Michael J. Tuteur (mtuteur@foley.com) is a Partner and Torrey K. Young (tyoung@foley.com) is a Senior Counsel in the Boston office of Foley & Lardner LLP.
Most busy scientific research laboratories have a spectrum of projects underway at any given time. Some projects are producing exciting results, and others seem to be heading nowhere. Why not shift personnel from the losers to the winners?
Here’s one big reason: The government is watching. And unless you’re careful, simply moving a couple of post-docs from one project to another can generate False Claims Act (FCA) liabilities up to three times the amount of money the government thinks it was shortchanged.[1]
Counting the hours
National Institutes of Health requirements give research institutions leeway on how they account for work funded by federal grants, but they demand consistency and good recordkeeping in exchange. Although this may make veteran principal investigators (PIs) grumble, keeping track of lab members’ hours is just one of the essential compliance duties research institutions must enforce, as both the Department of Justice and profit-motivated whistleblower lawyers place increasing scrutiny on research spending. The institutions that get this right will find not only are they protecting themselves against FCA liability over minor things like accounting for time and effort, but they’re also increasing the odds of uncovering major problems like falsification of data and plagiarism.
Too many scientists treat grants as money to be spent as they see fit, and subordinates may have no idea how much of their time is supposed to be allocated to a single project as defined by the grant award. That can be a problem, as most government grant awards specify the amount of time team members must spend on the project being funded.[2] The commitment of time is not expressed in terms of hours, however, but typically as a percentage of total effort. A nonchalant approach to time-and-effort reporting can quickly lead to trouble in a big lab where the PI has a dozen post-docs and various other research fellows, graduate students, interns, and support personnel, all working on a variety of projects.
Time and again we’ve seen situations where nobody is really watching these percentage commitments, especially when one grant turns out to be exciting and another looks like a dud. Without consulting the institution or others managing the sponsored research, the PI shifts resources to the popular grant. This may make sense from a scientific perspective, but it can create unexpected liability if the other grants are ignored or reporting is not adjusted. The government even pursues cases against institutions that have labs assigning researchers to mundane tasks when they are supposed to be receiving training under training grants.
A more foolproof system would require lab employees to punch a time clock or account for the hours spent on each project as they incur them, like lawyers, but that would be unwieldy and potentially inhibit the flow of work among multiple simultaneous research projects.
