Federal grant-supported university research programs have experienced unprecedented scrutiny over the last eighteen months from the Federal Bureau of Investigation (“FBI”), the National Institutes of Health (“NIH”), the National Science Foundation (“NSF”), the Department of Energy (“DOE”) and other federal agencies. Congress is now telling those agencies that they are not doing enough. The scrutiny centers around attempts by foreign nations to utilize “non-traditional collectors” in the academic setting to unfairly or unlawfully obtain the benefit of American-funded research for their own nation’s economic and military gain.
The worst offender, according to the FBI and Congress, is China. In a November 18, 2019 report by the United States Senate, Permanent Subcommittee On Investigations (the “Subcommittee”) within the Committee on Homeland Security and Governmental Affairs, the Subcommittee issued findings and recommendations regarding China’s use of more than 200 talent recruitment programs to attract high-quality overseas talents, including researchers, scientists, engineers, entrepreneurs, and finance experts. The report focused on the Thousand Talents Plan (“TTP”), which the Subcommittee described as providing “salaries, research funding, lab space, and other incentives to lure experts into researching for China.” Started in 2008 by the Chinese Communist Party, the TTP is China’s best known talent program. While its goal was to recruit 2,000 high-quality experts, according to one report it has far surpassed that with more than 7,000 “high-end professionals,” including several Nobel laureates. Id. While the TTP seeks to benefit China, it does so by targeting “U.S.-based researchers and scientists, regardless of ethnicity or citizenship, who focus on or have access to cutting-edge research and technology.” Id. at 7. It also requires its members to sign legally binding contracts with Chinese institutions that often contain non-disclosure provisions, in direct conflict to those same individuals’ obligations to disclose other employment on grant applications.
What is the risk?
The Subcommittee concluded that “the federal government has failed to stop China from acquiring knowledge and intellectual property from U.S. taxpayer funded researchers and scientists.” Id. at 6. It found that some TTP members “received both United States grants and Chinese grants for similar research, established ‘shadow labs’ in China to conduct parallel research, and stole intellectual capital and property.” Id. at 8. In addition, some TTP members “used their access to research information to provide their Chinese employer with important information on early stage research.” Id. The Subcommittee also highlighted concerns about the integrity of the peer review process, noting that NIH identified at least 75 individuals potentially linked to foreign talent recruitment plans that also served as peer reviewers. Id. at 9. The Subcommittee found that “American taxpayer funded research has contributed to China’s global rise over the last 20 years” and that agency failures to prevent this “undermine the integrity of the American research enterprise and endanger our national security.” Id. at 1.
Agencies have not done enough
The Subcommittee’s report lambasted federal agencies for being too slow to address the threat of China’s talent recruitment plans, for having inconsistent processes and policies in place regarding the threat, for not doing enough to vet potential grantees, and for being too lenient when issues have been identified. The Subcommittee also found fault with the university community, writing that if “U.S. universities can vet employees for scientific rigor or allegations of plagiarism, they also can vet for financial conflicts of interests and foreign sources of funding” and if “U.S. researchers can assess potential collaborators’ research aptitude and their past publications, they should know their collaborators’ affiliations and their research intentions.” Id. at 5.
At a Subcommittee hearing held on November 19, 2019, Senator Mitt Romney stressed the need for tougher action, stating that regulatory or legislative changes may be needed to address the threat, and Senator Rob Portman suggested a standardized grant application solution. Senators also noted that espionage activities have “gone underground” after TTP and other talent programs removed publicly available lists of members, making enforcement and identification more challenging.
How can universities protect themselves?
First, universities must understand that as the recipient of federal funds, it is their responsibility to ensure compliance with agency rules and regulations. Each agency approaches required disclosures and prohibitions differently. For example, the DOE prohibits its grantees from participating in foreign talent recruitment programs, whereas the NIH and NSF permit grantee participation but require disclosure of such participation. Universities must understand these nuances and stay abreast of any changes in policy or practice by the agencies.
Second, universities must educate their principal investigators, and other researchers, about their obligation to make all required disclosures. While agencies have recently issued “reminders” about disclosure requirements, many see those reminders as actual changes in practice. The NIH, for example, issued a notice in July of this year reminding institutions about NIH policies on “other support,” foreign components, and financial conflicts of interest. It reminded grantees to report “all current projects and activities that involve senior/key personnel, even if the support received is only in-kind (e.g. office/laboratory space, equipment, supplies, employees) . . . [and] selection to a foreign ‘talents’ or similar-type program.” Id. Many principal investigators, researchers, and administrators view this “reminder” as an expansion of prior disclosure requirements. Given the political climate and Congressional scrutiny, agencies are more likely to view innocent mistakes or errors to be nefarious conduct. A failure to educate or to be aware of current expectations will not be looked at fondly—or necessarily credibly—by government enforcement attorneys.
Third, universities must engage in proactive measures to ensure that disclosures occur, while at the same time protecting their foreign students and researchers, and treating all of their employees the same, regardless of ethnicity or nationality. Missteps in meeting agency requirements could result in administrative penalties and civil liability for the institution, as well as potential criminal liability for its employees. The NIH acknowledged that it has “identified 250 scientists as ‘individuals of possible concern,’ of which roughly 30 percent served as a peer reviewer over the past two years.” Subcommittee Report, at 55. The NSF and DOE likewise have many ongoing investigations. Id. at 47-49, 72-74. These investigations and cases are just beginning, and some will likely result in enforcement actions by the Health and Human Services, Office of Inspector General, and the Department of Justice. A recent criminal case brought against a University of Kansas professor alleging that he failed to disclose other employment with a Chinese university highlights this risk.
Neither the threat to our research community nor the scrutiny placed upon it by federal agencies is likely to abate in the near future. While the threat is real, so too is the need to protect our fundamental values of inclusion and openness, regardless of ethnicity or nationality. Universities must seek to protect these values while also ensuring compliance with federal agency requirements. No small feat.
Kristen M. Schwendinger, a former Senior Counsel with the Health and Human Services, Office of Inspector General, is a Senior Counsel in Feldesman Tucker Leifer Fidell LLP’s Federal Grants and Litigation and Government Investigations practice groups.