The National Institutes of Health (NIH) on April 21, 2025, published a notice (the NIH Notice) updating the civil rights provisions of the NIH Grants Policy Statement and creating new requirements that federally funded research institutions must meet as a condition of receiving federal funding. The NIH Notice, in short, says that by accepting federal funding, the grant recipient (i.e., the institution receiving the funds) must certify that 1) it does not, and will not during the term of its award, operate any programs that advance or promote diversity, equity and inclusion (DEI), diversity, equity, inclusion and accessibility (DEIA), or discriminatory equity ideology in violation of federal law and 2) engage in a discriminatory-prohibited boycott, defined as refusal to do business with Israeli companies or companies doing business with or in Israel.
As we discussed in our previous blog post, it is unclear how or when the new requirements will be incorporated into the NIH Grants Policy Statement and what researchers are expected to do to ensure compliance. The NIH Notice states that new requirements will "supersede" existing civil rights provisions, but also that existing civil rights provisions will be updated to "incorporate" the new requirements. It is also unclear if the NIH Notice will be subject to judicial challenge and how any such challenges may be resolved.
Given the uncertainties and risks of getting it wrong – which include the loss or clawback of NIH funding, termination of federal assistance or even False Claims Act liability if a grant recipient certified that it was in compliance with these requirements when it was not, this blog post takes a closer look at what researchers and institutions should be thinking about as they submit new, supplemental or continuation applications to NIH.
DEI and DEIA Programs
The NIH Notice prohibits funding recipients from operating a program that advances DEI or DEIA, or otherwise "promoting ... discriminatory equity ideology in violation of federal anti-discrimination laws" – but the NIH Notice does not provide any guidance about which programs will be deemed to violate federal antidiscrimination laws.
In March 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ) issued joint guidance on the types of DEI activities they view as illegal, (the EEOC/DOJ DEI Program Guidance). Holland & Knight provides an in-depth analysis in the employment context. This EEOC/DOJ DEI Program Guidance is not binding on NIH but does provide insight, which may act as a guide for what NIH may consider to be permissible.
According to the EEOC/DOJ DEI Program Guidance, DEI programs may be unlawful if they involve a covered entity taking an employment action motivated – in whole or in part – by an employee's or applicant's race, sex or another protected characteristic. The EEOC/DOJ DEI Program Guidance also warns that the "unlawful use of quotas or balancing of the workforce by race, sex, or other protected traits" can violate Title VII. Employers instead should ensure that workers of all backgrounds are provided opportunity, experience and information necessary to perform well and that employees of all backgrounds have equal opportunities.
The NIH Notice appears to go well beyond the EEOC/DOJ DEI Program Guidance, because it is not narrowly tailored to address discrimination in employment or hiring practices. Rather, the NIH Notice appears to state that NIH may withdraw all funding to a grant recipient if NIH determines that the recipient operates any program that advances DEI/DEIA goals. The NIH Notice states: "NIH reserves the right to terminate financial assistance awards and recover all funds if recipients, during the term of this award, operate any program in violation of Federal anti-discriminatory laws or engage in a prohibited boycott." To ensure compliance with the DEI/DEIA provisions of the NIH Notice, researchers and research institutions should evaluate internal policies and procedures, as well as research programs, to identify anything that could potentially be viewed as unlawful discrimination.
Accessibility
The NIH Notice prohibits grant recipients from operating a program that advances DEIA. Historically, Section 504 of the Rehabilitation Act, referenced in the original NIH Grants Policy Statement civil rights provisions, prohibits organizations that receive federal financial assistance from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. In practice, many grant recipients have implemented programs specifically intended to make their facilities and institutions more accessible – by installing ramps and handicap-accessible bathroom stalls, adding signage in Braille and implementing technology to promote access to services for people who are hearing-impaired. It is not clear from the NIH Notice what NIH would consider to be a program that illegally promotes accessibility, but the NIH Notice does not amend or limit existing civil rights protections for disabled people under federal law. Absent further NIH guidance on this point, funding recipients should evaluate their compliance with Section 504 of the Rehabilitation Act to ensure that they are not excluding qualified individuals with disabilities from their programs and services.
Discriminatory Boycotts
The Notice prohibits recipients from refusing to do business with Israeli companies or companies doing business in or with Israel and specifically references "cutting commercial relations, or otherwise limiting commercial relations." Institutions should therefore assess whether any such censure or statement has been made by its governing body or board of directors and identify and evaluate any relevant vendor relationships to confirm compliance with this requirement. The business rationale for any previous or prospective changes to those relationships should be documented. Compliance with this requirement may require input from a broader range of institutional stakeholders as well as counsel.
Practical Steps for Implementation
Despite the ambiguities of the Notice, there are practical steps that federally funded researchers and institutions can take immediately to avoid jeopardizing existing or future research progress:
- Communication with Subrecipients. Since NIH Grants Policy Statement obligations apply to subrecipients of federal funding, institutions should review existing documentation to ensure that appropriate contractual flow-down provisions are in place. Documented informal communications with subrecipients regarding new requirements or even updated certifications of compliance could be useful for funding recipients to demonstrate diligence in meeting new requirements.
- Training. Institutional researchers and support staff should be trained on NIH Notice requirements, and that training should be documented.
- Proposal Review. Institutions may want to expand the review of grant applications and programmatic materials by adding compliance staff, counsel and a broader range of institutional officials to ensure that such materials reflect consistency with NIH Notice requirements. This is especially important given the speed with which requirements are evolving.
- Monitoring for New Developments. Recipients must remain vigilant for updates, including litigation, court orders, guidance from NIH or other developments that may rapidly change the compliance posture of the organization.
- Flexibility and Adaptability. The only certainty is uncertainty, so institutions must be prepared to pivot. New requirements may include certifications or attestations of compliance or updates to existing certifications, such as HHS Form 690, or reversion to old requirements as a result of litigation.
The ability to quickly address changing administrative and/or substantive requirements will be crucial to ensuring that critical research is able to continue uninterrupted. Holland & Knight attorneys continue to monitor these issues and are available to assist funding recipients as they navigate evolving requirements.
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