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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:
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 cost 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.