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What is an IG and Why do IGs Matter to Whistleblowers and in the COVID-19 Response?

Posted  April 10, 2020

As the COVID-19 crisis continues, and the government rolls out massive spending programs and regulatory changes in response, there has been significant news about inspectors general.  Inspectors General – IGs – and the teams that work for them, often referred to as the Office of the Inspector General or OIG, play a critical role in preventing mismanagement, waste, fraud, and abuse in government programs.  Iowa Senator Charles Grassley this week released a statement emphasizing the importance of IGs, saying that they “provide a critical check on an otherwise unaccountable bureaucracy” and “provide nonpartisan recommendations.”

What work do IGs perform?

IGs are nonpartisan watchdogs charged with oversight of both government contractors and other government fund recipients, and oversight of government agencies themselves.  IGs detect and investigate wrongdoing, conducting both routine random audits, and responding to tips and investigation requests from their agency, other government branches or agencies, or the public.  OIG investigations and audits often result in criminal or civil enforcement actions, and OIGs regularly work with DOJ and U.S. Attorneys on litigation.  IGs may also conduct evaluations of government programs for the purpose of making policy recommendations.

Do whistleblowers work with IGs?

Whistleblowers regularly report to and work with OIGs in different government agencies. Whistleblowers and IGs ideally share a common interest in exposing wrongdoing and securing accountability, and should be natural allies.

Some statutes require government-employed whistleblowers to make reports to IGs in order to secure certain protection from retaliation.  For other whistleblowers, there are often additional avenues to raise concerns about fraud, waste, and abuse. Whistleblowers who report fraud to OIGs may also wish to consider whether they can use the qui tam provisions of the False Claims ActA whistleblower may pursue both avenues; only the False Claims Act, however, incentivizes whistleblowers by providing financial rewards.

How many IGs are there in the Federal Government?

There are a lot of federal IGs – nearly 80 – authorized by a range of different statutes, including the Inspector General Act of 1978.  For whistleblowers under the False Claims Act, the most familiar OIGs are probably the HHS OIG, and the DOD OIG.  There are also “special” OIGs charged with oversight roles for specific programs or government activities, such as the SIGTARP, charged with overseeing Troubled Asset Relief Program following the 2008 financial crisis, or the new “SIGPR,” the Special IG for the Pandemic Response, discussed below.

Who hires and fires IGs?

It depends on the law that created the particular office of the IG. Many IGs are presidentially-appointed, with Senate confirmation.  Because IGs function best when they are independent, there are usually laws governing grounds for termination of IGs, and preventing limits on their authority.

What role are IGs playing in the current COVID-19 crisis?

Numerous different OIGs will play critical oversight roles in the government’s response to the COVID-19 crisis.  Among the most important are HHS-OIG and the SIGPR/PRAC.

  • HHS-OIG. HHS-OIG oversees Medicare and Medicaid spending and programs, including compliance with the Anti-Kickback Statute and Stark Law, and also oversees other HHS functions such as the CDC, National Institutes of Health, and FDA.

HHS-OIG regularly updates its “Work Plan” in response to changing conditions, and has already added numerous investigation areas related to the COVID-19 crisis, such as audits of skilled nursing and long term care facilities regarding their emergency and infectious disease control preparedness.

In addition, HHS-OIG has issued important guidance on enforcement efforts and regulatory changes.  For example, in keeping with HHS “blanket waiver” policies in response to the crisis, HHS-OIG has said that it will “exercise its enforcement discretion not to impose administrative sanctions under the Federal Anti-Kickback Statute” in specified circumstances. In addition, the OIG has stated that it recognizes the burdens many in the healthcare system are facing, and has pledged to “minimize burdens on providers” – while still being dedicated to its mission.

Finally, HHS-OIG serves as an important source of information on the government and healthcare system response to COVID-19.  On April 3, 2020, HHS-OIG released a report, Hospital Experiences Responding to the COVID-19 Pandemic, documenting severe challenges faced by hospitals in securing testing supplies and personal protective equipment.

While the talk of “flexibility” and “minimizing burdens on providers” may set off internal alarm bells for those concerned with program compliance, HHS-OIG’s commitment to investigation and accountability remains.  Notably, they have already issued a report of their inspection of the Kirkland, Washington Life Care Center that became a Coronavirus hotspot, and reports are that they are discussing fines with the facility.

  • SIGPR and PRAC. In addition to a Congressional Oversight Commission, the Coronavirus Aid, Relief and Economic Security (CARES) Act created a both a Special Inspector General for Pandemic Recovery (“SIGPR”) and the Pandemic Response Accountability Committee (“PRAC”).  SIGPR is charged with overseeing a particular portion of CARES spending, namely the $500 billion to be distributed by the Treasury Department for business recovery.  President Trump has nominated Brian Miller to be the SIGPR; Miller’s appointment requires congressional approval.  PRAC’s mandate is far broader than SIGPR’s: PRAC is charged with overseeing all CARES spending, lending, and other outflows, as well as expenditures under any other COVID-related laws.  The PRAC is not one IG, but a committee of IGs from different agencies.  In a related article today, we discuss the role of these offices — and of whistleblowers — in overseeing the CARES Paycheck Protection Program.

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Tagged in: COVID-19, FCA Federal, Government Procurement Fraud, Healthcare Fraud, Importance of Whistleblowers,