    [Senate Hearing 114-609]
    [From the U.S. Government Publishing Office]

         MILITARY CONSTRUCTION, VETERANS AFFAIRS, AND RELATED AGENCIES
                      APPROPRIATIONS FOR FISCAL YEAR 2016

                                  ----------

                            THURSDAY, JULY 30, 2015

                                           U.S. Senate,
               Subcommittee of the Committee on Appropriations,
                                                        Washington, DC.

        The subcommittee met at 10:38 a.m. in room SD-124, Dirksen
    Senate Office Building, Hon. Mark Kirk (chairman) of the
    subcommittee, presiding.
        Present: Senators Kirk, Collins, Boozman, Capito, Cassidy,
    Reed, Udall, and Baldwin.

     A REVIEW OF WHISTLEBLOWER CLAIMS AT THE DEPARTMENT OF VETERANS AFFAIRS

                     OPENING STATEMENT OF SENATOR MARK KIRK

        Senator Kirk. Well, thank you all for being here.
        The American people rightly expect our veterans to receive
    the best healthcare in America, but the system that is designed
    to provide it is failing. The reason why we know about these
    failures is because of the people we are going to hear from,
    like Dr. Katherine Mitchell.
        Dr. Mitchell is going to tell us about the failures of
    people who have been entrusted with the duty to give that care.
    She broke the story on the Department of Veterans Affairs (VA)
    scandal that ended up in the resignation of the secretary. We
    quickly realized that the Veterans Affairs corruption problem
    was not unique. Instead, the corruption was actually rampant.
        Germaine Carno, a social worker and union president, stood
    up to say that the corrupt bonus schemes that brought down the
    Phoenix VA was at the Hines VA in my home State.
        Dr. Lisa Nee also uncovered boxes and boxes of unread
    echocardiograms leading her to discover dozens of unnecessary
    surgeries on our veterans.
        The truth about corruption in VA hospitals was not easy to
    reveal for Katherine Mitchell, Germaine Carno, and Dr. Lisa
    Nee. They have been through hell to give mistreated veterans a
    voice because the system built to protect whistleblowers to
    fight corruption has failed them. The VA system is funded by
    this committee. We are here to ensure that those who wore the
    uniform get the care that they deserve.
        Linda Halliday, the new Acting Inspector General of the VA
    and Carolyn Lerner of the Office of Special Counsel are here
    today. Together, they will tell us why the system is failing
    our veterans.
        Let me turn it over to Senator Collins for an opener.

                     STATEMENT OF SENATOR SUSAN M. COLLINS

        Senator Collins. Thank you very much, Mr. Chairman.
        I would note that today is National Whistleblowers Day. So
    it is particularly appropriate that you have called this very
    important and timely hearing regarding the oversight performed
    by the VA's Office of Inspector General (OIG) and the
    responsibility that we have to protect the invaluable
    contributions of whistleblowers. It is deeply disturbing that
    the administration continues to drag its feet on filling the
    Inspector General position at the VA; vacant now for more than
    18 months despite the crisis that exists within that agency.
        Inspectors General are directly responsible for rooting out
    fraud, waste, and abuse, and effecting cultural change within
    an organization. The President's nomination of an Inspector
    General is long overdue. I urge the administration to act
    quickly to fill this vacancy and to appoint a well-qualified,
    independent Inspector General who can guarantee transparency,
    responsiveness, and accountability.
        As the former ranking member of the Senate Committee on
    Homeland Security and Governmental Affairs, I focus significant
    attention on strengthening whistleblower protections. In fact,
    my staff pointed out that when President Obama signed a bill
    that I wrote with former Senator Akaka, we had a signing
    ceremony on November 27, 2012, to sign the Whistleblower
    Protection Enhancement Act into law, and it is on the Special
    Counsel's homepage. That law recognizes the crucial role that
    whistleblowers play in helping to expose mismanagement and
    threats to public health and safety.
        As the chairman has indicated, whistleblower disclosures
    made by courageous individuals, such as Dr. Mitchell and Dr.
    Nee, have shed light on issues that directly affect the health
    and well-being of our Nation's veterans. Their disclosures have
    saved taxpayer dollars and, more important, human lives and
    they deserve our utmost respect and gratitude for coming
    forward. I know it isn't easy.
        The Department of Veterans Affairs faces many challenges
    that demand our attention including barriers to access to care
    and a backlog in disability claims. Another pressing challenge,
    however, is restoring the trust and confidence that has been
    impaired as a direct result of abusive and retaliatory
    practices which came to light after the Phoenix wait list
    scandal. We must ensure that VA employees who speak out will be
    protected. This is not only the law but also our moral
    obligation.
        Again, Mr. Chairman, thank you so much for holding this
    important hearing and for your leadership as a veteran,
    yourself. Thank you.
        Senator Udall. Mr. Chairman, could I do a short opening,
    please?
        Senator Kirk. Go ahead.

                         STATEMENT OF SENATOR TOM UDALL

        Senator Udall. Thank you, Mr. Chairman. And very
    appropriate for you to hold this hearing on Whistleblower's Day
    as Senator Collins has noted.
        What happened last summer at the VA was a betrayal of our
    veterans. My State of New Mexico is under the same regional
    office as the Phoenix office and the events over the past year
    eroded the trust they have in the VA. We made a solemn promise.
    Our vets put their lives on the line for our freedom and we
    must ensure that the recent scheduling scandal is never
    repeated.
        However, we must note that it was because of whistleblowers
    who blew the lid on the systemic problems at the VA that we
    were able to work together in Congress to address those issues.
    My office has worked along side VA staff and veterans in New
    Mexico to refer complaints to the Inspector General. But this
    process is eroded when whistleblowers are silenced. When that
    happens, Congress and veterans we serve are not served well.
        Because of whistleblowers, like Dr. Mitchell and Dr. Nee,
    Congress was able to take action. With the Veterans' Access
    Choice and Accountability Act, Congress sent a strong message
    that VA employees who manipulated scheduling or other data will
    be held accountable. New management in New Mexico and at the
    national level, along with new policies, have helped to put the
    VA back on course. But there is still more to do. So long as
    mismanagement and reprisals continue, we must continue to do
    more.
        We have a duty to ensure that our veterans get the best
    possible care when whistleblowers expose problems, that those
    problems are fixed. And I--it has been a pleasure to work with
    Secretary McDonald and meeting with him. And I have had the
    opportunity to work through some of these systemic problems and
    I believe that he has helped restore a culture of transparency
    and accountability. And I look forward to him coming before the
    committee again.
        Thank you, Mr. Chairman. I really appreciate it.
        Senator Kirk. Thank you very much.
        Let us hear from Dr. Katherine Mitchell.
        Let me briefly introduce you, Dr. Mitchell.
        You trained, originally, as a nurse in the ER. So you know
    ER procedures pretty well. And you are the person that broke
    the story on the Phoenix VA. Let me hear your testimony.
    STATEMENT OF DR. KATHERINE L. MITCHELL, M.D., MEDICAL
                DIRECTOR, IRAQ AND AFGHANISTAN POST-
                DEPLOYMENT CENTER, VETERANS AFFAIRS HEALTH
                CARE SYSTEM, PHOENIX, ARIZONA, DEPARTMENT
                OF VETERANS AFFAIRS
        Dr. Mitchell. First of all, I am Dr. Katherine Mitchell. I
    actually trained as a hospital ward nurse at the Phoenix VA. I
    want to thank the Committee members for inviting me to testify
    today. As a VA whistleblower, I have had exposure to the VA
    Inspector General process as outlined in my written testimony.
    My experiences highlight the important failures within the VA
    Inspector General system.
        Before I describe those experiences, I want to make your
    committee aware of two important items. First of all, the
    routine process for handling the VA Office of Inspector General
    (OIG) hotline complaints often enables the facilities to
    investigate themselves without any oversight. This process
    exposes the whistleblower to retaliation because the hotline
    complaint is sent back to the same people who may be
    retaliating against them or who ignore the problem in the first
    place. It is also self serving to facility administrators at
    all levels who have an invested interest in suppressing
    negative information from the facility.
        The second item is that OIG hotline reports damaging to the
    VA are consistently suppressed. In fact, it is not clear to me
    if any OIG hotline reports are released. Therefore, in my
    exhibits I have included an alarming 2014 hotline report on the
    St. Cloud VA that talks about fear or reprisal, substantiate
    inappropriate behavior by senior administrators, and discuss
    other really serious issues.
        This information was available by Freedom of Information
    Act (FOIA) request by a person who was involved in the
    investigation. However, the average person would not know the
    report existed because a list of hotline reports is not
    published anywhere to my knowledge.
        On a personal basis, the Inspector General failed to
    protect my confidentiality as a whistleblower and inadequately
    investigated life-threatening patient care issues. In 2013, I
    submitted a lengthy complaint through my Senator's office
    requesting that my name be kept confidential. The report dealt
    with potentially life-threatening issues including scheduling
    delays, faulty police equipment, and inadequate response to
    suicide trends by the facilities.
        As part of the complaint, I submitted limited patient
    information on suicide victims to support my allegations for
    any oversight investigation. Within days after my receipt of
    the complaint was acknowledged in Washington, the retaliation
    began. I was pulled out of clinic. I was put on administrative
    leave for a month. I was quizzed about the suicide names that I
    had turned into the Senator's office. Eventually, I was
    investigated for many months. I would receive a written
    counseling for violating patient privacy rights for providing
    those suicide names even though it is clearly not a violation
    to provide information to a Senator's office in support of an
    oversight investigation.
        The only way the Phoenix administration would have had
    names of the suicide victims is if the Inspector General leaked
    that information. More importantly in leaking my name, however,
    and the retaliation that ensued, is the fact that there was no
    real Inspector General investigation and no Inspector General
    report that I can determined. I absolutely was never
    interviewed by anyone regarding any of the issues that I
    brought up in my Inspector General complaint. The only report
    that my Senator's office could find was a short narrative that
    the VA--wherein the VA had concluded that all my allegations
    were false including the ones on the improper scheduling
    practices. This is ironic because Phoenix would become the
    epicenter for the scheduling scandal.
        The VA response was full of so many blatant lies it could
    have been contradicted by available facts and multiple
    individuals within the facility if the team had bothered to
    ask.
        The second incident of note involves the Inspector General
    gross failure to conduct a legitimate evaluation of evidence
    involving patient deaths. The report was whitewashed. The
    Inspector General investigators reviewed the cases of the
    Phoenix VA patients on the waitlist that was brought to the
    attention of the Nation by Dr. Sam Foote. The report stated
    that the Inspector General was ``unable to conclusively assert
    that the absence of timely quality care caused the deaths of
    these veterans.''
        However, under oath in a House Committee, the Acting
    Inspector General would eventually admit that delays
    ``contributed to deaths.'' That fact was conveniently left out
    of the originally Inspector General report and withheld from
    the Nation. On my review of cases, based on the information in
    the Inspector General report, I saw where the Inspector General
    failed miserably to see the obvious causal effects between
    delayed or improper care and veteran death.
        For example, one of the patients had a massive heart attack
    presumably when he suffered a lethal heart rhythm. He had been
    waiting months for the implantable device that treats the
    lethal heart rhythm immediately and would have prevented death.
    The Inspector General stated that the device ``might have
    forestalled death.''
        Of course it would have. It is the only medically
    acceptable treatment for that type of lethal heart rhythm and
    he would have only waited 24 to 48 hours in a private
    community.
        Lack of appropriate psychiatric admission for a mentally
    unstable patient with multiple suicide risk factors enabled his
    death from suicide within 24 hours from the point of last VA
    mental health contact. The Inspector General merely stated that
    inpatient psychiatric admission ``would have been a more
    appropriate management plan.''
        It was the only management plan. It has medical malpractice
    not to admit this patient who was unstable.
        In addition, in that same Inspector General report, the
    team states it was unable to substantiate bullying behavior at
    the Phoenix VA. I told them a bullying behavior. Frankly, they
    never asked me to describe anybody else that had bullying
    behavior.
        Frankly, the malignant culture is so pervasive at the
    Phoenix VA, in all levels of administration, that there are
    only two reasons why an Inspector General team would fail to
    substantiate bullying behavior. The first is that it
    deliberately chose not to look for the behaviors or, the
    second, it has such poor investigative training skills that it
    literally could not investigate its way out of a paper bag.
        There are many more details in my written testimony.
        Thank you very much for your time.

        [The statement follows:]
             Prepared Statement of Dr. Katherine L. Mitchell, M.D.
                                  introduction
        My name is Dr. Katherine Mitchell. I am an internist who is
    fellowship trained in geriatrics. I have over 17 years of experience
    within the Veterans Healthcare Administration (VHA). Since September
    2014 I have been assigned to the Veterans Integrated Service Network
    (VISN) 18 in Gilbert, Arizona as the Specialty Care Medicine lead.
    Prior to this time I was the medical director of the Phoenix VA Post-
    Deployment Clinic for 1.5 years. I was also a Phoenix VA Emergency
    Department (ED) physician for a total of 9.5 years including 6 years as
    the ED medical co-director/director. My background also includes 5
    years serving as a Phoenix VA hospital nurse.
        Throughout my career at the Phoenix VA Medical Center (VAMC) I
    heard anecdotal comments from staff that the VA Office of Inspector
    General (OIG) did not conduct objective investigations and rarely, if
    ever, accurately reported on the serious safety and patient care
    problems present within the Phoenix VAMC. I was told that
    confidentiality was never preserved because the IG investigators would
    leak the names of staff discretely reporting concerns to the VA OIG
    Hotline. Through the hospital grapevine, I had been informed OIG
    investigations were closely monitored by Phoenix VA administrators who
    would penalize staff for answering questions honestly. I was warned by
    trusted co-workers that initiating an OIG investigation was equivalent
    to risking job loss.
        Subsequent events over the last 2 years have convinced me that
    every anecdotal comment about the OIG was true. I would learn that the
    OIG does not maintain whistleblower confidentiality, allows VA
    facilities to investigate themselves, does not conduct thorough
    investigations, and white-washes its reports. Within the body of this
    written testimony I will describe the events that have led me to these
    conclusions.
       section i: oig failure to maintain my confidentiality or conduct
                  adequate investigation into my oig complaint
        After years of trying unsuccessfully to have Phoenix VA
    administrators adequately address the deep patient safety and staffing
    issues within the Phoenix VA ED, I was ethically compelled to go
    outside the usual chain of command to protect the welfare of Phoenix VA
    ED patients. I decided to submit a confidential OIG complaint through
    my Senator's office. I hoped such a congressional avenue could ensure
    my complaint would be investigated quickly and thoroughly.
        I could not file an anonymous OIG complaint because my assistance
    with the OIG investigation would be key to ensuring that the depth and
    breadth of the Phoenix ED safety issues would be uncovered. Because I
    knew from personal experience that the Phoenix VA administrators were
    extremely retaliatory, I hoped my name would not be revealed by the
    investigators. Filing a complaint would easily compel the Phoenix VA
    administration to make my working conditions so unbearable that
    resignation would be the only viable option. I did not want to lose the
    only career I've ever cared about--working for veterans within the VA
    system.
        When I decided to file, I knew I was risking my career if my name
    was released. Therefore, 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 to be the only target if my name
    was not kept in confidence by the OIG investigators. 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 my Senator's
    office, the seriousness of the VA situation was evident to even those
    staff who had no healthcare background. I was informed by the Senator's
    office that the most serious safety issues listed in my complaint would
    be forwarded with a request for an expedited OIG investigation 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, improper
    distribution of complex patients, inadequate/malfunctioning police
    equipment including radio system, and pending waste of VA funds because
    of gross inadequacies of the blueprints for the proposed Phoenix VA ED
    construction project.
        I supplemented my complaint with a document outlining inadequate
    response by the facility to increasing number of veteran suicides. I
    included the first name and last initial of some veterans who committed
    suicide in order to substantiate my allegations. Those names had been
    obtained in the process of a work-related project on suicides that I
    was conducting and of which Phoenix VA medicine chain of command was
    aware. Those names would only be identifiable to the investigators if
    they pulled a list of suicide victims during the timeframe named in the
    document. Release of patient information to a Congressman within the
    context of arranging an OIG oversight investigation on those patient
    cases is not a violation of the Health Insurance Portability and
    Accountability Act (HIPAA).
        I was informed by the Senator's office that a truncated version of
    my complaint would be forwarded to the OIG including my supplemental
    documents. The letter acknowledging VA receipt of my complaint was
    time/date stamped September 12, 2013. Shortly thereafter I was hauled
    into my supervisor's office. I was informed I was being placed
    immediately on administrative leave for undisclosed alleged misconduct.
        After being on administrative leave at home for approximately a
    month, I was allowed to return to work. Upon my return, management
    informed me that I was being investigated for accessing the charts of
    the suicide victims and violating an unspecified privacy policy. While
    my supervisor didn't state I was being punished for reporting
    information to my Senator's office, the only way that information could
    have come to the attention of Phoenix VA management was if the OIG had
    leaked my name to the Phoenix VA administration.
        I would eventually receive a written counseling allegedly for
    working outside the scope of my duties as well as purportedly violating
    a patient privacy policy which the Phoenix VA Human Resource Service
    declined to specify.
        I waited for the OIG report into my allegations but none came. I
    saw no changes implemented as the result of my OIG complaint. In
    February 2014 my Senator's office was able to verify the OIG had been
    involved in an investigation of my complaint. However, the extent of
    OIG involvement could not be determined.
        I have never seen the official OIG report on my 2013 complaint and
    believe one does not exist. My Senator's office made attempts to locate
    the report for me without success. The only follow-up on the
    investigation the office could locate was contained in a short email
    containing a portion of the VHA response to my complaint. (Exhibit A)
    The email indicates that the ``results of the preliminary fact finding
    investigations, as well as subsequent investigation and actions'' did
    not substantiate the concerns I reported through my Senator's office.
        That email did not give answers to the troubling concerns I had
    raised in that truncated OIG complaint. In regards to the suicide
    trends and inadequate facility response to those trends, it merely
    stated ``root cause analyses were conducted'' by the facility during
    the timeframe in question. It also stated there were plans to staff the
    suicide team in 2014.
        The email failed to address the issues I knew to be true through my
    work with the Suicide Prevention Team and other committees. It never
    mentioned that the facility was ignoring the trends in suicide which
    were associated with inadequate pain management. It failed to highlight
    the fact that the Suicide Prevention Team was grossly understaffed and
    near-buckling under the weight of the required case management. It did
    not reveal that Phoenix VA administration had already informed the
    Suicide Prevention Team that one staff member would be moved into an
    unrelated area because of budget limitations/staffing shortages in the
    ambulatory care clinics. (This planned reduction in Suicide Prevention
    Team members was to be done even though the head of the team stated
    they would not be able to adequately manage high risk suicidal patients
    if the team was reduced.) The email neglected to note that the Suicide
    Prevention Team had no ancillary support so the team was stretched
    extremely thin trying to juggle administrative issues, manage cases,
    and handle the calls sent to the team from the VA Suicide Crisis Line.
    (PLEASE NOTE: Only after the Phoenix VA scandal erupted would the
    Phoenix senior leadership scrap plans to transfer a social worker off
    the team and instead actually hire desperately needed staff members.)
        That email response also stated the Phoenix VA Healthcare System
    leadership ``confirmed the Electronic Wait List is being used where
    indicated.'' No mention was made of my complaints regarding wait list
    manipulation and failure to adequately schedule veterans according to
    priority category. It would take until 2014 before the true depth of
    the Phoenix wait list manipulation would be exposed. (Eventually the
    wait list manipulation and associated patient deaths would lead to the
    OIG to reluctantly admit in a House Committee hearing that the wait
    lists delays contributed to veteran death.)
        That email response also stated there were ``no findings related to
    equipment'' deficiencies in the police department. At that time, I knew
    with complete certainty that five police bullet proof vests were
    expired. I also knew the outdated VA police radio system had many dead
    zones within the building including within the highest risk areas for
    violence--the Emergency Department and the outpatient mental health
    clinic. Those dead zones meant officers would have to use a landline to
    request police back-up. In addition, the officers' radios had so much
    static at baseline that it was extremely hard for them to communicate
    in areas where they could get reception. (PLEASE NOTE: Although it was
    an extremely slow process, the officer police radio system has since
    been updated to correct these deficiencies and the vests have been
    replaced.)
        Although the exact extent of the OIG investigation could not be
    determined, it was clear to me that the OIG investigation was grossly
    inadequate. If the investigator(s) would have scratched more than just
    the surface, deep issues would have been uncovered. The OIG would have
    had the opportunity to uncover the wait list manipulation in September
    2013 and prevent the significant morbidity and mortality occurring when
    veterans were left to languish on unauthorized wait lists. The OIG
    could have intervened earlier to improve needed services for veterans
    who were at high risk for suicide. The OIG could have also uncovered
    gaps in facility security related to inadequate police equipment.
              section ii: four examples of oig report deficiencies
    Example #1:  OIG Report: Review of Alleged Patient Deaths, Patient Wait
            Times, and Scheduling Practices at the Phoenix VA Health Care
            System--
            8/26/2014
    Issues: a.  When evaluating patient deaths on the wait list, the OIG
            failed to use sound medical judgement in determining if there
            was an association between delayed patient care and patient
            death. The report was phrased so that it appeared there was no
            association between patient deaths and waiting on the
            ``secret'' wait list. The acting Inspector General would later
            admit under oath that those patient care delays contributed to
            patient deaths.
           b.  The OIG failed to adequately investigate the presence of
            mid-upper level management bullying and harassment within the
            Phoenix VA Medical Center.
        As per my September 2014 written and oral testimony to the House
    Committee on Veterans Affairs, there were significant deficiencies in
    medical judgement of OIG investigators. (Exhibit D) In my opinion,
    based only on the information provided in its 8/26/2014 report, the OIG
    failed to recognize obvious associations between delays in care and
    patient deaths and/or loss of quality of life before death.
        In its final report summary the OIG wrote ``We were unable to
    assert that the absence of timely quality care caused the deaths of
    these veterans''. However, in that September 2014 congressional
    hearing, eventually the OIG acting Inspector General reluctantly
    admitted that the patient care delays were contributing factors in
    several patient deaths. Failure to provide this information in the 8/
    26/14 OIG report effectively obscured the tremendous negative impact
    that the Phoenix ``secret'' wait list had on the lives of the veterans
    who died before they could get an appointment.
        Specifically, as described in my previous testimony last year,
    there were 4 cases in which a causal relationship was clearly evident
    between delayed and/or improper care & veteran death, excluding
    veterans for which cause of death was not listed. Those cases are
    described as follows:

      --1. Case 29

             This patient had a severe cardiomyopathy which is a disease of
    the heart muscle that progressively impairs the heart's ability to pump
    blood and to maintain a normal heart rhythm.

             A patient with severe cardiomyopathy is at high risk for
    having his heart suddenly stop beating without any warning as the
    results of a life-threatening heart rhythm known as ventricular
    fibrillation (``v-fib''). The treatment to avoid sudden death from v-
    fib/cardiomyopathy is permanently inserting a medical device known as
    an ICD ``implantable cardiac defibrillator''. Immediate defibrillation
    (giving the heart an electrical shock) has the best chance to restart
    the heart and prevent death or complications from prolonged v-fib such
    as brain damage or permanent heart muscle damage.

             Per community medical standards, an ICD should be implanted
    quickly in patients diagnosed with severe cardiomyopathy.
    Unfortunately, this veteran waited at least 4+ months after the
    original cardiac consultation without having ICD placement scheduled.
    (Exact wait time could not be determined because OIG did not give dates
    in its report.)

             Delayed scheduling of an ICD implant allowed the veteran to
    have an episode of prolonged v-fib which resulted in severe damage to
    the brain/body from which the veteran could not recover. Life support
    was withdrawn 3 days after he collapsed and was found to be in v-fib.

             Although OIG concluded ``ICD placement might have forestalled
    that death'', the investigators didn't draw any direct connection
    between delayed access to specialty care procedure and the veteran's
    death.

             My Conclusion: The veteran died from complications of
    prolonged v-fib because he didn't have access to appropriate/timely
    specialty care for ICD placement that would have immediately treated v-
    fib.

      --2. Case 36

             This veteran with multiple medical problems had both
    depression and a history of chronic pain that was not well controlled.
    When his pain significantly worsened, he made statements to various VA
    healthcare providers indicating his pain was severe that he was feeling
    like ``it might make him suicidal'' and that he ``could cry [because of
    pain]''. However, the veteran denied having any overt suicidal
    thoughts. The OIG did not give any indication that the PCP provider
    responded to this veteran's message(s) regarding the worsening pain
    control.

             When the veteran did present in person to the walk-in PCP
    clinic to get treatment for the pain, the veteran apparently was only
    referred to mental health to address the side effect of pain
    (depression) and did not get medical interventions to relieve the pain.
    The same day, the patient called the National Suicide Prevention
    Hotline to complain of ``severe and chronic pain unresponsive to
    treatment'' and complained that his PCP was not responding to his
    requests for contact. A consult was placed to the suicide prevention
    coordinator but the consult was closed, presumably because the veteran
    indicated the issue was related only to severe/unrelenting pain and
    denied having suicidal thoughts. Within one week the veteran committed
    suicide without ever having any medical intervention to control his
    unrelenting, severe pain.

             As per the OIG, this patient should have been identified as
    having a high risk for suicide because of underlying depression.
    However, even if this had been done, it is clear that the impetus for
    the suicidal thoughts was unremitting, severe pain which was never
    addressed by the PCP.

             The OIG did not draw a connection between the lack of PCP
    response/treatment of acutely worsening unrelenting pain and the
    veteran's subsequent suicide.

             My Conclusion: The veteran did not receive appropriate/timely
    care for his unrelenting, severe pain that served as the impetus for
    his suicidal thoughts and ultimate suicide.

      --3. Case 39

             This homeless veteran had a history of PTSD, 3 suicide
    attempts requiring hospitalization in the prior 2 years, and
    schizoaffective disorder which is a serious psychiatric diagnosis
    predisposing him to irrational thoughts, paranoia, and hallucinations.

             At the time of presentation to the ER, this patient was having
    intense emotional stressors as evidenced by the comment that he ``hates
    life and it is so stressful that he doesn't want to be in it''. He also
    reportedly felt suicidal because he could not afford to stay at his
    motel. While inability to pay for a motel is normally not a reason for
    suicidal thoughts, this veteran was predisposed to irrational thoughts
    based on his psychiatric diagnosis and could have easily felt
    overwhelmed at the thought of living on the streets again.

             Despite his psychiatric history and intense current social
    stressors, the veteran inexplicably was rated as having a low risk for
    suicide. Since the veteran was not appropriately admitted to an
    inpatient unit where his risk of completing suicide would have been
    almost zero, the veteran found himself again in an unstable
    environment. He committed suicide the next day.

             Recognizing the veteran's risk factors for suicide and acute
    psychiatric instability, the OIG wrote psychiatric admission `` . . .
    would have been a more appropriate management plan'' for this patient
    with a history of ``multiple suicide attempts, psychosis,
    homelessness''. However the OIG failed to draw a connection between
    inappropriate discharge from the ER and this unstable veteran's suicide
    the next day.

             My Conclusion: Lack of appropriate psychiatric admission for a
    patient with multiple risk factors for suicide enabled a death from
    suicide within 24 hours from point of last VA mental health/ER contact.

      --4. Case 40 (almost certainly a suicide based on context)

             This veteran had a history of suicidal thoughts, 7 former
    psychiatric hospitalizations for mental health instability, and a
    history of hurting himself. He had been admitted to the Phoenix VA
    inpatient psychiatry unit because of suicidal thoughts, thoughts of
    harming his brother, and self-reported difficulty controlling his rage.

             Although the veteran denied suicidal/homicidal thoughts on the
    day of discharge, his behavior/demeanor on the inpatient ward and at
    the family conference indicated the veteran was not yet stabilized
    psychiatrically on medication.

             The veteran was discharged home presumably by his insistence.
    Neither the family nor the VA inpatient psychiatry staff tried to block
    this discharge by requesting the Court grant permission to keep this
    patient involuntarily until his meds could be stabilized. Two days
    later, the veteran was found dead from a ``possible overdose on
    medication'' which, in this context, is consistent with suicide. Even
    if this was an accidental overdose, the veteran's psychiatric
    presentation indicated very poor impulse control that often predisposes
    an individual to make irrational decisions such as overuse of
    medication.

             The OIG wrote it ``would have been prudent'' to continue the
    inpatient hospitalization (either voluntary or involuntary) for this
    veteran. Failure to prudently continue inpatient psychiatric care
    resulted in discharge of a veteran to an unmonitored outpatient setting
    wherein the veteran died from a suspected overdose 2 days later. If the
    veteran would have remained on the inpatient psychiatric unit, his risk
    of accidental/intentional death would have been almost nonexistent.

             The OIG did not draw a connection between lack of ``prudent''
    continued psychiatric inpatient care and the death of this unstable
    veteran from suicide 2 days later.

             My Conclusion: Premature discharge from a psychiatric ward for
    a patient with multiple risk factors for suicide enabled a death from
    suicide within 48 hours from point of last VA mental health contact.

        In addition to the previously described cases there were 3 other
    cases in which a causal link was strongly suspected but could not be
    proven based on information given in the final OIG report. There were
    multiple instances of deficits in patient care that reasonably would
    have contributed to loss of quality of life and/or inadequate follow-
    up. The specifics of those details can be found in Exhibit D.
        In its 5/28/2014 interim report, the OIG stated ``Lastly, while
    conducting our work at the Phoenix HCS our on-site OIG staff and OIG
    Hotline receive numerous allegations daily of mismanagement,
    inappropriate hiring decisions, sexual harassment, and bullying
    behavior by mid- and senior-level managers at this facility. We are
    assessing the validity of these complaints and if true, the impact to
    the facility's senior leadership's ability to make effective
    improvements to patients' access to care.'' By making these statements,
    the OIG announced its intention on investigating these serious
    allegations further.
        Unfortunately, in its final report, the investigators inexplicably
    failed to substantiate bullying behavior within the Phoenix VA Medical
    Center. This was shocking to me. As an employee within that facility
    for a total of 16+ years, I can unequivocally assert that bullying
    behavior and other harassment by mid to upper level managers permeated
    Medicine, Nursing, Environmental Management Service, and the Health
    Administrative Service at that facility for many years. Not only had I
    encountered bullying behavior in 4 of those services, my co-workers
    from each of those areas had spoken to me of extensive harassment at
    the hands of management. Although I described some of the harassment to
    OIG investigators, I was never asked to elucidate nor asked if I could
    refer the investigators to other staff who could substantiate bullying/
    harassment by mid to upper level management. If I had been asked, I
    would have gladly referred the team to staff who have been willing to
    discuss such behaviors.
    Example #2:  OIG Interim Report--Review of VHA's Patient Wait Times,
            Scheduling Practices and Alleged Patient Deaths at the Phoenix
            Health Care System--5/28/2014
    Issue:  The phrasing/reporting in the Interim OIG report allowed the VA
            to effectively obscure the fact that the scheduling system at
            the Phoenix VA was lagging behind 477 days.
        The investigative team failed to include pertinent details on the
    NEAR list which could have disclosed exactly how long the waits had
    been for Phoenix VA veterans. Without explaining its statistical
    sampling method in its interim report the OIG investigators wrote ``. .
    . our review found these 226 veterans waited on average 115 days for
    their primary care appointment, and an estimated 84 percent waited more
    than 14 days. Most of the wait time discrepancies occurred because of
    delays between the veteran's requested appointment date and the date
    the appointment was created  . . .''
        A review of an actual redacted NEAR report from Phoenix VAMC
    reveals there was much more information about lengthy delays that would
    have been damaging to the VA if released. (Exhibit B) A significant
    number of patients waited greater than 115 days. There were 16 pages in
    the Phoenix downtown clinics NEAR list with 56 names per page through
    page 15. The wait times slowly trended downward from 477 days. A wait
    time of 115 days was not found until near the bottom of page 9.
    Therefore, although the number of days spent waiting for Phoenix VA
    downtown clinic appointments ranged 0-477 days, approximately 496
    veterans on the list waited more than ``average'' 115 days that were
    reported by the OIG team.
        In addition, the investigators should have known it was meaningless
    to even list an average number of days waiting because the ``average''
    was an artificial statistical value. According to the way in which the
    electronic wait list was improperly managed, only those waiting the
    longest would have the first opportunity for appointments. This was
    because patients were scheduled according to the order in which they
    were placed on the unofficial wait list. In truth, the entire
    scheduling system was backed up 477 days which reflected the longest
    number of days a veteran had been waiting for an appointment. As per
    Exhibit B, the veteran who had waited 115 days would not be scheduled
    until the 496 patients ahead of him were scheduled. Barring any
    deliberate intervention by staff, the veteran listed on page 16 would
    not be scheduled until all patients on the 15 pages ahead of him were
    scheduled. Instead of reporting the average wait time, the OIG team
    should have revealed the true number of days the scheduling system was
    backed-up--477 days.
        For objective/impartial disclosure of pertinent information
    including accurate wait times, the OIG should have presented data
    reflecting more details of the NEAR list. At a time when the country
    was clamoring for an accurate depiction of the problems at the Phoenix
    VA, there was no reason to withhold such information.
    Example #3:  OIG Hotline Case #2014-00459-HL-0044 regarding St. Cloud
            VA Health Care System
    Issue:  The OIG is still suppressing at least one Hotline Report that
            is critical of the VA.
        Last year I received a copy of the OIG Hotline Case #2014-00459-
    0044 that substantiated significant problems at the St. Cloud VA Health
    Care System including ``disrespectful manner by [the facility's] senior
    management'' and ``fear of reprisal'' among primary care employees.
    (Exhibit C) Multiple other serious issues were identified including
    patient panel sizes at 150 percent over VA recommended limits. That
    report was not found on the VA OIG website when I specifically searched
    for it last year.
        Recently, with the stated goal of transparency, the OIG released
    over 140 reports on its website. That OIG Hotline case does not appear
    when I searched the website again. It remains unclear to me if the
    absence of this damning hotline report is a unique situation or if
    additional/all OIG Hotline reports have not been released. I am
    concerned because such OIG Hotline reports are directly relevant to the
    oversight and monitoring of the VHA.
    Example #4:  OIG Report--Health Care Inspection Alleged Quality Control
            Issues in Supply Processing & Distribution Carl T. Hayden VA
            Medical Center Phoenix, Arizona--7/13/07
    Issue:  The OIG failed to consider/investigate the possibility that
            potentially contaminated surgical instruments may have placed
            veterans at risk for contracting HIV, Hepatitis B, or Hepatitis
            C during surgery.
        In its 2007 investigation, the OIG team reported ``We substantiated
    that SPD had ongoing problems including contaminated instruments, damp
    wrappers, and torn or discolored instrument wrappers, resulting in 20
    orthopedic surgery cancellations from August 11, 2006, through April
    30, 2007. Because OR nurses were vigilant in checking instrument
    wrappers during the SPD construction project, surgeries were cancelled
    when problems were identified. Staff never used contaminated
    instruments during any surgical procedure. Infection control data did
    not show any increase in surgical infections from August 2006 through
    April 2007.''
        However this statement did not reflect an adequate understanding of
    the problem scope nor potential implications of the deficiencies in SPD
    processing. In the body of its report, the OlG team noted repeated
    failures of SPD processing of surgical instruments over a prolonged
    period of time. SPD processing including sterilization removes both
    visibly soiled contaminants and microscopic contaminants. Although the
    nurses rejected visibly contaminated instruments, they could not
    monitor for microscopically contaminated surgical instruments.
    Therefore, it would have been impossible for the OIG team to state with
    any certainty that ``Staff never used contaminated instruments during
    any surgical procedure'' because only visibly soiled instruments can be
    detected by the human eye. Viruses such as HIV, Hepatitis B, and
    Hepatitis C could be transmitted via microscopically contaminated
    instruments.
        The investigators stated there was no spike in surgical infections.
    However, they likely were referring only to bacterial infections
    because those are only type of postoperative infections for which
    Infection Control staff routinely monitor. There is no evidence in the
    report that the OIG considered the possibility of viral infection
    transmission. During the timeframe of impaired SPD sterilization
    processes, every instrument processed was potentially inadequately
    sterilized after being used in the operating room. For this reason, the
    OIG should have recommended screening all post-operative surgical
    patients for HIV or hepatitis infections. Each one of those patients
    would have been at risk for receiving viral transmission if the
    instruments used were microscopically contaminated with debris from
    patients with HIV, Hepatitis B, or Hepatitis C.
      section iii: general oig hotline process exposes whistleblowers to
                                  retaliation
        Through my current position in VISN 18, I have become peripherally
    aware of how OIG Hotline complaints are routinely handled. The OIG
    screens Hotline complaints based on criteria which are unknown to me.
    The OIG forwards the complaint electronically to the VISN office
    supervising the pertinent facility as well as copies the VA Medical
    Review Service onto the email. The VISN office screens the complaint
    and sends the complaint either to the facility for self investigation,
    keeps the complaint for the VISN to investigate, or refers the
    complaint to another entity for investigation.
        If the facility is allowed to self-investigate, the facility senior
    management then arranges its own investigation and forwards the results
    of its investigation to the VISN office. VISN office staff review the
    complaint response in depth for completeness and accuracy. Inaccurate
    or incomplete responses are sent back to the facility for revision.
    When the final report is approved by the VISN, the office then sends
    the complaint back to the OIG and copies the VA Medical Review Service
    onto the email. The OIG then determines if further action is needed.
        To ensure accuracy and impartiality of each investigation and
    protect whistleblowers, individual VA facilities should not be allowed
    to investigate themselves or have access to whistleblower names.
    Because inadequacies in facility performance can affect annual reviews
    and bonuses, facility-level senior executives have financial and
    professional incentives to suppress any negative information that might
    be revealed in an investigation. When OIG hotline complaints are turned
    over to facility management, there is an opportunity for unscrupulous
    supervisors to retaliate against the VA employees who either reported
    the OIG hotline complaint or are involved in the investigation.

        Senator Kirk. Thank you, Dr. Mitchell.
        Dr. Nee.
    STATEMENT OF DR. LISA NEE, M.D., FORMER CARDIOLOGIST,
                EDWARD HINES, JR. VA HOSPITAL, CHICAGO,
                ILLINOIS
        Dr. Nee. Thank you, Mr. Chairman and members of the
    Committee, for this unique opportunity.
        Senator Kirk. If you could explain----
        Dr. Nee. I am sorry.
        Senator Kirk [continuing]. Those files that are sitting
    next to you. Those, as I understand, are hundreds of unread
    echocardiograms from patients that were through the cardiology
    department at Hines; as I understand it.
        Dr. Nee. These represent the amount that would have been
    hidden in banker's boxes. And this would be the size of the
    banker's boxes.
        Senator Kirk. How many banker's boxes were there of unread
    echocardiograms in your view?
        Dr. Nee. That was difficult to calculate because the
    technicians would bring them one by one and when I asked them
    where they were hidden they said they couldn't tell because
    they would get in large trouble and probably be fired. So my
    personal guesstimation, for me, would be somewhere between five
    to ten.
        Senator Kirk. Ten boxes of unread echocardiograms?
        Dr. Nee. Correct.
        Senator Kirk. That would be over a thousand people?
        Dr. Nee. Correct.
        Senator Kirk. Yeah.
        Dr. Nee. Thank you for this unique opportunity to address
    ongoing issues regarding retaliation against truth-tellers in
    the Veterans Affairs system. In preparation for this hearing, I
    have reviewed countless hours of both written and verbal
    testimony by those who have attempted to illuminate the
    pervasive dysfunction within the VA system and subsequent
    retaliation that all have endured.
        Despite significant attention from both Congress as well as
    the media, there has been no meaningful progress towards
    increasing transparency during investigations, implementing
    accountability for documented wrongdoing, or improvement in
    overall healthcare delivery. It is therefore my belief to make
    the most of your time and effort, I shall focus on the glaring
    incongruities between the malignant processes of the VA and the
    OIG and how most other healthcare organizations must behave
    under Federal law.
        My experience in the private sector as a nurse and a
    physician encompasses over 20 years of direct patient care at
    various institutions. I have never encountered such overt
    disinterest in quality patient care, deliberately organized
    retribution towards exceptional employees, and blatant
    disregard for universal guidelines until I encountered
    leadership at Hines VA in Illinois.
        Exposure to the corruption at Hines began almost
    immediately as the reality of a year-long backlog of unread
    heart ultrasounds were brought to my attention by the
    technicians. The studies, hundreds, possibly thousands of them,
    were stored in banker's boxes and I was expected to interpret
    them and not ask any questions. My shock turned to horror as I
    realized many of the veterans had already died from or suffered
    cardiac complications after the study was performed but prior
    to it being interpreted. After reporting this to many
    supervisors along the chain of command, the nauseating reality
    that leadership was not only aware but also complicit with the
    cover-up quickly sank in.
        A VA Inspector General report from April 2014 substantiated
    the significant backlog. However, no one was ever held
    accountable and no patients were ever informed. In the real
    world, this type of malpractice and fraud would result in
    serious repercussions for the physician as well as the
    healthcare agency, and monetary damages to the patient and/or
    family. But this is the Veterans' Affairs; a taxpayer-funded
    agency which is allowed to ignore the law and behave with
    brazen impunity.
        The next stop in the journey of astonishing comparisons
    will focus on the Veterans' Office of Inspector General; the
    oversight agency with a penchant for accelerating retaliation
    against the truth-teller while failing the veterans by either
    ignoring the initial complaint or engaging in a cover-up. I
    have been on the receiving end of retaliation from both the
    leadership at Hines as well as the Inspector General, including
    defamatory remarks made to the public regarding my integrity.
    But more troubling is a distinct pattern to almost every truth-
    teller experience. It begins with the Inspector General first
    destroying complainant anonymity then personally disparaging
    the reputation, and finally colluding with the agency to engage
    in various methods of calculated retaliation.
        As a contrast, the Inspector General at the U.S. Department
    of Health and Human Services works with truth-tellers and has
    partnered with the Department of Justice to arrest and convict
    individuals for healthcare waste, fraud, and abuse. To date, it
    has recovered $1.6 billion in taxpayer funds. To this point,
    the previously mentioned Hines Inspector General report from
    2014 substantiated my allegations that patients indeed received
    unnecessary coronary artery stents and coronary artery bypass
    surgery. However, once again, no one was ever held accountable
    and patients were never notified.
        The current Department of Justice Web site lists numerous
    cases where cardiologists in the private sector have been
    indicted for these exact same charges and sentenced to Federal
    prison and their employers fined as they were made aware of
    this malfeasance but failed to act. The press release states
    ``The Department of Justice will not tolerate those who abuse
    Federal healthcare programs and put the beneficiaries of these
    programs at risk.'' In order for anyone to justify this double
    standard one must conclude that the men and women who sacrifice
    their lives for our country do not carry the same value as
    patients in the private sector.
        Calculus is a marvelous discipline. You begin with the
    answer and you work backwards. This is the VA OIG's approach to
    dealing with allegations and patient malpractice. They need to
    get to a certain answer to protect the status quo and it
    matters little whether there is a cogent analysis to justify
    the outcome. Unfortunately, this is inherently corrosive and
    ultimately a deficient approach to maintaining the integrity of
    a healthcare delivery system. Please do not confuse this issue
    with claims of lack of resources or sophomoric accounting
    practices. It is operational breakdown, organized cover-up, and
    absence of accountability. Plain and simple.
        The time is now for veterans and taxpayers to demand
    transformative action and for Congress to respond in a
    bipartisan manner.
        Thank you.
        [The statement follows:]
                    Prepared Statement of Dr. Lisa Nee, M.D.
        Thank you Mr. Chairman, and members of the subcommittee, for this
    unique opportunity to address ongoing issues regarding retaliation
    against truth tellers in the Veterans Affairs system. In preparation
    for this hearing, I have reviewed countless hours of both written and
    verbal testimony by those who have attempted to illuminate the
    pervasive dysfunction within the VA system, and the subsequent
    retaliation they all have endured. Despite significant attention from
    both Congress as well as the media, there has been no meaningful
    progress towards increasing transparency during investigations,
    implementing accountability for documented wrongdoing, or improvement
    in overall healthcare delivery. It is therefore my belief that to make
    the most of your time and effort, I shall focus on the glaring
    incongruities between the malignant processes of the VA and how most
    other healthcare organizations behave under Federal law.
        My experience in the private sector as a nurse and a physician
    encompasses over 20 years of direct patient care at various
    institutions. I had never experienced such overt disinterest in quality
    patient care, deliberately organized retribution towards exceptional
    employees, and blatant disregard for universal guidelines, as well as
    our countries laws, until I encountered leadership at the Hines VA in
    Illinois. Exposure to the corruption at Hines began almost immediately
    as the reality of a year long backlog of unread cardiac ultrasounds was
    brought to my attention by the technicians at the start of my tenure.
    The studies, hundreds of them, were stored in banker's boxes, and I was
    expected to interpret them to address the problem, and yet not ask any
    questions. My shock turned to horror as I realized many of the veterans
    had suffered cardiac complications, or already died, after the study
    was performed, but prior to it being interpreted. After reporting this
    to many supervisors along the chain of command, the nauseating reality
    that leadership was not only aware, but also complicit with the cover-
    up, quickly sank in. Please note that there is an Inspector General
    report from April 2014 that substantiated this significant backlog,
    however, no one was ever held accountable, and no patients were ever
    informed. In the real world, this type of malpractice and fraud would
    result in serious repercussions for the physician as well as the
    healthcare agency, with monetary damages to the patient and/or family.
    But this is the VA--a taxpayer funded agency, which is allowed to
    ignore the law and behave with brazen impunity.
        The next stop on this journey of astonishing comparisons will focus
    on the VA Office of Inspector General--oversight agency which has a
    penchant for accelerating retaliation against the truth teller while
    failing the veterans by either ignoring the initial complaint, or
    engaging in a cover up. I have been on the receiving end of retaliation
    from both the leadership at Hines as well as the OIG, including
    defamatory remarks made to the public regarding my integrity. More
    troubling is a distinct pattern with almost every truth teller
    experience. It begins with the OIG first denying complainant anonymity,
    then personally disparaging the employees' reputation, and finally
    colluding with the agency to engage in various methods of calculated
    retaliation. These problems do not occur with every branch of the OIG.
    As a contrast, the U.S. Department of Health and Human Services OIG has
    worked with truth tellers and has partnered with the Department of
    Justice to arrest and convict individuals for healthcare waste, fraud,
    and abuse. To date it has recovered $1.6 billion dollars in taxpayer
    funds.
        To this point, let's return to the same Hines OIG report from 2014
    that had substantiated that patients had received unnecessary coronary
    procedures including coronary artery stents and coronary artery bypass
    surgery, however, no one was ever held accountable, and patients were
    never notified. The current DOJ website lists numerous cases where
    cardiologists in the private sector have been indicted for these exact
    same charges and sentenced to Federal prison, and their employers fined
    because they were made aware of this malfeasance, but failed to act.
    The press release states ``the DOJ will not tolerate those who abuse
    Federal healthcare programs and put the beneficiaries of these programs
    at risk''. In order for one to justify this double standard, one must
    conclude that the men and women who sacrificed their lives for our
    country do not carry the same value as patients in the private sector.
        Calculus is a marvelous discipline. You begin with an answer and
    work backwards. This is the VA OIG's approach in dealing with
    allegations of patient malpractice. They need to get to a certain
    answer to protect the status quo and their standing, and it matters
    little whether there is a cogent analysis to justify the outcome.
    Unfortunately, this is an inherently corrosive and ultimately defective
    approach to maintaining the integrity of a healthcare delivery system.
    Please do not confuse this issue with claims of a lack of resources, or
    sophomoric accounting practices. These are issues of management--
    operational breakdown, organized cover-up, and vindictive retribution
    to anyone who refuses to actively or passively contribute to the
    conspiracy--all illegal, and sadly, unpunished.

        It is impossible to halt systemic corruption, deception and
    impropriety in the absence of accountability. Transformative action
    will need to involve three components:

        1.  Responsibility.--Leadership, both clinical and administrative,
    must be held responsible should care be compromised.
        2.  Transparency.--Employees who identify problems must be allowed
    to illuminate the issues that directly cause, contribute to, or hide
    inadequate and harmful patient care.
        3.  Protection.--Oversight must be consistent and empowered to act
    on behalf of the employees when malpractice, malfeasance, retribution,
    and retaliation are encountered.

        These are far from novel concepts, and most certainly are codified
    in policy and procedure manuals. But without accountability such as
    that demanded of non-governmental agencies, the written words and
    statements have no value. They carry no weight. The heroes that we call
    our veterans, and the honorable people who strive on their behalf,
    deserve so much better treatment. The present system has empowered the
    wrong people, documented their criminal behavior, and failed to hold
    anyone responsible with the help of those who are tasked with the
    charge of protecting the victims and truth tellers. Worse yet, there is
    clear evidence that these oversight agencies have acted as confederates
    in the retaliation toward those who have risked their careers and their
    health acting on behalf of the veterans that we hold so dear. Unless
    substantive changes are demanded, nothing can change, and the victims
    will continue to suffer.
        There are tangible and proven solutions to most of the deficiencies
    within the VA system. However when one operates in a state of cognitive
    dissonance rather than reality, these solutions can never be realized.
    There are many overwhelming obstacles that we all must face at
    different times in our lives. How we process, react, adapt and flourish
    from these defines us as a person. The American public deserves the
    truth, and when they find out the truth, they will not allow our
    veterans to be mistreated and marginalized. And this will define us as
    a nation.

        Senator Kirk. Lisa, let me start off with a question for
    you. Tell me what behaviors in the cardiology department led
    you to blow the whistle at Hines.

                        HINES VAMC CARDIOLOGY DEPARTMENT

        Dr. Nee. Well, they're numerous but, you know, at the end
    of the day it is about patient care, and to work in the private
    sector and realize that this was just a completely different
    world where the outcome of the patient didn't matter and
    standard of care didn't matter, quality assurance didn't
    matter, operational process didn't matter. It is not how things
    work but it is allowed to happen within the VA system.
        Senator Kirk. I was struck by you comparing civilian
    medicine to VA medicine. In civilian medicine under Medicare,
    you have noted that the Department of Justice has indicted some
    cardiologists for the unnecessary procedures that you saw at
    Hines?
        Dr. Nee. Correct.
        Senator Kirk. You also told me in early interviews that you
    had a patient or two who had multiple stents. How many stents
    was evident in that patient?
        Dr. Nee. That patient, it was somewhere between 10 and 11
    which would be completely unacceptable.
        Senator Kirk. Eleven stents all in the same person.
        Dr. Nee. Correct.
        Senator Kirk. Is that immediate grounds for malpractice?
        Dr. Nee. Well, it really does depend on the case but if the
    patient keeps returning and there is no evidence to support
    that those lesions are significant, then no. There would be no
    reason to stent those lesions.
        Senator Kirk. Thank you.

                        PHOENIX VAMC SCHEDULING PRACTICE

        Senator Kirk. Dr. Mitchell, since you blew the whistle on
    the VA scandal, has anything changed at the Phoenix VA in your
    view?
        Dr. Mitchell. The scheduling practices have changed in that
    now patients are either being scheduled or they are being
    referred to Choice. The problem is that there is a delay in the
    community of getting Choice appointments scheduled. So they are
    still encountering delays from an administrative standpoint.
    From a culture standpoint, no. Retaliation is alive and well. I
    have many friends within the Phoenix VA that are scared to
    speak up. They call me with patient concerns and then I report
    them at the VISN level or I try to assist them in how they can
    address them without suffering retaliation.
        Senator Kirk. Thank you.

                           HEART STENTS AT HINES VAMC

        Dr. Nee, if someone is walking around with 11 stents in
    their heart, what is likely to happen?
        Dr. Nee. Well, I mean, again, that is difficult based on
    every patient. It would depend on why the stents were placed in
    the first place. Most of the time people have multiple
    arteries. Then that requires stents and, possibly, would need
    bypass surgery.
        But the goal is to make sure that the patient gets the
    proper treatment that they need, not just what the physician
    wants nor what looks good and to make sure that the patients
    are informed if they receive something that they shouldn't
    have. Because you can be on medications after those stents that
    would be counterproductive to other procedures or there are
    certainly sequelae suffered for unnecessary bypass surgeries.
        Senator Kirk. Have any doctors been held accountable for
    this practice at the Hines VA?
        Dr. Nee. Nobody was held accountable for the allegations
    that were substantiated except people were told not to do that
    again. So if that is someone's definition of accountability,
    then I suppose yes.
        Senator Kirk. None.

                             BONUSES AT HINES VAMC

        How many bonuses have been paid out at the Hines VA?
        Dr. Nee. That is interesting to me. When I worked there, I
    wasn't really aware of the bonus system. It wasn't until after
    I left and had filed an additional report through the OSC and
    obtained bonuses through a FOIA request that I came to find out
    that I was indeed the lowest paid in the department and every
    single person that worked in that department received multiple
    bonuses. I didn't receive anything.
        Senator Kirk. Because of your whistleblower status?
        Dr. Nee. Absolutely.
        Senator Kirk. Senator Udall.
        Senator Udall. Thank you very much, Chairman Kirk. And once
    again, I just want to tell you how much I appreciate you
    calling this hearing because I think what you are trying to do
    is get to the bottom of what really happened. And these two
    witnesses have exemplified really what the problem is. And one
    of the things I just want to say at the beginning, I mean the
    behavior you have described is just absolutely appalling to me.
    The lack of care in terms of really realizing that these
    patients are veterans and they need the best possible medical
    care. And yet, you came forward and you were treated badly
    because you were trying to expose the things that were out
    there. That, to me, this is very, very damaging testimony.

                          TRANSFORMATIVE ACTION NEEDS

        Dr. Nee, when you talk about transformative action, I think
    that is really what we do need. I don't have any doubt about
    it. I mean I think that we need to change the culture, we need
    to change the way of thinking about this. Have either of you
    visited with the secretary, Secretary McDonald, the new
    secretary that has come in? Has he reached out to you in any
    way?
        Dr. Mitchell. I have met briefly with him and we had
    probably a 20- or 30-minute talk. We talked mainly about the
    issues at the Phoenix VA and then, also, the fact that there is
    no standardized triage nursing protocols for the emergency
    department in the entire United States. I would not have a
    loved one go to an emergency room at the VA because it is the
    luck of the draw as far as the experience of the triage nurse
    recognizing that the symptoms were difficult. The VA is a
    national leader in training for physicians. There is no reason
    why the VA should not establish nursing triage protocols. They
    are very common in the community and that was one of the issues
    that we brought up, or I brought up.
        Senator Udall. Why do you think they don't, Dr. Mitchell?
    Why do you think they don't establish these protocols?
        Dr. Mitchell. I have absolutely no idea.
        There is very little about the VA in terms of quality
    patient care that I understand. The VA consistently--I reported
    hundreds of cases where patient care was either compromised or
    was at risk for being compromised. What that resulted in was my
    evaluations being dropped, me being screamed at by the former
    chief of staff, me being put on unlimited schedules without
    compensation; things that a reasonable human being, if you
    bring up a patient care issue, you would think that they would
    do everything possible to correct the situation. Acknowledge
    the problem and correct the situation. That is what normal
    human beings do who actually care about patients.
        I honestly do not understand the VA system. I want to stay
    within it to work for change because I think it has the
    potential to be the premiere healthcare leader in the United
    States. But at this point, it makes no sense and I am hoping
    that Congress can inspire some common sense within the VA
    system.
        Senator Udall. And when you talk about the things that you
    have stayed in touch with the VA where you were working as a
    physician and stayed in touch with the people, and you say
    things haven't changed?
        Dr. Mitchell. Not the culture. People are still afraid to
    speak up. I have friends within the emergency room that have
    reported to me strokes that have gone unnoticed by the triage
    nurse, that stroke protocols are not being fulfilled, that
    elderly patients with potential blood infections are still
    being left in the waiting room, that the ER is overwhelmed at
    times even with all the new physicians that they have hired.
        I reported that the new VA emergency room expansion is
    dangerous. The plans were dangerous when they were enacted and
    it is a waste of taxpayer money to build the facility as they
    are currently building it. I reported so many violations; so
    many things that needed to be improved urgently. And yet, the
    administration either locally or nationally is not addressing
    it.

                            TRIAGE NURSING PROTOCOLS

        I came forward mainly, not for the retaliation against me,
    but mainly to improve the patient care at the level of the
    emergency department. And again, in all this time there has
    been no effort to standardize triage nursing protocols. They
    have standardized triage protocols for telephone triage. I have
    heard they have them in the ambulatory care clinic although I
    haven't independently verified that. But again, it is strictly
    the luck of the draw when you walk into an emergency room, if
    that triage nurse has the expertise and training to recognize
    subtle symptoms that need to be reported to a physician
    immediately.
        Senator Udall. That is appalling. Appalling.
        Dr. Nee, did you have a chance to visit with Secretary
    McDonald at all?
        Dr. Nee. I did.
        Senator Udall. You did. Okay.
        Dr. Nee. I had a meeting with him here in Washington a
    while back. Mostly, to address the concern I had with the OIG
    report and the OIG retaliation against people who come forward.
    He stated he would look into it and get back to me, which he
    has not.
        Senator Udall. Now, did you stay in touch with--I know you
    are not still a part of the VA now and you are out in private
    practice?
        Dr. Nee. I am out in the private sector working, correct.
        Senator Udall. Yes. And have you stayed in touch, as Dr.
    Mitchell has, with folks and seen if there are any changes back
    to your----

                            OVERNIGHT INVESTIGATIONS

        Dr. Nee. I have. And it has actually gotten worse at Hines
    for the initial allegations I brought fourth with the OSC. The
    OSC wanted the OIG to look into these again. I was interviewed
    in Chicago in a two-hour interview by the OIG, but they have
    refused to provide me with the transcript. They came up with
    the same conclusion that they did the first time and
    subsequently the Office of Medical Inspector was brought in.
        Interestingly, the Office of Medical Inspector has
    preliminarily substantiated some allegations. Unfortunately,
    the people who came forward at Hines to be witnesses during the
    Office of Medical Inspection are now being retaliated against
    and saying that there is nothing that is going to happen at
    Hines, nothing has ever happened at Hines. And now, the people
    who came forward are fearing for their jobs.
        So that is a scary message to have three separate
    investigations by oversight agencies and nothing happened
    except, now, your job is threatened. I mean it really is a
    harrowing experience to go through and quite frightening if
    you're really want people to come forward to give veterans good
    care.
        Senator Udall. From both of your perspectives, if you were
    there and more able to be in a top management position, what
    would be the first things you would do to try to change the
    culture as you have described it?
        Dr. Nee. There is really only one thing that needs to
    change. You have to have accountability and deterrence. I mean
    human nature is that people are going to try to game the system
    or they may try to do things not to their best ability. And I
    am not saying physicians aren't good in private practice, they
    are inherently good people, but people work within a system
    because they know, if they don't, there is accountability for
    their actions.
        Dr. Mitchell. Yes. I would agree.
        Right now, the administrators that actively retaliate
    against individuals need to be disciplined. It needs to be made
    an example. Right now, that type of behavior is rewarded. In
    fact, the physician chain-of-command that retaliated against me
    is still in place even though physicians, five physicians, told
    him that the nurses were withholding reports from me,
    withholding EKGs, slowing down my orders. He absolutely refused
    to investigate. That is not an administrator who needs to be in
    a position of power making decisions, life and death, for
    patient care. Right now, behavior like that is totally--you are
    immune to punishment if you enact that type of behavior.
        What happens is the VA settles whistleblower retaliation
    claims, settles EEO discrimination claims, and there is
    absolutely nothing that happens to the person that actually
    enacted the discrimination or the retaliation. That has to stop
    and it has to stop immediately. Once you send that message
    clearly, then that behavior will stop.
        Senator Udall. Well, let me just conclude by saying you
    both chose, rather than the anonymous route, to put your names
    forward which is a much more difficult route, but I think you
    have, through that, been able to really bring out some
    horrifying stories that I think have had an impact. I mean, for
    example, the law that was passed in the last Congress. So I
    appreciate your courage in terms of what you have done and I
    just want to thank you very much.
        Dr. Mitchell. Thank you.

                       OIG ANONYMITY AND CONFIDENTIALITY

        I would like to state though that when I reported it, I
    reported it to keep my name confidential from the people
    because I feared for my job; I always heard that. I expected
    that they would keep my name confidential. They didn't. I am
    extremely concerned with the OIG's latest statement encouraging
    whistleblowers to come forward.
        Again, the OIG routine hotline process, even if you keep
    your name confidential, the report is sent down to the VISN
    level; the VISN sends it to the facility or a portion of those
    to facility; facility has full access to the whistleblower's
    name and can retaliate against them with impunity. Unless the
    OIG explains itself and can say how it is going to enforce
    confidentiality at all levels, they should retract their
    statement.
        Senator Udall. Thank you.
        Dr. Nee. I agree.
        When I made my first report to the OIG hotline, I had
    already known that I was leaving. But, within 24 hours, the
    chief-of-staff came and told me that if I went forward with any
    patient information that he would bring me up on patient
    privacy violations. So not only did I not have anonymity, I
    could not come forward with allegations regarding patient care
    as a physician. That is a pretty harrowing thought to think
    that that is how we are treating people who only want to give
    good patient care.
        Dr. Mitchell. Yes. There is the option to report
    anonymously; however, what happens is, if you report
    anonymously, there is no one the investigators can get the
    information from so you have to give your name if you really
    want a valid investigation.
        Unfortunately, in my case, the Inspector General chose not
    to interview me at all. In fact, no one from the facility has
    ever asked my any questions. The only thing that happened was
    the suicide project I was working on was stopped immediately.
        Senator Udall. Thank you.
        Thank you, Mr. Chairman.
        Senator Kirk. Thank you.
        Mrs. Collins.
        Senator Collins. Thank you very much, Mr. Chairman.
        I am truly stunned by your testimony today and what you
    have endured in order to do the right thing for the patients at
    the VA.
        The system is totally backwards. Those who were not
    providing adequate care are the ones who should have been
    disciplined and held accountable. And instead, both of you who
    came forward with your complaints, your concerns, your deep
    caring for the patients at the VA centers, were the ones who
    have paid the price. This is just completely unacceptable. And
    as I said, as someone who has worked hard to strengthen
    whistleblower protections, it is discouraging and appalling to
    hear the retaliation that occurred against you.
        Now, Dr. Mitchell, you have just talked about the
    importance of being able to file a confidential complaint, or
    concern is really the better word. In the testimony today of
    the Acting Inspector General, the Deputy Inspector General,
    there is a section saying that the hotline's submission process
    has been improved to ensure anonymity and confidentiality. Have
    you reviewed the changes that have been made and do you have
    any confidence that they would prevent what happened to you?

                             INVESTIGATION PROCESS

        Dr. Mitchell. They wrote a sentence on a piece of paper but
    they didn't explain how they were going to protect
    confidentiality. Currently, the process is when you file an OIG
    hotline complaint it goes into the Inspector General; the
    Inspector General sends the complaint to the VISN level, which
    is the Veteran's Integrated Service Network; it also copies the
    medical review services from the VA on to the e-mail. At the
    VISN level, they look at the complaint, they decide whether to
    investigate it themselves, whether to give it to a third party,
    or whether to send it to the facility.
        Simply because of the sheer volume of complaints that come
    in, there is a significant portion that are investigated by the
    facility. The facility gets to set up its own investigation and
    write its own report. I can say at my VISN, the quality people
    try really hard to verify the accuracy and the completeness of
    the report. They do an outstanding job. However, I can't verify
    that in all VISNs. What happens with confidentiality is, if
    that report is sent anywhere other than the Inspector General,
    there is a potential for the name to be leaked; even sending it
    to the Medical Review Services there is a potential for the
    name to be leaked.
        I would want to know specifically how the Inspector General
    is going to prevent that the names from being released. Many
    times it is important for the investigators to have the name of
    the person who filed the complaint because that person has a
    tremendous amount of evidence and that evidence is necessary to
    substantiate the allegations. Unless the Inspector General can
    state specifically how it is going to protect the
    confidentiality while still allowing the investigation to move
    forward, I wouldn't believe a single word they said.
        Dr. Nee. What I would like to add is I would then want to
    know, if your anonymity is disclosed, what type of
    repercussions is that supervisor going to have to deal with
    because of that? That is what should be written in the policy.
        Senator Collins. Very important questions.
        Did either of you go to the Office of Special Counsel for
    assistance?
        Dr. Mitchell. I filed a complaint through the Office of
    Special Counsel.
        Dr. Nee. I also did and I am still working with them. And I
    truly believe that that office works as hard as it can but that
    is not the office for patient care.
        Senator Collins. Right.
        Dr. Nee. And so, they get mired and dragged down into that
    and then somehow this unfair responsibility gets placed on
    them. That is not their responsibility.

                                  PATIENT CARE

        Senator Collins. Let me go to the issue of patient care. I
    find it astonishing, Dr. Mitchell, that after you brought forth
    this information that you were not even interviewed. And I also
    find it incredible that a facility would be asked to
    essentially investigate itself when there are physicians or
    other medical personnel there who are the subject of the
    concerns.
        Dr. Mitchell. Correct.
        The investigation process for the OIG hotline needs to be
    overhauled and needs to be changed significantly because there
    is such a vested interest in suppressing negative information.
        It is not just the Inspector General that needs to be
    overhauled. The Office of Medical Inspection has recently
    investigated my allegations of poor patient care. Those reports
    should be made public some time in the middle of August. They
    substantiated three of the four of my allegations. The fourth
    one was valid at the time I was there, but they did such an
    incredibly poor job of investigation that they missed the depth
    and the breadth of the problems.
        In their report, they actually tried to smear my
    credibility by stating that they couldn't find any evidence of
    retaliation against me. However, when I spoke--I had access to
    the un-redacted witness list. When I spoke to some of the
    witnesses who are my friends, and just asked them what type of
    questions did they ask you without telling me what they said,
    they said they never asked us about you. Those questions were
    not asked.
        And so, it is not to have a good, strong VA system with a
    good quality oversight, you need to have a strong Inspector
    General but you also need to have an honest OMI, Office of
    Medical Inspector. And I don't believe that exists today.
        Senator Collins. My time has expired. Just one very quick
    question and answer.
        Do you think the Inspector General has the expertise to do
    these kinds of investigations?
        Dr. Nee. I would say no.
        Dr. Mitchell. I would say absolutely not. Or, they have the
    expertise but they are having the same problem within their
    system in that they are not allowed to legitimately report
    their findings.
        Senator Collins. Thank you.
        Senator Kirk. Mr. Reed.
        Senator Reed. Thank you very much, Chairman and Commander
    Kirk, U.S. Navy.
        Doctors, thank you for the obvious concern you demonstrated
    for your patients by placing your own professional standing,
    your own name and, you know, out front. So I appreciate that
    very much. And I'm just, for context, you now or you have, I
    presume, worked in private hospital settings?
        Dr. Mitchell. I have never worked in a private hospital
    setting except during training for my 3 years of residency and
    1 year of fellowship.
        Senator Reed. Then let me direct this to Dr. Nee.
        Dr. Nee. Sure.

                    PRIVATE SECTOR PROCESSING OF COMPLAINTS

        Senator Reed. In terms of a private medical, these problems
    come up in terms of a doctor wanting to point out deficiency
    care. Do they have a much better system there?
        Dr. Nee. Well, I honestly, when this first came up at the
    Veterans' Affairs at Hines with the backlog, because I had been
    in the private sector, truly thought this is just an oversight
    and we just need to address this, read all the studies, and
    this will never happen again. There are operational processes
    in place in the private sector. There is quality assurance.
    There is a way to bring forth complaints from anyone. It
    doesn't have to be--it could be from lower level positions all
    the way to higher level positions because they are not
    necessarily looking to fix a blame on somebody, they are
    looking to fix the problem.
        Senator Reed. So there are models----
        Dr. Nee. Oh, absolutely.
        Senator Reed [continuing]. Numerous models that could be
    adopted fairly quickly, presumably by the Veterans'
    Administration, to have a much more effective system of
    processing complaints.
        Dr. Nee. Correct.
        Senator Reed. Again, not to fix the problem. Not
    necessarily to adjudication or punish anyone else just to fix
    the problem.
        Dr. Nee. Correct.
        Senator Reed. One other aspect of this issue is that in
    this might be a tendency to not address the problem because the
    resources aren't available to fix it?
        Dr. Nee. I would have to disagree with that.
        Senator Reed. No, I just asked that as a question. I don't
    ask that as a conclusion. Was that something you sense? And I
    am going to ask both of you to respond.
        Dr. Mitchell. My sense----
        Senator Reed. You know, I don't--I can't fix this so I
    don't want to--the problem doesn't exist. That kind of logic. I
    don't think it is correct, but does that logic and I'll--Dr.
    Mitchell and Dr. Nee, please?

                ARTIFICIAL PERFORMANCE EVALUATIONS AND MEASURES

        Dr. Mitchell. No, I think the issue was that rule number
    one is you do not let any negative information rise above your
    level. And truly, because your proficiency and your annual
    bonuses are based on whether or not you have problems or not,
    there is an ingrained tendency to suppress all negative
    information. And it is not just in this last year; it has been
    in the VA system for decades. There are many, many really
    dedicated employees who try to work around the system because
    they know, if they speak up, they'll be fired.
        Senator Reed. Dr. Nee, please?
        Dr. Nee. I agree. Even if there are people who want to work
    harder, you know, even if you didn't want to report something
    and just say, ``You know what? I'll pick up the rest of the
    work.''
        Senator Reed. Right.
        Dr. Nee. That is looked down upon and strongly discouraged.
    And then, your life is made very difficult.
        Senator Reed. So one of the disincentives is this whole
    competition scheme that says, you know there are no problems
    here rather than, as I recently asked as a question, I know
    there is a problem here, but since I can't fix it, I am going
    to make it go away. It is really that the former, the notion of
    I can't admit any problems on my watch.
        Dr. Nee. Correct.
        Dr. Mitchell. There is a problem with the way the
    physicians and other staff are evaluated. They are evaluated on
    performance measures and the performance measures are
    artificial. You can be an exceptional physician, do incredible
    patient care but, if you, like in the ER, if your waits are
    above six hours because we didn't have the resources, my
    evaluations were dropped because our waits were above six hours
    because we didn't have the resources. I wasn't necessarily
    evaluated on what a damned good physician I was.
        Senator Reed. So there is a resource connection in the
    sense that you are a very, very good physician but you don't
    have all of what you need to get the job done efficiently,
    therefore, you are downgraded.
        Dr. Nee. Yes.
        There is a system called Just Culture and that is where, if
    there is a problem identified, you look at the system issue not
    at the person issue. Many of the problems in the frontline are
    related to systems. Many of the problems in the middle and
    upper level management are related to people problems. There is
    truly administrative evil within the VA. They deliberately
    overlook issues of patient care, including life and death, in
    order to benefit themselves professionally.
        Senator Reed. Well again, the doctors, thank you for your
    commitment and for your care of your patients. I appreciate
    that very much.
        Senator Kirk. Mr. Boozman.
        Senator Cassidy. May I interrupt?
        I have to go upstairs to present a bill on Energy
    Committee.
        Senator Kirk. Go ahead.
        Senator Cassidy. No, I have to be in two minutes. I just
    want to acknowledge Shea Wilkes who is a whistleblower from the
    Overton VA in Shreveport and ask unanimous consent his written
    testimony be included in the record.
        Senator Kirk. So ordered.

        [The statement follows:]
                       Prepared Statement of Shea Wilkes
        In early 2013 I addressed issues concerning faulty hiring practices
    and manipulation of numbers related to performance measures and
    scheduling with the Acting Chief of Staff of Overton Brooks VAMC
    (OBVAMC). No action was taken. In June 2013 I reported faulty hiring
    practices and manipulation of numbers related to performance measures
    and scheduling to the Office of Inspector General for the VA (OIG). I
    did not receive a response from the OIG related to this claim.
        In April 2014 the story of the waitlist at the Phoenix VAMC
    surfaced in the media. I had heard of and seen wait-lists in Mental
    Health department of OBVAMC and I knew that waitlist were just one way
    that scheduling and numbers at the hospital were being manipulated. At
    this time I was no longer working in the Mental Health. I was being
    deliberately and systematically removed from the department for filing
    with OIG in June 2014. I ultimately requested removal from the
    department due to the manner in which I was being treated. Prior to
    requesting my removal from Mental Health Department, I discovered what
    I deemed to be Overtime and Comp Time fraud by the Operations Manager
    (Mental Health Leadership). I reported this to the OIG in January 2014.
        After watching the Phoenix VAMC story develop, I decided that I
    could not wait any longer for OIG to take action on my complaints. I
    felt that I had exhausted all internal options to report the
    wrongdoings, so I hesitantly decided to take my story to the media. I
    worked with a Shreveport Times writer during the month of May 2014.
        I was told that once the story hit the news that I would be
    contacted by TV and other media in our area. I believed that once the
    story was published that the list would disappear. This is when I
    secured a copy of the wait-list and informed the OIG of its existence.
        The Shreveport Times wrote a story on the issues at the OBVAMC at
    the end of May 2014. When the story hit the news, as I anticipated, the
    list was removed from a share drive and replaced with a different list.
        I contacted Senator Vitter's office in an effort to get OIG to
    OBVAMC to investigate the existence of the list. The day after Senator
    Vitter's office sent a letter to the VA OIG Director Richard Griffin
    requesting that the list be investigated, I received a call from a VA
    OIG Special Agent. The agent explained that he and another agent were
    there way to Shreveport from New Orleans and that they wanted to meet
    with me and obtain the list.
        I believed that the OIG was calling in response to the request from
    Senator Vitter. It appeared that after months of trying to get the VA
    OIG's attention that the existence of the wait-list was going to be
    investigated.
        A few hours after I received the call from the OIG Special Agents,
    I received another call from them telling me that they had arrived in
    Shreveport and wanted to meet with me. The OIG Special Agent asked me
    at is time if I wanted to meet them off station and provide them a copy
    of the wait-list. I explained that I did not feel comfortable taking
    the wait-list off hospital grounds and that one copy of the wait-list
    was on the computer's hard drive. The OIG Special Agents agreed to meet
    me in my office on the 10th floor.
        When the OIG Special Agents arrived at my office we sat down and I
    signed a release and we began discussing the issues. The OIG Special
    Agents took the copies of the wait-lists and took the hard drive from
    my computer. They left and told me that they were going to speak to
    other employees.
        I took the rest of the day off to settle my nerves. The next day
    the OIG Special Agents came back to speak with me. At this point I
    realized that their questions were related more towards how the wait-
    list was obtained and not about why the wait-list existed. I also
    realized that they were unaware of the request by Senator Vitter or of
    the recent news article.
        Later that evening I spoke to a Mental Health RN who told me that
    OIG Special Agents had explained to her that if she had provided me
    access to the list that she could be a accomplice to a crime.
        At this time I discussed the situation with my lawyer. My lawyer
    contacted the OIG Special Agents and asked them if I was under criminal
    investigation. The OIG Special Agents explained to my attorney that
    they were criminal investigators and that they were investigating the
    issue of how I obtained the list. My attorney at this time told the OIG
    Special Agents that all communication should go through him.
        Shortly thereafter the OIG Special Agents contacted my attorney and
    asked if they could speak to me. My attorney explained to the
    inspectors that he would let the investigators talk to me about
    everything except how I obtained the list.
        The OIG Special Agents met with my attorney at his office. They
    were accompanied by a polygraph tester. My attorney again reiterated to
    the OIG Special Agents that he would allow them to speak to me about
    anything except how I obtained the list. The agents said that they
    didn't need to talk to me about anything else.
        It was at this point that I became totally discouraged and had to
    shift focus into a mode of protecting myself instead of advocating for
    Veterans' care.
        Over the next several months I experienced the weight of an
    investigative agency of the Federal Government. The pressure from
    having the burden of a criminal investigation hanging over me was
    tremendous. I was also experiencing pressure from OBVAMC leadership and
    being called a liar. I became extremely frustrated that the OIG nor the
    VA leaders cared enough about the Veterans' care to do a complete
    investigation into reported wrongdoings. It was literally heartbreaking
    for me as an individual who only wanted to do two things in my life:
    (1) be a soldier (2) help Veterans. Despite my complaints I continued
    to witness poor care being provided to Veterans. I had put my career
    and livelihood on the line and all I gained by doing so was being
    purposely isolated by the VA and hung out to dry by the OIG.
        There is no doubt in my mind the OIG's sole purpose of coming to
    Shreveport was to intimidate myself and other potentially
    whistleblowers for coming forward. Their main purpose was intimidation
    and damage control. The investigation was shoddy at best in my eyes.
    The OIG showed no interest investigating the wrongdoing. Rather they
    interviewed select persons with the intention of intimidating them and
    others not to come forward with information about how and why the wait-
    lists existed. I had given the OIG Special Agents the names of numerous
    witnesses who could substantiate my claims of wrong doing. They did not
    interview them.
        As I languished for a year under investigation for obtaining a list
    that wasn't supposed to exist I began to contact other whistleblowers.
    My anger started to increase as it became apparent the OIG had used the
    same scare tactics all over the country to intimidate other
    whistleblowers. To make matters worse the OIG began time and time again
    whitewashing reports and attacking whistleblowers in these same
    reports. This solidified my belief that the OIG was not going to help
    solve the problem, but that it in fact was part of the overall problem
    with the VA System.
        After living a VA nightmare the last year it has become very
    apparent and saddens me to say that I see no real change in how VA
    operates. I believe that the problems with the VA are endemic to its
    structure. There will be no real reform until there is a independent
    agency that is willing to conduct thorough investigations and willing
    to hold individuals at every level accountable.
        The VA has become a bloated bureaucratic system in which its
    leadership is more interested in perpetuating their own careers rather
    than caring for our veterans. When given a performance measure leaders
    don't look at how they can adapt their programs to meet the measure,
    rather they look at the performance measure and try to figure out a way
    to manipulate it to make it look like they have met the expected goal.
    The system needs true reform and its leadership needs to be held
    accountable for its failures.

        Senator Cassidy. Thank you.
        Senator Boozman. Well, thank the both of you for being
    here. We really do appreciate your courage in coming forward.

                                   VA CULTURE

        Tell me, I guess really I'd like to go to the culture.
        Dr. Nee, why the boxes? I mean, how do you get in this
    situation where you inherit this type of situation? You have
    got people that are trying--how do you get in this situation
    where you're doing, somebody is doing a bunch of tests and
    nobody is even taking the trouble to read those? Is that not
    having enough staff or is it incompetence or is it----
        Dr. Nee. I think it is people that----
        Senator Boozman [continuing]. Laziness?
        Dr. Nee [continuing]. Don't want to work that hard. I mean
    there was plenty of staff within the department. Certainly,
    people could have pitched in. I was only one person when I
    arrived and my work ethic from private practice was inpatient
    ultrasounds were read that day; outpatients within 24 to 48
    hours not 12 months. So I mean this was not a resource issue.
    This was people that just didn't want to work that hard and you
    are not going to come and tell us otherwise.
        Senator Boozman. So just really laziness and just the fact
    that there was very little care for the individuals involved
    that have had those tests.
        Dr. Nee. I would have said--I mean, I can never imagine
    looking at those boxes and being okay with that. I still, to
    this day, don't know where they were at but many people knew
    that they existed.
        Senator Boozman. Right. Very good.
        Tell me about the culture of the whole thing though. We
    have this situation where we have got people that are
    practicing and you are bringing forward facts where the
    practicing is not very good practicing. Again, is that
    because--take the boxes aside, but just in basic patient care.
    Is that because, again, they are incompetent or we minced
    incentives? You know the incentives of the appearance that good
    care is being done but is it a numbers-driven game where people
    are under the gun to----
        Dr. Mitchell. To put it in a nutshell, the VA cares more
    about its public image than it does about patient care. I can
    tell you that the frontline staff, the physicians and nurses
    that I worked with, are some of the best in the VA. But like
    all systems, there are some that are less than ideal or even
    should not be working in the VA.
        I don't think that mixture is any different than in the
    private sector, but I do believe the difference is that
    speaking up and identifying problems, the first knee-jerk
    reaction is not to acknowledge the issue and then fix the
    problem. The knee-jerk reaction is not to let the problem be
    known by anyone else.
        Although people have disparaged the VA, there are millions
    of quality care episodes that occur across the Nation because
    the VA does do incredibly good work. Unfortunately, when they
    drop the ball, they drop the ball so significantly that people
    die.
        Senator Boozman. No, and I think we have to be very, very
    careful in the sense that, again, not disparaging all of the
    people that are working very, very hard and there is some
    tremendous people. In fact, the vast majority of people in the
    VA are doing a great job and really do care about patients. But
    it is trying to figure out what in the culture of the VA, gets
    us in these situations where we have the experiences that both
    of you all have had.
        Dr. Nee. Well, it is up in the higher level of the
    administration. It is not anybody in ancillary staff, direct
    patient care, absolutely. They wanted to work hard. But, when
    you come in from the private sector and you are trying to work
    those same workloads and they were making fun of it, you know
    in a sense of you are going to not do well here if you are
    going to working at that level.
        So it is not because they didn't want to, but they have
    already been put in their place when they tried to and it is
    just an acceptance.
        Dr. Mitchell. Yes.
        The direct administrators that retaliated against me, I
    actually don't hold that against them because they were between
    a rock and a hard place. If they spoke up and said that what
    you're asking us to do to Dr. Mitchell is wrong, they in turn
    would be retaliated against by their superiors. In fact, two of
    my chiefs of staffs are two of the most ethical physicians I
    have ever known, and yet they made decisions I certainly didn't
    agree with because I felt they were retaliatory. I also knew
    that they had no other choice. And in other ways, they tried to
    make it up to me. They tried to make sure that they made good
    patient care decisions, but their hand was forced multiple
    times by senior administration.

                              VA INSPECTOR GENERAL

        Senator Boozman. Dr. Nee, in your written testimony you
    were pretty scathing in your critique of the VA Inspector
    General.
        Dr. Nee. Absolutely.
        Senator Boozman. How did they disparage your reputation?
        Dr. Nee. Well, they wrote a letter to Senator Kirk that
    basically stated I had not presented any evidence to them on
    multiple occasions which was false. They had evidence the first
    time. They had evidence the second time. There is two hours of
    testimony that they refuse--I mean if I am truly am lying, then
    put forth the testimony.
        Senator Boozman. Sure.
        Dr. Nee. But that is not forthcoming.
        Senator Boozman. Good.
        Dr. Nee. And then, the preliminary Office of Medical
    Inspector has actually countered what they have said. So I mean
    you have to think about that. Someone is putting in a letter to
    a Senator of the United States and then it goes out on a press
    release that you are a liar.
        Senator Boozman. Who signed the letter?
        Dr. Nee. Richard Griffin.
        Senator Boozman. Okay. Very good.
        Thank you all very much.
        Senator Kirk. Mrs. Capito.
        Senator Capito. Thank you.
        I want to thank both of you.
        Thank you, Mr. Chairman.
        Just a quick question. We read consistently about the lack
    of young professionals going to the VA; nurses, doctors,
    shortages. In light of what we have heard today, I think it
    will be more discouraging for a young physician to want to be a
    part of a health system that is as dysfunctional as you have
    described.

                   RECRUITMENT OF YOUNG HEALTH PROFESSIONALS

        If we could maybe sort of fast-forward here, what could you
    tell that next generation of health professional why they would
    want to work at the VA and what kind of hope there would be for
    them that they would be able to exercise the professional
    abilities that they have gained? Do you have any sense of what
    the next generation is going to want to do in terms of being a
    health professional at the VA?
        Dr. Nee. I personally, just being what I went through,
    would not encourage anyone to work at the VA currently. There
    has not been transformation. There has been talk, a lot of it,
    about reform, and that is not what this culture needs. It needs
    a complete transformation. And until that could be put into
    place, I personally would not encourage anybody to take a job
    there.
        Dr. Mitchell. I stay within the VA because the VA mission
    is important to me. I am willing to stay to make a change. But
    that comes at a personal loss to me because every day I face a
    sense of frustration, a sense of hopelessness, a sense of when
    will this madness stop.
        I would not encourage a young professional to enter the VA
    system unless they fully understood that they were going into a
    corrupt, retaliatory administration. And that needs to change.
    There should be a line drawn clearly in the sand that anyone
    that retaliates against a frontline employee for bringing up
    will be brought up on charges immediately. It shouldn't be
    something that takes months and months or years.
        Until that time, the VA has a great infrastructure. They
    are an amazing teaching facility. They have everything they
    need except the administrative competence to run it.
        Senator Capito. Those are very powerful statements, I
    believe, from both of you.

                           DISMISSAL OF VA EMPLOYEES

        The next kind of comment I would make is that we passed a
    bill, Mr. Chairman, you may help me with this, because
    recognizing on the heels of what came to light that the
    bureaucracy in the administrative forces at the VA, there was
    no structure to fire people. They were just moved from facility
    to facility. And I think it has come to light that there were
    maybe 800 administrators that were identified as being
    deficient and should be moved out of the system. And instead, I
    think only one has actually been fired; one or very few have
    actually been fired and the rest have been reassigned.
        In your statement, you said, Dr. Mitchell, just quickly and
    I'm sorry I missed your opening statement. You said something
    about, well, if I did that I would be fired. So is it easier to
    fire a medical professional than it is to, the higher-ups of
    the administrative--I mean is it--obviously, it is.
        Dr. Mitchell. I don't know about the higher-ups. What I do
    know is what you said is correct. If someone is corrupt or
    poorly performing, they merely move them to a different
    offsite. The chief-of-staff that screamed at me routinely and
    told me it was my fault patients were dying because I was
    making nursing mad was just moved to another site. I don't know
    why they decided it is easier to get rid of the people that
    speak up, except that the people that speak up ruin the VA's
    image of perfect care.
        Senator Capito. Outward.
        Dr. Mitchell. And again, they are looking at image. They
    are not looking at patient care. So it is much easier to kill
    the messenger than it is to fix the problem.
        Senator Capito. Thank you.
        Senator Kirk. Let me ask unanimous consent to enter into
    the record Germaine Clarno's written testimony.

        [The statement follows:]
              Prepared Statement of Germaine M. Clarno, LCSW, CADC
        Chairman Kirk, Ranking Member Tester, and members of the
    subcommittee. Thank you for the opportunity to provide a written
    testimony to discuss the continued issues with the Veteran's Affairs
    Office of Inspector General.
        My name is Germaine Clarno, I am a Social Worker and Local 781
    President of the American Federation of Government Employees (AFGE). l
    have worked at Edward Hines, Jr. Hospital in Maywood, Illinois for 6
    years, Social Work is a second career for me and I was committed to
    being able to work with veterans. When the opportunity to work at Hines
    VA presented itself, I knew I found where I wanted to be. It has been
    an honor and privilege to serve our Nation's veterans in the capacity
    of a mental health provider. I have worked alongside amazing dedicated
    employees that share the same passion for helping our veterans heal
    from the invisible wounds of war.
        Unfortunately, I experienced early in my career the toxic culture
    of fear. Asking a simple question or suggestion can result in career
    sabotage. I witnessed good intentioned professional employees be
    retaliated against for simply wanting to raise issues that interfered
    with quality healthcare for our veterans. After 3 years working in
    mental health, I had experienced and witnessed deplorable treatment of
    employees that dared to speak up against fraud, waste and abuse. My
    commitment and dedication to our veterans drove me to explore means to
    improve the culture at Hines. The root cause was mistreatment of
    frontline employees that did not have a voice or an advocate. I then
    became a Chief Steward for Local 781 at Hines. With determination and
    the union contract, I optimistically marched onward with a honored
    mission to change the culture at Hines.

                   Master Agreement (Union contract) Preamble

        ``This Master Agreement is made between the Department of Veterans
    Affairs (the Department) and the American Federation of Government
    Employees (AFGE) National Veterans Affairs Council of Locals (the
    Union).''
        ``The Department and the Union agree that a constructive and
    cooperative working relationship between labor and management is
    essential to achieving the Department 's mission and to ensuring a
    quality work environment for all employees. The parties recognize that
    this relationship must be built on a solid foundation of trust, mutual
    respect, and a shared responsibility for organizational success.
    Therefore, the parties agree to work together using partnership
    principles, Labor-Management Forums, and the Master Agreement to
    identify problems and craft solutions, enhance productivity, and
    deliver the best quality of service to the Nation's veterans.''

        During my time as a union representative I have witnessed firsthand
    an environment that is not conducive to enhancing employee morale and
    efficiency. It is an environment that obstructs employees from
    performing at the highest level. An example of the obstruction is Dr.
    Lisa Nee's experience. In the fall of 2012, after exhausting all
    avenues with in her chain of command, Dr. Nee came to me with
    overwhelming evidence of wrongdoing by the leadership at Hines. In
    February 2013, I brought her allegations to Capitol Hill during a
    planned trip for AFGE legislative conference. Dr. Nee also submitted a
    disclosure with the Office of Inspector General (referenced below).

    Dr. Nee's Disclosure to the OIG.

        ``There have been numerous instances of deplorable patient care
    including a 9 month backlog on the processing of echocardiograms, the
    unnecessary placement of coronary artery stents leading to numerous
    complications, unnecessary open heart surgeries leading to
    complications and retaliation against physicians who have reported
    these horrific events and have demanded transparency. The chief of
    cardiology, assistant chief of medicine and chief of medicine have all
    been informed of this patient abuse and continue to cover up, falsify
    records and harass those who have spoken up. The billing system has
    been abused with cardiologists billing for procedures they have not
    performed--this would be grounds for dismissal in the private sector.
    Hines desperately needs an independent team to come in and search for
    the true numbers regarding morbidity and mortality--not just the data
    that the administration puts out. Veterans are suffering every day and
    it will take a committee outside of the Veterans Affairs to help expose
    the corruption and begin to repair the damage. The documentation is
    easy to obtain, as well as many witnesses in every department of
    patient care--including house staff from Loyola University''.

        Also in 2013, another physician, a thoracic surgeon, also provided
    evidence of fraud, waste and abuse. Both employees experienced severe
    forms of retaliation. The retaliation included sham peer reviews, AIB
    (Administrative Investigation Board) false accusations, denial of
    leave, FMLA and threats of prosecution for HIPPA violation for bringing
    issues to legislators or any oversight agencies.
        We were relieved when we received notification that the OIG would
    be conducting an investigation at Hines. This excitement was short
    lived when the investigators first requested documentation and
    interviews. I requested protection for the employees that I represented
    and was informed that they would not be given immunity for their
    disclosures. However, the investigators made it very clear they wanted
    specific patient information and the Chief of Staff was threatening to
    prosecute if patient information was shared with anyone. At this time
    Dr. Nee was no longer working at Hines and she was understandably
    concerned with making disclosures without written immunity from the
    OIG, which was denied. After numerous coercing emails, meetings and
    phone calls from the OIG, I made a decision to deliver the evidence,
    including patient information to the OIG on Hines campus so that they
    would not follow through on their threat to close the investigation due
    to the lack of patient information.
        Finally, in April 2014 the VA OIG report was released. We were
    never given the opportunity to respond or review the report before its
    publication. We contacted the Office of Special Council to address the
    preposterous conclusion of this report by the OIG. See attached email
    (attachment 1) and letter to Jennifer Pennington of the OSC (attachment
    2).
        Due to the involvement of the OSC, the OIG agreed to reinvestigate
    Dr. Nee's allegations. In January 2015 both Dr. Nee and I met with the
    same investigators for a 2 hour meeting in which we discussed further
    the preponderance of evidence that contradicted the conclusions of the
    OIG's report. Again, the OIG came to the same conclusion and closed the
    case. The Office of Medical Inspector was then asked to investigate and
    they conducted a facility site visit April 6-10, 2015. The preliminary
    report has been released to Hines administration prior to Dr. Nee
    receiving the report and given the opportunity to respond before the
    Hines administration. Hines leadership has taken retaliatory actions
    against employees that cooperated with the OMI. Leadership have made
    verbal claims they are looking for the ``leak''. Again, putting fear in
    the courageous employees that came forward.
        My journey with the Veterans Administration and the lack of
    accountability and oversight led to co-founding an organization of VA
    whistleblowers across the country. Christopher Shea Wilkes from
    Shreveport VA and I formed the group ``VA Truth Tellers.'' We currently
    have over 40 members from across the country. We have discovered that
    the experience Dr. Nee and I witnessed was not unique. Other VA Truth
    Tellers have reported the same shortfalls of the Office of Inspector
    General as have been reported by Dr. Nee and me. As a result, we are
    requesting that the council of Inspectors General on Integrity and
    Efficiency (CIGIE) investigate allegations of wrong doing made against
    the VA OIG. See attached formal request (attachment 4).
        The allegations that the OIG substantiate in the Hines Cardiology
    report 13-02053-119 would have supported involvement of the Department
    of Justice, as done in the private sector. See attached report from the
    U.S. Attorney's Office Northern District of Ohio (attachment 3), the
    parallels of wrong doing that lead to prosecution is conclusive. Our
    Nation's heroes deserve the same oversight as private sector health.

        The veterans, ethical employees and taxpayers deserve a transparent
    VA OIG that instills the standards of CIGIE:

      --Integrity is the cornerstone of all ethical conduct, ensuring
            adherence to accepted codes of ethics and practice.
            Objectivity, independence, professional judgment, and
            confidentiality are all elements of integrity.
      --Objectivity imposes the obligation to be impartial, intellectually
            honest, and free of conflicts of interest.
      --Independence is a critical element of objectivity. Without
            independence, both in fact and in appearance, objectivity is
            impaired.
      --Professional judgment requires working with competence and
            diligence. Competence is a combination of education and
            experience and involves a commitment to learning and
            professional improvement. Professional standards for audits,
            investigations, and inspections and evaluations require
            continuing professional education (see the Managing Human
            Capital standard). Diligence requires that services be rendered
            promptly, carefully, and thoroughly, and by observing the
            applicable professional and ethical standards.
      --Confidentiality requires respecting the value and ownership of
            privileged, sensitive, or classified information received and
            protecting that information, and safeguarding the identity of
            confidential.
                                     ______

                                 (ATTACHMENT 1)

    Germaine Clarno                                   Jun
    23

    To Jennifer

    Hi Jennifer,

        Is there any way that I can contact Carolyn Lerner? I read today's
    press release and we had a cardiology inspection/report completed here
    at Hines a few months ago that included the same exact issues that was
    described in her letter. I would like this report included in the
    review. Below are some of excerpts from the report. I attached a copy
    for your convenience.

        I have worked on these concerns for 2 years by trying every course
    of action available to us.

    Per the OIG report:

        We substantiated that two patients had questionable indications for
    coronary bypass surgery. Both of the affected patients had diabetes, a
    condition known to increase the risk associated with surgery. These
    patients had favorable outcomes but were subjected to open heart
    surgery and a substantial risk of death or stroke during and after
    surgery.

        We substantiated that preoperative planning was inadequate for a
    patient who underwent coronary artery bypass surgery. This patient had
    valvular heart disease, which increases the risk of complications
    related to bypass surgery and warrants pre-operative consideration of
    valve repair or replacement. However, even though prior testing
    revealed the problem, it was not adequately evaluated until the patient
    was in the operating room. The patient suffered no apparent adverse
    effects, but the occurrence suggests a process failure that could lead
    to poor outcomes for other patients.

        We substantiated that facility administrators did not ensure that
    weekly cardiac catheterization conferences were conducted. However, we
    identified no requirement for such conferences and noted that facility
    cardiologists regularly attended conferences at Loyola.

        We found that coronary interventions may have been inappropriate
    for nine patients who had undergone cardiac catheterizations during
    2010-2013. For each of these nine patients, angiogram images and
    reports were independently evaluated by two interventional
    cardiologists who agreed that the degree of coronary stenosis had been
    over-estimated. The patients suffered no apparent immediate harm, but
    some of them were subjected to an increased risk of bleeding from the
    medications required after placement of stents. The nine patients who
    had interventions that may have been inappropriate were receiving VA
    care 27-154 weeks after the procedures (median, 66 weeks).

        2 cases: ``Our review found that the degree of coronary stenosis
    was overestimated and the patient did not have symptoms that warranted
    bypass surgery''.

        ``We substantiated the allegation that the facility did not provide
    adequate equipment in the OR to ensure safe performance of cardiac
    surgery".

        ``EHRs revealed no negative consequences associated with delayed
    interpretations''.

        If Ms. Lerner is not the correct avenue can you let me know how to
    proceed.Thanks in advance for your assistance.
                                     ______

                                 (ATTACHMENT 2)

    July 1, 2014

    To: Jennifer Pennington
    United States Office of Special Counsel

    From: Lisa M. Nee MD
    Regarding Report No: 13-02053-119

    Dear Ms. Pennington:

        I am sending this correspondence to address the preposterous
    conclusion of the above referenced OIG report as well as the past and
    continuous corrosive culture that exists at Hines VA. As per our
    conversation, my interests are aligned with the health and well being
    of our Nation's veterans in hopes that at least a singular oversight
    office at the Federal level will place political agenda aside for a
    broadminded review and much needed reform. The veterans, ethical
    employees and taxpayers deserve a transparent approach, which will
    instill long forgotten confidence in a system initially built on a
    foundation of conviction.
        I will first address the conclusions of the OIG by a summary
    declaration credited to Joe McGettigan, lead prosecutor in the Sandusky
    trial. The statements made are a masterpiece of banal self-delusion,
    completely untethered from reality. In short-ridiculous. To suggest
    that patient's have undergone unnecessary surgeries and invasive
    procedures and conclude that there was no apparent immediate harm is in
    fact a new definition of insanity. Malpractice occurs when the risks/
    cost exceed the likely therapeutic benefits to the patient. Performing
    unnecessary surgery/procedures is a major betrayal of the physician's
    paramount obligation to place the patient's best interest first in
    therapeutic decisions. All procedures, which involve the use of
    anesthetics and/or incisions, carry inherent risk. Not to mention the
    long- term sequela of prolonged cardiopulmonary bypass. The OIG
    inspectors conveniently left out the need for incident reports
    regarding the unnecessary procedures and the fact that the patient's
    were never informed. Individuals were clearly harmed, and to suggest
    otherwise in an exercise in dismissal, not thorough investigating nor
    process improvement. Performing unnecessary surgery can be a basis for
    malpractice liability or tort actions for fraud and battery while
    constituting fraud for knowingly claiming reimbursement. I would
    respectfully conclude that the scope and methodology of the OIG was at
    a minimum inadequate and more likely deliberately nefarious in nature,
    resulting in purposeless recommendations.
        The next issue I will briefly address is the omnipresent,
    dysfunctional culture at Hines VA, which has been allowed to invade
    like an aggressive malignancy. To attempt to delineate all the
    egregious acts would require a herculean effort so I will sum it up in
    three major problems. 1. Inadequate care and malpractice because of
    negligent, self-serving behavior, 2. A system which rewards those for
    behaving inappropriately with malfeasance and 3. Punishment for anyone
    willing to attempt to make the system functional and responsible. All
    hallmarks of a corrupt and incompetent leadership. These issues have
    all recently been brought to light in system reports authored by acting
    VA chief Sloan Gibson, White House Deputy Chief of Staff for Policy Rob
    Nabors, as well as your own office. Specifically troubling is the
    conclusion in Mr. Nabors report that the VA has a history of
    retaliation towards employees raising issues and a lack of
    accountability across all grade levels. The absence of a reliable and
    transparent quality assurance program, coupled with retribution towards
    exceptional employees has created a defective culture at Hines that
    will require widespread reform. The leadership at Hines, whether
    actively or passively confederate in the dysfunctional process, needs
    to be removed if they cannot act in the best interest of the
    institution.
        There are tangible and proven solutions to most of the dysfunction
    at Hines and the VA as a whole. Unfortunately, my own personal journey
    has led me to the conclusion that when one operates in a state of
    cognitive dissonance rather than reality, these solutions can never be
    realized. There are many overwhelming obstacles that we all must face
    at different times in our lives. How we process, react, adapt and
    flourish from these defines us as a person. It is my sincere belief
    that the tide will turn. The American public will not allow our
    veterans to be mistreated and marginalized. And this will define us as
    a nation.
                                     ______

                                 (ATTACHMENT 3)

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        A 16-count indictment was unsealed in Federal court charging a
    Westlake cardiologist with performing unnecessary catheterizations,
    tests, stent insertions and causing unnecessary coronary artery bypass
    surgeries as part of a scheme to overbill Medicare and other insurers
    by $7.2 million, law enforcement officials said.
        Dr. Harold Persaud, 55, was indicted on one count of health care
    fraud, 14 counts of making false statements and one count of engaging
    in monetary transactions in property derived from criminal activity.
        The indictment was announced by Steven M. Dettelbach, U.S. Attorney
    for the Northern District of Ohio, Stephen D. Anthony, Special Agent in
    Charge of the Federal Bureau of Investigation's Cleveland Office, and
    Lamont Pugh III, Special Agent in Charge, U.S. Department of Health &
    Human Services, Office of Inspector General--Chicago Region.
        ``The charges in this case are deeply troubling,'' U.S. Attorney
    Dettelbach said. ``Inflating Medicare billings alone would be bad
    enough. Falsifying cardiac care records, making an unnecessary referral
    for open heart surgery and performing needless and sometimes invasive
    heart tests and procedures is inconsistent with not only Federal law
    but a doctor's basic duty to his patients.''
        ``This doctor violated the sacred trust between doctor and patient
    by ordering unnecessary tests, procedures and surgeries to line his
    pockets,'' Special Agent Anthony said. ``He ripped off taxpayers and
    put patients' lives at risk.''
        ``Medical providers have a duty and obligation to provide only
    those services that are medically necessary and are in the best
    interests of the patients under their care,'' Special Agent in Charge
    Pugh said. ``The conduct alleged in this indictment outlines a
    disregard for patient needs in exchange for financial gain at taxpayer
    expense. The OIG will continue to work with our law enforcement and
    prosecutorial partners to identify fraudulent health care schemes and
    hold individuals accountable for their actions.''
        Persaud had a private medical practice at 29099 Health Campus Drive
    in Westlake and had hospital privileges at Fairview Hospital, St.
    John's Medical Center and Southwest General Hospital, according to the
    indictment.
        Persaud devised a scheme to defraud and obtain money from Medicare
    and other insurers. The scheme took place between Feb. 16, 2006,
    through June 28, 2012, according to the indictment.
        According to the indictment, his activities in furtherance of the
    scheme included but were not limited to:

      --Persaud selected the billing code for each customer submitted to
            Medicare and private insurers, and used codes that reflected a
            service that was more costly than that which was actually
            performed;
      --Persaud performed nuclear stress tests on patients that were not
            medically necessary;
      --He knowingly recorded false results of patients' nuclear stress
            tests to justify cardiac catheterization procedures that were
            not medically necessary;
      --Persaud performed cardiac catheterizations on patients at the
            hospitals and falsely recorded the existence and extent of
            lesions (blockage) observed during the procedures;
      --He recorded false symptoms in patient records to justify testing
            and procedures on patients;
      --Persaud inserted cardiac stents in patients who did not have 70
            percent or more blockage in the vessel that he stented and who
            did not have symptoms of blockage;
      --He placed a stent in a stenosed artery that already had a
            functioning bypass, thus providing no medical benefit and
            increasing the risk of harm to the patient;
      --He improperly referred patients for coronary artery bypass surgery
            when there was no medical necessity for such surgery, which
            benefitted Persaud by increasing the amount of follow-up
            testing he could perform and bill to Medicare and private
            insurers;
      --Persaud performed medically unnecessary stent procedures,
            aortograms, renal angiograms and other procedures and tests.

        As a result of this scheme, Persaud overbilled and caused the
    overbilling of Medicare and private insurers in the amount of
    approximately $7.2 million, of which Medicare and the private insurers
    paid approximately $1.5 million, according to the indictment.
        The indictment seeks to forfeit $93,446 in an account in the name
    of Harold Persaud and $250,188 in an account in the name of Roberta
    Persaud.
        This case is being prosecuted by Assistant U.S. Attorneys Michael
    L. Collyer and Chelsea Rice following an investigation by the Federal
    Bureau of Investigation and the U.S. Department of Health and Human
    Services--Office of Inspector General.
        If convicted, the defendant's sentence will be determined by the
    court after a review of the Federal sentencing guidelines and factors
    unique to the case, including the defendant's prior criminal record (if
    any), the defendant's role in the offense and the characteristics of
    the violation.
                                     ______

                                 (ATTACHMENT 4)

                                                    Mr. Christopher Shea
    Wilkes
                                                    Ms. Germaine Clarno
                                                    VA Truth Tellers
                                                    United States of
    America
                                                    3646 Youree Drive
                                                    Shreveport, LA 71105
    July 20, 2015

    Dear Senator,

        This correspondence is being sent from members associated with the
    VA Truth Tellers organization in response to egregious misconduct
    within the Veterans Affairs Office of the Inspector General (VA OIG).
    Significant numbers of whistleblowers from across the country have
    brought forth complaints concerning patient harm/death, criminal
    activity, fraud, waste, abuse and/or mismanagement of VA programs and
    operations, only to find the investigations whitewashed and the
    whistleblower retaliated against. Many of us have filed formal
    complaints with the Office of Special Counsel (OSC) who has also
    advised us to file a complaint with The Council of Inspectors General
    on Integrity and Efficiency (CIGIE).
        This letter shall serve as a formal request from each individual
    whistleblower to their respective U.S. Senators, to demand the CIGIE
    investigate these accumulating atrocities. Under the Inspector General
    Reform Act of 2008, CIGIE was statutorily established as an independent
    entity within the executive branch to address integrity, economy, and
    effectiveness issues that transcend Government agencies: and to
    increase the professionalism and effectiveness of personnel. To
    accomplish this mission, the CIGIE needs to be made aware of these
    issues of waste, fraud, abuse and retaliation. There is strength in
    numbers and the VA Truth Tellers, comprised of over 40 members from
    across the country, have organized complaints with similar patterns of
    whistleblower retaliation as well as incompetent investigations
    resulting in continuing harm and death to veterans.
        The CIGIE has an established Integrity Committee, which shall
    receive, review, and refer for investigation allegations of wrongdoing
    made against the VA OIG. We are requesting bipartisan congressional
    support for these investigations and each whistleblower will attach
    specific information relating to their case/complaint. The VA Truth
    Tellers continue to be overwhelmed with reports of retaliation against
    whistleblowers and denial of any agency wrongdoing, even when the
    evidence is irrefutable. We can no longer stand by as a nation as the
    veterans suffer with malpractice, abuse and denial of care.
        On July 10, 2015 the VA OIG attempted to safeguard its own
    interests by issuing another statement regarding the protection
    guaranteed to Federal employees by the Whistleblower Protection Act. To
    continue a fraudulent rhetoric in the face of enormous evidence to the
    contrary is insulting to the employees, dangerous to the veterans, and
    wasteful to the taxpayers who are funding this impotent bureaucracy.
    The VA OIG is a deficient agency with retaliatory tactics that speak
    volumes of its ineptitude and overall paucity of morality. The agency
    requires a complete reformation in addition to a formal investigation
    from CIGIE.
        The VA Truth Tellers will continue to work with Members of Congress
    in mending a clearly broken system. We are looking forward to including
    your name on our public list of Senators that have agreed with an
    investigation from CIGIE. We believe in the power of the truth, the
    importance of transparency, and the necessity of accountability. Thank
    you for consideration of our request.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Kirk. And I would call a temporary recess since we
    have the vote at noon coming up.
        We'll go to panel two then.
        Senator Kirk. Mrs. Brian, why don't you begin?
    STATEMENT OF DANIELLE BRIAN, EXECUTIVE DIRECTOR,
                PROJECT ON GOVERNMENT OVERSIGHT
        Mrs. Brian. Thank you, Chairman Kirk and members of the
    subcommittee, for inviting me to testify today.
        POGO, the Project on Government Oversight, is a
    nonpartisan, nonprofit watchdog that, since 1981, has been
    championing government reforms including whistleblower
    protections. If it weren't for the brave work of whistleblowers
    like Drs. Mitchell and Nee that we heard from just now, none of
    us would know about the problems at the VA. As the avalanche of
    reports began last year, we at POGO had great concern and did
    something unusual. We held a joint press conference with the
    Iraq and Afghanistan Veterans of America asking whistleblowers
    within the VA to share with us their inside perspective in
    order to help us better understand what was going on at the
    department.
        In our 34-year history, POGO has never received as many
    submissions from a single agency. In a little over a month,
    nearly 800 current and former VA employees and veterans
    contacted us. We received multiple credible submissions from 35
    States and the District of Columbia.
        Our recurring and fundamental theme became clear: VA
    employees across the country feared they would face
    repercussions if they dared to raise a dissenting voice but
    they came forward anyway. I want to emphasize this means there
    were extraordinary numbers, hundreds of people, who work inside
    the VA system who care so much about the mission of the
    department that they were still willing to take the risk to
    come forward in order to fix it. Some were willing to be
    interviewed by a POGO and quoted by name, but others said they
    contacted us anonymously because they are still employed at the
    VA and worried about retaliation.
        VA whistleblowers are supposed to be able to turn to the
    VA's Office of Inspector General, but many have come to doubt
    the Inspector General's willingness to protect them or to hold
    wrongdoers accountable. These fears appear to be well-founded.
    We believe the VA Inspector General is an example of oversight
    at its worse.
        Last year, in the midst of our investigation, the VA
    Inspector General issued a subpoena to us at POGO demanding all
    of our record that we have received from current or former
    employees at the Department of Veterans' Affairs and other
    individuals or entities. Of course, POGO refused to comply with
    the subpoena. However, the subpoena was understandably cause
    for concern for many of the whistleblowers who had come to us.
    We believe the Inspector General successfully created a
    chilling effect and the number of VA whistleblowers coming to
    POGO slowed to a trickle.
        As further evidence the VA Inspector General is hostile to
    whistleblowers rather being the haven it should be, just last
    month the Inspector General sent a white paper to dozens of
    congressional offices publicly attacking whistleblowers.
    Senator Johnson responded with a letter of his own in language
    that mirrored some of what we heard from Dr. Nee. He pointed
    out ``In attempting to defend its work, the VA Inspector
    General criticizes and demeans the very individuals its
    healthcare inspection failed to protect in the first place; the
    victims and whistleblowers of the Tomah VA Medical Center. The
    paper impugns their motives, assassinates their character, and
    offers irrelevant information to discredit their accounts.
    These arguments are remarkable and unfortunate from an office
    whose duty it is to work with the Office of Special Counsel and
    other entities it is supposed to be protecting the
    whistleblowers.''
        We were pleased to see Acting Inspector General Griffin
    step down and we are hopeful for a brighter future in that
    office with the new acting Inspector General, Linda Halliday,
    but she is still being advised by the same counsel responsible
    for that office's past misconduct. And as Senator Collins
    noted, there is still not a permanent Inspector General after a
    vacancy of over a year and a half. And we believe that is a big
    part of the problem with that office.
        In comparison, the Office of Special Counsel has been
    working to investigate claims of retaliation and getting
    favorable actions for many of the VA whistleblowers who have
    come forward and we commend their good work. By merely
    addressing isolated incidents is not enough. The VA is
    struggling with a toxic culture and something more systemic
    must be done.
        POGO recommends that VA Secretary McDonald make a tangible
    and meaningful gesture to support those whistleblowers who have
    been trying to fix the VA from the inside. Private meetings
    with them are not enough. He needs to be elevating their status
    from villain to hero with public accolades and awards as well
    as holding retaliators accountable.
        Congress should also update legislation so that it
    meaningfully codifies accountability for those who retaliate
    against whistleblowers. Whistleblowers within the VA should be
    able to hold their retaliators accountable; something that is
    nearly impossible unless Congress lowers the burden of proof
    necessary to discipline retaliators.
        Furthermore, the definition of wrongdoing as a cause for
    disciplinary action of VA managers should explicitly include
    retaliation against whistleblowers. Congress should also extend
    whistleblower protections to contractors and veterans who raise
    concerns about medical care provided by the VA.
        The Government has failed in its sacred responsibility to
    care for our veterans. It is our collective duty to help the
    whistleblowers who have taken the risks to fix this broken
    agency.
        Thank you.

        [The statement follows:]
                      Prepared Statement of Danielle Brian
        Chairman Kirk, Ranking Member Tester, and members of the
    subcommittee, thank you for inviting me to testify today on National
    Whistleblower Appreciation Day. I am Executive Director of the Project
    On Government Oversight (POGO). Founded in 1981, POGO is a nonpartisan
    independent watchdog that champions good government reforms. POGO's
    investigations into corruption, misconduct, and conflicts of interest
    achieve a more effective, accountable, open, and ethical Federal
    Government.
           fear and retaliation at the department of veterans affairs
        I want to first point out that if it were not for whistleblowers,
    none of us would be aware of the extent of the problems at the
    Department of Veterans Affairs. Early last year, whistleblowers came
    forward to expose that managers at the Phoenix, Arizona, VA facility
    were falsifying records of extensive wait times in order to get
    personal bonuses.\1\ Quickly, news of similar wrongdoing at VA
    facilities began to pop up in other parts of the country. Although POGO
    had never investigated the operations of the Department of Veterans
    Affairs before, we were deeply concerned about what we were seeing in
    these reports. In an unusual move for us, POGO held a joint press
    conference with Iraq and Afghanistan Veterans of America asking
    whistleblowers within the VA to share with us their inside perspective
    in order to help us better understand the issues the Department was
    facing.
    ---------------------------------------------------------------------------
        \1\ Scott Bronstein, Drew Griffin and Nelli Black, ``Phoenix VA
    officials put on leave after denial of secret wait list,'' CNN, May 1,
    2014. http://www.cnn.com/2014/05/01/health/veterans-dying-health-care-
    delays/ (Downloaded July 27, 2015).
    ---------------------------------------------------------------------------
        In our 34-year history, POGO has never received as many submissions
    from a single agency. In a little over a month, nearly 800 current and
    former VA employees and veterans contacted us. We received multiple
    credible submissions from 35 States and the District of Columbia.\2\ A
    recurring and fundamental theme became clear: VA employees across the
    country feared they would face repercussions if they dared to raise a
    dissenting voice. But they came forward anyway--the sheer number was
    overwhelming. I want to emphasize this important point: this means
    there were extraordinary numbers of people who work inside the VA
    system who care so much about the mission of the department that they
    were still willing to take the risk to come forward in order to fix it.
    ---------------------------------------------------------------------------
        \2\ Statement for the Record, Project On Government Oversight
    (POGO), for the House Committee on Veterans' Affairs' Subcommittee on
    Oversight and Investigations Hearing on ``Addressing Continued
    Whistleblower Retaliation Within VA,'' April 13, 2015. http://
    www.pogo.org/our-work/testimony/2015/pogo-provides-statement-for-house-
    hearing-on-va-whistleblowers.html.
    ---------------------------------------------------------------------------
        Based on what POGO learned from these whistleblowers, we wrote a
    letter to Acting VA Secretary Sloan Gibson in July last year,
    highlighting three specific cases of current or former employees who
    agreed to share details about their personal experiences of
    retaliation.\3\
    ---------------------------------------------------------------------------
        \3\ Letter from Project On Government Oversight to Sloan D. Gibson,
    then-Acting Secretary of the Department of Veterans Affairs, about Fear
    and Retaliation in the VA, July 21, 2014. http://www.pogo.org/our-work/
    letters/2014/pogo-letter-to-va-secretary-about-va-employees-
    claims.html.
    ---------------------------------------------------------------------------
        In California, a VA inpatient pharmacy supervisor was placed on
    administrative leave and ordered not to speak out after raising
    concerns with his supervisors about ``inordinate delays'' in delivering
    medication to patients and ``refusal to comply with VHA regulations.''
    \4\ In one case, he said, a veteran's epidural drip of pain control
    medication ran dry, and in another case, a veteran developed a high
    fever after he was administered a chemotherapy drug after its
    expiration point.
    ---------------------------------------------------------------------------
        \4\ Letter from Kelly Robertson, Pharmacy Service Chief at Palo
    Alto VA Health Care System, to Earl Stuart Kallio, Pharmacy Service,
    about Direct Order--Restricted Communication, June 20, 2014.
    ---------------------------------------------------------------------------
        In Pennsylvania, a former VA doctor was removed from clinical work
    and forced to spend his days in an office with nothing to do, he told
    POGO. This action occurred after he alleged that, in medical
    emergencies, physicians who were supposed to be on call were failing or
    refusing to report to the hospital. The Office of Special Counsel (OSC)
    shared his concerns, writing ``[w]e have concluded that there is a
    substantial likelihood that the information that you provided to OSC
    discloses a substantial and specific danger to public health and
    safety.'' \5\
    ---------------------------------------------------------------------------
        \5\ Letter from Karen Gorman, Deputy Chief, Disclosure Unit Office
    of Special Counsel, to Dr. Thomas Tomasco, about Dr. Tomasco's
    allegations OSC File No. DI-13-0416, March 21, 2013.
    ---------------------------------------------------------------------------
        In Appalachia, a former VA nurse was intimidated by management and
    forced out of her job after she raised concerns that patients with
    serious injuries were being neglected, she told POGO. In one case she
    was reprimanded for referring a patient to the VA's patient advocate
    after weeks of being unable to arrange transportation for a medical
    test to determine if he was in danger of sudden death. ``Such an
    upsetting thing for a nurse just to see this blatant neglect occur
    almost on a daily basis. It was not only overlooked but appeared to be
    embraced,'' she said. She also pointed out that there is ``a culture of
    bullying employees. . . . It's just a culture of harassment that goes
    on if you report wrongdoing,'' she said.
        That culture doesn't appear to be limited to just one or two VA
    clinics. Some people, including former employees who are now beyond the
    reach of VA management, were willing to be interviewed by POGO and to
    be quoted by name, but others said they contacted us anonymously
    because they are still employed at the VA and are worried about
    retaliation. One put it this way: ``Management is extremely good at
    keeping things quiet and employees are very afraid to come forward.''
        This kind of fear and suppression of whistleblowers who report
    wrongdoing often culminates in larger problems, as the VA has been
    experiencing.
        VA employees who have concerns about management or fear retaliation
    are supposed to be able to turn to the VA's Office of Inspector General
    (OIG). But whistleblowers have come to doubt the VA IG's willingness to
    protect them or to hold wrongdoers accountable.
                             oversight at its worst
        These fears appear to be well-founded. In May 2014, the VA IG's
    office issued an administrative subpoena to POGO that was little more
    than an invasive fishing expedition for whistleblowers. The IG demanded
    ``All records that POGO has received from current or former employees
    of the Department of Veterans Affairs, and other individuals or
    entities.'' \6\ Though POGO refused to comply with the subpoena, such
    an action was cause for concern for many of the whistleblowers who had
    shared information with us. We believe this extraordinary step created
    an understandable chilling effect, and the number of VA whistleblowers
    coming to POGO slowed to a trickle in the following months.
    ---------------------------------------------------------------------------
        \6\ Letter from Richard Griffin, Acting-Inspector General,
    Department of Veterans Affairs, to Project On Government Oversight,
    regarding subpoena to POGO, May 30, 2014.
    ---------------------------------------------------------------------------
        Last month, the VA IG's office attacked POGO again. The Senate
    Homeland Security and Governmental Affairs Committee (HSGAC) requested
    my testimony about the need for permanent Inspectors General for a June
    3 hearing. In an unusual step, the VA OIG later submitted a statement
    of its own, raising concerns about the hearing and about POGO's
    testimony in particular.\7\
    ---------------------------------------------------------------------------
        \7\ Department of Veterans Affairs, Office of Inspector General,
    statement regarding the Senate Homeland Security and Governmental
    Affairs Committee's hearing, ``Watchdogs Needed: Top Government
    Oversight Investigators Left Unfilled for Years,'' submitted on June
    25, 2015, p. 3. http://www.pogoarchives.org/m/va_oversight/
    va_oig_statement_for_record_20150603.pdf (Hereinafter ``VA OIG
    Statement'').
    ---------------------------------------------------------------------------
        The VA OIG's statement claimed that my testimony is ``replete with
    inaccuracies and assertions supported, not by factual evidence, but by
    footnotes to media reporting.'' \8\ However, the OIG could provide
    almost no relevant or specific evidence to support its own claims or
    rebut POGO's arguments. Its statement is largely a misguided attempt to
    dismiss the investigative work of POGO, Congress, and the press, and to
    disparage allegations made by whistleblowers who have questioned the
    OIG's independence.
    ---------------------------------------------------------------------------
        \8\ ``VA OIG Statement''.
    ---------------------------------------------------------------------------
        As further evidence that the VA OIG is hostile to whistleblowers
    rather than being the haven it should be, the next day the IG's office
    sent a white paper to all HSGAC members as well as to 22 other Members
    of Congress publically attacking victims and whistleblowers at the VA
    Medical Center in Tomah, Wisconsin.\9\
    ---------------------------------------------------------------------------
        \9\ Department of Veterans Affairs, Office of Inspector General,
    ``OIG Releases White Paper on Evidence Supporting Administrative
    Closure of 2014 Tomah, Wisconsin, VA Medical Center Inspection on
    Opioid Prescription Practice,'' http://www.va.gov/oig/pubs/press-
    releases/VAOIG-whitepaper-20150618TomahOPPI.pdf (Downloaded July 22,
    2015).
    ---------------------------------------------------------------------------
        Senator Johnson, chairman of the subcommittee, responded with a
    letter of his own, harshly critiquing the IG for resorting to:

            ad hominin attacks, misleading statements, and victim-blaming
            to defend the work of the office. . . .

            In attempting to defend its work, the VA OIG criticizes and
            demeans the very individuals its healthcare inspection failed
            to protect in the first place--the victims and whistleblowers
            of the Tomah VAMC. The paper impugns their motives,
            assassinates their character, and offers irrelevant information
            to discredit their accounts. These arguments are remarkable--
            and unfortunate--from an office whose duty it is to work with
            the Office of Special Counsel and other entities in protecting
            whistleblowers. In light of the VA OIG's treatment of the
            victims and whistleblowers at the Tomah VAMC, it should not
            come as a surprise that VA whistleblowers and others would
            rather seek assistance from nonpartisan good-government
            groups--like the Project on Government Oversight--than the VA
            OIG.\10\ (Emphasis in original)
    ---------------------------------------------------------------------------
        \10\ Letter from Senator Ron Johnson, Chairman of the Senate
    Committee on Homeland Security and Governmental Affairs, to Linda
    Halliday, Deputy Inspector General at the Department of Veterans
    Affairs, regarding the Tomah VAMC investigation, July 8, 2015.

        Less than a month later, Acting Inspector General Richard Griffin
    suddenly stepped down from his position. We were pleased to see that
    the new Acting IG, Linda Halliday, released two statements detailing
    steps she plans to take to improve the IG's whistleblower protection
    program, including seeking certification by the Office of Special
    Counsel.\11\
    ---------------------------------------------------------------------------
        \11\ Linda Halliday, Department of Veterans Affairs, Office of
    Inspector General, ``Deputy Inspector General Announces Steps to
    Strengthen Whistleblower Protection Training for OIG
    Employees,'' http://www.va.gov/oig/pubs/press-releases/VAOIG-
    WhistleblowerProtectionsPress
    Release.pdf (Downloaded July 22, 2015); Linda Halliday, Department of
    Veterans Affairs, Office of Inspector General, ``Deputy Inspector
    General Announces Steps to Strengthen OIG Whistleblower Protection
    Ombudsman Program,'' http://www.va.gov/oig/pubs/press-releases/VAOIG-
    %20Ombudsmen-%2007-15-15.pdf (Downloaded July 22, 2015).
    ---------------------------------------------------------------------------
        But POGO remains concerned. There still is not a permanent VA IG in
    place. That position has been vacant for over 570 days--over a year and
    a half.\12\ Our own investigations have found that the absence of
    permanent leadership can have a serious impact on the effectiveness of
    an IG office.\13\ Acting IGs do not undergo the same kind of extensive
    vetting process required of permanent IGs, and as a consequence usually
    lack the credibility of a permanent IG. Acting IGs also often seek
    appointment to the permanent position, which can compromise their
    independence by giving them an incentive to curry favor with the White
    House and the leadership of their agency.\14\ Perhaps most worrisome,
    given the significant challenges facing the VA IG, a 2009 study found
    that vacancies in top agency positions promote agency inaction, create
    confusion among career employees, make an agency less likely to handle
    controversial issues, result in fewer enforcement actions by regulatory
    agencies, and decrease public trust in government.\15\
    ---------------------------------------------------------------------------
        \12\ Project On Government Oversight, ``Where Are All the
    Watchdogs?'' http://www.pogo.org/tools-and-data/ig-watchdogs/go-igi-
    20120208-where-are-all-the-watchdogs-inspector-general-vacancies1.html
        \13\ Testimony of POGO's Jake Wiens on ``Where Are All the
    Watchdogs? Addressing Inspector General Vacancies,'' May 10, 2012.
    (Hereinafter Testimony of POGO's Jake Wiens on ``Where Are All the
    Watchdogs?'')
        \14\ Testimony of POGO's Jake Wiens on ``Where Are All the
    Watchdogs?''
        \15\ Anne Joseph O'Connell, ``Vacant Offices: Delays in Staffing
    Top Agency Positions,'' Southern California Law Review, Vol. 82, 2009.
    ---------------------------------------------------------------------------
        On the other hand, the OSC has been working to investigate claims
    of retaliation and get favorable actions for many of the VA
    whistleblowers who have come forward. Since April 2014, the OSC has
    successfully obtained corrective actions for over 99 VA whistleblowers
    who filed retaliation complaints. But the OSC still has nearly a
    hundred pending VA reprisal cases for disclosing concerns about patient
    care or safety, among the highest of any government agency, according
    to Special Counsel Carolyn Lerner.\16\
        Although the VA has been cooperative with the OSC and receptive of
    their recommendations, merely addressing isolated incidents is not
    enough. The VA has been struggling with a culture problem for decades
    and something more systemic must be done.
                                recommendations
        In POGO's 2014 letter, we recommended concrete steps incoming VA
    Secretary McDonald could take in order to demonstrate an agency-wide
    commitment to changing the VA's culture of fear, bullying, and
    retaliation. Neither then-Acting Secretary Sloan Gibson nor Secretary
    McDonald responded to our multiple requests for a meeting.
        Clearly, an important first step will be for the President to
    nominate a permanent IG for the VA. Hopefully strong and committed
    leadership in that office will correct its current course. POGO also
    recommended that Secretary McDonald make a tangible and meaningful
    gesture to support those whistleblowers who have been trying to fix the
    VA from the inside. Once the OSC has identified meritorious cases,
    Secretary McDonald should personally meet with those whistleblowers and
    elevate their status from villain to hero. These employees should be
    publicly celebrated for their courage, and should receive positive
    recognition in their personnel files, including possibly receiving the
    types of personal bonuses that managers who had been falsifying records
    received in the past. This should not be an isolated event done in
    response to recent criticisms but an ongoing effort. Whistleblowing
    must be encouraged and celebrated or wrongdoing will continue.
        Although then-Acting Secretary Gibson did attend an OSC event
    honoring VA whistleblowers, such high-profile recognition of
    whistleblowers needs to take place at the VA facilities themselves. For
    the culture at the VA to change, we believe this is a simple but
    meaningful step.
        But it's not just the VA Secretary or IG who can work to fix this
    problem. The cultural shift that is required inside the Department of
    Veterans Affairs must be accompanied by statutory mandates--Congress
    should enact legislation that codifies accountability for those who
    retaliate against whistleblowers. The definition of ``wrongdoing'' must
    include retaliation. Legislation should ensure that whistleblowers are
    able to be confident that stepping forward to expose wrongdoing will
    not result in retaliation, and should provide a system to hold
    retaliators within the VA accountable.
    ---------------------------------------------------------------------------
        \16\ Adam Miles, email message to POGO Executive Director Danielle
    Brian, ``Re: for my Senate Approps testimony,'' July 27, 2015.
    ---------------------------------------------------------------------------
        Congress should also extend whistleblower protections to
    contractors and veterans who raise concerns about medical care provided
    by the VA. POGO's investigation found that both of these groups also
    fear retaliation, which prevents them from coming forward. Contractors
    are only currently protected under a pilot program, but need permanent
    statutory protections. In addition, a veteran who is receiving poor
    care should be able to speak to his or her patient advocate without
    fear of retaliation, including a reduction in the quality of
    healthcare. Without this reassurance, there is a disincentive to report
    poor care, allowing it to continue uncorrected.
        The VA and Congress must work together to end this culture of fear
    and retaliation. Whistleblowers who report concerns that affect veteran
    health must be lauded, not shunned. And the law must protect them.
        The Government has failed in its sacred responsibility to care for
    our veterans. It is our collective duty to help the whistleblowers who
    have taken risks to fix this broken agency.

        [Clerk's Note.--See letter submitted by Danielle Brian at
    the end of the hearing in the ``Material Submitted Subsequent
    to the Hearing''.]

        Senator Kirk. Thank you.
        Ms. Halliday.
    STATEMENT OF LINDA A. HALLIDAY, DEPUTY INSPECTOR
                GENERAL, OFFICE OF THE INSPECTOR GENERAL,
                DEPARTMENT OF VETERANS AFFAIRS
        Ms. Halliday. Mr. Chairman, thank you for the opportunity
    to discuss how VA OIG interacts with complainants and
    whistleblowers. This is my first hearing as the Deputy
    Inspector General and I look forward to continuing a working
    relationship between the OIG and the Congress.
        I have testified at congressional hearings in my previous
    role as the Assistant Inspector General for audits and
    evaluations, which was the largest line office within the OIG,
    and I now welcome the opportunity to share with you the work of
    all components of our Inspector General. I am accompanied by
    Ms. Maureen Regan, Counselor to the Inspector General, and Mr.
    David Daigh, the Assistant Inspector General for Health Care
    Inspections.
        I assumed the position of the Deputy Inspector General on
    July 6th, 2015. In the past three weeks, I have taken several
    immediate steps to strengthen both the OIG's internal
    whistleblower program, as well as our Whistleblower Protection
    Ombudsmen Program. These actions are outlined in my written
    statement. I took these actions to establish clear expectations
    and set a tone at the top for our organization regarding the
    importance of how we protect whistleblowers' rights and
    confidentiality.
        The OIG is the primary oversight body for receiving and
    reviewing allegations of waste, fraud, abuse, and mismanagement
    in VA programs and operations. And our hotline serves as the
    central point-of-contact for individuals to report allegations.
    We take this seriously, our responsibility not to disclose the
    identity of an employee who has made a complaint or provided
    information. When individuals contact us, we advise them of
    their right to submit their complaint anonymously, to identify
    themselves but remain confidential, or to waive the right of
    confidentiality and advise them of the potential consequences
    of the decision. All complaints are evaluated.
        Using our available but limited resources, we must be
    highly selective in the cases we accept. We also make case
    referrals to VA in accordance with our complaint referral
    directive. We make every effort to make sure an official,
    separate from and at a higher grade than the alleged wrongdoer,
    is responsible for conducting the review of the allegations. We
    continue our inquiry until we are satisfied or we will open a
    case to review the matters further.
        In many cases, these referrals involve veterans' complaints
    regarding specific episodes of medical care. And it is not
    possible for VA to review the complaint without the OIG
    disclosing the identity of the complainant.
        Before taking any action, we advise the complainant and
    request that they provide their written consent to the OIG to
    disclose their identity. If they say no, it goes no further.
        There is a lot of confusion on the role of the Inspector
    General regarding whistleblowers and allegations of
    retaliation. For example, the OIG does not make a determination
    as to whether an individual who makes a complaint or provides
    information to us has made a protected disclosure. This is a
    legal determination made by the Office of Special Counsel, the
    Merit Systems Protection Board, or the U.S. Court of Appeals
    for the Federal Circuit. These entities have the authority to
    provide direct whistleblower relief.
        OIG faces many challenges in addressing allegations
    reported by complainants. Vague allegations often present a
    task akin to looking at needle in a haystack. For example, it
    is difficult for us to adequately review a complaint of poor
    quality of surgical care without details of which clinics
    involved. We cannot contact an individual to obtain additional
    information regarding an allegation if they choose to remain
    anonymous. Similarly, some complainants initially identify
    themselves, but later are unable to or decline to provide
    critical information that could enable VA OIG to focus
    resources more specifically.
        The OIG works to protect the identity of complainants who
    request confidentiality, at times the complainants become known
    based on other sources of information. Some individuals who
    have requested confidentiality voice the same complaints to VA
    management, coworkers, media outlets, and they have made
    statements that they are going to come to us or they have come
    to us.
        Everyone has their own perception as to what is going on.
    From the whistleblower perspective, they may see the OIG coming
    in and making sure that the i's are dotted and the t's are
    crossed. From our viewpoint, we are making sure that all the
    bases are covered. We have different challenges in verifying
    allegations; especially those complaints that could be
    criminal. The OIG looks to partially determine the who, what,
    when, where, and why while examining information in a fact-
    based approach.
        We need whistleblowers to bring the central issue forward.
    Although whistleblower's perceptions are directly related to
    their complaint, at times they are not in a position to know
    all the facts or they over emphasize the viewpoint.
        Mr. Chairman, we are not on anyone's side. We are here to
    find the truth. I appreciate the opportunity to hear from the
    whistleblowers today and to address these important issues. I
    am continuing to reevaluate our business processes to ensure
    that they provide adequate protections for complainants
    including whistleblowers.
        This concludes my statement and I would be happy to answer
    any questions.

        [The statement follows:]
                    Prepared Statement of Linda A. Halliday
        Mr. Chairman and members of the subcommittee, thank you for the
    opportunity to discuss how the VA Office of Inspector General (OIG)
    interacts with complainants and whistleblowers. This is my first
    hearing as the Deputy Inspector General and I look forward to
    continuing the working relationship between the OIG and the Congress. I
    have testified at congressional hearings in the past regarding projects
    and reports of the OIG's Office of Audits and Evaluations, and now I
    welcome the opportunity to share with you the work of all components of
    the OIG. I am accompanied by Maureen T. Regan, Counselor to the
    Inspector General and John D. Daigh, Jr., MD, CPA, Assistant Inspector
    General for Healthcare Inspections.
                                   background
        Under the Whistleblower Protection Act of 1989, it is unlawful for
    agencies to take or threaten to take a personnel action against an
    employee who makes a protected disclosure--information he or she
    reasonably believes evidences a violation of any law, rule, or
    regulation; gross mismanagement; a gross waste of funds; an abuse of
    authority; or a substantial and specific danger to public health and
    safety. Personnel actions can include a poor performance review,
    demotion, suspension, or termination. In addition, the law prohibits
    retaliation for filing an appeal, complaint, or grievance; helping
    someone else file or testifying on their behalf; or cooperating with or
    disclosing information to the OIG.
        The OIG does not make a determination as to whether an individual
    who makes a complaint or provides information to the OIG has made a
    protected disclosure as defined under the Whistleblower Protection Act
    of 1989, as amended, and applicable case law to be considered a
    ``whistleblower.'' This is a legal determination made by the U.S.
    Office of Special Counsel (OSC), the U.S. Merit Systems Protection
    Board (MSPB), or the U.S. Court of Appeals for the Federal Circuit.
        The OIG Whistleblower Protection Ombudsman program provides
    education about protections for current or former employees of VA, VA
    contractors, or VA grantees who make protected disclosures. The
    Ombudsman coordinates with VA administrations and staff offices to
    increase awareness of prohibitions on whistleblower retaliation. In
    addition, the program disseminates information on rights and remedies
    against retaliation for making protected disclosures. Specifically, the
    Ombudsman provides complainants with information on how to contact
    organizations that address reprisal allegations. This program was
    authorized by the Whistleblower Protection Enhancement Act of 2012,
    which became law on November 27, 2012. The OIG Ombudsman cannot act as
    a legal representative, agent, or advocate of the employee or former
    employee.
                              oig hotline process
        Complainants, including whistleblowers, are the lifeline of OIG
    organizations, and the OIG is committed to protecting their identities,
    understanding their concerns, objectively seeking the truth, and
    ensuring VA pursues accountability and corrective action for
    wrongdoing. The Inspector General Act of 1978 (IG Act), as amended,
    authorized the OIG to accept allegations from individuals concerning
    criminal activity, fraud, waste, abuse, and mismanagement of VA
    programs and operations.
        The OIG Hotline serves as the central point of contact for
    employees, veterans and their family members, other Federal agencies,
    and the general public to report allegations. The OIG Hotline receives
    contacts via telephone, email, Internet, U.S. mail, and facsimile. The
    OIG takes seriously the provisions of Section 7(b) of the IG Act that
    prohibits the disclosure of the identity of an employee who has made a
    complaint or provided information to the OIG unless the employee
    consents to the disclosure or, in very rare occasions, the VA Inspector
    General personally determines such disclosure is unavoidable during the
    course of an investigation. When individuals contact our Hotline, they
    are advised of their right to submit their complaint anonymously, to
    identify themselves but remain confidential, or to waive the right to
    confidentiality, and of the potential consequences of their decision.
    Confidential status allows further communication between the OIG and
    the complainant after the original complaint is received. It is more
    advantageous to both the OIG and the complainant than anonymous status.
        All complaints are logged and receive a preliminary evaluation by a
    Hotline analyst. Based upon the nature and substance of the complaint,
    the Hotline analyst determines whether the complaint merits referral to
    one of the Directorates within the OIG--the Office of Investigations,
    the Office of Audits and Evaluations, or the Office of Healthcare
    Inspections--for further evaluation. If one of these Directorates
    accepts the complaint, the Hotline analyst will notify the complainant
    that a case has been opened.
        Because we receive more complaints that we have the resource
    capacity to review, we also make case referrals to VA of the complaints
    that are not appropriate for an OIG case but that appear to warrant
    further review, such as allegations of staff rudeness or medication
    refill problems. In these instances, the appropriate VA facility or
    program office is responsible for conducting an independent review and
    promptly reporting back to the OIG on the findings of their review
    within 60 days. The OIG does not identify the complainant to VA when
    making these referrals without the complainant's authorization.
        The OIG does not evaluate complaints regarding matters that are
    unrelated to the programs and operations of VA or that can be addressed
    in other legal or administrative forums. When possible, the OIG refers
    the complainant to the appropriate VA program office or Federal agency
    that can provide further assistance on the matter. For example,
    individuals with complaints regarding claim adjudications for VA
    disability and pension benefits are advised to contact the Veterans
    Benefits Administration (VBA); individuals with complaints regarding
    discrimination are advised to contact VA's Office of Resolution
    Management (ORM); and individuals with allegations of prohibited
    personnel practices, including reprisal for whistleblowing, are advised
    to contact OSC. We also do not review complaints of poor quality of
    care when the veteran or family has filed an administrative tort claim.
    Those investigations are the responsibility of the Office of General
    Counsel.
        For the 18-month period of October 1, 2013, through March 31, 2015,
    the OIG Hotline received more than 62,000 contacts. Over 7,800 (12.5
    percent) of those contacts came from VA employees, and 1,545 (2.5
    percent) contacts were from individuals raising concerns about
    retaliation or reprisal. Despite changes to our Hotline website that
    advise complainants of the limitations of anonymous submissions,
    approximately 20 percent (297) of the 1,545 complaints were from
    anonymous sources. Unfortunately, in these situations, the OIG can only
    provide generic education and instruction on whistleblower avenues of
    relief, which is available on our website. For the remaining 80 percent
    of complaints received via the Hotline:

      --477 complainants were advised to contact OSC.
      --54 complainants were advised to contact MSPB.
      --717 complainants were advised to contact ORM.
            oig interaction with the u.s. office of special counsel
        When OSC receives a complaint from a current or former employee
    alleging retaliation for making a protected disclosure to the OIG, OSC
    investigators contact the OIG's Release of Information Office to obtain
    relevant records and other information. In response, the OIG has
    provided the records requested, consistent with applicable laws and
    regulations affecting those records, engaged in discussions relating to
    what records or other information we have regarding any disclosures to
    the OIG, and made OIG personnel available for interview.
                    challenges for the oig and complainants
    Vague Allegations From Anonymous Complainants
        It is critical in most instances that the OIG be able to
    communicate with the complainant to understand the nature of the
    complaint so as to effectively address the issue; otherwise, we are
    often left with a task akin to looking for ``a needle in a haystack.''
    For example, if a complainant makes a serious but vague allegation that
    surgery at a medical center is of poor quality, but does not provide
    any further information, it is difficult to address the complainant's
    issues. The OIG's ability to contact the complainant to obtain
    additional, more specific information is of paramount importance to
    fully address the complainant's issue. Examples of information critical
    to completion of our reviews could include which surgical service is
    involved (General Surgery, Neurosurgery, or Podiatry); location
    (inpatient operating room or outpatient day surgery); specific
    providers' names; the time period; and the definition of quality of
    care (timely, mortality rate, or morbidity rate).
        When an individual chooses to remain anonymous and does not provide
    sufficient information to assess or conduct a review of the complaint,
    the OIG cannot contact that person to obtain additional information
    regarding the allegation such as testimonial or documentary evidence,
    the identity of the patients impacted, the providers involved, or other
    witnesses, and we cannot inform the complainant as to what action the
    OIG has taken on the complaint. Similarly, a complainant may initially
    identify himself or herself to the OIG but later declines to provide
    critical information to enable the OIG to conduct a thorough review of
    the allegations. In these instances, we often have no choice but to
    discontinue processing the complaint.
    The Need to Disclose a Complainant's Identity
        In certain circumstances, it may be unavoidable to disclose a
    complainant's identity to VA in order for the allegation to be
    reviewed. For example, we receive many veteran-specific complaints
    regarding specific episodes of VA medical care, contracting issues, and
    mismanagement. Because we receive more allegations than we have the
    resources to review, we often make a case referral to the appropriate
    Veterans Health Administration (VHA) facility or other VA program
    office for review. In cases where it is not possible to review the
    complaint without disclosing the identity of the complainant, we advise
    the complainant and, before taking any further action on the complaint,
    request that they provide their written consent for the OIG to disclose
    their identity.
    Protecting Complainant Confidentiality
        On rare occasions, we receive complaints that OIG staff breached
    the confidentiality of a complainant. When this occurs, we investigate
    the allegations and take administrative action when the complaint is
    substantiated. There are also many instances where individuals who have
    requested confidentiality with the OIG have made the same complaints to
    VA management, coworkers, or media outlets, or they have made
    statements that they have gone to the OIG or threatened to go to the
    OIG. Even though the OIG does not disclose the identity of the
    complainant, either overtly or by refusing to confirm that the
    individual submitted a complaint, VA knows or, at a minimum suspects,
    that the individual filed the complaint. Furthermore, under certain
    circumstances, the very nature of the allegations brought forth by the
    complainant may render the complainant's identity obvious or possible
    to deduce by others outside the OIG.
    Budgetary Constraints
        The surfacing of allegations in fiscal year 2014 related to wait
    times and delays in care at the Phoenix VA Health Care System (PVAHCS)
    was a watershed event for VA and the OIG. The national attention
    sparked by reporting on PVAHCS led to an increased public awareness of
    the OIG and resulted in a dramatic increase in the number of contacts
    to the OIG Hotline, in the number of inquiries sent to us by Members of
    Congress, and by veterans and their families. In fiscal year 2014, the
    OIG Hotline received almost 40,000 contacts, which represented a 45
    percent increase from fiscal year 2013.
        During the first half of fiscal year 2015, we received over 22,400
    contacts, which puts us on pace to surpass fiscal year 2014's record-
    breaking year. Similarly, we saw a 38 percent increase in the number of
    inquiries from Members of Congress, and we expect this upward trend to
    continue.
        The OIG operates in a resource constricted environment with respect
    to the number of allegations and national reviews we are able to
    address. Because of this, the OIG must be highly selective in the cases
    we accept. In fiscal year 2013, the OIG opened cases for 1,227 (4.5
    percent) of the 27,420 contacts we received. In fiscal year 2014,
    although we received more contacts (39,874) and opened more cases
    (1,330) than the previous year, the percentage of cases opened dropped
    to 3.3 percent.
        Due to significant and sustained increases in the number of Hotline
    contacts the OIG receives, we have increased our Hotline staff by three
    positions within the last year. At present, there are 15 staff members
    in Hotline including 3 supervisors and 12 analysts. I am reviewing
    staffing levels throughout the organization including OIG line
    directorates; however, the outlook in fiscal year 2016 is not
    advantageous to increasing staff levels in one part of the organization
    without increasing levels in other Directorates.
                               recent initiatives
        I assumed the position of Deputy Inspector General (IG) on July 6,
    2015. On July 10, 2015, I announced that one of my first acts as Deputy
    IG would be to ensure that all OIG employees are fully trained on
    protections and remedies guaranteed to Federal employees by the
    Whistleblower Protection Act of 1989, the Whistleblower Protection
    Enhancement Act of 2012, and related laws. To this end, the OIG has
    registered with OSC to participate in the OSC's 2302(c) Certification
    Program and expects to complete all required actions for certification
    by December 2015. Undertaking the certification process will help
    strengthen our past training efforts so that all OIG employees--from
    our Hotline analysts who are a complainant's first point of contact
    with the OIG to our auditors, investigators, and healthcare inspectors
    who interact with complainants in the course of their daily work
    activities--can assist complainants in making protected disclosures and
    by educating them on their right to be free from retaliation for
    whistleblowing and other prohibited personnel practices.
        I have also taken several actions to further strengthen the OIG's
    Whistleblower Protection Ombudsman program.

      --Improved Hotline submission process.--In order to better serve
            complainants and address complainant concerns of potential
            retaliation in an informed manner, we have created additional
            forms on our website designed to ensure anonymity,
            confidentiality, or allow for full identity disclosure.
            Providing these different classifications will allow
            complainants a greater degree of confidence that their personal
            information is appropriately protected. We also rewrote in
            plain English the notice Hotline sends to individuals who
            contact us so that there is a clear understanding of what to
            expect when making a complaint.
      --Reinvigorated the OIG Rewards Program.--To promote greater
            utilization of the OIG's cash reward program to individuals who
            disclose information leading to felony charges, monetary
            recovery, or significant improvements to VA operations or
            programs, each OIG Directorate and the OIG Whistleblower
            Ombudsman will proactively conduct a semiannual review of
            disclosures made to the OIG to identify potential recipients
            for cash rewards. Rewards will be based on such factors as the
            significance of the information, risks to the individual making
            the disclosure, time spent and expenses incurred by the
            individual making the disclosure, and cost savings to VA.
            Recipients will be recognized at either a public or private
            presentation according to their preference.
      --Enhanced crime awareness education briefing.--These briefings,
            provided by our criminal investigators as part of cyclical
            inspection reviews of VHA and VBA facilities, will be expanded
            to better define how VA employees can make disclosures of
            protected health information, the roles and responsibilities of
            the Whistleblower Protection Ombudsman, and the avenues of
            relief available to VA employees. For the period fiscal year
            2014 to present, a total of more than 300 briefings were
            attended by approximately 20,000 VA employees nationwide.
                                   conclusion
        The OIG recognizes the critical role complainants and
    whistleblowers play in exposing serious problems and deficiencies in VA
    programs and operations, and I will continue to review and evaluate
    ways in which the OIG can enhance its interactions with complainants.
    We are committed to protecting the identity of any person who comes
    forward to the OIG to report serious allegations of criminal activity,
    fraud, waste, abuse, and mismanagement; getting to the bottom of those
    allegations; and monitoring VA to ensure they pursue accountability and
    corrective action when wrongdoing is found. We are committed to work on
    behalf of complainants and whistleblowers to ensure that VA operates in
    a manner that is befitting those veterans who have served to protect
    our country and our country's principles. Mr. Chairman, this concludes
    my statement and I would be happy to answer any questions that you or
    members of subcommittee may have.

        [Clerk's Note.--See three letters and a fact sheet
    submitted by Linda A. Halliday at the end of the hearing in the
    ``Material Submitted Subsequent to the Hearing''.]

                               IG SUBPOENAED POGO

        Senator Kirk. Ms. Halliday, let me ask you a question. We
    have Danielle Brian here from POGO. Where her organization set
    up a hotline for VA employees, she got 800 complains. You hit
    POGO with a subpoena asking for all those names. It would seem
    that you wanted to retaliate against all of POGO's
    whistleblowers. Why did you issue that subpoena?
        Ms. Halliday. I did not issue that subpoena. And I think
    there might be a communications breakdown.
        From what I understood, the concern of the Inspector
    General was to understand all of the issues with relation to
    the manipulation of wait times, to make sure that we had the
    sites identified, and we had all of the sites where potential
    patient harm could occur. That was the method used. Certainly,
    we understood that POGO did not have the authority to
    investigate these and we did.
        Senator Kirk. Do you understand the feeling that, based on
    this record that this subcommittee has received, you were
    subpoenaing POGO to make sure that you could retaliate against
    those 800 people?
        Ms. Halliday. I understand that POGO could have that
    perception. I do not think that was the perception of the
    Inspector General.
        We had 98 sites identified where there was potential
    manipulation of data. VA had approximately 150 sites plus all
    at CBOCs. We were not sure if we had all the information and
    something that POGO may have received and we didn't even care
    if we had the name; as far as I knew. We just needed to know
    the site and should we look at it, what's the egregiousness of
    the complaint. So I do think that there might have been some
    communication issues here.
        Ms. Brian. Mr. Chairman.
        Senator Kirk. Ms. Brian, if the situation is as Ms.
    Halliday says, that the confidentiality is at the cornerstone
    of the Inspector General's work, then they have no interest in
    getting the identities of the people who complained at POGO.
        Ms. Brian. Yes. Thank you, Mr. Chairman, for an opportunity
    to clarify. There was no confusion. It is true that Ms.
    Halliday wasn't there at the time. But Counselor Maureen Regan,
    of her office, contacted POGO's General Counsel and we told
    them right away we were very happy to work with them to give
    them any information that we were getting without having to
    give any identifying information about the individuals with
    whom we were speaking. We had every interest and we wrote that
    in an email to them saying, ``Give us a second, we're
    overwhelmed, but as soon as we get capacity to let you know
    what we're finding and where it is we are happy to talk to
    you.'' And then the next day, we received a subpoena
    specifically asking for the identities of the people who had
    contacted us.
        Senator Kirk. Ms. Halliday, if I asked you to withdraw that
    subpoena, what would you say back to me?
        Ms. Halliday. At this point, I would hope that there was no
    information at POGO that would have resulted in patient harm
    that we wouldn't know about to go take a look at. I'd like to
    ask Maureen Regan to come up----
        Senator Kirk. Behind you----
        Ms. Halliday [continuing]. If she'd like to----
        Senator Kirk. Behind you is Dr. Lisa Nee who, within 24
    hours of complaining to the Inspector General, her identity was
    disclosed to her workmates. It seems that the disclosure of a
    confidential source is routine at the Inspector General's
    office.
        Ms. Halliday. I'd like to speak to that. I definitely heard
    Dr. Mitchell, what she said. And I believe what the confusion
    is her complaint went from Senator McCain's office to VA. It
    did not come directly to us. As a result, it is very hard for
    us to protect confidentiality, and I do not believe that the
    reprisal actions came from our office based on the facts that
    I'm looking at now. However, it did go to VA and it came down
    the tree from VA headquarters to the VISN, to the the medical
    center. And I can understand some of the frustration that Dr.
    Mitchell has.
        Senator Kirk. Danielle, I would expect that--could you talk
    about this quashing the subpoena and the work on that? I would
    expect that if you gave the information to the Inspector
    General's office, those 800 employees would receive severe
    retaliation.
        Ms. Brian. Oh, there is no doubt in our mind that that was
    an unacceptable step for us. The purpose of our organization is
    to protect the people who are coming to us and so that there is
    never a question that we were never going to turn over the
    identities. So I agree with you, sir.
        Senator Kirk. Could you describe the prospects of not
    complying with the subpoena?
        Ms. Brian. Well, it has expired and we are waiting because
    they haven't withdrawn the subpoena. What the VA Inspector
    General need to do is go to a court and have the court enforce
    it and there has been a number of Senators, like yourself, who
    have questioned the Inspector General and why they have done
    this and would they withdraw it. And they haven't been willing
    to do so. I believe that this matter has been turned over to
    the CIGI Integrity Committee for review as well.
        Senator Kirk. It would seem to me, Ms. Halliday, that your
    predecessor made a mistake by issuing this subpoena. I would
    ask you to withdraw it.
        Ms. Halliday. I will take that under strong consideration.
        Senator Kirk. Thank you.
        Ms. Brian. Thank you, Chairman.
        Senator Kirk. You bet.
        Okay, Ms. Lerner.

                           OFFICE OF SPECIAL COUNSEL

    STATEMENT OF CAROLYN M. LERNER, SPECIAL COUNSEL
        Ms. Lerner. Chairman Kirk, Ranking Member Tester and
    members of the subcommittee, thank you for the opportunity to
    testify today about the U.S. Office of Special Counsel (OSC)
    and our work with VA whistleblowers.
        Given the time limitations, my statement today will focus
    on just three areas. First, OSC's role in whistleblower
    disclosures and whistleblower retaliation cases. Second, an
    overview of progress made in the past year. And finally, some
    areas of ongoing concern.
        Starting with our role, OSC helps employees who make
    disclosures of wrongdoing and those who experience retaliation
    for doing so. There are separate processes for these two types
    of cases. If an employee discloses a health or safety concern
    or a violation of law, rule, or regulation and it meets a very
    high standard of review, I send the matter to the agency for
    investigation. After investigating, the agency head must then
    submit a report to my office. The whistleblower is given an
    opportunity to comment on that report. I then determine whether
    the report contains the information required by statute and
    also whether the findings of the agency appear to be
    reasonable. This includes whether appropriate corrective
    action, including discipline, has been taken. I then send that
    information and our findings to the President and Congress, and
    I also post them on our public Web site. That is the process
    for disclosures.
        OSC also protects Federal workers from prohibited personnel
    practices, especially retaliation for whistleblowing. Unlike
    disclosure cases, where we do not have independent
    investigative authority, in retaliation cases OSC conducts the
    investigation and determines if retaliation has occurred. We
    can get relief for the employee including a stay of any
    disciplinary action, reversing a termination, and damages for
    any losses they may have suffered as a result of retaliation.
    So that, in a nutshell, is our process for whistleblower
    disclosures and whistleblower retaliation complaints.
        In over the past year, there has been a tremendous surge of
    cases from the VA. I will talk now about how our agency is
    addressing them and some signs of progress.
        OSC has about 140 employees with jurisdiction over most of
    the Federal Government. So we are stretched pretty thin. But we
    have reallocated our resources to prioritize our work on VA
    cases. And perhaps most significantly, we implemented an
    expedited review process for retaliation cases. This process
    allows OSC to present strong cases to the VA at an early stage
    saving significant time and resources and getting quicker
    relief for employees.
        In the past year, we have obtained 22 corrective action for
    VA whistleblowers through this expedited process, including a
    settlement on behalf of Dr. Katherine Mitchell, who you heard
    from earlier, and two other Phoenix VA employees who were at
    the heart of the wait time scandal. My written testimony
    summarizes a number of the other cases we resolved through this
    expedited program, including three VA whistleblower complaints
    settled just last week.
        It is a sign of progress that the VA leadership agreed to
    the expedited review process and also agreed to resolve many
    more cases through our regular processes, including mediation;
    99 to be exact. We are also encouraged that VA leadership has
    enlisted our assistance in training its counsel in retaliation
    law.
        On the disclosure side, our work has led to important
    improvements at the VA as well as discipline for over 40
    officials with many more cases pending. These disciplinary
    actions include the termination of employees who failed to
    properly safeguard patient information and the suspension of
    four employees who improperly handled and restocked expired
    prescription drugs. So these are some of the positive steps
    that we are seeing.
        There are, however, several ongoing areas that require more
    attention. Of particular concern, is the accessing of
    employees' medical records. In many instances, VA employees are
    themselves veterans and receive care at VA facilities. In
    several cases, their medical records have been accessed without
    adequate justification, possibly to discredit them. We have and
    will continue to pursue relief for these whistleblowers, and
    discipline for those who improperly access medical records. I
    have also notified the VA that it should consider system-wide
    corrective action, which could deter these types of breaches.
        Finally, I want to comment briefly on the two
    whistleblowers who testified on the first panel. OSC recently
    received the VA reports generated in response to the
    disclosures made by Drs. Mitchell and Nee. After our review,
    and Drs. Mitchell and Nee had the opportunity to comment on
    those reports, we will formerly transmit the information to
    Congress and the President. Given where we are in the process,
    I can't provide details about these matters at this time.
    However, I can say that Drs. Mitchell and Nee exemplify the
    courage and tenacity that are necessary to overcome obstacles
    to change in an organization like the VA. While work still
    needs to be done, their efforts will lead to improved care in
    Phoenix and at Hines and I want to thank them both.
        In conclusion, we appreciate the committee's interest in
    our efforts to protect VA whistleblowers. Thank you for this
    opportunity to testify and I am happy to answer any question
    that you many have.
        [The statement follows:]
                    Prepared Statement of Carolyn M. Lerner
        Chairman Kirk, Ranking Member Tester, and members of the
    subcommittee:

        Thank you for the opportunity to testify today about the U.S.
    Office of Special Counsel (OSC) and our work with whistleblowers at the
    Department of Veterans Affairs (VA). Since April 2014, our office has
    seen a dramatic increase in the number of whistleblower cases from VA
    employees. These cases fall into two categories, retaliation complaints
    and disclosures of misconduct.
        In response to retaliation complaints, we have secured relief for
    dozens of VA whistleblowers, helping courageous employees restore
    successful careers at the VA. The number of victories for
    whistleblowers is increasing steadily, with improved cooperation from
    the VA and our expedited review process for retaliation complaints. In
    2015, we will more than double the total number of favorable outcomes
    for whistleblowers achieved in 2014.
        Our work with whistleblowers in disclosure cases has improved the
    quality of care for veterans throughout the country and promoted
    accountability. The VA has disciplined or proposed discipline for 40
    employees as a result of the wrongdoing identified by whistleblowers in
    disclosures to OSC. These actions include the termination of employees
    who failed to properly safeguard patient information and the suspension
    of four employees who improperly handled and restocked expired
    prescription drugs.
        This statement describes our process for investigating retaliation
    complaints and reviewing whistleblower disclosures. It provides updated
    statistical information on case numbers and outcomes, and summarizes
    recent cases in which OSC secured relief for whistleblowers. Finally,
    it highlights areas of concern from the investigation and review of
    hundreds of these claims.

    OSC Investigations of Whistleblower Retaliation Complaints
                A. Process

        OSC investigates allegations of whistleblower retaliation, one of
    the 13 ``prohibited personnel practices'' that Federal employees may
    challenge with our office. After receiving a retaliation complaint, we
    conduct an investigation to determine whether the employee has been
    fired, demoted, suspended, or subjected to some other personnel action
    because the employee blew the whistle. If OSC can demonstrate that a
    personnel action was retaliatory, we work with the agency to provide
    relief to the employee. Relief can include reinstatement, back pay, and
    other remedies, including monetary damages. OSC also commonly works
    with the agency involved to implement systemic corrective actions, such
    as management training on whistleblower protections. Frequently, we
    resolve cases through alternative dispute resolution, including
    mediation. If the agency does not agree to provide the requested relief
    to the employee, either through mediation or based on our investigative
    findings, we have the authority to initiate formal litigation on behalf
    of the whistleblower before the Merit Systems Protection Board (MSPB).
    In egregious cases, we can also petition the MSPB for disciplinary
    action against a subject official.

                B. VA Retaliation Complaints, by the Numbers

        Government-wide, OSC is on track to receive over 3,800 prohibited
    personnel practice complaints in 2015. Over 1,300 of these complaints,
    or approximately 35 percent, will be filed by VA employees. In 2014,
    for the first time, the VA surpassed the Department of Defense in the
    total number of cases filed with OSC, even though the Defense
    Department has twice the number of civilian employees as the VA.
        We have taken a number of steps to better respond to this
    tremendous surge in VA complaints. We reallocated a significant
    percentage of our program staff to work on VA cases. I assigned our
    deputy special counsel to supervise investigations of VA cases, and we
    hired an experienced senior counsel to further coordinate our
    investigations of VA cases. We prioritized the intake and initial
    review of all VA health and safety related whistleblower complaints and
    streamlined procedures to handle these cases. And, we established a
    weekly coordinating meeting on VA complaints with senior staff and case
    attorneys.
        Although we have dedicated more staff and resources to these
    investigations, the volume of incoming VA complaints remains
    overwhelming. As I noted in testimony before the House Committee on
    Veterans' Affairs (HVAC) last year, the number and ``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.'' I am pleased to report
    that we are receiving that cooperation from VA leadership.
        Working with the VA's Office of General Counsel (OGC), we
    implemented an expedited review process for whistleblower retaliation
    cases. This process allows OSC to present strong cases to the VA at an
    early stage in the investigative process, saving significant time and
    resources. To date, we have obtained 22 corrective actions for VA
    whistleblowers through this process, including a landmark settlement on
    behalf of Dr. Katherine Mitchell, who testified today, and two other
    Phoenix VA Medical Center (Phoenix VAMC) employees. The Phoenix VAMC
    cases were the first to be settled through the expedited program. My
    April 2015 testimony before HVAC summarized a number of the other cases
    we resolved in collaboration with the VA through the expedited process.
    I have attached that statement for reference.

        Last week, OSC announced the resolution of three additional VA
    whistleblower complaints. These cases are summarized here:

              Ryan Honl.--Mr. Honl was a secretary in the mental health
            unit at the Tomah VA Medical Center in Tomah, Wisconsin. In
            addition to other concerns, he disclosed the alleged excessive
            prescription of opiates to patients. On the same day he made a
            disclosure to the VA Office of Inspector General, the VA
            stripped Mr. Honl of his job duties, locked him out of his
            office, and isolated him from co-workers. Shortly thereafter,
            he resigned. The VA and Mr. Honl settled his complaint with Mr.
            Honl receiving several corrective actions, including the
            removal of negative information from his personnel file and
            monetary damages.
              Joseph Colon Christensen.--Mr. Colon is a credentialing
            support specialist with the VA Caribbean Health System in San
            Juan, Puerto Rico. Mr. Colon reported concerns relating to
            patient care at his facility and information about alleged
            improper conduct by the director of his facility. In September
            2014, two days after a newspaper called the facility's director
            asking for comment on a story about the director's conduct, the
            facility's chief of staff issued Mr. Colon a notice of proposed
            removal. In late December, the VA replaced the proposed removal
            with a three-day suspension and detailed him to a different
            position. Prior to his disclosures, Mr. Colon had an
            unblemished disciplinary history at the VA and had received
            ``outstanding'' performance reviews. The VA and Mr. Colon
            settled his retaliation complaint with Mr. Colon receiving
            several corrective actions, including the repeal of his
            suspension, a return to his position, and compensatory damages.
              Troy Thompson.--Mr. Thompson is a food services manager with
            the Philadelphia VA Medical Center. In 2012, Mr. Thompson
            reported management inaction on disciplinary issues and several
            violations of VA sanitation and safety policies, including a
            fly and pest infestation in facility kitchens. On the same day
            he made these disclosures to his supervisor, the supervisor
            detailed Mr. Thompson to the VA's Pathology and Lab Service
            pending an investigation into him for eating four expired
            sandwiches worth a total of $5. His new job mostly consisted of
            janitorial work, including sanitizing the morgue and handling
            human body parts. Mr. Thompson already had admitted that he ate
            and gave away the sandwiches instead of disposing of them per
            VA practice. After the VA investigation concluded he had stolen
            government property (the sandwiches), he was issued a proposed
            removal and fined $75. Mr. Thompson spent over 2 years on the
            detail and was under the pending removal for most of that time.
            The VA ultimately took positive steps to address his case by
            reassigning him to his previous position and rescinding the
            proposed removal. OSC determined, however, that the VA also
            owed Mr. Thompson compensatory damages, which the VA has agreed
            to provide as part of a settlement.

        These are important victories for employees who risked their
    professional lives to improve VA operations and patient care. In
    addition to cases resolved through the expedited relief program, we are
    steadily increasing the number of corrective actions in all VA cases.
    In 2014 and 2015 to date, OSC has secured either full or partial relief
    99 times for VA employees who filed whistleblower retaliation
    complaints, including 66 in fiscal year 2015 alone. These positive
    outcomes are generated by the OSC-VA expedited settlement process,
    OSC's normal investigative process, and OSC's Alternative Dispute
    Resolution, or mediation, program. In addition, OSC is also currently
    reviewing the retaliatory conduct of six managers in three locations
    for possible disciplinary action.
        OSC currently has 316 active VA whistleblower retaliation cases in
    43 States, the District of Columbia, and Puerto Rico. Approximately 100
    of these pending cases allege retaliation for blowing the whistle on a
    patient health or safety concern. We will continue to update the
    subcommittee as we resolve additional cases in the coming months.

    Whistleblower Disclosures
                A. Process

        In addition to protecting employees from retaliation, OSC also
    provides Federal workers a safe channel to disclose violations of law,
    rule, or regulation; gross mismanagement; a gross waste of funds; an
    abuse of authority; or a substantial and specific threat to public
    health or safety. Unlike our role in retaliation complaints, OSC does
    not have investigative authority in disclosure cases. Rather, OSC plays
    a critical oversight role in agency investigations of alleged
    misconduct.
        After receiving a disclosure from a Federal employee, OSC evaluates
    the information to determine if there is a ``substantial likelihood''
    that wrongdoing exists. If OSC makes a ``substantial likelihood''
    determination, we transmit the information to the head of the
    appropriate agency. The agency head, or their designee, is required to
    conduct an investigation and submit a written report on the
    investigative findings. The whistleblower is given the opportunity to
    comment on the agency report. After we review the agency report and the
    whistleblower comments, we transmit them with our analysis to the
    President and Congress and place the information on our website.
        This process promotes accountability and is transparent. We require
    agencies to investigate difficult subjects. And, the process empowers
    whistleblowers, most often the subject matter experts in the issues
    they have raised, to assess the quality of the agency investigation. In
    recent years, the OSC disclosure process has prompted significant
    changes in government operations, including an effort to modernize the
    pay structure for Border Patrol Agents, an action that saves taxpayers
    approximately $100 million a year--an amount over four times the size
    of OSC's annual budget.
        At the VA, our work with whistleblowers led to an overhaul of the
    VA's internal medical oversight office, the Office of the Medical
    Inspector (OMI), and has prompted positive changes throughout the
    department. For reference, I have attached my July 2014 testimony
    before HVAC, which provides a detailed summary of OSC's prior efforts
    to promote accountability through our disclosure program.

                B. VA Disclosure Cases, by the Numbers

        Government-wide, OSC will receive nearly 2,000 whistleblower
    disclosures from Federal employees in 2015.\1\ At current levels,
    approximately 750, or 37.5 percent, of these disclosures will be filed
    by VA employees.
    ---------------------------------------------------------------------------
        \1\ Each year, OSC receives a number of cases that are
    inadvertently filed by Federal employees as disclosures of wrongdoing,
    and properly should have been filed as retaliation complaints because
    the employee is seeking to remedy a personnel action. OSC is in the
    process of modernizing its online complaint filing system to make it
    more user-friendly and intuitive. With a smarter, more user-friendly
    interface for Federal employees, the new system will greatly diminish
    the historical problem of wrongly-filed disclosure forms. By
    diminishing the number of wrongly filed disclosure cases, the new
    system will provide a more accurate, but lower number of disclosure
    cases received in fiscal year 2016 and beyond. The changes may increase
    the number of retaliation complaints.
    ---------------------------------------------------------------------------
        Through OSC's disclosure channel, VA whistleblowers have identified
    and set in motion corrective action plans to address significant
    threats to the health and safety of veterans. For example, numerous
    whistleblowers at the Jackson, Mississippi VAMC helped to remedy
    chronic under-staffing in the Primary Care Unit, improper prescriptions
    of narcotics, and unsanitary medical equipment. A whistleblower at a
    Brockton, Massachusetts VA community living center exposed extreme
    shortcomings in the care provided to long-term mental health patients.
    And, two whistleblowers at a VA clinic in Fort Collins, Colorado, were
    among the first to identify VA efforts to manipulate data on patient
    wait times. These efforts all led to positive changes at the facility
    involved, leaving the hospital, clinic, and living center better able
    to provide quality care to veterans.
        As stated above, I have attached my prior testimony to the Veterans
    Affairs' Committee, which provides more extensive summaries of these
    cases and others. The reports are also available in the public file on
    OSC's website. https://osc.gov/Pages/
    Resources-PublicFiles.aspx.
        These employees' efforts not only improve the care provided to
    veterans, they also promote accountability and help to deter future
    misconduct. Over the last 2 years, the VA has taken or proposed
    disciplinary actions against 40 officials who engaged in misconduct
    identified by whistleblowers in disclosures to OSC. Some of these
    actions include:

      --Four pharmacy employees were suspended for the improper handling of
            prescription drugs as identified by a whistleblower in West
            Palm Beach, Florida.
      --Six employees were disciplined for pressuring employees to
            manipulate scheduling and wait time data in a case brought to
            light by two whistleblowers in Fort Collins, Colorado and
            Cheyenne, Wyoming. (One of the six, a high-level employee,
            retired pending a proposed removal.)
      --Two employees were disciplined, including one receiving a notice of
            proposed removal, for not properly reporting an alleged sexual
            assault, as disclosed by a whistleblower in Syracuse, New York.
      --A manager was disciplined for misrepresenting time spent in
            counseling sessions with veterans. The VA is currently
            reviewing the regional leadership's responsibility for lack of
            oversight on this issue in a case brought to OSC by a
            whistleblower in Federal Way, Washington.
      --A physician received a reprimand and ultimately resigned after a
            whistleblower in Montgomery, Alabama, exposed that the
            physician had cut and pasted medical records and vital signs,
            rather than taking current readings. OSC has requested that the
            VA review the appropriateness of the level of disciplinary
            action taken in this case.
      --Five employees received disciplinary actions, including two
            terminations, for failing to safeguard patient information, as
            disclosed by a whistleblower in Jackson, Mississippi.
      --A total of 12 employees in multiple locations have been disciplined
            for improperly accessing a whistleblower's medical records.

        OSC is in the process of reviewing the VA reports generated in
    response to disclosures made by Drs. Mitchell and Nee, who you heard
    from today. After our review and the whistleblowers' have the
    opportunity to comment, we will formally transmit the information to
    the Veterans Affairs Committees and the President.
        I cannot go into detail on the content of these reports at this
    time. However, I can say that Dr. Mitchell and Dr. Nee exemplify the
    courage and tenacity that is necessary to overcome obstacles to change
    in an organization like the VA. While work still needs to be done,
    their efforts will lead to improved emergency care in Phoenix and
    improved cardiology care at Hines.
        Indeed, we were delighted to present Dr. Mitchell with OSC's
    ``Public Servant of the Year'' award at a ceremony last year. At the
    event, VA Deputy Secretary Sloan Gibson commented on the importance of
    whistleblowers in prompting change. About Dr. Mitchell, he specifically
    noted, ``[W]hile we still have vast work to do, I believe that it's
    because of Dr. Katherine Mitchell that access to care in Phoenix is
    beginning to improve.'' I can certainly add that it is because of Dr.
    Lisa Nee that cardiology care is beginning to improve at Hines. I
    applaud both of these heroes.

    Areas of Ongoing Concern

        In my April 2015 testimony, I highlighted several ongoing areas of
    concern in our investigation and review of VA whistleblower cases. As
    stated, my April 2015 statement is attached here for reference. I want
    to add detail today on two of the issues I identified in April,
    accessing employees' medical records and retaliatory investigations.
    Also, I will discuss our concern about the pace of culture change
    within the local facilities and regional levels of the VA.

                A. Accessing Whistleblowers' Medical Records

        An ongoing concern is the accessing of employee medical records in
    order to discredit whistleblowers. In many instances, VA employees are
    themselves veterans and receive care at VA hospitals. In several cases,
    the medical records of whistleblowers have been accessed by those who
    had no legitimate reason for doing so, in some instances with the
    apparent motive of using the information contained in those records to
    discredit the whistleblowers. We have pursued and will continue to
    pursue relief for these whistleblowers and discipline for those who
    improperly access medical records. In February of this year, in a
    referral of a whistleblower disclosure, I notified the VA that it
    should consider system-wide corrective action to avoid these types of
    breaches.
        We have started to look more closely at this important issue. While
    we are not experts on record-keeping systems, our review of multiple
    cases in which an employee alleged improper access of their records
    leads us to believe that certain systemic changes could deter the
    retaliatory, accidental, and curiosity-fueled searches of
    whistleblowers' records.
        First, the VA should implement an IT fix to its records-keeping
    systems to make it more difficult for an employee to access a fellow
    employee's medical records. The VA should determine the most cost-
    effective way to both deter improper access to records while still
    ensuring that those with a legitimate need to access the records can do
    so easily. Quite simply, it is too easy right now for a mischief-minded
    employee to enter the medical record system and access information on
    his or her coworkers. That should not be the case. A better ``lock'' on
    the system would potentially eliminate, and certainly reduce, this
    problem.
        Second, a broader problem seems to exist within VistA--the Veterans
    Health Information Systems and Technology Architecture--or, the VA's
    Health IT system. VA employees routinely access the VistA system in
    order to obtain administrative and personnel information for employees.
    This use of a health information system to obtain both employment and
    medical information is problematic because it causes unnecessary
    searches of the medical records system, often to receive demographic
    information such as an employee's mailing address. In multiple
    investigations of improper access of medical records, the VA's
    justification for the searches was to access employee data, not medical
    information. Even where these searches are justified by VA procedures,
    there is a clear threat to an employee's privacy when medical records
    are accessed every time demographic or employment information is needed
    by HR or a manager. I understand that the VistA system may be
    undergoing a modernization effort. We believe the VA should address how
    to better segregate medical records from personnel or administrative
    information as part of this modernization effort.

                B. Retaliatory Investigations

        From a whistleblower protection standpoint, there are limitations
    in OSC's ability to address retaliatory access of medical records and
    other forms of retaliatory investigations. I should note that the VA
    has fully cooperated with our investigations and requests for review of
    improper records searches. However, a policy change may be appropriate
    to better equip OSC to address this unique form of retaliation.
        The whistleblower law allows OSC to seek relief in cases where
    there has been a concrete personnel action, such as a termination,
    demotion, suspension, or a decision concerning pay. Congress has not
    included ``an investigation'' as a personnel action that we can stop or
    fix, even if the reason for launching the investigation is retaliation
    for whistleblowing. There are obviously competing interests at stake.
    An agency needs to be able to conduct investigations of its employees,
    and managers should not feel chilled from investigating misconduct
    because it could lead to a whistleblower complaint. At the same time,
    current law leaves a gap in coverage for whistleblowers who are
    subjected to retaliatory investigations, including medical records
    searches.
        It is important to address these more subtle forms of retaliation,
    which have a negative effect on the whistleblower and their employment,
    and may chill others from blowing the whistle. However, under the
    current state of the law, it can be very difficult to challenge these
    less concrete retaliatory tactics. We will continue to investigate
    these actions as appropriate, but closing the statutory gap in our
    enforcement power may ultimately require a legislative fix.

                C. Culture Change Within the VA

        Another ongoing concern is that the cooperation and commitment we
    are seeing at VA headquarters has not consistently filtered down to the
    regions. For example, regional counsels do not necessarily have a clear
    understanding of what constitutes appropriate treatment of
    whistleblowers. In many cases, the regional counsel is the person who
    signed off on the very same retaliatory action that OSC challenges, and
    therefore should not be handling the individual case, or advising
    managers about their legal responsibilities.
        We think that the VA General Counsel's recent efforts to re-orient
    and sensitize regional counsel through training and other clear
    directives are extremely helpful and should be continued and expanded.
    We are particularly pleased that the General Counsel asked OSC staff to
    meet with VA regional counsels from all over the country this past
    April, and hope that we can continue such efforts. Also, OSC provided
    several high-level officials within the VA with in-person ``train the
    trainers'' training on whistleblower issues. Those officials can now
    act as force multipliers to go out and train others throughout the VA.
        It is worth noting that no other agency in the Federal Government,
    much less one the size of the VA, has taken such a proactive approach
    to training managers on whistleblower protections. The VA deserves
    recognition for this important initiative.

    Conclusion

        We appreciate the subcommittee's attention to the issues we have
    raised and your interest in our efforts to protect and promote VA
    whistleblowers. I thank you for the opportunity to testify, and am
    happy to answer your questions.

        [Clerk's note: Attachments 1 and 2 were provided to be included
    with Carolyn Lerner's prepared statement.]
                                     ______

                                 (ATTACHMENT 1)

                  Testimony of Carolyn Lerner, Special Counsel
                         U.S. Office of Special Counsel
                         U.S. House of Representatives
                         Committee on Veterans' Affairs
                  Subcommittee on Oversight and Investigations

        ``Addressing Continued Whistleblower Retaliation Within the VA''

                           April 13, 2015, 4:00 P.M.

        Chairman Coffman, Ranking Member Kuster, and members of the
    subcommittee:

        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).
        In July of last year, I spoke to this Committee about OSC's early
    efforts to respond to the unprecedented increase in whistleblower cases
    from VA employees. Since that time, and as detailed in the sections
    below, there has been substantial progress. For example, OSC and the VA
    implemented an expedited review process for retaliation claims. This
    process has generated timely and comprehensive relief for many VA
    whistleblowers. In addition, in response to OSC's findings, the VA
    overhauled the Office of Medical Inspector (OMI), and has taken steps
    to better respond to the patient care concerns identified by
    whistleblowers. Finally, in response to the influx of whistleblower
    claims, the VA became the first cabinet-level department to complete
    OSC's ``2302(c)'' whistleblower certification program. The program
    ensures that employees and managers are better informed of their rights
    and responsibilities under the whistleblower law.
        Despite this significant progress, the number of new whistleblower
    cases from VA employees remains overwhelming. These cases include
    disclosures to OSC of waste, fraud, abuse, and threats to the health
    and safety of veterans, and also claims of retaliation for reporting
    such concerns. OSC's monthly intake of VA whistleblower cases remains
    elevated at a rate nearly 150 percent higher than historical levels.
    The percentage of OSC cases filed by VA employees continues to climb.
    OSC has jurisdiction over the entire Federal Government, yet in 2015,
    nearly 40 percent of our incoming cases will be filed by VA employees.
    This is up from 20 percent of OSC cases in 2009, 2010, and 2011.
        These numbers provide an important overview of the work OSC is
    doing. And, while these numbers point to an ongoing problem, it is
    important to put them in context. The current, elevated number of VA
    whistleblower cases can be viewed as part of the larger effort to
    restore accountability at the VA, and do not necessarily mean there is
    more retaliation than before the scheduling and wait list problems came
    to light, or that there are more threats to patient health and safety.
    Instead, these numbers may indicate greater awareness of whistleblower
    rights and greater employee confidence in the systems designed to
    protect them.
        The current VA leadership has shown a high level of engagement with
    OSC and a genuine commitment to protecting whistleblowers. As many VA
    officials and Members of this Committee have repeatedly stated, culture
    change in an organization the size of the VA is difficult and will take
    time. But, if the current number of whistleblower cases is an
    indication of employees' willingness to speak out, then things are
    moving in the right direction.

    I.  Whistleblower Retaliation--Collaboration with the VA to Provide
            Expedited Relief to VA Employees

        My July 2014 statement to the Committee summarized a series of
    whistleblower retaliation cases. I noted, ``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.'' I further noted that Acting (now Deputy)
    Secretary Gibson had committed to resolving meritorious whistleblower
    retaliation cases with OSC on an expedited basis.
        Since that time, OSC, working in partnership with the VA's Office
    of General Counsel (OGC), implemented an expedited review process for
    whistleblower retaliation cases. This process has generated significant
    and timely results on behalf of VA employees who were retaliated
    against for speaking out. To date, we have obtained 15 corrective
    actions for VA whistleblowers through this process, including landmark
    settlements on behalf of Phoenix VA Medical Center (VAMC) employees.
    Summaries of the cases in which the employees consented to the release
    of their names are included below:

      --Katherine Mitchell, Phoenix VAMC.--Dr. Mitchell blew the whistle on
            critical understaffing and inadequate triage training in the
            Phoenix VAMC's emergency room. According to Dr. Mitchell's
            complaint, Phoenix VAMC leadership engaged in a series of
            targeted retaliatory acts that included ending her assignment
            as ER Director. Dr. Mitchell has 16 years of experience at the
            Phoenix VAMC, and also testified twice before this Committee
            last year. Among other provisions, Dr. Mitchell's settlement
            included assignment to a new position that allows her to
            oversee the quality of patient care.
      --Paula Pedene, Phoenix VAMC.--Ms. Pedene was the chief spokesperson
            at the Phoenix VAMC, with over two decades of experience. She
            made numerous disclosures beginning in 2010, including concerns
            about financial mismanagement by former leadership at the
            medical center. Many of the allegations were substantiated by a
            November 2011 VA Office of Inspector General review.
            Subsequently, according to Ms. Pedene's reprisal complaint,
            Phoenix VAMC management improperly investigated Pedene on
            unsubstantiated charges, took away her job duties, and moved
            her office to the basement library. Among other provisions, Ms.
            Pedene's settlement includes assignment to a national program
            specialist position in the Veterans Health Administration,
            Office of Communications.
      --Damian Reese, Phoenix VAMC.--Mr. Reese is a Phoenix VAMC program
            analyst. He voiced concerns to Phoenix VAMC management about
            the amount of time veterans had to wait for primary-care
            provider appointments and management's efforts to characterize
            long wait times as a ``success'' by manipulating the patient
            records. After making this disclosure, Mr. Reese had his annual
            performance rating downgraded by a senior official with
            knowledge of his email. Mr. Reese agreed to settle his claims
            with the VA for mutually agreed upon relief.
      --Mark Tello, Saginaw VAMC.--Mr. Tello was a nursing assistant with
            the VAMC in Saginaw, Michigan. In August 2013, he told his
            supervisor that management was not properly staffing the VAMC
            and that this could result in serious patient care lapses. The
            VAMC then issued a proposed removal, which was later reduced to
            a five-day suspension that Mr. Tello served in January 2014.
            The VA again proposed his removal in June 2014. OSC facilitated
            a settlement where the VA agreed, among other things, to place
            Mr. Tello in a new position at the VA under different
            management, to rescind his suspension, and to award him
            appropriate back pay.
      --Richard Hill, Frederick, Maryland.--Dr. Hill was a primary care
            physician at the Fort Detrick, Community Based Outpatient
            Clinic (CBOC) in Frederick, Maryland, which is part of the
            Martinsburg, West Virginia VAMC. In March 2014, Dr. Hill made
            disclosures to VA officials, the VA Office of Inspector
            General, and others regarding an improper diversion of funds
            that resulted in harm to patients. Specifically, Dr. Hill
            expressed serious concerns about the lack of clerical staff
            assigned to his primary care unit, which he believes led to
            significant errors in patient care and scheduling problems. In
            early May 2014, the VA issued Dr. Hill a reprimand. Dr. Hill
            retired in July 2014. As part of the settlement agreement
            between Dr. Hill and the VA, the VA has agreed to, among other
            provisions, expunge Dr. Hill's record of any negative personnel
            actions.
      --Rachael Hogan, Syracuse VAMC.--Ms. Hogan is a registered nurse (RN)
            with the VAMC in Syracuse, New York. She disclosed to a
            superior a patient's rape accusation against a VA employee and,
            when the superior delayed reporting the accusations to the
            police, warned the superior about the risks of not timely
            reporting the accusations. Later, she complained that a nurse
            fell asleep twice while assigned to watch a suicidal patient
            and that another superior engaged in sexual harassment, and
            made a number of other allegations regarding the two superiors.
            In spring 2014, the two superiors informed Ms. Hogan that they
            would seek a review board to have her terminated because of her
            ``lack of collegiality'' and because she was not a good fit for
            the unit, and gave her an unsatisfactory proficiency report.
            The VA agreed to stay the review board for the duration of
            OSC's investigation. As part of the final settlement, the
            agency permanently reassigned Ms. Hogan to a RN position under
            a new chain of command, corrected her performance evaluation,
            and agreed to cover the costs for an OSC representative to
            conduct whistleblower protection training at the facility.
      --Charles Johnson, Columbia VAMC.--Mr. Johnson, a technologist in the
            radiology department at the VA Medical Center in Columbia,
            South Carolina, disclosed that a doctor ordered him to hydrate
            a patient using a new, unfamiliar method in February 2014. Due
            to his concerns about the new hydration method, Mr. Johnson
            consulted with two physicians about the method, neither of whom
            would verify the method's safety. Mr. Johnson then contacted
            his union, which suggested he send an email seeking
            clarification of the method under the VA's ``Stop The Line For
            Patient Safety'' policy. In July 2014, Mr. Johnson was issued a
            proposed 5-day suspension by the same doctor whose hydration
            method Mr. Johnson had questioned. In October 2014, at OSC's
            request, the VA agreed to stay Mr. Johnson's suspension. In
            February 2015, Mr. Johnson and the VA settled his case, under
            which the VA will, among other things, rescind the proposed
            suspension and evaluate the hydration method.
      --Phillip Brian Turner, San Antonio, Texas.--Mr. Turner is an
            advanced medical support assistant in a VA Behavioral Health
            Clinic in San Antonio, Texas. In April 2014, Mr. Turner emailed
            his supervisor and others about his concerns that the agency
            did not follow proper scheduling protocols and may have
            falsified or manipulated patient wait times for appointments.
            The next day, VA management instructed him to stop emailing
            about the VA's scheduling practices. Several weeks later, in
            May 2014, VA management directed Mr. Turner to sign four copies
            of the VA's media policy, which he refused to do. On May 9,
            2014, an article in the San Antonio Express-News--one of the
            largest newspapers in Texas--quoted a high-level VA official as
            stating that the agency had conducted an investigation into Mr.
            Turner's allegations and that Mr. Turner retracted his comments
            about the improper scheduling practices. Mr. Turner denies
            making any such retraction. The VA's actions in this case raise
            important concerns due to the potential chilling effect on
            other whistleblowers. The case was settled in February 2015 and
            the VA agreed to several corrective actions.
      --Debora Casados, Denver, Colorado.--Ms. Casados is a nurse in the VA
            Eastern Colorado Health Care System. In August 2014, she
            reported that a coworker sexually assaulted two other VA staff
            members and made inappropriate sexual comments to her. Human
            resources told Ms. Casados and the other staff that they were
            not permitted to discuss the allegations and threatened them
            with disciplinary action if they did so. In October, human
            resources removed Ms. Casados from her nursing duties at the
            clinic and reassigned her to administrative tasks. In January
            2015, she was moved again, this time to a windowless basement
            office to scan documents. In February, her superior denied Ms.
            Casados leave to care for her terminally ill mother. On April
            3, 2015, the VA agreed to OSC's request for an informal stay on
            behalf of Ms. Casados, returning her to nursing duties at
            another clinic while OSC investigates her whistleblower
            reprisal claims to determine if additional corrective action
            and disciplinary action are appropriate.

        Including these cases, in 2014 and 2015 to date, OSC has secured
    either full or partial relief for over 45 VA employees who have filed
    whistleblower retaliation complaints. OSC is on track to help nearly
    twice as many VA employees in 2015 as in 2014. These positive outcomes
    have been generated by the OSC-VA expedited settlement process, OSC's
    normal investigative process, and OSC's Alternative Dispute Resolution
    program. OSC is currently examining about 110 pending claims of
    whistleblower retaliation at the VA involving patient health and
    safety, scheduling, and understaffing issues. These pending claims
    involve VA facilities in 38 States and the District of Columbia. We
    look forward to updating the Committee as these cases proceed.

    II.  Whistleblower Disclosures and the Office of Medical Inspector

        In my July 2014 testimony, I raised concerns about the VA's
    longstanding failure to use the information provided by whistleblowers
    as an early warning system to correct problems and prevent them from
    recurring. I summarized a series of cases in which the Office of
    Medical Inspector (OMI) identified deficiencies in patient care, such
    as chronic understaffing in primary care units, and the inadequate
    treatment of mental health patients in a community living center. In
    each case, OMI failed to grasp the severity of the problems, attempted
    to minimize concerns, and prevented the VA from taking the steps
    necessary to improve the quality of care for veterans.
        In response to our concerns, the VA directed a comprehensive review
    of all aspects of OMI's operations. Overall, we believe this review has
    resulted in positive change. A recent whistleblower case is
    demonstrative.
        The case concerns a whistleblower disclosure from a VA employee in
    Beckley, West Virginia. In response to OSC's referral, OMI conducted an
    investigation and determined that the Beckley VAMC attempted to meet
    cost savings goals by requiring mental health providers to prescribe
    older, cheaper antipsychotic medications to veterans, to alter the
    current prescriptions for veterans over the objections of their
    providers, with no clinical review or legitimate clinical need for the
    substitutions, in violation of VA policies. The investigation
    additionally found the substituted medications could create medical
    risks and ``may constitute a substantial and specific risk'' to the
    health and safety of impacted veterans. In addition, the OMI
    investigation found that the formal objections of at least one mental
    health provider were not documented in the meeting minutes at which the
    provider raised concerns.
        The OMI investigation called for a clinical care review of the
    condition and medical records of all patients who were impacted, and an
    assessment of whether there were any adverse patient outcomes as a
    result of the changed medications. OMI also recommended that, where
    warranted, discipline be taken against Beckley VAMC leadership and
    those responsible for approving actions that were not consistent with
    VA policy, and which could constitute a substantial and specific danger
    to public health and the safety of veterans.
        While the facts of this case are troubling, the OMI response is
    encouraging. In an organization the size of the VA, problems will
    occur. Therefore, it is critical that when whistleblowers identify
    problems, they are addressed swiftly and responsibly. And OMI is an
    integral component in doing so.
        In recent days, we have received additional information from
    whistleblowers indicating that the OMI recommendations may not have
    been fully implemented by Beckley VAMC management. Accordingly, we will
    follow up with the VA to verify that all OMI recommendations in the
    Beckley investigation, including disciplinary action and necessary
    changes to the prescription protocol, have been taken.

    III.  Training Initiatives and Areas of Ongoing Concern

                A. OSC's 2302(c) Certification Program

        In my July 2014 statement to the Committee, I referenced the VA's
    commitment to complete OSC's ``2302(c)'' Certification Program. In
    October 2014, the VA became the first cabinet-level department to
    complete OSC's program. The OSC Certification Program allows Federal
    agencies to meet their statutory obligation to inform their workforces
    about the rights and remedies available to them under the Whistleblower
    Protection Act, the Whistleblower Protection and Enhancement Act
    (WPEA), and related civil service laws. The program requires agencies
    to complete five steps: (1) Place informational posters at agency
    facilities; (2) Provide information about the whistleblower laws to new
    employees as part of the orientation process; (3) Provide information
    to current employees about the whistleblower laws; (4) Train
    supervisors on their responsibilities under the whistleblower law; and
    (5) Display a link to OSC's website on the agency's website or
    intranet.
        The most important step in this process is the training provided to
    supervisors. Ideally, this training is done in person with OSC staff,
    to provide an opportunity for supervisors to ask questions and engage
    in a candid back and forth session. However, in an organization the
    size of the VA, with tens of thousands of supervisors, in-person
    training is extremely difficult to accomplish. Nevertheless, at the
    VA's initiative, we are working to develop ``train the trainer''
    sessions, so we can reach as many supervisors as possible in real time.
    We also anticipate presenting information on the whistleblower law at
    an upcoming meeting of VA regional counsel.
        Based on the claims OSC receives, VA regional counsel will benefit
    from additional training on whistleblower retaliation. Such training
    will assist in preventing retaliatory personnel actions from being
    approved by the legal department at local facilities, and will also
    help to facilitate resolutions in OSC matters. The commitment we are
    seeing from VA leadership to correct and eliminate retaliation against
    whistleblowers has not consistently filtered down to regional counsel.
    Supplemental training for regional counsel may go a long way to address
    that issue.

                B. Investigation of Whistleblowers

        An additional and ongoing area of concern involves situations in
    which a whistleblower comes forward with an issue of real importance to
    the VA--for example, a cover-up of patient wait-times, sexual assault
    or harassment, or over-prescription of opiates--yet instead of focusing
    on the subject matter of the report, the VA's investigation focuses on
    the whistleblower. The inquiry becomes: Did the whistleblower violate
    any regulations in obtaining the evidence of wrongdoing? Has the
    whistleblower engaged in any other possible wrongdoing that may
    discredit his or her account?
        There are two main problems with this approach. First, by focusing
    on the individual whistleblower, the systemic problem that has been
    raised may not receive the attention that it deserves. And second,
    instead of creating a welcoming environment for whistleblowers to come
    forward, it instills fear in potential whistleblowers that by reporting
    problems, their own actions will come under intense scrutiny.
        The VA's focus--not just at headquarters, but throughout the
    department--should be on solving its systemic problems, and holding
    those responsible for creating them accountable. While there may be
    instances in which an individual whistleblower's methods are
    particularly troublesome and therefore require investigation, such an
    investigation should be the exception and not the rule, and should only
    be undertaken after weighing these competing concerns.

                C. Accessing Whistleblowers' Medical Records

        A final, related issue of ongoing concern is the unlawful accessing
    of employee medical records in order to discredit whistleblowers. In
    many instances, VA employees are themselves veterans and receive care
    at VA hospitals. In several cases, the medical records of
    whistleblowers have been accessed and information in those records has
    apparently been used to attempt to discredit the whistleblowers. We
    will aggressively pursue relief for whistleblowers in these and other
    cases where the facts and circumstances support corrective action, and
    we will also work with the VA to incorporate these additional forms of
    retaliation into our collaborative training programs.

    IV. Conclusion

        We appreciate this Committee's ongoing attention to the issues we
    have raised. I thank you for the opportunity to testify, and am happy
    to answer your questions.
                                     ______

                                 (ATTACHMENT 2)

     Testimony of Carolyn Lerner, Special Counsel and Eric Bachman, Deputy
                                Special Counsel
                         U.S. Office of Special Counsel
                         U.S. House of Representatives
                         Committee on Veterans' Affairs

     ``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 3 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 percent over the last 5 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, Colorado

        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, Wyoming, 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 percent. There is no indication that actual wait times decreased.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        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, Massachusetts

        In a second case, a VA psychiatrist disclosed serious concerns
    about patient neglect in a long- term mental healthcare facility in
    Brockton, Massachusetts. 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 7 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 8 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
    healthcare 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 healthcare facilities.

                3. Montgomery, Alabama

        Finally, in Montgomery, Alabama, 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 2 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 healthcare 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.
                                     ______

                     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 June 23, 2014

    The President
    The White House
    Washington, D.C. 20500

        Re: Continued Deficiencies at Department of Veterans Affairs'
    Facilities

    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, Wyoming, 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 healthcare facility in
    Brockton, Massachusetts. 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 7 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 8 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, Alabama, 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, Colorado, 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, Michigan, 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, New York, OMI substantiated a whistleblower's
            allegation that healthcare 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, Arkansas, 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, Texas, 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, Puerto Rico, 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 healthcare
    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 healthcare
    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.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Enclosures

                 RETALIATION THROUGH EMPLOYEE'S MEDICAL RECORD

        Senator Kirk. Thank you.
        I would like you to go into detail the method of
    retaliation you are describing. Is it the retaliator for the VA
    who goes into the employee's medical record? Maybe that
    employee has been a veteran and has sought care inside the
    hospital wherever there and will use that employee, that
    medical information to retaliate against the employee?
        Ms. Lerner. Yes. That's----
        Senator Kirk. That sounds particularly heinous.
        Ms. Lerner. That is one thing that we are seeing. It may
    not necessarily always just be someone who is interested in
    retaliating. It could be a colleague of the veteran as well.
        Senator Kirk. As I understand it, about 40 percent of your
    case load at the OSC is from VA employees?
        Ms. Lerner. That is correct.
        Senator Kirk. Yes.
        Ms. Lerner. That is correct and both the disclosure side
    and on the retaliation side.
        Senator Kirk. What was the worse case of where they access
    the whistleblower's medical record to retaliate that your
    office dealt with?
        Ms. Lerner. You know I'm a little hard-pressed to say the
    very worse case, but what I can tell you is this is a very
    important issue. And my written testimony provides more detail
    on it but I want to stress two steps that the VA should take.
        One, they should make it much harder to access these
    medical records. They need a better lock on the system. Doctors
    need to have access to medical records. Coworkers and
    colleagues do not and they shouldn't. And it seems like a
    pretty easy technological fix to put a lock on the system so
    that only those who have a need to know get into those medical
    records.
        The second thing in the bigger picture that I think the VA
    can do is evaluate how it stores information and stop
    commingling the medical information with the demographic
    information. So for example, what we are hearing sometimes from
    the VA is that, ``Well, we need the employee's address to mail
    the W-2 or a paystub so we go into their medical records.''
        There is no need to go into someone's, or there shouldn't
    be a need to go into an employee's medical records to get their
    home mailing address. So, if they can stop commingling those
    two systems, it would I think to go a long way to solving this
    problem.
        Senator Kirk. I am told that you guys have 316 retaliation
    open cases now in 43 States. Is that true?
        Ms. Lerner. Yes, that is correct.
        And that is just on the one side. That is not on the
    disclosure side. We have----
        Senator Kirk. It shows how widespread this corruption is.
        Ms. Lerner. It is happening nationwide. That is right.
        I can talk more about the numbers if you'd like me to or--
    --
        Senator Kirk. That's great.
        Senator Baldwin.
        Senator Baldwin. Thank you, Mr. Chairman.
        I want to thank you for holding this valuable hearing and
    thank you to our witnesses for your time and your insight.
        As I have seen in the Tomah, Wisconsin VA facility and,
    indeed, in the rest of the Nation, the role of whistleblowers
    is critical to running an effective organization, and agencies
    need to be open to accepting constructive criticism in order to
    improve; especially agencies such as the VA. This has been
    tremendously important to the mission of taking care of our
    veterans.
        So, Ms. Lerner, I wanted to thank you for mentioning Ryan
    Honl in your statement. People like Ryan truly make a
    difference, and in particular he helped turn around what was
    happening at the VA in Tomah, Wisconsin.
        After considering the testimony that witnesses have given,
    and I apologize that I was quite tardy in getting here, but I
    just have a few questions that I think get to the heart of some
    of the problems at the VA. I want to talk about the culture
    that I have just seen against whistleblowers.
        Ms. Lerner, you said that no other Federal agency has taken
    such a proactive approach to training managers on whistleblower
    protections. Yet, complaints about reprisals are up. In fact,
    your statement reads that the OIG is on track to receive more
    that 3,800 prohibited personnel practice complaints in this
    year. And that more than 1,300, or approximately 35 percent of
    those, will be filed by VA employees. You also make this point:
    VA now surpasses Department of Defense (DOD) in the total
    number of cases filed with OSC despite the fact that DOD has
    twice the number of civilian personnel.
        Ms. Lerner. Yes.
        Senator Baldwin. Now, I know that Secretary McDonald and
    his team are working to change the culture at the VA. Yet,
    complaints keep coming. More must be done to change the culture
    at the VA and I, you know, to improve the system so that there
    is aggressive action against those who retaliate against
    whistleblowers.

                             CHANGE THE VA CULTURE

        So the question I have for you is, but I would also like to
    hear what Ms. Halliday has to say, is what specifically do we
    need to do to change the culture here?
        Ms. Lerner. I think there are several steps that we can
    take. There are no easy fixes, but there are important steps
    that the VA can take.
        First of all, we have to keep working to change the culture
    to embrace whistleblowers. Changing the culture begins with an
    understanding that we need employees to come forward and report
    health and safety issues. We don't shoot the messenger, we
    reward them. We give awards to people who identify problems.
        Deputy Secretary Gibson came to our Public Servant of the
    Year Award Ceremony last fall where we honored Dr. Mitchell and
    two other VA whistleblowers. That's great. They should have
    their own award ceremonies.
        I understand the Secretary tries to meet with
    whistleblowers when he goes and visits facilities. That is
    terrific but, after he leaves, what is happening? You know, the
    hospital administrators need to be told to recognize and
    support whistleblowers. They need to keep meeting Secretary
    Gibson. Deputy Secretary Gibson, Secretary McDonald, they need
    to keep meeting with whistleblowers, listen to them, praise
    them, and repeat it over and over again until it takes hold.
        The second thing that they can do is train managers. They
    are doing a lot of training now; they need to do more. This
    means hospital administrators and doctors need to get trained
    in why whistleblowing is important. It may not be intuitive to
    them as administrators and doctors why whistleblowers are
    important, but they are and the more they are trained the more
    it will really help.
        Senator Baldwin. And I regret cutting you off but I'd love
    the rest of your statement in writing, if you could? But I did
    want to give Ms. Halliday a chance to also respond to that
    question.
        Ms. Halliday. Thank you.

                  PROTECTION OF WHISTLEBLOWERS FROM REPRISALS

        I believe you really have to enforce accountability here
    when you have reprisals against whistleblowers, and it has to
    be tough. It has to be a point where somebody would take great
    pause to do that. I think you need training in the VA system
    with regards to the HR personnel practices. You need training
    in leadership. I think leaders have to step forward and protect
    whistleblowers. I don't think they always do. Maybe they don't
    have the right tools in their pocket to do that, but it is
    clear that they need to improve in that area.
        I personally, in the three weeks I was here, I added a
    component of training on whistleblower rights when we go out
    and do our combined program assessments, out at the medical
    facilities and people in the medical facilities, attend these
    briefings; our criminal investigators normally give that. I
    told them I wanted that piece in there so there is better
    training. That doesn't touch everyone in the VA system but it
    touches a lot of people.
        So those would be some of the things I would look at
    immediately.
        Senator Baldwin. Thank you.
        Senator Kirk. Mr. Boozman to wrap up.
        Senator Boozman. Yes, very quickly. Mr. Chairman, I know
    we've got a vote so I won't take a lot of time. But, Ms.
    Lerner, the 40 percent of your cases are VA so that means 60
    percent are the rest of the Federal agencies?
        Ms. Lerner. That is right. We have jurisdiction----
        Senator Boozman. Which is really remarkable. Go ahead about
    your----
        Ms. Lerner. Yes. We have jurisdiction for the entire, most
    of the civilian workforce.
        Senator Boozman. I mean we talk about DOD and, you know,
    twice and all that. But the reality is 40 percent of all of the
    agencies. That is remarkable that it is occupying such a
    significant case load of yours.
        Ms. Halliday, you know I agree we need training and
    leadership and all of those things. But we also need
    accountability for those that do go after whistleblowers and
    very strong actions in that regard. And the best I can tell
    that is simply not happening. The other thing is it does appear
    that in some cases there appears to be collusion with the
    Inspector General with the administration perhaps telling them
    too much facts regarding the whistleblowers and you really need
    to look into that.
        The other thing is I think the HIPAA laws are being used in
    an inappropriate way to prevent people from going forward. You
    know that's the excuse. So again, like I said, I think that is
    just a huge job for you and Ms. Brian. But you know we haven't
    had a full Inspector General for over a year, well over a year.
        So I appreciate you holding this hearing, Mr. Chairman. I
    think it is so important. And if we are not going to have a
    full Inspector General, if we are not going to go forward, we
    are going to have to just step forward and try and do that in
    place of that.
        So thank you. Thank you, Mr. Chairman.
        Senator Kirk. Let me just finish up and ask Ms. Brian, how
    does the VA Inspector General compare to the other 24 Inspector
    Generals?
        Ms. Brian. There's actually many more Inspector Generals
    across the Federal Government at this point and I, without
    reservation, can say it is the worst shop in the Government.
        Senator Boozman. That was easy.
        Ms. Brian. Simple.
        Senator Kirk. That is pretty decisive.

                              SUBCOMMITTEE RECESS

        Senator Kirk. On that, I will let our members go to the--
    we'll be in recess here.
        [Whereupon, at 12:12 p.m., Thursday, July 30, the
    subcommittee was recessed, to reconvene subject to the call of
    the Chair.]

                  MATERIAL SUBMITTED SUBSEQUENT TO THE HEARING

                                  ----------

    Submitted by Linda A. Halliday, Deputy Inspector General, Office of the
               Inspector General, Department of Veterans Affairs

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    The Honorable Mark Kirk
    Chairman
    Subcommittee on Military Construction,
    Veterans Affairs, and Related Agencies
    Committee on Appropriations
    U.S. Senate
    Washington, DC 20510

    Dear Mr. Chairman:

        This letter is in regard to the hearing held before the
    subcommittee on July 30, 2015, on whistleblower claims at the
    Department of Veterans Affairs. I am requesting that my letter and the
    enclosed fact sheet be included in the hearing record.
        I became the Deputy Inspector General on July 6, 2015, after
    serving as the Assistant Inspector General for Audits and Evaluations
    for more than 3 years. As I testified, I am reviewing the operations of
    the organization and have instituted additional training requirements
    for Office of Inspector General (OIG) staff regarding interactions with
    individuals who contact the OIG with complaints about VA programs and
    operations. However, please do not infer from these actions that the
    criticisms made against the OIG by hearing witnesses are founded. As
    you will read in the enclosure, the OIG did not release Dr. Katherine
    Mitchell's name to VA in September 2013 or at any other time. We first
    received Dr. Mitchell's complaint, which was addressed to Senator John
    McCain, in April 2014--some 6 months later--when Senate Committee on
    Veterans' Affairs staff made us aware of her complaint for the first
    time. Another witness, Dr. Lisa Nee, never contacted the OIG Hotline
    with her complaint. We first learned of her complaint through an
    inquiry from a congressional office in February 2013. More detailed
    information is enclosed, and I hope the members and staff will review
    it carefully to clarify the record.
        I do however wish to emphasize that the U.S. Office of Special
    Counsel (OSC) has found that VA whistleblowers have experienced
    reprisal actions, and that those actions are inappropriate.
    Whistleblowers have also raised valid and important concerns to our
    organization. Their concerns regarding reprisals should not be taken
    lightly, and as we move forward it is my hope that the OSC will
    actively investigate complaints of such reprisal actions to the fullest
    extent possible and that VA will hold accountable any VA official who
    engages in retaliatory actions.
        Regarding the statement from the Project On Government Oversight
    (POGO) Executive Director, Ms. Danielle Brian, that the VA OIG is the
    ``worst IG in Government today,'' I want to state my vigorous
    disagreement with her opinion. Her statement was not offered based upon
    a complete assessment of all of the work VA OIG has completed in the
    past few years and it was not supported by any objective performance
    measures or facts. I attribute the statement to an adversarial event
    that occurred last year regarding the OIG's subpoena to POGO in
    connection with the Phoenix review and not a thoughtful objective
    review encompassing the body of our past work. Because the hearing
    ended before I could make a rebuttal, I offer the following on behalf
    of the more than 600 OIG employees who work hard every day on behalf of
    the Nation's veterans.

      --On April 30, 2015, the Center for Effective Public Management at
            The Brookings Institution issued a paper assessing the benefits
            OIGs bring to Government. The paper focused on Return on
            Investment (ROl)--the most quantifiable metric of agency
            performance--for the last 5 fiscal years. The Social Security
            OIG ranked first with an average ROI of $43:1, the VA OIG
            ranked second with $38:1, and HUD OIG ranked third with $30:1.
      --In the last 6 years, the Council of the Inspectors General on
            Integrity and Efficiency recognized the OIG with 25 Awards for
            Excellence across all disciplines--Audits, Evaluations,
            Investigations, and Administration.
      --The frequency of OIG witnesses at congressional hearings--10 in
            fiscal year 2015--is a clear indication of the respect for the
            quality of our work and independence. With more than 1,900
            reports and more than 70 appearances at congressional hearings
            in the last 6 years, the VA OIG is among the most prolific in
            the Inspector General community in terms of transparent
            reporting on the programs and operations within a Federal
            department and making recommendations for corrective action.
      --The Partnership for Public Service's annual ``Best Places To Work''
            ranking listed the VA OIG as the second highest OIG in
            Government in terms of overall employee satisfaction based on
            the 2014 Office of Personnel Management Federal Employee
            Viewpoint survey.
      --Since fiscal year 2012 to present, the OIG has provided nearly 300
            briefings to Members of Congress and staff on the results of
            OIG oversight activities and engaged in countless contacts with
            congressional staff to meet our responsibilities of dual
            reporting to Congress and VA and to build strong relationships
            based on the mutual goal of improving services and programs for
            our Nation's veterans. The OIG has a long history of reporting
            serious problems and major mission critical challenges to VA to
            take corrective action. Some of these issues include:

        --Data integrity over patient wait times for medical appointments
        --Inappropriate patient scheduling practices and the identification
                of inappropriate appointment scheduling practices
        --Lack of appropriate staffing standards and deficiencies in
                staffing throughout VA's clinical positions
        --Lapses in delivering healthcare services consistent with Veterans
                Health Administration clinical guidelines and acceptable
                private sector medical care practices
        --Deficiencies in cleaning and sterilizing reuseable medical
                equipment that place veterans at risk for contracting
                blood-borne diseases
        --Lapses in VA's acquisition support and contract administration
                that resulted in substantial waste of Federal funds and has
                not protected the veteran or the Department as vital
                services were provided
        --Weaknesses in Information Security and the vulnerabilities
                associated with adequately protecting veterans and their
                families' information
        --Weaknesses in VA's call centers that veterans rely upon for help
                and appropriate action
        --Serious problems with the financial stewardship of Federal and
                taxpayer funds
        --Significant criminal and administrative investigations addressing
                issues across VA

        The staff at the OIG is committed to objectively reviewing,
    inspecting, auditing, and investigating VA operations and programs and
    reporting on the results. We are proud of the OIG's legacy of
    independent and objective reporting that has generated countless
    significant improvements in VA's delivery of service to veterans, such
    as the establishment of VA's Veterans Crisis Line which to date has
    answered more than 1.6 million calls and made more than 45,000
    lifesaving rescues. I would welcome the opportunity to discuss this
    further with you or any member of the subcommittee.

    Sincerely,

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    LINDA A. HALLIDAY
    Deputy Inspector General

    Enclosure

    Copy to: All Subcommittee Members
                                     ______

                          Office of Inspector General
                         Department of Veterans Affairs
                                   Fact Sheet
     Subcommittee on Military Construction, Veterans Affairs, and Related
                     Agencies, Committee on Appropriations
                              United States Senate
       ``Whistleblower Claims at the U.S. Department of Veterans Affairs"
                                 July 30, 2015

    TESTIMONY OF DR. KATHERINE MITCHELL

        Initial Contact with the Office of Inspector General.--Dr. Mitchell
    stated in her written statement for the record, her oral remarks, and
    in response to questions that she submitted a confidential complaint to
    the Office of Inspector General (OIG) through Senator John McCain's
    office in September 2013, regarding life-threatening conditions at the
    Phoenix VA Health Care System (VAHCS). She further testified that she
    was disciplined for misconduct for providing confidential information
    through the OIG channels. Her testimony is inconsistent in regard to
    our records of her interactions with the OIG.
        The OIG first received information relating to allegations made by
    Dr. Mitchell in April 2014, and that information was provided by the
    Senate Committee on Veterans' Affairs. 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 McCain'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,
    although she may have intended to, she did not file a complaint with
    the OIG in September 2013.
        OIG's Investigation of Her Complaints.--On page 4 of her written
    statement, Dr. Mitchell stated: ``in February 2014 my Senator's office
    was able to verify the OIG had been involved in an investigation of my
    complaint. I have never seen the official OIG report on my 2013
    complaint and believe one does not exist. My Senator's office made
    attempts to locate the report for me without success.'' As stated
    above, the VA OIG was not involved in the investigation of Dr.
    Mitchell's complaints because the complaints were not sent to the OIG;
    therefore there is and never was a report. Also, there is no record of
    Senator McCain or anyone else requesting a review into Dr. Mitchell's
    allegations. The VA OIG did not issue a specific report on Dr.
    Mitchell's complaint but did issue two broader and more comprehensive
    reports related to the issues negatively impacting the timely delivery
    of healthcare services at the Phoenix VA Health Care System (VAHCS).
    While the issues raised by Dr. Mitchell to Senator McCain were
    important, the issues already under review by the OIG were in fact more
    systemic and had even broader potential to harm more veterans who could
    not get access to needed medical care.
        Interview with OIG Staff.--Dr. Mitchell stated the OIG did not
    interview her. As discussed above, we learned of her complaints in
    April 2014. However, during our review of the allegations of wait time
    manipulation at the Phoenix VAHCS, an interdisciplinary team from the
    OIG interviewed her on May 2, 2014.
        OIG Report, ``Review of Alleged Patient Deaths, Patient Wait Times,
    and Scheduling Practices at the Phoenix VA Health Care System''.--Dr.
    Mitchell raised concerns about the conclusions of cases included in the
    August 26, 2014, OIG report, ``Review of Alleged Patient Deaths,
    Patient Wait Times, and Scheduling Practices at the Phoenix VA Health
    Care System.'' Specifically, she made medical judgements based on
    reading the summary we included on each case. The case summaries in any
    OIG report do not include all the information in the medical records to
    protect the patient's privacy, and for this reason we question the
    validity of judgements about the appropriateness of treatment based
    solely on summary information. The OIG staff conducting the medical
    review of the cases included board certified physicians and other
    healthcare professions. Their reviews were based on the most complete
    information available, including VA medical records and records from
    private facilities when available, to reach conclusions regarding the
    appropriateness of care. The thoroughness of our review in no way
    minimized the issues that Dr. Mitchell was raising, but we did examine
    more information than she had available to her within her position.
        Dr. Mitchell referenced the then-Acting VA Inspector General's
    testimony at the hearing before the House Committee on Veterans'
    Affairs. Contrary to her statement, he did not admit that the delays
    ``contributed to deaths.'' He said that our report stated ``these
    delays may have contributed and there is no denying it may have
    contributed.'' The specific quote from the report reads: ``we are
    unable to conclusively assert that the absence of timely quality care
    caused the deaths of these veterans.''
        OIG Hotline Referral Process and the Results of Referrals.--Dr.
    Mitchell's testimony describes the OIG Hotline complaint referral
    process. The OIG receives more complaints than we have the capacity to
    fully review, and while it is accurate that we refer allegations that
    are not selected for an OIG review to VA for an internal review, this
    process does not enable the facilities to investigate themselves
    without any oversight. In fact, the OIG Hotline complaint referral
    process is well-documented in VA policy. VA Directive 0701, ``Office of
    Inspector General Hotline Complaint Referrals,'' dated January 15,
    2009, outlines VA responsibilities with regard to case referrals from
    the OIG, which must include:

      --Evidence of an independent review by an official separate from and
            at a higher grade than the subject/alleged wrongdoer
      --Specific review of all allegations
      --Findings of each allegation, which are clearly identified as either
            substantiated or unsubstantiated
      --Description of any corrective action taken or proposed
      --Supporting documentation for the review
      --Designation of a point of contact for additional information

        Dr. Mitchell also stated that this process ``exposes the
    whistleblower to retaliation because the Hotline complaint is sent back
    to the same people who may be retaliating against them or who ignored
    the problem in the first place.'' As indicated above, OIG takes
    extraordinary precautions to ensure a review must be conducted by an
    official separate from and at a higher grade than the subject/alleged
    wrongdoer. Furthermore, the OIG does not release the name of the
    complainant to VA unless it is absolutely necessary in order to enable
    VA to review the allegations. In these situations, we advise the
    complainant that we plan to make a referral to VA and request
    permission to release their identity as the complainant to facilitate
    review of the allegations. If they refuse to provide permission, we
    advise them that we will not take further action on the complaint. The
    new Deputy Inspector General offered this information in her oral
    statement at the hearing to clarify any misconceptions with our
    process.
        Lastly, Dr. Mitchell stated that ``OIG Hotline reports damaging to
    VA are consistently suppressed. In fact, it's not clear to me if any
    OIG Hotline reports are released.'' As an example, Dr. Mitchell cited a
    2014 Hotline case referral, which she inaccurately referred to as a
    ``Hotline report,'' concerning the St. Cloud VA Medical Center. The
    confusion here is that this is not an OIG report, and the OIG did not
    conduct the review in question. This is an example of the Hotline case
    referral process outlined above. The report in question was prepared by
    VA and shows the review was conducted by officials from the Veterans
    Integrated Service Network 23, who were separate from and at a higher
    grade than the alleged wrongdoers. Their review did substantiate
    several of the allegations and described corrective actions that were
    underway. Furthermore, even though the complainant in this case did not
    request confidentiality, the OIG adequately protected and did not
    release the individual's identity to VA when referring the matter.

    TESTIMONY OF DR. LISA NEE

        Initial Contact with the OIG.--The OIG first learned of Dr. Nee's
    complaint when we received a copy of her email from congressional staff
    in February 2013 with a request to review the allegations in her email.
    We have no record of any prior contact to the OIG Hotline. Upon
    accepting the case for review, we made multiple attempts to contact Dr.
    Nee directly and through a union representative for an interview about
    the allegations. She declined all requests. Regardless we had also
    received similar information from other VA staff regarding problems in
    cardiology at the Hines VA Hospital, thus we notified the congressional
    office that even though Dr. Nee had declined our requests for an
    interview, we had received additional information from other sources
    sufficient to initiate a review. The result of that review was the
    publication on April 8, 2014, of our report, ``Healthcare Inspection--
    Questionable Cardiac lnterventions and Poor Management of
    Cardiovascular Care, Edward Hines, Jr. VA Hospital, Hines, Illinois.''
    That report contained four recommendations that the Veterans Integrated
    Service Network Director agreed to implement and provided appropriate
    action plans.
        OIG Report ``Healthcare Inspection--Questionable Cardiac
    Interventions and Poor Management of Cardiovascular Care, Edward Hines,
    Jr. VA Hospital, Hines, Illinois''.--Dr. Nee believes the report is
    flawed because patients were not notified of possible unnecessary
    medical procedures and no VA employees were held accountable as a
    result. The OIG is not the appropriate office to make institutional
    disclosures to patients or family on possible unnecessary procedures or
    to hold VA staff accountable. Those are the responsibilities of VA
    officials. There are clear legal procedures that VA must follow for
    notifying patients that preserve patient rights and legal protections.
    There are also legal protections afforded to VA employees that VA must
    follow or risk having a poor performing employee returned to service
    due to procedural violations.
        OIG Interview in January 2015.--After Dr. Nee contacted the Office
    of Special Counsel (OSC), the OIG again attempted to interview Dr. Nee
    at OSC's suggestion, but she declined. Through Office of Special
    Counsel's intervention, OIG staff conducted and recorded an interview
    with Dr. Nee on January 9, 2015. On May 7, 2015, Dr. Nee requested the
    transcript through our Release of Information Office, but because of
    increases in that office's workload, we were unable to meet the
    deadline for response under the Freedom of Information Act, which was
    June 5, 2015. However, we responded on July 29, 2015, and provided Dr.
    Nee with her entire statement with only patient names redacted.
        Correspondence between Senator Kirk and the OIG.--Dr. Nee states
    that the OIG released correspondence between the OIG and Senator Kirk
    in the press. We did not release that letter in any type of press
    release.

    TESTIMONY OF MS. DANIELLE BRIAN

        OIG Subpoena to the Project on Government Oversight (POGO) in June
    2014.--In April 2014, the OIG was requested to review complaints of
    poor quality of care at the Phoenix VAHCS Center relating to long wait
    times for appointments and the manipulation of wait times data by VA
    personnel. Many congressional committees including this subcommittee
    requested that the OIG extend its reviews nationwide and demanded that
    VA personnel be held accountable for their actions.
        The subpoena was issued to POGO by then-Acting Inspector General,
    Richard J. Griffin, and requested:

            All records that POGO has received from current and former
            employees of the Department of Veterans Affairs, veterans and
            other individuals or entities relating in any way to wait-
            times, access to care, and/or other patient scheduling issues
            at the Phoenix, Arizona VA Health Care System and any other VA
            medical facility.

        In hindsight, communications could have been better between the OIG
    and POGO, as both organizations have common goals to protect the
    identity of whistleblowers. However, communications did not occur to
    discuss the scope of the subpoena and identify a possible accommodation
    to meet the needs of both parties and thus ensure the health and safety
    of veterans. Today, we are trusting that POGO will follow through on
    their statement to Fox News on June 9, 2014, when POGO ``promised to
    issue an investigative report to assist the VA Inspector General
    without identifying the sources of the group's reporting.'' We plan to
    work with senior POGO officials in hopes that they will share
    information that does not compromise any complainants' identities but
    enables the OIG to investigate any previously unidentified Department
    of Veterans Affairs sites where inappropriate patient medical
    scheduling practices are occurring or where data manipulation schemes
    are in practice that have the potential to harm veterans.
        Our concern remains valid that POGO lacks the authority to
    investigate the complaints that POGO received and that when allegations
    are not investigated no one can be held accountable. The OIG has
    performed numerous investigations throughout VA healthcare facilities
    some of which are ongoing. We are also planning follow up oversight
    work as we move into fiscal year 2016. Thus the importance of receiving
    POGO's de-identified information cannot be understated to provide
    assurance that we have investigated potentially valid allegations at
    all healthcare sites within VA. Again, both POGO and the OIG have
    common goals and responsibilities to help ensure no veteran is harmed
    by the failure to investigate serious allegations.
        As promised at the July 30 hearing, the Deputy Inspector General
    has taken the Subcommittee Chairman's suggestion to not enforce the OIG
    subpoena to POGO under advisement and decided not to enforce the
    subpoena. The Inspector General Act provides that an OIG subpoena may
    be enforced in any Federal District Court. The subpoena that the OIG
    issued set a return date of June 13, 2014, for the requested documents
    from POGO. Because the return date has lapsed and we did not elect to
    press the Department of Justice for judicial enforcement, the subpoena
    is moot.
                                     ______

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    The Honorable Mark Kirk
    Chairman
    Subcommittee on Military Construction,
    Veterans Affairs, and Related Agencies
    Committee on Appropriations
    U.S. Senate
    Washington, DC 20510

    Dear Mr. Chairman:

        I have reviewed the issue of withdrawing the subpoena that the VA
    Office of Inspector General (OIG) issued to the Project On Government
    Oversight (POGO) as you asked in the July 30, 2015, subcommittee
    hearing titled ``VA Whistleblower Claims.'' I have decided not to
    enforce the subpoena. The Inspector General Act provides that an OIG
    subpoena may be enforced in any Federal District Court. The subpoena
    that the VA OIG issued set a return date of June 13, 2014, for the
    requested documents from POGO. Because the return date has lapsed and
    we did not elect to press the Department of Justice for judicial
    enforcement, the subpoena is moot.
        I do plan to work with senior POGO officials in hopes that they
    will share information that does not compromise any complainants'
    identities but enables my organization to investigate any previously
    unidentified Department of Veterans Affairs sites where inappropriate
    patient medical scheduling practices are occurring or where data
    manipulation schemes are in practice that have the potential to harm
    veterans. I believe that both POGO and the OIG have common goals to
    protect whistleblowers' identities and hold VA officials accountable.
    We still have ongoing investigations and other reviews of many VA
    facilities experiencing waiting times and access to care issues. My
    goal moving forward is to ensure we have rooted out all the schemes and
    inappropriate practices that have potential to delay vital services to
    veterans.

    Sincerely,

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    LINDA A. HALLIDAY
    Deputy Inspector General
                                     ______

    Ms. Danielle Brian
    Executive Director
    Project On Government Oversight
    1100 G Street NW, Suite 500
    Washington, DC 20005

    Dear Ms. Brian:

        At the July 30, 2015, hearing on VA whistleblower claims held
    before the subcommittee on Military Construction, Veterans Affairs, and
    Related Agencies, United States Senate, Subcommittee Chairman Mark Kirk
    suggested I review the VA Office of Inspector General's (OIG) subpoena
    issued to the Project On Government Oversight (POGO) on May 30, 2014. I
    have decided not to enforce the subpoena. The Inspector General Act
    provides that an OIG subpoena may be enforced in any Federal District
    Court. The subpoena that the OIG issued set a return date of June 13,
    2014, for the requested documents from POGO. Because that return date
    has lapsed and we did not elect to press the Department of Justice for
    judicial enforcement, the subpoena is moot.
        During the questioning of witnesses at the July 30 hearing, you
    stated that POGO was willing to provide to the OIG any information from
    the hotline that POGO set up in May 2014 without giving identifying
    information about the individuals who contacted POGO. I am proposing
    that my staff work with POGO to obtain relevant de-identified
    information in the approximately 800 complaints received from VA
    employees and veterans that will enable the OIG to investigate any
    previously unidentified Department of Veterans Affairs sites where
    inappropriate patient medical scheduling practices are occurring or
    where data manipulation schemes are in practice that have the potential
    to harm veterans. Please have a POGO staff member contact Mr. Roy
    Fredrikson, Deputy Counselor to the Inspector General, at (202) 461-
    4533 to discuss how we can best accomplish the transmission of the
    information.
        I believe that both POGO and the OIG have common goals to protect
    whistleblowers' identities and hold VA officials accountable. My goal
    moving forward is to ensure the OIG has rooted out all the schemes and
    inappropriate practices that have potential to delay vital services to
    veterans. I appreciate your cooperation in facilitating this matter.

    Sincerely,

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    LINDA A. HALLIDAY
    Deputy Inspector General

    Submitted by Danielle Brian, Executive Director, Project on Government
                                   Oversight

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    _______________________________________________________________________

    August 14, 2015

    Ms. Linda A. Halliday
    Deputy Inspector General
    Department of Veterans Affairs
    Office of the Inspector General (50C)
    801 Vermont Avenue, NW
    Washington, DC 20420

    Dear Ms. Halliday:

        We are writing in response to your letter received by the Project
    On Government Oversight (``POGO'') on August 11, 2015. We appreciate
    the fact that you have decided not to enforce the subpoena issued by
    your predecessor to POGO on May 30, 2014.
        We accept your offer to work with OIG staff to exchange information
    we have received from VA employees and veterans, but due to continuing
    incidents of whistleblower retaliation by the VA and the VA OIG, POGO
    is erring on the side of caution to ensure that the identities of our
    sources are in no way disclosed, in order to prevent putting them at
    risk to personal attacks, professional retribution, or reduced medical
    care.
        We are reaching out to all of our sources to reassure them that
    POGO will only be providing information generalized to Veterans
    Integrated Service Network (VISN) and that their identities will remain
    confidential. POGO is currently in the laborious process of compiling
    and organizing the information that we received by each VISN and
    categorizing them by complaint topic. Although your letter states that
    you are only interested in learning about inappropriate patient medical
    scheduling practices or data manipulation schemes, we intend to inform
    your staff about other systemic breakdowns in VA operations and patient
    care that we have learned of.
        I will contact you as soon as we complete these procedures, and
    please be assured we are moving apace to be able to help address these
    matters.

    Sincerely,

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    Danielle Brian
    Executive Director