Since early March of 2020, Congress passed, and President Trump signed, four bills allocating for response to the coronavirus crisis. The total economic aid from these packages nears $2.7 trillion in federal funding to combat the coronavirus.
The first bill has allocated $8.3 billion to fight and treat the virus; the following bill, the Families First Coronavirus Response Act, then allocated $192 billion for sick leave, expansion of food assistance and unemployment benefits and other measures. The largest of the bills, and the largest amount of federal funding contained in one bill, the CARES Act, followed, allocating $2 trillion in relief for private businesses, public health, as well as to individuals in order to address the coronavirus crisis. The most recent emergency coronavirus relief bill made into law, the Paycheck Protection Program and Health Care Enhancement Act, aims to alleviate the economic burden of the pandemic for America’s workers and small businesses with a total of $484 billion.
The speed with which this gargantuan federal spending has been delivered is unprecedented, and it creates enormous opportunities for waste, fraud and abuse. Our long experience with national emergencies teaches us that some will attempt to profit from others’ misfortune and divert large sums away from the coronavirus response. At a time of national crisis, with millions of lives and livelihoods at stake, this Administration has a duty to ensure coronavirus funding is sent to its intended recipients and spent in accordance with the law.
While the White House has set up a coronavirus task force, led by Vice President Pence, to coordinate the Administration’s efforts, there has been no indication to date that this task force’s mandate includes ensuring that those charged with implementing the massive spending bills fulfill their responsibilities under the law.
That’s why the National Whistleblower Center (NWC) has launched its Coronavirus Accountability Campaign. Ensuring accountability in federal coronavirus spending is critical to saving lives and minimizing damage to jobs and the economy. Our campaign has four key elements:
- Ensure accountability provisions, including whistleblower protections and incentives, are included in future coronavirus spending bills;
- Persuade the Trump Administration to monitor coronavirus fund spending to ensure it is spent in accordance with the law;
- Enact urgently needed reforms to the Occupational Safety and Health Act to keep front line workers safe in the face of Covid-19.
- Provide whistleblowers with the information and tools they need to report fraud, including access to qualified legal counsel.
To accomplish this, we’ll be working with partners in government, the private sector, academia and the nonprofit community. It’s going to take all of us to prevent waste, fraud and abuse and protect the most vulnerable during this time.
Coronavirus Spending Bills
With the passage of the Paycheck Protection Program and Health Care Enhancement Act, the most recent of the coronavirus relief packages, bringing the total to nearly $2.7 trillion in federal coronavirus response spending, an unprecedented amount of federal funding has been poured into the economy aimed at alleviating economic stress for businesses, families, healthcare, and individuals stemming from the coronavirus crisis.
It is critical that as we enter a new phase of the pandemic that future bills incorporate transparency and accountability measures, including whistleblower protections and incentives. Taxpayer dollars should be going to protecting public health and restoring jobs and the economy, not waste, fraud, and abuse.
There are already some measures in place to ensure that this occurs. As part of the CARES Act, Congress created a new position: the Special Inspector General for Pandemic Recovery (SIGPR). The SIGPR is a critical oversight role, as the office will have responsibility for investigating and auditing the new financial assistance programs developed in response to coronavirus. However, the SIGPR currently is hampered by a lack of expedited hiring authority necessary to set up a government office quickly. That’s why a bipartisan group of Senators introduced legislation to remedy this issue. Take action in support of expedited authority here.
All federal funding is also subject to one of the best whistleblower laws, the False Claims Act, which notably was first signed into law in 1863 in response to corruption in federal procurement during another national crisis, the Civil War. The False Claims Act will again be essential to keeping the most vulnerable safe as the U.S. grapples with the threat of coronavirus. There are also a range of other federal and state laws that offer varying degrees of protections to would-be whistleblowers.
However, specific public health and safety whistleblower protections are still needed to complement our existing system. We’re already seeing brave whistleblowers coming forward from the Department of Health and Human Services (HHS) to raise alarms about the handling of the crisis. Their stories highlight a major loophole in federal protections: thus far, Congress has failed to enact a comprehensive whistleblower law covering issues related to public health and safety. Public health and safety whistleblowers up until now have been forced to rely on an amalgam of laws of varying strengths.
Now is the time to correct this. As the coronavirus crisis continues, those who wish to report on public health issues and spending misconduct need full protections under law. Future spending bills offer the opportunity to see that realized.
Executive Branch Advocacy
The current Administration is responsible for overseeing the massive federal efforts to combat coronavirus. They have a critical role to play in ensuring that coronavirus funds are spent in accordance with the law.
That’s why NWC sent a letter to the Attorney General on March 20th calling upon the Trump Administration to address the need for transparency and accountability in federal coronavirus spending. Whistleblowers offer an obvious solution.
The Administration needs to ensure that whistleblower claims are fully investigated, and that swift prosecution occurs for those engaged in misconduct exposed by whistleblowers. In this interest, the Department of Justice must take the lead on transparency and accountability. There are five key ways they can do so:
1. Protect whistleblowers’ right to a hearing under the False Claims Act
In both a January 2018 memo and a recently filed brief by the Solicitor General, the Department of Justice (DOJ) has argued that it has discretion to dismiss any qui tam claims without a hearing for the whistleblower. This is directly against Congressional intent and will only discourage other whistleblowers from coming forward and hinder extremely successful legislation. Tell the DOJ to reverse this guidance by taking action here.
2. Establish and lead a multi-agency Task Force to Combat Coronavirus-Related Fraud, focused on transparency and accountability for coronavirus spending,
In an initial letter on March 16th to Attorney General William Barr, NWC requested the establishment of a Task Force to Combat Coronavirus-Related Fraud, to be led by the U.S. Department of Justice. This Task Force would take responsibility for, among other things, swift and effective prosecution of “qui tam” whistleblower cases under the False Claims Act, which have a long and successful track record of holding fraudsters accountable. Of the $3 billion in monetary sanctions recovered by the federal government under the False Claims Act in FY 2019, $2.6 billion was recovered from companies found to be in engaged in health care fraud.
3. Abolish the Federal of Bureau of Investigation’s arbitrary new limits on Freedom of Information Act (FOIA) requests and develop an Administration-wide policy focused on expediting FOIA responses regarding inquiries into coronavirus spending
NWC is calling upon the Administration to ensure full transparency in all its actions implementing the coronavirus spending bills. This includes ensuring timely responses to Freedom of Information (FOIA) requests related to coronavirus spending. The Government Accountability Office recently found that the backlog on FOIA responses at federal agencies increased by more than 80 percent between 2012 and 2018.
The Trump Administration must take responsibility for this clearing up this backlog, with a particular focus on keeping the American people apprised of its coronavirus work. The FBI must also abolish its new limits on FOIA requests, which bar any electronic requests and require ROIA requests to be sent by standard mail.
4. Prioritize False Claims Act enforcement in cases involving coronavirus-related procurement fraud, with special attention to qui tam actions filed by whistleblowers
It can take over one year for the DOJ to investigate a False Claims Act case. Given the current crisis, the investigation of coronavirus cases should take priority over other cases, and if a case has merit, the case should be promptly prosecuted, and any violator should be held accountable to the fullest extent of the law, both civilly and criminally.
5. Enlist the Association of Inspectors General and whistleblower protection offices in the federal government to launch an Administration-wide education and outreach effort to encourage and support confidential whistleblower reporting of waste, fraud, and abuse involving coronavirus-related spending.
Where the Administration fails to provide full transparency, NWC will be assisting whistleblowers in coming forward with evidence of breakdowns in the coronavirus response by both the government as well as the private sector recipients of federal funding.
We will educate those with evidence of waste, fraud and abuse in connection with coronavirus spending on how to blow the whistle and hold the wrongdoers accountable. NWC’s website will be regularly updated with tips for potential coronavirus whistleblowers, including information about laws protecting whistleblowers, methods of reporting waste, fraud and abuse, and how to secure assistance from qualified counsel.
We will also provide legal assistance to coronavirus whistleblowers through our Legal Assistance Program. NWC works with an independent public interest law firm, the National Whistleblower Legal Defense and Education Fund, which provides a secure intake form that allows whistleblowers to submit basic information about their case on a confidential basis. Once submitted, the intake form will be reviewed by a highly qualified whistleblower attorney. You can learn more about the program here.
The Covid-19 coronavirus represents an enormous challenge to the health, safety and wellbeing of U.S. citizens and people around the globe. We believe that this challenge can be met, and harm can be minimized, if whistleblowers and their advocates work together to ensure that coronavirus response funds are spent for their intended purposes.