Appendix A to Part 16 - What Disputes the Board Reviews
45:1.0.1.1.16.0.1.24.6 : Appendix A
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 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 § 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 § 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]