Attachment 1: HHS Policy on Use of Appropriated Funds for Conferences and Meeting Space

Contents:

1.1   General

1.2   Definitions

1. Conference
2. Conference Expense
3. Funds

1.3   Request and Approval Requirements

1. Conferences Held by HHS
2. Conferences Sponsored through Grants and Cooperative Agreements
3. Attendance at Conferences Held by Other Organizations or Federal Agencies (non-HHS Conferences)
4. Meeting Space (For Other than Conferences)

1.4   Reporting Requirements

1. Reporting of Conferences in Excess of $20,000
2. Annual Reports

1.5   Use of Conference Fees

1.6   Non-Federal Attendee Travel Restrictions

1. Statutory Authority
2. Invitational Travel Statute
3. HHS Appropriations Exception
4. Limited Procurement Exception
5. Grant Funds

1.7   Contractor Support for Formal Conferences

1.8   Implementation Requirements

Exhibit:

1. Conference Spending Provisions of the HHS Appropriations Acts
2. List of Meetings and Events that are Not Conferences
3. Report on Conferences Held by HHS OPDIVs and STAFFDIVs in Excess of $20,000

1.1   General

It is the Department of Health and Human Services’ (HHS) policy that the conferences and meetings it funds are consistent with legal requirements and HHS’s missions, objectives, and policies; represent an efficient and effective use of taxpayer funds; and be able to withstand public scrutiny.  HHS’s Operating Divisions (OPDIVs) and Staff Divisions (STAFFDIVs) must conduct business, including conferences and meetings, consistent with these tenets. 

This policy supports and addresses Executive Order 13589; Executive Order 13576; OMB Memorandum M-11-35; OMB Memorandum M-12-12, and Sections 739 and 527 of the Consolidated and Further Continuing Appropriations Act, 2015, see Exhibit 1.  Section 739 restricts the use of funds appropriated to HHS for travel and conference activities unless they are consistent with OMB Memorandum M-12-12, and thus, make it an Antideficiency Act (ADA) violation to use any HHS funds for travel and conferences that are inconsistent with this memorandum.  Section 527 enables HHS to implement the approval thresholds called for under OMB M-12-12 at the OPDIV level, and provides that the information about scientific conferences be tabulated separately from and not included in agency totals.  The impacts and implementation of Subsection 527(2), if any, will be made in a subsequent update to this policy.  Therefore, scientific conferences must continue to be approved and reported in accordance with Sections1.3 and 1.4 of this policy, respectively.

This policy is also in addition to the requirements and procedures set forth in the following policies, or any updates thereto:

• HHS Travel Manual, January 2012, Revision 1 – Effective November 1, 2014
• Memorandum from the General Counsel “Agency Gift Acceptance Authorities and the Co-Sponsorship of Events with Outside Non-Federal Entities,” August 8, 2002

There are numerous Federal acquisition, fiscal, and ethics laws and regulations that apply to the issues raised by conferences in which the Federal government participates.  The Office of Government Ethics (OGE) has issued an updated list of a selection of ethic laws and regulations and their interpretation.  A link to the guide, "Conferences: A Guide for Ethics Counselors" can be found on the OGE website:  http://www.oge.gov/Program-Management/Program-Management-Resources/Ethics-Community/Ethics-Community/.

Additionally, OPDIVs and STAFFDIVs must conduct meetings in space controlled by the Federal Government whenever practicable and cost effective.  Therefore, OPDIVs and STAFFDIVs shall establish internal policies and procedures to approve the obligation of funds for non-federal meeting space.  The following website provides information about meeting space available in federal facilities: http://fedmeetingspace.cfoc.gov.

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1.2   Definitions

The following definitions apply:

A.   Conference

OMB Memorandum M-12-12 employs, and HHS has adopted, the following definition for a conference from the Federal Travel Regulation (FTR):

“A meeting, retreat, seminar, symposium or event that involves attendee travel.  The term “conference” also applies to training activities that are considered to be conferences under 5 CFR 410.404.” 

This term is clarified, based on the common dictionary meanings of a conference, seminar and symposium, as follows:

• Conference: “a formal meeting in which many people gather in order to talk about ideas or problems related to a particular topic (such as medicine or business) usually for several days, or a formal meeting in which a small number of people talk about something.”
   (http://www.merriam-webster.com/dictionary/conference)
• Symposium:  “a formal meeting at which experts discuss a particular topic”
  (http://www.merriam-webster.com/dictionary/symposium)
• Seminar:  “a meeting in which you receive information on and training in a particular subject, or a class offered to a small group of students at a college or university.”
  (http://www.merriam-webster.com/dictionary/seminar)

Therefore, (1) meetings and events falling within the plain meaning of conference, symposium, and seminar where attendees travel, and (2) training activities that are considered to be conferences under 5 CFR 410.404¹, are also considered conferences for the purposes of this policy. 

A list of typical HHS meetings and events that are not considered conferences is provided at Exhibit 2.  These, and similar OPDIV/STAFFDIV-specific events, are exempt from the request and approval (Section 1.3) and reporting (Section 1.4) requirements of this policy.  In applying this list, OPDIVs/STAFFDIVs must use caution in determining which meetings and events are not conferences to ensure compliance with M-12-12.  Notwithstanding this distinction, such meetings and events must still represent an efficient and effective use of taxpayer funds and be able to withstand public scrutiny.

B.   Conference Expense

OMB Memorandum M-12-12 defines conference expenses as:

“all direct and indirect conference costs paid by the Government, whether paid directly by agencies or reimbursed by agencies to travelers or others associated with the conference, but do not include funds paid under Federal grants to grantees.  Conference expenses include any associated authorized travel and per diem expenses, hire of rooms for official business, audiovisual use, registration fees, ground transportation, and other expenses as defined by the FTR.  All outlays for conference preparation and planning should be included, but the Federal employee time for conference preparation should not be included.  Conference expenses should be net of any fees or revenue received by the agency through the conference and should not include costs to ensure the safety of attending governmental officials.” 

Based on and in addition to the expenses outlined by OMB, Exhibit 3 provides a list of expenses that are required to be included in the estimated and reported conference costs.

OPDIVs and STAFFDIVs are reminded that agencies may not use a grant or contract for the purpose of defraying the costs of an HHS conference unless such conference is directly and programmatically related to the purpose for which the grant or contract was awarded.

C.   Funds

The term “funds”, as used herein, refers to those from an annual appropriation, multi-year appropriation, no year appropriation, appropriated user fee, mandatory appropriation, gift funds, or reimbursements from such appropriations, as well as non-appropriated funds, i.e. funding set by law, etc. 

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1.3   Request and Approval Requirements

1.3   Approval Requirements

HHS OPDIVs and STAFFDIVs shall designate representatives to lead and coordinate the approval and reporting requirements of this policy within their Office.  Representative names shall be provided to Clarence Randall at [email protected].  

A.     Operating Divisions

The OPDIVs may use the Conference Tracking and Approval System (CTA) to process its conference requests and facilitate reporting.  The following approval thresholds apply to, and must be met prior to the obligation of funds for, conferences to be hosted directly by the OPDIV, sponsored by the OPDIV (e.g. through funding or a grant, cooperative agreement, interagency agreement, or co-sponsorship agreement), or attended by OPDIV staff (e.g. conferences hosted by another OPDIV, STAFFDIV, or Federal Agency or by a non-federal organization): 

• Less than $100,000: An OPDIV designated representative or representatives.
• From $100,000 to $500,000:  The OPDIV Head’s Deputy or Equivalent (non-delegable below this level).
• Greater than $500,000:  The OPDIV Head (non-delegable).

B.     Staff Divisions

The Department must aggregate costs for the same conference across all Office of the Secretary (OS) STAFFDIVs.  Therefore, all STAFFDIVs must use the Conference Tracking and Approval System (CTA) to facilitate the request and approval process and produce reports for conferences.  The following approval thresholds apply to, and must be met prior to the obligation of funds for, conferences to be hosted directly by the STAFFDIV, sponsored by the STAFFDIV (e.g. through a grant, agreement, etc.), or attended by STAFFDIV staff (e.g. conferences hosted by an OPDIV, another Federal Agency, or a non-federal organization): 

• In aggregate (across OS STAFFDIVs) less than $75,000: The STAFFDIV’s designated representative or representatives may approve the request.
• In aggregate (across OS STAFFDIVs) from $75,000 to $475,000:  The Deputy Secretary, following STAFFDIV Head approval.
• In aggregate (across OS STAFFDIVs) greater than $475,000:  The Secretary, following STAFFDIV Head and Deputy Secretary approvals.

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1.4   Reporting Requirements

OPDIVs and STAFFDIVs must continue to comply with the following annual and post-event reporting requirements:

A.     M-12-12 Annual Report 

OMB Memorandum M-12-12 requires agencies to publicly report, by January 31 of each year, all conferences hosted by the agency during the previous fiscal year where the net expenses were in excess of $100,000.  Beginning with the fiscal year 2015 report, the reporting process will be as follows:

• OPDIVs:  By January 31, each OPDIV will publish a Section 508 compliant report on its website on each conference hosted in excess of $100,000 based on the information required in Exhibit 3.  The OPDIVs’ reports must reflect the most accurate information possible for costs and attendance levels.  Additionally, the OPDIVs’ reports must include a narrative report that includes information about the net conference expenses for the fiscal year incurred by the agency as well as a general report about conference activities throughout the year.  A link to the report must be provided to ASFR, which will be provided to the HHS Web Team for inclusion on the HHS website.

• STAFFDIVs:  ASFR will develop the report for the Office of the Secretary and its STAFFDIVs, using information from the approved conferences; validate and update the draft report with support from the STAFFDIV designated representatives, to include the most accurate information possible for costs and attendance levels; and publish the report on the HHS website.

B.     OIG Annual Report

Section 739 of the Consolidated and Further Continuing Appropriations Act, 2015, requires the submission of an additional annual report to the OIG regarding the costs and contracting procedures related to each conference held (hosted) by HHS during each fiscal year in excess of $100,000.  Beginning with the fiscal year 2015 report, the reporting process will be as follows:

• OPDIVs:  By January 31^st, each OPDIV will submit its report directly to the OIG (at [email protected]) on each conference hosted in excess of $100,000 based on the information required in Exhibit 3. 
• STAFFDIVs:  ASFR will develop the report for the Office of the Secretary, using information from the approved conferences; validate the data with the STAFFDIV designated representative, to include the most accurate information possible for costs and attendance levels; and will submit its report directly to the OIG.

C.     Reporting of Conferences in Excess of $20,000

To meet the requirements of Section 739(c) of the FY 2015 Appropriations Act, OPDIVs and STAFFDIVs are required to submit a report on each conference they hold where expenses to the United States Government are in excess of $20,000.  This report is due within 15 (calendar) days of the date of the conference; therefore, and to follow a consistent reporting cycle, using the template at Exhibit 3:

• For conferences held on the 1^st through 10^th of each month, the report shall be submitted to the OIG (at [email protected]) by the 15^th.
• For conferences held on the 11^th through 20^th each month, the report shall be submitted to the OIG by the 25^th.
• For conferences held on the 21^st through the end of the month, the report shall be submitted to the OIG by the 4^th.

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1.5   Use of Conference Fees

Agencies must have statutory authority to charge a fee for one of its programs or activities.  In addition, even if an agency has authority to charge a fee, it may not retain and use the amounts collected without statutory authority.  An appropriation establishes a maximum authorized program level, meaning that an agency, absent statutory authorization, cannot operate beyond the level that can be paid for by its appropriations.  An agency may not circumvent these limitations by augmenting its appropriations from sources outside the government, unless Congress has so authorized the agency.  Questions on this topic should be addressed to the HHS Office of the General Counsel, General Law Division.

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1.6   Non-Federal Attendee Travel Restrictions

OPDIVs and STAFFDIVs shall abide by the general rule that an appropriation may not be used for non-Federal employee travel, transportation, and subsistence expenses for a meeting.  Specifically, 31 U.S.C. § 1345, “Expenses of Meetings”, applies to our appropriations and states that “except as specifically provided by law, an appropriation may not be used for [non-Federal employee] travel, transportation, and subsistence expenses for a meeting.”  Therefore and as a general principle, appropriated funds generally cannot be used to pay the expenses of persons who are not federal employees.  There are a few exceptions to these general rules/principles, as follow below, that may be applied in determining to fund non-Federal employee travel to HHS’ or other organizations’ meetings and conferences.

A.   Statutory Authority

Agencies may have a unique statutory authority to use their appropriated funds for travel and other expenses of non-federal employees.  This statutory authority must be specific (e.g., general training and technical assistance authority is not enough).  Statutorily-required (rather than merely authorized) conferences may provide sufficient specificity.

B.   Invitational Travel Statute

5 U.S.C. § 5703, stated that "an employee serving intermittently in the Government service as an expert or consultant .... or serving without pay or at $1, may be allowed travel or transportation expenses, under this subchapter, while away from his home or regular place of business and at the place of employment or service.”  This statute permits agencies to invite individuals to a meeting or conference at government expense if the individuals are legitimately performing a direct service to the government, such as making a presentation or advising in an area of their expertise.  Paying for the travel and subsistence of invitational travelers must still serve a legitimate authorized purpose of the agency for which funds have been appropriated, such as to provide technical assistance as authorized by program statute.  Travel Regulations would apply and travel orders would need to be issued to such individuals.

C.   HHS Appropriations Exception

Section 505 of the FY1993 Labor/HHS/Ed appropriations act, (Pub. L. 102-394), 31 U.S.C. § 1345 note, provides that “appropriations contained in this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts, available for salaries and expenses, shall be available for expenses of attendance at meetings which are concerned with the functions or activities for which the appropriation is made or which will contribute to improved conduct, supervision, or management of those functions or activities.”  The appropriate program official must determine that the private individual’s attendance will contribute to improved conduct, supervision, or management of those functions or activities.  Funds must come from Salaries and Expenses for this exception to apply.

D.   Limited Procurement Exception

An agency may contract for various conference-related services, including services related to presentations.  Contractors may, but are not required to, utilize subcontractors for the purpose of providing such services, and the contractor may incorporate allowable costs (including travel expenses) into its price for these services.  However: (a) Contractors, through their employees or subcontractors, must provide a deliverable (e.g., a speech, presentation, or other specific role) and (b) Contractors should generally be responsible for selecting the individuals (their employees or subcontractors) who will provide services such as presentations, though the contracting officer, with input from the program office, may have final approval over a list of topics and presenters if required by the contract.  Various allowable contract costs (including travel) may be properly included in the contractor’s price for the deliverable in question. This exception may not be used to pay for non-Federal employees to simply attend an event, even if they might say something during the event and you need to work closely with the Office of the General Counsel, General Law Division, on specific language for such contracts on a case-by case basis.

E.   Grant Funds

Reasonable and allocable travel costs may be charged to a grant by the grantee.  See OMB Circulars A-87, App. B, ¶ 43; A-122, App. B, ¶ 51. Where authority exists, agencies may supplement terms and conditions of the grant to require grantees to use grant funds to travel to events.  Sample term and condition: “The [Program] Administrator, or designee from the State or Territory [Program] Lead Agency, must attend and participate in HHS-sponsored national or regional in-person meetings and trainings, as directed by the [OPDIV].  This award may be used for allowable costs associated with travel, lodging, per diem, and other related expenses associated with the grantee meetings and trainings.”  

Since OMB Memorandum M-12-12 does not require such travel reimbursements to be included in the cost of conferences held by the agency, OPDIVs/STAFFDIVs should exclude allowable travel costs charged to grant funds when determining the cost of an HHS Conference.  (Ref. Memorandum M-12-12 footnote 5: “‛Conference expenses’ are defined as all direct and indirect conference costs paid by the Government, whether paid directly by agencies or reimbursed by agencies to travelers or others associated with the conference, but do not include funds paid under Federal grants to grantees. ...”

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1.7   Contractor Support for Formal Conferences

The NIH Conference Administrative and Travel Services Contracts (see NIH’s website at: http://nihcatsii.olao.od.nih.gov/) are considered to be part of the Department’s strategic sourcing efforts to leverage HHS-wide spend, reduce contract duplication, increase purchasing efficiencies, and reduce the total cost of conferences hosted by HHS.  OPDIVs and STAFFDIVs are encouraged to use these, or other multiple-award contracts that have been established by the OPDIV/STAFFDIV specifically for the logistical and administrative aspects of conference support.

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1.8   Implementation Requirements

HHS OPDIVs and STAFFDIVs shall designate representatives to lead and coordinate the approval and reporting requirements of this policy within their agencies – representative names shall be provided to Clarence Randall at [email protected].  Additionally, OPDIVs and STAFFDIVs shall implement internal policies and practices to:

• Ensure consistency across their organizations regarding the documentation and submission of requests to support a conference or hire meeting/conference space when it requires the obligation of funds.
• Coordinate with other OPDIVs and STAFFDIVs to submit joint requests for approval for conferences.
• Establish a process to ensure the applicable approval requirements are met prior to the obligation of funds.
• Determine the total expenses and verify the data to be reported in the bi-weekly reports to the OIG and annual conference reports for the OIG and for posting on HHS’ website.

OPDIVs and STAFFDIVs policies and procedures to implement this policy may be more expansive than the requirements set forth herein.

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