, for each fiscal year, the maximum percentage of unobligated
funds that may be carried over to the succeeding fiscal year. If the
percentage of unobligated funds exceeds the maximum percentage
permitted, the awardee shall return that portion of the unobligated
funds that exceeds the maximum amount permitted. Awardees may apply to
the Secretary for a waiver of the maximum percentage amount by
including an explanation why the requirement should not apply to the
awardee and the steps the awardee will take to ensure that all funds
will be expended appropriately. Further, the Secretary may waive or
reduce the amount of carryover determined for a single entity or for
all entities in a fiscal year, if the Secretary determines that
mitigating conditions exist that justify the waiver or reduction.
An awardee may not have more than 15% of the award available as
unobligated funds at the time a carryover request is made,
approximately 10 months into the budget cycle. Amounts in excess of 15%
may result in repayment.
7. Important Dates
Anticipated Application Due Date: June 11, 2008.
Anticipated Award Date: August 1, 2008
Dated: May 9, 2008.
RADM W. Craig Vanderwagon,
Assistant Secretary for Preparedness and Response, Office of the
Secretary, Department of Health and Human Services.
ASPR Hospital Preparedness Program (HPP) Cooperative Agreement
Enforcement Actions and Disputes
I. Purpose
Sections 319C-1 and C-2 of the Public Health Service (PHS), as
amended by the Pandemic and All-Hazards Preparedness Act (PAHPA),
include certain accountability and compliance requirements that
grantees must meet, including achievement of evidence-based benchmarks,
audit requirements, and maximum carryover amounts. This document
provides information about enforcement actions associated with these
requirements, and appeal processes in the event there is a dispute.
This document addresses requirements and enforcement actions
specifically outlined in section 319C-1 and C-2 of the PHS. It is not
intended to cover all requirements that grantees must meet pursuant to
grant laws, regulations, Departmental grants policy, and terms and
conditions of the award. Grant laws, regulations, and Departmental
grants policies apply to these grants to the extent they are consistent
with section 319C-1 and C-2 of the PHS Act.
II. Abbreviations, Acronyms and Definitions
A. For the purpose of this document, the following abbreviations
and acronyms apply:
1. ARC--Agency Review Committee.
2. ASPR--Assistant Secretary for Preparedness and Response.
3. CGMO--Chief Grants Management Officer.
4. DAB--Departmental Appeals Board.
5. GMO--Grants Management Officer.
6. GMS--Grants Management Specialist.
7. HHS--Department of Health and Human Services.
8. HPP--Hospital Preparedness Program.
9. IDDA--Intra-Departmental Delegation of Authority (IDDA).
10. NoA--Notice of Award.
11. OPHS--Office of Public Health and Science.
12. PHEP--Public Health Emergency Preparedness.
13. PO--Project Officer.
B. For the purpose of this document, the following definitions
apply:
1. HHS Department Appeals Board (DAB)--The administrative board
responsible for resolving certain disputes arising under HHS assistance
programs. The DAB provides an impartial adjudicatory hearing process
for appealing certain final written decisions by GMOs. The DAB's
jurisdiction is specified in 45 CFR Part 16, ``Procedures for HHS Grant
Appeals Board.''
2. Agency Review Committee (ARC)--Committee comprised of awarding
agency members who review awardee appeals to adverse determinations
made by grant officials. A minimum of three appointed core members, one
of whom will be designated a chairperson by the ASPR. Others may be
designated as determined by the chairperson. Members of the ARC may not
be from the branch or program whose adverse determination is being
appealed.
3. Recipient--The organization that receives a grant or cooperative
agreement award from an awarding agency, and is responsible and
accountable for using the funds provided, and for the performance of
the grant-supported project or activity. The recipient is the entire
legal entity, even if a particular component is designated in the NoA.
The term includes ``awardee/grantee.''
4. Corrective action--Action taken by the awardee that corrects
identified deficiencies or produces recommended improvements.
5. Enforcement--Actions taken to compel the observance of policies,
regulations, and laws governing the administration of an assistance
program. Such actions are generally the result of a recipient's failure
to comply with the terms and conditions of an award. These failures may
cause an awarding agency to take one or more actions, depending on the
severity and duration of the non-compliance. The awarding agency
generally will afford the recipient an opportunity to correct the
deficiencies before taking enforcement action, unless public health or
welfare concerns require immediate action. However, even if an awardee
is taking corrective action, the awarding agency may take proactive
steps to protect the Federal government's interests, including placing
special conditions on awards, or may take action designed to prevent
future non-compliance, such as closer monitoring.
6. Termination--The permanent withdrawal by the awarding agency of
an awardee's authority to obligate previously awarded grant funds
before that authority would otherwise expire, including the voluntary
relinquishment of that authority by the recipient.
7. Disallowance--A determination denying payment of an amount
claimed under an award, or requiring return of funds or off-set of
funds already received.
8. Void--A determination that an award is invalid because the award
was not authorized by statute or regulation, or because it was
fraudulently obtained.
9. Withholding of funds--An action taken by an awarding agency to
withhold or reduce support within a previously approved or subsequent
budget period. Withholding may occur for the following justifiable
reasons: (1) An awardee is delinquent in submitting required reports;
(2) adequate Federal funds are not available to support the project;
(3) an awardee fails to show satisfactory progress in achieving the
objectives of the project, e.g.,
[[Page 28475]]
performance measures/benchmarks and/or excessive carryover; (4) an
awardee fails to meet the terms of a previous award; (5) an awardee's
management practices fail to provide adequate stewardship of Federal
funds; (6) any reason which would indicate that continued funding would
not be in the best interests of the Government.
10. Offset--The withholding of funds from an award recipient in
order to compensate for costs owed the awarding agency.
11. Repayment of funds--Funds for payment of a debt determined to
be owed to the Federal Government. Repayment of funds cannot come from
other Federally-sponsored programs.
12. Terms and conditions of award--All requirements imposed on a
recipient by the Federal awarding agency, whether by statute,
regulation, or within the grant award document itself. The terms of
award may include both standard and special provisions, appearing on
each NoA that are considered necessary to attain the objectives of the
grant; facilitate post award administration of the grant, conserve
grant funds, or otherwise protect the Federal government's interests.
13. Performance measures/benchmarks--The use of statistical
evidence to determine progress toward specific defined objectives.
These are leading indicators that will allow a national ``snapshot'' to
show how preparedness and response activities, and the associated
resources, aid in improving the public health system.
14. Excessive Carryover--Unobligated funds of a recipient that
exceed the established maximum percentage of 15% of the award, as
reported on a Financial Status Report (SF-269) at the time a carryover
request is made, approximately 10 months into the 12 month budget
cycle. The threshold amount includes direct and indirect costs.
15. Outlays or Expenditures--The charges made to the Federally-
sponsored project or program. They may be reported on a cash or accrual
basis. For reports prepared on a cash basis, outlays are the sum of
cash disbursements for direct charges for goods and services, the
amount of indirect expense charged, the value of third party in-kind
contributions applied and the amount of cash advances and payments made
to sub-awardees. For reports prepared on an accrual basis, outlays are
the sum of cash reimbursements for direct charges for goods and
services, the amount of indirect expense incurred, the value of in-kind
contributions applied, and the net increase (or decrease) in the
amounts owed by the recipient for goods and other property received,
for services performed by employees, contractors, sub-awardees and
other payees and other amounts becoming owed under programs for which
no current services or performance are required.
16. Audits--A systematic review or appraisal made to determine
whether internal accounting and other control systems provide
reasonable assurance of financial operations are properly conducted;
financial reports are timely, fair, and accurate; the entity has
complied with applicable laws, regulations, and terms and conditions of
award; resources are managed and used economically and efficiently;
desired results and objectives are being achieved effectively.
17. Failure--Noncompliance with any or all of the provisions of the
NoA which include but not limited to various laws, regulations,
assurances, terms, or conditions applicable to the grant or cooperative
agreement.
18. Matching or Cost Sharing--The value of third-party in-kind
contributions and the portion of the costs of a federally assisted
project or program not borne by the Federal Government. Costs used to
satisfy matching or cost-sharing requirements are subject to the same
policies governing allowability as other costs under the approved
budget.
III. Background
PAHPA amended section 319C-2 of the PHS Act, and authorizes the
Assistant Secretary for Preparedness and Response (ASPR) to award
cooperative agreements to eligible entities to enable such entities to
improve surge capacity and enhance community and hospital preparedness
for public health emergencies. Funding for these awards is provided by
the Consolidated Appropriations Act of 2008 (Public Law 110-161).
Grantees must meet certain statutory accountability and compliance
requirements. Sections 319C-1 and C-2 of the PHS Act require the
Department to take certain enforcement actions if grantees fail to meet
these requirements. More specifically, this document addresses the
following enforcement actions required by the statute: (1) Beginning in
fiscal year 2009, withholding a statutorily-mandated percentage of the
award if an awardee fails substantially to meet established benchmarks
and performance measures for the immediately preceeding fiscal year or
fails to submit a satisfactory pandemic flu plan to the Department; (2)
repayment of any funds that exceed the maximum percentage of an award
that an entity may carryover to the succeeding fiscal year; and (3)
repayment or future withholding or offset as a result of a disallowance
decision if an audit shows that funds have not been spent in accordance
with section 319C-2 of the PHS Act .
IV. Enforcement Actions and Disputes
A. Withholding for Failure To Meet Established Benchmarks and
Performance Measures or To Submit a Satisfactory Pandemic Influenza
Plan
1. Beginning with the distribution of FY 2009 funding, awardees
that fail substantially to meet performance measures/benchmarks for the
immediately preceding fiscal year and/or who fail to submit a pandemic
influenza plan to CDC as part of their application for PHEP funds, may
have funds withheld from their FY 2009 and subsequent award amounts. An
awardee that fails to correct such noncompliance shall be subject to
withholding in the following amounts:
For the fiscal year immediately following a fiscal year in
which the awardee has failed substantially to meet performance
measures/benchmarks or who has failed to submit a satisfactory pandemic
influenza plan; an amount equal to 10 percent of funding the awardee
was eligible to receive.
For the fiscal year immediately following two consecutive
fiscal years in which an awardee experienced such a failure, an amount
equal to 15 percent of funding the awardee was eligible to receive,
taking into account the withholding of funds for the immediately
preceding fiscal year.
For the fiscal year immediately following three
consecutive fiscal years in which an awardee experienced such a
failure, an amount equal to 20 percent of funding the awardee was
eligible to receive, taking into account the withholding of funds for
the immediately preceding fiscal years.
For the fiscal year immediately following four consecutive
fiscal years in which an entity experienced such a failure, an amount
equal to 25 percent of funding the awardee was eligible to receive for
such a fiscal year, taking into account the withholding of funds for
the immediately preceding fiscal year.
Please note that HHS is required to treat each failure to
substantially meet all the benchmarks and each failure to submit a
satisfactory pandemic influenza plan as a separate withholding action.
For example, an awardee failing substantially to meet benchmarks/
performance measures and who fails to
[[Page 28476]]
submit a satisfactory pandemic influenza plan could have 10% withheld
for each failure for a total of 20% for the first year this happens. If
this situation remained unchanged, HHS would then be required to assess
15% for each failure for a total of 30% for the second year this
happens. Alternatively, if one of the two failures are corrected in the
second year but one remained, HHS is required to withhold 15% of the
second year funding.
2. Technical Assistance and Notification of Failures
ASPR may, in coordination with the CGMO and in accordance with
established Departmental grants policy, provide to an awardee, upon
request, technical assistance in meeting benchmarks/performance
measures and submitting a satisfactory pandemic influenza plan. In
addition, as described below, ASPR will notify awardees that are
determined to have failed substantially to meet benchmarks/performance
measures and/or who have failed to submit a satisfactory pandemic
influenza plan and give them an opportunity to correct such
noncompliance. Entities who fail to correct such noncompliance will be
subject to withholding as described in the paragraph above.
The awardee shall submit the required progress report on or before
the specified due date according to the terms and conditions of the
NoA. The Project Officer shall, within 15 days of receipt of the
required progress report, assess performance, provide technical
assistance to the awardee as required, and issue a written letter
acknowledging completion of assessment and that the assessment has been
forwarded to the GMO. Upon determination that the awardee has failed to
comply with the terms and conditions of a grant or cooperative
agreement, the Project Officer (PO) shall issue a written
recommendation and provide a complete documentation package to the
Grants Management Officer (GMO) based on the review and monitoring of
the awardee.
Within 15 days of receipt of the recommendation from the PO, the
GMO shall issue an initial failure notification to the awardee in
writing. This document will provide compliance requirements as
submitted by the PO and will include the total amount of Federal funds
which will be withheld or reduced in the subsequent fiscal year due to
noncompliance, absent corrective action by the awardee that is
satisfactory to the GMO. The document will specify that the GMO will
take such other remedies as may be legally available and appropriate in
the circumstances, such as withholding of Federal funds.
The awardee must provide a proposed Corrective Action Plan (CAP) in
writing to the GMO, within 15 days of receipt of the initial failure
notification.. The GMO will forward a copy to the PO. The awardee may
request technical assistance at this time.
Within 15 days of receipt of the proposed CAP, the PO will assess
the remedies and provide a recommendation to the GMO. If the GMO finds
the corrective action measures satisfactory, the GMO shall, within 15
days of receipt of the PO's assessment, provide notification to the
awardee of the awarding agency's intent to rescind the initial failure
notification. If in the GMO's judgment the awardee has still failed to
comply with the terms and conditions of a grant or cooperative
agreement, the GMO shall issue a final failure notification and provide
information about the appeal process to include applicable timelines in
writing. The GMO will concurrently issue his/her decision to the
awardee and the Agency Review Committee (ARC).
3. Dispute Process
The ASPR has established an ARC for the purpose of providing
awardees a fair and flexible process to appeal certain enforcement
actions such as a final decision to withhold funds due to a failure to
meet benchmarks/performance measures and/or to submit a satisfactory
pandemic influenza plan. The ARC consists of three regular members:
ASPR Principal Deputy (Director); OPEO (Director); and Resource
Planning and Evaluation (Director). The ASPR Principal Deputy,
Director, or designee, shall be the chairperson for the ARC. The ARC
may consult with subject matter experts within the Department as
necessary (i.e., attorneys, Branch Chiefs, Team Leaders, Project
Officer/Public Health Advisors, etc.) Members of the ARC may not be
from the branch or program whose adverse determination is being
appealed.
If the awardee chooses to appeal the GMO decision, the awardee must
do so directly to the ARC within ten days of receipt of the GMO's final
failure notification. The Notice of Appeal shall include: (1) a
detailed description of the reason for appeal including supporting
documentation and (2) a description of how the enforcement action
impacts the affected organization. The awardee should be aware that
they bear the burden of proof to the extent of the type of modification
or reversal of the GMO's decision they seek and the necessity for
modification or reversal.
Within ten days of receipt of the awardee's notice of appeal, the
GMO will (1) Brief the ARC on the issues of the case, (2) submit any
relevant documentation supporting the decision, and (3) provide a
written statement responding to the notice of appeal.
Within ten days of receipt of the brief and documentation submitted
by the GMO, the ARC will acknowledge, in writing, the notice of appeal
to the awardee and the GMO. The ARC will review the relevant
information, within seven days of providing written notification to
awardee and GMO, and use one or a combination of the following methods
for dispute resolution:
(a) Documentation Review--an independent evaluation of documents to
verify compliance with laws, regulations, or policies;
(b) Conference--allow parties an opportunity to make an oral
presentation to clarify issues, question both parties to obtain a clear
understanding of the facts, and provide recommendations for resolution.
Telephone conferences are acceptable.
Based on the outcome of the review or conference, the ARC will
decide on the resolution of an issue within seven days. The ARC may
decide that the Department should waive or reduce the withholding as
described above for a single entity or for all entities in a fiscal
year, if the ARC reviews and determines that mitigating conditions
exist that justify the waiver or reduction. The ARC will notify the
GMO, PO, and the awardee, in writing, of their final decision that the
Department should waive or withhold federal funds.
If the ARC's final decision is to for the Department to waive the
federal funds to be withheld or withhold Federal funds for the
subsequent fiscal year, the GMO shall issue, in writing, a final
decision to the awardee within ten days from the receipt of the ARC's
final decision.
Funds that are withheld for failure to substantially meet
benchmarks/performance measures and/or to submit a satisfactory
pandemic influenza plan will be reallocated so that the Secretary may
make awards under section 319C-2 to entities described in subsection
(b)(1) of that section (i.e., Healthcare Facility Partnership grants).
4. Responsibilities
A. PO/Public Health Advisor shall:
1. During the corrective action phase, provide technical assistance
to the awardee to meet the requirement.
2. If determined the awardee will not meet the requirement, the PO
shall issue a written recommendation to the GMO
[[Page 28477]]
based on the review and monitoring of awardee progress.
3. Provide a timely documentation package to the GMO regarding a
decision to withhold or reduce cooperative agreement funds.
B. GMO shall:
1. Rescind initial failure notification or issue a final failure
notification and provide the awarding agency's process for appeal to
include applicable timelines, in writing, to the awardee and provide a
copy to ARC.
2. Brief ARC on issues pertaining to disputes.
3. Prepare and submit a complete documentation package to the ARC
regarding a decision to withhold or reduce cooperative agreement funds.
C. ARC shall:
1. Establish regular committee members and consult with subject
matter experts in the Department as necessary.
2. Receive initial Notice of Appeal.
3. Send acknowledgements to the awardee and GMO.
4. Review disputes by documentation or conference.
5. Provide recommendations and facilitate disputes to preclude
further action.
6. Provide the ARC decisions on appeals.
D. Awardee or Complainant shall:
1. Remedy non-compliance issues during the corrective action phase.
If the GMO determines that corrective actions have not been adequate,
the awardee may submit a written request for review.
2. If awardee disputes the GMO's final decision, submit dispute to
ARC after Failure Notification is received from the agency awarding
office. The dispute must contain the following:
A. A detailed description of the reason for dispute including
supporting documentation and
B. A description of how the enforcement action impacts the affected
organization.
B. Repayment of Any Funds That Exceed the Maximum Percentage of an
Award That an Entity May Carry Over to the Succeeding Fiscal Year
1. For each fiscal year, ASPR, in consultation with the States and
political subdivisions, will determine the maximum percentage amount of
an award that an awardee may carry over to the succeeding fiscal year.
This percentage amount will be listed in the funding opportunity
announcement (FOA). For fiscal year 2008 awards, this maximum
percentage amount that an awardee may carry over is 15%. For each
fiscal year, if the percentage amount of an award unobligated by an
awardee exceeds the maximum percentage permitted (i.e., 15% for FY 2008
awards), the awardee shall repay the portion of the unobligated amount
that exceeds the maximum amount permitted to be carried over to the
succeeding fiscal year.
2. Notification of Failure
Upon determination that the awardee has exceeded the maximum
percentage permitted, the GMO shall issue an initial failure
notification to the awardee in writing. Such documentation will specify
that the GMO will take such remedies as may be legally available and
appropriate in the circumstances, such as requiring repayment of the
portion of the unobligated amount that exceeds the maximum amount
permitted to be carried over to the succeeding fiscal year.
The awardee must provide a proposed Corrective Action Plan (CAP) in
writing to the GMO, within 15 days of receipt of the initial failure
notification.. The GMO will provide a copy to the PO. The awardee may
request technical assistance at this time.
Within 15 days of receipt of the proposed CAP, the PO will assess
the remedies and provide a recommendation to the GMO. The GMO shall,
within 15 days of receipt of the PO's assessment, provide notification
to the awardee of the awarding agency's intent to rescind the initial
failure notification. If the awardee has still failed to comply with
the terms and conditions of a grant or cooperative agreement, the GMO
shall issue a final failure notification in writing and provide
information about the appeal process and application for waiver of
repayment to include applicable timelines. The GMO will concurrently
issue his/her decision to the awardee and the Agency Review Committee
(ARC).
3. Dispute Process
If the awardee chooses to appeal the GMO decision, the awardee must
do so directly to the ARC within ten days of receipt of the GMO's final
failure notification. The Notice of Appeal shall include: (1) A
detailed description of the reason for appeal including supporting
documentation; (2) a description of how the enforcement action impacts
the affected organization; and (3) request for a waiver of repayment
that includes an explanation why such requirement (for maximum
percentage of carryover amount) should not apply to the awardee and the
steps taken by the awardee to ensure that all HPP funds will be
expended appropriately. The awardee should be aware that they bear the
burden of proof to the extent of the type of modification or reversal
of the GMO's decision they seek and the modification or reversal.
Within ten days of receipt of the awardee's notice of appeal, the
GMO will (1) Brief the ARC on the issues of the case, (2) submit any
relevant documentation supporting the decision, and (3) provide a
written statement responding to the notice of appeal.
Within ten days of receipt of the brief and documentation submitted
by the GMO, the ARC will acknowledge, in writing, the notice of appeal
to the awardee and the GMO.
The ARC will review the relevant information, within seven days,
and use one or a combination of the following methods for dispute
resolution:
(a) Documentation Review--an independent evaluation of documents to
verify compliance with laws, regulations, or policies;
(b) Conference--allow parties an opportunity to make an oral
presentation to clarify issues, question both parties to obtain a clear
understanding of the facts, and provide recommendations for resolution.
Telephone conferences are acceptable.
The ARC may decide that the Department should waive or reduce the
amount to be repaid for a single entity or for all entities in a fiscal
year, if the ARC reviews and determines that mitigating conditions
exist that justify the waiver or reduction. The ARC will notify the
GMO, PO, and the awardee, in writing, of their final decision that the
Department should waive or require repayment of the portion of the
unobligated amount of HPP funds that exceeds the maximum amount
permitted to be carried over to the succeeding fiscal year.
If the ARC's final decision is to waive or to require repayment of
the portion of the unobligated amount of HPP funds that exceeds the
maximum amount permitted to be carried over to the succeeding fiscal
year, the GMO shall issue a final decision in writing to the awardee
within ten days from the receipt of the ARC's final decision.
Funds that are repaid to ASPR will be reallocated so that the
Secretary may make awards under section 319C-2 to entities described in
subsection (b)(1) of that section (i.e., Healthcare Facility
Partnership grants).
4. Responsibilities
A. PO/Public Health Advisor shall:
1. If determined the awardee has exceeded the maximum carryover
percentage, the PO shall issue a written recommendation to the GMO
based on
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the review and monitoring of awardee progress.
2. Provide a timely documentation package to the GMO regarding a
decision to repay unobligated HPP funds that exceed the maximum
carryover percentage.
B. GMO shall:
1. Rescind initial failure notification or issue a final failure
notification and provide the awarding agency's process for appeal to
include applicable timelines, in writing, to the awardee and provide a
copy to ARC.
2. Brief ARC on issues pertaining to disputes.
3. Prepare and submit a complete documentation package to the ARC
regarding a decision to repay.
C. ARC shall:
1. Establish regular committee members and consult with subject
matter experts in the Department, as necessary.
2. Receive initial Notice of Appeals.
3. Send acknowledgements to the awardee and GMO.
4. Review disputes by documentation or conference.
5. Provide recommendations and facilitate disputes to preclude
further action.
6. Provide the ARC decisions on appeals.
D. Awardee or Complainant shall:
1. Remedy non-compliance issues during the corrective action phase.
If the GMO determines that corrective actions have not been adequate,
the awardee may submit a written request for review.
2. If awardee disputes the GMO's final decisions, submit dispute to
ARC after Failure Notification is received from the agency awarding
office as described in the NoA. The dispute must contain the following:
A. A detailed description of the reason for dispute including
supporting documentation;
B. A description of how the enforcement action impacts the affected
organization; and
C. Request for a waiver of repayment that includes an explanation
why such requirement (for maximum percentage of carryover amount)
should not apply to the awardee and the steps taken by the awardee to
ensure that all HPP funds will be expended appropriately.
C. Repayment or Future Withholding or Offset as a Result of a
Disallowance Decision if an Audit Shows That Funds Have Not Been Spent
in Accordance With Section 319C-2 of the PHS Act
1. Awardees shall, not less often than once every 2 years, audit
their expenditures from HPP funds received. Such audits shall be
conducted by an entity independent of the agency administering the HPP
program in accordance with the Comptroller General's standards for
auditing governmental organizations, programs, activities, and
functions and generally accepted auditing standards. Within 30 days
following completion of each audit report, awardees should submit a
copy of that audit report to ASPR.
Awardees shall repay to the United States amounts found not to have
been expended in accordance with section 319C-2 of the PHS Act. If such
repayment is not made, ASPR may offset such amounts against the amount
of any allotment to which the awardee is or may become entitled under
section 319C-2 or may otherwise recover such amount. ASPR may withhold
payment of funds to any awardee which is not using its allotment under
section 319C-2 in accordance with such section. ASPR may withhold such
funds until it finds that the reason for the withholding has been
removed and there is reasonable assurance that it will not recur.
2. Disallowance notification
Upon determination as a result of audit findings that the awardee
has not expended funds in accordance with section 319C-2, the GMO shall
issue a disallowance notification to the awardee for the portion of
funds not expended in accordance with section 319C-2 and require
repayment of those funds to the United States.
3. Dispute process
HHS has established a DAB for the purpose of providing awardees a
fair and flexible process to appeal certain written final decisions
involving grant and cooperative agreement programs administered by
agencies of HHS. This document notifies HPP awardees that an
opportunity exists to appeal a disallowance enforcement action to the
DAB. If the awardee chooses to appeal a final disallowance decision by
the GMO, the awardee must do so directly to the DAB within thirty days
of receipt of the GMO's final disallowance notification. The Notice of
Appeal shall include: (1) A copy of the final decision, (2) a statement
of the amount in dispute in the appeal, and (3) a brief statement of
why the decision is wrong. More details about the DAB's procedures may
be found at 45 CFR part 16.
V. References
A. Code of Federal Regulations (CFR)
45 CFR Part 16 and Appendix A, Procedures of the
Departmental Grants Appeal Board.
45 CFR Part 74 and Appendix E, Uniform Administrative
Requirements for Awards and Sub-awards to Institutions of Higher
Education, Hospitals, Other Nonprofit organizations, and commercial
organizations.
45 CFR Part 92, Uniform Administrative Requirements for
Grants and Cooperative Agreements to State, Local, and Tribal
Governments.
B. OMB Circulars
A-87, Cost Principles for State, Local and Indian Tribal
Governments.
A-102, Grants and Cooperative Agreements with State and
Local Governments.
A-110, Uniform Administrative Requirements for Grants and
Other Agreements with Institutions of Higher Education, Hospitals, and
Other Non-Profit Organizations.
A-133, Audits of States, Local Governments, and Non-Profit
Organizations Requirements.
C. HHS Grants Policy Statement, January 1, 2007
[FR Doc. E8-11015 Filed 5-15-08; 8:45 am]
BILLING CODE 4150-37-P