[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.

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    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.
                                 ______
                                 
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                             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.
                                 ______
                                 
             [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:

    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,




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMA]

LINDA A. HALLIDAY
Deputy Inspector General
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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