Mandatory Disclosure and HHS Grant-Related CMP Guidance Released by HHS Office of Inspector General
As many grantees are already well-aware, with the promulgation of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”) (2 C.F.R. Part 200; 45 C.F.R. Part 75), certain mandatory disclosure requirements were established. Under the Uniform Guidance, grantees have an affirmative obligation to report “all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award.” § 200.113; § 75.113.
The Department of Health and Human Services Office of Inspector General (“HHS OIG”) has recently issued guidance instructing HHS grantees how such disclosures should be submitted.
Available here (https://oig.hhs.gov/compliance/self-disclosure-info/index.asp), the guidance reasserts general HHS policy that self-disclosure will be a mitigating factor in any resulting action HHS takes. Also, though not explicitly adopting such a standard, the guidance implies that disclosures may follow a reasonable investigation and consultation with counsel by the grantee, instructing that the contents of the disclosure submission should include:
A full description of the conduct disclosed including, at a minimum, the date the discloser learned of the conduct, the types of conduct, transactions, or claims giving rise to the matter, the time period during which the conduct occurred, and the names of persons believed to be involved, including an explanation of their roles in the matter.
A grantee’s opportunity to conduct a reasonable investigation and consult with counsel before reporting has long been recognized in the corresponding Federal Acquisition Regulation (“FAR”) mandatory disclosure provision applicable to similar occurrences involving procurement contracts. See 73 Fed. Reg. 67064-67093 (Nov. 12, 2008) (available at: https://www.govinfo.gov/content/pkg/FR-2008-11-12/pdf/E8-26953.pdf).
Also of significance in this issuance, the HHS OIG not only references, but focuses on, its Civil Monetary Penalty (“CMP”) sanction authority, as expanded at the end of 2016 to include certain grant-related events, such as false statements in grant applications, financial reports (such as SF-425s), and programmatic progress reports. 42 U.S.C. § 1320a-7a; Pub. L. 114-25, § 5003 (Dec. 13, 2016).
If you are an HHS grant recipient, please add this document to your guidance library. If your funding comes from the Health Resources and Services Administration (“HRSA”), we also recommend you take this opportunity to add the HRSA guidance on conflict of interest (“COI”) disclosures to your library (implementing § 75.112). The HRSA COI Policy is available at: https://www.hrsa.gov/grants/manage/.