BIOETHICS

The Bioethics Imperative XXIII
An In-depth Look at Effort Certifications: The Good, the Bad, and the Ugly

“Mokita”: The truth we all know and agree not to talk about. Papua New Guinea

My email traffic last time with James T. Kroll, head of Administrative Investigations of the Office of the Inspector General (OIG) at NSF, was especially intense during our discussion of Case #3 in TBI XXII (http://www.aspb.org/newsletter/novdec05/11mandoli22.cfm), the one involving effort certifications. From our email dialogue, I realized that there were many aspects of effort certifications that I did not understand or had never thought about. Kroll and I decided to make the case in TBI XXII black and white and then explore the nuances in this subsequent column. Because it worked so well in stimulating our discussion (and my learning!) last time, we will again make use of the question-and-response format that we devised in the last column.

Effort certification is a requirement of the federal government. The Office of Management and Budget’s (OMB’s) Circular A-21, “Cost Principles for Educational Institutions,” defines cost principles for colleges and universities. A-21 identifies which costs are allowable and allocable to federal grants. A-21 also provides guidance regarding acceptable methods of charging salaries and wages to federally sponsored projects. For example, A-21 requires a payroll distribution system that directly charges salaries to appropriate projects and requires that institutions have a system to determine how individuals actually expend effort related to the federally sponsored project. Each university has its own time-and-effort, system so there is no universal “right way” to fill out an effort certification.

Most time-and-effort allegations of wrongdoing come to the OIG either because an audit has identified significant problems with the time-and-effort reporting documentation or from individuals who may have worked in a lab and have firsthand knowledge that time-and-effort reports are being falsified.

Now that we understand these basics, let’s explore how effort certifications are judged if falsified. Each civil or criminal statutory law is based upon written elements, which all must be met for the act in question to constitute a civil or criminal violation. Generally, one element listed is a description of the act or acts that constitute the particular civil or criminal violation. Another element of many civil and criminal statutes is intent, although some crimes are actually strict liability crimes where no intent is even necessary. The prosecution has to prove every element of the statute charged, including the requisite level of intent, or it cannot prevail. The burden of proof is higher for a criminal charge than for a civil matter, the former requiring evidence beyond a reasonable doubt and the latter requiring only a preponderance of evidence.

Levels of intent, from least to most severe, are “reckless disregard,” “knowing,” “and “willful.” The layman’s definitions of these are

• reckless disregard: the person did not know it was wrong but should have known based on their education, experience, etc.
• knowing: the person knew that is was wrong and did it anyway
• willful: the person knew it was wrong and did it with direct purpose to deceive.

For example, a falsified time-and-effort claim or false claim can be charged criminally, under law 18 U.S.C. 287. The elements of this crime are that the charged party (1) knowingly (2) makes or presents (3) to the United States (4) a claim against the United States (5) that is false, ficticious, or fraudulent. This must be proven beyond a reasonable doubt, but there is no requirement that the accused have actual specific intent to defraud the government or violate the law; the accused must only have knowingly committed the act in question.

Alternatively, this same violation can be charged civilly under 31 U.S.C. 3729. The elements here are that the individual (1) knowingly presents, or causes to be presented (2) a false or fraudulent claim for payment or approval. Again, there is no need for the government to prove an actual intent to defraud the government or break the law; only general intent to do the act in question is necessary. Note that there is no requirement that the government actually pay the amount requested by the false or fraudulent claim, and the burden of proof is only preponderance of evidence.

In italics are the opinions of Jim Kroll concerning the likely federal and institutional consequences for each of these cases. Keep in mind that Kroll is not making specific comments about what the OIG actions would be in each individual case; rather he is just giving us insights into the potential issues.

Case 1: Assistant professor Ivy Brains needs to obtain preliminary data for her next proposal. She is not yet funded for this project, but she assigns a technician in her lab who is funded 100 percent from another grant to garner those data. She signs off on the effort certifications with a clear conscience. What actions would the institution and the OIG take in this case? Would the outcome be the same if the principal investigator (PI)was a full professor? If the preliminary data were also related to the existing research grant, then the PI might be able to charge the technician’s time against the existing grant. If not, then charging the time against the existing grant would be problematic.

Case 2: While Professor I. B. Blanched was on a year-long sabbatical in South America, he signed off on all his effort certifications so that his personnel would continue to be paid regularly. Meanwhile, the technician back in the United States had been working on another project to help a postdoctoral fellow in the lab who had run into trouble with her project. When Professor Blanched returns from his year away, he realizes that many of the effort certifications were wrong. How should the PI have set up the routine signing of effort certifications in his absence? What should he do to correct the errors upon his return? The PI should have arranged for some alternate individual to approve the time-and-effort reports. He should immediately work with the appropriate individuals at the university to correct the errors and have the time-and-effort assigned against the appropriate grants. I would be very concerned about any department that allowed these certifications to go forward knowing that the certifying official was on a year-long sabbatical.

Case 3: Dr. Soe Anxious has trouble sleeping after signing off on a few effort certifications for himself. Knowing they were wrong, he wants to correct the error but is afraid of reprisals from the university and from the federal government. What should he do? The PI should immediately work with the appropriate university personnel to correct the falsification regardless of the potential repercussions. Self-disclosure about falsifications can be considered a potentially mitigating factor if the government decided to prosecute the matter.

Case 4: Each year, Professor Holly Day signs off on her own summer effort certifications in advance while she is really on vacation. She has a nine-month appointment, but she needs the income for all 12 months to meet the tuition for her college-age children. She has her long-time technician submit the effort certifications at the correct times while she is away, telling him she is working remotely while on the beach. Dr. Day knows that the effort certifications are wrong but figures that because she won the grant, it is all right for her to spend the money any way she wishes. This is probably the most clear-cut case of fraud within the seven cases presented here. Clearly the PI is knowingly submitting a false claim against the government and is at risk for prosecution.

Case 5: Dr. Trevor “Tre” Key Dick asks one of his technicians, paid 100 percent on Grant A, to work on Grant B for the month of February. He does this by asking for an advance from his university and justifies it in his own mind because the needed cell lines are not yet available and because he has no other funds to pay the technician. In April of the same year, funds from Grant B first become available from the federal agency. He switches 100 percent effort of the same technician to Grant B at that time. When the cell lines for the first grant are ready in June, he switches the effort of the technician back to Grant A for one month in order to make up the time spent on Grant B in February. Is it a falsification of time-and-effort reports if the funds were used for fulfilling the aims of one grant but not in the same time period stated in the effort certification? The old shell game, perhaps reminiscent of the character Wimpy in the old Popeye cartoon—“I’ll gladly pay you Tuesday for a hamburger today.” Using grant money to cover for one month while waiting for another grant to become available is not appropriate, unless of course you can show that the work is also directly related to the advancement of the grant that is being used to pay the technician’s salary.

Case 6: Pursuing an interesting lead in his research on a current grant, Dr. Feliciano “Fella” Yurnose encourages a graduate student to work on this, even though this constitutes a new, unfunded project. The student is paid 100 percent on the grant in question. In capitalizing on this new direction uncovered by his research, has the PI put himself in jeopardy of falsifying the student’s effort certifications? It is understood that research does not always follow the path that was originally proposed. As long as the research was a derivative of the original proposed research, it would seem to me that paying the student’s stipend would be legitimate. However, it might be a good idea to check with the program officer at the funding agency to make sure he/she is on board with this offshoot research project.

Case 7: A technician is working on a project that entails long incubations on a routine basis and long plant growth times between and during genetic selections. Rather than have the technician sit idle, Dr. Dee Viden-Conquer asks to use her time profitably by taking on a new project that is funded from a different grant. Dr. Viden-Conquer keeps the salary of the technician 100 percent on the first grant. Is the PI at fault for wanting to get the most from his grant funding in this manner? The bottom line is that if the technician is splitting her time between two different funded projects, then the PI needs to assess the time expended to each grant and charge each grant proportionately.

Next Time: Faculty effort certification in a sea of change: Unsettled issues in current compliance practices.

Dina Mandoli
mandoli@u.washington.edu

We thank NSF OIG’s J. T. Kroll for extensive input and Fara Damelin for her legal editing and input.

The following is a list of online resources that we hope will be useful to members of ASPB.