April 28, 2020
Until last week, most members of the general public had never heard of Dr. Richard Bright. Since then, however, a public outcry has arisen after the U.S. Department of Health and Human Services (HHS) abruptly removed him from a key position fighting coronavirus. Dr. Bright intends to file a whistleblower complaint and is demanding an HHS inspector general investigation.
Dr. Bright had been the Director of the Biomedical Advanced Research and Development Authority (BARDA). BARDA is responsible for distributing hundreds of millions, if not billions, of federal dollars to entities developing vaccines and therapies for infectious disease outbreaks. As such, it is central to the federal response to the coronavirus pandemic. In addition to leading BARDA, Dr. Bright was Deputy Assistant Secretary for Preparedness and Response at HHS. Last Tuesday, Dr. Bright was suddenly removed from both positions and transferred to a lesser role within HHS.
Dr. Bright has not accepted his fate quietly. In a statement the following day, he attributed his demotion to retaliation. He asserted that HHS political appointees had ousted him because he insisted that funds be spent on “safe and scientifically vetted” proposals, not “drugs, vaccines and other technologies that lack scientific merit.”
I am speaking out because to combat this deadly virus, science—not politics or cronyism—has to lead the way.
Specifically, Dr. Bright cited his resistance to efforts to promote anti-malarial drugs such as hydroxychloroquine as treatments for COVID-19. President Trump has repeatedly touted these drugs as potential treatments, despite a lack of scientific evidence to support their effectiveness.
HHS’s removal of one of the nation’s leaders in the coronavirus fight has caused considerable consternation. For example, Senator Edward Markey has called on the HHS Office of Inspector General (OIG) to open an investigation. In doing so, Senator Markey stated, “As the nation battles the coronavirus pandemic, science, not politics, must be our lodestar.”
In addition, Dr. Bright himself has called on the HHS Inspector General (IG) to investigate his claims. In particular, he asked it to examine “the manner in which this Administration has politicized the work of BARDA and has pressured me and other conscientious scientists to fund companies with political connections as well as efforts that lack scientific merit.” He added: “Rushing blindly towards unproven drugs can be disastrous and result in countless more deaths. Science, in service to the health and safety of the American people, must always trump politics.” Dr. Bright’s attorneys have said that they will file a whistleblower complaint with HHS’s OIG.
So what exactly is the HHS IG’s role with respect to an agency whistleblower complaint such as this? In short, the IG’s job is to investigate the allegations and report the results to the agency and Congress. In appropriate instances, an IG may refer individuals to the Attorney General for possible criminal prosecution. Like all federal agency IGs, the HHS IG is charged by Congress with safeguarding the public fisc from fraud, waste, and abuse of programs run or funded by their agencies. We have previously written about this critical function. Just as importantly, IGs are to root out fraud and corruption within their agencies and protect employees acting as whistleblowers.
To that end, federal law requires IGs to have a Whistleblower Protection Coordinator. The Coordinator’s role is to educate agency employees about how to make a protected disclosure of alleged wrongdoing as well as their rights and remedies against retaliation for making such disclosures. Furthermore, the law governing whistleblower complaints by an agency employee provides:
(a) The Inspector General may receive and investigate complaints or information from an employee of the establishment concerning the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to the public health and safety.
(b) The Inspector General shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspector General determines such disclosure is unavoidable during the course of the investigation.
(c) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or threaten to take any action against any employee as a reprisal for making a complaint or disclosing information to an Inspector General, unless the complaint was made or the information disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.
As we’ve written before, Congress established IGs as independent and nonpartisan units within their agencies. They are watchdogs on behalf of taxpayers. While IGs often investigate outside companies or individuals for defrauding an agency program, Congress also charged them with protecting the agency’s mission from internal threats due to fraud, corruption, and political influence. Sometimes, as in the case of cronyism, these two missions may overlap.
The Inspector General Act of 1978 confers broad investigatory powers upon IGs. IGs are to investigate a whistleblower’s complaint without interference from political appointees or other members of the agency establishment. Investigative tools available to IGs include obtaining documents and testimony from inside and outside the agency. The IG must protect the whistleblower’s identity from the public and from Congress unless the whistleblower consents to disclosure. (In Dr. Bright’s case, he revealed his identity himself.) Also, the IG must “report expeditiously to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law.” See 5a U.S.C. § 4(d).
Federal law requires IGs to report the results of their investigations to Congress in semi-annual reports. These reports become public 60 days later. Among other things, the semi-annual reports must include:
In certain situations, the IG must report immediately to Congress without waiting for the semi-annual report. See 5a U.S.C. § 5(d):
Each Inspector General shall report immediately to the head of the establishment involved whenever the Inspector General becomes aware of particularly serious or flagrant problems, abuses, or deficiencies relating to the administration of programs and operations of such establishment. The head of the establishment shall transmit any such report to the appropriate committees or subcommittees of Congress within seven calendar days, together with a report by the head of the establishment containing any comments such head deems appropriate.
Our nation and the global community are fighting a frightening pandemic. Without explanation, HHS demoted a key professional in the middle of that effort. Dr. Bright has said that politics are influencing BARDA’s funding decisions involving the coronavirus fight. He also asserts that HHS retaliated against him for insisting on science-based decisions and resisting cronyism. We are counting on the HHS IG to carry out the job that Congress mandated in investigating those serious allegations.
To protect taxpayers’ money and our public health in this crisis, we need agency whistleblowers to come forward. When they do, we need independent IGs to protect them and investigate their allegations without political interference. Our lives and fortunes depend on it.