Over the course of the last year, the U.S. Congress has passed six bills allocating funds for response to the global Covid-19 pandemic. The total economic aid from these packages surpasses $5 trillion in federal funding to combat the coronavirus. Learn more about the eligibility and oversight measures currently in place for these bailout funds here.
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.
That’s why the National Whistleblower Center launched a campaign in March of 2020 to ensure transparency and accountability in the U.S. Covid-19 response. Our campaign centers on (1) protecting frontline workers, (2) safeguarding public health and patient safety, and (3) preventing fraudulent diversion of economic recovery funds.
Whistleblowers, who are critical to transparency and accountability efforts, will be crucial to achieving these aims – and the public agrees. As reflected in a September 2020 Marist poll sponsored by the Whistleblower News Network, Americans from both political parties view whistleblower protection as a critical component of any effort to increase transparency and accountability in government as well as the private sector.
The new Biden administration got off to a strong start by appointing whistleblower Eric Bright to the Coronavirus Task Force, providing hope to all whistleblowers that their honesty and courage will ultimately be recognized and rewarded. However, there is still significant work to be done to ensure protections for Covid-19 whistleblowers and federal spending accountability.
Preventing Fraudulent Diversion of Covid Relief Funds
At a time of national crisis, with millions of lives and livelihoods at stake, the U.S. government has a duty to ensure that the trillions of dollars authorized in coronavirus funding is sent to its intended recipients and spent in accordance with the law. Even before the pandemic, millions from a U.S. fund earmarked for public health emergencies were used to pay for unrelated projects, according to the findings of an HHS investigation into a whistleblower complaint.
And since the pandemic began, the National Center for Disaster Fraud has already received more than 76,000 tips concerning Covid-19 related fraud and the Department of Justice (DOJ) charged its first fraud case on March 25, 2020. As of October 15th, the DOJ reported it had:
- filed criminal charges in 33 cases across the country involving scam vaccines, treatments, or testing or price gouging in the sale of scarce medical supplies;
- initiated civil actions in 11 cases to enjoin fraudulent coronavirus schemes targeting consumers, including cases against defendants marketing ozone gas, silver-ion solution, and bleach-based solution as treatments; and
- charged 65 defendants in 50 separate cases to date that relate to the Paycheck Protection Program (PPP). The total intended loss to the PPP in those cases is more than $227 million.
Further transparency and accountability measures will be essential for continuing to combat this large-scale fraud. The Biden-Harris administration can ensure effective use of Covid-19 relief funds by developing a comprehensive strategy to combat waste, fraud and abuse, including:
- Launching a robust educational effort to alert potential whistleblowers of opportunities under the False Claims Act to file confidential complaints and to secure financial awards for helping prosecutors secure monetary sanctions against wrongdoers;
- Reversing the ill-advised 2018 Department of Justice guidance calling for arbitrary dismissals of whistleblower cases under the False Claims Act; and
- Supporting the amendments to strengthen the False Claims Act put forward by Senator Chuck Grassley (R-IA).
Additionally, the COVID-19 Whistleblower Protection Act, reintroduced in February 2021 in the 117th Congress, looks to provide protected avenues for whistleblowers to safely report wrongdoing regarding the misuse of funds. The National Whistleblower Center strongly supports this bill. As COVID-19 opens more doors to fraud, waste, and abuse, whistleblowers are critical to accountability – and they need our protection.
It is critical as we pass the year-mark for the pandemic that we ensure taxpayer dollars are going to protecting public health and restoring jobs and the economy, not waste, fraud, and abuse.
Protecting Frontline Workers
Transparency and accountability are essential to getting employers to take needed steps to protect frontline workers from Covid-19. In April 2020, the Washington Post reported that the Occupational Safety & Health Administration (OSHA) was quietly sitting on a backlog of thousands of complaints from private sector workers reporting failures by their employers to take necessary Covid-19 protection measures.
An August report by the Labor Department’s Office of Inspector General set forth a series of recommendations for OSHA to remedy the backlog, including beefing up staffing. To date, OSHA has not implemented most of these recommendations; nor has it imposed any Personal Protective Equipment (PPE) standards for Covid-19, pointing employers to PPE standards developed for flying objects, liquid chemicals and the like.
The Biden-Harris administration can go a long way to helping frontline workers threatened by Covid-19 by:
- Implementing the Inspector General’s recommendations for reforming OSHA, especially the call to provide the staffing needed to address whistleblower complaints;
- Writing rules at OSHA to protect workers from Covid-related threats to their health and safety; and
- Supporting legislation allowing whistleblowers to go to court when OSHA fails to act.
You can learn more about our work to reform OSHA to better protect front line workers here.
Safeguarding Patient Safety and Public Health
According to a National Employment Law Project paper, from March to August 2020, 1,744 whistleblowers reported retaliation to OSHA. And across the U.S., stories have emerged of workplace retaliation. In spring 2020, Los Angeles charge nurse, Jhonna Porter, was retaliated against for blowing the whistle on a lack of personal protective equipment (PPE) at the hospital she worked at while her hospital wing abruptly shifted to a COVID-19 wing without the nurses’ knowledge. She was suspended without pay, pending termination, before her story gained national prominence, prompting her reinstatement.
And in Florida, data scientist Rebekah Jones was asked by supervisors to alter state COVID-19 data in order to show a lessened impact of the virus and refused. She was retaliated against for coming forward with her information, experiencing harassment, isolation at work, and even police raids of her apartment.
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. Although private sector employees have some whistleblower protection if they report Covid-related threats to their own safety, public health and safety whistleblowers up until now have been forced to rely on an amalgam of laws of varying strengths. This loophole is particularly problematic at hospitals, nursing homes, and community health clinics, where frontline workers commonly witness employers taking dangerous shortcuts in pursuit of expanded profit.
Federal workers with evidence of Covid-related misconduct likewise require greater protection, especially considering the enormous responsibilities held by federal agencies for ensuring the safety of vaccines and therapeutics. Under the Whistleblower Protection Enhancement Act, workers who are retaliated against for raising concerns about threats to patient safety or public health must bring their cases to the Merit Systems Protection Board (MSPB). Unfortunately, the MSPB has not had a quorum since January 2017 and currently has a backlog of over 2,500 cases.
The Biden-Harris administration can ensure transparency and accountability for wrongdoing in connection with patient safety and public health by:
- Supporting legislation, modeled after the False Claims Act, that protects and rewards private-sector whistleblowers whose evidence of such wrongdoing helps to achieve successful prosecutions;
- Immediately putting forward nominations to the MSPB and securing confirmation by the Senate; and
- Supporting legislation allowing whistleblowers to go to court when the MSPB fails to act on their complaints.