Washington Update

Update on APLU, AAU, & ACE Legal Action Contesting NIH Cuts to F&A Reimbursement Rates 
On February 7, APLU joined with the Association of American Universities, the American Council on Education, and a number of research universities as plaintiffs in a lawsuit challenging NIH’s action limiting Facilities & Administrative reimbursements (indirect cost rate) to 15 percent. On February 21, U.S. District Judge Angel Kelly extended the court’s temporary restraining order (TRO) as the court considers the plaintiffs’ request for a preliminary injunction. The TRO, which was previously set to expire on February 24, blocks NIH’s implementation of cuts to the F&A rate.  

APLU later released a full statement and related resources of relevance to the membership. The litigation by the associations is now being considered by the court along with the litigation filed by 22 state attorneys general and the lawsuit by the Association of American Medical Colleges, et. al. 

APLU Responds to ED OCR Dear Colleague Letter Interpreting Students for Fair Admission v. Harvard 
The U.S. Department of Education Office for Civil Rights (OCR) released a “Dear Colleague Letter” on February 14 indicating the administration will apply a broader interpretation of the Supreme Court’s decision in Students for Fair Admissions (SFFA) v. Harvard, which found race conscious admissions programs to be unlawful. OCR indicates that as a result of the Court’s decision, it will enforce civil rights statutes as prohibiting “race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.” 

The letter further indicates the Department will release additional legal guidance and will take “measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from [February 14].” 

The Bottom Line: On February 21, APLU sent a letter to the U.S. Department of Education underscoring implementation challenges for institutions given the ambiguities within the Dear Colleague letter and the enforcement timeline. In the letter, APLU requested that the Department provide additional information and clarity as to the nature and scope of the requirements for institutions with the specificity that will allow institutions to act in a meaningful way, specific citations to legal authority for claims and directives, and a standard timeline for action that takes into account the complexities of what is being asked. APLU further notes it believes engaging in the rulemaking process would lead to the best outcomes for all parties. 

ED Announces Remaining COVID Relief Funding Will Be Paid on Reimbursement Basis 
On February 19, ED announced that for any unspent higher education COVID relief funding, institutions must spend their own funding first, then request reimbursement. This is a change from the previous process in which ED paid the COVID relief funding first. APLU expects minimal impact to institutions of higher education given expenditure rates of the Higher Education Emergency Relief Fund, but has asked member institutions to share any impacts. 

President Trump Issues New Executive Actions 
New Executive Actions issued by President Trump include: 

• “Radical Transparency About Wasteful Spending”  
  This memorandum, issued on February 18^th, directs the heads of departments and agencies to publish the “complete details of every terminated program, cancelled contract, terminated grant, or any other discontinued obligation of Federal funds.” A related fact sheet was made available to the public on February 18. 

• “Keeping Education Accessible and Ending COVID-19 Vaccine Mandates in Schools”  
  This Executive Order prohibits schools, including institutions of higher education, receiving discretionary federal funds from requiring COVID-19 vaccines to attend any in-person education programs. It directs the Secretary of Education, in consultation with the Secretary of Health and Human Services, to outline a plan within 90 days for ending “coercive COVID-19 school mandates” to include a list of discretionary federal grants and contracts that are noncompliant and to outline each agency’s process for rescinding funds. A related fact sheet was made available to the public on February 14. 

APLU, AAU, and COGR Send Letter to White House on Disruptions to Federally Supported Research 
On February 18, APLU, AAU and COGR sent a letter to Assistant to the President for Science and Technology, Michael Kratsios, and White House Office of Management and Budget (OMB) Director, Russell Vought, to raise significant concerns about the unnecessary disruption and confusion caused by many agency actions taken in response to recently issued Executive Orders. The letter details the negative repercussions caused by disruptions to vital research and urges the administration to: 

• reopen lines of communication between federal agencies and the research community; 

• continue payments for research activities under existing awards grant terms and conditions and applicable regulations; 

• issue clear guidance about new grant submissions; 

• refrain from penalizing research proposals already submitted under the specifications stated in research solicitations issued prior to changes in administration priorities; 

• issue clear and transparent communications on programs allegedly implicated by Executive Orders; 

• The letter also expresses that the associations are “especially troubled by the recently imposed NIH policy to cap facilities and administrative (F&A) costs reimbursement at 15 percent,” while detailing the immense harms this policy would pose to life saving medical research.  

APLU Endorses Nomination of Michael Kratsios as OSTP Director 
Ahead of Tuesday’s confirmation hearing, APLU sent a letter to the Senate Commerce, Science, and Transportation Committee endorsing President Trump’s nomination of Michael Kratsios as Director of the Office of Science and Technology Policy (OSTP). Mr. Kratsios served as Deputy Assistant to the President and Deputy U.S. Chief Technology Officer in the first Trump administration where he led national strategic planning in artificial intelligence, quantum computing, and advanced manufacturing. It is APLU’s hope that Mr. Kratsios will serve as a vital bridge between the administration, federal research agencies, and the academic research community.