Report on Research Compliance 21, no. 9 (September, 2024)

How many types of falsehoods might sully applications for research funds and the studies they support? Unfortunately, the most recent semiannual report to Congress by the National Science Foundation (NSF) Office of Inspector General (OIG) offers a plethora of these damaging activities.

Most in the compliance community will be familiar with falsified data, a type of research misconduct, and False Claims Act (FCA) violations, which can result in agencies clawing back money and imposing penalties if they believe the awards were made based on inaccurate, incomplete or fabricated documents, or if funds were misspent. The new report includes FCA settlements—but also describes an unusual case in which an institution returned nearly $1 million in awards because it “falsely certified to NSF that it had implemented and was enforcing a written conflicts of interest policy [COI] according to the terms, conditions, and requirements of NSF awards.”^[1]

Also noteworthy is a university’s return of more than $240,000 associated with a professor who submitted “modified letters of support” for a funded proposal and falsified “at least one letter of support in eight additional proposals.” OIG also concluded that a recipient of a Faculty Early Career Development Program (CAREER) award—challenged for turning in an annual report that didn’t show enough outreach activities—“falsified his participation in outreach activities in the revised annual report,” as well as in a report to an agency other than NSF.

OIG’s report—spanning from Oct. 1, 2023, to March 31—reflects OIG activities but also NSF’s, as OIG presents details on cases it investigates and NSF responses to them. OIG makes recommendations to NSF, which has the final say on imposition of sanctions, for example, such as debarring an investigator or requiring training and certifications.

During this period, OIG collected $1,554,937 in what it termed “investigative recoveries,” which consist of “funds returned to NSF, restitution, fees, proceeds from civil settlements and funds put to better use.” This story focuses on cases involving financial recoveries, FCA and false statements more generally; other actions, such as misconduct findings, are described elsewhere in this issue.^[2]

Semiannual reports are the only opportunity to learn details—although limited—about findings of fabrication, falsification and plagiarism investigations as well as those concerning both investigator and institutional misdeeds handled by the Department of Justice (DOJ) during the reporting period. OIG also posts individual closeout memorandums on its website. In both instances, however, the names of investigators and their institutions are not disclosed. Reports may link to DOJ news releases that make those details known.

In contrast to NSF and its OIG, the HHS Office of Research Integrity publishes the names of investigators sanctioned for misconduct and their employers on its website and in the Federal Register.

Monetary settlements and other financial recoveries detailed in the report add up to $1,455,790 of the $1,554,937; the balance is in the category of funds put to better use.

COI Missteps Prove Extraordinarily Costly

The case of the apparently nonexistent COI program didn’t just cost the university involved; it led to at least one high-ranking official being out of a job. Although the specific reasons for the DOJ referral are not stated—it could have been about the investigator’s behavior or the institution’s—OIG also tried, but failed, to get DOJ to take its own enforcement action.

OIG substantiated an allegation that a principal investigator (PI) “failed to disclose research funding and affiliations in grant proposals submitted to NSF,” according to the closeout memorandum.^[3]

Moreover, the agency discovered that “the awardee institution falsely certified to NSF that it had implemented and was enforcing a written policy” on COIs. “The institution implemented a comprehensive corrective action plan that included significant personnel actions and policy revisions. The institution also returned $950,000 to NSF for its non-compliance with NSF’s grant terms and conditions,” according to the memorandum. It also notes that “the matter was referred to the United States Attorney’s Office, which ultimately declined to move forward with civil or criminal enforcement.”

The semiannual report offers more details on the “personnel actions,” stating that the lack of a COI program or its enforcement had occurred “since at least 2019.” In addition to the payment, the university “conducted a compliance audit; revised its conflicts of interest policy; terminated its Assistant Vice President for Research Compliance; reassigned its Vice President for Research; and hired a consultant to review its compliance measures and develop a comprehensive corrective action plan.”

Revised Report Prompted Wider Inquiry

At the time of the report, sanctions against the PI who falsified his participation in outreach activities in an annual report for his CAREER award were pending, and the allegations of data falsification have mounted. Initially, an NSF “program director returned the annual report to the PI for lack of reported progress in educational activities,” but, in response, “the PI falsified his participation in outreach activities in the revised annual report,” OIG said. “We referred the investigation to the university and concurred with its finding that the PI falsified his participation in outreach activities in his annual report for his CAREER award.”

The university also “reviewed allegations that the PI falsified data in progress reports for a contract with another federal agency,” concluding there was falsified data but not “who was responsible for it. One committee member dissented and concluded the PI was responsible for the falsifications. We concurred with the dissenting committee member,” the report states. “We concluded the PI engaged in a pattern of misrepresenting his accomplishments in progress reports to Federal agencies.”

OIG recommended that NSF, for three years, “require the PI to provide certifications and assurances with each document he submits to NSF…and prohibit the PI from serving as a reviewer, advisor, or consultant.”

Case Involved Georgia Tech, PI

Fewer details are available about the falsified letters of support, perhaps because the investigation—which OIG said concerns research misconduct—had not concluded at the time of the report. According to the semiannual report, “a university professor modified letters of support he submitted with a proposal, which NSF funded. The professor also falsified at least one letter of support in eight additional proposals.” OIG “shared our investigative findings with the university and asked the university to determine whether any improper costs were charged to NSF awards. The university returned all funds associated with the professor’s NSF award,” or a total of $242,790.

In contrast, much is already known about one of the FCA-related cases, which dates back to the COVID-19 pandemic. The new report describes the coda to a case involving former Georgia Institute of Technology math and pandemic diseases modeling researcher Eva K. Lee, who was sentenced in August 2020 to 10 months’ probation and restitution to NSF of $40,000.

In December 2019, Lee pleaded guilty to making a false statement in 2016 related to the status of industry members in the center funded by NSF’s Industry-University Cooperative Research Centers program. On Nov. 30, DOJ announced that Georgia Tech and an affiliated research corporation agreed to pay $90,000 to resolve allegations of FCA violations triggered by their failure “to exercise proper oversight.”^[4]

The report provides a link to the DOJ announcement and notes that the university, which OIG doesn’t identify, also “returned $105,000 it received because of the professor’s false statements” and “implemented policies and procedures to prevent a similar occurrence in the future and will continue its compliance efforts.” NSF debarred Lee for three years, sometime between Oct. 1, 2020, and March 31, 2021, according to the semiannual report for that period.

Another interesting case briefly described in the report involves a company agreeing to help combat fraud as part of its settlement. Following a “proactive review of wage records” that revealed the PI for a small business innovation research (SBIR) awardee firm “was a full-time employee of two other companies, in violation of the SBIR program’s primary employment requirements, the company agreed to pay $68,000 and participate in a fraud awareness training video,” according to the report. The payment and video involvement were part of a civil settlement agreement to resolve FCA liability.

Finally, the report details two additional cases—involving the FCA and a firefighter who really wanted to work in the South Pole—that again break the typical mold of falsehoods that either creep into research venues or how they are handled.

‘Civil Compliance Settlement,’ No Payment?

Typically, FCA resolutions involve some repayment to the government agency that believes it was defrauded, particularly in recent cases involving failures to disclose “foreign research agreements,” which have resulted in several costly repayments. For example, on July 16, DOJ announced that the University of Maryland College Park agreed to pay $500,000 to settle FCA allegations related to nondisclosure of foreign support; earlier this year, Cleveland Clinic paid $7.6 million for similar issues.^[5] In October, Stanford University paid $1.9 million related to nondisclosure issues involving funds from NSF and other agencies.^[6]

OIG’s semiannual report covering the same period but for 2023 described just one such case, which involved an $875,689 payment by The Ohio State University.^[7]

The new semiannual report only describes one case involving the FCA and failures to disclose foreign support—and does not mention a financial component. Under the heading “University Enters into a Civil Compliance Agreement for Failure to Disclose Foreign Research Agreements,” the report states that “a university failed to disclose foreign research agreements involving three research awards and two PIs. NSF’s Proposal and Award Policies and Procedures Guide (PAPPG) requires that PIs disclose all forms of current and pending support in NSF proposals.”

OIG said both the university and the PIs “failed to disclose the agreements to NSF” but that the PIs had reported them to the university.

“As part of a civil settlement with DOJ, the university must update and enhance its research compliance program, which includes internal guidelines for reporting current and pending support, training requirements, and disciplinary procedures for employees who fail to meet NSF’s award terms and conditions,” OIG said.

Records Fabricated to Obtain Medical Clearance

On Aug. 6, the U.S. Attorney’s Office for the Southern District of Texas announced that 30-year-old Brandon Mikula, from Mexico, Missouri, was sentenced to one year’s probation following his April guilty plea to submitting a false statement, a misdemeanor.^[8] The connection to NSF is that Mikula had been trying to work as a firefighter for the U.S. Antarctic Program at the McMurdo Station, which NSF funds and manages. According to court documents, Mikula was hired as a contract firefighter sometime in 2022 and then underwent a medical screening process, including completing NSF Form 1700 that described his medical history. The process, conducted by the University of Texas-Medical Branch (UTMB) in Galveston, also involved an evaluation by a medical professional.

Mikula “omitted important medical information and diagnoses” from the form. When requested to provide “additional clarifying information about his medical conditions,” he submitted forgeries, including a “forged ultrasound evaluation,” the documents show.

In early August of that year, UTMB and NSF “determined Mikula was not physically qualified to travel to Antarctica. Subsequently, in an effort to reverse this determination,” he submitted a forged letter from his primary care physician “claiming he was medically fit,” and later “sent harassing emails to UTMB and NSF officials in efforts to reverse their determination.” The semiannual report notes he also “made false statements to federal investigators” during his interview. Documents in the court file are mostly sealed, and those that aren’t do not give any indication as to what Mikula’s ailments were. Represented by a public defender, Mikula pleaded guilty in April.

In announcing the sentence, U.S. Attorney Alamdar S. Hamdani noted that while Mikula’s conduct “may at first blush seem minor, [it] had the potential to end in tragedy for him and for others,” given that “Antarctica is the highest, driest and coldest continent on earth,” with winter temperatures of -75. “Medical evacuations from NSF’s Antarctica facilities, in those harsh conditions, could take days or weeks in the winter,” Hamdani said.

1 National Science Foundation, Office of Inspector General, Semiannual Report to Congress: October 1, 2023 – March 31, 2024, NSF-OIG-70, May 30, 2024, https://bit.ly/3Mkn0Ya.

2 Theresa Defino, “NSF Misconduct Sanctions Included Debarment, Certifications” Report on Research Compliance 21, no. 9 (September 2024).

3 National Science Foundation, Office of Inspector General, Office of Investigations, Closeout Memorandum, Case Number: I-20-0035-O, January 2, 2024, https://bit.ly/4dyqdzr.

4 U.S. Department of Justice, U.S. Attorney’s Office for the Northern District of Georgia, “Georgia Tech and Georgia Tech Research Corporation pay $90,000 to resolve allegations of violations of the False Claims Act,” news release, November 30, 2023, https://bit.ly/3yR3dfK.

5 Theresa Defino, “UMD: Differing Views, ‘Errors’ Prompted $500K FCA Payment; 2nd Related to Dept. of Ed. Reports,” Report on Research Compliance 21, no. 8 (August 2024), https://bit.ly/472IhiM.

6 Theresa Defino, “DOJ: Stanford FCA Case Involved Failures to Disclose Foreign Support From Seven Countries,” Report on Research Compliance 20, no. 11 (November 2023), https://bit.ly/48k7VyU.

7 Theresa Defino, “NSF Suspends 18 Awards, Receives Repayments Related to Foreign Ties, Research Misconduct,” Report on Research Compliance 20, no. 7 (July 2023), https://bit.ly/3K8OkYJ.

8 U.S. Department of Justice, U.S. Attorney’s Office for the Southern District of Texas, “Firefighter candidate trying to work in the South Pole forged medical documents,” news release, August 6, 2024, https://bit.ly/46Z9X7T.

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