REVISED OCTOBER 2019. This document applies to all NIH grants and cooperative agreements for budget periods beginning on or after October 1, 2019.
Grant appeals procedures, departmental appeals board, DAB, appeal
8.7 Grant Appeals Procedures
HHS permits recipients to appeal certain post-award adverse administrative decisions made by HHS officials (see 45 CFR 16 and appendix to Part 16). NIH has established a first-level grant appeal procedure that must be exhausted before an appeal may be filed by the recipient with the Departmental Appeals Board (DAB) (see 42 CFR 50, Subpart D). NIH will assume jurisdiction for the following adverse determinations set forth in 42 CFR 50.404:
- Termination, in whole or in part, of a grant for failure of the recipient to carry out its approved project in accordance with the applicable law and the terms and conditions of award or for failure of the recipient otherwise to comply with any law, regulation, assurance, term, or condition applicable to the grant.
- Determination that an expenditure is not allowable under the grant has been charged to the grant or that the recipient has otherwise failed to discharge its obligation to account for grant funds.
- Denial (withholding) of a non-competing continuation award for failure to comply with the terms of a previous award.
- Determination that a grant is void (i.e., a decision that an award is invalid because it was not authorized by statute or regulation or because it was fraudulently obtained).
The formal notification of an adverse determination will contain a statement of the recipient's appeal rights. In the first level appeal of an adverse determination, the recipient must submit a request for review to the NIH official specified in the notification, detailing the nature of the disagreement with the adverse determination and providing supporting documents in accordance with the procedures contained in the notification.
"The request for review must include a copy of the adverse determination, must identify the issue(s) in dispute, and must contain a full statement of the recipient's position with respect to such issue(s) and the pertinent facts and reasons in support of the recipient's position. In addition to the required written statement, the recipient shall provide copies of any documents supporting its claim." 42 CFR 50.406(b).
The recipient's request to NIH for review must be submitted no later than 30 days after the written notification of the adverse determination is received; however, an extension may be granted if the recipient can show good cause why an extension is warranted (42 CFR 50.406(a)).
If the NIH decision on the appeal is adverse to the recipient or if a recipient's request for review is rejected on jurisdictional grounds, the recipient then has the option of submitting a request to the DAB for a further review of the case in accordance with the provisions of 45 CFR 16. A prospective appellant must submit a notice of appeal to the DAB within 30 days after receiving the final NIH decision. "The appellant must have exhausted any preliminary appeal process required by regulation." 45 CFR 16.3(c).
In addition to the adverse determinations indicated above, the DAB is the single level of appeal for disputes related to the establishment of F&A costNecessary costs incurred by a recipient for a common or joint purpose benefitting more than one cost objective, and not readily assignable to the cost objectives specifically benefitted, without effort disproportionate to the results achieved. To facilitate equitable distribution of indirect expenses to the cost objectives served, it may be necessary to establish a number of pools of F&A (indirect) costs. F&A (indirect) cost pools must be distributed to benefitted cost objectives on bases that will produce an equitable result in consideration of relative benefits derived. rates, research patient care rates, and certain other cost allocations used in determining amounts to be reimbursed under NIH grants (e.g., cost allocation plans negotiated with State or local governments and computer, fringe benefit, and other special rates); http://www.hhs.gov/dab/divisions/appellate/index.html. The determination leading to such disputes may be made by an HHS official other than the GMO and may affect NIH grants as well as other HHS grants.