Daniel C. Fundakowski, Senior Counsel in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the firm’s Washington, DC, office, was quoted in Financier Worldwide, in “Investigation, Interpretation and Enforcement: FCA in the COVID-19 Era,” by Fraser Tennant.

Following is an excerpt:

The False Claims Act (FCA) is the federal government’s primary litigation tool in combatting fraud against the US, typically perpetrated by federal contractors that defraud governmental programmes. Its efficacy is substantiated by the billions of dollars that have been clawed back from miscreants. …

Pandemic impacts

The introduction of coronavirus (COVID-19) relief programmes such as the $2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act, as well as $1.9 trillion in more recent loans and stimulus, has inevitably led to a surge in people and entities looking to exploit the pandemic.

Moreover, due to the sweeping nature of the pandemic, much of this exploitation goes beyond industries typically associated with the FCA, such as healthcare, defence and financial services, to encompass many others – all potentially subject to investigations and prosecutions over fraudulently receiving funds and using them for improper purposes.

“We are seeing heightened enforcement activity in connection with inaccurate certifications or representations, non-compliance with terms and conditions, and the retention of relief funds by the unentitled,” says Daniel C. Fundakowski, senior counsel at Epstein Becker & Green. “Indeed, the DOJ recently announced the first civil settlement resolving allegations of fraud relating to CARES Act funds. It also stated that pandemic-related fraud will remain a priority for years to come.”…

Deliberation and documentation

Given that pandemic-related funding decisions have been made swiftly and generally without diligent deliberation or adequate documentation, persons and entities securing funds need robust compliance, self-evaluation and corrective action strategies to avoid contemporaneous or retrospective accusations of financial impropriety.

“The importance of thorough documentation cannot be overstated,” affirms Mr Fundakowski. “Steps taken to comply with government requirements should all be memorialised in case there are later questions. Regular audits should also be conducted specific to these funds to ensure deployment for an approved purpose. Moreover, any and all complaints or allegations of wrongdoing should be investigated, elevated as appropriate, properly addressed, and, of course, documented.”

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