[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
VA WHISTLEBLOWERS: EXPOSING INADEQUATE
SERVICE PROVIDED TO VETERANS AND ENSURING APPROPRIATE ACCOUNTABILITY
=======================================================================
HEARING
before the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, JULY 8, 2014
__________
Serial No. 113-78
__________
Printed for the use of the Committee on Veterans' Affairs
Available via the World Wide Web: http://www.fdsys.gov
U.S. GOVERNMENT PUBLISHING OFFICE
89-377 WASHINGTON : 2015
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Florida, Chairman
DOUG LAMBORN, Colorado MICHAEL H. MICHAUD, Maine, Ranking
GUS M. BILIRAKIS, Florida, Vice- Minority Member
Chairman CORRINE BROWN, Florida
DAVID P. ROE, Tennessee MARK TAKANO, California
BILL FLORES, Texas JULIA BROWNLEY, California
JEFF DENHAM, California DINA TITUS, Nevada
JON RUNYAN, New Jersey ANN KIRKPATRICK, Arizona
DAN BENISHEK, Michigan RAUL RUIZ, California
TIM HUELSKAMP, Kansas GLORIA NEGRETE McLEOD, California
MIKE COFFMAN, Colorado ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio BETO O'ROURKE, Texas
PAUL COOK, California TIMOTHY J. WALZ, Minnesota
JACKIE WALORSKI, Indiana
DAVID JOLLY, Florida
Jon Towers, Staff Director
Nancy Dolan, Democratic Staff Director
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
----------
Page
Tuesday, July 8, 2014
VA Whistleblowers: Exposing Inadequate Service Provided to
Veterans and Ensuring Appropriate Accountability............... 1
OPENING STATEMENTS
Hon. Jeff Miller, Chairman....................................... 1
Prepared Statement........................................... 84
Hon. Mike Michaud, Ranking Minority Member....................... 3
Prepared Statement........................................... 86
Hon. Corrine Brown...............................................
Prepared Statement........................................... 87
Hon. Gloria Negrete McLeod.......................................
Prepared Statement........................................... 88
WITNESSES
Jose Mathews, M.D., Former Chief of Psychiatry, St. Louis VA
Health Care System............................................. 5
Prepared Statement........................................... 88
Christian Head, M.D., Associate Director Chief of Staff Legal and
Quality Assurance Greater Los Angeles VA Health Care System.... 8
Prepared Statement........................................... 97
Katherine Mitchell, M.D., Medical Director, Iraq and Afghanistan
Post-Deployment Center Phoenix VA Health Care System........... 10
Prepared Statement........................................... 113
Mr. Scott Davis, Program Specialist, VA National Health
Eligibility Center............................................. 11
Prepared Statement........................................... 140
The Hon. Carolyn Lerner, Special Counsel, Office of Special
Counsel........................................................ 53
Prepared Statement........................................... 142
Accompanied by:
Mr. Eric Bachman, Deputy Special Counsel for Litigation and
Legal Affairs, Office of Special Counsel
James Tuchschmidt, M.D., Acting Principal Deputy Under Secretary
for Health, Department of Veterans Affairs..................... 54
Prepared Statement........................................... 149
Accompanied by:
Edward C. Huycke, M.D., Deputy Medical Inspector for
National Assessment, Office of the Medical Inspector,
Department of Veterans Affairs
MATERIALS SUBMITTED FOR THE RECORD
Letter to Hon. Miller From DVA................................... 152
Letter to AFGE From DVA Inspector General........................ 154
Letter to President Obama From Hon. Carolyn Lerner............... 157
VA WHISTLEBLOWERS: EXPOSING INADEQUATE SERVICE PROVIDED TO VETERANS AND
ENSURING APPROPRIATE ACCOUNTABILITY
Tuesday, July 8, 2014
U.S. House of Representatives,
Committee on Veterans' Affairs,
Washington, D.C.
The committee met, pursuant to notice, at 7:33 p.m., in
Room 334, Cannon House Office Building, Hon. Jeff Miller
[chairman of the committee] presiding.
Present: Representatives Miller, Lamborn, Bilirakis, Roe,
Flores, Runyan, Benishek, Huelskamp, Coffman, Wenstrup,
Walorski, Jolly, Michaud, Takano, Brownley, Titus, Kirkpatrick,
Ruiz, Negrete McLeod, Kuster, and O'Rourke.
Also present: Representative Price.
OPENING STATEMENT OF CHAIRMAN JEFF MILLER
The Chairman. Good evening, everybody. This hearing will
come to order. I want to welcome everybody to tonight's hearing
entitled ``VA Whistleblowers: Exposing Inadequate Service
Provided to Veterans and Ensuring Appropriate Accountability.''
I would also like to ask unanimous consent that Representative
Tom Price, from the great State of Georgia, be allowed to join
us here on the dais and participate in tonight's hearing.
Without objection, so ordered. Oop, I think I heard an
objection.
Tonight we'll hear from a representative sample of the
hundreds of whistleblowers that have contacted our committee,
seeking to change the VA to improve patient safety and better
serve veterans who have served our great Nation. We'll also
hear from the Office of Special Counsel regarding its work
protecting VA whistleblowers and the vital information that
they provide. Representatives of VA will also be here to answer
for the Department's reprisals against whistleblowers and its
continuing failure to abide by its legal obligation to protect
employee rights to report waste, fraud, and abuse and
mismanagement to the Inspector General, to the Counsel, to
Congress, and to this committee.
It's important to emphasize that the national scandal
regarding data manipulation of appointment scheduling did not
spring forward out of thin air at the Department of Veterans
Affairs. Deceptive performance measures that serve as window
dressing for automatic SES bonuses have been part of the
organizational cesspool at the Department for many, many years.
Instead of being a customer-driven Department dedicated to
veterans, the focus instead has been on serving the interests
of the senior managers in charge. The manipulation of data to
gain performance goals is a widespread cancer within the VA. We
have often heard that VA is a data-rich environment, but when
data is exposed as vulnerable to manipulation it cannot be data
that is trusted.
Until recently, VA would continue to trot out the tired
canard that patient satisfaction exceeds the private sector.
That may be true at a few select VA centers. However, as our
colleague Mr. O'Rourke demonstrated through local polling, such
results have been over generalized. Moreover, during the course
of the past year this committee has held a series of hearings
showing a pattern at VA of preventable patient deaths across
the country, from Pittsburgh to Augusta, to Columbia, to
Phoenix. VA's satisfaction results are refuted by these tragic
outcomes.
In every one of these locations whistleblowers played a
vital role in exposing these patient deaths at the Department.
Whistleblowers serve the essential function of providing a
reality check on what is actually going on at the Department.
At great risk to themselves and their families, whistleblowers
dare to speak truth to power and buck the system in VA designed
to crush dissent and thereby alter the truth.
Tonight we're fortunate to have three distinguished
physicians testify with regard to their experiences in the VA.
We'll also hear from a conscientious program manager in VA's
National Health Eligibility Center who will show that the
disease of data manipulation may have spread to the initial
eligibility determinations for medical benefits. None of these
whistleblowers lost sight of the essential mission of the VA--
that mission to serve veterans. They understand that people are
not inputs and outputs on a central office spreadsheet. They
understand that metrics and measurements mean nothing without
personal responsibility. Unlike their supervisors, these
whistleblowers have put the interests of veterans before their
very own interests.
Unfortunately, what all of these whistleblowers also have
in common is the fear of reprisal by the Department. They will
speak of the many different retaliatory tactics used by VA to
keep employees in line. Rather than pushing whistleblowers out,
it is time that VA embraces their integrity and recommits
itself to accomplishing the promise of providing high quality
health care to America's veterans.
In order to make sure there is follow through at VA, I have
asked my staff to develop legislation to improve whistleblower
protections for VA employees, and I invite all the members of
this committee to work with us towards the end.
With that, I now yield to my good friend and ranking
member, Mr. Michaud, for any opening remarks that he may have.
[The prepared statement of Chairman Jeff Miller appears in
the Appendix]
OPENING STATEMENT OF MIKE MICHAUD, RANKING MINORITY MEMBER
Mr. Michaud. Thank you very much, Mr. Chairman.
This committee has held many hearings over the last years
on problems with access to VA health care. At each of these
hearings, problems were disclosed and the VA promised to
improve, but little has changed. VA is widely known to have a
culture of denying problems and not listening to feedback, be
it from Congress, veterans, or its own employees.
The Department of Veterans Administration has had a
reputation as being intolerant of whistleblowers. So far in
this fiscal year, nearly half of the matters transmitted to
agency heads by the Office of Special Counsel, 7 out of 15
involved the VA. According to the OSC, it currently has 67
active investigations into retaliation complaints from VA
employees and has received 25 new whistleblower retaliation
cases from VA employees since June 1 of 2014.
A recent New York Times article stated that within the VA
there was a ``culture of silence and intimidation,'' end of
quote. Acting Secretary Gibson recently stated that he was
deeply disappointed, not only in the substantiation of
allegations raised by the whistleblowers, but also in the
failures within the Department to take whistleblowers'
complaints seriously.
Within VHA, the problem of intimidation and retaliation may
be magnified by what some consider a protective culture of the
medical profession. It is often thought to be against the code
to point out colleagues' mistakes or where a nurse or attendant
is told it is not appropriate to question a physician or
surgeon. The natural tendency is to close ranks, to deny that
problems exist or mistakes were made.
So after we listen to the testimony before us this evening
from the whistleblowers, the Office of Special Counsel, and the
VA, will anything change after we hear what the whistleblowers
have to say, and how do we fix this culture and encourage all
VA employees to step forward to identify problems and work to
address those problems?
Changing a culture is not easy. It cannot be done
legislatively and it cannot be done by throwing additional
resources at it. Talk is cheap. Real solutions are hard to
find. It is clear to me that the VA as it is structured today
is fundamentally incapable of making real changes in the
culture.
I note that Acting Secretary Gibson announced today that he
was taking steps to restructure the Office of Medical Inspector
by creating a, quote, ``strong internal audit function which
will ensure issues of the quality care and patient safety
remains at the forefront,'' end of quote. This is an
improvement, but it raises additional questions regarding how
these restructures will better enable OMI to undertake
investigations resulting from whistleblowers' complaints
forwarded by the OSC, or how will it also have the authority to
ensure that medical actions will be taken to the appropriate
components of the VA?
Time and time again, as the June letter from OSC
demonstrates, the VA found fault, but determined that these
grave errors did not affect the health and safety of veterans.
Anyone reading the specifics of any of these cases will find
that this harmless error conclusion, as stated by the OSC, to
be a serious disservice to the veterans who received inadequate
patient care for years. I agree that the OSC June 23 letter,
and it quotes, ``This approach has prevented the VA from
acknowledging the severity of the systematic problems and from
taking the necessary steps to provide quality care to
veterans,'' end of quote.
We all seem to have some goals this evening. We all want
the VA employees to feel comfortable raising problems and
having them addressed without fear that raising their voices
will mean the end of their careers. The VA has stated that it
wants to make fundamental changes in its culture so that the
workforce intimidation and retaliation is unacceptable. Talk is
cheap. Real change is difficult.
I would propose that the very first order of business at
the VA is to take accountability seriously. If any VA employee
is shown to have intimidated or retaliated against another VA
employee, then that employee should be fired. The VA should
have zero tolerance for policies that would harm whistleblowers
and intimidate whistleblowers or retaliate against
whistleblowers. As I see it, effective leadership and real
accountability is the only way to begin the process of
institutional changes, and I hope tonight is the beginning of
that change.
And with that, Mr. Chairman, I yield back the balance of my
time.
The Chairman. Thank you very much to the ranking member.
[The prepared statement of Hon. Mike Michaud, appears in
the Appendix]
The Chairman. Thank you very much to the Ranking Member. I
would ask that all members would waive their opening
statements, as is the custom of this committee.
Thanks to the witnesses that are here at the witness table
tonight. Our first panel that we're going to hear from is Dr.
Jose Mathews, former Chief of Psychiatry at the St. Louis VA
Health Care System; Dr. Christian Head, Associate Director,
Chief of Staff, Legal and Quality Assurance, at the Greater Los
Angeles VA Health Care System; Dr. Katherine Mitchell, Medical
Director for the Iraq and Afghanistan Post-Deployment Center at
the Phoenix VA Health Care System.
And at this time I'd like to introduce our colleague, Dr.
Price, to briefly introduce his constituent, who will be the
fourth witness on the panel this evening.
Mr. Price. Thank you, Mr. Chairman. I want to thank you and
the ranking member for allowing me to offer this introduction.
This is a remarkably important topic, and I commend the
committee for the work that you've done.
As a physician, I worked at the VA hospital in Atlanta, as
a matter of fact, for a number of years during my training, and
I know how important it is to have honest and real information
for our veterans to honor their service, which is why I am so
very pleased to offer Scott Davis, Mr. Davis, who will be on
the panel today. He is a resident of my district. He is a
graduate of Morehouse College. His father served in Vietnam.
Mr. Davis is a program specialist at the VA's National
Health Eligibility Center in Atlanta. He's been in contact with
my office for a number of months outlining his concerns. He's
come forward with the allegations and concerns that he has in a
very brave and courageous manner. He's put his career and
reputation on the line, and I have no doubt that his testimony
tonight will help shine a light on the situation at hand. We
must know the facts on the ground in full before we can truly
begin to fix the untenable situation at the VA.
So I welcome Mr. Davis, and I thank you for allowing me to
join you for this introduction.
The Chairman. Thank you very much, Dr. Price. We appreciate
you joining us here this evening.
I appreciate the testimony of the witnesses today and look
forward to working with all of you to find a solution for our
veterans.
I would ask the witnesses if you would please rise. Raise
your right hand.
[Witnesses sworn.]
The Chairman. Thank you. Please be seated. All of your
complete written statements will be entered into the record.
And, Dr. Mathews, you are now recognized for 5 minutes.
STATEMENT OF JOSE MATHEWS, M.D.
Dr. Mathews. Honorable Chairman and distinguished members
of the committee, I am honored to appear before you today to
speak about my experiences while serving in the capacity as the
Chief of Psychiatry with the Department of Veterans Affairs in
St. Louis, Missouri, and in the capacity of the detail when I
was removed from this position. I just want to very briefly
outline the goals I had when I took this position as the Chief
of Psychiatry, leaving my full-time faculty position at
Washington University.
I had very simply wanted to create the very best care
possible with the resources I had. And very soon I realized
that the metrics I had, that the VA was putting out, was not
reflecting what I was actually seeing. I had made it a point
that I'd review every veteran complaint, and the majority of
the veteran complaints I had its had to do with their inability
to obtain care at a reasonable time, the long wait times,
having difficulty even contacting the clinic to schedule an
appointment.
So I started out with a very simple question as to how busy
are we really at the outpatient clinic. And the answer I got
was not very good. I got the answer that I verified that the
psychiatrists were only spending approximately 3.5 hours in
direct patient care. I could not account for the rest of their
time. I verified this. I put this data transparently as
prospective data where any psychiatrist could challenge me and
ask me question whether that was accurate or not, and I did not
get one valid question.
So I knew that the data was accurate, I discussed this with
the Chief of Staff, and I wanted to change this. There were two
things that I wanted changed. One was that the veteran has easy
access to care, timely access to care. And the second was that
no veteran would be turned away if they come to the clinic. I
had a very sad veteran complaint about a disabled veteran who
had requested his friend to drive because he does not drive. He
drove approximately an hour and a half to come to the clinic.
He had two requests. He wanted to see his provider earlier
because he was not doing well and he wanted his medications
refilled.
Unfortunately, that veteran had neither of these requests
met. He was sent away with another appointment 48 days later,
and his medications were not refilled. And just before this
meeting I checked, and that veteran, unfortunately, is lost to
follow-up, has not come back to the clinic since last May. And
his description of that event includes how disappointed and how
upset he is at the VA for not providing him care.
So that was the context of how I started out. I discovered
that the physician time was not being utilized properly. There
was long wait times. And one of the metrics that's very
important is, especially in mental health, is engagement and
care or the dropout rate, and what I found was there were 60
percent of the veterans were not coming back for their visits
in the outpatient setting. So there was 60 percent attrition
rate.
So there were only four pieces of information that I needed
to provide very good care. One was the wait time to care. The
second was the utilization of expertise or what amount of time
does a physician actually expend in direct patient care. The
third was the retention in care, how many veterans actually
follow up with care or dropping out of care. And the fourth
metric, that was not existent, is the veteran's satisfaction
with care.
Like Chairman Miller talked about these surveys not being
complete and may not be reflective of all places, I wanted the
survey to be a complete set. So I talked to some donors who I
knew from Washington University, and they pledged $60,000 over
2 years to institute a real time veteran satisfaction survey.
So I had the contract, the educational contract for iPads, I
had logged in people to program valid questionnaires in it, and
my intent was that while a veteran is waiting in the waiting
area to be seen would be able to complete this questionnaire
using touch screens, which would be automatically compiled, and
I would have information on whether a particular clinic or a
particular healthcare professional I need to focus on.
So this last bit was very concerning to the staff, and
shortly after I made these disclosures, including two avoidable
deaths, that I wanted root cause analysis on and an inpatient
suicide attempt while the joint commission was reviewing our
hospital, which was completely covered up, and I did not go
along with that. So very shortly I was put on detail. I was
told that there would be an administrative investigation and
that I was put to compensation and pension, doing compensation
and pension evaluations.
Now, I took this job, also it was dealing with veterans,
I'd filed the complaint with OSC, and while they were
processing my complaints I took this very seriously, to
evaluate the veterans for whether they had compensate mental
disorders related to their service. And what I found again here
was that in many instances the veteran was not even heard
properly. I had doubts whether the prior evaluation report was
the same veteran or not, and this was a serious concern, so I
actually started to look at their IDs again to make sure that
this was not some other person.
And the problem here was that the veterans did not have
enough time to explain their situation. It was a hurried,
conveyer belt-like system where I was specifically told that I
was spending too much time with the veteran, that I should
hurry up and see the veteran and just check a few boxes in my
evaluation because it's meant for some rater somewhere to rate
the disability. But that's not how I saw my job, and I think
that's not the right way to do it. The three competency to be
accomplished in these evaluations, because these are disability
evaluations: You have to make sure that the veteran is heard
properly, and the second thing is that I review the prior
records properly to make sure that I capture a full history,
and then the third is to make sure that my report reflects some
of the inconsistencies in the record and I speak to it, so that
the very next person, if it becames an appeal issue, can
determine how I made my decision.
Now, there were a few egregious errors that were there, and
that really bothered me, and as I was detailed under primary
care. So I wrote to the Chief of Primary Care recently about
these examples, about why this was really unfair to the veteran
and how it affected the life of the veteran. And just 2 weeks
ago, on the 26th of June, I'm detailed now to another place.
So from my perspective, I have always put the veterans'
interests first, and I have disclosed, I have disclosed the
wrongdoings that I found promptly to the Chief of Staff and to
the Chief of Mental Health with the expectation that they would
address it. And what I have found is that nothing has really
changed. As late as June, just 2 weeks ago, the response to my
finding about these evaluations that were not done properly was
to just detail me elsewhere.
So this seems to be an ongoing practice. When it's detailed
I don't have any responsibility of the Chief of Psychiatry.
That's the position I accepted. Two people who I really worked
hard on recruiting, both excellent psychiatrists, one trained
at Hopkins, the other at Harvard, they both declined to join
the VA after I had to disclose that I'm no longer the chief,
I've been removed.
So there's a sense of mission that's lacking, and I'm
really hoping that this committee with its powers will take
aggressive actions to really make sure that this retaliation
stops and that the people responsible are held accountable,
because really, with the data being so cooked up and so
unbelievable, it's extremely important that, while we work on
data integrity, to make sure that the data reflects reality,
it's extremely important that people step forward and are able
to speak the truth and talk about what's really happening at
the patient interaction level. I'm really hoping that this
committee would do that, and I'm really honored that I have
this opportunity to be able to answer questions and to be here.
The Chairman. Thank you, Dr. Mathews. We'll have an
opportunity, each of us, to ask questions and get into
specifics a little bit later on.
[The prepared statement of Dr. Jose Mathews, appears in the
Appendix]
Next I'd like to recognize Dr. Head for 5 minutes.
STATEMENT OF CHRISTIAN HEAD, M.D.
Dr. Head. Thank you for inviting me to testify today. I'm
honored, Congressman. And I think it's a very important topic,
our veterans, and we shouldn't lose focus of that. I'm
Associate Director/Chief of Staff at the West Los Angeles VA
Hospital. I'm very proud of my position, and I can't think of a
better job than serving our veterans.
But retaliation is alive and well across our country,
especially within the VA Administration. My first encounter was
a number of years ago. I was subpoenaed by the Inspector
General to investigate time card fraud involving two surgeons
in my area. I was among close to 30 individuals who gave
testimony. I gave honest and true testimony. And during that
testimony I said I feared retaliation, and I outlined how I
felt they would retaliate against me.
Every aspect I outlined came true. The person who did the
deposition was Inspector Solomon from the Inspector General's
Office, and she promised I would be protected both from the
State and Federal Government. Three months after they came out
with the final results, one of the individuals was paid back a
year's salary to the Federal Government and resigned. Another
individual who they recommended immediate termination was
allowed to stay in her supervisory role.
There was an end-of-the-year party because we're affiliated
with a university that's nearby. At that party, this slide was
shown.
[Slide]
Dr. Head. I know. That actually is me. I'm much younger
back then, and I had hair. But you see I'm flipping the bird,
and it says, ``If all else fails, call 1-800-488-VAIG.'' In
front of close to 300 individuals, I was labeled a rat. I was
labeled the person who ratted out this person.
The slide that followed this is so heinous that I can't
even show or discuss it today. I could discuss it under
subpoena. That person, by the way, is still in the supervisory
role at the VA. No apology, nothing.
I somehow survived that. Retaliation has been relentless.
The problem my retaliators have is that I think the VA and the
veterans deserve far better. No matter what happens to me, I
think the focus still should be on the veterans of this
country.
I somehow survived that process, and again I was retaliated
again later when I gave my opinion on the investigation of a
physician who was wrongly terminated. I was asked to change my
testimony. I stopped getting paid for two weeks. And because of
a number of other factors, my house went into foreclosure. I
didn't lose my house, but the harm it causes the family members
of Federal workers who are being retaliated against cannot be
measured. I have two young girls who I would be proud if they
decided to join the Armed Forces or even work for the VA.
I think the VA has the potential to be one of the finest
institutions in the world. We have seen certain aspects. The
pharmacy cannot be matched. It's one of the best in the world.
Very efficient. There are many different things that are
efficient within our system, but what we should ask ourselves.
When someone came up with the idea of seeing a veteran in 14
days, that actually sounded like a good idea, that a veteran
should be seen promptly. What we should be questioning is, if
we made a mistake and somehow overloaded the system, how come
people's names disappeared off lists? How come hundreds of
thousands of veterans electronically no longer existed? That
should be the question.
Retaliation exists because there's a culture. This culture
of retaliation, that's really the cancer to the Veterans
Administration. Most physicians and nurses and people who work
in the hospital are disgusted. Morale is extremely low. People
come up to me all the time and say, did that happen here?
People care. When I heard some of the testimony from the
Phoenix VA, it was gut-wrenching, I couldn't sleep. And I
believe there's a lot of people within the VA system that feel
the same way.
But there exists a cancer within leadership, a few
individuals that perpetuate this idea that we should be silent,
that we shouldn't stand up and do the right thing and be
honest. Everyone makes mistakes. But when you make a mistake
and you try to conceal it, that is really the question we
should be asking. Who are these individuals who would alter
data and hide the truth and prevent patient care?
I've been receiving text messages all day from veterans
saying, be careful, Dr. Head, we don't want to lose you as a
surgeon. Be careful, something might happen to you. If you get
labeled as a whistleblower, oh, my God, they'll take you out.
I'm not afraid to be taken out. I do hope if I am taken out
someone will take care of my family. But I think people need to
speak up. And we shouldn't be isolated, ostracized.
And the level of defamation, you notice that every time
there's a whistleblower there's usually an email that follows:
Well, this person is not getting a bonus and so they're upset.
Or this person didn't get the raise they wanted, so they can be
suspect. Or this person didn't do this. They always defame.
They defame. They isolate. Usually they transfer you to another
position. Why? Because they're slowly building a case, if they
don't have one already, to say that you're crazy, that you're
not being truthful.
And I would hope--I apologize for running over--I would
hope that--I've given you close to 176-276 pages, I think, of
evidence and a number of other statements of other individuals
that would be helpful in trying to improve the system--I would
hope--and especially the press, I will challenge you also to be
a real reporter and actually report the truth--but also--not to
insult the reporters--and also the Congressmen and
Congresswomen, this is very important, that we try to focus on
what's really important here, and that's the veterans of this
country.
Thank you.
The Chairman. Thank you very much for your courage, Dr.
Head.
[The prepared statement of Dr. Christian Head, appears in
the Appendix]
The Chairman. Dr. Mitchell, you're recognized for 5
minutes.
STATEMENT OF KATHERINE MITCHELL
Dr. Mitchell. Good evening. I am deeply honored by the
committee's invitation to testify tonight.
As a Phoenix VA employee, I have suffered retaliation for
years for routinely reporting health and safety concerns. My
written testimony details some of that retaliation and the
devastating effects on patient care. In addition, section 4 and
section 5 of my written testimony outline specific tactics that
the VA uses to suppress whistleblowing and also to retaliate
against anyone who speaks up within its ranks, even without
whistleblowing. The VA, in my opinion, has routinely
intimidated any employee who brings forth information that is
contrary to the public image that the VA wishes to project.
In 2013, I submitted a confidential OIG complaint regarding
the life-threatening issues within the Phoenix VA system.
Approximately 10 days after the national VA received my report
I was placed on administrative leave for a month. I was
subsequently investigated for misconduct because I had provided
limited amounts of patient information through the confidential
OIG channel in order to support my allegations of the suicide
trends and the facility's inappropriate response to them.
Eventually I would receive a written counseling stating that I
violated a specific patient policy, but to this day my human
resources department refuses to tell me the name of the policy
I violated.
This is relatively minor retaliation considering what
happened during my last 3 years as Medical Director in the
Emergency Department. During that time we were grossly
understaffed in terms of physicians and nurses. In addition,
there was insufficient ancillary staffing to do basic items
such as wash beds, answer telephones, deliver patients,
transport labs. As a result, doctors and nurses were routinely
pulled away from direct patient care in order to perform these
extra duties.
When the number of patient visits increased greatly to our
ER, the deficiencies became obvious. The actual number of
mistakes, as well as near misses, in our nursing triage
skyrocketed. Symptoms such as stroke, heart attack, pneumonia,
blood infections, and other serious medical issues were
routinely missed by inexperienced triage nurses or by seasoned
triage nurses who were simply overwhelmed by the flood of
patients that were hitting our ER.
I started reporting the cases of actual mistakes or near
misses to the facility chain of command. In the process of
reporting hundreds of these, approximately 20 percent of the ER
nurses would retaliate against me. They would stop doing my
orders for patients. They would refuse to answer questions in
the nurses station. They would not give me verbal reports on
patients that were placed in rooms.
Administration was made aware of this and yet declined to
intervene to stop this behavior that was obviously interfering
with my care for patients. In addition, they ignored my
repeated requests for additional resources for our ER, and they
would never institute the comprehensive standardized nurse
triage training that we needed in order to prevent future
mistakes in care being made in our ER.
This is not to say they were idle however. They did ban me
from reporting any cases to the Risk Management Department. My
proficiencies dropped each year that I worked. I was forced to
work 2 years of unlimited scheduled shifts to fill in holes in
the physician staffing because HR was too slow at credentialing
emergency room physicians to fill in.
Eventually things reached a critical mass. When the new
oncoming Medical Center Director Sharon Helman arrived, I told
her that the ER was too dangerous on an hour-to-hour basis to
remain open and we should be closed unless additional vitally
needed support was given. Unfortunately, the administration's
response was to haul me into a meeting within about a week and
a half and tell me that the only problem in the ER was my lack
of communication skills. The nursing backlash that was reported
would never be investigated.
Eventually I was involuntarily transferred based on
critical need to an empty medical clinic. I assumed the medical
director position of a clinic that only houses a social work
program, and that's where I remain today. I do very useful
work, but it's certainly not what I intended when I started
reporting patient safety, health, and concerns.
The veterans needing care that presented to the ER have
survived campaigns like D-Day, Iwo Jima, Chosin Reservoir, Tet
offensives and counteroffensives, Desert Storm, Kosovo,
Croatia, the battle of Fallujah, and dismal years in Helmand
Province. It is a bitter irony to me that I as a physician
could not guarantee their health and safety within a VA
facility in the middle of cosmopolitan Phoenix.
The VA needs to embrace the core values that it advertises
on its Web site. Administrators who place their own personal
gain above the welfare of veterans need to face consequences
for so doing. However, in the process it's very important that
employees of any pay grade who truly care about veterans and
their welfare, that they be protected. They were often placed
in the unthinkable position of being forced to follow orders or
else permanently lose their livelihoods and their ability to
help any veteran in the future.
Most importantly, the ability to positively influence the
patient care and safety of any veteran should not be considered
a Democratic or Republican stance, a pro-union or anti-union
choice, or even a uniquely American problem. The ability to
freely advocate for the health and safety of any patient is a
human issue, and it has ethical implications for all of us.
Thank you for your time.
The Chairman. Thank you very much, Doctor.
[The prepared statement of Dr. Mitchell, appears in the
Appendix]
The Chairman. Thank you very much Mr. Davis. Mr. Davis, you
are now recognized for 5 minutes.
STATEMENT OF SCOTT DAVIS
Mr. Davis. Thank you, Mr. Chairman. I'd like to thank the
committee for providing a platform so that the voices of VA
whistleblowers can be heard. I urge the committee to take
prompt action as time is running out. Every day a window of
opportunity closes on a veteran to receive quality health care
because of the inaction of senior VA officials. Some veterans
even face the burden of being billed for care their service has
earned them.
As noted in the Office of Special Counsel report, VA
leadership has repeatedly failed to respond to the concerns
raised by whistleblowers about patient care at VA. Despite the
best efforts of truly committed employees at the HEC and the
Veterans Health Administration who have risked their careers to
stand up for veterans, management at all levels have ignored
them or retaliated against them for simply exposing the truth.
Some of the critical issues reported to senior VA officials
by whistleblowers at the HEC include mismanaging critical
veteran health programs and wasting millions of dollars on an
Affordable Care Act direct mail campaign; the possible purging
and deletion of over 10,000 veteran health records at the
Health Eligibility Center; a backlog of over 600,000 pending
health applications; nearly 40,000 unprocessed applications
discovered in January of 2013. These were primarily
applications from returning servicemembers from Iraq and
Afghanistan.
The harassment I've experienced at the HEC from top levels
of management include my whistleblower complaint to White House
Deputy Chief of Staff Rob Nabors was leaked to my manager
Sherry Williams, who stated in writing that she was contacting
me on behalf of Acting Secretary Gibson and Mr. Rob Nabors.
Neither Mr. Gibson nor Mr. Nabors have responded to this fact.
My employment records were illegally altered by CBO Workforce
Management Director Joyce Deters. I was illegally placed on a
permanent work detail by Assistant Deputy Under Secretary
Philip Matkovsky and Acting Chief Business Officer Stephanie
Mardon. I was placed on involuntary administrative leave
curiously at the same time the OIG investigation was taking
place in Atlanta by Acting HEC Director Greg Becker.
Unfortunately, my experience is not unique at VA. Daron and
Eileen Owens, who work at the Atlanta VA Medical Center, have
experienced the same retaliation for reporting medical errors
and patient neglect, as well as misconduct by senior VA police
officials. Our Local 518 union president, Daphne Ivery, is
routinely harassed as a direct consequence of assisting me and
other disabled Federal employees with retaliatory actions by
members of management. Mr. Owens, Mrs. Owens, Ms. Ivery are all
veterans. And in fact, over 50 percent of the staff that works
at the HEC are disabled veterans.
In 2010 allegations surfaced that applications for VA
health care were being shredded at the HEC. Under the direction
of the HEC Director and Deputy Director, Ms. Kimberly Hughes,
former Associate Director for Informatics, and her team began
to investigate this allegation. Her team discovered nearly
2,000 applications that were reported as being processed that
did not appear as new enrollments in the enrollment system. Ms.
Hughes' investigation was abruptly closed by the HEC Director's
office. She was also subjected to harassment and intimidation
because she dared to advocate for veterans.
The whistleblower statements I have provided to the
committee were also provided to the OIG and are more relevant
to the committee than many may realize. I urge additional
review of those whistleblower statements. In addition to
providing specific examples of whistleblower harassment to the
committee, I hope my testimony provides some insight to three
key issues VA management fails to address: Reckless waste of
Federal funds and causing greater backlog of enrollment
applications for the sole purpose of achieving performance
goals; why there is resistance to implementing proper and
effective processing and reporting systems, and the source of
the resistance, as addressed previously by Dr. Draper during
her testimony; and the need to remove ineffective managers, and
the critical need for the VA Management Accountability Act to
be fully implemented.
Thank you for this opportunity. I look forward to your
questions.
The Chairman. Thank you very much, Mr. Davis.
[The prepared statement of Mr. Scott Davis, appears in the
Appendix]
The Chairman. Thank you very much. And, Mr. Davis if you
would, explain a little bit further the information you
provided to Rob Nabors, who was detailed from the White House
over to VA, that led to adverse employment actions being taken
against you.
Mr. Davis. Yes. I contacted Mr. Nabors about 4 weeks ago.
As the point of contact for the White House, I wanted him to be
aware of what was going on in our office. A lot of attention
has been placed on scheduling, but it's important to understand
if you're not enrolled, you're not going to be placed on a
schedule. I wanted him to know about shortcomings with the
enrollment system, a system that many of you have talked about,
we have spent millions of dollars on, and yet we're still back
at square one with these VA systems.
I also reached out to him about a Medicare Part D marketing
initiative by VA to encourage senior citizens who are veterans
to drop their subsequent companion Medicare insurance and
enroll in VA. That was problematic because, as you know, if you
enroll in VA you can only use the pharmacy at VA. You have to
use your VA doctor. Many of our most vulnerable veterans were
not aware of that and could be confused and cancel their
supplemental Medicare insurance and end up being stuck in the
donut hole in the backlog.
I also contacted Mr. Nabors about the continued
mismanagement of VA health programs managed by the HEC and the
Chief Business Office under the direction of Mr. Philip
Matkovsky and Lynne Harbin.
After sending that information to Mr. Nabors, I did not
receive a response. I subsequently contacted the office of
Deputy Chief of Staff Anita Breckenridge. I also did not
receive a response until after receiving notification from Ms.
Sherry Williams that she was contacting me on behalf of the
Acting Secretary and Mr. Rob Nabors. It surprised me that Ms.
Williams would do this because she is a former OIG official.
To this date no action has been taken to reprimand Ms.
Williams for her behavior. This goes to the very heart of the
question whether or not VA should be allowed to police itself
and whether or not an outside agency should be brought in to
fully conduct an investigation into the actions taken at VA.
The last thing I will say is I did receive an email from
the White House Office of White House Counsel directing me to
contact the Office of Special Counsel. If that was the official
position from the White House, there would have been no need
for anyone to contact Ms. Williams about my complaint.
The Chairman. You also, in your testimony, you described
the possible purging of over 10,000 veteran health records at
the Health Eligibility Center, that there's a backlog of
600,000 pending benefit applications and 40,000 unprocessed
applications discovered that span 3 years?
Mr. Davis. Absolutely. Currently we have over 600,000
pending applications. These are applications that have been
applied for by a veteran, turned in to VA, and for whatever
reason we could not take that application to a final
determination. This backlog has reached again the number of
600,000. What we should have done, instead of hiring 40 people
to address the Affordable Care Act in a belief that we're going
to have this surge of people because of a buddy letter
marketing campaign where the veteran was encouraged to pass on
information about enrolling into VA health care to a fellow
veteran, well, unfortunately, the information for the veteran
to take the action was on the second page of the letter.
Therefore we ended up getting 80,000 duplicate applications of
which only about 1,650 were actually applications that we could
actually do something with.
In terms of the 40,000, this was discovered in January of
2013, and this is important to the committee because I want to
share something that was in a report that I forwarded to the
committee from 2013. Increasing online application submissions
versus paper and improving turnaround times for eligibility
decisions has a positive direct impact on providing timely
access to health care. Data reveals applications submitted in
person are processed with higher urgency while online
applications linger in a less visible queue.
To answer your question how could this happen, because
these applications linger in a less visible queue. Even though
the IT Department had paid licensing fees for over $40,000 for
us to have a new system for managing the queue, a system
referred to as BizFlow, that system was only put into play for
implementation until after the 40,000 applications that were
lingering in the queue, in some cases for nearly 3 years, was
discovered. That is something that is shameful.
The Chairman. Thank you, Mr. Davis.
Members, I have one more question I'd like to ask Dr. Head.
Dr. Head, you talked about the retaliation against you, and
I want to specifically talk about a Dr. Wang, who I read that
the OIG concluded that Dr. Wang had, in fact, committed time
card fraud. Is that correct?
Dr. Head. Yes. The official report was not released to the
layperson. The information I received was that they had
recommended immediate termination of her and this other
individual. Through other chief of staff and counsel, they had
said that they had found significant fraud, time card fraud.
The Chairman. And so she's been terminated?
Dr. Head. She has not been terminated. She has been
maintained in a supervisory role.
The Chairman. Can you explain a little bit about how that
has occurred?
Dr. Head. I have no idea how she was able to maintain her
position.
The Chairman. But VA did not follow the Inspector General's
recommendations?
Dr. Head. They elected not to follow the Inspector
General's recommendation. She has been left in her Division
Chief position. She was my supervisor. I filed a complaint,
numerous complaints. They moved me from that office under her
chain of command to the Chief of Staff, which in my opinion was
an excellent opportunity. I rose in the ranks, became head of
Legal and Quality Assurance, and have become I think an expert
in system analysis and quality assurance, which I think will
help the veteran even more, ironically, now from being
retaliated against. That's just how I was brought up: Find a
way.
The Chairman. Thank you, Doctor.
Mr. Michaud. Thank you very much, Mr. Chairman.
As you all know, whistleblowers, you often risk your career
in order to bring problems to light. What would you recommend
that we do as far as to change the rules or laws government-
wide to actually help protect the whistleblowers. And I'll
start with Dr. Mathews and work down, if there's anything that
we should do to strengthen the Whistleblower Protection Act.
Dr. Head. Yes. That's an excellent question. And one of the
things that I experienced was that I was immediately removed
from my position. So under the guise of an administrative
investigation with a specific directive to not contact any of
the psychiatrists that I was managing, and they cut off my
access to the databases, some of which I'd set up myself to get
accurate data. So one of the things could be that if there is
this sort of an investigation, that the person continues rather
than be detailed. And if the person has to be detailed, perhaps
there should be a review by peers to see whether that's even
warranted or not.
There seems to be no time limit to these kinds of detail.
And this is the second time I've been detailed. Just recently
I've been detailed again. So as Dr. Mitchell mentioned, these
are not the jobs that we wanted to do, not that we would not do
it. We would do it to the best of our abilities. So having that
protection. Having the OSC have some sort of a time limit to
review these complaints would be very beneficial. Having a
process for, you know, like you rightly mentioned, if a
supervisor is, indeed, found to have retailed, to have some
very tangible consequences to that person would be very, very
important.
Right now I think, at least in the St. Louis VA, they do
not think that this is a serious issue. Like I said, like 2
weeks ago I was called into a meeting with the Chief of Staff
where the chief of the outpatient psychiatry, the person I had
worked with very closely to implement my changes was also
called into that meeting. And in that meeting I was
specifically told that the chain of command must be respected
at all times, that if I had any issue or if Dr. Esses had any
issue, that we should report it first to our supervisor and
then move up to the next level and the next level. So I called
the--
Mr. Michaud. Could you finish up because I'm running out of
time. We have got three others, so.
Dr. Head. Yes. So I think your recommendation for having
very quick and serious consequences to retaliation would be
very important.
Mr. Michaud. Thank you. Dr. Head.
Dr. Head. Yes. I think there needs to be greater
repercussions for retaliation. We have laws referred to shield
laws and sword laws. Sword laws meaning that if I retaliate
against someone, there are Federal laws that say, look,
retaliation is against the law, and they can warn the person
don't retaliate. But they can continue to retaliate against the
person, which ultimately will have a direct or indirect effect
on the care of the veteran, endangering the veteran only
because their caregiver or doctor or nurse is being retaliated
against.
Shield law means that not only do you have a sword law,
repercussions for retaliation, but you have a shield law where
you can immediately take action and there can be immediate
repercussions for any type of retaliation against the
whistleblower. In other words, you tell the Chief of Staff,
look, if this person gets retaliated against, pushed out of a
job or anything, we're going to hold you accountable for this
until we figure out what's going on here.
And we have a shield law that was enacted in the State of
California, but that's something that should be considered by
Congress. Ultimately you will address it one way or another
because retaliation in the health place is different than in a
factory, because if you retaliate against a physician or
surgeon or nurse practitioner or nurse, you're going to have
direct repercussions one way or another to the health and well-
being of a veteran.
Mr. Michaud. Thank you. Dr. Mitchell.
Dr. Mitchell. I'm not sure all of it needs to be
legislated, but certainly the OIG needs to put in writing that
providing limited patient information to support allegations in
a complaint is not a violation of HIPAA. It isn't, but
certainly there are employees charged all over the Nation for
it.
In addition, sham peer reviews need to be part of the
prohibited personnel actions. That's where they drum up a
reason to examine a physician's cases. They have a
predetermination that this physician is not properly
functioning, even though there certainly is no problem with
this level of functioning. And then they can permanently
sabotage a physician's ability to get employed not only inside
the VA, but in a private sector.
Whenever you're subjected to a peer review you have to
report being a subject of a peer review for the rest of your
professional life, on every job application, on every license
renewal. Sham peer reviews are done specifically to sabotage
the credibility of a physician. Physicians truly face losing
their livelihood, their ability to be employed again as a
physician. You need whistleblowers that are physicians, people
that are trained to identify the high risk problems.
Mr. Michaud. Mr. Davis.
Mr. Davis. Yes, thank you. I don't know if a new law would
really change anything, honestly, at VA if you don't have
accountability. I think there are some structural changes that
need to take place, one being a centralized human resource
office that actually has operational authority.
Currently, when I went through my situation of retaliation,
I spoke with a representative from the VA HR office. They told
me they're only a policy body, that they could contact the HR
office where I work and maybe make some recommendations and see
what they could negotiate. That's problematic, because in VA,
unlike a corporation or a normal healthcare system, every
division or the hospital itself has its own HR department which
becomes the secret police force for the managers who harass
employees. And that's problematic, and that's what needs to
change. So I think an operational change for a centralized
human resource office would also help.
But also I think you need to start making bad managers pay
their own legal fees. Currently, managers who engage in
harassment have no fear because the bill is going to be passed
on to the taxpayer. And even if they lose the case or they're
found guilty of wrongdoing, well, the bill just goes on to the
taxpayer. Currently, we have managers in our office that have
several different complaints for harassment. It's not a big
deal to them. Regional counsel will take care of it. The Office
of General Counsel will take care of it. So I think that's the
issue that really would change people's behavior, if you hit
them in their pocket.
The Chairman. Mr. Lamborn, you're recognized for 5 minutes.
Mr. Lamborn. Thank you, Mr. Chairman, for having this
hearing.
And I want to thank all of you for being here. You're
showing a lot of bravery and courage. You're putting it all out
on the line to do this, and I know that you're doing it for our
veterans.
Dr. Mitchell, I'd like to ask you, you've been at the
Phoenix VA for 16 years. Do you believe that the lack of
response to safety issues that you've brought up over the years
have threatened the health and even the life of veterans in
Phoenix.
Dr. Mitchell. Yes. Anything that impairs the efficiency or
the delivery of care threatens the lives of patients. Certainly
in the ER I can recall at least three specific deaths and
several more I believe actually occurred in the ER. As a
resident I also trained through the Phoenix VA. There were at
least two patients I know that died because they were delayed
in getting their cardiac cath because the VA only did cardiac
catheterizations Monday through Friday, not on weekends. These
veterans had to wait because there wasn't time to get them done
on Friday, so they died on Sunday.
When I was a nurse there, there were tremendous problems
with patient care, and there weren't sufficient nurses to turn
patients the adequate number of times. We had patients
developing huge bed sores. I can remember JCAHO certification
inspections that to this day still haunt me because
administration would authorize overtime for charting, because a
JCAHO administrator would look at charting, but would not
authorize overtime for nursing staff to turn patients because
there wasn't enough staff to do it or to feed patients. We used
to volunteer our time quite a bit because we couldn't leave the
team short staffed.
Mr. Lamborn. Doctor, did these problems catch the hospital
and the administrators by surprise or had they been warned that
there were pending problems if something didn't change?
Dr. Mitchell. I am aware of problems throughout the
facility without necessarily having access to upper
administration. I know that people communicate these concerns
as best they can. What happens is any concern you bring up you
have to present to your supervisor in a politically correct
manner, because if you don't you will be retaliated against,
either you'll be harassed at the moment you're giving the
information, your proficiencies will drop, something bad will
occur. It's best that management not know your name, because if
they do it makes you an automatic target. And I'm sorry, that's
not to say that all supervisors are that way. There are some
incredibly ethical supervisors at the facility where I work.
Mr. Lamborn. Okay, good. That's good to hear. The interim
OIG report which brought out some of the issues that we're
seeing even better as a result you believe didn't go far
enough, if I understand your testimony correctly. Do you think
that there were flaws with the methodology and that it could
have even been more revealing of problems out there?
Dr. Mitchell. There's a saying that has to do with lies,
damn lies, and statistics. And what they did was they took out
a segment of patients and said, well, this is the average wait
time. The NEAR list that they were looking at was divided by
clinics. Some of the clinics had relatively short waiting time.
The NEAR list ran from I believe January of 2013 to April 24 of
2014.
Some clinics had very short waiting times. The downtown
Phoenix clinics were all aggregated or an aggregate of some,
and the waiting time started at 477. They didn't hit down to
the 110s, 120s until page 8 or page 9. Because some of the wait
times were zero or 1 day or 2 days, because they extended up
until April 24, I have no idea which patients they picked. It
would have been certainly more accurate to say at the Phoenix
VA clinics we had this many patients waiting zero to 30 days,
this many from 31 to 45.
Mr. Lamborn. So as a result, and we are getting the real
detail here, you don't think that the report revealed nearly as
much of the problems as it could have?
Dr. Mitchell. No. I told them about the mental health
waiting delays, the huge problems with that. Other people told
them that, the issues. I told them about the patient safety
issues. It certainly didn't go into that.
Mr. Lamborn. Okay. Thank you.
Once again I want to thank you all for your service to our
veterans and for being here today.
Mr. Chairman, I yield back.
The Chairman. Thank you.
Mr. Takano, you are recognized for 5 minutes.
Mr. Takano. Thank you, Mr. Chairman.
Dr. Mathews, are you familiar with the Federal
classification of employees, whether it is SES or Title 38
employees? Are you aware of that system?
Dr. Head. Yes.
Mr. Takano. In your capacity as chief of psychiatry, was
that a Title 38 position; do you know?
Dr. Head. Yes. Title 38 position.
Mr. Takano. Okay. Dr. Head, in your position where you
formally were, was that a Title 38 position or something below
a Title 38?
Dr. Head. Title 38. I am still employed by the----
Mr. Takano. You are still employed, I understand.
Dr. Head. Yes.
Mr. Takano. Okay. And Dr. Mitchell?
Dr. Mitchell. Yes, I am a Title 38 employee, and I have
been employed as a physician throughout my VA career there.
Mr. Takano. Okay.
And Mr. Davis?
Mr. Davis. No, I am just a General Service employee.
Mr. Takano. General service employee.
So one of the things I am grappling with is the proposal
for us to make it easier to fire VA employees guilty of
wrongdoing, so a more at-will sort of basis, and that would
apply to the Senior Executive Service. And typically
whistleblowers come from the lower ranks of employment, but
there is a debate about whether or not we should extend this
sort of standard to Title 38 employees. And so in my mind, I am
going through this contradiction of, well, there is a sense
among some Members that we want to make it easier to fire
people at certain levels of service, but that might seem to run
against the idea that we need to also protect people who speak
up.
Dr. Mathews, do you have any thoughts on this? We have a
whistleblower protection, but, I mean, how do you feel about
making it easier for us to fire Title 38 employees?
Dr. Head. Well, I think, you know, when veterans' life and
health is at issue here, I think that, you know, you should be
able to be fired. Any person in direct patient care right now
enjoys almost a lifetime tenure where they are completely
protected from their actions, the consequences of their
actions, and I think that is not good for providing a safe work
environment for the veterans, or safe health environment for
the veterans, or work environment for the physicians and other
people who come forward.
I do not think that the Chief of Staff or the Chief of
Mental Health, who just threatened me 2 weeks ago, has any
concern about their position being threatened in any manner. So
I think that kind of protection should end.
At the same time, I also would want us to consider that a
workplace is only as good as the employees there, and I'm
hoping that we take a look at what the salary structure is,
especially for some hard-to-fill positions, so that, you know,
we can have less protection with----
Mr. Takano. Dr. Mathews, excuse me, but wouldn't that
ability to have fired you so absolutely have eliminated your
ability to even voice any dissent or act as a whistleblower?
Dr. Head. Well, that already exists. I mean, they already
professionally assassinated me in the sense that, you know, I'm
no longer the Chief of Psychiatry. They've already spread this,
you know, the fact that I am no longer the Chief of Psychiatry.
In fact, the way I found out that there was this--you know,
this administrative investigation stuff going on is when one of
the psychiatrists I recruited called me concerned that, you
know, are you fired? I mean, I hear that you're fired. So
professionally--and it's a bad statement on the VA that, you
know, me having trouble with the VA is----
Mr. Takano. But would you have been worse off having your
voice completely eliminated by you being summarily fired
because they had the ability to do so? You at least are able to
be here and voice your concerns. And actually, I mean, it's far
from where we need to be in order to have feedback from people
at the mid level and lower levels to be able to say what is
wrong.
That is our interest, right, I think, in our national
interest, to be able to have lower-level employees be able to
speak up without fear of being retaliated, but is whistleblower
protection enough? Do we need to have some sense of due
process, which some of the Members would like to see eliminated
so it's easier to fire people? I see a tension here. I mean, I
think you might even recognize. I, too, would like to be able
to fire people, not have them have complete tenure and they
feel insulated.
Dr. Head. Right.
Mr. Takano. But I don't know how we solve this.
Dr. Head. Well, you know, I think one way that I can
suggest is to put ourselves or our loved one in the veteran
position. Would I want to obtain care, or would I want my son
to obtain care, at a system where poorly performing nurses or
physicians cannot be fired? And I would not want to go to that
hospital. So I think, I mean, that would help perhaps resolve
this tension about who are we protecting? Are we protecting the
veterans, or are we protecting the VA employees?
Mr. Takano. I understand.
Mr. Chairman, I yield back.
The Chairman. Thank you very much.
And also, the legislation that we have passed in the House
does not reach down to this level of a SES or Title 38
employee, only senior level, the top 450.
Mr. Bilirakis, you're recognized for 5 minutes.
Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it.
Thanks for holding this hearing.
And I want to thank you, the people that are testifying
tonight, for putting the veteran first. Thank you so much for
your courage. I really appreciate it.
Dr. Head, I know I don't have a lot of time, you mentioned
in your testimony that this potentially could be--the VA
system, VHA, could be the best healthcare system in the world.
How do we get there?
Dr. Head. I believe with leadership. You know, there are
certain people in leadership that have been there for 18, 20
years, and if they're a great leader, it's fabulous; but if
they're not, it's very disruptive to the system.
We need to find ways to bring in leadership on a continuing
basis. Maybe term--I don't know if this is the answer--maybe
term limits. And if you're a good leader, you're identified as
a good leader, and perhaps you could be part of the team that
brings on new leadership and show them the right direction. And
if you're not such a good leader, maybe you should be
integrated in another part of the Federal Government or retire.
But leadership is clearly the key. Our surgical team at the
West L.A. VA could be matched against any surgical team in the
country, possibly in the world. My wife, much smarter than I
am, is an interventional electro physiologist, cardiologist at
the VA. She could work anywhere in the country. Somehow she
agreed to marry me and also dedicated her life to serving
veterans. She loves her job. She obsesses over it. She's always
worried about trying to save another veteran. I commend that.
And there's lots of people like that within our system.
We need leadership. The leadership will take the VA to that
next level. I think it's not resources. We all care about the
veterans. And you're very giving. And we'll do anything to
serve our veterans. And it's not resources. We'll do anything
it takes to make this situation right and to serve the
veterans. And I have no doubt that if the right leadership is
brought to bear on this problem, we can solve this problem.
Mr. Bilirakis. Thank you.
My next question, and this is for the entire panel: In the
previous fiscal years, all Senior Executives Service employees,
all received a fully successful performance. Last year, in
particular, they received a fully successful performance, which
totaled to $2.8 million in performance awards. Yes or no, and
we'll start with Dr. Mathews--yes or no, do you believe that
this is an accurate assessment and that all eligible senior
employees performed at a fully successful capacity and higher?
Dr. Head. No.
Mr. Bilirakis. No. Okay.
How about Dr. Head?
Dr. Head. No.
Mr. Bilirakis. Mr. Davis?
Mr. Davis. Based on what we now know in the public record,
absolutely not.
Mr. Bilirakis. Dr. Mitchell?
Dr. Mitchell. No.
Mr. Bilirakis. Thank you.
Next question is for Dr. Mathews: Through your own
investigative work during your time at the St. Louis VA, you
identified that on average--you spoke to this in your
testimony--on average, psychiatrists were seeing six veterans
per day, which accounted for 3.5 hours in an 8-hour workday.
When you contacted other psychiatry chiefs regarding actual
time spent in direct patient care by psychiatrists seeing
veterans, do you know if they had been tracking this
information prior to your inquiry?
Dr. Head. No, I do not know if they were tracking it. I
know that our VA does not track it, and I know that many other
VAs do not track it, because a lot of the other chiefs wanted
to know the answers as well. So I got a lot of emails from
other chiefs saying, you know, why don't you forward the
responses to me as well? And just recently there was another
new Chief of Psychiatry who had the exact same question that
was, you know, sent out to everybody saying, you know, what is
a reasonable expectation? What number should be reasonable?
Mr. Bilirakis. Thank you.
Next question, again, for Dr. Mathews: Your findings also
discovered that 60 percent of veterans were dropping out of
mental health care after one or two visits. And I have town
meetings, and I have veterans advisory councils, and they tell
me the same thing. Do you believe it was directly connected to
the experience they had while seeking treatment with the VA? Is
it the type of treatment? Should there be alternatives to that
treatment? If you could----
Dr. Head. Sure. You know, my goal was to make the VA mental
health clinic a very welcoming place with very easy access to
care. The majority of the veteran complaints that I reviewed
had to do with long wait times, not being able to come to seek
their care, and, you know, that really demoralized them from
obtaining care.
Some of the young veterans that I saw in my new capacity--
well, the previous capacity as the compensation and pension
evaluator, I came across some really horrendous barriers to
care for veterans who had tremendous amount of combat exposure.
They were in some of the specialized forces.
And just one instance I will mention here----
Mr. Bilirakis. Please do.
Dr. Head [continuing]. This veteran was doing so poorly
that his roommate, who was also a veteran, had both taken off a
day of work so that he can take this veteran and get him care.
So they come to the VA, and it takes 3 or 4 hours to find out
whether this person is even eligible for care or not, and then
they determine that, yes, this person is actually eligible for
care.
So this veteran then comes to the PTSD clinic and is not
seen by a healthcare provider, is told that we will contact you
next week after a meeting to determine what we can--what we are
going to do for it. Now, I was doing a compensation and pension
evaluation, so I had access to the records, and I was looking
at whether there's a record of this veteran actually going to
the clinic or not, and I did not find any record. But there is
a subsequent notation saying--a form letter that was sent to
this veteran that stated that we learned that you were
interested in obtaining care at our facility; please call these
numbers to schedule an appointment.
So this is for a veteran who has served our country and
sacrificed a lot, who even the military recognized had PTSD,
had taken a day off of his low-paying job to obtain care, and
then there was no record of this person being at the VA, and
the contact was not made. So when I evaluated him, I asked this
person that, you know, would you consider coming to the VA to
obtain care, and this veteran was very clear in saying, no, I
am not going to obtain care here. I was not treated with
respect. And, you know, he didn't want to come to get care
there.
So that's one really bad example that I can say about how
the access to care and the whole attitude of it not being a
welcoming place, of erecting barriers, you know, that really
prevents people from coming back. And there's a lot of such
complaints that I heard in my capacity as the Chief.
So yes, the answer is yes. You know, how we are interfacing
with the veteran, what kind of access we are providing, and
what kind of care and environment we are providing, I think, is
critical in maintaining patients and care.
Mr. Bilirakis. Thank you very much. I appreciate it.
Thank you all for your testimony.
The Chairman. Thank you.
Ms. Brownley, you're recognized for 5 minutes.
Ms. Brownley. Thank you, Mr. Chairman, and thank you for
holding this hearing, and thank you to all of you for being
here. Your testimony is extremely important, and we appreciate
it very, very much, and I believe that all of you, by virtue of
being here and having gone through what you have gone through,
you have also, as our veterans, served our country honorably.
So thank you for that service.
I just wanted to ask Dr. Mitchell and Mr. Davis, because
both of you went through a--well, Dr. Mitchell, you went
through a formalized process, a confidential process with the
OIG, and somehow that information leaked out, and it was not
confidential. And, Mr. Davis, you reached out to the White
House, and obviously there were--based on your testimony there
were leaks as well. So I was wondering if the two of you could
just comment on do you know how those leaks occurred? Were you
promised confidentiality?
Dr. Mitchell. Yes. The Senator McCain's office submitted
the request--or my complaint with two requests, one, that there
be an outside investigative team because the local OIG had a
long history of not doing very good investigations, and the
second one was that my name be kept confidential. I don't know
who leaked my name; I just know that it was leaked. And I don't
even know if there's any consequence to whomever leaked my
name.
The second thing is I don't even know if the OIG actually
investigated. What happened was there's no official report,
although certainly the Web site--the OIG has complete
discretion as to which reports it puts on the Web site.
Anecdotally I have been told that those that are unfavorable to
SES service do not go on there. Someone has since forwarded me
a complaint that is certainly unfavorable to SES service, and
it can't be found on the Web site. I have no idea what
occurred, and I can't even get a report of it.
Ms. Brownley. Have you tried to find out, though?
Dr. Mitchell. I had Senator McCain's office checking, and
they're stonewalling them.
Ms. Brownley. Thank you.
And Mr. Davis.
Mr. Davis. I can tell you that as late as about 4:30 p.m.
this evening, I was informed by my union president that the
Acting Chief Business Officer Stephanie Mardon sent a
correspondence saying that Ms. Williams, the person who said
she was responding on what behalf of Secretary Gibson and Mr.
Nabors, was not officially authorized to speak on their behalf.
What she didn't provide, which would probably be more
important, is who told her in the first place. And I think that
is the problem with VA: a complete lack of accountability. And
when people know that they can engage in behavior without
consequences, something has got to change.
Ms. Brownley. Thank you.
Dr. Head, I represent Ventura County in California, so my
veterans use your facility in West Los Angeles. And so I am
wondering, after being here this evening with us, what it's
going to be like for you when you return back to West L.A.?
What will the environment be?
Dr. Head. I'm not sure. I do fear retaliation, but I also
know this was the right thing to do. And more importantly, I
think many veterans that I care for support me.
Ms. Brownley. And do you believe by virtue of what you have
been through and now being here, do you think that that has--
and everything that has happened, and what we have learned
about what is going on in the VA across the country, I mean, do
you feel a difference when you go back to West Los Angeles than
you did a few months ago?
Dr. Head. Well, I think more importantly I've enlightened,
I believe, Congress, and they have an opportunity to look very
factual. All I ask is that you look at the facts and unveil the
facts, and I think that in itself will be helpful.
And as far as going back to my job, I could afford not to
work, but I want to work, and I want to serve the veterans. And
when I first came, Dr. Mitchell and I were chatting, and we
both want to retire within the VA Administration.
Ms. Brownley. Yeah. I think I'm just trying to drill down a
little bit to see if there's been any shift or change over the
course of the last month or two in the culture, because you
feel it every single day, and, you know, changing culture is
really a hard thing to do. But I'm just curious to know if
there's been--you know, do you feel a shift?
Dr. Head. I think there's been awareness. They are very
much aware that I was coming here tonight, and I think they're
very much aware that I will stand up for myself and for the
veterans, that I will not cower down.
I'm human, I have my frailties, and this is wearing on me.
I wish I could just go to work and dedicate all my energy to
caring for veterans and to make processes that will improve the
care of veterans, but instead, the reality is I do worry about
retaliation on a daily basis. I'm always looking over my
shoulder. I'm always wondering about, you know, peer reviews.
Fortunately, I've been head of a certain area of peer review,
so I've been immune to some of those retaliatory efforts.
I am worried, and I'm tired. If you could do one thing for
me tonight, you would relieve the obstructions of this
retaliation and allow me to serve the veterans and be able to
work without the fear of retaliation. That would be a great
gift.
Ms. Brownley. Thank you, Dr. Head.
And again, thank you to all of you, and my time is up, and
I yield back.
The Chairman. Thank you.
Dr. Roe, you are recognized for 5 minutes.
Mr. Roe. I thank you, Mr. Chairman.
Dr. Mathews, I was a young doctor once, and I remember
returning from Southeast Asia, and I was full of vim and vigor,
and I was stationed at Fort Eustis, Virginia, and there was
2,000 women that needed Pap smears. I was going to solve that
problem. When I left Fort Eustis, Virginia, there were 2,000
women on the Pap smear list. I ran into inertia, which is what
I think you ran into.
And I admire what you did because you touched on two very
important things. You all have hit the nail on the head. It's
the backlog, which we can easily take care of. We can do that.
Number two, changing the culture of the VA is going to be much
more difficult, and that's much more critical downstream years
from now.
But what you did when you got to the VA in psychiatry was
you recognized a problem. You saw long wait times for patients,
and you wanted to make sure those patients in need got there.
And I have seen those patients in my office.
Two, you said how much work are we actually doing? And when
you evaluated it, you found out that your colleagues were
seeing basically six patients a day. There's no private
practice in the world doing anything that can stay afloat
seeing six patients a day.
So you wanted to increase productivity, shorten the wait
times. And what I found astonishing was that 60 percent of our
veterans who sought out care--and these are folks have PTSD
that desperately need this care, and we know there is a
shortage of your kind of specialty in the VA and in the
country, quite frankly--wouldn't come back. I found that
absolutely amazing to me that they found the environment so
inhospitable to them that they refused to come back.
And then very simply, how we're all being evaluated with
accountable care organizations and so forth is were you
satisfied with your visit? A very fair question. And you hit
the nail right on the head a minute ago when you said, what if
you were the veteran? Would you want to be in a place where
less-qualified people or people who didn't seem to have your
best interests at heart, would you want to be them?
I want to ask all of you, Dr. Head and Dr. Mitchell, too,
just very briefly, how does retaliation within the VA affect
patient care? And I think we all know that, because if you're
retaliated against, you go back to the six patients a day, that
means 60 percent of those veterans that need care are not
getting it. Am I right?
Dr. Head. That's unfortunately the case. And I can tell you
that being in compensation and pension evaluation, I know of at
least one veteran who committed suicide while waiting for, you
know, the call-back to get care. So, you know, unfortunately it
went back to where it was, and we really don't have a real-time
veteran satisfaction with care metric.
And I think that's very important, because we do not really
know, other than these surveys which are incomplete and which
are administered not correctly. You know, mostly the clinic
itself hands out these surveys to the veterans to fill out, and
then they collect it as well. So although you tell them it's
confidential, I don't think anyone would really believe that.
Mr. Roe. Yeah, I think you could take what you did and go
across primary care, specialty care, anything, and find out is
it a staffing need? Do we need more people to work, or do we
need to be more efficient at work while we're there?
I want to ask Mr. Davis a question, and it dawned on me
just a minute ago, what happened to the 40,000 veterans that
were queued up? What happened to them?
Mr. Davis. Well, the 40,000 veterans that were discovered,
40,000 applications, they were eventually processed. But I
think here lies the problem of sort of the callous and
carelessness in VA management, and that's why I go back to my
point of make them pay for it.
The problems with the queue, as it's referred to, could
have been addressed. Again, VA was paying for licensing and
maintenance fees for them to institute a new workflow
management system that could have resolved that issue. It
wasn't resolved or addressed until after the 40,000.
Now, what's interesting is--and I'll give you an example of
the sort of lackadaisical attitude by VA management. In the
report that I read from earlier, in 2013, it talks about the
backlog. It talks about the slow processing of online
applications. You're a physician. Could anyone imagine an
application for health care that you can write in your house,
drive to a VA medical facility, wait in line, turn it in to
someone at the counter, wait for them to process it is actually
faster in 2014 than the online process? If this was a private
corporation, we would be run out of town.
Now, let's put that into context. I have submitted to the
committee a document, a fact-finding report, which dealt with
the marketing contract, that dealt with waste and
mismanagement, and it addresses the issue at our office that
the contract was so poorly mismanaged that the $5 million
contract would not withstand scrutiny if it was subject to a
third-party audit.
I ask you to look at this in the context of the enrollment
system, look at it in the context of the workflow management
contract, about $2 million. It's the same sort of reckless
attitude. They don't assume responsibility for their actions
when it comes to retaliation, and they don't assume
responsibility for their actions when it comes to wasting the
resources given to them to provide services to veterans.
Mr. Roe. Mr. Davis, just one other thing, and it's a
statement, not an answer. But in our briefing today, it said--
and officially the St. Louis VA Medical Center is reporting to
VA central office that its productivity was along the highest
in the Nation. When that sort of thing happens, how in the
world can we believe anything that's in front of this
committee? I get asked at home, why do you know about this? And
I say, well, we get this kind of information. How would we know
about it when the people giving us information are not giving
us factual information?
Thank you, Mr. Chairman. I yield back.
The Chairman. Thank you very much.
Mrs. Kirkpatrick, you're recognized for 5 minutes.
Mrs. Kirkpatrick. Thank you, Mr. Chairman.
I'd like to start by thanking our whistleblowers for having
the courage to come forward when you witnessed wrongdoing. I
would particularly like to recognize Dr. Katherine Mitchell
from the Phoenix VA. I asked you to come and testify before our
committee. I know that you've risked your career to report
wrongdoing and suffered repeated retaliation from
administrators who refuse to do the right thing, so thank you.
By bravely stepping forward, Dr. Mitchell and Dr. Foote
made Congress, the IG and the VA aware of the problems in
Phoenix which led to the discovery of systemic patient wait
time data manipulation at VA facilities across the country.
Unfortunately, without whistleblowers we were unable to
identify many of the problems in the VA. Because of
whistleblowers, we can now work to fix them.
It is unacceptable and reprehensible that almost half of
the Office of Special Counsel's whistleblower retaliation cases
involve the VA. The bullying of patients and VA employees that
report wrongdoing must stop now. I sent a letter to Acting
Secretary Gibson last month asking him to remind all VA
employees of their rights at whistleblowers; however, it is not
enough that employees are informed of their rights. The VA must
still develop a culture of zero tolerance for whistleblower
retaliation at all levels of its organization.
Employees should not be afraid of losing their jobs or
ruining their careers for speaking up when something is wrong.
Patients should not be afraid that they will be denied care
because they think something is wrong. The VA must stop using
the harmless error defense to downplay wrongdoing. This finding
by the VA Office of the Medical Inspector in most cases was
baseless and an excuse for administrators to do nothing while
patients were put at risk.
This is why I'm introducing a bill this week to give
further protections to VA whistleblowers. Employees and
patients should be able to report wrongdoing directly to the
Office of the VA Secretary so they do not have to face
retaliation from the same administrators that refuse to act.
The office will investigate complaints of whistleblower
retaliation and ensure that whistleblowers' rights are
protected.
While all VA employees should work to serve veterans, the
sad reality is that the VA has a corrosive culture and a
history of retaliating against those who speak to break the
code of silence. Until the VA is able to instill transparency
throughout its ranks and develop a culture focused on caring
for veterans, I believe additional protections for VA
whistleblowers are necessary.
My question is for all of our witnesses: If you could name
one thing that the VA could do immediately to change its
culture of silencing whistleblowers, what would it be? And
let's start with you, Dr. Mathews.
Dr. Head. Well, if I had one wish, that would be that data
integrity is there. And the VA has demonstrated over and over
again that they will make up numbers, they will come up with
blatant lies. Like Dr. Mitchell said, and I will paraphrase the
great person from Missouri, Mark Twain, that there are lies,
damned lies, and VA statistics that go beyond lies.
So that would be my one wish would be to have meaningful
metrics that are transparent and accurate and are vouched for
by another organization, perhaps a major university that have a
higher degree of integrity, and people who are found cooking
these numbers are punished, because it has real-life
consequences for veterans. These are not just, you know, some
games that they are playing. People's lives are at risk here.
Mrs. Kirkpatrick. Thank you, Doctor. Not to cut you off,
but I want to hear from the others. I'm starting to run out of
my time. I have about 45 seconds here.
Dr. Head. I believe accountability. When people or
supervisors have knowingly done something wrong, and they have
been shown they have done something wrong, but they're allowed
to maintain their position, sometimes even get raises and
bonuses, that should be unacceptable. You're sending a signal
throughout the entire VA that----
Mrs. Kirkpatrick. Thank you. I'm sorry, I'm just going to
go quickly to Dr. Mitchell and then Mr. Davis.
Dr. Mitchell. I think that most whistleblowers want to make
sure that--they are willing to put their careers on the line,
but they want to make sure that if there is retaliation, it
will be investigated immediately. Right now they sent out the
memo that said all the places you could go if you felt you were
being retaliated against. Those haven't worked in the 16 years
I've been there. No one that I know of thinks that they'll
work, and they're waiting to see what will happen.
Mrs. Kirkpatrick. Thank you.
Mr. Davis.
Mr. Davis. I think the body that's going to be responsible
for enforcing whistleblower protection at VA cannot be a part
of VA. I can tell you that whistleblowers who shared
information with me to take to the committee are scared to
cooperate with the OIG.
Mrs. Kirkpatrick. Thank you, all. I've run out of my time,
but thank you all very much.
And thank you, Mr. Chairman, for the extra time.
The Chairman. Thank you, Mrs. Kirkpatrick.
Mr. Flores, you're recognized for 5 minutes.
Mr. Flores. Thank you, Mr. Chairman.
I thank each of you for your service to our veterans, also
for your courage in joining us here tonight to share your
stories.
Dr. Mitchell, as you know, the VA has had several internal
investigations now. We've had reviews by the medical inspector.
We've had OIG inspections or reviews. We've actually had a
couple of high-profile resignations. And so in response to
that, the VA has begun to make some changes and take some
actions to try to deal with the news that's come out.
My question is this: Based on what you've seen so far, will
any of the changes in activities that the VA's been involved in
the last 3 or 4 weeks really make a measurable difference in
the care for our veterans?
Dr. Mitchell. No. Right now what's happening is that
although they've checked into--looked into the appointment
scheduling, nothing has changed for me. The chain of command
that refused to investigate nursing retaliation is still in
place. The chain of command that authorized a written
counseling for violating a policy and then said they don't have
to tell me what policy I violated is still in place. The chain
of command that interpreted the 24/7 Federal contract to mean
that I could be forced to work unlimited scheduled shifts for 2
years without any compensation is still intact.
You've only addressed the scheduling issue. You certainly
haven't addressed what's happening when you bring all those
vets in, and you've already got your physicians overloaded.
Mr. Flores. Okay. That's the answer I was afraid that I was
going to get.
Dr. Head, I think you passed over something pretty quickly
in your testimony. You said that your pay was stopped for a
while. Did you say that?
Dr. Head. Yes.
Mr. Flores. Were you ever told why it was stopped? Was it
blamed on administrative error or what?
Dr. Head. I was accused of time card fraud, and they said
they weren't going to pay me. And when I obtained an attorney
and showed proof of my presence, they paid me. But it took a
number of months to do that, and, you know, I interpreted that
as clear retaliation. It was a very painful time when that
occurred, and they really gave me no clear explanation.
Mr. Flores. That's truly amazing that the Federal
Government would do something like that.
Mr. Michaud asked a question regarding legislative fixes to
some of the things we're talking about. Let me ask you this: I
mean, is there any legislation that we could do to fix the
culture at the VA? I mean, I think what each of you have said
clearly in your testimony, we have a real cultural issue, a
sick culture at the VA. What can we do legislatively to fix
that, if anything?
Dr. Head. I'll be very brief. You know, I think there has
to be some fear of accountability. Currently evidently certain
individuals feel they can act with impunity; that either the
system is too slow to respond, or maybe it never responds. But
they fear they can engage in these activities and know that
they have government attorneys to represent them on the
taxpayer's dollar to protect them in these legal fights. And
sometimes they know they're absolutely wrong, and they have a
protracted battle on purpose because they know most individuals
can't withstand that type of punishment.
Mr. Flores. I see.
And, Mr. Davis, anything you could add to that?
Mr. Davis. I would echo what I said earlier. You have to
spread the accountability. It's one thing to have a VA manager
go through initial lawsuit or some sort of just claim of
retaliation and be represented by an attorney, but when you see
a pattern behaving--just as when we look at people's time
cards, if you see people constantly taking Friday off, you know
something is probably wrong, if you see the same VA manager
constantly being represented by the General Counsel's Office,
then at some point you need to less that coverage.
Think about it like car insurance. If I keep banging my car
into other cars, I'm going to get dropped off the policy. So if
the VA official continues to put the agency at risk of
litigation and liability, then the coverage should lapse as
well in that situation.
Mr. Flores. Dr. Mitchell?
Dr. Mitchell. I would agree with the others on the panel in
the interest of time.
Mr. Flores. And, Dr. Mathews, you can go until the light
turns red.
Dr. Head. Okay. I'll be more mindful.
So if I had two wishes, the first would be that the data
integrity should be there, because once the data is transparent
and accurate, I think, you know, our lawmakers can act on it,
the veterans service organizations can act on it, the
newspapers can report on it. Now, if they just cook up data,
there is no way to even find out that there is a problem, so
that would be number one. And the second thing--and, at least
for a short while, to take away that responsibility away from
the VA, of managing their old data. And the second is, I agree
with everybody else about accountability and not having
lifetime tenured positions.
Mr. Flores. Thank you, Dr. Mathews.
I yield back, Mr. Chairman.
The Chairman. Thank you.
Dr. Ruiz, you are recognized for 5 minutes.
Dr. Ruiz. Thank you, Mr. Chairman.
Thank you all for being here.
I'm an emergency medicine physician, and oftentimes we're
put in a position where we are the last stop for our patients,
the gatekeepers, and also in the front lines in taking care of
our patients. And I understand that we have to sometimes fight
the system very hard in order to do what's right for our
patients, because if not us, then who?
And I appreciate all of your efforts in advocating for your
patients despite the consequences and the risks that you put on
yourselves regardless of your specialty or of your
responsibilities in the hospital, and that's admirable, and
that's what I refer to as a high-quality, veteran-centered
culture of responsibility and accountability in our VA system
that we need to transform into. We're not there yet, and we
need to make sure that we apply the mechanisms, the processes
and the evaluations within the system that will lead to a
veteran-centered institution.
Now, having said that, in the private sector and in our
training as physicians, there's a form of ceremony that we do
that ensures that we address these atrocities, and that is the
M&M rounds, morbidity and mortality rounds. Do you have those,
Dr. Head and Dr. Mitchell?
Dr. Mitchell. Not for the emergency room. I know that they
exist in surgery service.
Dr. Ruiz. Do you have one, Dr. Head?
Dr. Head. Yes, we do. It's more traditionally in surgery,
but we have equivalents for internal medicine, also for
emergency.
Dr. Ruiz. I think all specialties should have them.
Emergency medicine practices throughout the country also have
them where they review things that went wrong, mortalities,
people that have died, and what were the causes of those. Do
you have the COO of the hospital or Administrator sitting in to
listen in to determine if there was any lapses of any
systematic failures that led to those problems? Dr. Head?
Dr. Head. Traditionally there's several layers. We have our
risk management committee, then it's presented to risk
management. I often will hear things either through the tort
process or a week or two after it's been presented, and then
egregious activities presented by our Chief of Staff directly
to the COO.
Dr. Ruiz. Well, there should definitely be metrics based on
those morbidity and mortality results and classifications to
determine if it was a staffing issue, a medical error, any lack
of processes or following in integrity and practice, or lack of
judgment, et cetera. And that will give information as to what
needs to happen, and that information should be directly linked
to the COO's and the Administrator's ability to make those
changes that are necessary.
The other way to ensure a systemic and a transparent, open
way to evaluate certain practices so that we don't have to rely
on whistleblowers are through chart reviews and spontaneous or
random audits. Do any of that exist in your practices?
Dr. Mitchell. I was the person that would look at the
issues that would come up, because the physicians would give me
all their cases. I asked them to do that so that I would be the
only one that would be retaliated against by the nursing staff.
I do know there is a process of looking at suicides in our
facility, but the chain of command over that area refuses to
release that information. That was not even available to the
suicide prevention team members when I asked them.
Dr. Head. And the M&M process is only as strong as the
people who self-report those issues. If there is a
complication, it's not reported, it can become invisible.
And the other thing, too, is another strong part of our
component, of our institution's root cause analysis, but that's
only as strong as the ability to actually report an incident.
If an incident is not reported, then it can go invisible. And
usually I will catch it later, several years down the road when
it's coming to the tail end of the tort process. It's too late
at that point.
Dr. Ruiz. Yeah. I agree, and I think that mortality is very
evident. When somebody dies, that should be investigated and
determined if there was any wrong during that care for that
veteran. I believe that part of the solution, and I'm very
encouraged on Ms. Kirkpatrick's efforts and advocacy with the
Phoenix VA, and I appreciate her leadership, and I believe that
the idea of taking the responsibility away from those that will
have to do self-evaluations, from those supervisors, and
placing it in another location that has more of the advocacy
role is a very good idea.
With that, I yield back my time.
The Chairman. Thank you very much, Doctor.
Mr. Runyan, you're recognized for 5 minutes.
Mr. Runyan. Thank you, Chairman.
And thank you, all, for, again, your courage to come out
and stand up for our veterans.
Mr. Davis, I want to just put this out there because I know
Dr. Ruiz just talked about this, and Ms. Kirkpatrick had ran
out of time, but, again, a statement you made earlier: Can the
VA police itself, and if not, who?
Mr. Davis. Thank you. I don't think VA can police itself.
It's kind of like a scholarly journal; you don't peer-review
yourself. I would look at maybe an organization like the
Government Accountability Office maybe finally setting up some
sort of oversight panel of healthcare professionals.
One of the things I will tell you that VA employees talk
about is during the financial crisis there was talk about
bringing people like Elizabeth Warren. During the talk about
national security issues, they talked about bringing back Dr.
Gates. When we had the crisis in VA, we were sent the Deputy
Chief of Staff, and that is no disrespect to Mr. Nabors, but
where's the medical leader that's going to come rescue health
issues at the Nation's largest health organization? And I think
that's the issue. It goes to the issue of how people look at
VA.
One of the reasons why I reached out to the White House was
because I was trying to find the person who could answer
questions and resolve the issue. We have almost a czar for
almost everything you could imagine in this town, but not one
for veterans, and I think that's the issue. There has to be an
outside source to say, Mr. Chairman, Members of Congress, Mr.
Speaker, Mr. President, I have noticed this information; this
information came to me; it's not going to work.
In terms of the context of giving the Secretary the right
to fire people, in November 2013, a memo was released by the
Assistant Secretary for Human Resources stating that employees
were not to go to the Secretary's office about complaints
because it obstructs the final decision of disputes, but he
still will accept confidential emails. Well, if that's the
approach they take, even if we change the law, we still would
not get the information to the right people to hold the 400-
and-something-odd people accountable. There has to be some
change in the law to allow outside institutions to become the
policing organization over VA. It's simply not going to come
from within.
Mr. Runyan. Which kind of leads to my next question, and
I'll ask Mr. Davis first, and if there's any time left, I'll
ask Dr. Mathews to follow up. Because Dr. Mathews said in one
of his statements that he doesn't necessarily know that it gets
above the St. Louis regional into maybe the central office. Can
you shed some light on that?
Mr. Davis. I can shed light on that. I will tell you the
only reason why my case got to where it was, because I didn't
go through the elongated grievance process, because that's a
way of trapping the employee and constantly filing complaints,
filing complaints, appeal process after appeal process.
What I decided to do was to go to the person at the top,
the principal executive in our organization, and I sent the
information to him. When that didn't work, I sent it directly
to the Secretary. When that didn't work, I went to my
Congressman. So I think that we have to put something in place
which would allow VA employees to fast-track the grievance
process.
And it depends on the variation. If it's something, me and
supervisor doesn't get along, well, that can go through a
normal process. If it's about patient care and the welfare of
human beings or lost applications to people who have served in
Iraq and Afghanistan, that needs to be fast-tracked and brought
to the forefront.
In Ms. Hughes' case, when she was conducting the
investigation of the 2,000 missing applications, once the
Director said stop, there was no recourse for her. And so I
think we've got to find something to put in place to allow
these complaints to kind of go to the forefront based upon the
severity and the critical nature that they represent.
Mr. Runyan. And with my remaining time, Dr. Mathews, I
mean, you made the statement. Do you have a sense if central
office sees this as an issue? Because it seems like there's a
disconnect.
Dr. Head. Well, there is a disconnect, and, you know, I
really don't believe any of the data that the VA puts out,
unfortunately. And, you know, we have to have data integrity,
and how we, you know, are basically talking about ways to make
that happen, and that at least at this time, maybe for a
temporary period of time, we need to have an external agency
that has higher integrity than the VA looking into the data,
looking into these complaints and triaging as to what needs to
happen first and what can wait.
And unfortunately, the VA has demonstrated over and over
again that they are not able to police themselves. They are not
able to come up with honest, negative information. And it,
again, is not an academic exercise; it really hurts the lives
of our veterans.
Mr. Runyan. Thank you.
Mr. Chairman, I yield back.
The Chairman. Thank you.
Ms. Kuster, you are recognized for 5 minutes.
Ms. Kuster. Thank you, Mr. Chair, and thank you to all of
you for your courage in coming forward. We appreciate it, and
we understand the risk that you are taking, and just know that
we are your witness. If there is anything that happens to you,
please be in touch with our offices.
I would like to follow up on Dr. Ruiz's questions to Dr.
Head and Dr. Mitchell. In the private sector, in the healthcare
field, we have a process of quality assurance that sounds like
maybe what you're doing in your root cause analysis, but to get
at the issues that impact patient safety and the safety of
veterans, but also some of the staffing issues, Dr. Mitchell,
that you raised in your testimony.
Is there any type of process within the VA for sharing best
practices or for determining what are effective mechanisms? The
types of problems that you are describing we perhaps are
fortunate not to have. I have toured our VA facilities in
Manchester, New Hampshire, and White River Junction, Vermont,
and found very high levels of competence, and access and
quality of care. So I'm wondering, what is the practice of
sharing best practices, and how would you go about improving
upon that?
Dr. Head. Well, in 2012, November of 2012, I noticed a
spike, increased number of veterans who were presenting with
advanced cancer. And once I did a little research, I found they
were in the system, but, for whatever reason, they weren't
either receiving a screen, like a colonoscopy, or there wasn't
really follow-up, and that troubled me.
So I sent the email to the Director around 1:30 in the
morning saying that we should follow the practices that are
well established in the community and the standard of care
within the National Institutes of Health. And it's around 50
pages. There are flow diagrams, standard operating procedures
to kind of make it basically idiot-proof that when you have
certain patients that come in, that you should have guidelines
of when the patient should be screened, when they should
receive treatment; that if they have cancer, they need to be
presented a multidisciplinary team so we can expedite therapy,
because most therapy is a multimodality of either chemotherapy,
radiation therapy, surgery, if possible.
For whatever reason, this was not happening in the number
of patients that I saw. And so I encourage us to adopt some of
those things. And but----
Ms. Kuster. Did you have any success with that?
Dr. Head. Well, I had some success, but I think one veteran
who's in the system who doesn't receive the screenings
necessary is too many, in my opinion. And so I thought that we
should have more--those type of ideas should always be flowing
within the VA to have procedures so we don't miss the veterans.
No veteran should be left behind, even if it's cancer.
Ms. Kuster. And is there any process for quality
improvement? Is there any--do you have any procedures or
protocols within the VA system that you could bring forward
these types of standards and procedures?
Dr. Head. That's what I'd like to do. But, you know, I
can't say I've been able to do it because of the other
activities I've had to be involved in. But----
Ms. Kuster. Dr. Mitchell, have you had any experience with
that?
Dr. Mitchell. Yeah. There is a whole quality assurance
division in our VA. And certainly I was on an email group for
ER physicians, the Directors, and we shared ideas. The problem
is what we need is a best practice of how to overcome bad
management, because we all knew we were all suffering from
short staffing. We were all suffering from other issues,
problems with nurse triage, other things. We just couldn't get
anyone in our facility to listen to us that had the power to
make the change. Again----
Ms. Kuster. And with the short staffing, were you told that
that was a fiscal issue, that you couldn't hire people, or is
it an issue of timing in terms of getting professionals
credentialed?
Dr. Mitchell. The reason varies depending on the week. It
can be because we're short, there's a hiring freeze. It can be
there aren't enough good applicants, which is often the case. A
lot of times there are fantastic applicants, but the process of
credentialing them takes 8 or 9 months, in which case they've
already found another job.
Ms. Kuster. And just briefly, and I have very little time
left, but I just want to say, Dr. Head, having reviewed your
testimony in the various lawsuits, I'm extremely concerned
about the issue of racial bias in your record, and I just want
to commend you on your courage and your professionalism and
admire the strength that it takes for you to just get up and go
to work every single day. So thank you for coming here today. I
appreciate it.
Dr. Head. That is quite a compliment. Thank you very much.
Ms. Kuster. Thank you, Mr. Chair.
The Chairman. Thank you.
Dr. Benishek, you're recognized for 5 minutes.
Mr. Benishek. Thank you, Mr. Chairman. I.
Want to thank you all for your very, very powerful
testimony that you presented here today. You know, I was a VA
doctor for a long time myself, and, you know, I really feel
that there's a great deal of difficulty in communicating with
leadership.
And I think, Dr. Mitchell, you sort of mentioned it, too,
is that when you find problems within the VA as a physician,
you try to tell somebody up the ladder what the problem is in
order to improve care, there is no one that seems to be able to
get something done. I mean, you talk to your Chief of Surgery
or the Chief of Psychiatry, the Chief of the ER and then you
talk to the Chief of Staff.
Is the Chief of Staff usually an advocate for the
physician, or are they an advocate for the administration? Or
who do you go to then? My concern is that physicians don't have
enough access to management to make changes that they recognize
need to be done. How can we do that better? Let me ask all of
you how to do that.
Dr. Mathews, why don't you start.
Dr. Head. Yeah. Well, you know, in my particular case, you
know, I was the Chief of Psychiatry, and I was going to the
Chief of Staff, and it seems like, you know, these things don't
register, like you said. It's not given the right urgency or
the right priority.
Mr. Benishek. Does the Chief of Staff have somebody that
they can talk to up higher on the list? You know, I mean, that
seems to be the place where it seems to stop, from my
experience working there. Is that the problem, you think?
Dr. Head. Well, you know, I really do not know what the
Chief of Staff----
Mr. Benishek. Dr. Head, what's your opinion about that?
Dr. Head. Well, you know, one person's Chief of Staff came
to my defense, and this person was severely punished and pushed
out. So I do think there are a good people in Chief of Staff.
In our hospital, we have one of the largest VAs in the country,
there is close to 12 Chief of Staff members. You know, some of
them know that retaliation is a problem, and then others are
part of it, so----
Mr. Benishek. Dr. Mitchell, what do you think about that?
Dr. Mitchell. My experience with Chief of Staff, and we
certainly run through several at the Phoenix VA, is that
generally they advocate for themselves. We do have the option
of going above to the VISN level, but often they just refer you
back to the facility director.
Every physician has the ability to go to the local union
office and say they want to organize. There are certainly some
physician groups that have done that that have gotten memos of
understandings to stop the overload of physician panels and
things like that.
But the physicians have to organize themselves in whatever
way they want to approach that, whether it's through the union
or whether it's by themselves, and then going through
management. The problem is everyone is too afraid to do
anything because the risk of retaliation is so real, and that's
the loss of your livelihood at best. At worst, it's the loss of
your career and your ability to be employed anywhere within the
vicinity of that VA.
Mr. Benishek. Can you tell me more about this--I understand
there is kind of a sham peer review thing. Can you explain that
to me again?
Dr. Mitchell. Normally a legitimate peer review is where
someone has questioned the ability of a physician to meet----
Mr. Benishek. Well, I'm familiar with M&M, morbid and
mortality conference. That's where we typically would do that
in my hospital setting.
Dr. Mitchell. It's more than just an M&M, though. Everyone
can make a mistake, and things can be overlooked. A peer review
is where you are so afraid that this person is not practicing
up to the standard of care that you pull a large section of
cases and have his peers review them to see if there are truly
significant deficits in the person's ability to practice
medicine. That is only supposed to be done in extreme cases
where there truly is legitimate concerns that this physician is
not up to standard as far as practice.
Sham peer review is where you have the ability to call a
review, a major review, of a physician's cases. If you can't
find anything that they have done wrong that's significant,
then what you can do is put kind of subjective findings; well,
this physician, you know, doesn't necessarily practice with the
most professional ability to interact with people, or something
very vague, very subjective.
What happens is that in the medical community, peer reviews
are only done if there are huge red flags. That's the reason
why it's important that if you were ever the subject of a peer
review, you have to report it on a license or a job
application. Most people that don't work in the VA don't
realize that peer reviews are done as punitive actions in the
VA in order to sabotage a physician's credibility. It's also
incredibly demeaning and debasing for a physician to go through
a peer review practice because they are practicing
professionally. Psychologically it's so stressful, most
physicians would quit.
Mr. Benishek. This is done by other physicians on the staff
with you, though.
Dr. Mitchell. Yeah. Usually it's the Administrator and then
friends of the Administrator. They all get together and say,
this guy, you know----
Mr. Benishek. There is not a physician, then, you're
saying? There is not really peer review.
Dr. Mitchell. No, it's physicians. Just because someone has
an M.D. doesn't mean they have ethics.
Mr. Benishek. I guess I'm out of time.
The Chairman. Thank you, Doctor.
Mr. Walz, you're recognized for 5 minutes.
Mr. Walz. Well, thank you, Mr. Chairman, and, again, I will
associate myself with my colleagues. Thank you, all, for the
work you are doing, because you understand the corrosive nature
of this is not just the personal damage that is done to you,
but, as each of you have so clearly stated, and eloquently and
with passion stated, it hurts our veterans. That's what's at
stake here, too, so I appreciate that.
Mr. Davis, you summed up what I've been beating this drum
for years: There is no national veterans strategy. When I asked
them what their strategy was, they give me a goal that they're
going to get to. There's no strategy how to get there. So it
doesn't surprise me when you call the White House, they're not
quite sure who to send, they're not quite sure who to go with,
because it doesn't work that way.
I've been asking for a quadrennial vets review just like we
do in DOD so that we can have a strategy, we can resource it
correctly, and we can have the things in place to make the
corrections, but that is lacking.
And I would go further on this, and I could tell each of
you that we're coming to this how do we get this. I am with Dr.
Mathews. I will tell you, Dr. Mathews, I am not putting my
veterans' health care nor my reputation on the data I receive.
So when people ask me how are the local facilities doing, I am
worried to tell them. I said, well, the data they've given us
is showing this. I'm out there every day. I'm someone who has
been there.
But here we sat, and my colleagues will tell you this,
months ago we got flagged after the audit, and we had some of
our facilities flagged. And they sat right there, and those of
you sitting in the VA behind there, you can be sure that we
want an answer, and we will ask you again tonight, whether it's
your field or not, why don't we know what happened at
Rochester? Why is it flagged? Why is it flagged? Can somebody
speak to that? Can somebody say? And tonight we get general
counsel. They all blamed you in all the other hearings, so now
you get the answer tonight.
But I would suggest this--and not to point at you, because
I know the good work that is going on. I would submit to all of
us here, the watchdog on this and the outside agency to look at
this is here, is us. We are given the constitutional right to
do it.
When I go home, I'm asked about this, and I should be held
accountable of where this is asking, but we don't know where to
get it. And I would suggest that this committee is the most
nonpartisan in many cases. The staff that sits up here, I can
go to either one, the majority and minority, and get answers to
fix problems for veterans because that's what they do, but it's
been historically understaffed.
I would like to send this staff out there to tell me what's
happening in St. Louis, to what's happening in Los Angeles,
come back to report so I get it from the horse's mouth, because
right now I can't trust where that data's coming.
So that's my soapbox to each of you. And we all feel very
strongly, but we have to come up with a solution. We have to
have an accountability. We have the constitutional power. We
need to get some authority to be able to do this. We need to
add to these good staffers who are up here so that they can get
out there and ask the questions and start doing this.
And I would suggest or put forward to each of you, maybe
I'm a little Pollyannaish on this, but, I mean, it's just
beyond the pale to me that there's people acting--I'm a high
school teacher. This is bullying. I mean, this is what it
amounts to. You talk about horizontal violence. There's been a
lot of research done on this. Here's what happens when you have
that: Increased turnover; lost productivity; employee loss of
motivation, commitment, satisfaction; lots of lateral
transfers, lawsuits; and adverse impact on patients' customer
satisfaction. We know all that. That research is out there.
The question I have is that we can say it's the VA, we can
go down this it never happened in the private sector. It
happens in the private sector, too. This is about people and
accountability.
What we need to figure out: National strategy, put in place
the accountability pieces, have the elected people who get here
by the public's will who want to get this right, and then have
the resources and the power to make sure it happens. Because
there's wonderful people--you work with them every day--
providing great care.
Mr. Walz. One question to you, Dr. Mitchell. You said, over
16 years, the care has improved at Phoenix, the care of
veterans. How do you simultaneously improve care while this
corrosive culture has existed? Is that just the quality of the
people that are coming there to work?
Dr. Mitchell. Yeah, what you have is you have an incredible
force for change in your employees. The majority of employees
are veterans themselves or family members of veterans. They
give incredibly good care, whether it's direct patient care or
whether it's indirect care.
And so, despite the fact that there's a knot that their
stomach when they try to get in their car to go to work,
despite the fact that they know that their supervisors are
going to harass them all during the day, they try to give the
best care that----
Mr. Walz. So that's really happening? So when someone says
the care--when my veterans say the care at the VA, once you get
in, if you can get past that--I would ask each of you, have you
been in different VA hospitals? Does Minneapolis look like
L.A.?
Dr. Mitchell. I've only been in Phoenix, and we give tons
of really good care. The problem is, with healthcare needs,
when you ignore them, a veteran falls through the cracks, and
that has devastating consequences to their health.
So what we're focusing on is the hundreds of thousands of
cases where there's been bad care given. We shouldn't lose
sight of the fact that we give millions of instances of quality
patient care. And that's the reason why the VA is worth saving,
because our employees make it worth saving.
Mr. Walz. Well, our young residents and our young graduates
of our medical institutions, will they still choose to continue
to go to the VA like you did and give careers? Because my fear
is this: We drive them away, we make it so unattractive, we
make it so poisoned that we can't--and I'd just----
Dr. Mitchell. I wouldn't recommend, in the current state,
that people get a job at the VA as a physician until there's
some guarantee that whistleblower retaliation will be
protected, that the pay will be the commensurate with what's in
the community, that there's a professional work environment.
Everyone just--I'm really proud to be a VA physician----
Mr. Walz. That's a nightmare scenario for me, because we
know what the numbers look like, we know the care that our
veterans are going to need, and we've got to get this figured
out.
So I yield back. Thank you, Chairman.
The Chairman. Thank you, Mr. Walz.
Mr. Huelskamp, you're recognized for 5 minutes.
Mr. Huelskamp. Thank you, Mr. Chairman.
I appreciate the witnesses coming and visiting with us
tonight and sharing your story.
And I'm particularly troubled by the last comment, the
suggestion, the recommendation that folks look for employment
elsewhere until these problems are fixed, Dr. Mitchell.
One thing I would ask for each you: Each named superiors or
other senior staff who ignored your pleas, violated your
confidentiality, knowingly injured veterans or placed them at
risk. Do you know if any of these have been punished or
censured by the VA?
I'll start with you, Dr. Mathews.
Dr. Head. No, I do not know. And, you know, with the
whistleblower retaliation and cooking up numbers, it's
basically sending all the wrong messages, that it doesn't
matter, care is optional, we'll protect you, we'll come up with
the numbers. You know, it's so corrosive.
And, you know, going back to the point of Mr. Walz, I
started the Washington University residents rotating through
the VA. And I had one resident, who was very good, who wanted
to join, who did not. And I had two other people I knew in the
community who were excellent psychiatrists, trained at very
good places. And they came and interviewed, but, you know, they
couldn't, they didn't want to work in these situations where--
they were wanting to join because I wanted to build a good
mental health clinic there. And then it was inconceivable that,
you know, they just removed me from that position.
So this is a very corrosive--it's very demoralizing to a
lot of the ethical people who work there, as well, because they
see either they have to leave or they have to just keep quiet
and suffocate internally. I think that there are no other
choices there.
Mr. Huelskamp. So there's no doubt in your mind other
employees see the mistreatment, the violations, and see your
treatment and choose to remain silent in the face of that.
Dr. Head. I absolutely know that for a fact, that that's
the case.
Mr. Huelskamp. What would you recommend--and all members of
the committee have probably heard from constituents since this
scandal really broke open, and the committee's been looking at
this for a number of years. But what would you recommend to
whistleblowers that have knowledge, have this concern, that
share your doubts about how they'll be treated? What should
they do? Who should they turn to?
I've had three to four whistleblowers. I showed up
unannounced for a surprise visit to a facility, somehow was
able to get in and started to uncover things. But what do I
tell whistleblowers when they say, Congressman, this is what
we've seen happen, but we're not going to tell you our name
because we're afraid we're going to lose our job? What should I
tell them?
Dr. Mitchell. Well, at this point, you could give them my
name, and I'll report it. Since I've already got a target on my
back, it doesn't matter.
Actually, that's what's happening. I've had multiple phone
calls from physicians from VAs across the country. There's a VA
facility that's bedsore-free, not because they don't have
bedsores, but because the physicians and the nurses were
forbidden to document bedsores.
There's several--and there are many, many, many issues.
I've certainly contacted Jeff Miller's, or Representative
Miller's office and gotten a phone number of someone who said
that they would maintain the confidentiality and investigate.
And, at this point, I would tell whistleblowers to go to the
Congressman or see Mr. Miller. And that's a problem above my
pay grade.
Mr. Huelskamp. Yeah, and that's what's happened in our
office.
Mr. Davis?
Mr. Davis. Yeah. I would say, I've had several
whistleblowers come to me directly, and I've shared their
testimony with the committee, and I've actually read some of
their statements into the record. And I, too, would say those
that I know are familiar with the administrative process side
of the House, I'll be more than happy to take their
whistleblower complaint to the public. I think that's our
ability to do what we can. My background is communications, so
I was able to navigate through the press process a little bit
quicker than most whistleblowers.
And I think that's the key thing. It doesn't take everyone
to do the same thing. Some people may be comfortable at just
going to the IG. Some may be comfortable going to their
Representative or Senator. Some may be comfortable going to the
press. But there's different levels of whistleblowing. You
don't have to go as far as we did. I think we're something--a
little bit, in some cases, the exception. But I think there are
different ways you can get the information out.
And there are different people who want to report it.
There's interest groups, there are civil groups, there are
veteran service organizations who would be more than happy to
get the information. They have the right connection with many
of the leaders in Congress. There are different ways you can
get the information out. But I will tell you this: You feel
much better when you say something versus holding it in.
Mr. Huelskamp. And I have no doubt there are VA employees
that are as concerned as you are listening tonight or seeing
the comments. And, I might add, there are probably--there's
folks out there probably tearing all four of you down for
having the courage and bravery to show up.
But recognize, if you're listening, step forward. And my
office, other offices, we'll be there to carry that water for
brave employees like yourself. So I appreciate your commitment.
Mr. Chairman, I----
Dr. Mitchell. Excuse me, I wanted to make a clarification.
Even though I said I would not recommend getting a job at the
VA, I actually am not looking for a job elsewhere. The VA is
really important work. I would tell those people they're
working--they'd be working with great people, but they have to
have a true understanding of the administrative culture and
where it stands today and then make the decision.
Mr. Huelskamp. Yeah, Dr. Mitchell, there is no doubt in my
mind your commitment to our veterans, so thank you.
And, Mr. Chairman, I yield back.
The Chairman. Thank you, Mr. Huelskamp.
Mr. O'Rourke, you're recognized for 5 minutes.
Mr. O'Rourke. Thank you, Mr. Chairman.
To follow up on Mr. Huelskamp's statement, Dr. Mitchell, I
couldn't help wondering during your testimony and in the answer
to many of the questions that were asked of you, as you
detailed the ostracism that you endured, the being shunted
aside when you made problems for management, ending up in a
position now where you say you're doing good but it wasn't the
position that you signed up for, and then I know you just
clarified it but earlier saying you would recommend to somebody
who's thinking about working for the VA, not now, not until we
get accountability and oversight and protection for
whistleblowers, I couldn't help wondering why you stayed.
Dr. Mitchell. I stay for a couple of reasons. One, the work
is incredibly fulfilling and important. I went back to medical
school specifically to be a VA physician because I saw there
was a great need.
Everyone who works at the VA knows there are limitations.
That's--we're a Federal department; there are limitations. The
veterans are so grateful for the quality of care. You'll see
such a wide variety of people at the VA and, certainly, disease
states. From a physician standpoint, it's interesting. My
background is geriatrics. It was a playing field for geriatric.
In fact, ER was geriatric urgent medicine at its best. It's
very interesting, it's very fulfilling.
I don't always feel so resilient, though, as a physician
there. I'm definitely tenacious, I'll give myself that, but
sometimes it's really hard. There is that knot in the center of
your stomach driving in, where you just don't want to show up
because, as much as you love the veterans, the administration
wears you down, and you begin to doubt your own professional
abilities.
Mr. O'Rourke. Just from your answer to my question and what
you said earlier--and, really, for everyone on the panel, I
mean, we keep asking about culture, which is the most important
issue but probably the most difficult task before us as a
country in terms of turning around the VA, but you really
represent the culture that I think we're looking for and that
we want to see throughout the system, not just at the provider
level, at management, at the Secretary level, on through this
committee, and, again, as a country. So I want to thank you for
that and thank you for the example that you provide.
But I also want to follow up on another comment that you
made. You mentioned surviving 16 years of this. And these
problems didn't just occur, you know, under this administration
or the administration prior to that, but they're longstanding.
And I remember--I've been here for a year and a half, and
one of the first hearings I attended was a joint hearing with
the Senate VA Committee, where we heard from the veteran
service organizations. And I remember a commander coming before
us and saying, you know, this is my--I don't know what the
exact number was--this is the 32nd time I've appeared here,
I've been coming up for decades, and I've been saying the same
things over and over again.
So you said that this is a system worth saving, but my
question to you is, is it salvageable?
Dr. Mitchell. Oh, yes. You've got thousands and thousands
of employees that are dedicated to the veterans and the welfare
of the veterans. I am really discouraged when I hear people say
the VA is too big to change. You have an entire group of people
that are ready for a revolution, and they want this. They want
a productive healthcare system delivering good care.
The horizontal violence has to stop. That was one of the
implications of whistleblower retaliations, that it affects
care because you don't speak up to say what the problems are
because you're afraid of the repercussions. The corollary to
that is that you begin to--it's a pressure cooker--you begin to
pick on each other. Gossiping, bullying, exclusive cliques at
work. We kind of feed on each other because we're don't know
what--we're under so much pressure. And that needs to stop,
too.
Mr. O'Rourke. Yeah.
I wanted to--and each of you have given us some ideas and
some direction on how we can make those changes, but I do
wonder how we're going to be able to do it after so many years
and so many fundamental systemic problems.
Dr. Mathews brings up the issue of not being able to trust
the integrity of the data, which has become obvious to all of
us. And I commend your efforts to measure those things that are
important to patient care and outcomes in the facility at which
you worked. We've been trying to do that in El Paso. We've seen
similar attrition rates of over 40 percent of veterans seeking
mental health who can't get an appointment just give up and
stop trying. And we can only, right now, because we don't have
the full story, wonder at the outcomes.
Mr. Flores and I and Mr. Jolly and others on the committee
introduced the Ask Veterans Act, which would not rely on the VA
to tell us how the VA is doing but ask veterans to do exactly
what you are trying to measure in your facility.
So, anyhow, let me just conclude by thanking you all for
what you're doing. And I hope that the recommendations and
direction that you gave us tonight lead to some of the cultural
changes that we all know are essential to turning the VA
around. So thank you.
Mr. Chair, I yield back.
The Chairman. Thank you, sir.
Mr. Coffman, you're recognized for 5 minutes.
Mr. Coffman. Thank you, Mr. Chairman.
Thank you all for stepping forward as whistleblowers. I
believe that the rank-and-file in the Veterans Administration
are, in fact, employees that truly care about serving the needs
of our Nation's veterans. And without the whistleblowers, such
as yourself, who have had the courage to step forward, we would
never know the problems that exist within the Veterans
Administration, because none of the problems have ever been
self-identified by the leadership within the Veterans
Administration. We've always been aware of them simply by
whistleblowers coming forward and sharing with us the reality
of what is occurring on the ground within the Veterans
Administration, particularly the Veterans Health
Administration.
Mr. Davis, one thing, I think, when we became aware of--
started to become aware of the magnitude of the crisis, it was
concerning the patient wait times and the fraudulent changes in
terms of those records, often fueled by a drive for bonuses.
Mr. Davis. Uh-huh.
Mr. Coffman. But what you're saying is, actually, the
problem was much deeper than simply patient wait times, that
they were also denying people inside the system. Is that
correct?
Mr. Davis. They were actually----
Mr. Coffman. To get into the system.
Mr. Davis [continuing]. Neglecting the applications. And I
think this is where I think we have to look at--you can only
get the appointment if you're enrolled.
Mr. Coffman. Oh, okay.
Mr. Davis. And so we have systemic problems in the
enrollment system.
And to give you some context--you may hear this from the
next panel--the office where I work, the Health Eligibility
Center, is about to start what they're calling a command
center. This is something that they're going to probably send
to VA leadership, perhaps even this committee.
But I want you to understand that real change will only
come from real solutions at VA. Currently, this is part of what
I call the gimmicks that go on at VA. We announce something,
give it a new name, and we send it out, making the public and
the leadership on the Hill think there's a change.
But I will tell you, when you look at this document, the
communication training people perform communication training
every day. That's not anything new. The enrollment people
perform the enrollment task. The call center people perform the
call center task. This is not going to change anything. The
strategy is to take people from the fifth floor and put them in
a room on the second floor. This is what constitutes responding
to veteran concerns at VA.
And so I think what has to happen, what I would encourage
the committee to do is follow something that I do think does
work in business, and that is make people sign off on the
reports they turn into the Congress. I can tell you what's
disappointing to me, as a citizen and a VA employee, is to
watch leader after leader in the VA sit in these chairs and
say, ``I don't know. I'll get back to you. So-and-so was
supposed to do that. General Counsel won't let me.'' That, to
me, is just inefficient. If you're going to be in a leadership
position, you first need to lead. And so making people sign off
on quarterly reports to say that I own the data that I turn in,
I own the enrollment records that we turn in.
I doubt very many people in this room knew there was a
600,000 pending backlog at VA or that, last year, 40,000
applications, 18,000 or more from Iraq and Afghanistan
veterans. If people would've known that, something could've
happened. If those reports had to be signed off on by people
like Ms. Harbin, people like Mr. Matkovsky, people in positions
that were held formerly by Dr. Jesse, Dr. Petzel----
Mr. Coffman. Uh-huh.
Mr. Davis [continuing]. This is where the change comes
from.
Mr. Coffman. Right.
Mr. Davis. But you've got to document. One of the problems
we have as whistleblowers, the first time you go to make
something public, they tell you, ``Well, where's your proof?
Where's the document?'' Well, most people are not going to sign
a document, ``I'm deleting applications. I failed to process
applications.'' But this is the type of conversation----
Mr. Coffman. Sure.
Mr. Davis [continuing]. You get when you go and talk to
them.
Mr. Coffman. Well, let me just put it this way. And if you
all could comment on this. The Veterans Administration is so
dysfunctional right now in terms of its leadership, in terms of
the culture, as well, so, I mean, having a new Secretary come
in, the culture is still there. I mean, I hope that the new
Secretary can make the appropriate changes, but it's going to
be difficult.
Do you all believe that there should be an entity really
outside of the Veterans Administration for which a
whistleblower reports?
To Mr. Davis, and then let me go down to the physicians
here.
Mr. Davis. I would absolutely say, yes, it's imperative. If
you really want real change and a true whistleblower
environment where people will come forward, you have to take
the policing power outside of VA.
Mr. Coffman. Dr. Mitchell?
Dr. Mitchell. I would agree. No one trusts the VA to handle
their own problems, nor report it to them.
Mr. Coffman. Dr. Head?
Dr. Head. I agree.
Mr. Coffman. Dr. Mathews?
Dr. Head. I completely agree. I mean, VA doesn't
acknowledge a problem exists. So, you know, I mean, it's absurd
to expect that they would want to fix it. Their position has
been that there is no problem. And we have the numbers to prove
it.
Mr. Coffman. Okay.
Mr. Chairman, thank you. I yield back.
The Chairman. Thank you, Mr. Coffman.
Ms. Titus, you're recognized for 5 minutes.
Ms. Titus. Thank you, Mr. Chairman.
Thank you for being here.
I realize that there's a pattern that leads us to the
conclusion we need to go outside the VA. But aren't we at a
point where there's a real opportunity to make a change because
about nine of the top positions, including the Secretary, are
vacant right now?
So if we can bring in a new leadership team and impress
upon them the need for this accountability, which we have heard
repeated in every hearing, whether it's on the backlog or the
bonuses or whistleblowers, that this is the message, that maybe
we're at a point where we can start to make that difference?
I'm sorry that Mr. McDonald can't come in here and hear
what we are hearing. I know that Sloan Gibson is scheduled to
come, but, Mr. Chairman, we need to get the new Secretary in
here as soon as we can, because he needs to hear the kind of
things that we're hearing so that we can move this in a new
direction.
I would just ask y'all: You're located kind of near my
district in Las Vegas. We have a new hospital. I met with some
of the emergency room doctors there. It was at my invitation.
They were scared to come. They aren't as brave as y'all are.
They wanted to be sure that they knew I invited them, because
they feared some retaliation.
Have you heard--and you travel in small circles. Have you
had any contact with people at the Las Vegas hospital or are
familiar with any whistleblower problems there?
Dr. Head or Dr. Mitchell?
Dr. Mitchell. No. The individuals who've contacted me are
from across the country but not from Las Vegas.
Dr. Head. No, I haven't. And we've had a significant number
of our staff actually relocate in Las Vegas when they were
building their new hospital, but I haven't heard of any
whistleblower problems.
Ms. Titus. Well, I'm glad to hear that.
One other thing I wanted to ask you, Dr. Head, you
mentioned that the first response to a whistleblower is to try
to impugn their integrity. And one of the examples you
mentioned is that they often say is, well, you're just a
disgruntled employee because you didn't get the bonus that you
wanted.
I just wonder, could you talk about maybe the possible
nexus between bonuses and whistleblowing? Are people getting
paid to be quiet?
Dr. Head. I don't--well, I have no evidence of people
getting paid to be quiet.
But I do think, you know, there is a tendency to try to
generate a motive for why someone is coming forward and telling
the truth or reporting wrongdoing, and it's often associated
with somehow a personal gain from a whistleblower. But I'll
tell you, there is no personal gain from being a whistleblower.
Even when you go through long litigation and you ultimately
win, you know, there's no financial incentive whatsoever----
Ms. Titus. Right.
Dr. Head [continuing]. Believe me.
Ms. Titus. Oh, I'm sure of that. I was thinking of just the
opposite, that you keep people kind of tamped down and not
speaking up if you give them regular bonuses. And----
Dr. Head. I don't----
Ms. Titus [continuing]. That maybe keeps that culture of
silence that you mentioned.
Dr. Head. I think you'll see that the bonuses are usually
among the Chief of Staff or higher-ups who are receiving those
bonuses. You're not necessarily receiving bonuses at the level
of some of these whistleblowers.
Ms. Titus. Dr. Mathews or Dr. Mitchell?
Dr. Head. You know, in my experience at the St. Louis VA, I
had productivity data or had data for every psychiatrist as to
the number of patients being seen. And I know that there's only
one psychiatrist, perhaps, who did not get the full performance
pay, which is, you know, what could be considered a bonus, and
that's me. I got 50 percent, and, actually, not for the wrong
reason. They were correct, because I only could accomplish
probably less than 50 percent of what I set out to do.
But it sends a very wrong message, that, you know, the way
to go about in the VA is to just keep quiet, just do what you
want to do, and you will not get into trouble for not working.
You know, the only reason, I think, one can get into trouble is
by identifying problems and coming forward. So that has to
change.
And I think, you know, it's a complex issue if you call it
``culture,'' but I think the fix to it can be very simple:
demanding data integrity and holding people accountable. You
know, that once that starts to happen and once some senior
positions, not people who resigned who, you know, again, have
high integrity that they resigned--I mean, the people resigned
because, you know, they have integrity--but the people who
don't care. And those people need to be fired so that it sends
the message that this is not--this cannot be tolerated anymore.
So, you know, I would say that you are right. You know, the
people who get bonuses are the ones who just keep quiet and
keep doing what they're doing.
Ms. Titus. Dr. Mitchell?
Dr. Mitchell. Well, there's a difference between a
performance measure bonus and proficiency bonus. Performance
measure bonus is what you get if your facility has met the
performance measures to whatever degree. Most of us that are
eligible for those are quite frustrated because the facility
never has the resources to meet the performance measures. And
so there is a bonus per se, but it is nowhere near--we want to
be rewarded for the work we do on our proficiencies.
Our proficiencies are actually how we perform through the
year on our own personal merits, and those are subjective. Our
administrators, if they like us, can rate us high; if they
don't like us, can rate us low and don't necessarily have to
give a reason why.
Basically, most people stay quiet just for survival in the
VA system, not because there's any benefit one way or the
other, at least at my level. I don't know what's in the SES
service.
Ms. Titus. Thank you, Mr. Chairman.
The Chairman. Dr. Wenstrup, you're recognized for 5
minutes.
Mr. Wenstrup. Thank you, Mr. Chairman.
And I thank all of you for being here tonight.
And as I sit here and listen to your testimony, one of the
things that comes in my mind is, somewhere along the line,
through your parents or somewhere, someone taught you about
doing the right thing and about being able to look in the
mirror at the end of the day and know that you're doing the
right thing. And I applaud you for that. And know that you're
respected by those that matter. And those that don't, they have
their own issues. And I appreciate that.
You know, I served in Iraq as a doctor, and we had
something that you mentioned tonight, a sense of mission. We
had a shared sense of mission, and everyone was on the same
page. We're a Reserve unit. We all come from private practice.
There's no room for slacking, and the patients were the first
priority. And you work through the night if you have to, and
you take shifts sleeping. And there's esprit de corps. And
wouldn't you love to be able to practice in an environment like
that every day?
And the people that I'm talking about, these are our
veterans, the ones that provided that type of service and they
provided for the others that are our veterans today. And it's
really sad for me to hear that there is a need for an agency
with a higher integrity than the VA, which was said tonight,
that the people in the VA would be willing to accept that they
need someone to watch over them because of their lack of
integrity.
And Dr. Ruiz brought up mortality and morbidity, and we
talked about peer review. What I'm used to with peer review in
my hospital was you had people from the same specialty
reviewing charts and people that are familiar with the
procedures you're talking about, the problems that maybe exist.
And you do that to try and make things better. And if someone
is really failing, then they have to go, because the reputation
is on the line. And it's not there to be punitive but to make
everything better, as far as care.
So my question is, besides whistleblowing, is there any
chance for provider input, such as, ``We have too much
administrative responsibility, we don't get to see patients'';
such as, ``I need another clinical assistant in here, I need a
PA or a medical assistant, then I can see five times more
patients''? Or do you have the opportunity to say, ``So-and-so
is really a poor performer in the clinic, and it's slowing my
time down with my patients and I don't get to see as many''? Is
that available to you?
I'll start with you, Dr. Mitchell.
Dr. Mitchell. In that particular form, that's not
available.
There are certainly--in section 4 and 5, I talk--especially
4--I talk about the retaliation tactics against providers. And
one of them is failing to fill the ancillary services so the
provider's clinical time is stretched incredibly thin. There's
another one where they overload the provider's patient panel so
there's no way they can humanly get through them.
You're not talking--we're not at the level to be able to
communicate equally with our administration. We're far below.
And anyone that speaks up is retaliated against. We don't have
that freedom to speak freely and advocate for patients and
ourselves.
Mr. Wenstrup. And, as you said before, just because you
have ``M.D.'' after your name doesn't mean you have ethics. So,
in those situations, it may be another doctor, but they're
saying, you don't need this, or, we're not listening to you.
Would that be correct?
Dr. Mitchell. Yes, that would be correct. And for a variety
of reasons. Certainly, a legitimate reason like, you know,
Congress hasn't passed funding, or something like that, we
can't hire anyone, that's legitimate. But there are decisions
that are made, at least as far as we can tell in the rank-and-
file, that are made for the benefit of the administrators, not
for the benefit of the facility or the veteran.
Mr. Wenstrup. Any other input?
Dr. Head. You know, I think it's--I think it's mixed. I
mean, I've seen extraordinary efforts to move mountains, to,
for instance, build a new cath lab in our institution that was
definitely needed. There was----
Mr. Wenstrup. By providers?
Dr. Head. Yeah, by providers. Basically, the provider said
they would no longer practice their craft in an area they felt
endangered veterans. And they were responsive to that. Now, it
took a certain amount of receptive, particularly receptive
leadership. And it also took very stern providers who, as a
group, spoke up and said, this is not right.
And so I did think the response was appropriate in that
instance, but other times I think resources are placed in areas
where there's too many resources and things. And so, again, you
know, it involves leadership.
Mr. Wenstrup. Real quick. I'm almost out of time.
Dr. Head. To quickly add, you know, I was trying to
institute a time map of the available time of a physician and
what's being provided. That, along with veteran satisfaction,
if we have those two accurate measures, we can know which
facility is overloaded. You know, if a physician's time--if
they're putting in more than, say, 50 hours or whatever and
still if there's a wait time and the veteran satisfaction is
not there, then the answer there is more resources.
But in the St. Louis VA, in the mental health, the
situation was that the physicians were--the psychiatrists that
I was monitoring or I was responsible for were working less
than 50 percent of their time. So, you know, the solution there
is more accountability and more efficiency; it's not more
resources. And we can only know that if we have real data that
we can believe.
Mr. Wenstrup. Correct. Well, thank you very much. I
appreciate it.
I yield back.
The Chairman. Ms. Walorski, you're recognized for 5
minutes.
Mrs. Walorski. Thank you, Mr. Chairman.
And I'm grateful, as well, that you're all four here.
And it's interesting that you said something, Mr. Davis,
that I find that I relate to, and I can see it even again
tonight, and you hear it from members of the committee, as
well. But I've been here 18 months, as well. And the typical
pattern of how this issue, with the investigation of the VA and
looking out for our veterans and making sure they get the
health care that we promised them when they fought for our
liberty and freedom. And, typically, a panel comes in--and you
referenced this--and tells us unbelievably shocking stories--
and back to your comment, Dr. Head--that are so shocking and
they're so disappointing, they're disappointing to me as an
American, horribly disappointing to me as representing veterans
in my district, 54,000 of them in Indiana, horribly
disappointing, nothing celebratory about it, just shocking.
And, I think, every time I come to these hearings, I want
so much for a panel to say, okay, we've turned the corner, you
know, we've drilled down, we've routed out the bad actors,
we've turned the corner, and now we can hit the reset button,
and we have a bright future, and we can promise our fellow
Americans and our veterans we have a bright future.
But, again, tonight, you know, we're going to sit here--and
Representative Walz alluded to this, as well. You're going to
walk out of here, and there's going to be another VA panel--
there's been dozens of VA panels--that are going to come in and
give us two answers, either that you're not telling the truth
or they simply don't have the answers to all the questions that
we're going to ask based on your testimony. And that's going to
happen again tonight. And if it doesn't happen tonight, I will
be absolutely shocked.
But, you know, there are dozens and dozens and dozens of
high-ranking members of the VA that come in here and have
really absolutely said nothing.
And I guess my question to all of you, but specifically Dr.
Mitchell, because the Phoenix facility has kind of been at the
apex of this whole kickoff of this urgent reaction time. And
one of the things that has floored me is the lack of urgency on
the part of the VA, that there's a five-alarm fire and nobody
is rushing to put it out.
I'm thinking, if I was in the Phoenix VA and I was
responsible for any of the stuff that's been going on in the
Phoenix VA that the minute this hit the fan nationally, I would
be looking and trying to figure this out double-time and make
sure that my facility is the standard and that we've raised the
standard and that we've reset the record and we are an example
for the rest of the country.
In the 3 months that this has been under the scrutiny of
the American people--and the American people have stood up and
said they will not tolerate this. This committee has said we're
not going to tolerate this either. We're going to drill this
down and rout out these back actors to where we can provide the
best health care to our veterans.
But have you seen anything, Dr. Mitchell, in the last 3
months in Phoenix that says, wow, what a turnaround, they got
the message, people have been fired, they've removed these
people, there's a ton of accountability, and there's
transparency because of the American people demanding
accountability? Have you seen that in the last 3 months in
Phoenix, any kind of turnaround?
Dr. Mitchell. The turnaround I've seen has to do with
scheduling. I've actually had consults. I've actually--because
the backlogs have been reduced, I've actually put in a consult
with the patient, and they've gotten a phone call from the VA
during my appointment with the appointment time for the
consult.
They've certainly done tremendous work getting the veterans
processed. The problem is they only fixed the problem that was
in the media. They haven't fixed the patient care problems, the
hidden mental health delays, although they're certainly working
on that for the psychiatry department.
But it boils down to there are still administrators there
who refuse to address nursing retaliation that was directly
impeding care for ill patients in the emergency room. There was
actually a meeting where five or six of the full-time
physicians told the chain of command this, and they said flat-
out, ``We will not investigate the backlash against Dr.
Mitchell.''
Mrs. Walorski. Well, and we had the Inspector General in
here a couple weeks ago, who said that the issue of routing out
corruption at the administrative level is not going to stop,
it's still actively going on--and you're really corroborating
that it's actively going on, against you--until somebody goes
to prison and people are fired, that there's actually tangible
action taken that, number one, the American people can see;
number two, the veterans, to restore some kind of faith and
integrity in that system where they're going for health care;
and then, thirdly, so your colleagues that you work with, as
well, feel like their backs are covered.
How long do you see, if it took a national urgency to move
the scheduling issue and it took a resilience on the part of
the chairman and the ranking member to really go after this
issue and try to reset it, how long do you see, even if we keep
pressure up, even if a new VA Secretary comes in--if we don't
rout out the corruption, a new VA Secretary won't be any more
successful than Shinseki was.
How long do you see it's going to take to turn this around
if we keep up the same amount of pressure?
Dr. Mitchell. I'm not sure I'm in the best position to
judge that. What I do know is that the media paid attention to
the scheduling issues, and, all of a sudden, I get consults
completed within 10 minutes. The media needs to pay attention
to the lack-of-ethics issue, and maybe we'll get that turned
around.
Mrs. Walorski. Absolutely.
And, Mr. Davis, just quickly?
Mr. Davis. Yes, I wanted to say that I think we've got to
do two things.
I think, first of all, we do need a separate group to look
at VA, because, as you alluded to, when the new Secretary comes
in----
Mrs. Walorski. Yeah.
Mr. Davis [continuing]. He or she, whoever finally gets
approved by the Senate, will have to deal with the healthcare
issue first. They're probably not going to have time to become
the chief of police for VA and also make the healthcare
reforms. So you're going to need some assistance, even if it's
a sunshine law where this operating authority only acts for a
period of years until you get VA under control.
The next thing you have to look at, look at performance
standards for leadership. Unlike those of my colleagues who
work at medical facilities, they may have some legitimate
reasons for their challenges in terms of dealing with their
leadership group. At our organization, our primary function is
to enroll veterans into health care. We stir that away to the
ACA project.
And this is not about the politics of the law. This is
about VA having a public affairs division here in DC, a
national veteran outreach office here in DC, a health system
communication office here in DC. And that project was sent down
to Atlanta for the sole purpose of a senior executive reaching
a performance goal. It had nothing to do with our core
business.
I go back to a previous point I make, why you need an
outside agency to look at this. We have, again, 600,000, and
that rivals the number of people who actually enroll in VA in a
given year. So imagine a year's worth of applications just
sitting in a pending status. Put this in the context of if we
were talking about a bank: 600,000 deposits go in on Monday, we
never hear about them for another year or 2. Do you think the
walls in that bank would still be standing here today?
Yet the men and women who sacrificed for this country have
to deal with this. And why? Not because we don't have the
resources. Because we focused on ACA, we focused on the veteran
dental insurance program. We create marketing materials for
Delta Dental and MetLife. Yet we could put these same little
fliers in a post office, in a grocery store, to let people
know, hey, if you had a pending application in VA through the
years 2000 and 2014, contact such-and-such a number.
The same effort we put in getting senior leadership bonuses
and the same interest we put in attaching ourselves to high-
profile projects is the same amount of attention that needs to
go to veterans.
So I encourage you guys, if nothing else, please make sure
that we move to a system that has more data integrity. Require
the people who come here and sit on these panels to sign off on
the information they turn in to Congress. This way, when they
come back, they can't say, ``That report was done by somebody
else.'' That's the only way. Hold them accountable, and do it
in public, and do it while the cameras are on.
Mrs. Walorski. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Mr. Jolly, you're recognized for 5 minutes.
Mr. Jolly. Thank you, Mr. Chairman.
Dr. Head, what is the relationship between UCLA and the
L.A. VA hospital?
Dr. Head. Like many of our VA institutions, we have an
affiliation agreement. It's a, you know, public institution.
And a number of the physicians, surgeons have joint
appointments with both their chair counterparts within the
university and also with the VA.
Mr. Jolly. So I ask because you're a very egregious case.
And I share my colleagues' comments admiring your courage. But
it was a case, ultimately, against UCLA and the Board of
Regents of California; is that right?
Dr. Head. That's correct.
Mr. Jolly. And so the settlement, the $4.5 million
settlement, was with the Board of Regents of California, not
with the VA; is that right?
Dr. Head. Well, it's a complicated case. I would say, with
my case with the regents, we both satisfactorily agreed to part
ways. But, as you have noticed, there's tremendous overlap, and
there is a Federal component to that.
Mr. Jolly. Right. I guess my--so here's my question. And
I'm trying to distinguish between the fact pattern and the law
on this.
So the incident that you refer to was a June 2006 party,
one of the more egregious cases, which was referred to as a
UCLA party. Was it strictly a UCLA party, or was it also--was
the VA institutionally involved in that?
Dr. Head. At that particular party, there were a number of
members who were employed as physicians at the VA.
Mr. Jolly. Right.
Dr. Head. And, as you have seen, a component of that was
directly related to an investigation that occurred at the VA.
Mr. Jolly. Right. The facts of the case that led to a
settlement with the Board of Regents of California, did the
facts also support a claim against the VA and the law simply
prohibited you from filing some type of legal action against
the VA? Or was the fact pattern specific to UCLA and not to the
VA?
Dr. Head. I won't comment on the--on the State component of
it, but there----
Mr. Jolly. Well, I guess, I mean, here's my question.
Dr. Head. Yes.
Mr. Jolly. Because it is a very significant case.
Dr. Head. Yes.
Mr. Jolly. Do the facts solely lead you to litigation
against UCLA, or does the law prohibit somebody in your
position from seeking redress from the VA?
Dr. Head. The law allows me to seek redress from the VA.
And there is a State component, and there's a Federal
component, and----
Mr. Jolly. But your settlement was strictly on the State
side.
Dr. Head. That is correct.
Mr. Jolly. Okay.
Now, for the entire panel, a question for you: Are you
familiar with the VA's ``Stop the Line'' program, the video?
It's something that I've seen at my--and that's interesting
that you're not, because it's something that has been
highlighted by my local VA hospital as a program that every
employee sees.
It says, for anybody from custodial staff to a doctor, if
they see something that interferes with the delivery of patient
care at any level, it says, ``Stop the line.'' You know, it's
an imagery, if you will, that any employee has the ability to
stop operations immediately out of concern for something that
they might see.
I know it's been adopted at a number of different
facilities, but none of you are aware of this?
Dr. Head. I certainly am not.
Mr. Jolly. Okay.
Dr. Head. More like, ``Stop the train wreck.''
Mr. Jolly. Right.
Well, listen, I will be honest with you. It was promoted to
me as an effort by the VA to encourage every employee to be
able to step up and say there's a problem. But each of you have
already stepped forward in a whistleblower capacity and yet
have no knowledge of the program, which says to me perhaps it
is not as promoted internally as some would suggest it has
been.
Dr. Head. I would say, I felt alone during this long
process that continues. And I find that very disturbing.
Mr. Jolly. Okay. Very good.
Thank you, Mr. Chairman. I yield back.
The Chairman. Thank you very much.
Members, I'd like to go ahead to the next panel unless
somebody has a burning question that they want to ask.
Thank you very much to the witnesses. We do all appreciate
the courage that it took to come here tonight. And we will be
watching, and rest assured, if any of you contacts us, we'll
all jump to protect you from any further retaliation at the
Department. Thank you for being here tonight.
And, Members, we're not going to take a break. We're going
to continue on with the next panel.
Okay. Members, we're going to go ahead and call our second
panel to the witness table.
Our second panel, we're going to hear from the Honorable
Carolyn Lerner, Special Counsel, who is accompanied by Mr. Eric
Bachman, Deputy Special Counsel for Litigation and Legal
Affairs. From the VA, We will hear from Dr. James Tuchschmidt,
Acting Principal Deputy Under Secretary for Health. He is
accompanied by Edward C. Huycke, Deputy Medical Inspector for
National Assessment at the VA's Office of the Medical
Inspector.
If you would please rise again before you get too
comfortable. Raise your right hand.
[Witnesses sworn.]
The Chairman. Thank you very much. If you would take your
seats.
As with the first panel, your complete written statements
will be made a part of the hearing record.
Ms. Lerner, you are now recognized for 5 minutes.
STATEMENT OF CAROLYN LERNER
Ms. Lerner. Thank you.
Chairman Miller, Ranking Member Michaud, and members of the
committee, thank you for the opportunity to testify today about
the U.S. Office of Special Counsel and our ongoing work with
whistleblowers at the Department of Veterans Affairs.
I am joined today by Deputy Special Counsel Eric Bachman,
who is supervising OSC's efforts to protect VA employees from
retaliation.
I also want to acknowledge the many employees at the Office
of Special Counsel who have been working tirelessly on all of
our VA cases. There are too many of them to identify by name,
but several of them are here with us this evening.
My statement tonight will focus on three areas: First, the
role of the Office of Special Counsel in whistleblower
retaliation and whistleblower disclosure cases; second, an
overview of OSC's current VA caseload; and, third, some
encouraging signs of progress.
OSC is an independent investigative and prosecutorial
agency with jurisdiction for over 2 million Federal employees.
We have a staff of about 120 and the lowest budget of any
Federal law enforcement agency.
We provide a safe channel for employees to disclose
government wrongdoing, and we evaluate disclosures using a very
high standard of review. If the standard is met, I send the
matter to the head of the appropriate agency, who, in turn, is
required to investigate and send a report back to me. It was
within this statutory framework that we received and are still
receiving dozens of disclosures from VA employees from across
the country.
The Office of Special Counsel also protects Federal workers
from prohibited personnel practices, especially retaliation. In
these cases, OSC conducts the investigation and determines if
retaliation occurred.
Turning first to VA whistleblower disclosures, we have
found that, rather than using the valuable information provided
by whistleblowers as an early warning system, the VA often
ignores or minimizes problems. This approach has allowed
serious issues to fester and grow.
In the numerous cases before our agency, we see a pattern
where the VA, in particular the VA's Office of Medical
Inspector, admits to serious deficiencies in patient care, yet
implausibly denies any impact on veterans' health. The impact
of this denial has been to hide many of the issues which have
only recently come to light.
My written testimony provides several examples of this
approach, but I want to highlight one egregious example about
patient neglect in a long-term VA mental healthcare facility in
Brockton, Massachusetts. Specifically, the OMI report
substantiated allegations that two veterans with severe
psychiatric conditions waited 7 and 8 years, respectively, to
get mental health treatment. Despite these findings, OMI denied
that this neglect had any negative impact on patient care. This
unsupportable conclusion is indicative of many other cases we
have reviewed and reported on.
Turning now to retaliation cases, OSC has received scores
of complaints from VA employees alleging retaliation. We
currently have 67 active investigations into retaliation
complaints from employees who reported health and safety
concerns. These complaints come from 28 States and 45 separate
facilities, and the number increases daily. Since June 1st, we
have received 25 new retaliation complaints.
In addition to these ongoing investigations, we are taking
several steps to resolve these complaints. For example, we've
reallocated staff and resources to investigate reprisal cases,
and we now have a priority intake process for VA cases. And in
an effort to find ways to work constructively with the VA, both
my staff and I have met with many VA officials, including
Acting Secretary Gibson.
I do think it's very important to note the encouraging
recent signs that we have seen from the VA leadership. There
appears to be a new willingness to listen to concerns raised by
whistleblowers, act on them appropriately, and ensure that
employees are protected for speaking out.
When I met recently with Acting Secretary Gibson, he
committed to resolving meritorious whistleblower complaints on
an expedited basis. If this happens, it will avoid the need for
lengthy investigations and help whistleblowers who have
suffered retaliation get back on their feet quickly. It will
also send a very powerful message to other VA employees that if
they have the courage to report wrongdoing the VA will take
prompt action to protect them from retaliation.
In conclusion, I want to applaud the courageous VA
employees who are speaking out. These problems would not have
come to light but for the information they have provided. We
look forward to working with the whistleblowers, with this
committee, and with the VA to find solutions to these ongoing
problems. And we look forward to answering any questions that
the committee may have.
Thank you.
Office of Special Counsel
The Chairman. Thank you, Ms. Lerner.
[The prepared statement of Carolyn Lerner, appears in the
Appendix]
Dr. Tuchschmidt, you are now recognized for 5 minutes.
STATEMENT OF JAMES TUCHSCHMIDT, M.D.
Dr. Tuchschmidt. Thank you. Good evening, Chairman Miller,
Ranking Member Michaud, and to the committee.
I know I come here tonight with my credibility in question.
There is no doubt about that. I have some prepared remarks, but
I'd rather just speak my mind.
We failed in the trust that America has placed in us to
fulfill our mission. Patients have clearly waited too long for
care that they have earned. And I would agree with
Congresswoman Kirkpatrick that it seems that it took a
whistleblower and a crisis to expose the events and get us
focused on those--correcting those deficiencies.
As I sat and listened to the first panel, I, quite frankly,
was very disheartened that staff feel that they cannot fix
problems in the organization that affect safety, quality, and
our business integrity. I think this is unacceptable. The
Acting Secretary has made it clear that this is unacceptable.
He sent a memo to all employees on June the 13th indicating
that that kind of behavior was unacceptable and that we would
not tolerate retaliation.
The stories I heard tonight clearly depict, in my mind, a
broken system. I have to believe, have to hope, that these
things are exceptions and not the rule. I know that there are
many, many good employees in this organization who work
tirelessly on the behalf of veterans, and there are many
managers and executives within the organization that do the
same.
The sad part of it is that, for every whistleblower who
comes forward and says something, there is someone out there
who is quiet, who tries, can't make any effort, and just goes
away. And those, unfortunately, leave risks in our system and
deficiencies that are not fixed.
I apologize to every one of our employees who feels that
their voice has been silenced, that their passion has been
stifled, because that's just not acceptable, and it's certainly
not what I stand for.
Quite frankly, I'm past being upset and mad and angry about
this. I'm very disillusioned and sickened by all of this. I
think that--I can't believe that I'm at a point in the
organization where we are, of a place that I was so proud of
and have worked so hard to make it a great place.
I left private medicine to come to work for the VA. I did
that because I thought there was no nobler mission, no more
greater devotion than what I'm doing. I did not come to work
for a mediocre healthcare system. I came to work for one of the
best healthcare systems in the country. And I believe the
system can be the best healthcare system in the country once
again.
The problems we have can be fixed. We went through probably
one of the greatest transformations in the healthcare industry
in the mid-1990s to become what I think was a great, great
system, and I have hope and confidence that we can do that
again.
So, Mr. Chairman, that really concludes my remarks, and I
promise you we will do our best to answer your questions.
[The prepared statement of James Tuchschmidt, appears in
the Appendix]
The Chairman. Thank you for your comments. Still, there are
a lot of things that we need to cover.
And I was looking over the testimony of the OSC, where they
described an issue at the Montgomery VA, where, in fact, a VA
physician, instead of writing accurate notes for a given
patient, was confirmed to have copied and pasted pulmonologist
notes to 1,241 separate records, yet, astonishingly, he still
works for VA.
Explain to this committee how that can be.
Dr. Tuchschmidt. So, I don't want to go into a lot of
detail in these cases tonight for a number of reasons. There
are ongoing investigations in a number of areas around the
country by the OMI, by other entities, law enforcement
entities. There are potential issues around privacy and the
rights of both employees and patients here. And most of these
issues are very complicated issues, and I think we would be
better discussing those in a brief with you, and I'm happy to
do that.
The Chairman. Well, it may be better for you, but it's not
better for this committee.
Dr. Tuchschmidt. I understand.
The Chairman. I haven't identified anybody by name; we
haven't divulged any patient names. Do you accept the fact that
OSC says that, in fact, they found where a pulmonologist did,
in fact, do this?
Dr. Tuchschmidt. Absolutely. I don't dispute that. So----
The Chairman. Okay. So the question is, how in the world
can this person still be employed at the VA?
Dr. Tuchschmidt. So, as I said, I don't feel like I can
really go into the details, but I would say this to you, and
that is that I think that we very much are interested in the
quality of care within VA. That documentation is an important
part of that.
It is a common practice to take historical information from
prior notes and use that information; that doesn't change. But
we don't copy and paste material from other--from old records
into new records as evidence of the current encounter with a
patient. We would not tolerate that, we would not support that
in the organization. That would clearly represent inferior
patient care.
The Chairman. Ms. Lerner, could you comment on what's going
on? You may not share the same fear that Dr. Tuchschmidt shares
tonight of discussing something that may, in fact, be a source
of the VA investigation.
Ms. Lerner. The theme that we see is that there is an
investigation by the Office of Medical Inspector; the OMI
confirms the whistleblower's allegations but then says it's not
a problem.
So here in Montgomery, Alabama, the whistleblower said this
is happening with a doctor who--a surgeon who discovered that
another physician was cutting and pasting patient records. And
these are things like vital signs, treatment plans--really
important information for the surgeon to have before he
operates on someone. He discovered that this physician was
cutting and pasting. An OMI investigation substantiated it and,
in fact, substantiated that it was over 1,200 patient records
that were involved.
The problem is they put that physician on sort of a review
plan. There's a specific name for it, FPPE, and I'm forgetting
what all that stands for. But they did a review. While he was
on that review, he still was cutting and pasting. And instead
of them taking disciplinary action against the physician, they
ended the FPPE--I think that's right, FPPE--and, as far as we
know, no serious disciplinary action was taken.
So this fits the pattern that we're concerned about, where
allegations are confirmed, no harm is found to patient health,
and no corrective action is taken against wrongdoers. And
that's really what I think needs to be fixed.
The Chairman. Who's luckier, the doctor that cut-and-pasted
or the veterans that didn't get harmed by the egregious
incident that the doctor, in fact, perpetrated on the patients?
Dr. Tuchschmidt. Well, so, I think--I can't answer that
question, but what I can say to you is that I think that,
again, the cutting and pasting of information, if that
particularly misrepresents things, would not be acceptable.
It's not acceptable to us. And I'm happy to come and discuss
those details.
There is this issue of harm. And when the OMI does their
briefing and puts out their reports and says that they found no
harm, I think that--I mean, I've looked at some of these cases,
clearly. And I think that, while there might not have been
evidence that someone actually was harmed by the process, I
don't think that means that we, as an agency, would say that
what happened was appropriate. I think those are different
things, in terms of the OMI's work that they did of saying our
review could not disclose that someone was actually harmed by
that. But I want to reiterate that I do not believe that that--
I don't personally interpret that, and I don't think our agency
does, as necessarily condoning appropriate behavior.
The Chairman. But I would submit to you, before I yield to
Mr. Michaud, that, in fact, by this person still being employed
at the Department of Veterans Affairs, it does give the signal
that it is an appropriate thing to do.
Dr. Tuchschmidt. I understand.
The Chairman. Mr. Michaud.
Mr. Michaud. Thank you very much, Mr. Chairman.
Doctor, according to the VA's press release that today
Acting Secretary Gibson has announced a restructuring of the
Office of Medical Inspector in order to create a strong
internal audit function which will ensure that issues of care,
quality and patient safety remains in the forefront. What do
you believe is the primary mission of OMI, what it should be?
Dr. Tuchschmidt. Well, the OMI was set up really as a
quality-improvement process within the organization. I think
that it is clear, particularly with respect to the OSC cases,
they were done prior to this in a different way. When the OMI
took over them, the quality of those reviews improved
tremendously. I think everybody agreed to that. The OMI did it
at the request of OSC.
Today I think we realize that we need a different function
within the organization, and that is really this kind of
internal quality-control audit function that has been proposed.
Today I can tell you that the OMI calls are going to the OIG.
The OMI is not taking new cases in this interim period. And all
of the issues, whether they come from OSC, or the OIG, or law
enforcement or wherever they might come from, whistleblowers,
are now being handled by a team of people at the Department
level that report directly to the Secretary.
So I think that the organization is trying desperately to
address the issues that are there with respect to doing these
investigations, and the Secretary has made it very clear that
not only will we expedite those investigations, but that, where
appropriate, we will expeditiously take disciplinary action and
hold people accountable.
Mr. Michaud. How many more employees does the Department
plan to add to create this strong internal audit function?
Dr. Tuchschmidt. I do not believe at this time that the
plans for that--I know; it's not that I don't believe--I know
the plans for that have actually not been entirely formulated,
so I don't really have an answer to that question.
Mr. Michaud. Thank you.
Ms. Lerner, in your opinion, does the press release by the
Department today vowing to restructure the Office of Medical
Inspector address the issues that you have raised time and
again regarding VA responses to complaints that your office has
forwarded?
Ms. Lerner. That's a tough question to answer because we
don't really know what the restructuring is going to look like.
I am encouraged by the VA's sort of new response to this issue.
I'm encouraged by statements that have been made to me
personally by the Acting Secretary and by other leaders at the
VA. You know, I'm an optimist. I think that it is very possible
to make improvements and solve this problem. So I don't know
the answer to your question. I think time will tell.
Mr. Michaud. This is for the VA: How would the VA ensure
the recommendations and results of investigations undertaken by
OMI are acted upon?
Dr. Tuchschmidt. So we have for a long time taken the
recommendations, the findings of the OMI. We ask facilities to
develop plans of corrective action, and they have those plans,
and those plans are tracked.
I think that one of the things that we need to do going
forward in this new process is clearly to tighten up those
various steps of the process from discovery, investigation, to
action planning and accountability in a much tighter way. Those
have been, up to now, really distributed over different silos
within the organization. And, you know, in any system like
that, that's prone for things to fall through the cracks, et
cetera. So I think part of this process is really beginning to
tighten those things up and draw a clear line through them.
Mr. Michaud. And following up on Chairman Miller's point,
how will OMI achieve real accountability?
Dr. Tuchschmidt. So I think the OMI itself--I don't know
that the OMI will ultimately be doing this work, but the OMI
itself probably will not be responsible for the accountability
part, right? So that's a management function that requires its
own set of activities to be able to do the fact finding, to
look at the evidence and say, this is an appropriate
disciplinary process. That needs to happen swiftly and
systemically, but also with fairness.
Mr. Michaud. Thank you.
The Chairman. Mr. Lamborn, you're recognized for 5 minutes.
Mr. Lamborn. Thank you, Mr. Chairman.
Ms. Lerner, you heard my questions to Dr. Mitchell and her
responses. Veterans' health and safety, at least in Phoenix,
was compromised because her warnings as a whistleblower were
not heeded even to the point of patients dying, according to
what she said. And as thanks for her efforts, she was
retaliated against, to make it even worse.
How can we strengthen the whistleblower statutes that are
already on the books to better protect whistleblowers like Dr.
Mitchell in the future?
Ms. Lerner. You know, the Whistleblower Protection
Enhancement Act, I think, has all the elements that are
necessary to protect whistleblowers. It has to be enforced.
People need to feel comfortable coming forward. The employer
needs to create a welcoming environment for whistleblowers, and
then welcome change that whistleblowers recommend and not
ignore it, not minimize it.
Our agency, you know, enforces the Whistleblower Protection
Act. And I think it's a good act. I think the structure is in
place now for whistleblowers to be protected. I think robust
enforcement is really important. I'm not positive what changes
I would recommend making to the act to provide more protection.
Mr. Lamborn. Well, then, if it's not working as well as it
was intended to work, and you just said it needs to be better
enforced, what has to change in the culture of the VA to
prevent these problems from happening in the future?
Ms. Lerner. One step that can happen is the VA can become
certified under the Section 2302(c) certification program. It's
a pretty simple program that our agency helps to implement. I
have gotten a commitment from Acting Secretary Gibson to have
the VA become certified under that program. It's things that
require more training for new employees, training for existing
employees, having posters put up in the facilities, having a
link to my agency's Web site on their Web site. Pretty simple
steps, but it's a good first step for the VA to take.
I think another really important step is for the VA to
actually take some expedited actions once retaliation cases are
before us, and if we are working with them, to try and resolve
them. Not having to go through a prolonged investigation and
getting relief quickly to whistleblowers will send a very
positive message. It would put some meat on the bones of the
promise not to tolerate retaliation. So I'm very hopeful that
will happen, and if it does, I think that will be a positive
step.
There are other things that agencies do when they have a
problem with culture of retaliation. We have worked with many
agencies since I became Special Counsel 3 years ago. One that
comes to mind very easily is the Air Force, where we got very
serious complaints about retaliation at the mortuary when there
were allegations about lost body parts and misconduct happening
up in Dover, and we heard repeatedly from whistleblowers that
the culture there was very, very bad. And once the Air Force
decided to take steps to improve things and change the
leadership and sent a strong message to its employees, we got
reports back that things were much, much better.
So I don't think that this is an insurmountable problem,
but because the VA is so big, it's going to really require a
lot of effort to train supervisors at the regional level in how
important it is not to retaliate when people come forward, and
how to value the information that we're getting from
whistleblowers.
Mr. Lamborn. Well, if you want to weigh into this, there's
legislation at least that the House has passed making it easier
to fire certain people, the top 400 or so people in the VA. To
me, that would send a very powerful signal, even if it's just
the threat of that being available.
Ms. Lerner. That's possible. I haven't reviewed that
legislation. I don't really feel comfortable commenting on it.
But I will tell you, I think that it doesn't require firing.
What we're seeing is not even sort of minimal disciplinary
action. I'd like to see, you know----
Mr. Lamborn. Anything. Anything at all.
Ms. Lerner.--at least some disciplinary action. I am not
sure it requires termination, although in some cases it
probably does. But I think, again, there's probably a structure
in place that would provide for that type of disciplinary
action; we just haven't been seeing a lot of it. I'm not sure
if new legislation is really necessary rather than just
enforcement of the law as it exists today.
Mr. Lamborn. Okay. Thank you very much.
Mr. Chairman, I yield back.
Mr. Bilirakis [presiding]. Thank you.
Mr. Takano, you're recognized for 5 minutes.
Mr. Takano. Thank you, Mr. Chairman.
Ms. Lerner, so are you saying that the current civil
service protections are not so onerous for managers to be able
to impose progressive discipline, discipline dismissals in this
case that we have cited today about the doctor copying and
pasting medical records?
Ms. Lerner. You can be terminated for misconduct under the
Federal civil service laws for sure.
Mr. Takano. And there's a current----
Ms. Lerner. There's a current framework for doing that.
Mr. Takano. You are saying, for whatever reason, it's just
not happening at the VA. Do you have any--can you speculate as
to why it's not? Is it because managers aren't adequately
trained? I mean, it's quite extraordinary for a colleague to
turn on another colleague, so it points to a management
abandonment here in this instance.
Ms. Lerner. We do have at least one case I know of where
the VA has taken disciplinary action in a retaliation case.
It's not impossible to do it at all; there just has to be a
willingness to do it. What we have seen for the most part in
our cases is that people are not really disciplined, or if they
are, it's a very mild discipline. What is going on at the VA in
terms of why they are not doing that, I really can't say, but
it is certainly possible, and we have seen it done.
Mr. Takano. I'm just curious, Dr. Tuchschmidt, this case of
this particular physician copying and pasting, I've generally
heard positive reviews of VistA by VA doctors. Some people
outside the VA tell me that the--it's not--it's incredibly user
friendly; that there can be pages and pages, and finding
relevant data is difficult.
One doctor I spoke to recently, who is retired from private
practice, now evaluates records for the courts for the purposes
of determining whether people are eligible for SSI disability.
He reviews lots of veterans records, and he says he'll get a
record from the VA that will be like a phone book, whereas
other record systems in the private sector, much, much thinner,
and he has to go through pages and pages and pages to be able
to get the relevant information.
Is there some truth to this? And is part of the reason why
this doctor was able to maybe think that he could get away with
this is some vulnerability in the VistA system?
Dr. Tuchschmidt. Well, so when you print out charts, they
may be very thick. Our patients tend to have multiple complex
diseases, have a lot of visits in the organization. They're
sicker than the average private patient.
I think that the computerized patient records system--so
without going into the specifics of this case, I can talk a
little bit about what is common practice. So that if I am
seeing a patient, and I need to put into that record the
patient's problem list, the things that are wrong with them, a
list of things that are wrong with them, their past medical
history about when they had surgery or when they were
hospitalized in the past, those facts don't change.
So it is common practice on paper to go look at the chart
and rewrite those things on a new note, or, in an electronic
record system, to copy that section and paste it. If someone is
not careful, they may capture more than they intend to and
inadvertently place it in a new note. I'm not saying that's
what happened here. I'm actually not defending what happened in
this situation; I'm just trying to explain a common practice in
what could happen.
You know, I want to say a couple things, and that is that I
think that we have many elements of the whistleblower
certification program in place. We have training. We've had
training for a long time. I think the Secretary has made a
commitment to have that. We've had some discussions about that,
and, you know, we want to do that.
I think that accountability, we heard a lot tonight about
culture. You know, you can change structure and processes and
people. In the end it's about leadership, and it's about
accountability in the organization, and I think that's the
commitment that Secretary Gibson has made. It's a commitment
I'm making tonight.
And I would say I think one of the biggest issues that I
heard tonight was people who felt like they suffered while the
process was being resolved. And I would make a commitment
tonight: I'll give you my cell phone number, and you can call
me, and I will do whatever I can to intervene the moment you
know so that those employees do not suffer adverse consequences
while you do your investigations.
Ms. Lerner. Thank you. You're the second person who's given
me their cell phone number for that very reason. So, you know,
I am getting that message. I am encouraged.
Mr. Takano. Mr. Chairman, my time has expired.
The Chairman [presiding]. He didn't say he would answer his
cell phone.
Dr. Roe, you're recognized for 5 minutes--excuse me, Mr.
Vice Chairman, Mr. Bilirakis, you're recognized for 5 minutes.
Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it.
Dr. Tuchschmidt, how many employees have been placed on
administrative leave, reprimanded or terminated thus far in
connection to falsifying or negligence which negatively affects
a veteran and the health care they receive through the VA?
Dr. Tuchschmidt. I can't give you a number tonight, sir. I
can tell you that we have in some of these--specifically some
of the cases cited looked at those action plans, and where
there was administrative action recommended, we have taken
administrative action in those cases. I am not prepared tonight
to actually----
Mr. Bilirakis. You can't give me a rough estimate over the
past year?
Dr. Tuchschmidt. I can't. I don't have that.
Mr. Bilirakis. Can you get that information to me as soon
as possible?
Dr. Tuchschmidt. I can take it for the record, and we can
get that to you.
Mr. Bilirakis. All right. Thank you.
Mr. Bilirakis. How many employees have been placed on
administrative leave, reprimanded or terminated for actively
retaliating against whistleblowers?
Dr. Tuchschmidt. Again, I would have to take that for the
record.
Mr. Bilirakis. I would like to get that information as soon
as possible.
Dr. Tuchschmidt. Sure. Absolutely.
Mr. Bilirakis. Thank you.
Mr. Bilirakis. Ms. Lerner, how many whistleblowers have
been placed on administrative leave, reprimanded or terminated
for attempting to expose misconduct within the department? Can
you give me a rough estimate if you don't have that information
at this time?
Ms. Lerner. I don't actually have that information. I can
tell you that we have complaints from 67 whistleblowers right
now that are active in our agency. I'm going to turn to my
deputy Mr. Bachman and see if he can add to that.
Mr. Bilirakis. Okay.
Mr. Bachman. Thank you.
Yes. I don't know that we have a specific number. We do,
however, have at least three whistleblowers from the VA who
have come forward recently that OSC has been able to get stays
of pending disciplinary action against them. For example, they
come forward and are almost immediately hit with the 14-day
suspension, a 7-day suspension. We have contacted the VA and
persuaded them to stay those actions while OSC conducts its
investigation. So that's one role that OSC is able to play in
all this.
I would be happy, though, to go back and check our records
and see if we can find exact numbers for you in terms of
administrative leave or even other disciplinary actions.
Mr. Bilirakis. Yeah. Would you say that there are more
whistleblowers who are being reprimanded per se as opposed to
those who have misconduct and negligence in treating our
veterans?
Mr. Bachman. If what you are asking is do the
whistleblowers who come to us suffer adverse consequences and--
--
Mr. Bilirakis. Adverse consequences more so than maybe
someone who has committed negligence or malpractice on a
veteran?
Mr. Bachman. Unfortunately, I just don't know the goings on
of those negligence or malpractice cases.
Mr. Bilirakis. Anyone on the panel know the answer to that
question?
Dr. Tuchschmidt. No, I don't think I could answer that
question.
Mr. Bilirakis. Okay. I'd like to get that information as
soon as possible, please.
When cases are referred to the OSC, and claims of
misconduct have been substantiated, what disciplinary action is
taken? Anyone? Ms. Lerner.
Ms. Lerner. Sure. One of the things that we look for when
we get the agency's report of investigation is what
disciplinary action, if any, has been taken. And I would say in
most of the cases that we have reviewed, there has not been
disciplinary action taken. I can't give you exact numbers, but
I can tell you that it is the exception and not the rule.
Mr. Bilirakis. Okay. One last question. Dr. Tuchschmidt:
What consequences will those who provide false information to
the OIG face?
Dr. Tuchschmidt. Well, I don't know that I can answer that
question specifically, but I can tell you that when we do
believe that disciplinary action needs to be taken, there is a
set of criteria that depend on the egregiousness of the, you
know----
Mr. Bilirakis. Give me a hypothetical case.
Dr. Tuchschmidt. Well, so I'm not sure I'm going to be able
to make up a hypothetical case. So there is a table of
penalties that exists, and that is both judged by what has
happened before, because the intention of disciplinary action
is not to, you know, be punitive, it is intended to try and
change the behavior of the employee. Where we feel that we
can't change that behavior, it's a hopeless situation,
obviously separation is what has to happen. But usually that's
the end result of a series of processes to try and remediate
the situation.
Mr. Bilirakis. So if they give false information to the
OIG----
Dr. Tuchschmidt. That would be criminal, I would think.
Mr. Bilirakis. Okay. All right. Thank you very much.
I yield back, Mr. Chairman. And I would like to have that
information as soon as possible, the answers to those
questions. Please. Thank you.
Dr. Tuchschmidt. Yes, we'll get you what we can.
The Chairman. Ms. Brownley, you're recognized for 5
minutes.
Ms. Brownley. Thank you, Mr. Chair.
Ms. Lerner, you spoke about the whistleblower program and
certification as being a good first step. So can you tell me
why the certification program is an optional one, and why it's
not mandatory?
Ms. Lerner. Now it is mandatory. Recently the President and
Office of Management and Budget issued an order requiring
agencies to go through that certification process, and their
plans for doing so were supposed to have been posted by June of
this year. I don't know why it was initially made a voluntary
program. We started this certification program, I believe, in
the early 90s, and unfortunately not a lot of agencies have
been certified.
Ms. Brownley. So did the VA comply with that by the
deadline of June, or are they saying now they are going to go
through the steps for certification?
Ms. Lerner. I don't know if their plan has been posted. I
don't think it has, but I was told last week by the Acting
Secretary that they would be doing so very soon. So I'm going
to try and follow up.
Ms. Brownley. Trust and verify.
Ms. Lerner. We'll verify for sure, and our agency will help
them become certified. In fact, I sign a little certificate for
every agency that becomes certified, so I will know the minute
that they reach that milestone.
Ms. Brownley. Very good.
And we heard from our panelists earlier today whose
identities were compromised in the process of working with the
IG and one panelist with the White House. You heard the
testimony. So can you give me an idea of what your office does,
what the IG's office, what steps are taken to ensure protection
of a whistleblower?
Ms. Lerner. Sure. If someone comes to us with a disclosure,
they have the option of remaining anonymous. If they choose not
to remain anonymous, when we refer it to the agency for
investigation--and let me just make it clear, we don't do
independent investigations for disclosures. Once we make a
finding of a substantial likelihood, it's a high burden, we
then send it to the agency for investigation. We then review
the agency's investigation for reasonableness and then report
to the President and the oversight committees in Congress.
So the first step on keeping information confidential is
asking the whistleblower if they want to remain anonymous. The
second is that when we refer a matter for investigation to an
agency, we remind them of the need to protect the
whistleblower. If they are choosing not to remain anonymous, we
remind them that they have to protect that person from
retaliation.
In order to do a full investigation, though, sometimes you
have to actually speak to the whistleblower. One problem that
we have found is that often in the investigations, the IG or
OMI doesn't actually talk very thoroughly to the whistleblower,
and sometimes they don't even interview them. And that's a
problem in and of itself because the whistleblower is really a
subject matter expert, and they have to speak to the
whistleblower to really get the full picture. So it's very hard
to, you know, do an investigation without disclosing identity.
Ms. Brownley. Will part of the certification program,
though, help with enforcement in terms of the protection piece?
Ms. Lerner. The certification program in itself doesn't
directly involve enforcement, but by making sure that
supervisors are trained and informed and knowledgeable about
their responsibilities when someone does come forward, and
reminding them that retaliation in all forms is unlawful, I do
think that it would have the derivative effect of serving that
purpose.
Ms. Brownley. Thank you.
And, Dr. Tuchschmidt, so I understand you're relatively new
to this position?
Dr. Tuchschmidt. Yes, I am.
Ms. Brownley. And you were formally with the VHA and their
transformation efforts?
Dr. Tuchschmidt. Yes.
Ms. Brownley. So I presume that means the VA's
transformation. And so I'm just curious to know from in your
old position, you know, how you thought you were doing vis-a-
vis the transformation of VHA, and did you know of any of the
things that have been discovered over the last few months in
this committee? Were you aware of any of those things?
Dr. Tuchschmidt. No, I don't think--I was not aware. I
think most people in the organization at senior levels were
unaware, which I think is actually part of the problem. I think
that--you know, I mean, my job as transformation lead for the
organization, we implemented our PACT program, we expanded our
telehealth program. Those are the things that I was working on.
I can tell you before that I was a medical center director for
12 years, so I have, you know, a lot of operational experience.
I think, just to add on to her point, you know, I think
that training and education is really important, right? People
have to know what the right standard of conduct is. And then
second point I would make is that once they know, it makes it a
lot easier for us to hold people accountable. I mean, you can't
say, I didn't know, you know, those rules anymore. So I think
that program actually has the potential to have a pretty
positive impact.
Ms. Brownley. Thank you. I yield back.
The Chairman. Dr. Roe, you're recognized for 5 minutes.
Mr. Roe. I thank the chairman.
Dr. Tuchschmidt, we do a lot of things to patients, as you
know----
Dr. Tuchschmidt. Yes, we do.
Mr. Roe [continuing]. That require one thing that is very
important, and that is called trust. And, you know, you've said
the VA was great, and I want it to be that. I have a VA a mile
from my home, and a lot of good people tomorrow are going to
get up and go to work at the VA and try to take the very best
care of patients they can. But through all of this
investigation, we've lost trust in the VA. How can we trust
anything the VA says when we have panel after panel that come
explain, tell us these egregious things that have occurred?
And let me just give you an example. It's almost impossible
to make a politician speechless, but the VA has done that. And
Brockton, Massachusetts, when you have two severely mentally
ill veterans in the hospital, and, listen to this, a second
veteran was admitted to the facility in 2003 with significant
and chronic mental health issues, yet his first comprehensive
psychiatric evaluation did not occur until 2011, how in the
world in a healthcare system in America could that happen
anywhere?
And let me go on. No medication assessments or
modifications occurred until 2011 when another doctor came
along and reevaluated this veteran. Despite these findings, the
OMI would not acknowledge that the confirmed neglect of
residents at the facility had any impact on patient care. The
VA's typical answer is a harmless error approached concluding
the OMI feels that in some areas the veterans could have been
better taken care of--yeah, not like ignored for 8 years--but
the OMI does not feel their patients' rights were violated. How
in the world with a straight face can you do that?
And then back to the chairman just a moment ago with this
person pasting and cutting and all that, that is someone who is
dishonest. And me, when I have a consultant, and I've been to
the operating room thousands of times, I have got to know what
they're telling me is truthful. And I can promise you this: If
that had occurred in my practice, they would have been fired on
the spot. If we found that out in our hospital where I
practiced for over 30 years, they would have been fired on the
spot.
And what we are hearing is is that the people, the
whistleblowers who bring this up, as Mr. Bilirakis just said,
suffer more consequences than the people who actually did the
egregious act. I don't understand that at all. Can you
enlighten me a little bit?
Dr. Tuchschmidt. Well, quite frankly, I'm speechless. I
mean, I'm appalled. I mean, I don't know what else to say. I
think that--and Dr. Huycke may have some comments about the OMI
process that he'd like to make, but I can tell you that I don't
think any of us think that that's acceptable for a patient to
be in one of our facilities for 8 years and not have a major
psychiatric exam except once. I can't defend that.
Mr. Roe. It is beyond comprehension to me that not one but
two veterans were at that facility. And I know you said this a
moment ago, but we have--the OIG brings information up here. If
someone knowingly lies to the OIG, you shouldn't have to go any
further. You're dealing with a liar. You shouldn't have to go
any further other than you're out of here today. Don't go by
the cash register and pick up your check. You're fired.
Dr. Tuchschmidt. Yep.
Mr. Roe. And right now it doesn't appear the VA is doing
that. We tap dance around all these things.
Let me just ask one other question very quickly. My time is
about up, also. Basically how can you--and I know you're new in
this position--undo the damage you've done to physicians and
others whose careers have been damaged by this? What do you do
to repair their reputations?
Dr. Tuchschmidt. I don't know the answer to that. You know,
in some cases the damage clearly has been done. I don't know.
But, you know, I think that we clearly owe some people an
apology. I think that we need to figure out how, where we can,
make people whole. I think we try to do that. But, you know, I
think the most important thing is that we have to go forward. I
can't undo the past, but I can do something to change the
future.
Mr. Roe. I appreciate that, and, as I said, I feel very
badly for the people who are going to go to work tomorrow for
the VA who are doing a good job. They're working hard. And let
me tell you who needs an apology: the two veterans who are
mentally ill and their families who they were completely
ignored, and the 1,241 people that had something done to them
at the VA. You have a reasonable expectation when you're in a
hospital that people are being honest.
I mean, I handed off cases at night when we would turn over
the duty, and you'd take the beeper--now it's a cell phone--
take the beeper. You expected your partner to tell you the
truth because people's lives depended on it. This is not some
game we're playing.
Dr. Tuchschmidt. Absolutely.
Mr. Roe. These people's lives are at stake.
Mr. Chairman, I yield back.
The Chairman. Thank you.
Mrs. Kirkpatrick, you're recognized for 5 minutes.
Mrs. Kirkpatrick. I appreciate what Acting Secretary Sloan
Gibson is doing with restructuring the OMI and coming up with a
strong internal audit system; however, I must express that I am
skeptical about how that's going to work. Ms. Lerner testified
that we have the Whistleblower Protection Act, but it's not
enforced. And so my concern, first of all, is that we've heard
so much testimony in this committee about a culture of secrecy,
about a culture of retaliation, and retaliation is a huge
deterrent to hearing complaints.
So my first question, Ms. Lerner, is to you. We've heard
that there's been retaliation against employees. I'm concerned
that there is retaliation against patients who might feel that
they have a complaint against a facility. Are you aware of any
retaliation against patients, against veterans?
Ms. Lerner. I think that's a really important question, and
I don't know the answer to it. I'm not aware of any
retaliation, in part because my agency's jurisdiction is just
for employees to come forward with retaliation complaints or
disclosures of waste, fraud or abuse, or health or safety
problems. Someone could come to us with a disclosure if they
thought that a patient, you know, was being retaliated against.
I don't believe we've gotten any of those cases.
People do come to my agency with disclosures about poor
patient care, where they complain about patients not getting
appropriate treatment and then are retaliated against
themselves for having made those complaints. But in terms of
patients, we probably wouldn't get those.
Mrs. Kirkpatrick. Is there some kind of national hotline
that VA patients can call if they have a complaint about a
facility?
Ms. Lerner. I don't know the answer to that.
Mrs. Kirkpatrick. Doctor, do you know?
Dr. Tuchschmidt. So there are a number of mechanisms that
patients now have to give us feedback about their system. They
complain, quite frankly, do complain directly to our patient
advocate system. That is a real human being sitting at each
facility that they can go to.
Mrs. Kirkpatrick. That's my concern: at each facility. So
you see, what we're seeing here is this pattern that, yeah, the
complaint stays within the facility. It never goes outside of
that.
Dr. Tuchschmidt. Yes.
Mrs. Kirkpatrick. And let me just throw out an idea. You
know, I'm a former prosecutor, and we used to have a really
difficult time getting people to report child abuse and
neglect, elder abuse until we established a hotline where the
reports could be anonymous, but there would be an
investigation, and then we started to be able to get these
reports. There was absolutely no possibility of retaliation any
way, anywhere because of those reports, even if they turned out
to be false.
And I just don't see how we're going to be able to get to
the root of this without something like that in place where
there's a hotline that veterans can call if they feel like that
they didn't get the care they wanted, and that employees can
call and make reports so that there's absolutely no possibility
of retaliation. Would you consider something like that?
Dr. Tuchschmidt. Yeah. So in addition to the local options
that veterans have, veterans can--patients can call the OIG hot
line today, and we are----
Mrs. Kirkpatrick. But who knows that? Who knows that? Who
knows how to do that? Do you get my point? I mean, we're really
going to have to look at this very hard, you know, and really
put our veterans first.
Dr. Tuchschmidt. Absolutely.
Mrs. Kirkpatrick. The employees are taking care of them
first. I'm sorry to interrupt you, but I feel very passionate
about this.
Dr. Tuchschmidt. I do, and I respect that tremendously. You
know, so I think that one of the things that we are looking at
today, so the Department of Defense has a program that they
call ICE. It is an interactive thing on their Web site.
Actually any patient, any employee can go right on that Web
site and provide feedback, file a complaint, say you did a
great job, and it goes right up to the top of the command
chain. We are looking at that. It'd be free to us to bring it
over into the VA, to be able to put it on our Web site.
Right now we are in discussions about what's the mechanism,
you know, what's the business processes behind that. And, quite
frankly, I will take your point that you're making tonight back
home and say it needs to be high in the organization.
Mrs. Kirkpatrick. Thank you. Thank you very much.
I yield back the balance of my time, Mr. Chairman.
The Chairman. Mr. Flores, you're recognized for 5 minutes.
Mr. Flores. Thank you, Mr. Chairman.
Ms. Lerner, it's our understanding the OCS is spending a
substantial amount of its time on these whistleblower--on the
caseload from the whistleblowers. Can you tell us what Congress
can do to help alleviate the amount of time that you're having
to spend on that activity so that you can continue to take care
of the needs of the VA whistleblowers?
Ms. Lerner. Well, I want to maybe start by answering the
question by noting that this committee has been particularly
supportive of our work. I want to recognize the staff of the
Oversight and Investigation Subcommittee for their work on this
issue and their work with our agency. We consider it to be a
real partnership, and we are very grateful for this committee's
support. We've also received a number of referrals from this
committee, and we appreciate your confidence in our ability to
work with the employees that your office refers. So that's one
thing that's already happening.
We are doing everything that we possibly can to address VA
cases quickly and thoroughly. We've set up a priority intake
system for VA cases. We've reallocated staff to handle VA
employee claims. But as the numbers increase, it's very hard to
keep up. We were at capacity before the VA cases kind of
overtook us, and the total number of cases between disclosures
and retaliation cases now exceeds 130, and the number, as I
mentioned, continues to increase pretty much daily.
Mr. Flores. Wow.
Ms. Lerner. We're a tiny agency. We have 120 employees,
more or less. We have jurisdiction for four statutes: the Hatch
Act, the Uniformed Services Employment and Reemployment Rights
Act, and we are working now on the demonstration project that
this committee provided to us. We also handle disclosures, over
1,200 a year, and this year will be a record with the VA
disclosures. And we also handle prohibited personnel practices.
So we're stretched pretty thin right now.
Mr. Flores. Well, please continue to let us know what we
could do to be helpful so that we can sort through your current
workload as well as the new VA workload that you're having to
deal with now.
Ms. Lerner. Thank you.
Mr. Flores. Dr. Tuchschmidt, one of the things we've talked
about is that some whistleblowers have provided some limited
patient information which is allowed through special channels
to deal with what they perceive as problems at the VA. When
they do this, it is not a violation of HIPAA, but yet these
employees are being charged with privacy violations. What can
we do about this? How do we get the VA to stop the charges of
privacy violations when the whistleblowers go through the
proper steps to do this?
Dr. Tuchschmidt. So I am aware of one instance where that
happened, and an employee, in my opinion inappropriately, was
put on administrative leave while that investigation was being
done over concerns that the person took patient information and
did violate HIPAA. I can tell you that the leadership at that
facility now knows that people, whistleblowers have a right to
have information, can share that information with the OSC, the
OIG, with Congress, and it is not a HIPAA violation.
We need to do a better job of making sure people across our
organization understand this issue clearly. And, you know, I
wish I could say it will never happen again. I think that would
certainly be our intention to make sure that people are more
aware and more cautious about what they do.
Mr. Flores. Okay. We will continue to try to put that
message out.
I yield back.
The Chairman. Ms. Kuster, 5 minutes.
Ms. Kuster. Thank you very much, Mr. Chairman, and thank
you to all of you for coming this evening.
I wanted to ask Dr. Tuchschmidt, in the private sector in
hospitals, they have a process of quality assurance, typically
a quality assurance committee where information that is shared
in reviewing cases with that committee is typically by statute
protected from discovery in a medical malpractice lawsuit.
And as an attorney, I want to get to the bottom of whether
part of the behavior that we're hearing about tonight and
throughout the testimony from the whistleblowers has to do with
people within the VA trying to protect the agency from medical
malpractice lawsuits; and, if that's the case, is there
something that we could do statutorily?
This is something that I'd worked on at the State level
many, many years ago is a statute that protected quality
assurance so that you can have a quality-improvement process
going forward without all this behavior of covering their backs
and, you know, blaming people that are bringing these issues
forward. Could you comment on that?
Dr. Tuchschmidt. So I think we have, quite frankly,
adequate protections in place for quality assurance documents
that are covered statutorily, right? I can't say--I mean, we're
an organization of 300,000 people, right? I don't know what
everybody thinks when they go out and do something, but I can
tell you that I don't--I'd be surprised if a concern about the
release of quality information is part of what might be
motivating some of the concerns and particularly the
retaliatory behavior about whistleblowers.
You know, I think clearly managing those situations is
difficult for local management. I think we need clearly to do a
better job of informing and educating. I mean, again, I don't
know how to say it any better. I mean, I was appalled by the
stories I heard tonight. I don't think we as an organization
should tolerate that. I don't think you should let us tolerate
that.
Ms. Kuster. Trust me, we're shocked.
Dr. Tuchschmidt. I'm shocked. I'm shocked.
Ms. Kuster. Well, I just wanted to get to that issue.
On another issue entirely, another level of shock for me
was the information in the record that we have about Dr. Head
and the very clear pattern, disturbing pattern, of racial
prejudice. Can you tell me, within the organization, first off,
how does that exist in this day and age? But second off, is
there some way to cope with that and make sure that that's
not--you know, in this day and age, honestly, with the progress
that we've made in our country in all aspects of diversity,
gender, race, religion, ethic background, I can't imagine with
this many employees that it could even begin to be tolerated,
the type of behavior that is documented here in this lawsuit.
It's extraordinary.
Dr. Tuchschmidt. Well, I mean, I was absolutely floored. I
was floored when he held up his picture tonight, and I know
what was in his other slide, and it's even more abhorrent. And
it's astounding that it happened at the UCLA medical school
amongst highly educated professionals. I don't get it. I mean,
I just don't get it. You know, again, in an organization with
300,000 people, people do stupid things, right, and we can't
always control that.
Ms. Kuster. But would there be a procedure, would there be
any kind of protocol or process if that was reported up the
chain?
Dr. Tuchschmidt. Absolutely. And, you know, in my 20-
something years, I can tell you, I think that this organization
has been for a long time one of the most inclusive and
supportive of diversity organization I have seen. I mean, we
train people. We train people on EEO and workplace harassment
issues. We have programs to support cultural diversity and
cultural competency within the organization. You know, I'm
astounded, quite frankly, by Dr. Head's story. Quite frankly, I
learned about three of these four whistleblowers the first time
by reading about it in the paper.
So I think that, you know, we clearly need to do a better
job of making sure that people can communicate their concerns.
There are a lot of avenues, right? I mean, they have the OSC
process. They have the OIG. They can come to you all. But my
dismay is that they don't feel like they can come to us within
the organization, because that's where it has to start.
If we really want an organization that is dedicated to
safety, to quality, to integrity, it has to start with our
employees on being engaged on the frontline, and taking a
meaningful role, and feeling like they can fix those things
that are within their sphere of influence and go to people that
can when they can't. And if we can't do that, we will fail.
Ms. Kuster. My time is up, but we all concur that that's
what we need to do. And as far as I'm concerned, there are
people that need to lose their positions over this.
So thank you, and I apologize, Mr. Chairman.
Dr. Tuchschmidt. Thank you for letting me go over.
The Chairman. Dr. Benishek, you're recognized for 5
minutes.
Mr. Benishek. Thank you, Mr. Chairman.
Ms. Lerner, Dr. Mitchell in the previous panel talked about
what she thought was--explained was a sham peer review process.
Have you seen anything like that in your investigations?
Ms. Lerner. I'm going to ask Mr. Bachman.
Mr. Bachman. We have seen that in some of our
investigations and are taking a very close look at those when
we see them. These types of investigations can be difficult to
prove as pretext for retaliation sometimes, but we are seeing
that as an emerging trend, and it's something that we are
focusing on and making sure that we're gathering all the
evidence we can to see exactly why was this peer review
undertaken.
Mr. Benishek. All right. Thank you.
Dr. Tuchschmidt, are you aware of this VA program that was
started on April 2013 called the ``Stop the Line'' patient
safety initiative that Mr. Jolly talked about? Are you aware of
that program?
Dr. Tuchschmidt. Yes. So I'm not sure exactly I know which
program you're talking about, because there are--you know, so
Stop the Line is part of a lean technology, right, process.
There are many----
Mr. Benishek. Well, as I understand, it's a way for current
VA employees to step forward when they see something going on
that they would expect a change in quality.
Dr. Tuchschmidt. Absolutely. So many of our facilities have
implemented lean on their own, but as part of our national
patient safety program, we have a Stop the Line timeout
process. So any employee--and this is particularly true in our
procedure-based areas--any employee who feels like something is
not right before something is about to happen to the patient
can call a timeout, stop the line and say, I disagree with
that. That could be the doctor; it could be the nurse; it could
be the housekeeper in the operating room that stops the line
because they feel that something isn't right, and the line
stops until it's resolved. So that's part of our national
patient safety.
Mr. Benishek. Does the VA keep track of how many times this
initiative is invoked?
Dr. Tuchschmidt. No, not to my knowledge.
Mr. Benishek. Are reports collected?
Dr. Tuchschmidt. Not to my knowledge. It's part of the
business process. It's not something----
Mr. Benishek. You know, I was just aware of this incident
here where I've got a report of 60 Chiefs of Anesthesia within
the VA around the country invoked a formal communication to the
VA with this Stop the Line initiative regarding a policy that
would change how surgical care was delivered. And the Chiefs'
communication was sent to the VA Secretary, the Under Secretary
for Health and the Principal Deputy Under Secretary for Health
on October 1, 2013.
Dr. Tuchschmidt. That would be the former Principal Deputy.
Mr. Benishek. Yeah, yeah, yeah, you're the acting, I
understand. But despite being told otherwise by VA officials on
as recently as June 17, the Chiefs of Anesthesia have informed
me that they haven't received a response at the VA.
Dr. Tuchschmidt. I'm unaware, I can't comment, but I'm
happy to take that back and find out----
Mr. Benishek. We were briefed that they did get a response,
and then subsequent to that we were told by them that they
didn't. So I'd like to know what the response is, and if you
didn't respond, could you please get that to me?
Dr. Tuchschmidt. I have no idea, but I will get a response
for you and for them if they didn't get one.
Mr. Benishek. Do you know how often the VA gets a letter
from more than 60 Department heads about a problem?
Dr. Tuchschmidt. I don't.
Mr. Benishek. It would seem like that would be worth a
response to me.
Dr. Tuchschmidt. It would seem atypical, yes.
Mr. Benishek. Well, there's so many atypical things,
Doctor, that you're having to explain. And, actually, I really
appreciate your apology to the veterans of this country. I felt
your emotion when you first gave your statement.
Dr. Tuchschmidt. Thank you.
Mr. Benishek. But you see what a huge problem we're trying
to deal with here.
Dr. Tuchschmidt. We have----
Mr. Benishek. I mean, you know, you yourself are
expressing, you know, severe emotion, and it's hard for us to
even sit here without going, what is going on, and how do we
fix this. And you're in the same boat. And, you know, we need
some real dramatic change here. And we're hoping--we're all
hoping that this new Secretary and the legislation that we will
work on will make a dramatic change within the VA, because, you
know, I worked at the VA for 20 years, and I felt that. And
with the comment you made earlier about these things being
isolated incidents that these guys talked about, it's not. It's
not isolated incidents. I mean, I went to the meeting of the VA
physicians in Dennis, and there's like a whole mess of them are
telling me this. So, you know, it is a systemic problem, and we
need to deal with it.
Dr. Tuchschmidt. I appreciate your sentiments.
Mr. Benishek. Anyway, I am out of time. Thanks.
The Chairman. Mr. Walz, you're recognized for 5 minutes.
Mr. Walz. Thank you, Chairman.
I thank you all for being here.
And, Dr. Tuchschmidt, I agree. And as so often is the case,
I concur with Dr. Roe. I think what's at heart here and maybe
something it doesn't appear like to me people have come to
grips with. Your feeling of being sick and disillusioned,
that's how I feel. That's how my veterans feel. A generation of
good work has been erased. I think you understand that.
Dr. Tuchschmidt. Absolutely.
Mr. Walz. Very, very difficult because this is about care.
It's about getting the trust in them. It's about getting them
into the system. It's about working on things like seamless
transition. It's about making sure programs for blinded
veterans are there, all the things we've worked on. And I sat
sitting here for 8 years and 24 years prior in uniform trying
to prove to be a good actor on this or whatever. But the
question I have is, again, what's going to change? What's your
definition of ``unacceptable''?
Dr. Tuchschmidt. Well, I think, quite frankly, that the
bottom line for me from the time I went to medical school until
today has been has the patient gotten what he or she believes
they needed? And it has to be quality; it has to be safe and
effective. I mean, to me, that's the bottom line.
Mr. Walz. The thing is we try and work around this and find
what the fix is, because at the end of the day, we're going to
sit here--and I agree, we have to diagnosis first before we can
prescribe the treatment on this. We're going to have to commit,
but we have to move forward on how to get it fixed.
So today the letter comes out on the restructuring of the
Office of Medical Inspector. And it is very clear that the
Acting Secretary made it clear, as I told our workforce,
intimidation or retaliation against whistleblowers or against
any employee who makes a suggestion or reports what may be a
violation of law is absolutely unacceptable.
Was it not unacceptable to Secretary Shinseki? Was there
any way in that man that you got the impression or your
employees got the impression that it was acceptable then; it's
not now?
Dr. Tuchschmidt. That was never apparent to me.
Mr. Walz. What changed? What changed today?
Dr. Tuchschmidt. I think what has changed today is that we
do have new leadership, right? I mean, so Acting Secretary
Gibson has stepped up. He is out in the field going to medical
centers. He has, in fact, pulled this process of whistleblower
and investigations up to the Department level where he can
personally supervise it. His engagement and commitment in this
is phenomenal.
Mr. Walz. One of the complaints about how the VA works and
the insular nature of it is that there's a belief that they can
just outlive people. They are going to outlive Mr. Gibson. And
they might be thinking, we'll outlive this guy. November is
coming around; he'll be gone. Secretaries will be gone,
Presidents will be gone or whatever.
I have to tell you, and this pains me more than anything,
this breach of faith--and I have sat up here for 8 years, and
I'm your strongest supporter, but I'll be your harshest critic.
I listened to this today, and it floors me that I don't believe
with one fiber in my being that you're going to get this right,
and that is disturbing, which makes me then come back and say,
and if I were you sitting there asking what are you going to do
about it, that's what I'm asking for. I want us to take back
more of this, I want us to pull this back in, and I want to do
the data and know that the data is true.
And so I ask you, Ms. Lerner, is there a way to do this? Is
there a way to have the third-party validation, to have that
accountability? I would argue we can be the most accountable
people because we have to stand in front of voters that are the
constituents and the veterans every 2 years. Those SES folks
are never going to see my veterans, ever. So I ask you, how do
we restructure this? Are we trying to fix a broken system that
is beyond repair on trying to get this accountability?
Ms. Lerner. Well, I said before, I'm an optimist.
Mr. Walz. I am, too. I supervised a high school lunchroom
for 20 years.
Ms. Lerner. And you're very brave as well.
Mr. Walz. So I am the ultimate optimist, and I have been
shaken by this. So that's why I ask you, what proof is there?
Words or something. What proof is there to you? Your reputation
is on the line now, too, if you say it's going to be fixed by
this.
Ms. Lerner. Well, I don't know. I mean, my job is to shed
light, because that's the best disinfectant on, you know, a
broken system. And the whistleblowers are shedding light on
where the problems are. The next step is to actually see some
action.
Mr. Walz. Correct.
Ms. Lerner. And what we've heard in the last several weeks
from the new leadership I believe is encouraging, but it is
going to have to be----
Mr. Walz. Eight weeks ago I asked what is the problem with
the Rochester VA, and higher people than you sat there and told
me, you are right, Congressman, you deserve an answer right
away. So here I said I'm off the reservation on this one. Why
has there not been an answer on that? So how should I believe
that? A Member of Congress was told they would get them an
answer about what's wrong with their local VA, a place where I
sat much time with my veterans, and I have not got an answer.
Ms. Lerner. I'm not here to defend the VA. I mean, I've had
a pretty ringing indictment of what's been going on. But I
think that there are steps that can be taken.
Expediting review of whistleblower complaints when people
believe that they're being retaliated against, if we get can
get that expedited review in place and whistleblowers can see
quick action, that sends a very powerful message, not just to
the individuals who are involved but to the facility. If
there's disciplinary action when someone retaliates against
someone, we need to have actions that back up the positive
words.
Mr. Walz. Yes.
Ms. Lerner. And we haven't----
Mr. Walz. And you think we can get them, doing this new
structure?
Ms. Lerner. I'm going to do my best to follow up on the
promises that have been made to me. I expect this committee
will join me in continuing to do oversight. That's our job. I
am happy to come back here in 6 months and report back to you
on what actions we've actually seen taken.
But one of the problems, I think, has been that we've
gotten the warnings from the whistleblowers about where the
problems are, but they have been sort of hidden from, I think,
probably VA leadership because the OMI has been saying, no
harm, no foul, you know, there's no violation here, there's no
regulation that's been violated.
In Brockton, what we heard from the OMI----
Mr. Walz. Why did you not suggest total elimination of the
OMI?
Ms. Lerner. Well, whatever replaces the OMI is going to
have the same issues. I think there are certain steps that can
be taken, whether it's the OMI, whether it's the IG.
Whatever the entity is that is investigating, there needs
to, number one, have a review triggered whenever there is a
finding of a problem. It has to go higher than whatever the
investigating entity is.
I think the second thing is there has to be a look to see
whether actual harm has occurred. Because what we've been
seeing is that the OMI says, yes, the allegations are true but
there's no harm here, but they don't really look to see whether
patients have been harmed or not.
In the Brockton case, the OMI only looked at the three
patients that the psychiatrist reported on. The psychiatrist
said, ``I think this is probably a widespread problem
throughout the facility,'' but the OMI only looked at those
three patients, didn't look to see if it was a more widespread
problem. And that's----
Mr. Walz. I appreciate that. I'm beyond my time, Ms.
Lerner. I'm sorry.
Thank you, Mr. Chairman. I apologize.
The Chairman. Yes, sir, Mr. Walz.
Mr. Huelskamp, you're recognized for 5 minutes.
Mr. Huelskamp. Thank you, Mr. Chairman.
I'd like to go back to some of the testimony we heard on
the prior panel. And the first question would be for Dr.
Tuchschmidt.
In his testimony, Dr. Mathews stated that when he
repeatedly brought up problems with doctors only doing 3-1/2
hours of work during any given 8-hour workday, the consistent
explanation he received was that this is the VA.
Considering that response, is it common practice throughout
the VA for doctors to work only a proportion of the time
they're being paid for?
Dr. Tuchschmidt. No, that's not a common practice. That's
not actually an expectation. You know, so I think that----
Mr. Huelskamp. Doctor, can you tell me how you know whether
that's true or not?
Dr. Tuchschmidt. Well, so I think there was a briefing on
capacity in the organization that----
Mr. Huelskamp. Yeah, and I'll tell you, the VA briefing
said their data was no good. And I've had whistleblowers to
that effect.
The second question is with reference to Mr. Davis, if Ms.
Lerner could shed some light on this. But you indicated that
folks from your association had met with White House Deputy
Chief of Staff Rob Nabors and Secretary Gibson about these
issues. Were you in on those meetings?
Ms. Lerner. I was. And Mr. Bachman was, as well.
Mr. Huelskamp. Okay. And I'd like to ask you, because Mr.
Davis does note that he believes that the Deputy Chief of Staff
of the White House, Rob Nabors, leaked his whistleblower
complaint, did you visit with Mr. Nabors about this possibility
and what the problems and penalties might be for doing such an
action?
Ms. Lerner. My meeting with Mr. Nabors was--did not focus
on this matter. I don't know anything about it, quite frankly.
My guess----
Mr. Huelskamp. Okay.
Ms. Lerner. [continuing].--Is that, and I'm just guessing
here, is that Mr. Nabors was trying to probably intervene to
help and not to leak someone's name in a vindictive kind of
way.
Mr. Huelskamp. Well, this goes to the highest levels. You
said that you thought they understood very well, but the
allegation tonight was that the very folks at the very highest
level that we're relying on actually were violating their own
whistleblower laws that are very clear.
And I want to ask Dr. Tuchschmidt, how do you inform the
employees about the rights in a whistleblower protection? How
often do you do that?
Dr. Tuchschmidt. So we have training that employees take in
our electronic education system. So there's online training
that is available to all employees and supervisory training, as
well.
Mr. Huelskamp. Is it mandatory?
Dr. Tuchschmidt. Yes, it is mandatory.
Mr. Huelskamp. How often do they take this training?
Dr. Tuchschmidt. I believe it's annually.
Mr. Huelskamp. And you will certify everyone takes this
training?
Dr. Tuchschmidt. We do track it in the--the TMS system
tracks----
Mr. Huelskamp. Well, your data is sometimes questionable.
If you could provide evidence of that, as well.
Following up on a few more things, Dr. Tuchschmidt, in
fiscal 2013, Donna Beiter, the director of the VA Greater L.A.
Healthcare System, received an $8,985 bonus. Based on the
testimony from Dr. Head tonight, including the continued
retaliation and discrimination, will there be any effort to
pull back or rescind her bonus?
Dr. Tuchschmidt. I really--I can't comment. I don't know.
You know, we----
Mr. Huelskamp. Okay. Let me ask you about another one then.
Similarly, in the VISN 18, the director of that VISN, which
includes Phoenix VA Healthcare System, the director, Susan
Bowers, received an $8,985 bonus in fiscal year 2013, as well.
Based on what we heard tonight about retaliation,
discrimination, will there be any efforts to rescind that
bonus?
Dr. Tuchschmidt. So, typically, we--performance awards are
tied to a performance evaluation, that a performance evaluation
was done based upon the knowledge at the time that was
completed. And we don't really believe that we have the
authority to go back, once those are done, and change prior
performance evaluations.
Mr. Huelskamp. And, thirdly, Dr. Tuchschmidt, Mr. Davis's
testimony, folks above him, the Deputy CBO, received an $8,252
bonus, and the CBO for Member Service received a bonus of over
$7,600. Will there be an effort, or are you going to ignore
these--allow these bonuses to remain, as well?
Dr. Tuchschmidt. I think that, again, my answer would be
that we don't normally go back and change performance
evaluations once they're completed.
Mr. Huelskamp. I want to zero in on the 1,241 patient
records that were falsified. How many records do you have to
falsify in order to be fired as an employee?
Dr. Tuchschmidt. I would hope you don't have to falsify
any.
Mr. Huelskamp. 1,241 apparently was not enough.
Dr. Tuchschmidt. One would be unacceptable.
Mr. Huelskamp. 1,241?
Dr. Tuchschmidt. I can't comment on the specifics of that
case.
Mr. Huelskamp. Well, I know you're not commenting on a
specific case, but you said it's one. But we've verified--the
lady next to you has verified 1,241 times. And they're still
working serving veterans, when they've falsified data in clear
violation of the law and harming potentially veterans. And your
response is, well, they still get to keep their job.
Dr. Tuchschmidt. I'd be happy to arrange a time to come and
share the details of that with you.
Mr. Huelskamp. I would be happy to hear that. But what I
think the American public needs to know is, are you really
serious about that? Still giving out bonuses, still hearing
these reports, and 130 complaints still continue to be
investigated.
I yield back, Mr. Chairman.
Dr. Tuchschmidt. I hear you, sir.
The Chairman. Dr. Tuchschmidt, the VA has come and briefed
our staff and said that the VA believes that they have up to 1
year to be able to claw a bonus back. And is it your testimony
that, even though fraud was committed, that a bonus is still
something that an individual should receive based on the
information that was known at the time?
Dr. Tuchschmidt. So I think you're getting out of my swim
lane. I don't know the technical answer to that question, but
I'm--I am happy to go back and get that answer for you.
The Chairman. It's called fraud, and that's illegal.
Dr. Tuchschmidt. I understand.
The Chairman. Mr. O'Rourke, you're recognized for 5
minutes.
Mr. O'Rourke. Thank you.
I want to continue Mr. Huelskamp's line of questioning
about Montgomery and just highlight some of what Ms. Lerner
included in her testimony: that, in 2012, a whistleblower who
was a surgeon was first alerted to this misconduct by an
anesthesiologist during a veteran's preoperative evaluation
prior to an operation. So I think that establishes the danger
and the threat and the potentially bad outcome for the veteran
when we don't have the right information for the
anesthesiologist, in this case.
Whistleblower reports these concerns to the Alabama VA
management in 2012. They put him on this--him or her--this FPPE
evaluation. And during that evaluation, he does this again; he
cuts and pastes information onto veterans' medical records.
And then you get OMI involved. And then, far worse than
previously believed, the review determines that the
pulmonologist engaged in copying and pasting, as Mr. Huelskamp
and others have said, in 1,241 separate patient records.
So, a couple things. You keep saying you can't comment on
this. I mean, it just defies commonsense and what all of us
would expect from anyone, that you would just say that this
person will be fired. I don't know why Ms. Lerner can tell us
all these details--and this is now public record--and you can't
tell us, and you can't tell the people in Alabama, more
importantly, the veterans there, what's happening.
And, also, if we're talking about creating a culture of
accountability, what does it say to the surgeon who is the
whistleblower? What does it say to the anesthesiologist that
this pulmonologist is still working? What does it say to the
people who testified in the panel before yours about what
happens when you have the courage and take the risk to stand up
and alert your superiors to malpractice or malfeasance within a
VA?
I think the signal you sent to everybody tonight is,
``Don't take that risk. We're not going to do anything.'' I
mean, the sin could not be more glaring than that documented by
Ms. Lerner here.
Is there anything that you can say? What would it cost you
or the VA or the Federal Government to go out on a limb and
say, ``We're going to fire that person; he or she should not be
working for us''?
Dr. Tuchschmidt. Right. So, as I said earlier, I mean,
there are reasons why I feel I cannot go into details here.
Right? So there are still active investigations going on into a
lot of these issues by the OIG. There are--if I put enough
details out there, somebody can make connections, right, back
to individuals. And, again, these are complicated issues that--
--
Mr. O'Rourke. It's--I don't know how it's complicated.
Let me ask this follow-up question for Ms. Lerner.
In your testimony related to this case, you say, ``OSC
requested and has not yet received information from the VA to
determine if the 1,241 instances of copying and pasting
resulted in any adverse patient outcomes.''
When did OSC request that?
Ms. Lerner. I'm sorry, I don't know the exact date. We
have----
Mr. O'Rourke. More than a week?
Ms. Lerner. Yeah.
Mr. O'Rourke. More than a month?
Ms. Lerner. I'm quite sure.
Mr. O'Rourke. Okay.
Ms. Lerner. And we'll do a final----
Mr. O'Rourke. And, Dr. Tuchschmidt, what's the response
on--I mean, I still don't understand why you can't answer our
previous questions about why this pulmonologist is still
working, but certainly you could answer this question, about
responding to the request to understand how this has affected
patient outcomes.
Dr. Tuchschmidt. Yeah, so--I don't know where that response
is. I did not know that they had not received something. But I
can go back and take care of that and find out where that is
and why a response hasn't been received.
I mean, I can say to you that I think that, you know, it is
our intention--I'm committed in the job that I am now acting in
to try and address these issues----
Mr. O'Rourke. I'm not convinced--and I apologize for
interrupting. I'm just not convinced that you're going to do
it. And I don't know you, so you can't take this personally,
but it's been reflected in testimony we've heard from almost
every representative of the VA for almost as long as I've been
here, which has not been a long time but long enough to know
that we have a major problem with accountability and
performance. And I'm not convinced that we're going to be able
to turn it around, from what I've heard.
I mean, everything was lined up beautifully by the previous
panel about the kind of problems and for how long they've
existed and what's needed to change this. And then we hear from
the VA essentially a non answer that basically sends the
message to us and to every employee of the VA that you don't
take this seriously.
I mean, you can say you're appalled, you can say you're
outraged, you can said you're deeply disappointed, but that's
all been said before. What we need now is: This is what we have
done, this is what we are currently doing, this is what we will
do. And I haven't heard any of that tonight.
And just really quickly, Mr. Chairman, Dr. Jesse, the
previous head of the VHA, when we alerted him to these
outrageous problems in El Paso, with 36 percent of veterans
seeking mental health appointments not being able to obtain
one, huge, gross discrepancies between what El Paso VHA was
reporting and what we finally learned through the VHA audit was
the truth, Dr. Jesse's response was, ``Let's not get into
assigning blame.'' In other words, let's not hold anybody
accountable, let there not be consequences, let's not change
anything we're doing.
I just have to register that very deep, profound
disappointment that I have and you've heard from so many others
today. And I, through you, ask the Acting Secretary to change
the culture now and change the responses that we're getting at
these hearings.
Dr. Tuchschmidt. Message heard.
Mr. O'Rourke. Thank you.
The Chairman. Mr. Coffman, you're recognized for 5 minutes.
Mr. Coffman. Thank you, Mr. Chairman.
Dr. Tuchschmidt, based on the testimony provided by the
four whistleblowers here tonight, it appears that the same
unethical tactics are occurring at numerous VA medical centers
across the country. This would seem to indicate that there is a
universal policy in place against whistleblowers that is well-
known among all the VA SES-level supervisors throughout the
country.
Do you have an explanation for this?
Dr. Tuchschmidt. Well, I don't believe there is any policy
or a collusion to suppress whistleblowers amongst the top
leadership at the organization. In fact, I think the
organization has said today, particularly Secretary Gibson,
that we intend to do something about that. The message has
clearly gone out to everybody in that June 13th letter that
there are consequences for retaliation.
We have to go through a process when those complaints come
in, I think, of investigating those so that we treat people
fairly and we know both sides of the story and we have the
facts before we take action. But I think the organization--the
Secretary speaks for the organization. And I think that
commitment is there, and I have to take him at his word.
It is clear to me tonight from all of the comments here and
from the comments from all of you, I mean, we have an enormous
problem. And we are a huge organization; it isn't going to
change overnight. I would--I know we're all impatient, but it's
going to take some time, I think, to fix some of these
fundamental issues.
It's going to start with, really, leadership. And we have a
new Acting Under Secretary, we have a nominee. We will have a
new Under Secretary for Health at some point and, I hope, a new
Principal Deputy Under Secretary. And I think that the
organization--that's the kind of change we need in the
organization to get back on the right track. And it's going to
take----
Mr. Coffman. But how long have you been a part of--you've
been a part of leadership in the VA for quite some time. How
long have you been a part of the leadership of the----
Dr. Tuchschmidt. For over 20 years, I've been in----
Mr. Coffman. Over 20 years. And you testified tonight that
this is really the first time that you've become aware of the
problems that were brought forward by the whistleblowers
tonight. Isn't that correct? That was your previous testimony.
Dr. Tuchschmidt. I learned about these whistleblowers
mostly by reading them in the paper, yes. So----
Mr. Coffman. And so, you've been in 20 years. Here's the
problem: That you've been in leadership within the VA----
Dr. Tuchschmidt. Yes.
Mr. Coffman [continuing]. And you've been in leadership for
20 years, and you're just totally oblivious to what is
occurring around you, in terms of all the problems, and it
really wasn't until it's become a national story that now
you're suddenly aware of them.
And I think that that's--I think that really speaks to the
culture of the VA and the problem, and that, if not for the
whistleblowers who have come forward, we would never be aware
of the magnitude of the problems that exist today, because the
leadership, or the lack thereof, never brought these issues
forward.
And I've got to tell you--let me ask you, are you a veteran
yourself?
Dr. Tuchschmidt. No, I'm not.
Mr. Coffman. Well, I've got to tell you, you know, if you--
the military axiom for this is, I don't think you could lead
starving troops to a chow hall. And I've got to tell you, that
if the new Secretary, when he comes aboard, after being
confirmed by the United States Senate, which I believe he will,
has folks like you in senior leadership, he is sending a
message to us, the American people, and the veterans of this
country that he's not serious about change.
With that, Mr. Chairman, I yield back.
The Chairman. Ms. Titus, you're recognized for 5 minutes.
Ms. Titus. Thank you, Mr. Chairman.
I'd like to go back to what I mentioned earlier, and that
is my concern about the emergency room doctors at the new Las
Vegas hospital. They came and spoke with me, at my invitation,
and they talked about the problems there, the lack of
leadership, the manipulation of schedules, those who work for
the VA directly versus those who are contracted from the
private sector who get special treatment.
And I just don't want them to get in trouble because of my
initiating an invitation to learn more about what was going on
out there. So I would ask you if--maybe you can't provide it
here, but if you can let me know if they are among those cases
that you have that have been filed, if anything has come out of
Las Vegas.
Mr. Bachman. I can't speak to any of the specifics. I can
tell you we have not received any complaints from the Las Vegas
facility.
Ms. Titus. Okay. Well, I'm glad to hear that.
I would also like to ask you--we heard, I think Mr. Davis
was saying there are different--different things are
comfortable for different people. Some whistleblowers go to the
press, some hire lawyers, some go to veterans advocacy groups,
and some go to their Members of Congress. Well, I think a lot
of them come to me. This is our biggest constituent kind of
service that we do in the district, was with veterans.
So if someone who works at the hospital, some doctor or
somebody who works out there, feels like they want to be a
whistleblower and they come to me, tell me what practical
advice I give them: Here's what you should do, here's how
you're protected, here's who you call, here's the form you fill
out. What advice do I give them?
Mr. Bachman. The first advice I would give is to please
refer them to us. This is the number-one priority in our office
right now. We are throwing everything we have at it. We've
dedicated over half of our program staff to dealing with these
whistleblower retaliation complaints. And so that would be the
first step.
And once we get in contact with them, we can find out what
their issues are. If for some reason we're unable to help, we
can point them in the right direction.
Ms. Titus. And that would be--they would come to you here
in Washington, not in Nevada?
Mr. Bachman. Correct, in Washington.
Ms. Titus. Okay.
All right, thank you, Mr. Chairman. I yield back.
The Chairman. Mr. Jolly, you're recognized for 5 minutes.
Mr. Jolly. Thank you, Mr. Chairman. I'll be brief.
I would just like to know, Dr. Tuchschmidt, for the record,
this ``Stop the Line'' conversation that we had, because I do
think it's important. You recognize the program; you mentioned
the program. It was presented to me at my local hospital as
something that was the end-all, be-all for accountability and
the ability of employees to step up and make a comment. And yet
we had four whistleblowers, clearly with the conviction and
courage to come forward, who hadn't heard of the program.
And there's not really a question other than just, I
recognize the importance of the program, but clearly it hasn't
penetrated to the level that at least was presented to me
during my meeting.
And I would just finish tonight, actually, with a bit of a
softball question, I'll admit it, but----
Dr. Tuchschmidt. I appreciate it.
Mr. Jolly [continuing]. It's an important question. And I'm
going to give you the rest of the time to answer it.
You've apologized tonight. You've spoken of accountability.
You've mentioned being appalled, speechless. You've passed your
cell phone number. Mr. Matkovsky impressed me several weeks ago
by apologizing and referring to what he called a ``crisis of
integrity.''
I notice, as a new Member of Congress, we have heard a
change in tone under the Acting Secretary, and I will say but
for the witness who, 2 weeks ago, said the system was
dishonest, which, frankly, I think was a deferral of
responsibility. But, by and large, I think we've seen a change
in tone.
You've been with the VA more than 20 years; is that----
Dr. Tuchschmidt. Yes.
Mr. Jolly. Here's the softball for you, but also
exceedingly important: Have you noticed a change in the last 6
or 8 weeks as a result of the attention? How we got here is
another question. Do you believe, with 20-years-plus experience
at the VA, that we are entering a new era of leadership within
the VA, regardless of who steps into the position?
And the time is yours on that one.
Dr. Tuchschmidt. I do.
So I think that there are many places around this system
that are phenomenal, where we have outstanding care, better
care than exists in private sector. We have places that have
outstanding access.
Our problem, I think--one, I agree with you absolutely, we
have a crisis of integrity. How we restore that is going to be
a slow and painful process.
The clinical issues, I think our biggest issue is that we
do not have a uniform, systematic approach to these things, and
so we have pockets of excellence and places that are not
performing so well.
The amount of activity in the 4 weeks that I've been in
this job and have had the opportunity to be aware of these
problems has been outstanding. I mean, the Secretary's out
there. We are sending hot teams into the facilities--I think
we've sent teams into Phoenix now three or four times--to help
them, to ask them what do they need. And we--I spend my days
trying to get them what they need.
I can tell you that 12 of those 20-something years I was a
facility director. I practiced as a clinician in the intensive
care unit. I'm a critical care physician. I practiced there. I
knew what was going on in my facility. I walked the halls. My
values I wore on my shirtsleeve. And people knew where I stood
on issues around integrity, around bringing problems forward,
about people coming together and solving those problems.
There was no doubt in my mind about what it took to make
sure the patient was the end-all and be-all of what we took
care of. That's why we were there, every one of us. And if you
weren't there for that purpose, then you better take a hike.
That was clear, I think, to everybody.
And I don't know that I'm the perfect shining example
because, quite frankly, I spend many nights sitting in bed
wondering what I could have done differently, what I personally
could have done differently. When could I have raised my hand?
Could I have pushed back harder? What did I not know that I
should have known? Many sleepless nights.
I don't know that I am the epitome of what it's going to
take. But I think it's going to take leadership who really--not
just at the Secretary level, not just at the Under Secretary
level, but all the way down to the service chief--who owns the
problem and says, we can fix it.
And I think we have a lot of great people in this
organization that will step up to the plate. And I am confident
that we're going to bring new people into the organization
today to help solve those problems.
Mr. Jolly. Okay. Thank you very much.
Mr. Chairman, I yield back.
The Chairman. Thank you, Mr. Jolly.
Thanks to the panel.
Based on our hearing today, we would expect the Secretary
of Veterans Affairs to establish a long-term plan of intended
actions, with target dates, that would determine what actions
to take against VA managers when reprisals have been found to
have taken place, notifying on a periodic basis all employees
of their whistleblower rights, and measuring the effectiveness
of such actions, such as a periodic survey of employees, and
designing and implementing a system for tracking overall
whistleblower complaints--complaints for which reprisal was
determined or the complaint was settled.
In addition, we recommend that VA analyze this data
periodically to ascertain whether additional steps are needed
to ensure that reprisal is not tolerated.
With that, I ask unanimous consent that all Members would
have 5 legislative days to revise and extend their remarks and
include any extraneous materials. Without objection, so
ordered.
The Chairman. I want to thank both panels of witnesses and
the audience members for joining us at tonight's critical
hearing on the importance of whistleblowers and effective
oversight investigations.
And, Dr. Tuchschmidt, one last question: Is Ms. Helman
still on the payroll?
Dr. Tuchschmidt. I don't honestly know the answer to that
question.
The Chairman. Does she work under your purview?
Dr. Tuchschmidt. Many layers down.
The Chairman. But you don't know if she still is on the
payroll?
Dr. Tuchschmidt. I would have to get an answer and take
that for the record.
The Chairman. Okay.
With that, this hearing's adjourned.
[Whereupon, at 12:01 a.m., Wednesday, July 9, 2014, the
committee was adjourned.]
APPENDIX
Prepared Statement of Jeff Miller, Chairman
Good Evening.
This hearing will come to order.
I want to welcome everyone to tonight's hearing titled,
``VA whistleblowers: Exposing inadequate service provided to
veterans and ensuring appropriate accountability.''
I would also like to ask unanimous consent that
representative Tom Price from the state of Georgia be allowed
to join us here on the dais and participate in tonight's
hearing.
Hearing no objection, so ordered.
Tonight, we will hear from a representative sample of the
hundreds of whistleblowers who have contacted this committee
seeking to change the VA to improve patient safety and better
serve veterans who have served this country.
We will also hear from the office of special counsel
regarding its work protecting VA whistleblowers and the vital
information they provide.
Representatives of VA will also be here to answer for the
department's reprisals against whistleblowers and its
continuing failure to abide by its legal obligation to protect
employee rights to report waste, fraud, abuse, and
mismanagement to the inspector general, to the special counsel,
to congress, and to this committee.
It is important to emphasize that the national scandal
regarding data manipulation of appointment scheduling did not
spring forward out of thin air at VA. Deceptive performance
measures that serve as window dressing for automatic SES
bonuses have been part of the organizational cesspool at VA for
many years.
Instead of being a customer driven department dedicated to
veterans, the focus instead has been on serving the interests
of the senior managers in charge.
The manipulation of data to game performance goals is a
widespread cancer within the VA.
We have often heard that VA is a data rich environment, but
when data is exposed as vulnerable to manipulation, it cannot
be trusted.
Until recently, VA would continue to trot out the tired
canard that patient satisfaction exceeds the private sector.
That may be true at a few select VA centers.
However, as our colleague, Mr. O'Rourke, demonstrated
through local polling, such results have been over generalized.
Moreover, during the course of the past year, this
committee has held a series of hearings showing a pattern at VA
of preventable patient deaths across the country, from
Pittsburgh to Augusta to Columbia and to Phoenix.
VA's satisfaction results are refuted by these tragic
outcomes.
In every one of these locations, whistleblowers played a
vital role in exposing these patient deaths at VA.
Whistleblowers serve the essential function of providing a
reality check to what is actually going on within the
department.
At great risks to themselves and their families,
whistleblowers dare to speak truth to power and buck the system
in VA designed to crush dissent and thereby alter the truth.
Tonight, we are very fortunate to have three distinguished
physicians testify with regard to their experiences in the VA.
We will also hear from a conscientious program manager in
VA's national health eligibility center who will show that the
disease of data manipulation may have spread to the initial
eligibility determinations for medical benefits.
None of these whistleblowers lost sight of the essential
mission of VA to serve veterans.
They understand that people are not inputs and outputs on a
central office spreadsheet.
They understand that metrics and measurements mean nothing
without personal responsibility.
Unlike their supervisors, these whistleblowers have put the
interests of veterans before their own.
Unfortunately, what all of these whistleblowers also have
in common is the fear of reprisal by the department.
They will speak of the many different retaliatory tactics
used by VA to keep employees in line.
Rather than pushing whistleblowers out, it is time that VA
embraces their integrity and recommits itself to accomplishing
the promise of providing high quality health care to veterans.
In order to make sure there is follow through at VA, I have
asked my staff to develop legislation to improve whistleblower
protections for VA employees and I invite all members of the
committee to work with us towards this end.
With that, I now yield to ranking member Michaud [MEE-SHOW]
for any opening remarks he may have.
Thank you, ranking member Michaud.
I ask that all members waive their opening remarks as per
this committee's custom.
Based on our hearing today, we would expect the secretary
of veterans affairs to establish a long-term plan of intended
actions with target dates for:
(1) Determining what actions to take against VA managers
when reprisal was found to have occurred;
(2) Notifying on a periodic basis all employees of their
whistleblower rights and measuring the effectiveness of such
actions, such as with a periodic survey of employees; and
(3) Designing and implementing a system for tracking
overall whistleblower complaints, complaints for which reprisal
was determined, or the complaint was settled.
In addition, we recommend that VA analyze these data
periodically to ascertain whether additional steps are needed
to ensure that reprisal is not tolerated.
I ask unanimous consent that all members have five
legislative days to revise and extend their remarks and include
extraneous material.
Without objection, so ordered.
I would like to once again thank all of our witnesses and
audience members for joining us for tonight's critical hearing
on the importance of whistleblowers to effective oversight
investigations.
With that, this hearing is adjourned.
Prepared Statement of Hon. Mike Michaud
Thank you Mr. Chairman.
This Committee has held many hearings over the years on
problems with access to VA health care. At each of these
hearings, problems were disclosed and the VA promised to
improve. But little has changed.
VA is widely known to have a culture of denying problems
and not listening to feedback--be it from Congress, veterans or
its own employees.
VA has had a reputation as being intolerant of
whistleblowers. So far in this fiscal year, nearly half of the
matters transmitted to agency heads by the Office of Special
Counsel, seven out of 15, involve the VA.
According to the OSC, it currently has 67 active
investigations into retaliation complaints from VA employees,
and has received 25 new whistleblower retaliation cases from VA
employees since June 1, 2014.
A recent New York Times article stated that within the VA
there was a ``culture of silence and intimidation.''
Acting VA Secretary Gibson recently stated that he was
``deeply disappointed not only in the substantiation of
allegations raised by whistleblowers, but also in the failures
within VA to take whistleblower complaints seriously.''
Within VHA, the problem of intimidation and retaliation may
be magnified by what some considered the ``protective'' culture
of the medical profession.
It is often thought to be against the ``code'' to point out
a colleague's mistakes. Or, where a nurse or attendant is told
it is not ``appropriate'' to question a physician or surgeon.
The natural tendency is to close ranks to deny that
problems exist, or mistakes were made.
So, after we listen to the testimony before us this
evening--from whistleblowers, the Office of Special Counsel,
and the VA, will anything change? How do we fix this culture
and encourage all VA employees to step forward to identify
problems and work to address them? Changing a culture is not
easy. It cannot be done legislatively, and it cannot be done by
throwing additional resources at it. Talk is cheap and real
solutions are hard to find.
It is clear to me that the VA, as it is structured today,
is fundamentally incapable of making a real change in its
culture. I note that Acting Secretary Gibson announced today
that he was taking steps to restructure the Office of Medical
Inspector by creating a ``strong internal audit function which
will ensure issues of care quality and patient safety remain at
the forefront.''
This is an improvement, but it raises additional questions
regarding how this restructuring will better enable OMI to
undertake investigations resulting from whistleblower
complaints forwarded by the OSC, or how it will have the
authority to ensure that remedial actions are taken by the
appropriate components of the VA.
Time and again, as the June letter from OSC demonstrates,
the VA found fault, but determined that these grave errors did
not affect the health and safety of veterans. Anyone reading
the specifics of any of these cases will find this ``harmless
error'' conclusion, as stated by the OSC to be a ``serious
disservice to the veterans who received inadequate patient care
for years[.]''
I agree with the OSC's June 23rd letter--``This approach
has prevented the VA from acknowledging the severity of
systemic problems and from taking the necessary steps to
provide quality care to veterans.''
We all seem to have the same goals this evening--we want
all VA employees to feel comfortable raising problems and
having them addressed without fear that raising their voices
will mean the end of their careers.
The VA has stated that it wants to make fundamental changes
in its culture so that workforce intimidation or retaliation is
unacceptable. Talk is cheap. Real change is difficult.
I would propose that the very first order of business at
the VA is to take accountability seriously. If any VA employee
is shown to have intimidated or retaliated against another VA
employee then that employee should be fired.
The VA should have a zero tolerance policy for
whistleblower intimidation or retaliation. As I see it,
effective leadership and real accountability is the only way to
begin the process of institutional change. I hope tonight is
the beginning of that change.
Thank you Mr. Chairman, and I yield back the balance of my
time.
Prepared Statement of Hon. Corrine Brown
Thank you, Mr. Chairman and Mr. Ranking Member, for calling
this hearing today.
As we have learned over the past few months there are
serious problems at the VA. We now need to focus on what can be
accomplished by these hearings.
How do we address the change of culture at the VA?
Currently, there is no leadership at the VA. All the top
positions are ``acting.'' We can hold hearings from now until
the cows come home and if we don't work with a permanent
leadership at the Department, nothing will be accomplished for
all these hearings.
During the Cold War, in order to feel comfortable with the
Soviet Union, we had what were termed Confidence Building
Measures.
Continuing to lob bombs from this dais will not help the
veterans needing health care.
The VA operates 1,700 sites of care, and conducts
approximately 85 million appointments each year, which comes to
236,000 health care appointments each day.
The latest American Customer Satisfaction Index, an
independent customer service survey, ranks VA customer
satisfaction among Veteran patients among the best in the
nation and equal to or better than ratings for private sector
hospitals.
I am confident in the health care our veterans in Florida
are receiving. With eight VA Medical Centers in Florida,
Georgia and Puerto Rico and over 55 clinics serving over 1.6
million veterans, veterans are getting the best in the world.
Over 2,312 physicians and 5,310 nurses are serving the 546,874
veterans who made nearly 8 million visits to the facilities in
our region. Of the total 25,133 VA employees, one-third are
veterans.
Prepared Statement of Hon. Negrete McLeod
Thank you, Mr. Chairmen for having this hearing. VA's
history of ignoring reported problems in the delivery of health
care and not protecting whistleblowers is unacceptable and must
change. I appreciate Acting Secretary Gibson announcing that
the Office of Medical Inspections will be reformed. These
reforms must be sincere and meaningful. VA must have an open
and honest conversation about its practices and what steps must
be taken to improve care for veterans. Thank you and I yield
back.
Prepared Statement of Dr. Jose Mathews
Executive Summary
Since the tragic events of September 11, 2001 and our
country's involvement in Afghanistan and Iraq, millions of
troops have deployed overseas in the interest of protecting our
nation and advancing others. Although the VA was charged with
the responsibility of providing services to generations of
veterans, it has only been in the most recent years that mental
health care treatments for conditions like PTSD have been
better understood with modalities of treatment reaching
heightened rates of efficacy. We know now that with proper
treatment of mental health concerns, joblessness, homelessness,
and suicide risk can be mitigated and in some instances
eliminated. And it is from this perspective that the VA's role
in treating veterans should be evaluated.
It is the responsibility and duty of the federal government
to provide these esteemed service members with the best health
care possible.
I can only speak from my personal experiences and
observations as the Chief of Psychiatry at the St. Louis VA.
There, the healthcare system as currently exists, has proven
only to be a maze of bureaucracy and red tape for veterans to
weave through upon their return home. Instead of being provided
with the immediate medical treatment and VA related benefits
they are entitled to, the St. Louis, VA has failed the same
vulnerable population it was designed to serve.
The men and women who have so bravely served our country
deserve a system that will be responsive and efficient; and
more importantly, will not fail them. The only way to ensure
effective and timely access to health care is to provide
transparency and to create objective metrics that evaluate the
care that is provided on a regular basis. Perhaps more
poignantly, the existing resources to provide this care is
simply not being managed effectively.
There are several initiatives I would like to propose that
will improve access and quality of health care afforded to
veterans. These initiatives include: (i) objective metrics to
increase transparency; and, (ii) ensuring accountability by
amending the Whistleblower Protection Enhancement Act, which
has proven inadequate for whistleblowers who make allegations
regarding risks to veteran health and safety.
These recommendations will provide a paradigm to ensure
that the quality of care is not only maintained but exceeded.
The Department of Veterans Affairs should be a world leader in
the treatment of combat related medical conditions; not an
institution where mismanagement and indifference breaches a
community's prevailing standard of care.
Mr. Chairman and distinguished members of the committee: I
am honored to appear before you today to speak about my
experiences while serving in the capacity as the Chief of
Psychiatry with Department of Veterans Affairs in St. Louis,
Missouri.
In order for you to better understand my connection and
interest in veteran related health care matters; I would like
to provide you with some brief information about myself. I am a
first generation immigrant from India and my father is a combat
veteran of the Indian Army. I am well acquainted with the
aftermath of a war and the toll it takes on the warrior and
their family. I have had a longstanding interest in
understanding mental illness, particularly mood disorders and
trauma related illnesses. I was fortunate to have had the
opportunity to study psychiatry and complete my residency
training at Washington University in St. Louis, a top-notch
psychiatry program in the country. I subsequently completed my
fellowship training in forensic psychiatry at Yale University.
I accepted the position of the Chief of Psychiatry at the
St. Louis VA in November 2012. I considered my job as a mission
to improve the mental health care of our veterans. I worked
hard to understand the VA system of care and I diligently
followed-up on veteran complaints about their mental health
care. I was very concerned about some of the complaints I
reviewed that were about poor access to care. I studied the
official VA productivity data and this data showed that the
psychiatrists at the St. Louis VA were amongst the most
productive in the nation. Based on this, I concluded that I
needed more psychiatrists to provide good, timely and safe
mental health care to our veterans. During the course of my
employment, and as I identified deficiencies I took actions to
correct these deficiencies. Notwithstanding, the management
structure of the VA not only precluded me from correcting the
deficiencies, but treated me adversely as a result of my
initiatives to make changes. This represented a dramatic
departure from my experience working in private and academic
settings.
A. Defining the Problem
I requested an extra full time psychiatrist position and
this was approved by the VA administration. However, some of
the veteran complaints still persisted. Including the complaint
of a veteran who came to the clinic with a deterioration of his
illness and who instead of being evaluated by a provider, was
turned away with an appointment scheduled for months later.
Another case that I found alarming involved a disabled veteran
without independent transportation, who was experiencing
worsening of his serious mental illness and who had traveled a
long distance to the VA clinic to get help. Again, he was not
seen by his provider or any other provider, or any provider for
that matter. His medications were not refilled; instead, he was
sent away with an appointment that was no fewer than 48 days
later. I found it difficult to believe that no one could spare
15 minutes to address this veteran's urgent medical needs. I
wanted to find the answer to a simple question: ``How busy are
the providers at the outpatient clinic?''
The St. Louis VA, to my surprise, could not identify the
average number of veterans seen by a provider/day or the time a
provider spends on direct patient care/day. I asked other
psychiatry Chiefs to estimate similar data at their facilities
by contacting them through a national e-mail group that
encompassed other VA facilities and I received answers that
ranged from 8 to 16 veterans/day/psychiatrist. I also worked
with a VA database administrator and my outpatient psychiatry
director to find out how many veterans were actually being
seen/day/psychiatrist at the St. Louis VA. I was interested in
estimating time spent on direct patient care. I wanted to know
the amount of available physician time for direct patient care
and the amount of actual time spent in direct patient care in
order to estimate utilization of expertise (available time/
actual time).
I was shocked to find that outpatient psychiatrists at the
St. Louis VA were only seeing on average, 6 veterans/8 hours
for 30-minute appointments with rare 60-minute appointments (3/
week). I could only account for 3.5 hours of work during an 8-
hour workday. In essence, we were utilizing less than 50% of
the available physician time for direct veteran care. I checked
my data multiple times and once I was confident that my data
was accurate, I investigated why there was such low utilization
of psychiatrist time, what the wait time for care was for the
veterans and whether we were able to engage and retain our
patients in ongoing mental health care and what the veteran
experience of care was at the VA. The answers I got were
alarming:
1. Low utilization of expertise:
a. I discovered that veterans were not being scheduled in
all the available appointment slots. Three slots out of the
possible 12 (1.5 hours) were inexplicably blocked from
scheduling each day.
b. There was a very high no-show rate (35%).
2. Wait times:
a. I found that the wait time for a new appointment was 25
days and for a follow-up appointment was 30 days after the
desired follow-up date.
3. Retention in care:
a. I was most troubled by my finding that 60% of the
veterans were dropping out of mental health care after one or
two visits with their psychiatrist.
4. Veteran Experience:
a. There was a lack of meaningful veteran satisfaction
measure. The surveys administered by the VA that I saw were not
done with safeguards to preserve anonymity and confidentiality
e.g., the treating provider would hand out the surveys to the
veterans and would also collect the completed surveys: From the
veteran's perspective, it would be extremely difficult to make
any negative assessment/comments under these circumstances as
one cannot feel confident about confidentiality and will have
concerns about their opinion impacting the care they receive.
B. Disclosing the Inadequate Care to Veterans
I discussed my data with the Chief of Staff, Chief of
Mental Health and my staff. The staff psychiatrists contested
my data and offered various unconvincing reasons for not seeing
more veterans/day (usually this involved pointing fingers at
the scheduler/person tasked with reminder calls/other
specialties). To address this, I collected prospective data
(going forward) for 1 month for all the specialties
(Psychiatry, Psychology, Social Work, Nurse Practitioners) and
22 weeks (5 months) of data for the psychiatrists (other
specialties opted out).
I could only account for less than 4 hours of work during
an 8-hour workday for any of the staff in Mental Health
(psychiatry, psychology etc . . . ) It was as if there was an
agreement amongst all the clinic employees to only work for
less than half the time they are paid to work. An agreement
amongst administration and staff that on paper everyone would
be ``productive'' and that everyone would qualify for
``performance'' bonuses.
I argued that this situation was unethical and unsafe for
our veterans and that this needed to change urgently. I ran my
intervention strategies by the Chief of Staff and I instituted
three changes:
1. I increased the scheduling grid to accommodate 19
veterans/day in the hopes of seeing, on average, 12 veterans/
day/psychiatrist and when this milestone was accomplished, to
reduce the scheduling grid to 16 veterans/day to maintain
access to care.
2. Instituted a strict policy of not turning away a veteran
who had presented for care. I instructed the clinic to arrange
for the veteran to be evaluated by other providers if a
provider calls in sick. I put myself in this pool and I saw
veterans on three occasions to underscore my commitment to this
policy.
3. I instructed outpatient psychiatrists to stratify their
patients into two groups: high intensity care and usual
intensity care. I wanted more intense monitoring and follow-up
for those in high intensity care group.
I was also able to secure philanthropic support for a pilot
program to collect real time, meaningful veteran satisfaction
survey with questions such as: Did your provider address your
concerns today? Do you know when your next appointment is?
Using ipads and real time data integration.
There was a significant amount of resistance from many
psychiatrists and other specialties. I was yelled at on many
occasions, I was told repeatedly, ``this is the VA'' to explain
away the poor access to care. I persevered and I had partial
success in increasing the number of veterans seen/day/
psychiatrist; in reducing the wait times and in implementing a
real-time veteran satisfaction survey.
I wanted to focus on four core meaningful metrics:
1. Time to care.
2. Utilization of resource (available/actual)
3. Veteran retention in care.
4. Veteran satisfaction with care.
I had argued that if the above metrics were headed in the
right direction, we would be advancing towards our goal of
creating a care environment where we could honestly refer a
loved one, and if these metrics were not improving, other
metrics (e.g., productivity measures) were meaningless.
I observed several unethical practices at the VA and I
would bring this to the attention of the administration or
address these if they were my staff.
1. Some of the psychiatrists were not respecting their tour
of duty time commitments. I called them on it that resulted in
improved behavior.
2. I was part of a search committee for a senior position
at the VA and I was concerned about a particular candidate not
being accorded proper consideration. I wrote a frank e-mail to
all the members including the Chief of Staff where I argued
that this was both unethical and possibly illegal.
3. I had a transgender veteran complaint about the quality
of psychological evaluation report that had resulted in the
denial of hormonal treatment. I found this psychological report
grossly inadequate and I strongly argued for a second opinion
for this veteran. This resulted in the then Chief of Psychology
falsely vouching for the ``expertise'' of the evaluating
psychologist. Subsequently I found out that the evaluating
psychologist was placed on probation, that her clinical
privileges were restricted, that she had many veteran
complaints and that she was hired despite concerns about her
competence, I requested a meeting with the Chief of Staff and
the Chief of Psychology where I voiced my concern about this
incident and I suggested that this psychologist's work be
reviewed by a psychologist from outside the St. Louis VA. The
Chief of Staff did not seem concerned and the next veteran
complaint against this psychologist for a similar issue was
deliberately hidden from me.
4. I had concerns about two avoidable deaths:
a. One involved a young OIF/OEF veteran who was not
assessed properly at the VA, whose medication management was
sub-standard and who was discharged the very next day after his
inpatient admission. My request for a Root Cause Analysis was
not honored.
b. An elderly veteran was not assessed properly in the ER
and he died shortly after he was admitted to the psychiatry
inpatient unit.
5. A suicide attempt by a veteran in the inpatient unit
while the Joint Commission was reviewing the VA was covered up
and this incident was not reported to the Joint Commission. A
safety barrier was breached during this attempt and this
vulnerability was not addressed promptly as this event was not
reported to the Joint Commission, hence, corrective actions
were deliberately delayed at real risk of harm to the veteran.
6. The Acting Chief of Mental Health had opened up a back
channel communication with the psychiatrists who were opposed
to my increasing access to care and with my demanding
accountability from all. I had met with the Chief of Staff and
the Acting Chief of Mental Health regarding this. The Acting
Chief of Mental Health had apologized to me for his behavior, I
accepted his apology and his assurances that he would fully
support my efforts to improve access to care.
7. However, shortly thereafter, while I was on paternity
leave, the Acting Chief of Mental Health was the person who
determined that an Administrative Investigation was warranted
based on the complaints he got from the very disgruntled
psychiatrists who were opposed to my initiatives.
C. Retaliation for Whistleblower Disclosure and Subsequent
Disclosures
On the heels of disclosing the deficiencies and barriers to
care, the Chief of Staff called me into a meeting on August 26,
2013 to inform me that there was a ``mutiny'' and that to
``protect'' me ``and the VA'' he was authorizing an
Administrative Investigation to investigate the allegation that
I had created a hostile work environment for the staff
psychiatrists. I reminded him that the staff psychiatrists had
nominated me for an award before I had discovered the extremely
poor work ethic and I had started to demand accountability. He
told me that this would give people time to ``cool off.'' He
assured me that I did not need an attorney and that he did not
anticipate this process to take more than a few months and that
I would be immediately detailed to Compensation and Pension and
was not to access any of my patient files or information
pertaining to the provider/patient care ratio.
Although provided with very little information about the
exact nature of the investigation against me, my understanding
is that the Chief of Staff and the Chief of Mental Health met
with all the staff psychiatrists after my meeting with the
Chief of Staff. The three of the psychiatry directors were
excluded from this meeting. This meeting was described to me by
some of the psychiatrists I had recruited as ``embarrassing,
bad-mouthing'' and I got a phone call from a concerned
psychiatrist who wanted to know if I was fired.
I continued doing Compensation and Pension evaluations
throughout the pendency of the ``investigation.'' I
independently filed a complaint with the Office of Special
Counsel and although I disclosed all of this information,
because of the way I phrased the information, the Office of
Special Counsel declined to find that I had establish that I
was subject to a prohibited personnel practice. I was forced to
retain counsel and only with the assistance of an attorney was
able to craft a complaint that has engendered the interest of
the Office of Special Counsel; which only recently notified me
last week that they were referring my complaint for
investigation.
In broad brush stroke terms, since the time of my
disclosures last year, the VA has retaliated against me in the
following manner:
1. I was completely removed from my position as Chief of
Psychiatry;
2. I was forbidden from contacting other psychiatrists and
my access to the database I set up to monitor the number of
veterans seen by provider each day was terminated;
3. The independent funding for the veteran satisfaction
survey project I secured was put on hold because of my removal
from the Chief position;
4. Two excellent psychiatrists I had worked hard to
recruit, who had interviewed at the VA, were from excellent
training programs (Hopkins and Harvard) decided not to join the
VA;
5. A hostile work environment was created in so much as,
some of the staff psychiatrists outwardly mocked me;
6. I had an earlier performance review completed by Dr.
Steve Gaioni who was the ACOS for Mental Health until July 2013
that was a reasonable assessment however I did not agree with
his assessment of my management as Dr. Gaioni would counsel me
to ``go slow'' where I saw an urgent need to improve access to
care. I was re-evaluated by Dr. Metzger and he used a
``performance'' metric that I could not understand but it
covered 5 weeks of my work from October 1 2013 until November 4
2013 and he determined that I had only met 50% of the goals he
had set for me that was unbeknownst to me and was set after I
was put on the administrative investigation. I refused to sign
this document, however Dr. Welling, the Chief of Staff
determined that this was an accurate representation of my work
for the entire fiscal year and as represented by their
approval. This is why almost every psychiatrist got the full
performance pay they were eligible for based on bogus
``productivity'' data.
7. I was overlooked for promotion opportunities. More
specifically, The Chief of Staff, on at least two occasions,
pre-selected individuals for the Associate Chief of Staff
position (a position for which he was aware I intended to
apply), before the position was even advertised. Although, as
the Agency was also aware, the fact that I was under
investigation, impacted my ability to compete for positions.
8. Approximately one year after my initial disclosures, and
although, no one at the VA had ever disagreed with my
calculations concerning the number of veterans seen on a daily
basis, the St. Louis, VA defamed my professional reputation and
issued a press release suggesting that the VA's own careful
investigation showed that the actual number was more than
double of what I had found (14). This was blatantly false.
9. After my disclosures to the Offices of Senators Blunt
and McCaskill I was contacted by the VA Privacy officer, who
suggested he was investigating violations of PHI; which I did
not. They filed complaints with the Federal Prosecutors office
and the OIG. I had to have my attorney intervene again on my
behalf.
10. Shortly after Senators Blunt and McCaskill made an
inquiry into the caliber of patient care at the St. Louis, VA,
the Chief of Staff called me into his office and demanded to
know what my ``end game was? Where is all this going?'' I told
him that I did not know and that I had no control over how
everything was going to play out. This meeting ended abruptly.
11. I discovered that false data was entered into the
medical records of veterans in June of 2014. After disclosing
this to Acting Secretary Gibson, I was immediately reprimanded.
More specifically, both myself and a colleague were
subsequently instructed to report to a meeting with the Chief
of Staff, who stated in pertinent part that it was Acting
Secretary Gibson's expectation that the ``chain of command is
followed.'' The Chief of Staff went on to state that ``I am
telling you what the chain of command is, this is what it is,
you work for me.'' I was offended by this and I told him that I
thought I was working for the US government and not for him. He
reiterated that it was Secretary Gibson's expectation that we
first discuss any issues first with Dr. Metzger, if there is no
resolution, to ``go up the chain of command.'' I clearly felt
that I was being reprimanded for writing to Secretary Gibson
and that I should resolve the issue ``locally first.'' He
commented that this was the best way to manage any organization
and that this was the ``safe'' thing to do. The way he said
safe and the manner he lingered on it made it clear to me that
he was conveying a gag order and a threat. I called him on it
and I asked him if this was a gag order. He said no but that
this was the expectation of Secretary Gibson.
He also stated that he wanted to tell us that even
discussing de-identified information with outside agencies and
looking for information in patient chart may constitute privacy
violation and he wanted us to be aware of this. I asked for
clarification if he was telling me that I could not contact
OIG, OSC or Senators, he said that this is not what he meant
but for us to be mindful of the fact that the VA takes veteran
privacy very seriously. The spirit and tenor of this meeting
was in direct contradiction to the memo Secretary Gibson had
sent that called for Whistleblower protection.
12. Shortly after I disclosed the false data entry in June
of 2014, my official protected time for research was revoked.
D. Crafting an Effective Solution
Any effective mechanism for improving Veteran care will
necessarily incorporate transparency and accountability;
neither of which is mutually exclusive of the other.
I have had the opportunity to think deeply about some
tangible and concrete measures that the Congress and White
House could take immediately to restore trust and faith in the
St. Louis, VA by focusing on two elements. The First component
of which applies to patient care and transparency:
Safe Guarding Patient Care
1. Data Integrity: VA data must be managed by an
independent entity. Transparently tracking just four simple
metrics can yield huge benefits:
a. Wait times for each specialty/procedure: This could be
available on a real-time basis.
b. Reasonable time veteran satisfaction measure: We have
the technology to implement a concise, well validated measure
of veteran satisfaction on a reasonable time basis (compiled
weekly), at the point of contact to get a more complete set of
veteran experiences.
c. Utilization of expertise: Available time/actual time
spent by providers.
d. Retention in care or the attrition rate of the veterans.
2. Employee Discipline: Those individuals in direct patient
care role must not have life-time tenured positions. I think
that this ``job security'' is a big factor in veteran interest
not being central which then ironically threatens the very
existence of VA as a health care system.
Protecting and Fostering Transparency: As currently
drafted, the Whistleblower Protection Enhancement Act (WPEA) as
enacted, has done little to shield the professional rebuke that
has occurred following my disclosures. Moreover, some of the
events that have happened, although impacting my professional
career, fall beyond the ambit of the definition of Prohibited
Personnel Practice (PPP). For this reason alone, the WPEA
should be amended to require the VA to maintain the status quo
for all whistleblowers who allege breaches to the standard of
patient care. This will ensure timely investigation and
resolution of the allegations and will preclude the VA from
conducting ``administrative investigations'' that, while
harmful and professionally detrimental, may not fall neatly
with the confines of the PPP.
Perhaps more importantly however, is the personal and
financial sacrifice associated with the disclosures. Although I
have a medical degree and am a Yale trained psychiatrist, I
could not navigate the OSC process without the benefit of
counsel. Not every whistleblower will be able to afford to
retain an attorney to provide the legal advice that is
absolutely necessary when an Agency begins making professional
and potentially criminal allegations; all of which are grossly
unfounded. Even now that OSC is involved, an investigation has
not been completed and I am required to commence an action
before the Merit Systems Protection Board if the OSC declines
to prosecute or if the OSC is not successful in negotiating an
agreeable resolution to my complaint. To that end, the WPEA
should be amended to make optional the need to exhaust
administrative remedies by first filing whistleblower appeals
with the OSC and to provide for the mandatory payment of treble
attorney fees for prevailing parties in order to provide VA
employees with greater access to private legal representation
at all stages of the whistleblowing process.
I would, and will continue to, blow the whistle a thousand
times over again to protect the patients I treat; but some of
the barriers I have identified may for example prove too
onerous a burden for others to sustain. For this reason alone,
the laws must change to afford actual and timely protection for
whistleblowers.
The recommended solutions identified will result in the
following:
Veterans: With readily available wait times and
satisfaction measure, a veteran will have the choice to obtain
care at a facility that optimizes acceptable wait time with
satisfactory care. This will lead to a more even utilization of
specialty care that in-turn will improve efficiency by
distributing care. The cost savings from early intervention and
reductions in secondary complications could justify travel
assistance or other incentives to distribute care.
Policy Makers: A more accurate and meaningful measure of
resource utilization and hospitals/ specialties needing closer
scrutiny will be available to guide sounder policy. VA will not
be saddled with poorly performing employees who may be toxic to
veterans health.
Veteran Service Organizations: More effective monitoring of
the VA with transparent reasonable time data.
Taxpayers: Determine if we are getting value.
Whistleblowers: Will be encouraged. This will create
transparency in their individual VA institutions without the
fear of professional rebuke and potentially, financial
devastation.
I would like to deeply thank the Committee for the
privilege of appearing before you today on, what I view, to be
a defining moment in how our Government responds to the mental
health needs of veterans. Thank you.
The Chairman. Thank you Dr. Mathews. We'll have an
opportunity, each of us, to ask questions and get into
specifics a little bit later on.
Prepared Statement of Dr. Christian Head
Introduction
Dr. Christian Head \1\ comes before Congress to testify,
not motivated by any political agenda, but based purely on a
genuine interest in seeking solutions to address employee
mistreatment, but most importantly, to improve the healthcare
provided to our Country's heroes. Dr. Head submits this
testimony in response to Congress's request to appear and
testify on this issue.
---------------------------------------------------------------------------
\1\ To avoid confusion, I will refer to myself in the third person
throughout this testimony.
---------------------------------------------------------------------------
Dr. Head is uniquely qualified to testify regarding issues
within the VA system. Dr. Head is a world-renown, board
certified Head and Neck Surgeon. Between 2002 through 2013, Dr.
Head held dual appointments at the UCLA David Geffen School of
Medicine becoming a tenured Associate Professor in Residence of
Head and Neck Surgery, as well as an attending surgeon at the
West Los Angeles Campus of the VA Greater Los Angeles
Healthcare System (``GLAHS''). In 2007, Dr. Head was promoted
to Associate Director, Chief of Staff, Legal and Quality
Assurance within GLAHS.
Dr. Head's clinical and academic successes over the years
have been numerous. However, despite Dr. Head's many
accomplishments and contributions to the medical profession,
Dr. Head has endured and witnessed, firsthand, illegal and
inappropriate discrimination and retaliation of physicians,
nurses, and staff members within GLAHS. Throughout this
testimony, Dr. Head will speak on the growing number of
complaints coming from VA employees, complaints ranging from
racial, gender, and age discrimination and harassment to
complaints regarding substandard patient care and treatment.
Additionally, Dr. Head will address the inappropriate and
often illegal response, or at times lack of response, by VA
administration in regards to complaints by hospital employees.
For example, this testimony will focus on how administrators
and supervisors within GLAHS have created a climate of fear and
intimidation, where the system not only fails to protect
whistleblowers, but actively seeks to retaliate against them.
Further, Dr. Head's testimony here will discuss the general
lack of accountability of VA administrators and supervisors who
actively retaliate against and ostracize hospital employees who
attempt to speak out against illegal behavior. Dr. Head will
testify, firsthand, about the climate within the GLAHS which
perpetuates this illegal behavior, due in large part to the
system's failure to take any action against certain
individuals. Specifically, how wrongdoers are left in positions
of high leadership to continue their illegal behavior without
recourse.
Dr. Head's testimony will further discuss how the current
morale of employees within GLAHS is dangerously low. Dr. Head's
testimony will discuss how the system's failure to properly
respond to complaints leaves employees within GLAHS with a
sense of helplessness, creating undue stress and anxiety
amongst those attempting to provide quality healthcare to our
Country's veterans.
Finally, but most importantly, Dr. Head's testimony here
will explain how this dangerous climate of intimidation and
retaliation against whistleblowers negatively affects patient
care. Dr. Head will discuss how he has witnessed, firsthand,
veterans receiving below-standard healthcare, or no healthcare
at all, because of the retaliatory behavior and lack of
accountability within the system.
Background
Dr. Christian Head is a prominent Head and Neck Surgeon,
known worldwide. As some would say, ``one of our finest
surgeons in Southern California. . . . [Who is] generous with
his time and talent, helping Veterans and giving back to our
community both locally and nationally. . . . [W]ho will make a
difference in our world with his skills as a surgeon, his
scientific research and laboratory.'' Unfortunately, Dr. Head
has been the victim of outrageous racial harassment,
discrimination, and retaliation occurring within GLAHS.
Dr. Head obtained his Doctor of Medicine degree from Ohio
State University, College of Medicine in 1993. Between 1992 and
1993, Dr. Head completed an Internship in Surgery at the
University of Maryland at Baltimore. Between 1994 and 1996, Dr.
Head commenced his employment with a Fellowship in Neuro-
Otology Research at UCLA School of Medicine. Between 1996 and
1997, Dr. Head completed a Surgical Internship at UCLA School
of Medicine. Between 1997 and 2002, Dr. Head worked as a
Resident in the UCLA School of Medicine Head and Neck Surgery
Department. In 2002, Dr. Head joined the faculty as a Visiting
Professor in Head and Neck Surgery at UCLA. In 2002, Dr. Head
also joined GLAHS. During his time with GLAHS, Dr. Head worked
as a Head and Neck Surgeon, and in 2007, was promoted to
Associate Director, Chief of Staff, Legal and Quality Assurance
within GLAHA. In August 2003, Dr. Head joined the faculty of
the UCLA Geffen School of Medicine as a full time Head and Neck
Surgeon. Dr. Head left UCLA in 2013. Dr. Head has been board
certified in Head and Neck Surgery since June 2003.
Over the years, Dr. Head's work has included clinical
practice, surgery, academia, and research. Dr. Head has
received accolades for his work, including the National
Institute for Health National Cancer Institute Faculty
Development Award. In or around 2001 to 2002, Dr. Head was
nominated for the UCLA Medical Center Physician of the Year
award. In or around November 2003, Dr. Head launched the UCLA
Jonsson Cancer Center Tumor Lab, which has been tremendously
successful, yielding valuable research and benefitting many
physicians and patients at UCLA and worldwide. In 2003, Dr.
Head was one of a few surgeons nationwide to receive the
Faculty Development Award from the National Institute of Health
Comprehensive Minority Biomedical Branch, intended to increase
the number of minority physicians in cancer research at major
academic institutions.
An important point relevant to this testimony includes the
relationship between GLAHS and the University of California,
Los Angeles (``UCLA''). UCLA has several affiliated hospitals,
one of which includes GLAHS. As part of this affiliation, UCLA
provides physicians and surgeons to staff GLAHS. Until his
departure from UCLA in July 2013, Dr. Head worked at both
entities under this UCLA/GLAHS affiliation. \2\
---------------------------------------------------------------------------
\2\ While there may be additional information relevant to Dr.
Head's testimony, because of certain conditions, Dr. Head will focus
his testimony here solely on incidents related to his employment at
GLAHS.
---------------------------------------------------------------------------
Dr. Head's supervisors include Marilene Wang, M.D. (``Dr.
Wang''), UCLA/GLAHS Head and Neck Surgeon and Dr. Head's
immediate clinical supervisor at GLAHS; Dean Norman, M.D.
(``Dr. Norman''), GLAHS Chief of Staff; Matthias Stelzner, M.D.
(``Dr. Stelzner''), GLAHS Chief of Surgical Services; and Donna
Beiter, RN, MSN (``Ms. Beiter''), GLAHS Director. Dr. Head's
immediate supervisor at UCLA was Gerald Berke, M.D. (``Dr.
Berke''), Chairman of the UCLA Department of Head and Neck
Surgery, who has tremendous power and influence at GLAHS.
Discrimination and Retaliation Against Dr. Head
Despite Dr. Head's many accomplishments and contributions
to the medical profession, Dr. Berke and Dr. Wang have made
several inappropriate racial comments about black people,
including Dr. Head. In or around 2003, Dr. Wang made comments
that Dr. Head was hired as a Visiting Professor because he was
an ``affirmative action hire'' and ``affirmative action
project.'' In or around 2003, Dr. Wang also publicly stated
that Dr. Head is inferior because he is black, that he would
not pass the boards, and that he was unqualified. In or around
2003, Dr. Wang stated that ``cream rises to the top,'' that Dr.
Head ``would not make it in academic medicine,'' and that Dr.
Head and ``doctors like him'' who are black, were the reason
for failed hospitals like King Drew. In or around mid-2003, Dr.
Berke stated that ``we're about to have some color'' in the
department. Dr. Berke also stated, ``I guess we'll have our
first Nigger'' now.
From 2003 to present, Dr. Head has lived with Dr. Wang's
threats and affirmative actions to destroy Dr. Head's career,
reputation, and ability to earn a living. In that regard, in
2003, Dr. Wang, who has supervisory authority over Dr. Head at
GLAHS and prepared evaluations of his performance, clearly
indicated it was her intention to prevent Dr. Head from
receiving promotions, full time equivalents, tenure, and
advancement. Dr. Wang's discriminatory conduct has been
continuous and consistent throughout Dr. Head's employment.
Starting in or around 2003, Dr. Wang began stating to other
surgeons that she fully intended to interfere with Dr. Head's
professional advancement, in part by giving Dr. Head subpar
evaluations and falsely attacking Dr. Head's credentials and
performance at GLAHS.
In March 2004, Dr. Head submitted an EEO complaint
outlining the discriminatory and hostile behavior against him
by Dr. Wang. (A true and correct copy of this EEO complaint is
attached hereto as Exhibit 1.)
In or around June 2004, Dr. Wang was ordered by UCLA
officials to stop submitting negative evaluations about Dr.
Head after Dr. Wang was reported by Dr. Head as having called
Dr. Head an ``affirmative action hire,'' amongst other racist
comments. At that time, Dr. Wang promised not to interfere with
Dr. Head's career advancement. However, in direct violation of
this order, Dr. Wang continued to submit negative supervisor
evaluations at GLAHS regarding Dr. Head's performance, which
evidenced her obvious racial bias against Dr. Head. Dr. Wang's
ongoing harassment and retaliation against Dr. Head in this way
continued to negatively impact Dr. Head's career advancements.
In or around November 2005, Dr. Wang gave Dr. Head a
retaliatory and harassing evaluation of his teaching and
performance at GLAHS in an attempt to interfere with his
advancement at UCLA. Dr. Wang rated Dr. Head a 1 out of a
possible 4 points in his review. Dr. Wang further wrote that
Dr. Head ``doesn't teach, yells at junior residents,'' ``poor
availability, doesn't respond to messages,'' and ``poor example
& role model for residents.'' Dr. Wang's performance review was
in sharp contrast to reviews and comments made by other
colleagues.
On or about February 2, 2006, Dr. Head sent a letter to Dr.
Rosina Becerra (``Dr. Becerra''), then-Vice Provost for Faculty
Diversity and Development at UCLA, regarding this harassment,
discrimination, and related problems at UCLA and requested
financial and other support to stop the harassment,
retaliation, and interference with his career advancement. Dr.
Head also requested that he be assigned more time working at
UCLA in order to be removed from Dr. Wang's supervision at
GLAHS. In response, Dr. Becerra told Dr. Head that she could
not help him, and warned Dr. Head it was not a good idea to
participate in an investigation against Dr. Wang.
In or around April 2006, Dr. Head was contacted for the
first time by Investigator Nancy Solomon (``Investigator
Solomon'') of the Office of Inspector General (``OIG'')
regarding an investigation of Dr. Wang for time card fraud
concerning work Dr. Wang performed at GLAHS. Dr. Head learned
from Investigator Solomon that Dr. Wang was under investigation
by the federal government for submitting and/or approving false
time cards pertaining to services provided at GLAHS. Dr. Head
was asked by Investigator Solomon to testify about Dr. Wang's
involvement in time card fraud. Dr. Head requested protection
from Investigator Solomon, stating that he feared retaliation
for his participation in the investigation. With a promise by
Investigator Solomon regarding protection from retaliation for
his cooperation, Dr. Head testified in an OIG deposition
regarding Dr. Wang's time card issues.
The OIG investigation concluded that Dr. Wang had in fact
committed time card fraud. There was a recommendation by the
OIG that Dr. Wang be removed from her leadership position and
terminated from GLAHS; however, Dr. Wang's immediate
supervisor, Dr. Berke, took steps to save Dr. Wang's job and
leadership position--UCLA transferred vacation hours to Dr.
Wang's account and research funds were transferred from Dr.
Berke. Additionally, Dr. Berke approached Dean Norman, M.D.
(``Dr. Norman''), GLAHS Chief of Staff, to request that Dr.
Wang not be terminated. Due to Dr. Berke's intervention and
powerful influence, Dr. Norman did not terminate Dr. Wang, did
not dock her pay, and did not remove her from her leadership
position as Chief of Head and Neck Surgery at GLAHS, despite
the recommendation for termination by the OIG. In fact, the
only action taken was a written warning issued to Dr. Wang and
termination of a subordinate.
Prior to Dr. Head's participation in the time card fraud
investigation of Dr. Wang, Dr. Head had been nominated for Head
and Neck Department teacher of the year. However, following Dr.
Head's participation and truthful testimony in connection with
Dr. Wang's time card fraud investigation in April 2006, Dr.
Berke and Dr. Wang escalated their campaign of intimidation,
harassment, discrimination, and retaliation against Dr. Head.
In or around April/May 2006, Dr. Head met with Dr. Berke to
discuss Dr. Head's total compensation package for the academic
year 2006-2007. Dr. Berke threatened Dr. Head stating, ``If you
complain about Dr. Wang,'' and about not getting the
compensation enhancement (a Full-Time Equivalent (``FTE'') that
was available, which Dr. Wang denied Dr. Head and gave to
another surgeon from outside the hospital), ``you won't get
anything, you'll be removed.''
In or around April/May 2006, shortly after Dr. Head
provided deposition testimony to the OIG, Dr. Wang discussed
with the residents of the UCLA Head and Neck Department, whom
she supervised and worked with, about Dr. Head's participation
in the time card fraud investigation. In addition, Dr. Wang
spoke with many of the residents who worked under her
supervision as they each testified in the time card fraud
investigation. As a result, these residents, began to
participate in the intimidation, harassment, discrimination,
and retaliation of Dr. Head. Dr. Head began to experience
horribly offensive discriminatory comments, graphic racial
photos, and retaliatory actions and statements.
In or around May 2006, Dr. Head reported to Dr. Dennis
Slamon (``Dr. Slamon'') that he was being harassed and
retaliated against by Dr. Berke and Dr. Wang and was worried
about his future. Dr. Slamon responded, ``They [Dr. Berke, Dr.
Wang, and Dr. Abemayor] think you ratted out Wang in the IG
investigation. You need to keep your head down and stay out of
this. Don't complain.''
In or around May 2006, Dr. Head requested a full-time
appointment at GLAHS, but did not receive the appointment
despite being more qualified than other choices.
In or around June 2006, at the year-end closing ceremony
and party for the UCLA Head and Neck Department--attended by
approximately 200 people including UCLA and VA faculty, staff,
chairs, residents, and spouses--the resident class presented a
slide show. The slide show, presented by the Residents had an
entire section about Dr. Head. These slides, directed toward
Dr. Head, were exceptionally vulgar, disturbing, defamatory,
discriminatory, retaliatory, humiliating, degrading,
disgusting, demoralizing, and racist. One slide, referencing
the OIG time card fraud investigation of Dr. Wang, showed Dr.
Head on the telephone and read: ``If all else fails call 1-800-
488-VAIG.'' (See Exhibit 2.) The other slides throughout the
presentation were similar to Dr. Wang's comments in her
performance ``evaluations'' of Dr. Head: That he is a bad
doctor, bad researcher, and bad teacher.
In or around June 2006, Dr. Head's surgical practice was
restricted, and more complex surgical operating room time was
being given to vastly under qualified surgeons.
In or around December 2006, Dr. Wang continued to submit
false critical evaluations of Dr. Head, assigning him the
lowest marks possible. Caused by her malice, personal vendetta,
and discriminatory bias towards Dr. Head, Dr. Wang's false
evaluations were defaming to Dr. Head's professional
reputation, criticizing his competence generally and as a
teacher, researcher, and mentor.
In or around early 2007, Dr. Head learned that Dr. Berke
and Dr. Wang were planning on terminating Dr. Head's employment
if given the opportunity. Consistent with the repeatedly
expressed intention to remove Dr. Head, Dr. Berke and Dr. Wang
micromanaged Dr. Head's performance, concerning trivial matters
or matters that were entirely manufactured. Although Dr. Head
actively and successfully thwarted Dr. Berke's and Dr. Wang's
efforts to vex, annoy, and harass him into voluntarily
resigning his position, Dr. Wang continued to provide negative
evaluations of Dr. Head between 2007 and 2008.
In or around December 2007, Dr. Wang submitted another
critical evaluation of Dr. Head giving him all 1's out of 5's.
Dr. Wang made false statements such as: ``Difficult to reach on
pager.'' ``No tangible research activity.'' ``Poor role
model.''
On or about May 5, 2008, Dr. Wang again submitted a
Teaching Evaluation--knowing it was to be submitted into Dr.
Head's Promotions Packet for tenure decisions--marking all 1's
(Unsatisfactory), stating ``poor clinical judgment, poor
availability, poor role model.'' (See Exhibit 3.) Dr. Wang
continued to provide negative false information and evaluations
about Dr. Head, despite orders to stop.
In or around July 2008, in a further attempt to harass and
retaliated against Dr. Head, he was wrongfully accused of ten
counts of time card fraud and lying to his supervisor.
In July 2008, Dr. Head was forced to file another EEO
complaint regarding the threatening and retaliatory treatment
against him by VA administrators and supervisors. (A true and
correct copy of this EEO complaint is attached hereto as
Exhibit 4.)
In or around August 2008, in order to further retaliate
against Dr. Head, his salary was reduced. At this time, in
order to undermine Dr. Head's teaching, a fee-based physician
was hired in the clinic to see Dr. Head's patients at an
increased cost to GLAHS.
In or around August 2008, Dr. Head was transferred to the
Quality Assurance program to minimize the retaliation by
management resulting from his 2004 EEO complaint.
On or about September 10, 2008, Dr. Michael Mahler (``Dr.
Mahler''), Chief of Organizational Improvement at GLAHS wrote a
detailed account of the harassment, discrimination, and
retaliation against Dr. Head. In this letter, Dr. Head was
exonerated of time card fraud. Furthermore, it was found that
``Dr. Stelzner and Dr. Wang improperly treated Dr. Head
differently than other members of the section.'' (See Exhibit
5.)
In early 2009, Dr. Head again consulted with Dr. Becerra
regarding Dr. Wang's unfair and improper evaluations of Dr.
Head and her treatment of Dr. Head in assignments and research
opportunities. Dr. Becerra responded, ``Oh my God, here we go
again. I am going to legal with this.'' Dr. Becerra replied,
``Come back to see me if you don't get tenure, otherwise you're
not damaged.''
In or around January 2009, in an attempt to further
sabotage Dr. Head's tenure and career advancement, Dr. Wang
again submitted false evaluations of Dr. Head.
On several occasions, regarding Dr. Wang's unfair treatment
and improper evaluations of Dr. Head's performance, Dr. Head
individually met with Dr. Gold, Dr. Rosenthal, Dr. Mechoso, and
Dr. Becerra, all of whom communicated a similar message that if
Dr. Head wanted tenure, he better not take any action against
Dr. Wang.
In or around January 2009, Dr. Head presented to Dr.
Richard H. Gold (``Dr. Gold''), Assistant Dean of Academic
Affairs, a report conducted at GLAHS showing findings that Dr.
Wang was biased against Dr. Head in her evaluations of his
performance, assignments, and research. When Dr. Head first
received this report, Dr. Head informed Dr. Berke that he had
this report and could prove that Dr. Wang was treating him
differently and unfairly in assignments and research
opportunities. Dr. Berke offered to pay Dr. Head for the report
saying, ``How much do you want for the report? You can't
release that report.'' Dr. Head replied he did not want money,
he wanted to be treated fairly and to receive the tenure he
deserved and had earned.
In or around October 2009, another GLAHS employee reported
being transferred to another department and refused promotion
for not submitting false reports against Dr. Head concerning
his attendance at GLAHS.
Also around this time, prior to Dr. Norman's vacation to
Fiji, Dr. Head and Dr. Norman met to discuss Dr. Head's fear of
more intense retaliation and loss of income at GLAHS. Dr.
Norman stated that Dr. Head would be protected with a
significant salary increase; however, that increase never
occurred, instead, Dr. Head endured further retaliation. On
information and belief, Dr. Norman later told a faculty member
on his trip to Fiji that ``he really liked Dr. Marilene Wang
and that they had a good relationship.''
In or around September through November 2010, Dr. Head
participated as a witness, and later in March through October
2011, and even through today, Dr. Head has testified on behalf
of Dr. Jasmine Bowers in a racial discrimination case against
GLAHS. Dr. Wang is on the peer-review panel at GLAHS and
considered a witness in the Bowers Case. Immediately after Dr.
Head participated in the Bowers Case, Dr. Berke, Dr. Wang, and
Dr. Norman escalated the retaliation and harassment against Dr.
Head.
In or around June 2011, in an effort to further discredit
Dr. Head, Dr. Wang began making accusations of wrongdoing
against Dr. Head. Dr. Wang stated to a group of surgeons that
Dr. Wang was sure Dr. Head would not last long and that he
would be investigated at GLAHS where Dr. Wang is Chief of Head
and Neck Surgery.
In or around September 2011, Dr. Norman confronted Dr.
Head, stating ``you're a bad doctor'' and wrongfully accusing
Dr. Head, claiming ``you're never here'' and asking Dr. Head
about his work hours. Dr. Norman threatened Dr. Head stating
``I'm very worried about you.''
In or around October 2011, James Itamura, EEO Investigator,
wrote a detailed account of the harassment, discrimination, and
retaliation occurring against Dr. Head at GLAHS, which was
provided to the Office of Special Counsel. (See Exhibit 6.)
On or about October 25, 2011, Dr. Head was on an emergency
call at UCLA when he contacted Vishad Nabili, M.D. (``Dr.
Nabili'') to cover for him on an elective surgery at GLAHS. A
few days later, Dr. Head learned that he was accused of not
showing up for a surgical procedure, which was reported to
Human Resources. Despite his promise to correct Dr. Head's time
cards to correctly reflect Dr. Head's work, Dr. Norman charged
Dr. Head with being Absent Without Leave (``AWOL'') and reduced
Dr. Head's pay approximately $7,000.
Around this time, Dr. Head was being told by co-workers
that Dr. Norman was trying to push Dr. Head out of GLAHS. In or
around November 2011, Dr. Joel Sercarz (``Dr. Sercarz''),
fellow Head and Neck Surgeon at UCLA, informed Dr. Head that
Dr. Wang told Dr. Sercarz that GLAHS was planning to ``get [Dr.
Head] on time card fraud.'' Dr. Head reported these allegations
to Dr. Norman and others. In retaliation, Dr. Norman tried to
restrict Dr. Head's tour of duty.
On or about November 20, 2011 Dr. Norman ordered his
assistant to mark Dr. Head AWOL for 90% of the pay period. This
action resulted in severe financial distress for Dr. Head,
causing his house to go into foreclosure. Despite Dr. Head
providing evidence showing he in fact did work his tour of
duty, Dr. Norman did not turn in Dr. Head's time cards for
several weeks. It was not until after Congresswoman Karen Bass
and others inquired into Dr. Head's pay, that Dr. Head finally
received a check.
On November 23, 2011, Dr. Head filed a formal EEO
complaint.
On or about April 17, 2012, Dr. Head filed a lawsuit
against the Regents of the University of California and certain
individuals. The case, Christian Head, M.D. v. Regents of the
University of California, et al., Case No. BC 482981, was filed
in Los Angeles Superior Court. In or around July 2013, the case
was settled and ``The matter has been resolved to everyone's
satisfaction.''
On or about July 18, 2013, UCLA release a statement which
read:
The Regents of the University of California and Dr.
Christian Head today reached a settlement in a civil case he
brought against the University last year. The case presented
difficult issues of alleged discrimination and retaliation that
were strongly contested.
The University acknowledges that in June 2006 during an
end-of-year event, an inappropriate slide was shown. The
University regrets that this occurred. The University does not
admit liability, and the parties have decided that the case
should be resolved with a mutual release of all legal claims.
The matter was settled to the mutual satisfaction of the
parties. A true and correct copy of this press release is
attached hereto as Exhibit 7.)
Unfortunately, the retaliation against Dr. Head did not
stop with Dr. Head himself, but spread to anyone that even
attempted to support Dr. Head or provide truthful testimony on
Dr. Head's behalf. In or around June/July 2012, Dr. Jeff Suh
(``Dr. Suh''), fellow Head and Neck Surgeon at UCLA, told a
representative of a sinus surgery supply company not to assist
Dr. Head with necessary surgical supplies or with his lawsuit
or the representative would lose all business at UCLA. Around
this same time, Dr. Suh also threatened Dr. Sercarz not to
assist Dr. Head with his lawsuit or his complex surgical cases
or he would not receive help or referred cases. Dr. Suh claimed
he was speaking on behalf of Dr. Wang in regards to these
threats. Because of this retaliation, Dr. Sercarz was forced to
bring his own civil action to protect his name and reputation.
(A true and correct copy of this civil complaint is attached
hereto as Exhibit 8.)
On or about August 2, 2012, in further harassment and
retaliation against Dr. Head, Dr. Wang refused to treat one of
Dr. Head's patients, leaving the patient in the emergency room
for days, using the patient's care and safety as a weapon
against Dr. Head, creating a hostile environment and
jeopardizing patient safety.
Dr. Head was one of the first to draw attention to the
delay in care and the backlog of patients within the VA system.
On November 16, 2012, Dr. Head sent Dr. Norman an email
discussing the issue of delayed patient care at the VA.
Specifically, Dr. Head informed Dr. Norman that the delayed
diagnosis of cancer was a major issue facing the VA. (A true
and correct copy of this email and accompanying attachments is
attached hereto as Exhibit 9.)
In or around May 2014, Dr. Head learned that VA
administrators had improperly taken approximately 60-100 days
of sick leave time and approximately 80-90 days of vacation
time from Dr. Head in retaliation for Dr. Head's protected
whistleblower activity, specifically, Dr. Head's truthful
testimony regarding Dr. Wang's illegal time card fraud,
testimony in support of Dr. Bowers's racial discrimination
case, and reports of delayed care and backlog of veterans
within the VA system. Less than two months ago, administrators
within GLAHS retroactively took these accrued time-off days,
falsely claiming that Dr. Head had previously failed to enter
his time.
Retaliation against other whistleblowers, because of Dr. Head's
leadership position within glahs and his willingness to stand
up against wrongdoers within the system, dr. head has become
aware of many other VA employees who are enduring their own
retaliation.
Incident 1:
One instance involved a 53-year-old African American woman,
Dr. Jasmine Bowers (``Dr. Bowers''), who is a board-certified
anesthesiologist and has practiced in anesthesia and pain
management for over 24 years.
In May 2010, Dr. Bowers was offered a per-diem, fee-basis
position, which was an hourly position with capped weekly
hours, and no benefits. Because of the dire need for
anesthesiologists at the VA, Dr. Michelle Braunfeld (``Dr.
Braunfeld''), chief of anesthesiology, assured Dr. Bowers that
the appointment would likely last longer than a year. When Dr.
Bowers inquired about full-time positions, Dr. Braunfeld stated
that the only available position was for an acute pain
specialist. Having her fellowship in pain management, and more
than twenty years of experience in the field, Dr. Bowers
expressed interest in the position. Dr. Braunfeld was
dismissive, and stated Dr. Bowers would likely have to have
board certification in pain management to be hired for the
position. Unbeknownst to Dr. Bowers, Dr. Braunfeld had
advertised for a ``general anesthesiologist'' position in May
2010. In addition, at or around the same time Dr. Bowers was
hired (in June 2010), Dr. Braunfeld offered a full-time, FTE
anesthesiologist position to Dr. Corey Downs (``Dr. Downs''),
who began working at the VA in approximately July 2010. Dr.
Downs was fresh out of his residency at UCLA, and was not board
certified in anesthesia. Dr. Bowers began her fee-basis
appointment on or about July 6, 2010, but continued to make
inquiries regarding a full-time FTE position. At one point in
her employment, Dr. Bowers overheard Dr. Braunfeld stating to
someone else, ``We can't hire certain people for full time jobs
because it's too hard to get rid of them.''
After beginning her fee-basis position, Dr. Bowers began to
experience demeaning and disrespectful conduct from the
certified nurse anesthetists (``CRNAs'') at the VA. The
harassment began with relatively minor incidents, including
several CRNAs referring to her by her first name, and one
particular CRNA, Krista Douglas (``Douglas'') making a rude
comment in the CRNA lounge. Douglas and other CRNAs reprimanded
Dr. Bowers in front of others, including patients, and were
consistently treating her with disdain and disrespect. In over
24 years of practice working with nurses and CRNAs without such
issues, Dr. Bowers decided to speak to the lead CRNA, Dana
Grogan (``Grogan'') and Dr. Braunfeld about her concerns. After
she complained, the harassment escalated. Douglas refrained
from speaking to her altogether, and refused to relieve her
during surgeries, in spite of her duty to do so. On one
occasion, Dr. Bowers had a conversation with a man working at
an administrative desk in the surgery department, Terry Woods
(``Woods''), and mentioned her issues with Douglas. Woods told
her that Douglas had treated another African American
anesthesiologist in a similar manner, and told Dr. Bowers to
``watch her back.''
Following a surgery on September 14, 2010 in which Dr.
Bowers administered anesthesia, Grogan went to Dr. Braunfeld
with printouts from the blood pressure monitor (``strips'')
from the surgery, and the intra-operative anesthesia one-page
report, but not the patient's chart. Grogan claimed that she
went to Dr. Braunfeld to report her concerns about the
patient's low blood pressure and what she found to be
discrepancies between the handwritten chart and the blood
pressure monitor strips. Dr. Braunfeld then went to Dr.
Stelzner with her concerns, and then went to the Chief of
Staff, Dr. Norman. Dr. Braunfeld later stated that she
discussed her concerns with Dr. Norman and that they agreed to
remove Dr. Bowers from the September schedule, and investigate
the matter. Dr. Norman told Dr. Braunfeld to obtain a written
response from Dr. Bowers. At the end of that day, and after Dr.
Bowers was allowed to administer anesthesia all day, Dr.
Braunfeld brought Dr. Bowers into her office and accused her of
falsifying medical records and allowing a patient to remain
hypotensive for 45 minutes during the surgery, essentially
endangering the patient. Dr. Braunfeld told her she would not
be allowed to return to work, pending an investigation, and did
not ask Dr. Bowers to provide any written response. Dr. Bowers
asked to be allowed to provide a written response, which she
did on September 20, 2010. In her response, Dr. Bowers
requested an independent, administrative review of the case,
and expressed that she was shocked and upset at being accused
of misconduct, especially in light of the fact that the surgery
had no complications and was successful.
The VA obtained a report from Dr. Nitin Shah (``Dr. Shah'')
who is an expert, author, professor, and anesthesiologist at
the Long Beach VA. On November 2, 2010, Dr. Shah spoke with Dr.
Mahler, deputy Chief of Staff and head of Risk Management about
his findings. Dr. Shah stated that while there were some
discrepancies between the hand-written chart and the monitor
strips, he did not believe there was any misconduct in
charting. He also found no negligence, nor patient
endangerment, by Dr. Bowers, in light of the patient's history
of low blood pressure, and successful outcome of the surgery
with no complications. Dr. Shah expressed that he was troubled
by Grogan's failure to mention her purported ``concerns''
during the surgery to her supervising anesthesiologist or to
the surgeon. Although instructed by the VA not to comment on
the standard of care, Dr. Shah submitted a report on November
4, 2010, with his findings. He stated that out of 16 blood
pressure chart entries, 7 attributed to Dr. Bowers were
inconsistent with the monitor readings. He stated that this may
be the result of ``sloppiness,'' but not misconduct. He also
stated that discrepancies in charting do occasionally happen
when the anesthesiologist is managing other aspects of the
patient's care. He reiterated his determination that there was
no patient endangerment in the management of the patient's
blood pressure by Dr. Bowers during the surgery.
Dr. Head, in his role as head of Quality Assurance,
reviewed the patient's charts and records. He spoke with the
surgeon, the resident who participated in the surgery, the
supervising anesthesiologist, and the CRNA and Dr. Raj who
started the case. After determining there was no issue with the
patient's low blood pressure, he told Dr. Norman and Dr. Mahler
that he was troubled with the manner in which Dr. Bowers was
being treated. Dr. Head also heard other medical staff
discussing the case, and people stating that Dr. Bowers had
``almost killed a patient.'' This was determined to have
started with Grogan, and Dr. Head heard the same comment from
Sandra Riley-Graves, an administrative assistant in Dr.
Norman's office. Shortly after discussing his findings with Dr.
Norman, Dr. Head overheard Riley-Graves state, ``It's a black
thing'' to Dr. Mahler, implying that Dr. Head was supporting
Dr. Bowers because he was also African American. After he heard
Dr. Mahler yelling at Riley-Graves behind the closed office
door, Dr. Mahler came out of the office and told Dr. Head to
``stand down'' on the investigation and leave it alone.
Dr. Braunfeld never contacted Dr. Bowers again, and never
provided Dr. Shah's report to Dr. Bowers. In spite of Dr.
Shah's favorable review, that there was no negligence,
misconduct, or patient endangerment, Dr. Bowers was never
reinstated or placed back on the schedule.
Shortly after Dr. Bowers initiated the EEO process,
Congresswoman Diane Watson wrote to Donna Beiter (``Beiter''),
Director and CEO of the VA, with her concerns and questions
about ongoing discrimination at the VA. The VA's response to
Congresswoman Watson contains inconsistencies. For example,
Beiter stated that Dr. Bowers never provided a response to the
allegations, which was false.
Dr. Bowers initially contacted the EEO office on September
30, 2010. The EEO Office issued a Notice of Acceptance. After
conducting its investigation, the EEO's assigned investigator,
James Itamura, concluded that a culture of racial and age
discrimination exists in the anesthesiology department at the
VA, wherefrom Dr. Bowers and other older and non-white
anesthesiologists were removed in order to make room for
younger replacements from UCLA.
Incident 2:
Dr. Saroja Rajashekara (commonly referred to as ``Dr.
Raj'') was a cardiac anesthesiologist at the VA from 2002 to
2011. Dr. Raj reported to the EEO Investigator she observed and
experienced age discrimination at the VA. While she was
initially hired by then-Chief of Anesthesia, Richard Chen, Dr.
Raj worked under Dr. Braunfeld after she became Chief of
Anesthesia in January 2010. After her mother became ill in
early 2010, Dr. Raj took leave (which was approved) to visit
her mother in India. While she initially expected to return in
early May, she sent correspondence to Dr. Braunfeld stating
that she needed to extend her leave. Dr. Braunfeld contacted
the HR Department at the VA asking how to deem Dr. Raj AWOL. In
Dr. Braunfeld's correspondence with HR, she lied about her
prior contact and correspondence with Dr. Raj. As a result, Dr.
Raj was considered ``AWOL'' and was removed from the cardiac
schedule. She ultimately provided evidence of her contact with
Dr. Braunfeld, and the AWOL status was removed from her
personnel file; however, Dr. Braunfeld did not reinstate her on
the cardiac schedule. Instead, Dr. Braunfeld had her replaced
with younger UCLA graduates, who were far less qualified, with
the knowledge and approval of Chief of Staff, Dr. Norman.
Dr. Raj reported to the EEO Investigator her concerns
regarding Dr. Bowers's treatment by the VA. (See Exhibit 10.)
She was aware that there was a need for anesthesiologists at
the time of Dr. Bowers's hire at the VA, but Dr. Braunfeld was
``holding'' jobs for younger, less-qualified residents from
UCLA. Dr. Raj also remarked about the unusual manner in which
Dr. Bowers was immediately removed from the schedule following
the September 14, 2010 surgery. Specifically, she stated it was
not the typical protocol for a case such as Dr. Bowers's to
bypass the Quality Assurance process, and that Dr. Bowers was
``fired'' in spite of the patient having no complications.
Incident 3:
Dr. Carol Bennett, an African American woman, has worked at
the VA for over 15 years and is currently the Chief of Urology.
Dr. Bennett filed an EEO complaint against Dr. Stelzner and Dr.
Norman in 2005 based on race discrimination. Dr. Bennett was
discovered to have been allowing her nurse to use her CPRS code
to sign off on prescriptions on the electronic chart, albeit
with her full knowledge and consent. On August 24, 2005, she
received a letter from Dr. Stelzner advising her that she was
placed on administrative leave. Dr. Bennett was immediately
taken off duty without an investigation. She admitted to Dr.
Stelzner her mistake, but that it was common practice among
surgeons in order to move on to the next patient. All of the
entries were with the surgeons' knowledge, and they would
review and sign the chart later. In her EEO complaint, Dr.
Bennett addressed the fact that another non-African American
physician was found to have a similar infraction, but was only
given warnings. She also complained that she was being ``super-
audited'' by Dr. Stelzner, as compared to other non-African
American medical staff in the Department of Surgery. After
mediation, Dr. Bennett was fully reinstated as Chief of
Urology.
Incident 4:
In another instance, an employee working as an EEO
Counselor in the Office of Resolution Management was retaliated
and terminated for making a protected whistleblower complaint.
This employee, considered to be one of the top EEO counselors
in the nation, filed a report to internal investigators
regarding missing EEO files which contained private personnel
information of specific VA employees. Because this employee's
report reflected negatively on his supervisor, Ms. Tracy Strub,
Ms. Strub retaliated against the employee, initiating an
unjustified Performance Improvement Plan.
In or around July 2013, shortly after Dr. Head settled his
lawsuit with UCLA, VA administrators questioned this employee
about whether or not this employee had helped Dr. Head with his
lawsuit. This employee denied that he had helped Dr. Head, but
because of this employees close relationship with Dr. Head, VA
administrators did not believe him. Within hours of this
meeting, the employee was terminated.
Incident 5:
In another instance, Dr. Wang discriminated against a Nurse
Practitioner working in the Head and Neck Department at the VA
based on her national origin and Muslim faith. After seeing
this employee working with Dr. Head, Dr. Wang also told this
employee not to work with Dr. Head or provide him any
assistance with patient care. Because of Dr. Wang's
discriminatory animus towards this employee, as well as
continued retaliation against Dr. Head, Dr. Wang had the
employee terminated the day before her probationary period
ended.
Incident 6:
In a recent incident, an OR tech complained to VA
management about dangerous conditions in the operating rooms,
specifically, surgeons using dirty instruments while operating
on patients. Following this report, this employee was given
both verbal and written reprimands. Recently, the employee was
suspended for 14 days for making these complaints.
Climate of fear and retaliation within the GLAHS: As outlined
above in detail, administration within GLAHS has created a
climate of fear and intimidation, where the system not only
fails to protect whistleblowers, but actively seeks to
retaliate against them. This retaliation by VA supervisors and
administrators often takes shape through a similar process.
Whistleblowers are first threatened and isolated, often
being warned early that speaking out would not be beneficial to
their career. Whistleblowers are made aware, in no uncertain
terms, that if you tell the truth, you will be punished.
If the whistleblower chooses to speak out despite the
threats, they are quickly defamed and humiliated. Supervisors
and administrators will begin spreading false information about
the whistleblower, suggesting to co-workers that the person is
incompetent, lazy, and untrustworthy.
Finally, supervisors place the whistleblower under intense
scrutiny, looking for any reason to find fault in the person's
work. Whistleblowers, who otherwise have had long, outstanding
careers within the federal system, all of a sudden are subpar
workers who begin receiving failing evaluations, verbal and
written reprimands, salary cuts, transfers, demotions, and
sometimes even being forced to retire, or worse, terminated.
Even those in high administration within GLAHS that attempt to
do the right thing are not safe. For example, Dr. Mahler,
former deputy Chief of Staff and head of Risk Management, who
provided a written statement in support of Dr. Head, was
eventually forced out.
Administrators and supervisors with GLAHS have created a
toxic environment with a clear message, if you do not follow
the agenda and behave as a ``team player,'' you will suffer the
consequences.
Lack of accountability: The current system within the VA is one
of a general lack of accountability of administrators and
supervisors who actively retaliate against and ostracize
hospital employees who attempt to speak out against illegal
behavior. This climate only perpetuates this illegal behavior,
due in large part to the system's failure to take any action
against certain individuals. Specifically, wrongdoers are left
in positions of high leadership to continue their illegal
behavior without recourse. In some circumstances, wrongdoers
may even be promoted rather than disciplined.
For example, the investigation regarding Dr. Wang led to a
finding that Dr. Wang had committed time card fraud during a
certain period of time in her leadership position at GLAHS.
However, rather than being disciplined, Dr. Wang was instead
promoted. Even worse, Dr. Head then was retaliated for
providing truthful testimony in Dr. Wang's time card fraud
investigation.
Leaders within GLAHS, such as Ms. Beiter and Dr. Norman,
not only have played an active role in retaliating against
whistleblowers, but in other cases have chosen to ignore
certain occasions of retaliation by GLAHS supervisors. Ms.
Beiter and Dr. Norman have had many opportunities to take
action against wrongdoers, but have chosen instead to look the
other way.
Low morale amongst healthcare providers: Unfortunately, the
current climate of fear and retaliation, coupled with the
system's failure to properly respond and hold wrongdoers
accountable, has caused morale to be dangerously low, leaving
employees within GLAHS with a sense of helplessness, creating
undue stress and anxiety amongst those attempting to provide
quality healthcare to our Country's veterans.
Dr. Head has witnessed a general sense of fear amongst VA
employees. Workers within GLAHS have stated that they are
scared to speak out for fear of being blamed and punished. Good
people who are used to doing the right thing and standing up
for others want to speak out about issues throughout the
system, but fail to do so for fear of jeopardizing their
careers.
Negative affect on patient care: The issue facing the VA system
involves a growing epidemic in hospitals throughout our
Country--hospital bullying. This issue spans race, gender,
religion, and politics because of the life and death danger it
poses to patients. This problem, while certainly applicable to
the VA system, is an issue that plagues every hospital
nationwide and must eventually be addressed by Congress.
In her MSNBC article, Hospital Bullies Take a Toll on
Patient Safety, JoNel Aleccia outlines how hospital bullying
``threatens patient safety and has become so ingrained in
health care that it's rarely talked about.'' (Exhibit 11.)
Additionally, in Dr. Kevin Pho's article for FoxNews entitled
Bullies in Hospitals?, he concluded that ``targeting the toxic
culture that perpetuates the problem [of hospital bullying]
requires everyone to share responsibility. Not just doctors,
but nurses, hospital administration, and medical educators as
well. Only when every stakeholder is part of the solution do we
stand a better chance of eliminating bullying behavior in
hospitals altogether.'' (Exhibit 12.) Dr. Pho's article was a
response to a highly-touted New York Times article by Theresa
Brown entitled Physician, Heel Thyself, in which she detailed
bullying behavior she experienced as a nurse and explained how
hospital bullying poses a critical problem for patient safety
which, not surprisingly, leads to a rise in medical errors.
(Exhibit 13.)
Of course, all of these articles came after The Joint
Commission published Sentinel Event Alert, Issue 40, on July 9,
2008 which described how:
Intimidating and disruptive behaviors can foster medical
errors, . . . contribute to poor patient satisfaction and to
preventable adverse outcomes, . . . increase the cost of care,
. . . and cause qualified clinicians, administrators and
managers to seek new positions in more professional
environments. . . . Safety and quality of patient care is
dependent on teamwork, communication, and a collaborative work
environment. To assure quality and to promote a culture of
safety, health care organizations must address the problem of
behaviors that threaten the performance of the health care
team. (Exhibit 14.)
Unfortunately, health care organizations have not addressed
the problem, and doctors, nurses, and hospital administrators
are left to bully and belittle others; and sadly, anyone who
dares speak out about this behavior threatens not only their
job, but their entire career in the healthcare profession.
Possible solutions: While this testimony has focused on current
problems within the VA system, all hope is not lost. The
mission of the VA system is good and noble and should be
maintained. The VA system has some of the best healthcare
providers in the world; however, certain changes must be
considered. There are a number of possible solutions that can
be implemented to affect change and improve the system.
The first, and obvious, solution is one of leadership.
Administrators and supervisors within the VA system that are
contributing to the current culture must be held accountable.
New leadership must be established--leaders who will encourage
and welcome open discussion and dialogue, leaders who will root
out divisive and intimidating behavior, and leaders who will
create a safe and enjoyable atmosphere that focuses on top-
quality patient care for our veterans.
Another important improvement to the system would involve a
change in the appointment scheduling of veterans. Rather than
the current process of adding patients to a long list based on
when the person calls for an appointment, patients need to be
assigned appointments based on conditions. There is a Standard
Operating Procedure (``SOP'') in place that could be updated
and implemented which would greatly improve patient scheduling.
Based on SOP flowcharts, schedulers would be able to schedule
more critically ill patients sooner, ensuring every veteran
receives the proper healthcare he/she deserves.
Additionally, there needs to be some type of computer
accountability process implemented. Currently, the computer
records can be too easily manipulated to hide scheduling and
patient backlog issues. Hospital administrators should not be
able to clear patient information unchecked. Perhaps some type
of centralized data collection can be created to ensure
individual hospitals are not fraudulently changing records.
Finally, the current proposal of simply assigning more
patients to already overwhelmed physicians is not the answer.
The system desperately needs to add additional primary care
physicians. Then, veterans should be matched up to one specific
primary care physician. This would allow the physician to
establish a relationship with the patient and would create a
vested interest with that physician who would then be more
inclined to ensure his/her patient received proper medical
care. That way, if the physician's patient is not receiving the
needed care, that primary care physician would do what private
practice physicians do and call his/her colleagues and follow
up. For example, Dr. Head's wife, who is an interventional
radiologist within the VA system, is deeply vesting in each of
her patient's healthcare and does what is needed to ensure her
patients are receiving the proper health services.
Dr. Head provides this testimony with the hopes of finding
solutions to address employee mistreatment and improve the
quality of healthcare provided to our Country's veterans. As a
long time employee within the VA healthcare system, Dr. Head is
optimistic that appropriate changes can be implemented, and he
looks forward to being an integral part of that change and the
bright future that is ahead.
Dated: October 31, 2014
CHRISTIAN HEAD, M.D.
For additional information, you may contact Dr. Christian
Head through his attorneys:
Lawrance A. Bohm, Esq., Bradley J. Mancuso, Esq. OR BOHM
LAW GROUP, 14600 Northgate Blvd., Suite 210, Sacramento, CA
95834, Phone (916) 927-5574 and Fax (916) 927-2046
Prepared Statement of Dr. Mitchell
Dedication
This written testimony is respectfully submitted in memory
of my uncles:
Capt. Jay Anderson Mitchell, a good-natured, red-haired,
blue-eyed, freckle-faced young Marine, husband, and father who
lost his life & crew in 1967 when his helicopter shook apart
over the South China Sea because the U.S. government failed to
timely investigate the safety deficiencies of that aircraft
type, and Phillip V. Mitchell, a former Institute of Defense
Analyses employee and Army Veteran who moved heaven & earth
within the Pentagon to ground and repair the remaining faulty
helicopters in the days that followed Uncle Jay's death so
other young Marines would have a chance of returning home alive
to their families.
CONTENT SUMMARY
I. Introduction & Background
II. Executive Summary
III. Phoenix VA Administrative Retaliation: Personal
Experiences and Clinical Implications
IV. VA Horizontal Violence: Specific Retaliation Tactics
Against Title 38 Health Care Providers (Physicians, Surgeons,
Dentists)
1. Overview Summary
A. Types of Retaliation
B. Clinical Implications (in numerical order based on
retaliation type)
C. Professional Implications (aggregate)
D. Outcomes (aggregate)
2. Detailed Explanation of Retaliation Tactics Against
Title 38 Employees
V. VA Horizontal Violence: General Retaliation Tactics Against
All Employees
1. Overview Summary
A. Types of Retaliation
B. Clinical Implications (in numerical order based on
retaliation type)
C. Staff Implications (aggregate)
D. Outcomes (aggregate)
2. Detailed Explanation of Retaliation Tactics Against All
VA Employees
SECTION I: Introduction & Background
My name is Dr. Katherine Mitchell. I am an internist who is
fellowship trained in geriatrics. My various positions caring
for the Phoenix VA Veteran population have given me a great
sense of personal pride during my 5 years as a registered nurse
on the hospital wards, my 9.5 years as a physician within the
Emergency Department, and my 1.5 years as medical director of
the Post Deployment Clinic.
I greatly admire my fellow VA employees, past and present,
who have spent years trying to meet the VA mission despite
facility politics, low pay, lack of resources, and the barrage
of negative publicity that often overshadows the vast amounts
of amazing care we have provided to countless Veterans through
millions of high quality patient encounters.
Like other Phoenix VA employees, I have diligently worked
within the system to identify and resolve numerous care issues
and system deficiencies slowing the provision of care to
Veterans. I have rewritten policies, served on committees,
developed action plans, participated in Lean Teams, and
composed endless emails in the pursuit of better care. Along
with a huge number of other VA personnel, I have spent untold
hours each pay period trying to meet work responsibilities
which cannot be humanly completed within the space of the
designated 40 hour workweek.
It is a great honor and pleasure to work with the many
experienced VA employees who, though they could find private
sector jobs with better working conditions, remain dedicated to
providing and enhancing the quality of Veteran health care.
Their combined expertise is vital to advancing the future of
the Department of Veterans Affairs.
It is imperative for us to join together and address the
long-standing series of crises within our VA that are currently
threatening the viability of our institution and undermining
its ability to meet and exceed our obligations to the nation's
current and future Veterans.
SECTION II: Executive Summary
In the last 75 years, the VA institutional culture has
descended into a breeding ground for horizontal violence within
the workplace. While overt acts of physical aggression are
extreme examples, VA horizontal workplace violence includes,
but is not limited to, open ridicule, shouting, failure to
promote for merit, inappropriate down-grading of proficiencies,
unfair distribution of workload, political back-biting, and
formation of, as well as exclusion from, influential workplace
cliques.
Such horizontal violence has propagated in response to high
stress levels, unequal distribution of power, disparate
advancement opportunities, and unreasonable performance
expectations. The destructive phenomenon of this internal
violence has greatly eroded the quality of patient care
throughout the VA system to the point that the VA has been
unable to fulfill its mission to ``care for him who has borne
the battle . . . '' for hundreds of thousands of Veterans.
In unscrupulous VA health care administrators' hands,
horizontal violence has been wielded as a specific tool to
advance the administrators' personal and financial goals to the
detriment of quality Veteran care and system efficiency. By
directly propagating horizontal violence or by ignoring the
presence of it among employee ranks, VA administration has
betrayed the VA core values of integrity, commitment, advocacy,
respect, and excellence.
As a 16 year Phoenix VA employee who has routinely
advocated for patient care improvements, I have been the
recipient of horizontal violence at my facility for years. I
have personally witnessed the devastating consequences such
horizontal violence has wreaked on the quality of patient care
within the Emergency Department.
The purpose of this written testimony is to clearly
describe the details of those experiences and provide a
description of administrators' tactics of retaliation against
others within the Phoenix VA Medical Center and elsewhere at
sister facilities.
Although improvements in overall care have propelled the
Phoenix VA to a level of care significantly greater than what I
observed in 1989 when I first jointed the facility, regretfully
there has been no significant change in the dysfunctional
institutional culture of the Phoenix VA Medical Center.
Employees today still risk backlash for bringing up patient
care problems, identifying misuse of facility resources, and
questioning the presence of prohibited personnel practices.
Quite simply, a problem isn't allowed to exist within the
Phoenix VA care system unless senior administrators officially
allow it to be recognized. No matter how critical the issue is
to patient care or safety, senior officials will deliberately
avoid the problem by covering up any evidence of deficiency.
This routinely is accomplished by ignoring legitimate requests
for resources, manipulating statistics, hiding objective
reports critical of the local VA's operations, and providing
misleading information to outside official inquiries. Most
pointedly, certain employees systematically intimidate any
fellow employee who dares advocate for Veterans in a manner
inconsistent with the Phoenix VA administration's party line.
Ethics have never been made an official VA performance
measure, and thus do not appear to be a clear administrative
goal. There seems to be no perceived financial advantage to
pursuing ethical conduct. Administrative repercussions are
lacking for unethical behaviors that are so routinely practiced
among senior executive service employees. Unfortunately,
Phoenix administration has had a financial incentive to
artificially maintain a positive public image using retaliation
tactics even if such a facade comes at the expense of quality
patient care provision and the inability to attract and/or
retain quality employees.
The most serious retaliation against me occurred during my
last 3 years as the sole ER medical co-director. During that
time, our ER remained greatly understaffed in terms of nurses,
physicians, and ancillary employees. New graduate nurses were
filling in for seasoned triage nurses. There were insufficient
personnel to wash beds, answer phones, transport patients or
labs, and perform other tasks. The ER physicians and nursing
staff continually were pulled away from direct patient care to
absorb those extra duties in order to keep the ER flowing.
As the number of patient ER visits greatly increased
beginning in 2010, deficiencies in our ability to meet high
standards of health care became readily apparent. In our tiny
8-room ER, even the most experienced triage nurses could not
have kept up with the dangerous flood of patients diluting
triage time. The number of actual or potential misses in
nursing triage sky-rocketed. Internal head bleeding, strokes,
heart attacks, pneumonias, and dehydration were examples of
cases missed by either inexperienced triage nurses or seasoned
nurses overwhelmed by the glut of patients engulfing the ER.
Without targeting any nurse, I began reporting actual or
potential misses to the nursing chain of command. As backlash
from a few nurses became evident, I had to ask all physicians
to give me their cases to report. I knew I had to be the only
backlash target. Any large scale adversarial relationship
between physicians and nurses would grind patient care to a
halt during a time when we were already gasping from
insufficient resources.
After reporting hundreds of cases, eventually about 20% of
the ER nurses actively began to impede care of my own ER
patients. Those nurses stopped initiating protocol orders for
me, providing me with verbal patient reports, handing me EKGs,
and answering basic questions I asked.
Although my immediate supervisor provided support to the
degree the VA culture allowed, senior executives chose not to
intervene to stop or investigate the horizontal violence
against me. I was accused of poor communication skills. I was
banned from submitting cases to the risk manager. I worked 2
years of unlimited scheduled shifts without compensation in
order to keep my position as medical co-director and provide
even bare bones physician staffing. My yearly proficiencies
dropped. I was subjected to verbal abuse from senior
executives. Human Resources failed to expedite requests for
physician hiring. Eventually I would be involuntarily
transferred to a medical director position in a defunct medical
clinic without receiving a valid reason for such a transfer.
Staffing was increased after I was removed from the ER.
Additional resources were provided including additional patient
rooms. Triage was expanded. However, the intense, recurring
nurse triage training for which I advocated would never be
instituted.
With few avenues for change left open to me, in 2013 I
submitted a 30+ page confidential OIG report through my
senator's office outlining a variety of patient safety concerns
& facility deficiencies. I was subsequently placed on
administrative leave for a month, investigated for improper
conduct, and eventually received a written counseling for
violating a patient privacy policy which the Phoenix HR
department still declines to name.
I remain very concerned for the future of our Veterans and
the Phoenix VAMC.
The Veterans who present in Arizona for VA care have
survived campaigns like D-Day, Iwo Jima, Heartbreak Ridge, Pork
Chop Hill, Chosin Reservoir, Inchon Landing, multiple Tet
Offensives and Counter-Offensives, Desert Storm, Kosovo,
Croatia, Ethiopia, the Battle of Fallujah, and dismal years in
Helmand Province. It is a bitter irony that our VA cannot
guarantee their high quality health care and safety inside our
medical facility in the middle of cosmopolitan Phoenix. This
tragedy is no doubt mirrored in other VA facilities across the
country.
This country's founding fathers organized government into 3
branches so that no one department would possess the majority
of power. Eventually cabinets and departments would be created
to help fulfill the obligations of the federal government to
its citizens. President Lincoln conceived the VA mission
eloquently as ``to care for him who have born the battle and
his widow and his orphan''. Sometime in the last 75 years, the
Department of the VA has evolved into a powerful, narcissistic,
unethical bureaucracy which at times openly defies the laws of
the land including federal employment law, flouts congressional
authority by ignoring requests for information, and jeopardizes
the health of Veterans by statistical indiscretions.
There must be swift congressional bipartisan effort to
address the gross misconduct within the VA. Congress must
ensure those unscrupulous administrators who ignored ethical
standards and sacrificed patient well-being for financial gain
or personal prestige face consequences for unethical and/or
illegal behaviors. In addition, steps must be taken to protect
those employees truly devoted to patient care who found
themselves in the untenable position of following orders or
risk losing their livelihoods and their ability to provide any
services to Veterans within the system.
With proper reforms, the horizontal violence within the VA
can be stopped. VA employees will then be free to voice
concerns without fear of retaliation. It is only with the
combined efforts and voices of our current dedicated VA
employees that the Department of Veterans Affairs will be able
to evolve from a bureaucratic institution today into a dynamic
health care model for tomorrow.
Most importantly, in this process, the ability to
positively influence patient care and safety should not be
misconstrued as being a specific Democratic or Republican
platform, a pro-union or anti-union choice, or even a uniquely
American problem. The ability to freely advocate for the health
and safety of any patient is a human issue with ethical
implications for all societies
SECTION III Phoenix VA Administrative Retaliation: Personal
Experiences and Clinical Implications
Note: Because whistle-blowing retaliation in my facility is
currently being investigated, I cannot include of the names of
the employees or the specific documents to which I refer. These
omissions are necessary to maintain the integrity of the
whistle-blower investigation and also prevent potential
retaliation against my co-workers.
In the last 75 years, the VA institutional culture has
descended into a breeding ground for horizontal violence within
the workplace. While overt acts of physical aggression are
extreme examples, VA horizontal workplace violence includes,
but is not limited to, open ridicule, failure to promote for
merit, inappropriate down-grading of proficiencies, unfair
distribution of workload, dangerous work hour requirements,
political back-biting, and formation of, as well as exclusion
from, influential workplace cliques. Such horizontal violence
has propagated in response to high stress levels, unequal
distribution of power, disparate advancement opportunities, and
unreasonable performance expectations.
In unscrupulous VA health care administrators' hands,
horizontal violence has been wielded as a specific tool to
advance the administrators' personal and financial goals to the
detriment of quality Veteran care and VA efficiency. Horizontal
violence is commonly used by many supervisors to ensure
compliance with their personal agendas which are disconnected
from the mission and stated values of the Department of
Veterans Affairs. Administrators' retaliatory tactics
essentially debase employees and suppress any identification of
system deficiencies that would make the administration look
unfavorable if the deficiency was openly identified.
As a 16 year Phoenix VA employee, I have seen what happens
to personnel who advocate for patient safety and welfare in a
manner that challenges the administrative status quo. The
devastation of the individual's career is usually the end
result and likely is the only transparent process that exists
within the Phoenix VA Medical Center today.
During the last 3 years that I served as the sole medical
co-director of the Phoenix VA Emergency Department, I routinely
suffered negative workplace consequences for persistently
reporting issues related to drastically inadequate staffing,
lack of sufficient training, and lack of ancillary resources.
After I was involuntarily transferred to the Post-Deployment
medical director position in December 2012, the
administration's retaliation tactics against me persisted into
2014.
Because I am a practicing physician, such retaliation
greatly impeded my ability to provide high quality care for
patients presenting to the ER and crippled my ability to serve
as an advocate for patient health and safety throughout the VA
system. The following details some instances of administrative
retaliation toward me during the timeframe from 2009-2014 and
the consequences to patient care.
1. Phoenix VA ER background.
I was a Phoenix VA emergency department staff physician
from 2003 to approximately 2006 and then promoted to medical
co-director of the ER from 2006-2009. After administration
failed to fill the co-director position when my fellow co-
director resigned to attend fellowship training, I remained as
the sole co-director from 2009-12-10-12. Because the co-
director position was never filled, I was referred to as the ER
medical director by default even though the position was
technically designated for two medical co-directors.
2. Despite spending 3 years repeatedly alerting senior
administration to the dangerous clinical situations in the
Phoenix VA Emergency Department, my concerns were ignored
repeatedly by Phoenix senior administration.
Since 2009, I had been very vocal about the escalating
danger to patient care in the ER because of physician
shortages, nurse short-staffing, and lack of formal training
for triage nurses. As a matter of habit, I notified the nursing
chain of command with concerns as well as communicated the
issues to staff in the physician chain of command.
When reporting morbidity (illness) and mortality (death)
related to lack of quality triage, I never targeted a specific
nurse. Instead, cases were used to emphasize the need for
formal, ongoing nursing triage training as well as additional
nursing staff.
From 2010 to 2011, I was involved in two ``lean teams''
(system redesign teams) to exam ER process issues affecting the
quality and efficiency of the Emergency Department. Both teams
concluded that the influx of new resources including additional
manpower and formal nurse triage training were necessary to
help resolve care issues and correct serious flow
inefficiencies.
Unfortunately, although the Phoenix VA administration did
make some changes in availability of ancillary/non-medical
staff, senior administration did not directly address those
poor quality triage issues nor quickly resolve the ER nursing/
physician shortage. Although a few nurses were sent for formal
triage training in early 2012, there was never any
comprehensive nurse triage training implemented despite
repeated episodes of the same nursing triage patient care
mistakes being made.
While on paper there were some gains in ER nursing
staffing, those gains were offset by the loss of extremely
experienced nurses who chose to leave the ER because of the
unsafe working conditions. An increase in full-time physician
manpower (above 6 full time physician positions) was extremely
slow in coming. The significant understaffing of physicians in
the Phoenix ER was not corrected until early 2013
Although senior officials may contend the Emergency
Severity Index (ESI) was the ``standard training'' required for
nursing triage training, ESI is only a classification system
based on ER resources used. It is not a nursing-based
assessment of potential complaints presenting to the Emergency
Department. It does not teach nurses how to stratify potential
symptoms to determine the patient's proper level of acuity
(severity of health impairment).
Senior Phoenix VA administration has claimed the quality of
nursing triage has significantly improved since 2012 after
hiring of experienced triage nurses from the community.
However, VA staff members continue to tell me anecdotally the
triage process is still extremely variable. This variability
increases the risk of mistakes and near-misses in ER triage.
During the years I was in the ER, there were countless
instances when the lives of Veterans were needlessly placed in
jeopardy because of Phoenix VA administration's lack of
response to clearly identified deficiencies within the ER
including lack of sufficient triage training and resources. The
following cases are a few examples when appropriate care was
not expedited for Veterans:
(a) A patient with homicidal thoughts and potential
gastrointestinal bleeding was put in a room for 49 minutes with
no report given to a physician. A patient like this is at risk
for extreme violence as well as severe blood loss.
(b) Two patients were discovered to have bleeding inside
their heads after sitting in the lobby for several hours. They
had to be transferred out immediately for stat neurosurgery.
(c) An elderly patient with an elevated pulse rate of 119,
nausea/vomiting, and abdominal pain was deemed stable for the
lobby even though his presentation indicated severe illness.
(d) A patient on a blood thinner who reported dark red
blood in stool was deemed stable for the lobby. This patient
was potentially at risk for severe blood loss.
(e) An obviously ill, immunosuppressed patient was
neglected for 5 hours before report was given to a physician.
(f) A patient with possible heart attack had no mandatory
protocol orders initiated by nursing staff.
(g) No protocol lab orders initiated for an
immunosuppressed patient on a blood thinner who had fallen and
reported feeling lightheaded and weak.
(h) A diabetic patient with a fast heart rate of 110 who
was breathing rapidly was placed in the lobby instead of being
brought to the attention of the physician on duty.
(i) A patient with low blood pressure and a heart rate of
130 at rest was left to wait in the lobby for 10 hours before a
physician was notified. This patient was very ill.
3. I was verbally banned from submitting cases to the Risk
Manager/Patient Safety Office by a former Senior Executive
Service administrator and well as by others who remain at the
Phoenix VAMC.
Frustrated by the nursing service's inability to stem the
issues related to nursing triage and understaffing, I submitted
several concerning cases to the Risk Management department in
2011. When I checked on the status of those cases, I was
informed that the cases would not be investigated. I learned
the department had been told by Phoenix senior executives not
to investigate my cases nor accept any future cases from me.
This is contrary to both local and national VA policies which
were designed to identify and address potential health and
safety issues through the use of risk management reviews.
4. In 2011 & 2012 I was forced to work unlimited scheduled
shifts to prevent job loss and to provide at least minimal
physician staffing coverage in the ER.
When jobs were offered to ER physician candidates, Human
Resources was so slow at credentialing them that those ER
physicians eventually obtained employment elsewhere. Phoenix VA
administrators then developed a plan to compensate for the VA's
unsuccessful attempts at ER physician recruiting efforts. This
plan involved having salaried ER physicians work without
compensation to fill any open, scheduled shifts.
To remain a salaried medical co-director, I was informed I
would have to work all scheduled, unfilled shifts myself or
convince my colleagues to work the shifts without compensation.
I believed forcing ER physicians to work additional scheduled
shifts was not safe or ethical unless there was a facility-wide
emergency declared. I stated I legally couldn't schedule any
physicians for more than 80 hours per 2 week pay period. In
response, I was informed that the Human Resources department
had investigated and determined current physician contracts
allowed the unlimited scheduling of any physician.
I had no choice but to work open unlimited shifts in order
to keep my position and provide at least minimum physician
staffing coverage in the ER. I knew if I refused to work those
open shifts, my work environment would become more hostile from
senior management. I hoped HR would expedite ER physician
hiring as I was promised it would during that meeting.
Unfortunately, HR never expedited the recruitment or hiring
of additional ER physicians until late 2012/early 2013. Because
I worked so many open shifts, the amount spent on fee basis
(hourly) ER physicians in 2011 and 2012 significantly dropped
prior to hiring any full-time physicians. At one point, I was
physically present working various hours in the ER for 18+ days
in a row to cover open shifts/short staffing. The physical and
emotional strain on me was tremendous. Although administration
seemed indifferent to the consequences of forced excessive work
hours, I knew being forced to work abnormally long workweeks
greatly increased the risk of patient care mistakes.
5. I was ordered to cut fee basis (hourly) physicians even
though insufficient ER physician staffing still existed and
open shifts were covered only when I worked excessive hours.
I was informed a senior administrator refused to approve
any additional fee basis physicians until I cut the number of
fee basis physicians. I was forced to fire several fee-basis
(hourly wage) physicians who couldn't commit to the number of
monthly shifts the senior administration was requiring. After
cutting those fee basis physicians, additional approvals/hires
for more fee basis physicians did not come/were not processed
in a timely manner by HR. Thus I was forced to work even more
hours above my scheduled workweek.
In my opinion, I believe this was a deliberate attempt by
senior executive service members to make my working conditions
so intolerable that I would choose to resign.
6. Because senior administrators ignored the growing
problem in the Phoenix ER, short staffing and inadequate
quality triage became routine within the ER in 2011 and 2012.
The quality of triage in general was extremely inconsistent
depending up on the skill set of the triage nurse assigned and
the number of patients presenting for triage.
At one point, I identified 3 full-time nurses who were
considered extremely unreliable triage nurses by all full-time
staff because of the inappropriate triaging of seriously ill
patients and the frequency of mistakes made by those nurses on
all shifts. However, I was told nursing staffing in the ER was
too short-staffed to prevent the inexperienced and/or
inadequately trained nurses from being placed in triage.
One of these nurses actually sent a seriously ill patient
to the Eligibility Clinic instead of performing triage because
the patient had never been registered at the Phoenix VA before.
Triaging of the patient's problem should always be done
before any patient is diverted away from the ER.
New grads were allowed to do triage only after a very short
period of triage training. Some of them were even trained by
nursing staff who previously had demonstrated inadequate triage
nursing skills.
The Phoenix ER patient flow rapidly increased and the
inexperienced nurses could not keep up nor were they given
sufficient time to be mentored in triage. By late 2011 and
early 2012 the triage mistakes or near misses were so prevalent
it was impossible for the physicians to monitor all the misses/
mistakes on an hourly basis.
Although senior administrators may state that the ER
usually met the minimum requirements for nursing staffing, in
truth many times the ``ER nurses'' were float nurses from other
parts of the hospital with no ER experience or specialty
training. In addition, the minimum nursing staffing was
inadequate because it didn't allow an increase based on the
sheer number of patients presenting for triage nor make
adjustments for the high acuity of patients presenting.
Phoenix senior administration declined to institute formal
nursing triage training on a recurrent basis even when the lack
of nursing knowledge contributed to significant morbidity and
some instances of mortality.
7. Despite my well-articulated concerns regarding the
number of nursing triage mistakes and the difficulty physicians
would have addressing those mistakes quickly without paper
print-outs of triage notes, Phoenix senior officials ordered
the cessation of all paper-based triage note print-outs.
The VA goal nationally was to move away from paper-based
processing of triage notes. However, I felt this move could not
be done safely at the Phoenix VA in 2011. I repeatedly
explained in meetings that the majority of triage nursing notes
as of 6/2011 were still inadequate with significant concerns
regarding the quality of triage. Paper based print-outs allowed
the physicians on duty to rapidly determine if there were
serious symptoms/vital signs documented within the note that
the triage nurse did not realize indicated seriously ill/
potentially unstable patients. I opposed the loss of backup
printed triage nurse notes because it meant the physician on
duty could not quickly monitor the triage notes/vital signs/
patient complaints to reassign the patient's acuity level to
the proper category.
The need for close physician monitoring was quite evident
based on the admission data present during that timeframe.
There continued to be a high number of patients who were
inappropriately designated as low-acuity (indicating non-urgent
condition) in triage. These Veterans were actually high-acuity
and were subsequently admitted to the hospital.
Multiple ER physicians reported to me that nursing triage
quality was extremely unreliable. I repeatedly communicated
those concerns to both the nursing chain of command and my
physician chain of command. Senior executives still did not
respond.
8. I was exposed to ongoing extremely hostile working
conditions in the ER from a small percentage of nursing staff
whom senior administration refused to investigate.
Beginning in approximately 2010, I became more vocal
regarding the need for nurse triage training and the
understaffing of triage. Shortly thereafter, a few nurses began
intermittently ignoring my orders, not answering my questions
in the nurses' station, not giving me verbal reports on
patients, and not expediting the discharge of my patients. As a
result, I asked that all ED physicians direct any concerns
regarding nursing triage outcomes to me for submission in order
to avoid having other physicians be the recipient of nursing
backlash which could grind patient care to a halt in the ER.
By late 2011, approximately 20% of nurses were consistently
ignoring my orders, failing to give me verbal report on
patients, declining to notify me of ekgs, and refusing to
initiate protocol orders for serious complaints like as chest
pain in my patients. Patient assignments would be changed to my
name in the computer without telling me. Those nurses were
intermittently verbally aggressive toward me when I was in the
ER nurses' station.
From 2011-2012, the aggressiveness towards me from those
few nurses was so open that it was frequently observed by fee
basis ER physicians, full-time ER physicians, other nursing
staff, front desk staff, Phoenix VA police officers, and even
housekeepers.
Although I communicated my concerns through the nursing
chain of command, there was no significant change in the level
of hostile work environment for me. I was told by the nursing
chain of command that the nursing department could not stop
such behavior.
When I spoke to my physician chain of command, senior
administration refused to intervene on my behalf. I was told
not create any problems for nursing staff which I believed
included not completing formal write-ups.
9. By late February 2012, ER conditions were so dangerous
that I told the on-coming medical center director, Ms. Helman,
the ER should be shut down completely unless additional
staffing, resources, and triage nurse training were provided.
I mentioned the multiple actual negative outcomes and
potential near-misses that had been ignored by prior
administrators for several years. I cited both acute and long-
term short staffing shortages in the ER. I told her the last 3
days had been so dangerous for patient care that I believed the
ER should be completely shut down unless there was an immediate
influx of resources.
I reported conditions had been dangerous during the prior 3
days for a variety of reasons including nurses unable to write
orders during shift because the current nursing protocols could
not be found within the facility, extremely high flow of
patient walk-ins, inadequate availability of nursing staffing,
multiple instances of poor quality of nursing triage,
inadequate physician staffing, and lack of ancillary services.
I stated current policy for nursing order protocols was not
available despite 2 months of me asking for the protocols to be
located.
10. After reporting to Ms. Helman the dangerous conditions
in the ED at the end of February 2012, I was subsequently told
by senior administrators that the only problem in the ER was my
lack of communication skills.
Within 1.5 weeks of telling Ms. Helman that the ER was
grossly unsafe, I was called into a meeting with senior
executives and told the only problem in the ER was my lack of
communication skills.
After emphatically stating the issue was not my
communication skills, I gave the group a stack of 20+ cases of
actual patients with negative outcomes related to triage. I
also provided additional cases for the senior executives to
review after the meeting.
11. After I reported the dangerous conditions in the ER and
discussing staffing shortages, no action was taken by senior
executives for another 5-6+ weeks.
Despite my statements describing life-threatening
situations within the ER to S. Helman at the end of February
2012 as well as my description of dangerous ER conditions at
the early March 2012 meeting where I was accused of poor
communication skills, no formal action or investigation was
taken by the senior executives at the Phoenix VA to investigate
or address the grave concerns I had verbalized.
I sent additional emails to administration emphasizing the
dire conditions within the ER. In my April 2012 email to my
physician chain of command I wrote `` . . . I continue to be
extremely concerned about the safety of our veterans who are
presenting to the ED (Emergency Department) for care when the
ED is saturated. Based on the events of [omitted] & [omitted]
as well as numerous events over the last 24 months that have
been reported on ongoing basis, I believe the potential for
patient mortality in our ED is incredibly high during periods
of ED saturation . . . The number of near-misses is so high
during peak flow/high acuity days that multiple occurrences of
significant nosocomial morbidity & mortality are inevitable . .
. I have tried multiple avenues to alert this facility to the
issues vital to our ED & improve provision of care in the ED
despite being faced with incredibly toxic circumstances &
political backbiting. This facility must not delay focusing
immediate resources to reduce the risk of needless suffering
and loss of life in our ED . . . ''
Unfortunately, even that email would not generate any
significant response for 3+ weeks from management.
Finally, in late April 2012, my chain of command agreed to
meet with ER physicians to corroborate my statements. During
that meeting all the ER physicians confirmed the significant
care issues, staffing shortages, and nursing backlash against
me.
A formal action plan was written by senior executives to
address many of the issues outlined in the meeting. However, I
was informed the nursing backlash against me would not be
investigated. I was also told not to cause any problems for
nursing staff. I was devastated to learn senior executives were
ignoring nurses who had jeopardized ER patient care. I was very
fearful for my patients in the ER because I knew it would be a
continual struggle for me to provide quality care for ER
patients in the face of continual backlash from a small group
of nurses.
There should have been an immediate internal response/
action plan developed after I informed former Director Helman
of the severe internal crisis state existing in the ER.
Inquiring into the issues including interviewing the other ER
physicians should not have been delayed for almost 2 months.
12. My care for patients remained impeded by a small group
of ER nursing staff throughout 2012.
The following are a few of the many episodes when my
ability to care for ER patient was impeded by a small group of
nurses in 2012 while I was on duty. (None of the delays were
related to short-staffing issues.)
(a) Patient with an elevated heart rate of 112 was placed
alone in an exam room for 2 hours and 40 minutes before I was
notified. (Such a resting heart rate can indicate significant
illness requiring the patient to be seen much sooner.)
(b) Nursing staff refused to draw blood on a patient
because I had put a patient in a room they didn't like. (It was
the only available bed and the care needed to be expedited for
the patient.)
(c) A nurse did not give me report or the ekg on a patient
with recent chest pain who had a history of prior heart attack.
(d) A hypertensive patient with a bad headache was put in a
room for 20 minutes without ever telling me. This delayed care
for a patient with a potential hypertensive emergency.
(e) On one shift, four patients were placed in rooms
without giving me any type of report.
(f) An obviously ill patient with fast heartbeat was placed
in a room without giving me any type of report on the patient.
(g) A nurse refused my request to respond to telemetry
alarm monitors on my patient even though the nurse was assigned
to the room and was not otherwise occupied.
(h) Labs I had ordered on an ill patient were still not
drawn 3 hours after I ordered them.
(i) My chest x-ray order for a patient with shortness of
breath was ignored for 3 hours despite my asking the nurse
twice to have it completed.
(j) A stat ekg I ordered on a patient was not done for 2.5+
hours and my other orders were delayed including orthostatic
vital signs.
(k) IV fluid administration was significantly delayed
because a nurse didn't want to restart a heplock on my patient.
(l) Care was delayed when the pregnancy test and other
tests I ordered were not done.
I continued to communicate my concerns to the physician and
nursing chains of command without any success.
13. In December 2012, I was notified unexpectedly that I
was being laterally transferred out of the ER to the Post-
Deployment Clinic because of a ``critical need'' which
management would not specify.
I was told this administratively-driven lateral transfer
was necessary to meet a critical need in the Post-Deployment
Clinic. However, that clinic had been a defunct medical clinic
for 1.5 years prior to my transfer. It only contained a social
work program working with returning combat Vets and a part-time
polytrauma case manager. There was one physician assistant who
performed basic registry exams for traumatic brain injury.
These types of exams do not require a physician to complete.
My chain of command declined to specify the critical need
in the Post-Deployment clinic that I was supposed to address.
It took over a month for senior administrators to grant me
clinical privileges to see any Veterans.
My transfer to the Post-Deployment Clinic left the ER
critically short-staffed. At management's request, I returned
for a few shifts over the Christmas holiday to provide
emergency coverage for open shifts.
Despite the circumstances of the transfer to the Post-
Deployment Clinic, I eventually discovered a way to make my
position an important adjunct to the OEF/OIF/OND Transition
Services social work team.
14. I chose to submit a confidential OIG report to address
multiple health and safety concerns within the Phoenix VA that
were being ignored by administration.
In 2013, I was working on a project to reduce the risk of
suicides among Veterans. Despite phenomenal attempts by the
Suicide Prevention Team to work within the confines of grossly
inadequate resources, the rates of suicide at the Phoenix VA
increased over a very short time span. I inadvertently became
aware of long-standing Phoenix VA system inadequacies that were
placing our Veterans at higher risk of successful suicide
completion. Senior administration's lack of response heightened
my concerns.
I decided to initiate an OIG complaint and submit it
through my senator's office. Our nation, has lost too many
Veterans from all eras to suicide. While no one factor will
prevent a suicide, as health care providers we are obligated to
make the safety net as tight as possible in our attempt to do
outreach to those who are considering taking their own lives.
When I chose to initiate the OIG complaint, I was aware of
previous inadequate OIG investigations at the Phoenix VAMC and
failures to maintain confidentiality of those making the
complaint. I could not submit the complaint anonymously because
that would have severely limited the scope of the pending OIG
investigation.
I organized my complaint so it would address as many
patient care and safety issues as possible. I hoped this would
increase the likelihood that my OIG complaint would result in
significant positive changes within the Phoenix VA.
I went to my fellow Phoenix VA employees with whom I had
developed a trusted relationship and asked them to provide me
with information regarding the most serious issues within the
VA facility. The problems must be easily proven and be urgent
enough that the issues could not wait for resolution by the
normally ponderous VA process of change. It was equally
important the information could not be traced back by
management to my ``sources''. I wanted only me to be the only
target if my name was not kept confidential by the OIG. The
Phoenix VA couldn't afford to lose any more good employees if
management chose to retaliate against anyone else whose name
might be associated with the report.
As the result of the information collected as well as my
first-hand knowledge of facility issues and overt backlash, I
wrote a lengthy complaint detailing the various problems. When
I presented my written OIG complaint to staff at Senator
McCain's office, the seriousness of the VA situation was
evident to even those staff who had no health care background.
I was informed the most serious safety issues listed in my
complaint would be forwarded with a request for an expedited
investigation performed by an outside OIG team to address the
issues and maintain the confidentiality of my name.
Some of the issues in my complaint included disturbing
system issues involving suicides, statistical manipulation of
the wait list, failure to prioritize appointments according to
national VA policy, and improper distribution of complex
patients.
15. My confidential 2013 OIG complaint regarding multiple
safety concerns within the facility resulted in overt
retaliation against me.
My plan to address system deficiencies failed almost
completely. My name was not kept confidential by the OIG.
Shortly after the national VA acknowledged receipt of my
complaint, I was placed on administrative leave for about a
month and investigated for alleged wrong-doing for including
truncated patient information in the confidential OIG complaint
submitted through approved channels.
I was told I acted outside the scope of my duties as Post-
Deployment medical director and ``may have'' violated privacy
policy by including patient information to support my
allegations regarding the disturbing suicide trends at the
facility.
I eventually would receive a written counseling in January
2014 for violating privacy policy and for working outside the
scope of my duties as purportedly evidenced by the content of
the OIG complaint submitted for me by Senator McCain's office.
There was no information in the written counseling specifying
exactly what policy I had violated or how it was concluded I
was working outside the scope of my duties. I was not given
access to the investigative file. Instead, I was told the
investigative file had been ``shredded for my protection''.
I sent a formal request outlining my concerns and
requesting to have the investigative file re-created. I also
asked to be informed of which patient privacy policy I
violated. I subsequently was told that HR determined it did not
need to respond because written counseling did not rise to the
level of disciplinary action that Title 38 employees were
allowed to challenge.
My senior physician chain of command did not intervene on
my behalf, and thus clearly supported HR's decision. The
written counseling was never rescinded even though HR declined
to tell me the name of the policy I supposedly violated.
16. The 2013 OIG report of my complaint was never
officially provided to me and can't be found on the OIG web
site. I was forwarded a brief email received by the senator's
office indicating the investigative findings were benign. Of
note, the investigation found no significant problems with
scheduling issues.
I have never seen the official OIG report on my 2013
complaint and do not know if one exists. Senator McCain's
office made attempts to locate the report for me without
success. There is no indication of the investigation on an OIG
Web site search.
I subsequently learned the OIG has complete discretion as
to which reports it puts on its Web site. I was told
anecdotally the VA OIG often doesn't list any reports which are
critical to senior administrators. Recently I was sent an OIG
report critical to senior administrators at another VA. That
report issued in 2014 and was assigned an OIG case number.
However, this report cannot be located on the OIG Web site and
was obtained only by FOIA request.
SECTION IV:
VA Horizontal Violence: Specific Retaliation Tactics Against Title 38
Health Care Providers (Physicians, Surgeons, Dentists)
Note: Variations of some tactics are commonly used against
wage grade employees & Title 38-hybrid employees. The
implications may differ (depending on the skill set) but the
outcomes are similar.
Overview Summary
A. Types of Retaliation:
1. Sham peer review.
2. Malicious down-grading of proficiencies.
3. Deliberate understaffing of Title 38 provider positions.
4. Deliberate understaffing of necessary ancillary personnel.
5. Inequitable distribution of extremely challenging patients
to overburden provider.
6. Faulty clinical profile to overwhelm provider.
7. Unjustified written counseling.
8. Lateral transfer for factitious reasons.
9. Exploitation of ``24/7'' work contract.
10. False accusations of patient privacy violations in
retaliation for whistle-blowing.
11. Unreasonable timeframe assigned for completion of
nonessential training requirements or extraneous tasks.
12. Removal of teaching privileges to ostracize provider.
B. Clinical Implications (in numerical order based on
retaliation type):
1. Veterans are denied the skills of talented, qualified
providers who are fired due to unjustified accusations of poor
medical skills.
2. Qualified candidates for direct patient care positions or
supervising administrative positions are not promoted to
positions where they can use their skills sets to fulfill the
VA's mission for quality health care.
3. Provision of direct patient care services is greatly slowed.
4. Direct patient care time is diminished due to additional,
excessive daily tasks.
5. Punitive and dangerous system is used for managing care of
complex Veterans.
6. Delays occur in necessary follow-up required for labs,
studies, and consults.
7. Ineffective disciplinary system doesn't support high quality
care for Veterans.
8. Potentially dangerous health and safety problems perpetuate
when advocates for quality care are removed from clinical
settings.
9. The risk of patient care mistakes increases when providers
are physically/mentally exhausted.
10. Malicious administrative conduct stifles the reporting of
future legitimate patient care concerns and perpetuates unsafe
situations.
11. Delays occur in completion of important administrative
tasks related to patient care.
12. Increased potential for patient health care mistakes occur
when there is loss of talented attending physicians who
normally would guide students/new doctors to consistently
deliver high quality medical care.
C. Professional Implications (aggregate):
In an unethical and unprofessional institutional culture,
providers quickly develop high stress, low morale, and
physical/mental exhaustion. Providers who advocate for patient
care and safety against the local administration's status quo
are isolated in their work environments, demoralized, and
professionally impeded in their careers. In some cases,
providers are exposed to extreme retaliation that can
effectively ruin their medical careers in both the VA system
and the private sector.
D. Outcomes (aggregate):
1. Administrators have extremely effective methods to ensure
compliance with their personal agendas which are disconnected
from the mission and stated values of the Department of
Veterans Affairs.
2. The VA system is unable to effectively retain and/or recruit
well-qualified providers who have been/would be effective
advocates for patient health and safety.
3. Veterans are denied the highest quality, efficient medical
services within the VA despite VA administration having access
to a talented pool of dedicated patient care providers already
employed within the system.
4. The U.S. government loses money compensating for high staff
turn-over and defending administrators' inappropriate personnel
decisions.
5. The horizontal violence within the VA institutional culture
propagates.
6. Outcomes 1 through 5 above threaten the viability of the VA
and undermine its ability to meet and exceed our obligations to
the nation's current and future Veterans.
Detailed Explanation of Retaliation Tactics Against Title 38 Employees
1. Sham peer review.
Note: In contrast to a sham peer review, a professional
peer review is a formal, lengthy review done of a physician's
cases by his/her peers and is initiated only when there is
legitimate concern the physician may not be following medical
standards of care. The outcomes are based on objective
findings, not subjective opinion.
Tactic: A well-orchestrated attempt to sabotage a
physician's credibility/professional reputation via organizing
a sham review of cases by the administrator's associates/
cronies. Even though there is no objective evidence of improper
care, the predetermined written ``findings'' imply the
physician has, at a minimum, subjective deficiencies in
professional or personnel qualities. (The practice of sham peer
review is not considered a prohibited personnel practice. The
Office of Special Counsel doesn't accept sham peer review
cases.)
Clinical implications: Veterans are denied the skills of
talented, well-qualified physicians when those providers are
relieved of patient care duties or fired due to unjustified
accusations of poor medical skills.
Professional implications: Professionally and personally
devastating to the provider. The physician has to fight the
sham findings at great financial expense in civil court or via
the Merit Protections Board. For the rest of his/her
professional career, the physician has to report on job
applications and license renewals that he or she was the
subject of a peer review.
Outcome:
a. Management can effectively and permanently sabotage a
physician's ability to be gainfully employed anywhere as a
physician inside or outside of the VA system.
b. Threat of a sham peer review can effectively stifle
physicians who want to voice serious concerns about patient
safety.
c. Fighting a sham peer review can financially devastate a
physician who is pitted against the unlimited legal resources
of the U.S. Department of Veterans Affairs.
d. Patient care is delayed as yet another VA physician
chooses to resign or retire instead of facing a sham peer
review.
2. Maliciously down-grading proficiencies.
Tactic: Deliberately reducing the accuracy of a provider's
yearly written performance evaluation on the whim of the
administrator instead of completing the evaluation based on
objective criteria normally used to judge accomplishments of
providers.
Clinical implications: Qualified candidates for direct
patient care positions or supervising administrative positions
are not promoted to positions where they can use their skills
sets to fulfill the VA's mission for quality health care.
Professional implications: Physicians and other providers
are not allowed to expand their professional careers. If the
provider decides to obtain a position at another VA or in an
outside institution, the unfairly downgraded proficiencies make
the provider less apt to be selected for the new position.
Outcomes:
a. Patients are denied the benefits of having the most
qualified personnel in supervisory/other positions who would
normally work toward efficient/high quality care.
b. Management has a direct/efficient method of sabotaging
the professional reputation of a provider who verbalizes
concerns about patient safety, fiscal irresponsibility, or
prohibited personnel practices.
c. Management saves money on bonuses associated with
providers who earn ``outstanding'' ratings on yearly
proficiencies.
d. Management wields significant power to create compliance
with administrative edicts by granting monetary awards to
providers based on whim instead of merit.
e. Rank and file staff member burn-out.
f. Impedance of a provider's ability to be employed in the
private sector or at another VA.
3. Deliberate understaffing of provider/Title 38 provider
positions.
Tactic: Vacancies or identified needs for staffing
increases are ignored by administrators so that remaining Title
38 employees have to manage ever-increasing patient loads.
Clinical Implications: Provision of direct patient care
services is greatly slowed. Providers are routinely managing
complex patient loads that are 10%-50% above the VA's
predetermined safe levels for provider patient panels. The risk
of overlooking key patient needs is very high. There is often
slowed clinical response to mountains of patient requests
flooding provider's clinic.
Professional Implications: Providers frequently worry about
meeting the complex needs of huge patient panels that outstrip
the available resources. Providers are also penalized on their
yearly performance appraisals because they can't keep up with
the unwieldy patient flow.
Note: Unlike wage-grade, non-supervisory positions, Title
38 employees can be penalized on performance appraisals even if
deficiencies in care are directly related to chronic
understaffing/excessive patient workloads.
Outcomes:
a. Patient appointments/consults are difficult to schedule
because the provider is booked so far into the future.
b. Delays in patient care and interpretation/communication
of testing results/future needs.
c. Senior administrators save money/reap potential bonuses
for avoiding salary expenditures.
d. Rank and file staff members burn-out as workweeks extend
far beyond 50-60 hours and their yearly proficiencies drop
despite every attempt by the provider to meet the needs of the
vast patient load.
4. Deliberate understaffing/failing to post positions for
necessary ancillary personnel.
Tactic: Vacancies or identified staffing needs are
unanswered by managers so that basic clerical/ancillary
functions of clinic are not addressed.
Clinical implications: Direct patient care time is
diminished due to additional, excessive daily tasks. Providers
have to absorb those tasks in order to keep the clinic running.
This pulls providers away from direct patient care time.
Professional implications: Providers have their
administrative & clinical time stretched so incredibly thin
that they are often unable to fully meet the needs of their
patients during any given day. Providers have to use off-duty
time to meet their ethical and medical obligations to patients.
They are also faulted for failing to meet clinical requirements
or performance measurements in a timely fashion.
Outcomes:
a. Provision of direct patient care is slowed.
b. Patient frustration because they don't understand why
phones aren't answered, lab results aren't timely communicated,
and messages aren't returned promptly.
c. Management can reap bonuses for keeping labor costs low
by avoiding the salary expenditures for hiring/replacing basic
staff members.
d. Management is able to wring more time out of salaried
rank and file employees.
e. Rank and file staff member burn-out as workweeks extend
far beyond 50 hours and impossible standards of achievement are
mandated.
5. Inequitable distribution of extremely complex patients
to overburden provider.
Tactic: Extremely complex patients are ``dumped'' onto a
provider's panel en masse without allowing the provider
additional clinical time to address the patient needs at each
visit. These patients are time-consuming in terms of physical/
clinical interactions needed to address multiple physical
problems and approach the psychological issues inherent to the
patient's ability to engage in the health care process.
Clinical implications: Punitive and dangerous system used
for managing care of complex Veterans. The provider is
chronically ``running behind'' in clinic trying to meet the
pertinent needs of each Veteran within an appointment timeframe
that is too short for such a complex patient.
Professional implications: Although the provider tries to
give quality patient care to each Veteran, the provider is
penalized on proficiencies and in meetings for ``taking too
long'' with his/her patients despite the complexity of the
patients. The provider is rated negatively by administrators
because the provider cannot process the complex panel of
patients as fast as fellow providers who have lighter/less
complex patient panels.
Outcomes:
a. Management easily creates burdensome working conditions
to harass staff member.
b. Managers who have patient panels quickly can reduce
their own work load/improve their own efficiency ratings by
dumping complex patients onto other provider panels.
c. Patient frustration because his/her assigned provider is
chronically late starting appointments or only has time to deal
with 1-2 active problems during the appointment.
d. A greater number of patients can be neglected when
provider time is routinely monopolized by fewer but much more
complex patients.
e. Rank and file staff member burn-out.
6. Faulty clinical profile to overwhelm provider.
Tactic: Providers are given inadequate administrative time
to follow-up on electronic alerts and other administrative
tasks. The clinic appointment time is reduced to a bare minimum
in order to give the appearance of adequate provider staffing
in the entire clinic.
Note: Electronic alerts are computer notifications of
various information of which the provider must be aware.
Examples of electronic alerts include requests to co-sign chart
notes or the receipt of results from labs, radiology studies,
consults, or pharmacy actions. Although some alerts can be
cleared in seconds, other alerts can take from 5-15 minutes
each because follow-up action is required. At the Phoenix VA,
primary care providers average 85 electronic alerts per day.
Clinical implications: Delays occur in necessary follow-up
required for labs, studies, and consults because providers are
inundated with administrative tasks.
Professional implications: Providers feel chronically
overwhelmed and stressed. His or her yearly proficiency is
downgraded because the provider is unfairly labeled as being
``inefficient'' even though the provider has been assigned
tasks that no human being reasonably could meet within a 40-50
hour workweek.
Outcomes:
a. Management is able to wring more time out of salaried
employees.
b. Management can save money on proficiency bonuses for
staff by reducing the number of providers labeled as
``outstanding'' on yearly proficiencies.
c. Rank and file staff members burn-out as workweeks extend
far beyond 50-60 hours.
7. Unjustified written counseling.
Tactic: Written counseling is used only as a punitive
stepping stone for unjustified disciplinary actions and as
false justification for penalizing employee proficiencies.
Clinical implications: Ineffective disciplinary system is
created which doesn't ensure high quality care for Veterans.
Providers who perform appropriately are penalized unjustly.
Providers who demonstrate inappropriate behaviors are not
issued written counseling as long as those providers are
pleasing the administrative chain of command.
Professional implications: Providers are helpless to defend
themselves because written counseling doesn't rise to the level
of disciplinary action that Title 38 employees are allowed to
challenge.
Outcomes:
a. Administrators have an easy tool to discipline providers
without being challenged.
b. Written counseling is never used to correct
inappropriate behaviors of providers who are favored by
administrators.
c. Rank and file staff member burn-out.
8. Lateral transfer for factitious reasons.
Note: Lateral transfers are allowed in only 3 situations:
an employee requests the change and a vacancy is open in the
new workstation; an employee faces a disciplinary action and
management believes a new workstation would be a better fit for
the employee's skill set; or there is a true ``critical need''
in another area which management must meet by transferring the
employee to the new location even if the employee doesn't
desire the transfer. Declining a ``critical need'' lateral
transfer can result in disciplinary action against the
employee.
Tactic: An employee is laterally transferred to a less
favorable work site based on a factitious ``critical need'' in
the new area. Often the employee will then be penalized on his/
her proficiencies for not performing well in the new area.
Clinical implications: Potentially dangerous health and
safety problems perpetuate when advocates for quality care are
removed from clinical settings.
Professional implications: Providers become hesitant to
verbalize concerns for patient health and safety in any work
station.
Outcomes:
a. Management has a powerful tool to punish employees who
persistently advocate for patient care/other issues against
administration's party line.
b. Effective, dedicated professionals are essentially
``moth-balled'' to areas where they have less of an ability to
effect positive change within the work-environment.
9. Exploitation of ``24/7'' work contract.
Note: A full-time federal Title 38 employee at one agency
cannot work for another federal agency simultaneously even if
the second agency's work hours fall within the federal
employee's off-duty work hours from the first agency. In my
limited understanding, I believe that the salaried Title 38
employee contract has been interpreted in recent years to mean
the employee can only be scheduled for 80 hours per 2 week pay
period even if the actual work day extends far longer. When a
Title 38 employee's workday inadvertently lasts more than the
usual timeframe, the employee does not get paid overtime or
comp time. A VA Title 38 employee may be scheduled to work more
than 80 hours per 2 week pay period if the VA facility director
declares an emergency at the VA facility. The true
interpretation/implication of the 24/7 work contract needs to
be officially clarified in writing by senior VA officials.
Tactic: Clinics are set up with faulty administrative time/
odd hours that routinely extend the usual 8 hour/day (40 hours/
workweek) to 10-12 hours per day (50-70 hours/workweek).
Clinical implications: The risk of patient care mistakes
increases when providers are physically/mentally exhausted
during any given workweek.
Professional implications: Even if actual mistakes are not
made, providers are physically/mentally exhausted and greatly
fear making a critical mistake or overlooking important health
care needs of their patients.
Outcomes:
a. Management is able to wring more time out of salaried
employees.
b. Providers are quickly burn-out as their personal/family
time is steadily eroded.
10. False accusations of patient privacy violations in
retaliation for whistle-blowing.
Tactic: Even though the employee uses the approved
administrative channels of VA oversight, any provider who
includes the necessary patient care information to support the
allegations of wrong-doing is subsequently disciplined for
violating patient privacy. In extreme cases of administrator
wrath, the practitioner will be reported to his/her
credentialing board for privacy violations.
Note: Disclosure of pertinent patient care information in
support of whistle-bower activity through approved channels of
VA oversight is not a patient privacy violation. Unfortunately,
the Office of Inspector General has declined thus far to put
that opinion in writing. With lengthy legal efforts, these
inaccurate disciplinary actions can be overturned, but the
process may take years.
Clinical implications: Malicious administrative conduct stifles
the reporting of future legitimate patient care concerns and
perpetuates unsafe clinical situations. Patient care cannot
rise to the high level of quality care needed by our Veterans
until health and safety issues are reported and corrected.
Professional implications: Fear of retaliation can silence
providers or reduce their ability to effectively advocate for
patients.
Outcomes:
a. Administrators have a powerful tool to suppress any
information that may be contrary to a positive public image of
the VA facility.
b. The quality of patient care in the VA can never reach
its full potential.
c. The U.S. taxpayers foot the bill for legal wrangling
between the VA who supports the disciplinary action and the
Office of Special Counsel which is trying to overturn the
disciplinary action.
11. Assigning unreasonable timeframes for completion of
excessive training requirements/tasks to penalize the provider.
Tactic: Mandatory training requirements/task assignments,
often assigned at the last minute, are required to be done
within a short timeframe without allowing any flexibility in
administrative time. If requirements/tasks are not completed,
the provider is penalized on proficiencies or in write-ups.
Clinical implications: Delays occur in the completion of
important administrative tasks related to patient care.
Administrative time for most providers is filled with daily
tasks including reviewing mandatory electronic alerts. Being
given additional tasks without additional time allowance means
the providers may have to ignore administrative tasks related
to patient care during allotted timeframes to complete the
extraneous or nonessential tasks. This tactic erodes the Title
38 employee's ability to complete other/more pressing
administrative tasks within the course of daily duties.
Professional implications: Staff frustration/burn-out
because unreasonable time demands force the employees to use
lunch breaks, weekends, or other off-duty hours to either
complete training criteria/extra duties or follow-up on patient
care administrative duties.
Outcomes:
a. Management is able to wring more time out of salaried
employees.
b. Rank and file staff member burn-out as workweeks extend
far beyond 50-60 hours.
12. Removal of teaching privileges to ostracize provider.
Tactic: An administrator will exclude the physician from
teaching privileges, an inherently renewing professional
activity.
Clinical implications: Increased potential for patient
health care mistakes occur when there is loss of talented
attending physicians who normally would guide students/new
doctors to consistently deliver high quality medical care.
Professional implications: Involuntary removal of teaching
privileges isolates/ostracizes the professional provider within
the workplace.
Outcomes:
a. Management is able to effectively isolate ``trouble-
makers'' within the work environment who threaten
administrator's status quo.
b. Quality of training in the facility is reduced by the
loss of an effective educator.
SECTION V VA Horizontal Violence: General Retaliation Tactics Against
all VA Employees
Overview Summary
A. Types of Retaliation:
1. Open ridicule in meetings.
2. Anonymous ``report of contact'' writing campaigns to
sabotage employee's credibility and justify malicious
disciplinary actions.
3. Deliberate exclusion of employee from participation in
projects necessary for promotion/career advancement.
4. Failure to promote on merit by willfully denying promotions
to the best qualified candidate.
5. Reassignment/relocation in the workplace in order to debase
an employee.
6. Abrupt firing of probationary employees who report patient
care concerns, identify misuse of facility resources, and/or
question violations of human resource policy.
B. Clinical Implications (in numerical order based on
retaliation type):
1. Legitimate hazards to patient care and safety remain
unaddressed due to perpetuation of hostile work environment.
2. The firing, resignation, or failure to promote competent and
dedicated employees impairs the quality of direct and/or
indirect Veteran services.
3. The available staffing expertise is not utilized for the
maximum benefit of the patients.
4. Because less qualified employees do not possess the
mandatory traits/skills required for their new positions, the
quality of all direct and/or indirect care is compromised.
5. An employee who feels debased often cannot perform new
duties to meet the standards and requirements of the VA system.
6. Potential health and safety concerns are not addressed
appropriately.
C. Staff Implications (aggregate):
In a system where there is disparate advancement
opportunities, unequal balance of power, and emphasis on
retaliation, qualified employees dedicated to the care of
Veterans and the VA mission are subjected to horizontal
violence that prevents them from achieving their full career
potential and encourages them to seek career opportunities
elsewhere. Less qualified employees are allowed to fill direct
and indirect care positions which results in a lower standard
of care throughout the VA system.
D. Outcomes (aggregate):
1. Administrators can employ a variety of retaliatory
methods to debase employees and to suppress identification of
system deficiencies that may make the administration look
unfavorable.
2. The system is unable to effectively retain and/or
recruit employees who have been/would be effective advocates of
health and safety in all aspects of the VA health care system.
3. Veterans are denied high quality, efficient medical
services within the VA despite administration having access to
a talented pool of dedicated employees already working within
the system.
4. The U.S. Government spends inordinate amounts of money
trying to legally defend administrators' retaliation against
employees and also compensate for high staff turn-over.
5. The horizontal violence within the VA institutional
culture propagates.
6. Outcomes 1 through 5 above threaten the viability of the
VA and undermine its ability to meet and exceed our obligations
to the nation's current and future Veterans.
Detailed Explanation of Retaliation Tactics Against all VA Employees
1. Open ridicule in meetings.
Tactic: In meetings and other personal interactions that
don't leave a paper trail, administrators use verbal behavior
such as raising voice, profanity, sarcasm, and interruption in
response to an employee verbalizing concerns about safety or
care. Nonverbal behaviors such as crossing arms, rolling eyes,
and scowling are done while the employee is speaking about his/
her concerns.
Clinical implications: Legitimate hazards to patient care
and safety remain unaddressed due to perpetuation of hostile
work environment.
Staff implications: The employee immediately becomes aware
he/she is displeasing administrators and is often humiliated in
front of co-workers. Thereafter, employees remain silent to
avoid becoming targets for administrative abuse.
Outcomes:
a. Management has a method of discouraging employees from
voicing concerns about safety.
b. Management can later claim ``no knowledge'' of the
problem if the deficiency/issue later comes to the surface in
another manner.
c. Lines of facility communication are impaired because
rank-and-file staff avoid meetings.
2. Anonymous ``report of contact'' writing campaigns to
sabotage employee's credibility and justify malicious
disciplinary actions.
Tactic: Administrators orchestrate a ``write-up'' campaign
against an employee wherein the employee is the subject of
falsified or exaggerated reports of contact from employee's co-
workers. The employee is never told who composed each ``report
of contact'' write-up. The employee is then penalized/
disciplined within the workplace based on these write-ups
against which the employee cannot easily mount a defense.
In a variation of this tactic, an administrator will
pressure co-workers into writing up reports of contact on
incidents, even if those incidents are outdated and/or
insignificant. The co-workers are forced to write up the
employee or face retaliation themselves from the administrator.
Co-workers who refuse are viewed as ``not being team players''
or are told they are ``unprofessional''. These derogatory
labels will negatively affect future proficiencies for the co-
workers.
Clinical implications: The firing, resignation, or failure
to promote competent and dedicated employees impairs the
quality of direct and/or indirect Veteran services.
Staff implications: An employee feels attacked by unseen
enemies or by his/her own co-workers.
Outcomes:
a. Administrators have a tool to easily justify
disciplining employees on trumped-up charges or minor
infractions.
b. Administrators have a divisive tool to isolate an
employee or break up a cohesive team of employees.
c. Employees have significant distrust of each other.
3. Deliberate exclusion of employee from participation in
projects necessary for promotion/career advancement.
Tactic: Administrators avoid assigning an otherwise
qualified employee to participate in projects that are needed
to advance the employee's VA career. This is done because the
administrators view the employee as a threat to the current
status quo.
Clinical implications: The VA doesn't utilize its staffing
expertise to the maximum benefit of its operational goals.
Staff implications: An employee's potential remains
undeveloped even though the employee otherwise is truly capable
of expanding his/her role within the VA.
Outcomes:
a. Administrators have an easy way to prevent employees who
are vocal on patient care issues from ever being given
opportunities to achieve career fulfillment or advance into
supervisory roles.
b. Inappropriate utilization of staffing resources.
c. Overall staff productivity is decreased.
4. Failure to promote on merit by willfully denying
promotions to the best qualified candidate.
Tactic: Administrators deliberately overlook qualified
candidates in favor of the administrators' friends/co-workers
who conform to the unethical administrative power structure.
Clinical implications: Because less qualified employees do
not possess the mandatory traits/skills required for their new
positions, the quality of all direct and/or indirect care is
compromised.
Staff implications: Employees with desired expertise are
extremely frustrated because they are unable to apply those
skills to the maximum extent possible within their own
department. Positions are filled with candidates who do not
possess the preferred expertise and qualifications for the job.
Outcomes:
a. An administrator has now filled positions of
responsibility with unqualified individuals who continue to
promote an unethical and unsafe work environment.
b. Government monies are wasted on avoidable legal
proceedings between the VA that supports the administrator and
the Office of Special Counsel/EEOC which is trying to overturn
the prohibited personnel action.
5. Reassignment/relocation in the workplace in order to
debase employee.
Tactic: An experienced employee is transferred to an entry
level position/other position that doesn't effectively use
employee's skill set while the employee is being
``investigated'' for an alleged infraction.
Clinical implications: An employee who feels debased often
cannot perform new duties to the standards and requirements of
the VA system.
Staff implications: An employee's dignity is reduced when
removed from a role that he/she had great personal pride in
fulfilling.
Outcomes:
a. Administrators have an effective tool to isolate an
employee or break-up a cohesive group of workers who verbalize
health/safety concerns.
b. Inappropriate use of experienced staff member.
c. Loss of productivity.
6. Abrupt firing of probationary employees who report
patient care concerns, identify misuse of facility resources,
and/or question violations of human resource policy.
Note: Administrators have the ability to fire any
probationary employee without cause during a period of
probation that can last up to 2 years. This ability is supposed
to be judiciously applied only in situations where the employee
is not a good fit for the VA.
Tactic: As a way of filtering out new employees who express
health/safety concerns or violations of other policies/
procedures, an administrator unjustly/abruptly terminates these
probationary employees simply because they are viewed as a
threat to the administrator's power base.
Clinical implications: Potential health and safety concerns
are not addressed appropriately within the work environment.
Staff implications: Probationary employees are afraid to
vocalize health and safety concerns because they fear
unjustified job loss.
Outcomes:
a. Administrators have an effective leverage over
probationary employees to suppress any identification of system
deficiencies that may make the administration look unfavorable.
b. In order to meet administrators' personal goals, there
can be coercion of probationary employees to do activities that
are not in keeping with VA official standards of conduct.
Prepared Statement of Mr. Davis
Good evening, I'm Scott Davis, a Program Specialist at the
Health Eligibility Center in Atlanta, Georgia. I filed for
whistleblower protection in January 2014.
I'd like to thank Chairman Miller, Ranking Member Michaud
and the committee for their leadership and for providing a
platform, so the voices of VA Whistleblowers can be heard.
I urge the committee to take prompt action as time is
running out. Every day a window of opportunity is closing on a
Veteran to receive care before irreparable harm is done to
their health or mental well-being. Because of the inaction of
senior VA officials, some Veterans even face the burden of
being billed for care their service has earned.
As noted in the Office of Special Counsel's June 23rd
report, VA leadership has repeatedly failed to respond to
concerns raised by whistleblowers about patient care at VA.
Despite the best efforts of truly committed employees at HEC
and the Veteran Health Administration, who have risked their
careers to stand up for Veterans, management at all levels
ignored or retaliated against them for exposing the truth.
CRITICAL ISSUES REPORTED TO SENIOR VA OFFICIALS BY WHISTLEBLOWERS AT
THE HEC INCLUDE:
1. Mismanaging critical Veteran health programs and wasting
millions of dollars on an Affordable Care Act direct mail
marketing campaign.
2. The possible purging & deletion of over 10,000 Veteran
health records at the Health Eligibility Center.
3. A backlog of 600,000 pending benefit enrollment
applications.
4. Nearly 40,000 unprocessed applications discovered in
January 2013. These were primarily applications from returning
service members from Iraq and Afghanistan.
THE HARASSMENT I EXPERIENCED AT THE HEC WAS FROM TOP LEVELS OF
MANAGEMENT:
1. My whistleblower complaint to White House Deputy Chief
of Staff Rob Nabors was leaked to my manager Sherry Williams,
who stated in writing, that she was contacting me on behalf of
Acting Secretary Gibson and Mr. Rob Nabors. Neither Mr. Gibson,
nor Mr. Nabors have responded to that fact.
2. My employment records were illegally altered by CBO WFM,
Director Joyce Deters.
3. I was illegally placed on a permanent work detail by
Assistant Deputy Under Secretary, Philip Matkovsky and Acting
Chief Business Officer, Stephanie Mardon.
4. I was placed on involuntary administrative leave,
curiously at the same time the OIG's investigation was
occurring in Atlanta by Acting HEC Director Greg Becker.
UNFORTUNATELY MY EXPERIENCE IS NOT UNIQUE.
Daron and Eileen Owens, who work at the VA Hospital in
Atlanta, GA, have experienced the same retaliation for
reporting medical errors and patient neglect as well as
misconduct by senior VA police officials.
Our Local 518 Union President, Daphne Ivery is routinely
harassed as a direct consequence of assisting me and other
disabled employees with addressing retaliatory actions by
members of management. Mr. and Mrs. Owens as well as Ms. Ivery
are Veterans. In fact over 50% of the 300 employees at our
office are disabled Veterans.
In 2010 allegations surfaced that applications for VA
health care were being shredded at the HEC. Under the direction
of the HEC Director and Deputy Director, Ms. Kimberly Hughes,
Former Associate Director for Informatics and her team began to
investigate this allegation. Her team discovered nearly 2,000
applications that were reported as being processed in WRAP that
did not appear as new enrollees in the Enrollment System.
Ms. Hughes, investigation was abruptly closed by the HEC
Director's Office. Although she completed a report of her
findings it is unclear whether that report was given to the OIG
or whether the nearly 2,000 Veterans who sought medical care
from VA ever received the health care they earned. She was also
subjected to harassment and intimidation, because she dared to
advocate for Veterans!
RELEVANCE TO THE COMMITTEE JUSTIFIES CLOSER REVIEW
The whistleblower statements I have provided to the
committee were also provided to the OIG and are more relevant
to this committee than many may realize. I urge additional
review of those whistleblower statements.
In addition to providing specific examples of whistleblower
harassment to the committee, I hope my testimony provides some
insight on three key issues VA management fails to address:
1. Reckless waste of federal funds and causing greater
backlog of enrollment applications for the sole purpose of
achieving performance goals.
2. Why there is resistance to implementing proper and
effective processing and reporting systems and the source of
that resistance, as addressed by Dr. Draper during her
testimony.
3. The need to remove ineffective managers and the urgent
need for the VA Management Accountability Act to be fully
implemented, as stated by Mr. Griffin.
WHY IT IS SO CRITICAL TO ACT QUICKLY:
More records and documents could be deleted or manipulated
to mask backlog and mismanagement, due to system integrity
issues.
VHA is losing talented, committed individuals who continue
to transfer to other agencies or are harassed to the point of
resignation. The volume of EEO complaints should be examined.
TV commercials are currently airing across the country
about VA career opportunities. VA will not attract much needed
health care professional to improve the quality of care, if it
is known and even stated by current employees that ``VA is not
a place you want to work!''
Most importantly: transitioning management, clearing
backlog, restructuring care, implementing new access programs
and building a quality organization will require the
intervention and strong oversight by Congress.
Thank you again for this opportunity. I welcome your
questions on the issues I've noted or any items I've submitted
to the committee.
Prepared Statement of Carolyn Lerner and Eric Bachman
``VA Whistleblowers: Exposing Inadequate Service Provided
to Veterans and Ensuring Appropriate Accountability''
July 8, 2014, 7:30 P.M.
Chairman Miller, Ranking Member Michaud, and Members of the
Committee:
Thank you for the opportunity to testify today about the
U.S. Office of Special Counsel (OSC) and our ongoing work with
whistleblowers at the Department of Veterans' Affairs (VA). I
am joined today by Deputy Special Counsel Eric Bachman, who is
supervising OSC's efforts to protect VA employees from
retaliation.
I. The Office of Special Counsel
OSC is an independent investigative and prosecutorial
federal agency that protects the merit system for over 2.1
million federal employees. We fulfill this good government role
with a staff of approximately 120 employees - and the smallest
budget of any federal law enforcement agency. Our specific
mission areas include enforcement of the Hatch Act, which keeps
the federal workplace free of improper partisan politics. OSC
also protects the civilian employment rights for returning
service members under the Uniformed Services Employment and
Reemployment Rights Act (USERRA). Over the last three years,
OSC has successfully implemented the USERRA demonstration
project this Committee established as part of the Veterans
Benefits Act of 2010. With limited resources, we have found
innovative ways to resolve USERRA claims and ensure that
service members are positioned to succeed upon their return to
the civilian federal workforce.
In addition to enforcing the Hatch Act and USERRA, OSC is
also uniquely positioned in the federal government to receive
whistleblower disclosures and protect whistleblowers from
retaliation. We do this in two distinct ways.
First, we provide a safe channel for federal employees to
disclose allegations of waste, fraud, abuse, illegality, and/or
threats to public health and safety. We receive approximately
1,200 whistleblower disclosures annually. If the disclosure
meets the high threshold required for triggering a government
investigation, we then refer it to the agency involved. After
an OSC referral, the agency is required to investigate and
submit a written report to OSC. OSC analyzes the agency's
report, receives comments from the whistleblower, and transmits
our findings and recommendations to the President and Congress.
OSC's work with whistleblowers often identifies trends or areas
of concern that require greater scrutiny and/or systemic
corrective action. Our testimony today will provide additional
detail on OSC's June 23, 2014 letter to the President and
Congress, which made recommendations in response to dozens of
whistleblower disclosures from VA employees across the country.
Second, OSC protects federal workers from ``prohibited
personnel practices,'' especially retaliation for
whistleblowing. OSC receives approximately 3,000 prohibited
personnel practice complaints annually, a number that has
increased 51% over the last five years. Most of these
complaints allege retaliation for whistleblowing or protected
activity, such as cooperating with an OSC or Inspector General
investigation. In these cases, OSC conducts the investigation
and determines if retaliation or another prohibited personnel
practice has occurred. After an investigation, OSC has the
ability to secure relief on behalf of the employee and to seek
disciplinary action against any employee who has engaged in
retaliation. Our testimony today will provide the Committee
with a summary of OSC's efforts to protect VA employees from
retaliation.
Finally, we will discuss a number of encouraging
commitments made recently by the VA, in response to our June 23
letter. If implemented, these commitments will go a long way
toward ensuring that whistleblowers feel free to step forward,
and that their information will be used to improve the quality
of care within the VA system.
II. Whistleblower Disclosures
As stated in our June 23, 2014 letter to the President,
which is attached to this testimony, ``The goal of any
effective whistleblower system is to encourage disclosures,
identify and examine problem areas, and find effective
solutions to correct and prevent identified problems from
recurring.'' Unfortunately, too often the VA has failed to use
the information provided by whistleblowers as an early warning
system. Instead, in many cases the VA has ignored or attempted
to minimize problems, allowing serious issues to fester and
grow.
Our June 23 letter raised specific concerns about ten cases
in which the VA admitted to serious deficiencies in patient
care, yet implausibly denied any impact on veterans' health. As
we stated in that communication, ``The VA, and particularly the
VA's Office of the Medical Inspector (OMI), has consistently
used a `harmless error' defense, where the Department
acknowledges problems but claims patient care is unaffected.''
This approach hides the severity of systemic and longstanding
problems, and has prevented the VA from taking the steps
necessary to improve quality of care for veterans.
To help illustrate the negative consequences of this
approach, we will highlight three cases that were addressed in
the June 23 letter.
1. Ft. Collins, CO
In response to a disclosure from a VA employee in Fort
Collins, CO, OSC received an OMI report confirming severe
scheduling and wait time problems at that facility. The report
confirmed multiple violations of VA policies, including the
following:
A shortage of providers caused the facility to
frequently cancel appointments for veterans. After
cancellations, providers did not conduct required follow-up,
resulting in situations where ``routine primary care needs were
not addressed.''
The facility ``blind scheduled'' veterans whose
appointments were canceled, meaning veterans were not consulted
when rescheduling the appointment. If a veteran subsequently
called to change the blind-scheduled appointment date,
schedulers were instructed to record the appointment as
canceled at the patient's request. This had the effect of
deleting the initial ``desired date'' for the appointment, so
records would no longer indicate that the initial appointment
was actually canceled by the facility, resulting in faulty wait
time data.
At the time of the OMI report, nearly 3,000 veterans
were unable to reschedule canceled appointments, and one nurse
practitioner alone had a total of 975 patients who were unable
to reschedule appointments.
Staff were instructed to alter wait times to make the
waiting periods look shorter. Schedulers were placed on a ``bad
boy'' list if their scheduled appointments were greater than 14
days from the recorded ``desired dates'' for veterans.
In addition, OSC is currently investigating reprisal
allegations by two schedulers who were reportedly removed from
their positions at Fort Collins and reassigned to Cheyenne, WY,
for not complying with the instructions to ``zero out'' wait
times. After these employees were replaced, the officially
recorded wait times for appointments drastically ``improved,''
even though the wait times were actually much longer than the
officially recorded data. The chart below, which was provided
in the report to OSC, clearly illustrates this phenomenon.
After the new schedulers complied with orders to ``zero out''
wait times, the officially recorded percentage of veterans who
were ``scheduled within 14 days of [their desired date]''
spiked to nearly 100%. There is no indication that actual wait
times decreased.
Despite the detailed findings in their report, OMI
concluded, ``Due to the lack of specific cases for evaluation,
OMI could not substantiate that the failure to properly train
staff resulted in a danger to public health and safety.'' This
conclusion is not only unsupportable on its own, it is also
inconsistent with reports by other VA components examining
similar patient-care issues. For example, the VA Office of
Inspector General recently confirmed that delays in access to
patient care for 1,700 veterans at the Phoenix Medical Center
``negatively impacted the quality of care at the facility.''
It is important to note that OSC first referred these
allegations to the VA in October 2013, providing the VA with an
opportunity to assess and begin to address the systemic
scheduling abuses occurring throughout the VA health system.
Yet, as discussed, the OMI report, which was issued in February
2014, failed to acknowledge the severity of the identified
problems, mischaracterized the concern as a ``failure to
properly train staff,'' and then did not consider how the
inability to reschedule appointments impacted the health and
safety of the 3,000 veterans who could not access care. There
is no indication that the VA took any action in response to the
deeply troubling facts outlined in the February 2014 report.
2. Brockton, MA
In a second case, a VA psychiatrist disclosed serious
concerns about patient neglect in a long-term mental health
care facility in Brockton, MA. The OMI report to OSC
substantiated allegations about severe threats to the health
and safety of veterans, including the following:
A veteran with a 100 percent service-connected psychiatric
condition was a resident of the facility from 2005 to 2013. During that
time, he had only one psychiatric note written in his medical chart, in
2012, when he was first examined by the whistleblower, more than seven
years after he was admitted. The note addressed treatment
recommendations.
A second veteran was admitted to the facility in 2003,
with significant and chronic mental health issues. Yet, his first
comprehensive psychiatric evaluation did not occur until 2011, more
than eight years after he was admitted, when he was assessed by the
whistleblower. No medication assessments or modifications occurred
until the 2011 consultation.
Despite these findings, OMI would not acknowledge that the
confirmed neglect of residents at the facility had any impact
on patient care. Given the lack of accountability demonstrated
in the first OMI report, OSC requested a follow-up report. The
second report did not depart from the VA's typical ``harmless
error'' approach, concluding: ``OMI feels that in some areas
[the veterans'] care could have been better but OMI does not
feel that their patient's rights were violated.'' Such
statements are a serious disservice to the veterans who
received inadequate patient care for years after being admitted
to VA facilities.
Moreover, in its initial referral letter to the VA, OSC
noted that the whistleblower ``believed these instances of
patient neglect are an indication of large systemic problems
present at the Brockton Campus.'' When the whistleblower was
interviewed by OMI, the whistleblower stated his belief that
these were not the only instances of neglect, and recommended
that OMI examine all the patients receiving mental health care
in the facility. However, when OMI was onsite, they limited the
investigation to the three specific individuals treated by the
whistleblower. OMI did not conduct a broader review.
Additionally, there is no indication that the VA took action in
response to the detailed factual findings in the OMI report,
including ordering a broader review of patient neglect at
Brockton or in other long-term mental health care facilities.
3. Montgomery, AL
Finally, in Montgomery, AL, an OMI report confirmed a
whistleblower's allegations that a pulmonologist copied prior
provider notes to represent current readings for veterans,
likely resulting in inaccurate recordings of patient health
information and in violation of VA rules. Rather than recording
current readings, the pulmonologist copied and pasted the
patients' earlier recordings from other physicians, including
the patients' chief complaint, physical examination findings,
vital signs, diagnoses, and plans of care. Despite confirming
this misconduct, OMI stated that it could not substantiate
whether this activity endangered patient health. The timeline
and specific facts indicate a broader lack of accountability
and inappropriate responses by the VAMC leadership in
Montgomery.
In late 2012, the whistleblower identified six instances in
which a staff pulmonologist copied and pasted information from
prior patient visits with other physicians. The whistleblower,
a surgeon, was first alerted to the possible misconduct by an
anesthesiologist during a veteran's preoperative evaluation
prior to an operation.
The whistleblower reported these concerns to Alabama VAMC
management in October 2012. In response to the whistleblower's
report, VAMC management monitored the pulmonologist's medical
record documentation practices. After confirming evidence of
copying and pasting in medical records, the pulmonologist was
placed on a 90-day ``Focused Professional Practice Evaluation''
(FPPE), or a review of the physician's performance at the VA.
Despite additional evidence of improper copying and pasting of
medical records during the 90-day FPPE, VAMC leadership ended
the FPPE, citing satisfactory performance.
Meanwhile, the whistleblower brought his concerns to OSC,
citing mismanagement by VAMC leadership in handling his
complaint, and a threat to veterans' health and safety caused
by the copied recordings.
OSC referred the allegations to the VA in April 2013. OMI
initiated an investigation in May 2013. Despite confirming the
underlying misconduct, OMI did not substantiate the
whistleblower's allegations of mismanagement by VAMC leadership
or threats to patient care. However, to its credit, OMI
recommended that the Montgomery VAMC review all consults
performed by the pulmonologist in 2011 and 2012, and not just
the six known to the whistleblower.
Far worse than previously believed, the review determined
that the pulmonologist engaged in copying and pasting activity
in 1,241 separate patient records.
Despite confirming this widespread abuse, Montgomery VAMC
leadership did not change its approach with the pulmonologist,
who was again placed on an FPPE. Montgomery VAMC leadership
also proposed a reprimand, the lowest level of available
discipline.
OSC requested, and has not yet received, information from
the VA to determine if the 1,241 instances of copying and
pasting resulted in any adverse patient outcomes. Despite the
lack of confirmation on this critical issue, Central Alabama VA
Director James Talton publicly stated that the pulmonologist is
still with the VA because there was no indication that any
patient was endangered, adding that the physician's records are
checked periodically to make sure no copying is occurring. As
VA headquarters completes its review of the patient records, we
encourage the VA to also review the specific actions taken by
Montgomery VAMC leadership in response to the confirmed
misconduct.
Beyond these specific cases, OSC continues to receive a
significant number of whistleblower disclosures from employees
at VA facilities throughout the country. We currently have over
60 pending cases, all of which allege threats to patient health
or safety. OSC has referred 28 of these cases to the VA for
investigation. This represents over a quarter of all cases
referred by OSC for investigation government-wide. Moving
forward, it is critical that VA leadership, including the
Office of the Secretary, review all whistleblower reports and
proposed corrective actions to ensure that outcomes such as
those described above are avoided.
III. Whistleblower Retaliation
1. Overview and scope of the problem
OSC has received scores of complaints from VA employees who
say they have been retaliated against for blowing the whistle
on improper patient scheduling, understaffing of medical
facilities, and other dangers to patient health and safety at
VA centers around the country. Based on the scope and breadth
of the complaints OSC has received, it is clear that the
workplace culture in many VA facilities is hostile to
whistleblowers and actively discourages them from coming
forward with what is often critical information.
OSC currently has 67 active investigations into retaliation
complaints from VA employees. These complaints arise in 28
states and 45 separate facilities. Approximately 30 of these 67
cases have passed the initial review stage in our intake
office, the Complaints Examining Unit, and are currently in our
Investigation and Prosecution Unit, where they are being
further investigated for corrective and disciplinary action.
The number of cases increases daily. By way of example, OSC has
received approximately 25 new whistleblower retaliation cases
from VA employees since June 1, 2014.
2. Actions OSC has taken to investigate and address these cases
In addition to the ongoing investigation of nearly 70
retaliation cases, OSC has taken a number of steps to address
and attempt to resolve these widespread complaints of
whistleblower reprisal.
OSC has reallocated staff and resources to
investigating VA whistleblower reprisal cases. These cases are
the office's highest priority and more than 30 attorneys and
investigators are currently assigned to these whistleblower
retaliation cases (in addition to all 14 employees in the
Disclosure Unit). We have also implemented a priority intake
process for VA cases.
OSC representatives have met personally with VA
officials in recent weeks, including Acting Secretary Gibson,
Chief of Staff Jose Riojas, White House Deputy Chief of Staff
Rob Nabors, attorneys from the Office of General Counsel, and
others.
OSC representatives recently traveled to Phoenix,
Arizona to meet with FBI and VA Inspector General agents who
are investigating the Phoenix VA cases, and also met with a
number of the Phoenix VA whistleblowers.
In addition to this testimony, OSC continues to brief
the House and Senate Committees on Veterans Affairs on an
ongoing basis, and provide information to individual Members of
Congress who have concerns about disclosures or retaliation
claims in their states or districts.
3. Examples of relief obtained
We cannot speak today about the details of ongoing reprisal
cases, because doing so would jeopardize the integrity of the
investigations and could improperly reveal the confidential
identity of certain whistleblowers. However, we would like to
mention a few cases where OSC has recently been able to obtain
relief for whistleblowers:
An employee in a VA facility in Florida raised concerns
about a number of issues, including poor patient care. The
highlights of the employee's complaint are as follows:
The employee had worked for the federal government for
over two decades, including over 15 years with the VA.
Throughout this lengthy service, the employee received
``outstanding'' and ``excellent'' job performance ratings and
had never been disciplined.
However, soon after the employee reported the poor
patient care and other issues to the VA OIG in 2013, the VA
removed certain of the employee's job duties and conducted a
retaliatory investigation of the employee.
Notably, in 2014, the VA also attempted to suspend the
employee but OSC was able to obtain a stay of the suspension
pending OSC's investigation of the matter.
Due to the retaliatory environment, the employee
decided to transfer to a VA facility in a different state in
order to help protect the employee's job status and retirement
benefits.
In a VA facility in New York, an employee complained to a
supervisor about a delay in reporting a possible crime in the
VA facility, as well as another serious patient care issue. The
key points of the employee's complaint are as follows:
Prior to blowing the whistle on this alleged
misconduct, the employee received high job performance ratings
as well as a bonus.
However, soon after reporting the misconduct to a
supervisor, this same supervisor informed the employee that an
investigation into the employee's job performance would be
conducted, which could result in the employee's termination.
The basis for the investigation and possible termination was
that the employee was ``not a good fit for the unit.''
The investigation was set to convene in late June
2014, but OSC was recently able to obtain a stay pending OSC's
investigation of the matter.
A VA employee in Hawaii blew the whistle after seeing an
elderly patient improperly restrained in a wheelchair, which
violated rules prohibiting the use of physical restraints
without a doctor's order.
Almost immediately after this disclosure, the employee
was suspended for two weeks and received a letter of
counseling.
OSC investigated the matter and determined the VA had
retaliated against the employee. As a result, OSC obtained
corrective action for the employee, including a rescission of
the suspension, full back pay, and an additional monetary
award. At OSC's request, the VA also agreed to suspend the
subject official who was responsible for the retaliation.
The severity of these cases underscores the need for
substantial, sustained cooperation between the VA and OSC as we
work to protect whistleblowers and encourage others to report
their concerns.
IV. A New and Better Approach from the VA
While this has been a difficult period for the VA, it is
important to note several encouraging signs from VA leadership
suggesting a new willingness to listen to whistleblower
concerns, act on them appropriately, and ensure that employees
are protected for speaking out.
In a June 13, 2014 statement to all VA employees,
Acting Secretary Gibson specifically noted, ``Relatively simple
issues that front-line staff may be aware of can grow into
significantly larger problems if left unresolved.'' We applaud
Acting Secretary Gibson for recognizing the importance of
whistleblower disclosures to improving the effectiveness and
quality of health care for our veterans and for his commitment
to identifying problems early in order to find comprehensive
solutions.
In response to OSC's June 23, 2014 letter to the
President and Congress, Acting Secretary Gibson directed a
comprehensive review of all aspects of the Office of Medical
Inspector's operation. And, in response to OSC's
recommendation, he stated his intent to designate an official
to assess the conclusions and the proposed corrective actions
in OSC reports. We look forward to learning about the results
of the OMI review and believe the designated official will help
to avoid the same problematic outcomes from prior OSC
whistleblower cases.
In their June 27, 2014 report to the President, Deputy
White House Chief of Staff Rob Nabors and Acting VA Secretary
Gibson confirmed that a review of VA responses to OSC
whistleblower cases is underway, recommended periodic meetings
between the Special Counsel and the VA Secretary, and
recommended completion of OSC's whistleblower certification
program as a necessary step to stop whistleblower retaliation.
We look forward to working with the VA on the certification and
training process.
At a July 2014 meeting at OSC, Acting Secretary Gibson
committed to resolving meritorious whistleblower retaliation
cases with OSC on an expedited basis. We are hopeful this will
avoid the need for lengthy investigations and help
whistleblowers who have suffered retaliation get back on their
feet quickly. In the very near future, we look forward to
working out the details of this expedited review process and
providing these whistleblowers with the relief and protection
they deserve. Doing so will show employees that the VA's stated
intolerance for retaliation is backed up by concrete actions.
We will keep this Committee fully-informed on significant
developments in this area.
V. Conclusion
In conclusion, we want to applaud the courageous VA
employees who are speaking out. These problems would not have
come to light without the information provided by
whistleblowers. Identifying problems is the first step toward
fixing them. We look forward to working closely with
whistleblowers, the Committee, and VA leadership in the coming
months to find solutions.
We would be pleased to answer any questions that the
Committee may have.
Prepared Statement of James Tuchschmidt
Good evening, Chairman Miller, Ranking Member Michaud, and
Members of the Committee. Thank you for the opportunity to
discuss whistleblower claims at the Department of Veterans
Affairs (VA). I am accompanied today by Dr. Edward Huycke,
Deputy Medical Inspector for the Veterans Health
Administration's (VHA) Office of the Medical Inspector.
Our core values at VA are Integrity, Commitment, Advocacy,
Respect, and Excellence--``I CARE.'' To get to excellence, we
rely on the integrity, experience, observations, insights, and
recommendations of VA's front-line staff, those who work
professionally and compassionately with Veterans each and every
day. We value that input and rely on it to help us better serve
Veterans. Clearly, we are deeply concerned and distressed about
the allegations that employees who sought to report
deficiencies were either ignored, or worse, intimidated into
silence. Let me be clear, VA will not tolerate an environment
where intimidation or suppression of reports occurs.
Leaders are responsible for establishing a workplace
atmosphere in which employees are comfortable highlighting and
sharing their successes--as well as identifying areas in which
we can improve. Whether that means notifying managers and
supervisors of isolated gaps or bringing attention to larger,
systemic issues that impede excellence, it is important that
all employees are encouraged to report deficiencies in care or
services we provide to Veterans. Relatively simple issues that
front-line staff may be aware of can grow into significantly
larger problems if left unresolved. In the most serious cases,
these problems can lead to and encourage improper and unethical
actions.
Across VA, we expect workplace environments that protect
the rights and enable full participation of all its employees.
To that end, we have implemented biennial Workplace Harassment
Prevention and the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (No FEAR Act)
training for all 330,000+ employees VA-Wide to ensure they are
aware and educated on their rights and responsibilities in
these areas. We also recognize that supervisors and managers
bear a heightened responsibility in maintaining a fair, safe,
and inclusive culture. Accordingly, five years ago VA
implemented additional mandatory Equal Employment Opportunity
(EEO), Diversity & Inclusion, and Conflict Management training
for all VA executives, managers, and supervisors VA-Wide. VA
monitors compliance with this requirement on an on-going basis.
We expect employees to bring to the attention of their
managers and supervisors shortcomings in the delivery of our
services to Veterans, any perceived violations of law, rule or
regulation, official wrongdoing, gross mismanagement, gross
waste, fraud, abuse of authority, or any substantial and
specific danger to public health or safety. Intimidation or
retaliation against whistleblowers--or any employee who raises
a hand to identify a legitimate problem, make a suggestion, or
report what may be a violation of law, policy, or our core
values--is absolutely unacceptable.
We all have a responsibility for enforcing appropriate
workplace behavior. Protecting employees from reprisal is a
moral obligation of VA leaders, a statutory obligation, and a
priority for this Department. We will take prompt action to
hold accountable those engaged in conduct identified as
reprisal for whistleblowing, and that action includes
appropriate disciplinary action. VA notifies all employees of
their Whistleblower Protection rights annually in the
Secretary's EEO, Diversity & Inclusion, No FEAR Act, and
Whistleblower Protection Policy Statement. \1\ We strongly
encourage all supervisors to review this policy statement with
their employees and ensure their full understanding. VA also
conducts annual site visits to select facilities in the field
to review their compliance with these policies and educate the
leadership in these critical areas. Recently, we have taken
steps to strengthen and expand the scope of these reviews and
technical assistance visits.
---------------------------------------------------------------------------
\1\ Available at http://www.diversity.va.gov/policy/statement.aspx.
---------------------------------------------------------------------------
Employees have several avenues of redress if they are
confronted with whistleblower reprisal. Employees may file a
complaint with the Office of Special Counsel (OSC) or appeal
directly to the Merit Systems Protection Board. Employees are
also always free to report whistleblower reprisal to a VA
management official, to VA's independent Office of Inspector
General (OIG), and to the Congress. VA emphasizes the
importance of employees bringing their concerns forward and
strongly encourages these actions. Each concern is taken
seriously and addressed to the best extent possible.
We would like to address incidents where the OSC asks the
Secretary of Veterans Affairs to conduct investigations into
whistleblower cases about the Department. These are
investigations conducted pursuant to 5 U.S.C. Sec. 1213 and
require VA to investigate and prepare a report of its
investigation into the whistleblower disclosures. We take these
investigations very seriously and they are undertaken
immediately, as required by law. First, VA leaders are reminded
of the mandate to protect whistleblowers from retaliation and
other prohibited personnel practices. VA initially interviews
the whistleblower, and follows up with him/her as often as
necessary. Then, an investigation is conducted, which includes
a site visit consisting of a document review, interview with
individuals identified by the whistleblower, and any other
appropriate individuals as determined by OMI. Reports generated
by these investigations are reviewed and approved by VA
leadership. VA facilities or program offices are required to
complete action plans to address each report recommendation. VA
tracks these action plans until completion. If appropriate
progress is not apparent, subsequent on-site visits may be
conducted. VHA will initiate administrative processes, when and
where appropriate, to pursue disciplinary actions.
There is a second type of OSC whistleblower reprisal
complaint that is investigated by OSC pursuant to 5 U.S.C.
Sec. 1214. In these cases, OSC works with VA to coordinate
document discovery and interview requests with VA employees. If
OSC finds there is sufficient evidence to support an allegation
of a prohibited personnel practice, VA works with OSC to
develop a meaningful way to resolve the complaint, normally
through a settlement agreement between the whistleblower and
VA. If a resolution is not reached, OSC may seek remedial
action by filing an appeal against the Department with the
Merit Systems Protection Board.
On June 23, 2014, OSC sent a letter regarding complaints
about VA care across the country. In response to the OSC
letter, Acting Secretary Gibson directed a comprehensive review
of all aspects of the Office of Medical Inspector's operation.
The VA Medical Inspector, John Pierce, M.D., has retired.
Acting Secretary Gibson has met with Special Counsel Carolyn
Lerner and a number of other staff-level meetings have also
occurred. VA intends to regularly meet with OSC officials. We
welcome OSC's insights, and we look forward to working closely
with its staff to improve our process and culture regarding
whistleblower complaints going forward.
VA is committed to making the changes necessary to ensure
that we, in conjunction with OSC and OIG, properly investigate
all allegations. We also will not tolerate retaliation against
any employee who raises a hand to identify a legitimate problem
or suggest a solution.
Conclusion
Mr. Chairman, we will continue to depend on the service of
VA employees and leaders who place the interests of Veterans
above and beyond self-interest; who serve Veterans with
dignity, compassion, and dedication; who live by VA's core
values of Integrity, Commitment, Advocacy, Respect, and
Excellence; and who have the moral courage to help us serve
Veterans better by helping make our policy and procedures
better. I assure you that VA takes these issues very seriously
and will do everything possible to ensure we cultivate an
environment that empowers our employees and demands
accountability in service to our Veterans. Mr. Chairman, this
concludes my testimony. My colleague and I are now prepared to
answer your questions.
MATERIALS SUBMITTED FOR THE RECORD
Letter to Hon. Miller From DVA, Inspector General
Dear Mr. Chairman:
I respectfully request that this letter be included in the
record for the July 8, 2014, hearing before the Committee
entitled, ``VA Whistleblowers: Exposing Inadequate Service
Provided to Veterans and Ensuring Appropriate Accountability.''
At that hearing information was provided by two witnesses that
was not accurate regarding the Office of Inspector General
(OIG).
a. Dr. Katherine Mitchell on Claimed Disclosures to the
OIG--Dr. Mitchell testified that she submitted a confidential
OIG complaint in September 2013 regarding life-threatening
conditions at the Phoenix VA Health Care System and that
approximately 10 days after the national VA received her report
she was placed on administrative leave for a month. She further
testified that she was disciplined for misconduct for providing
confidential information through the OIG channels. Her
testimony is inaccurate in regard to her interactions with the
OIG. The OIG first received information relating to complaints
by Dr. Mitchell in April 2014, and that information was
provided by the Senate Committee on Veterans' Affairs, not Dr.
Mitchell. We determined through inquiries with relevant
congressional and VA staff that Dr. Mitchell submitted her
complaint to the office of Senator John McCain in September
2013, and that Senator McClain's office sent that information
to the VA Congressional Liaison Service. VA's Congressional
Liaison Service assigned the correspondence to the Veterans
Health Administration (VHA) and an investigative team from the
Veterans Integrated Service Network 18 was tasked with
conducting an investigation into her allegations. The OIG was
not aware of and did not participate in any review or
investigation conducted by VHA. Dr. Mitchell's testimony
implies that the OIG breached her confidentiality, which is
simply untrue because she did not file a complaint with the OIG
in September 2013.
b. Dr. Mitchell on Providing Protected Information to the
OIG--Dr. Mitchell further states in her written testimony that
``Disclosure of pertinent patient care information in support
of whistle-blower activity through approved channels of VA
oversight is not a patient privacy violation'' and further
states ``Unfortunately, the Office of Inspector General has
declined thus far to put that opinion in writing.'' Her
statement regarding the OIG is not accurate because Dr.
Mitchell never asked the OIG to put such a statement in
writing. While Dr. Mitchell may be unaware, the OIG has
provided both written and verbal advice to complainants and
other employees that they can legally provide protected
information to the OIG. As recently as June 25, 2014, we
addressed this issue in our response to a June 20, 2014, letter
sent by the American Federation of Government Employees (AFGE)
to Mr. William Gunn, former VA General Counsel. Copies of this
response were sent to the Chairman and Ranking Members of the
House and Senate Committees on Veterans' Affairs. A copy of the
letter from AFGE and our response are attached.
c. Dr. Mitchell on Publication of Reports Involving VA
Senior Executives--Dr. Mitchell testified during the hearing
regarding OIG policy for releasing reports on members of VA's
Senior Executives either on our Web site or through our Release
of Information office. She also stated that neither she nor
Senator McCain had been able to obtain a copy of an
investigation. Similar testimony was provided by Dr. Christian
Head. I can assure you that the OIG follows all applicable laws
and rules regarding release of information in both forums.
Reports dealing with allegations of misconduct by VA employees
are posted on the OIG's public Web site. All reports are
identified on our Web site within 3 days of being issued as
required by the Inspector General Act. Unless we have received
a request under the Freedom of Information Act (FOIA), to
comply with applicable confidential legal requirements, only
the title of the report and other summary information are
posted on our Web site. However once the requisite number of
FOIA requests are received, a redacted report is posted on our
Web site.
To comply with FOIA and applicable case law, it is our
practice to redact the names of employees and other individuals
below the GS-15 level. When the issues in the report relate
directly to an employee's duties and responsibilities, applying
the analysis required under FOIA, it is usually determined that
the individual's right to privacy is outweighed by the public's
right to know for employees at or above the GS-15 level. In
those instances, the names are not redacted when the report is
posted on the OIG website. In the last 7 years, we have
published on our website 33 reports of administrative
investigations, of which 16 included substantiated allegations
against one or more members of the Senior Executive Service
whose names were fully disclosed in the reports. Dr. Mitchell's
testimony that neither she nor Senator McCain have been able to
obtain a copy of a report relating to her complaint and that
the OIG was stonewalling Senator McCain is also inaccurate
because, as noted above, her complaint was not forwarded to the
OIG. In addition, after listening to the testimony, we reviewed
our files and have no record of any request by Dr. Mitchell or
Senator McCain for a report or any other records relating to
Dr. Mitchell.
d. Dr. Mitchell on the OIG's Phoenix Office--Dr. Mitchell
also made comments during her testimony that the OIG staff
assigned to the Phoenix area had a history of not conducting
good investigations. The basis for her statement is not clear
since she has not been involved in any of the investigations
conducted by that office. The OIG's only presence in Phoenix is
an Office of Investigations Resident Agency office on the
campus of the medical center staffed with four Criminal
Investigators who are highly trained, competent, and objective.
If Dr. Mitchell would have contacted them, they would have
followed OIG procedures for reviewing a complaint and would
have protected her confidentiality. It is not uncommon for VA
employees in Phoenix to contact our onsite Criminal
Investigators either in-person or by telephone when they have
concerns. In the past 5 years, the work conducted by the
Phoenix OIG office has resulted in 192 arrests, 108
administrative actions, and $9.4 million in monetary
recoveries. These statistics refute the assertion that the OIG
office in Phoenix does not conduct good investigations.
e. Dr. Head on a Prior OIG Administrative Investigation--
Dr. Head made comments in his testimony relating to his
participation in an OIG administrative investigation that needs
to be clarified. Dr. Head stated that he received a subpoena
from the OIG to testify in a case, which is not correct. With
the exception of the Department of Defense OIG, no Federal OIG
has testimonial subpoena power. The subpoena authority granted
to Inspectors General under the Inspector General Act is
limited to records. When conducting an investigation, we notify
VA employees that we want to conduct an interview with the
expectation that they will appear for the interview as required
by VA regulation. Although the regulation provides that the
failure to cooperate with an official investigation may result
in a disciplinary action, the VA OIG has no authority to
propose or take such an action.
The investigative report cited by Dr. Head, which was
issued in March 2007, is identified on our website but as a
restricted report. Information in the report, including the
identity of the individuals who were the subjects of the
investigation, is protected from disclosure under the Privacy
Act. Without a FOIA request, we are prohibited by law from
releasing the information in the report as it relates to
individuals identified in the report. We have no record of a
FOIA request by Dr. Head or anyone else for this report. Had we
received a request, the report would have been reviewed for
release under FOIA. Also, Dr. Head testified that medical
center management did not follow the recommendations of the OIG
to take a specific administrative action. As we have advised
the Committee in the past, the OIG does not make
recommendations to VA in our reports to take a specific
administrative action because a concurrence by VA on the report
would deprive the employee of his or her right to due process.
The OIG takes seriously its mission to review allegations
of poor quality of care and goes to great lengths to protect
all sources of information who request confidentiality as
required by the Inspector General Act.
Thank you for your interest in the Department of Veterans
Affairs.
Sincerely,
Richard J. Griffin, Acting Inspector General
Letter to AFGE From DVA, Inspector General
Dear Mr. Borer:
I am responding on behalf of Mr. Richard J. Griffin, the
Acting Inspector General, to your June 13, 2014, letter to Mr.
William Gunn, addressing the disclosure of medical information
by whistleblowers to the Department of Veterans Affairs Office
of Inspector General (VA OIG) and the Office of Special
Counsel. Based on our review of the applicable laws, I believe
that the VA OIG may be the only entity with the authority to
investigate allegations relating to patient care to which VA
employees can legally provide medical and other protected
information and remain confidential.
Your letter primarily addresses issues relating to the
disclosure of medical information protected under the Health
Insurance Portability and Accountability Act (HIPAA). With
regard to HIPAA, the implementing regulations specifically
permit disclosures to ``a health oversight agency for oversight
activities authorized by law, including audits; civil,
administrative, or criminal investigations; inspections. . . .
'' 45 CFR Section 164.512 (d). Section 164.502 (G) addresses
disclosures by workforce members and business associates who
are whistleblowers. This section allows for disclosure if the
individual:
Believes in good faith that the covered entity has engaged
in conduct that is unlawful or otherwise violates professional
or clinical standards, or that the care, services, or
conditions provided by the covered entity has engaged in
conduct that is unlawful or otherwise violates professional or
clinical standards, or that the care, services, or conditions
provided by the covered entity potentially endangers one or
more patients, workers, or the public.
However, the disclosure must be made to a:
Health oversight agency or public health authority
authorized by law to investigate or otherwise oversee the
relevant conduct or conditions of the covered entity or to an
appropriate health care accreditation organization for the
purpose of reporting the allegation of failure to meet
professional standards or misconduct by the covered entity. . .
The VA OIG has been determined to be a health oversight
agency for the purposes of these regulatory provisions.
Therefore, any disclosure of HIPAA protected records would be
authorized.
However, in addition to HIPAA, there are other statutes
that prohibit the disclosure of VA medical records. These
statutes have associated criminal penalties for wrongful
disclosure. In addition to the Privacy Act, 5 U.S.C. Section
552, other relevant statutes that can be found in Title 38 of
the United States Code include: Section 5701, which protects
veterans claims records (including medical records), Section
5705, which protects medical quality assurance records, and
Section 7732, which protects records relating to the diagnosis
and treatment of drug and alcohol abuse, HIV, and sickle cell
anemia. As discussed below, VA employees and contractors can
provide these protected records or information obtained from
these records to the VA OIG, without violating any of these
statutes.
The Inspector General Act specifically states that the
Inspector General has access to all agency records. 5 U.S.C.
App. Section 6. Neither HIPAA nor any of the statutes cited
above prohibits the disclosure of medical records to the VA
OIG. Accordingly, an employee can legally provide any VA record
to the VA OIG.
The Whistleblower Protection Act (WPA) prohibits officials
from taking, threatening to take, or failing to take a
personnel action with respect to any employee or applicant
because of: ``Any disclosure to the Special Counsel or the
Inspector General of an agency. . . . '' 5 U.S.C. Section 2302
(b)(8)(B). This subsection of the WPA does not include any
restrictions on the nature of the information provided to the
Inspector General or the Special Counsel. In contrast, the
statute states that disclosures to other entities are only
protected if the ``disclosure is not specifically prohibited by
law and if such information is not specifically required by
Executive Order to be kept secret. . . . '' 5 U.S.C. Section
2302 (b)(8)(A). This section also makes it a prohibited
personnel practice to take, threaten to take, or fail to take
any personnel action against any employee for ``cooperating
with or disclosing information to the Inspector General of an
agency or the Special Counsel in accordance with the applicable
provisions of law.'' 5 U.S.C. Section 2302 (b)(8)(C). This last
provision not only protects employees who file a complaint with
the VA OIG, it also protects employees who cooperate with a VA
OIG investigation, audit, or other review and who provide
information to us during those reviews.
We understand that employees are reluctant to make
disclosures for fear of retaliation. The Inspector General Act
also mandates that the VA OIG maintain the confidentiality of
employees and others who file a complaint or otherwise bring
information to our attention. 5 U.S.C. App. Sections 7 and 8L.
When employees contact the VA OIG Hotline they are advised of
their right to remain confidential or be anonymous and, if they
choose to waive these rights, are asked to do so in writing.
As noted above, the VA OIG has the authority to investigate
allegations of wrongdoing in the VA. While, like the VA OIG,
the Office of Special Counsel's (OSC) Disclosure Unit has the
authority to receive allegations of violations of law, rule, or
regulation or gross mismanagement of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety, OSC has no authority to investigate these
claims. If after reviewing the information OSC determines that
an investigation is warranted, OSC is required to transmit the
information to the appropriate agency head for investigation. 5
U.S.C. Section 1213. Although OSC will not identify the
complainant if confidentiality is requested, this may impact
the agency's ability to conduct a thorough and comprehensive
investigation of the issues.
As you note in your letter, our reports may state that an
allegation cannot be substantiated. In some cases this is
because we obtained and reviewed additional information that
refutes an allegation. In other cases, this is because the
complainant has not provided sufficient information on which to
base an investigation. When an employee submits a complaint to
the VA OIG and requests confidentiality, we contact that
individual to obtain any additional information he or she may
have regarding their complaint, which may include records that
the employee may not have identified or submitted due to
concerns about the confidentiality of the records. This allows
the VA OIG to conduct a more thorough and complete
investigation without disclosing the identity of the source of
the information than may be possible if the complainant is
anonymous or the matter is referred to the VA OIG through a
third party and the identity of the complainant is unknown.
I hope this addresses your concerns about the legal
implications relating to the disclosure of protected
information to the VA OIG.
Sincerely,
MAUREEN REGAN, Counselor to the Inspector General
The Honorable Sloan Gibson, Acting Secretary, Department of
Veterans Affairs; The Honorable Carolyn Lerner, Office of
Special Counsel
The Honorable Bernie Sanders, U.S. Senate, Chair, Committee
on Veterans' Affairs; The Honorable Jeff Miller, Chair, House
Veterans' Affairs Committee
The Honorable Michael Michaud, Ranking Member, House
Veterans' Affairs Committee; The Honorable Richard Burr,
Ranking Member, U.S. Senate, Committee on Veterans' Affairs
The Honorable Rob Nabors, White House Deputy Chief of
Staff; The Honorable W. Neil Eggleston, White House Counsel
The Honorable Sylvia Mathews Burwell, Secretary of Health
and Human Services; The Honorable Eric H. Holder, Jr., Attorney
General
Mr. J. David Cox, Sr., National President AFGE, Ms. Alma
Lee, Council President, NVAC
Letter to President Obama From Hon. Carolyn Lerner
Dear Mr. President:
I am providing you with the U.S. Office of Special
Counsel's (OSC) findings on whistleblower disclosures from
employees at the Veterans Affairs Medical Center in Jackson,
Mississippi (Jackson VAMC). The Jackson VAMC cases are part of
a troubling pattern of responses by the Department of Veterans
Affairs (VA) to similar disclosures from whistleblowers at VA
medical centers across the country. The recent revelations from
Phoenix are the latest and most serious in the years-long
pattern of disclosures from VA whistleblowers and their
struggle to overcome a culture of non-responsiveness. Too
frequently, the VA has failed to use information from
whistleblowers to identify and address systemic concerns that
impact patient care.
As the VA re-evaluates patient care practices, I recommend
that the Department's new leadership also review its process
for responding to OSC whistleblower cases. In that regard, I am
encouraged by the recent statements from Acting Secretary Sloan
Gibson, who recognized the significant contributions
whistleblowers make to improving quality of care for veterans.
My specific concerns and recommendations are detailed below.
Jackson VAMC
In a letter dated September 17, 2013, I informed you about
numerous disclosures regarding patient care at the Jackson VAMC
made by Dr. Phyllis Hollenbeck, Dr. Charles Sherwood, and five
other whistleblowers at that facility. The VA substantiated
these disclosures, which included improper credentialing of
providers, inadequate review of radiology images, unlawful
prescriptions for narcotics, noncompliant pharmacy equipment
used to compound chemotherapy drugs, and unsterile medical
equipment. In addition, a persistent patient-care concern
involved chronic staffing shortages in the Primary Care Unit.
In an attempt to work around this issue, the facility developed
``ghost clinics.'' In these clinics, veterans were scheduled
for appointments in clinics with no assigned provider,
resulting in excessive wait times and veterans leaving the
facility without receiving treatment.
Despite confirming the problems in each of these (and
other) patient-care areas, the VA refused to acknowledge any
impact on the health and safety of veterans seeking care at the
Jackson VAMC. In my September 17, 2013 letter, I concluded:
``[T]he Department of Veterans Affairs (VA) has
consistently failed to take responsibility for identified
problems. Even in cases of substantiated misconduct, including
acknowledged violations of state and federal law, the VA
routinely suggests that the problems do not affect patient
care.''
A detailed analysis of Dr. Hollenbeck's and Dr. Sherwood's
disclosures regarding patient care at the Jackson VAMC is
enclosed with this letter. I have also enclosed a copy of the
agency reports and the whistleblowers' comments.
Ongoing Deficiencies in VA Responses to Whistleblower
Disclosures
OSC continues to receive a significant number of
whistleblower disclosures from employees at VA facilities
throughout the country. We currently have over 50 pending
cases, all of which allege threats to patient health or safety.
I have referred 29 of these cases to the VA for investigation.
This represents over a quarter of all cases referred by OSC for
investigation government-wide.
I remain concerned about the Department's willingness to
acknowledge and address the impact these problems may have on
the health and safety of veterans. The VA, and particularly the
VA's Office of the Medical Inspector (OMI), has consistently
used a ``harmless error'' defense, where the Department
acknowledges problems but claims patient care is unaffected.
This approach has prevented the VA from acknowledging the
severity of systemic problems and from taking the necessary
steps to provide quality care to veterans. As a result,
veterans' health and safety has been unnecessarily put at risk.
Two recent cases illustrate the negative consequences of this
approach.
First, in response to a disclosure from a VA employee in
Fort Collins, CO, OSC received an OMI report confirming severe
scheduling and wait time problems at that facility. The report
confirmed multiple violations of VA policies, including the
following:
A shortage of providers caused the facility to
frequently cancel appointments for veterans. After
cancellations, providers did not conduct required follow-up,
resulting in situations where ``routine primary care needs were
not addressed.''
The facility ``blind scheduled'' veterans whose
appointments were canceled, meaning veterans were not consulted
when rescheduling the appointment. If a veteran subsequently
called to change the blind-scheduled appointment date,
schedulers were instructed to record the appointment as
canceled at the patient's request. This had the effect of
deleting the initial ``desired date'' for the appointment, so
records would no longer indicate that the initial appointment
was actually canceled by the facility.
At the time of the OMI report, nearly 3,000 veterans
were unable to reschedule canceled appointments, and one nurse
practitioner alone had a total of 975 patients who were unable
to reschedule appointments.
Staff were instructed to alter wait times to make the
waiting periods look shorter.
Schedulers were placed on a ``bad boy'' list if their
scheduled appointments were greater than 14 days from the
recorded ``desired dates'' for veterans.
In addition, OSC is currently investigating reprisal
allegations by two schedulers who were reportedly removed from
their positions at Fort Collins and reassigned to Cheyenne, WY,
for not complying with the instructions to ``zero out'' wait
times. After these employees were replaced, the officially
recorded wait times for appointments drastically ``improved,''
even though the wait times were actually much longer than the
officially recorded data.
Despite these detailed findings, the OMI report concluded,
``Due to the lack of specific cases for evaluation, OMI could
not substantiate that the failure to properly train staff
resulted in a danger to public health and safety.'' This
conclusion is not only unsupportable on its own, but is also
inconsistent with reports by other VA components examining
similar patient-care issues. For example, the VA Office of
Inspector General recently confirmed that delays in access to
patient care for 1,700 veterans at the Phoenix Medical Center
``negatively impacted the quality of care at the facility.''
In a second case, a VA psychiatrist disclosed serious
concerns about patient neglect in a long-term mental health
care facility in Brockton, MA. The OMI report substantiated
allegations about severe threats to the health and safety of
veterans, including the following:
A veteran with a 100 percent service-connected psychiatric
condition was a resident of the facility from 2005 to 2013. In
that time, he had only one psychiatric note written in his
medical chart, in 2012, when he was first examined by the
whistleblower, more than seven years after he was admitted. The
note addressed treatment recommendations.
A second veteran was admitted to the facility in 2003, with
significant and chronic mental health issues. Yet, his first
comprehensive psychiatric evaluation did not occur until 2011,
more than eight years after he was admitted, when he was
assessed by the whistleblower. No medication assessments or
modifications occurred until the 2011 consultation.
Despite these findings, OMI failed to acknowledge that the
confirmed neglect of residents at the facility had any impact
on patient care. Given the lack of accountability demonstrated
in the first OMI report, OSC requested a follow-up report. The
second report did not depart from the VA's typical ``harmless
error'' approach, concluding: ``OMI feels that in some areas
[the veterans'] care could have been better but OMI does not
feel that their patient's rights were violated.'' Such
statements are a serious disservice to the veterans who
received inadequate patient care for years after being admitted
to VA facilities.
Unfortunately, these are not isolated examples. Rather,
these cases are part of a troubling pattern of deficient
patient care at VA facilities nationwide, and the continued
resistance by the VA, and OMI in most cases, to recognize and
address the impact on the health and safety of veterans. The
following additional examples illustrate this trend:
In Montgomery, AL, OMI confirmed a whistleblower's
allegations that a pulmonologist copied prior provider notes to
represent current readings in over 1,200 patient records,
likely resulting in inaccurate patient health information being
recorded. OMI stated that it could not substantiate whether
this activity endangered patient health.
In Grand Junction, CO, OMI substantiated a
whistleblower's concerns that the facility's drinking water had
elevated levels of Legionella bacteria, and standard
maintenance and cleaning procedures required to prevent
bacterial growth were not performed. After identifying no
``clinical consequences'' resulting from the unsafe conditions
for veterans, OMI determined there was no substantial and
specific danger to public health and safety.
In Ann Arbor, MI, a whistleblower alleged that
employees were practicing unsafe and unsanitary work practices
and that untrained employees were improperly handling surgical
instruments and supplies. As a result, OMI partially
substantiated the allegations and made 12 recommendations. Yet,
the whistleblower informed OSC that it was not clear whether
the implementation of the corrective actions resulted in better
or safer practices in the sterilization and processing
division. OMI failed to address the whistleblower's specific
continuing concerns in a supplemental report.
In Buffalo, NY, OMI substantiated a whistleblower's
allegation that health care professionals do not always comply
with VA sterilization standards for wearing personal protective
equipment, and that these workers occasionally failed to place
indicator strips in surgical trays and mislabeled sterile
instruments. OMI did not believe that the confirmed allegations
affected patient safety.
In Little Rock, AR, OMI substantiated a
whistleblower's allegations regarding patient care, including
one incident when suction equipment was unavailable when it was
needed to treat a veteran who later died. OMI's report found
that there was not enough evidence to sustain the allegation
that the lack of available equipment caused the patient's
death. After reviewing the actions of the medical staff prior
to the incident, OMI concluded that the medical care provided
to the patient met the standard of care.
In Harlingen, TX, the VA Deputy Under Secretary for
Health confirmed a whistleblower's allegations that the
facility did not comply with rules on the credentialing and
privileging of surgeons. The VA also found that the facility
was not paying fee-basis physicians in a timely manner,
resulting in some physicians refusing to care for VA patients.
The VA, however, found that there was no substantial and
specific danger to public health and safety resulting from
these violations.
In San Juan, PR, the VA's Office of Geriatrics and
Extended Care Operations substantiated a whistleblower's
allegations that nursing staff neglected elderly residents by
failing to assist with essential daily activities, such as
bathing, eating, and drinking. OSC sought clarification after
the VA's initial report denied that the confirmed conduct
constituted a substantial and specific danger to public health.
In response, the VA relented and revised the report to state
that the substantiated allegations posed significant and
serious health issues for the residents.
Next Steps
The goal of any effective whistleblower system is to
encourage disclosures, identify and examine problem areas, and
find effective solutions to correct and prevent identified
problems from recurring. Acting Secretary Gibson recognized as
much in a June 13, 2014, statement to all VA employees. He
specifically noted, ``Relatively simple issues that front-line
staff may be aware of can grow into significantly larger
problems if left unresolved.'' I applaud Acting Secretary
Gibson for recognizing the importance of whistleblower
disclosures to improving the effectiveness and quality of
health care for our veterans and for his commitment to
identifying problems early in order to find comprehensive
solutions.
Moving forward, I recommend that the VA designate a high-
level official to assess the conclusions and the proposed
corrective actions in OSC reports, including disciplinary
actions, and determine if the substantiated concerns indicate
broader or systemic problems requiring attention. My staff and
I look forward to working closely with VA leadership to ensure
that our veterans receive the quality health care services they
deserve.
As required by 5 U.S.C. Sec. 1213(e)(3), I have sent
copies of the agency reports and whistleblowers' comments to
the Chairmen and Ranking Members of the Senate and House
Committees on Veterans' Affairs. I have also filed copies of
the redacted reports and the whistleblowers' comments in OSC's
public file, which is available online at www.osc.gov.
Respectfully,
Carolyn N. Lerner, President
[all]