Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

US government–funded academic medical centers and other research institutions are caught between traditional values of academic freedom, collaboration, and nondiscrimination and their obligations to comply with US law and enforcement authorities. So far, academic medical centers and other research institutions have avoided prosecution by cooperating with the US government, but they are well advised to review their vetting and disclosure policies with respect to visiting non-US or dual national scholars and students while not targeting specific ethnic groups. From a practical standpoint, US academic medical centers and other research institutions conducting federally funded research need to be careful to address both export and deemed export control issues, as well as potential conflicts of interest in applying for and using the results of US government–funded research. Academic medical centers and other research institutions should follow closely the increased enforcement activities of the US government and recent congressional recommendations for further changes to safeguard US government–funded research, which are detailed below.

We have previously written about how the US government is scrutinizing more closely Chinese investment in US biotech and the joint outreach by the National Institutes of Health (NIH) and Federal Bureau of Investigation to recipients of NIH grants with respect to the controls in place to prevent against the unauthorized export and/or theft of federally funded research.

Recently, certain members of Congress held hearings and published a report on the lax enforcement by US authorities on the misuse of US funded research. The Senate Permanent Subcommittee on Investigations report released on November 18, titled “Threats to the US Research Enterprise: China’s Talent Recruitment Plans,” paints a portrait of a concerted, multifaceted effort by the Chinese government to bolster its own domestic research and development enterprise by relying upon resources gathered from public sources in the United States. The report summarizes the ways in which various initiatives led by the Chinese government have taken advantage of institutions in the United States, from research universities to federal agencies, and alleges that participants in China’s “Thousand Talents Plan” have targeted fundamental research programs sponsored by the National Science Foundation (NSF), the NIH, and the US Department of Energy, resulting in the misappropriation of research and theft of intellectual property. The report makes a number of recommendations:

  1. Federal agencies must develop a comprehensive strategy to combat both illegal and extralegal transfers of US intellectual capital.
  2. Federal agencies should declassify and disseminate more information on foreign talent recruitment plans.
  3. While taking steps to better protect research and intellectual property, Congress and the executive branch should reaffirm the critical importance of foreign students and researchers in the United States and the importance of international research collaboration.
  4. Federal law enforcement agencies and members of the intelligence community must better tailor engagement with the US research community to ensure that threat information is accessible and actionable.
  5. US grant-making agencies should harmonize the grant proposal process and standardize reporting requirements for disclosing all foreign conflicts of interest, all conflicts of commitment, and all outside and foreign support.
  6. The US research community should establish a “know your collaborator” culture.
  7. US grant-making agencies should implement a compliance and auditing program to ensure grantees accurately report conflicts of interest and conflicts of commitment.
  8. US grant-making agencies conducting or funding US government research should share information regarding grant recipients with access to US government funding and research facilities.
  9. The US Department of Commerce should ensure that its interagency process for identifying emerging and foundational technologies that are essential to the national security of the United States includes a review of fundamental research.
  10. The US Department of State should identify any additional authorities needed to deny nonimmigrant visas for individuals suspected of engaging in illegal or extralegal transfers of technology, intellectual property, and fundamental research.
  11. The administration should consider updating NSDD-189 and implementing additional, limited restrictions on US government–funded fundamental research.
  12. Federal law enforcement and other relevant agencies should identify US-based entities that serve as recruitment networks, platforms, or foreign government proxies that facilitate or broker in state-sponsored talent recruitment.
  13. US grant-making agencies should work with research institutions to ensure they have the necessary cybersecurity practices in place to reduce the risk of research data misappropriation.
  14. Grant-making agencies should not award US funding to participants of foreign talent recruitment programs absent full disclosure of the terms and conditions of membership in any talent recruitment program.

It is unclear at this time to what extent these recommendations will be followed by the executive branch and enforcement authorities.

The Senate report also details three cases involving the alleged misappropriation of NSF research:

  1. Percival Zhang, an engineering professor at Virginia Polytechnical Institutes and State University (Virginia Tech) who began working as a paid researcher for the Tianjin Institute of Industrial Biotechnology at the same time that he was working for a private research firm he had founded that relied exclusively on federal grants, including funds from the NSF, for funding its research activities. Zhang submitted falsified timesheets to government investigators.
  2. Feng “Franklin” Tao, a researcher at the University of Kansas whose work was funded through two Department of Energy contracts and four NSF contracts, was under contract with Fuzhou University at the same time. He was charged with fraud for having accepted a second, undisclosed salary from a university in China in violation of policies requiring the disclosure of all sources of foreign support.
  3. Chunzai Wang, a National Oceanic and Atmospheric Administration (NOAA) employee and investigator on at least one NSF-funded project, received a salary from China at the same time.

Some of these cases involve dual nationals or permanent resident aliens in the United States. Traditional legal theories relying on violations of export controls or misappropriation of property can be challenging to prove, so the US enforcement authorities are testing a novel theory of fraud on the US government in the Tao case for failure to disclose foreign government funding.