Washington, D.C. — In a new letter to Department of Health and Human Services (HHS) Secretary Xavier Becerra, House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA), Subcommittee on Health Chair Brett Guthrie (R-KY), and Subcommittee on Oversight and Investigations Chair Morgan Griffith (R-VA) request information regarding HHS’s suspension and debarment process. 

The letter also provides direct evidence refuting Secretary Becerra’s testimony to the Health Subcommittee asserting that HHS “will take immediate action” to stop sexual abusers from receiving taxpayer funding. It comes amid the Committee’s ongoing investigation into sexual harassment at the National Institutes of Health (NIH) and at NIH grantee institutions. 

KEY LETTER EXCERPT: 

“At the April 17, 2024, hearing before the Subcommittee on Health, in response to a question about the redactions of names of confirmed abusers or harassers, you said: ‘If there is an abuser that is receiving taxpayer dollars from the Department of Health and Human Services, . . . in this particular case the National Institutes of Health [NIH], we will take action immediately.’  

“However, your claim is belied by the facts. Based on subpoenaed NIH documents reviewed in camera, Committee staff discovered that an individual who served as principal investigator on at least 24 NIH-grants was not suspended or debarred from receiving federal funding despite his conviction in 2021 of sexual abuse and his medical license being stripped. Based on documentation reviewed during the Committee’s in camera review of sexual misconduct allegations on NIH-funded research, staff found that in September 2020, the NIH recommended to HHS an immediate federal-wide suspension and debarment of this abuser for 10 years based on the abuser’s indictment in 2019 on three counts of sexual abuse, and the grantee institution’s determination that the individual was responsible for sexual harassment in January of 2020. Despite this recommendation from the NIH, followed by the individual’s conviction in December 2021, HHS has taken no action. Three and a half years later, this abuser remains eligible for federal funding. On April 15, 2024, Committee staff sent an email to HHS staff requesting information about the status and handling of this matter. HHS has not yet responded.” 

[...] 

“We are troubled by the limited use of suspensions and debarments from awarding agencies within HHS along with the timeliness issues and lack of use of suspensions pre-debarment raised by the HHS OIG. Harassers and abusers with public reporting of their actions, and even some with criminal convictions, are not present on SAM.gov as suspended or debarred.” 

BACKGROUND:

• HHS is the largest grantmaking agency in the federal government—awarding over $778 billion in grants in fiscal year 2023. 
• Federal suspension and debarment programs help to protect the integrity of federal grant programs by ensuring the federal government does business only with responsible persons. 
• Individuals or parties receiving grants can be suspended or debarred from continuing to receive federal grants if they lack honesty, integrity, or business performance. 
• Within HHS, a suspension or debarment action may be initiated from an awarding agency—such as the NIH—or another entity—such as the Office of Inspector General (OIG).   
• Referrals for suspension or debarment are sent to the HHS Office of Recipient Integrity Coordination (ORIC) for review and final decision by the Suspension and Debarment Official (SDO). 
• Referrals can be conviction-based—originating from a criminal conviction or civil judgement—or fact-based—in which the referring office builds a case based on facts (e.g., audit findings or failures to disclose). 
• Suspensions and debarments are not retrospective, meaning respondents can maintain their current award(s), but it does prevent them from receiving new federal awards.  
• Not only are these suspensions and debarments valid within the referring agency, but they also generally make a respondent ineligible for awards from other federal departments.  
• Suspended or debarred parties or individuals are listed on SAM.gov and awarding departments can check this list before awarding grants to prevent awarding grants to these parties or individuals.  
• While federal departments have discretion as to when to refer a respondent for suspension or debarment, HHS—and particularly awarding agencies such as the NIH—can prevent known harassers or abusers from receiving additional federal awards across the federal government through these processes.  
• However, a 2022 HHS OIG report found several concerns during its audit of HHS’s suspension and debarment processes. 
• HHS OIG found that 84 percent of referrals came from non-awarding agencies—such as the OIG or Office of Research Integrity—rather than those offices charged with supervising ongoing grants. 
• This statistic raised concerns for the OIG about the extent to which awarding agencies were doing enough to identify and take action against bad actors and if agencies are missing opportunities for additional suspension and debarment referrals. 
• Another concern is the timeliness of the HHS suspension and debarment process and the limited use of suspensions during pending debarment proceedings.  
• The HHS OIG found that nearly half of suspensions implemented by ORIC did not meet its 60-day goal, with several suspensions taking longer than 300 days to implement. 
• Of the 134 debarments that ORIC implemented, nearly all involved grants, yet less than one-third of these debarments included a preceding suspension. 
• That means more than two-thirds of respondents may have maintained access to additional federal funding during the debarment process, with the longest case taking 1251 days or nearly three and a half years. 
• Moreover, for conviction-based debarments—in which the evidentiary threshold has generally already been met by the conviction or judgment—75 percent of conviction-based debarments implemented by ORIC did not meet its 100-day goal. 
• Rather, implementation took an average of 325 days and nearly a quarter of these debarments took over 500 days to be implemented. 
• The HHS OIG found numerous areas in which the timeliness, efficiency and effectiveness of HHS’s suspension and debarment program were negatively affected by internal factors.  
• Specifically, there is a very high turnover rate at both the staff and senior leadership levels of the suspension and debarment program, with ORIC’s full staffing levels being four personnel. 
• Moreover, seven different people served as HHS’s SDO—the official determining if suspension or debarment is to be implemented—in just four years. 
• With this kind of turnover, cases may fall through the cracks or be heavily delayed.  
• Moreover, HHS OIG found that a lack of policies and procedures regarding entering and tracking important case information and milestones plus a lack of guidance on what information is needed in fact-based referrals has limited the ability to suspend or debar individuals. 
• Specifically, ORIC was not able to suspend or debar several individuals due to a lack of documentation in the referral that showed a referring entity followed its own corrective-action escalation process prior to the suspension or debarment. 

CLICK HERE to read the full letter. 

TIMELINE OF INVESTIGATION: 

• August 10, 2021: E&C Republican Leaders Question NIH’s Handling of Sexual Harassment Complaints   
• August 11, 2022: E&C Republican Leaders follow up with NIH on Insufficient Response to its Letter on the NIH’s handling of Sexual Harassment   
• November 30, 2022: E&C Republicans to NIH: Turn Over Previously Requested Information Ahead of New Congress   
• March 14, 2023: E&C Republicans Press NIH for Information on Handling of Sexual Harassment Complaints   
• October 6, 2023: E&C Republicans Signal Intent to Issue Subpoena to Obtain Information on NIH’s Handling of Sexual Harassment if Questions Go Unanswered   
• January 26, 2024: Chair Rogers notifies NIH of Imminent Subpoena   
• February 5, 2024: Chair Rodgers Subpoenas NIH for Documents Related to Investigation into Sexual Harassment at NIH and NIH Grantee Institutions  
• February 20, 2024: HHS Responds on behalf of NIH to offer a rolling in camera document review to the Committee. Documents produced in the review have been highly redacted, including the redaction of the names of individuals convicted of criminal offenses, public news articles about individuals who have been found guilty of harassment, and redaction of the names of the institutions where the abuse occurred—effectively preventing the Committee from understanding if NIH continues to fund work performed by substantiated abusers at other institutions—a practice known as “pass the harasser.”  
• April 16, 2024: E&C Republicans Expand Investigation into Sexual Harassment at NIH to now Include Review of HHS Office of Civil Rights Compliance Role 
• May 9, 2024: E&C Republicans ask Department of Health and Human Services (HHS) Secretary Xavier Becerra to provide the Committee with the legal basis requiring HHS to redact or hide the names of researchers determined to have committed sexual misconduct.