[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR16.23]



[Page 80-81]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 16_PROCEDURES OF THE DEPARTMENTAL GRANT APPEALS BOARD--Table of 

Contents

 

Sec.  16.23  How long an appeal takes.



    The Board has established general goals for its consideration of 

cases, as follows (measured from the point when the Board receives the 

first submission after the notice of appeal):



--For regular review based on a written record under Sec.  16.8, 6 

months. When a conference under Sec.  16.10 is held, the goal remains at 

6 months, unless a requirement for post-conference briefing in a 

particular case renders the goal unrealistic.

--For cases involving a hearing under Sec.  16.11, 9 months.

--For the expedited process under Sec.  16.12, 3 months.



    These are goals, not rigid requirements. The paramount concern of 

the Board is to take the time needed to review a record fairly and 

adequately in order to produce a sound decision. Furthermore, many 

factors are beyond the Board's direct control, such as unforeseen delays 

due to the parties' negotiations or requests for extensions, how many 

cases are filed, and Board resources. On the other hand, the parties may 

agree to steps which may shorten review by the Board; for example, by 

waiving the right to submit a brief, by agreeing to shorten submission 

schedules, or by electing the expedited process.



         Appendix A to Part 16--What Disputes the Board Reviews



A. What this Appendix covers.

    This appendix describes programs which use the Board for dispute 

resolution, the types of disputes covered, and any conditions for Board 

review of final written decisions resulting from those disputes. 

Disputes under programs not specified in this appendix may be covered in 

a program regulation or in a memorandum of understanding between the 

Board and the head of the appropriate HHS operating component or other 

agency responsible for administering the program. If in doubt, call the 

Board. Even though a dispute may be covered here, the Board still may 

not be able to review it if the limits in paragraph F apply.



B. Mandatory grant programs.

    (a) The Board reviews the following types of final written decisions 

in disputes arising



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in HHS programs authorizing the award of mandatory grants:

    (1) Disallowances under Titles I, IV, VI, X, XIV, XVI(AABD), XIX, 

and XX of the Social Security Act, including penalty disallowances such 

as those under sections 403(g) and 1903(g) of the Act and fiscal 

disallowances based on quality control samples.

    (2) Disallowances in mandatory grant programs administered by the 

Public Health Service, including Title V of the Social Security Act.

    (3) Disallowances in the programs under sections 113 and 132 of the 

Developmental Disabilities Act.

    (4) Disallowances under Title III of the Older American Act.

    (5) Decisions relating to repayment and withholding under block 

grant programs as provided in 45 CFR 96.52.

    (6) Decisions relating to repayment and withholding under State 

Legalization Impact Assistance Grants as provided in 45 CFR 402.24 and 

402.25.

    (b) In some of these disputes, there is an option for review by the 

head of the granting agency prior to appeal to the Board. Where an 

appellant has requested review by the agency head first, the ``final 

written decision'' required by Sec.  16.3 for purposes of Board review 

will generally be the agency head's decision affirming the disallowance. 

If the agency head declines to review the disallowance or if the 

appellant withdraws its request for review by the agency head, the 

original disallowance decision is the ``final written decision.'' In the 

latter cases, the 30-day period for submitting a notice of appeal begins 

with the date of receipt of the notice declining review or with the date 

of the withdrawal letter.



C. Direct, discretionary project programs.

    (a) The Board reviews the following types of final written decisions 

in disputes arising in any HHS program authorizing the award of direct, 

discretionary project grants or cooperative agreements:

    (1) A disallowance or other determination denying payment of an 

amount claimed under an award, or requiring return or set-off of funds 

already received. This does not apply to determinations of award amount 

or disposition of unobligated balances, or selection in the award 

document of an option for disposition of program-related income.

    (2) A termination for failure to comply with the terms of an award.

    (3) A denial of a noncompeting continuation award under the project 

period system of funding where the denial is for failure to comply with 

the terms of a previous award.

    (4) A voiding (a decision that an award is invalid because it was 

not authorized by statute or regulation or because it was fraudulently 

obtained).

    (b) Where an HHS component uses a preliminary appeal process (for 

example, the Public Health Service), the ``final written decision'' for 

purposes of Board review is the decision issued as a result of that 

process.



D. Cost allocation and rate disputes.

    The Board reviews final written decisions in disputes which may 

affect a number of HHS programs because they involve cost allocation 

plans or rate determinations. These include decisions related to cost 

allocation plans negotiated with State or local governments and 

negotiated rates such as indirect cost rates, fringe benefit rates, 

computer rates, research patient care rates, and other special rates.



E. SSI agreement disputes.

    The Board reviews disputes in the Supplemental Security Income (SSI) 

program arising under agreements for Federal administration of State 

supplementary payments under section 1616 of the Social Security Act or 

mandatory minimum supplements under section 212 of Pub. L. 93-66. In 

these cases, the Board provides an opportunity to be heard and offer 

evidence at the Secretarial level of review as set out in the applicable 

agreements. Thus, the ``final written decision'' for purposes of Board 

review is that determination appealable to the Secretary under the 

agreement.



F. Where Board review is not available.

    The Board will not review a decision if a hearing under 5 U.S.C. 554 

is required by statute, if the basis of the decision is a violation of 

applicable civil rights or nondiscrimination laws or regulations (for 

example, Title VI of the Civil Rights Act), or if some other hearing 

process is established pursuant to statute.



G. How the Board determines whether it will review a case.

    Under Sec.  16.7, the Board Chair determines whether an appeal meets 

the requirements of this Appendix. If the Chair finds that there is some 

question about this, the Board will request the written opinion of the 

HHS component which issued the decision. Unless the Chair determines 

that the opinion is clearly erroneous, the Board will be bound by the 

opinion. If the HHS component does not respond within a time set by the 

Chair, or cannot determine whether the Board clearly does or does not 

have jurisdiction, the Board will take the appeal.



[46 FR 43817, Aug. 31, 1981, as amended at 47 FR 29492, July 6, 1982; 53 

FR 7864, Mar. 10, 1988; 62 FR 38218, July 17, 1997]