Over the last couple of years, I’ve blogged about grant compliance. Anytime the federal government is going to award grants, there will be all sorts of requirements and strings attached. If an organization is not diligent in keeping track of all the requirements, deadlines and attestation requirements, they could run afoul of the grant compliance requirements. If that happens, an effective compliance program is supposed to identify noncompliance and correct it. Correcting it can often lead to self-disclosing the noncompliance.
The OIG has recently published guidelines for self-disclosure as it relates to grants. More specifically, their document provides guidance regarding self-disclosure by non-federal entities that are recipients of awards or sub-awards made by the U.S. Department of Health and Human Services (HHS). Non-federal entities should use the OIG’s Grant Self-Disclosure Program to disclose potential violations of Federal criminal, civil, or administrative law relating to their awards or sub-awards.
The OIG said, “If an award recipient or sub-recipient learns of a potential violation of law relating to their award—regardless of whether the potential violation is of Federal criminal, civil, or administrative law and regardless of how the recipient learned about the potential violation—they should: investigate the potential violation; assess any losses suffered by the Federal programs; take corrective action; and make full disclosure to the appropriate authorities.”
Mandatory and Voluntary Disclosure
Under 45 C.F.R. § 75.113, recipients and sub-recipients of (and applicants for) Federal awards are required to timely disclose in writing all violations of Federal criminal law that involves fraud, bribery, or gratuity violations potentially affecting their award. Under the terms and conditions of the award, recipients, and sub-recipients of HHS awards must make these disclosures to both the HHS awarding agency and OIG.
Recipients of HHS awards may voluntarily disclose conduct causing liability under the Civil Monetary Penalty Law (CMPL), 42 U.S.C. § 1320a-7a, or any other conduct—such as conduct that might violate civil or administrative laws—that does not clearly fall within the scope of offenses described at 45 C.F.R. § 75.113.
Benefits of Self-Disclosure
Where appropriate, resolution of disclosed matters may include OIG’s release of its CMPL administrative sanction authorities at 42 U.S.C. § 1320a-7a(o). Prompt disclosure, full cooperation, and robust internal investigation of potential violations are key indicators of an award recipient’s integrity. As such, OIG rewards disclosers that self-disclose potential violations and cooperate during the disclosure process by imposing a lower penalty amount than would normally be required. Although an the individual case may warrant otherwise, OIG’s general practice in the settlement of self-disclosed CMPL matters are to require a multiplier of 1.5 times the damages instead of the 2- or 3-times multiplier that would normally apply to violations that were not self-disclosed.
To ensure an efficient evaluation of disclosed matters, disclosers should complete the HHS OIG Grant Self-Disclosure Submission Form. This form requests basic identifying information and a description of the conduct disclosed. Disclosures may be submitted by email to firstname.lastname@example.org or by mail.
The submission should include the following basic information:
- The name, address, IRS Federal Tax ID, and Data Universal Numbering System (DUNS) the number of the recipient or sub-recipient making the disclosure.
- The nature of the discloser (e.g., health center, university, community organization, non-profit, local government, state government, tribe, substance abuse provider, individual, other).
- A point of contact in the discloser who is responsible for the disclosure, including name, email, and telephone number.
- For each affected award, the following: the award title, Catalog of Federal Domestic Assistance (CFDA) number, type of award (e.g. direct grant, block grant, cooperative agreement), award amount, year awarded, principal investigator (if applicable), and description of the purpose of the grant.
- For each affected award, the following: the awarding operating division within HHS, the award program office within HHS, the name, email, and phone number of the grant officer, and whether the relevant HHS program office has been informed of the disclosed conduct.
- 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 statement of the Federal criminal, civil, and administrative laws that are potentially violated by the disclosed conduct.
- A description of any corrective action or measures taken by the discloser upon discovery of the conduct.
- An estimate of the financial impact on the Federal government, and a description of the method for calculating the financial impact.
- A list of all Federal agencies from whom the discloser is currently receiving federal awards.
- A statement of whether the discloser has knowledge that any Federal, state, or local Government agency: (i) has a current inquiry into the matter disclosed; or (ii) has a current investigation or other inquiry related to the discloser for any other matter. If the discloser has knowledge of any such current inquiry, it must identify any involved agencies and their individual representatives.
- The name of an individual authorized to enter into a settlement agreement on behalf of the discloser.
- A certification by the discloser, or an authorized representative on behalf of the discloser, stating that to the best of the individual’s knowledge, the submission contains truthful information and is based on a good faith effort to bring the matter to the Government’s attention.
Of course, the goal of every organization’s compliance program is to prevent noncompliance. But if your program identifies an issue requiring self-disclosure (and you can’t turn back time–please let me know if you can!) then take a deep breath and just do it following best practices. If your self-disclosure involves grants, make sure you review this newest set of guidelines from the OIG.