[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.
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\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).
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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.
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\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.
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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\
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\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.
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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.
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\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.
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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\
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\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.
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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.
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\6\ Letter from Richard Griffin, Acting-Inspector General,
Department of Veterans Affairs, to Project On Government Oversight,
regarding subpoena to POGO, May 30, 2014.
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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\
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\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'').
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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.
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\8\ ``VA OIG Statement''.
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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\
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\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).
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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)
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\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\
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\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).
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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\
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\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.
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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.
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\16\ Adam Miles, email message to POGO Executive Director Danielle
Brian, ``Re: for my Senate Approps testimony,'' July 27, 2015.
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Congress should also extend whistleblower protections to
contractors and veterans who raise concerns about medical care provided
by the VA. POGO's investigation found that both of these groups also
fear retaliation, which prevents them from coming forward. Contractors
are only currently protected under a pilot program, but need permanent
statutory protections. In addition, a veteran who is receiving poor
care should be able to speak to his or her patient advocate without
fear of retaliation, including a reduction in the quality of
healthcare. Without this reassurance, there is a disincentive to report
poor care, allowing it to continue uncorrected.
The VA and Congress must work together to end this culture of fear
and retaliation. Whistleblowers who report concerns that affect veteran
health must be lauded, not shunned. And the law must protect them.
The Government has failed in its sacred responsibility to care for
our veterans. It is our collective duty to help the whistleblowers who
have taken risks to fix this broken agency.
[Clerk's Note.--See letter submitted by Danielle Brian at
the end of the hearing in the ``Material Submitted Subsequent
to the Hearing''.]
Senator Kirk. Thank you.
Ms. Halliday.
STATEMENT OF LINDA A. HALLIDAY, DEPUTY INSPECTOR
GENERAL, OFFICE OF THE INSPECTOR GENERAL,
DEPARTMENT OF VETERANS AFFAIRS
Ms. Halliday. Mr. Chairman, thank you for the opportunity
to discuss how VA OIG interacts with complainants and
whistleblowers. This is my first hearing as the Deputy
Inspector General and I look forward to continuing a working
relationship between the OIG and the Congress.
I have testified at congressional hearings in my previous
role as the Assistant Inspector General for audits and
evaluations, which was the largest line office within the OIG,
and I now welcome the opportunity to share with you the work of
all components of our Inspector General. I am accompanied by
Ms. Maureen Regan, Counselor to the Inspector General, and Mr.
David Daigh, the Assistant Inspector General for Health Care
Inspections.
I assumed the position of the Deputy Inspector General on
July 6th, 2015. In the past three weeks, I have taken several
immediate steps to strengthen both the OIG's internal
whistleblower program, as well as our Whistleblower Protection
Ombudsmen Program. These actions are outlined in my written
statement. I took these actions to establish clear expectations
and set a tone at the top for our organization regarding the
importance of how we protect whistleblowers' rights and
confidentiality.
The OIG is the primary oversight body for receiving and
reviewing allegations of waste, fraud, abuse, and mismanagement
in VA programs and operations. And our hotline serves as the
central point-of-contact for individuals to report allegations.
We take this seriously, our responsibility not to disclose the
identity of an employee who has made a complaint or provided
information. When individuals contact us, we advise them of
their right to submit their complaint anonymously, to identify
themselves but remain confidential, or to waive the right of
confidentiality and advise them of the potential consequences
of the decision. All complaints are evaluated.
Using our available but limited resources, we must be
highly selective in the cases we accept. We also make case
referrals to VA in accordance with our complaint referral
directive. We make every effort to make sure an official,
separate from and at a higher grade than the alleged wrongdoer,
is responsible for conducting the review of the allegations. We
continue our inquiry until we are satisfied or we will open a
case to review the matters further.
In many cases, these referrals involve veterans' complaints
regarding specific episodes of medical care. And it is not
possible for VA to review the complaint without the OIG
disclosing the identity of the complainant.
Before taking any action, we advise the complainant and
request that they provide their written consent to the OIG to
disclose their identity. If they say no, it goes no further.
There is a lot of confusion on the role of the Inspector
General regarding whistleblowers and allegations of
retaliation. For example, the OIG does not make a determination
as to whether an individual who makes a complaint or provides
information to us has made a protected disclosure. This is a
legal determination made by the Office of Special Counsel, the
Merit Systems Protection Board, or the U.S. Court of Appeals
for the Federal Circuit. These entities have the authority to
provide direct whistleblower relief.
OIG faces many challenges in addressing allegations
reported by complainants. Vague allegations often present a
task akin to looking at needle in a haystack. For example, it
is difficult for us to adequately review a complaint of poor
quality of surgical care without details of which clinics
involved. We cannot contact an individual to obtain additional
information regarding an allegation if they choose to remain
anonymous. Similarly, some complainants initially identify
themselves, but later are unable to or decline to provide
critical information that could enable VA OIG to focus
resources more specifically.
The OIG works to protect the identity of complainants who
request confidentiality, at times the complainants become known
based on other sources of information. Some individuals who
have requested confidentiality voice the same complaints to VA
management, coworkers, media outlets, and they have made
statements that they are going to come to us or they have come
to us.
Everyone has their own perception as to what is going on.
From the whistleblower perspective, they may see the OIG coming
in and making sure that the i's are dotted and the t's are
crossed. From our viewpoint, we are making sure that all the
bases are covered. We have different challenges in verifying
allegations; especially those complaints that could be
criminal. The OIG looks to partially determine the who, what,
when, where, and why while examining information in a fact-
based approach.
We need whistleblowers to bring the central issue forward.
Although whistleblower's perceptions are directly related to
their complaint, at times they are not in a position to know
all the facts or they over emphasize the viewpoint.
Mr. Chairman, we are not on anyone's side. We are here to
find the truth. I appreciate the opportunity to hear from the
whistleblowers today and to address these important issues. I
am continuing to reevaluate our business processes to ensure
that they provide adequate protections for complainants
including whistleblowers.
This concludes my statement and I would be happy to answer
any questions.
[The statement follows:]
Prepared Statement of Linda A. Halliday
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to discuss how the VA Office of Inspector General (OIG)
interacts with complainants and whistleblowers. This is my first
hearing as the Deputy Inspector General and I look forward to
continuing the working relationship between the OIG and the Congress. I
have testified at congressional hearings in the past regarding projects
and reports of the OIG's Office of Audits and Evaluations, and now I
welcome the opportunity to share with you the work of all components of
the OIG. I am accompanied by Maureen T. Regan, Counselor to the
Inspector General and John D. Daigh, Jr., MD, CPA, Assistant Inspector
General for Healthcare Inspections.
background
Under the Whistleblower Protection Act of 1989, it is unlawful for
agencies to take or threaten to take a personnel action against an
employee who makes a protected disclosure--information he or she
reasonably believes evidences a violation of any law, rule, or
regulation; gross mismanagement; a gross waste of funds; an abuse of
authority; or a substantial and specific danger to public health and
safety. Personnel actions can include a poor performance review,
demotion, suspension, or termination. In addition, the law prohibits
retaliation for filing an appeal, complaint, or grievance; helping
someone else file or testifying on their behalf; or cooperating with or
disclosing information to the OIG.
The OIG does not make a determination as to whether an individual
who makes a complaint or provides information to the OIG has made a
protected disclosure as defined under the Whistleblower Protection Act
of 1989, as amended, and applicable case law to be considered a
``whistleblower.'' This is a legal determination made by the U.S.
Office of Special Counsel (OSC), the U.S. Merit Systems Protection
Board (MSPB), or the U.S. Court of Appeals for the Federal Circuit.
The OIG Whistleblower Protection Ombudsman program provides
education about protections for current or former employees of VA, VA
contractors, or VA grantees who make protected disclosures. The
Ombudsman coordinates with VA administrations and staff offices to
increase awareness of prohibitions on whistleblower retaliation. In
addition, the program disseminates information on rights and remedies
against retaliation for making protected disclosures. Specifically, the
Ombudsman provides complainants with information on how to contact
organizations that address reprisal allegations. This program was
authorized by the Whistleblower Protection Enhancement Act of 2012,
which became law on November 27, 2012. The OIG Ombudsman cannot act as
a legal representative, agent, or advocate of the employee or former
employee.
oig hotline process
Complainants, including whistleblowers, are the lifeline of OIG
organizations, and the OIG is committed to protecting their identities,
understanding their concerns, objectively seeking the truth, and
ensuring VA pursues accountability and corrective action for
wrongdoing. The Inspector General Act of 1978 (IG Act), as amended,
authorized the OIG to accept allegations from individuals concerning
criminal activity, fraud, waste, abuse, and mismanagement of VA
programs and operations.
The OIG Hotline serves as the central point of contact for
employees, veterans and their family members, other Federal agencies,
and the general public to report allegations. The OIG Hotline receives
contacts via telephone, email, Internet, U.S. mail, and facsimile. The
OIG takes seriously the provisions of Section 7(b) of the IG Act that
prohibits the disclosure of the identity of an employee who has made a
complaint or provided information to the OIG unless the employee
consents to the disclosure or, in very rare occasions, the VA Inspector
General personally determines such disclosure is unavoidable during the
course of an investigation. When individuals contact our Hotline, they
are advised of their right to submit their complaint anonymously, to
identify themselves but remain confidential, or to waive the right to
confidentiality, and of the potential consequences of their decision.
Confidential status allows further communication between the OIG and
the complainant after the original complaint is received. It is more
advantageous to both the OIG and the complainant than anonymous status.
All complaints are logged and receive a preliminary evaluation by a
Hotline analyst. Based upon the nature and substance of the complaint,
the Hotline analyst determines whether the complaint merits referral to
one of the Directorates within the OIG--the Office of Investigations,
the Office of Audits and Evaluations, or the Office of Healthcare
Inspections--for further evaluation. If one of these Directorates
accepts the complaint, the Hotline analyst will notify the complainant
that a case has been opened.
Because we receive more complaints that we have the resource
capacity to review, we also make case referrals to VA of the complaints
that are not appropriate for an OIG case but that appear to warrant
further review, such as allegations of staff rudeness or medication
refill problems. In these instances, the appropriate VA facility or
program office is responsible for conducting an independent review and
promptly reporting back to the OIG on the findings of their review
within 60 days. The OIG does not identify the complainant to VA when
making these referrals without the complainant's authorization.
The OIG does not evaluate complaints regarding matters that are
unrelated to the programs and operations of VA or that can be addressed
in other legal or administrative forums. When possible, the OIG refers
the complainant to the appropriate VA program office or Federal agency
that can provide further assistance on the matter. For example,
individuals with complaints regarding claim adjudications for VA
disability and pension benefits are advised to contact the Veterans
Benefits Administration (VBA); individuals with complaints regarding
discrimination are advised to contact VA's Office of Resolution
Management (ORM); and individuals with allegations of prohibited
personnel practices, including reprisal for whistleblowing, are advised
to contact OSC. We also do not review complaints of poor quality of
care when the veteran or family has filed an administrative tort claim.
Those investigations are the responsibility of the Office of General
Counsel.
For the 18-month period of October 1, 2013, through March 31, 2015,
the OIG Hotline received more than 62,000 contacts. Over 7,800 (12.5
percent) of those contacts came from VA employees, and 1,545 (2.5
percent) contacts were from individuals raising concerns about
retaliation or reprisal. Despite changes to our Hotline website that
advise complainants of the limitations of anonymous submissions,
approximately 20 percent (297) of the 1,545 complaints were from
anonymous sources. Unfortunately, in these situations, the OIG can only
provide generic education and instruction on whistleblower avenues of
relief, which is available on our website. For the remaining 80 percent
of complaints received via the Hotline:
--477 complainants were advised to contact OSC.
--54 complainants were advised to contact MSPB.
--717 complainants were advised to contact ORM.
oig interaction with the u.s. office of special counsel
When OSC receives a complaint from a current or former employee
alleging retaliation for making a protected disclosure to the OIG, OSC
investigators contact the OIG's Release of Information Office to obtain
relevant records and other information. In response, the OIG has
provided the records requested, consistent with applicable laws and
regulations affecting those records, engaged in discussions relating to
what records or other information we have regarding any disclosures to
the OIG, and made OIG personnel available for interview.
challenges for the oig and complainants
Vague Allegations From Anonymous Complainants
It is critical in most instances that the OIG be able to
communicate with the complainant to understand the nature of the
complaint so as to effectively address the issue; otherwise, we are
often left with a task akin to looking for ``a needle in a haystack.''
For example, if a complainant makes a serious but vague allegation that
surgery at a medical center is of poor quality, but does not provide
any further information, it is difficult to address the complainant's
issues. The OIG's ability to contact the complainant to obtain
additional, more specific information is of paramount importance to
fully address the complainant's issue. Examples of information critical
to completion of our reviews could include which surgical service is
involved (General Surgery, Neurosurgery, or Podiatry); location
(inpatient operating room or outpatient day surgery); specific
providers' names; the time period; and the definition of quality of
care (timely, mortality rate, or morbidity rate).
When an individual chooses to remain anonymous and does not provide
sufficient information to assess or conduct a review of the complaint,
the OIG cannot contact that person to obtain additional information
regarding the allegation such as testimonial or documentary evidence,
the identity of the patients impacted, the providers involved, or other
witnesses, and we cannot inform the complainant as to what action the
OIG has taken on the complaint. Similarly, a complainant may initially
identify himself or herself to the OIG but later declines to provide
critical information to enable the OIG to conduct a thorough review of
the allegations. In these instances, we often have no choice but to
discontinue processing the complaint.
The Need to Disclose a Complainant's Identity
In certain circumstances, it may be unavoidable to disclose a
complainant's identity to VA in order for the allegation to be
reviewed. For example, we receive many veteran-specific complaints
regarding specific episodes of VA medical care, contracting issues, and
mismanagement. Because we receive more allegations than we have the
resources to review, we often make a case referral to the appropriate
Veterans Health Administration (VHA) facility or other VA program
office for review. In cases where it is not possible to review the
complaint without disclosing the identity of the complainant, we advise
the complainant and, before taking any further action on the complaint,
request that they provide their written consent for the OIG to disclose
their identity.
Protecting Complainant Confidentiality
On rare occasions, we receive complaints that OIG staff breached
the confidentiality of a complainant. When this occurs, we investigate
the allegations and take administrative action when the complaint is
substantiated. There are also many instances where individuals who have
requested confidentiality with the OIG have made the same complaints to
VA management, coworkers, or media outlets, or they have made
statements that they have gone to the OIG or threatened to go to the
OIG. Even though the OIG does not disclose the identity of the
complainant, either overtly or by refusing to confirm that the
individual submitted a complaint, VA knows or, at a minimum suspects,
that the individual filed the complaint. Furthermore, under certain
circumstances, the very nature of the allegations brought forth by the
complainant may render the complainant's identity obvious or possible
to deduce by others outside the OIG.
Budgetary Constraints
The surfacing of allegations in fiscal year 2014 related to wait
times and delays in care at the Phoenix VA Health Care System (PVAHCS)
was a watershed event for VA and the OIG. The national attention
sparked by reporting on PVAHCS led to an increased public awareness of
the OIG and resulted in a dramatic increase in the number of contacts
to the OIG Hotline, in the number of inquiries sent to us by Members of
Congress, and by veterans and their families. In fiscal year 2014, the
OIG Hotline received almost 40,000 contacts, which represented a 45
percent increase from fiscal year 2013.
During the first half of fiscal year 2015, we received over 22,400
contacts, which puts us on pace to surpass fiscal year 2014's record-
breaking year. Similarly, we saw a 38 percent increase in the number of
inquiries from Members of Congress, and we expect this upward trend to
continue.
The OIG operates in a resource constricted environment with respect
to the number of allegations and national reviews we are able to
address. Because of this, the OIG must be highly selective in the cases
we accept. In fiscal year 2013, the OIG opened cases for 1,227 (4.5
percent) of the 27,420 contacts we received. In fiscal year 2014,
although we received more contacts (39,874) and opened more cases
(1,330) than the previous year, the percentage of cases opened dropped
to 3.3 percent.
Due to significant and sustained increases in the number of Hotline
contacts the OIG receives, we have increased our Hotline staff by three
positions within the last year. At present, there are 15 staff members
in Hotline including 3 supervisors and 12 analysts. I am reviewing
staffing levels throughout the organization including OIG line
directorates; however, the outlook in fiscal year 2016 is not
advantageous to increasing staff levels in one part of the organization
without increasing levels in other Directorates.
recent initiatives
I assumed the position of Deputy Inspector General (IG) on July 6,
2015. On July 10, 2015, I announced that one of my first acts as Deputy
IG would be to ensure that all OIG employees are fully trained on
protections and remedies guaranteed to Federal employees by the
Whistleblower Protection Act of 1989, the Whistleblower Protection
Enhancement Act of 2012, and related laws. To this end, the OIG has
registered with OSC to participate in the OSC's 2302(c) Certification
Program and expects to complete all required actions for certification
by December 2015. Undertaking the certification process will help
strengthen our past training efforts so that all OIG employees--from
our Hotline analysts who are a complainant's first point of contact
with the OIG to our auditors, investigators, and healthcare inspectors
who interact with complainants in the course of their daily work
activities--can assist complainants in making protected disclosures and
by educating them on their right to be free from retaliation for
whistleblowing and other prohibited personnel practices.
I have also taken several actions to further strengthen the OIG's
Whistleblower Protection Ombudsman program.
--Improved Hotline submission process.--In order to better serve
complainants and address complainant concerns of potential
retaliation in an informed manner, we have created additional
forms on our website designed to ensure anonymity,
confidentiality, or allow for full identity disclosure.
Providing these different classifications will allow
complainants a greater degree of confidence that their personal
information is appropriately protected. We also rewrote in
plain English the notice Hotline sends to individuals who
contact us so that there is a clear understanding of what to
expect when making a complaint.
--Reinvigorated the OIG Rewards Program.--To promote greater
utilization of the OIG's cash reward program to individuals who
disclose information leading to felony charges, monetary
recovery, or significant improvements to VA operations or
programs, each OIG Directorate and the OIG Whistleblower
Ombudsman will proactively conduct a semiannual review of
disclosures made to the OIG to identify potential recipients
for cash rewards. Rewards will be based on such factors as the
significance of the information, risks to the individual making
the disclosure, time spent and expenses incurred by the
individual making the disclosure, and cost savings to VA.
Recipients will be recognized at either a public or private
presentation according to their preference.
--Enhanced crime awareness education briefing.--These briefings,
provided by our criminal investigators as part of cyclical
inspection reviews of VHA and VBA facilities, will be expanded
to better define how VA employees can make disclosures of
protected health information, the roles and responsibilities of
the Whistleblower Protection Ombudsman, and the avenues of
relief available to VA employees. For the period fiscal year
2014 to present, a total of more than 300 briefings were
attended by approximately 20,000 VA employees nationwide.
conclusion
The OIG recognizes the critical role complainants and
whistleblowers play in exposing serious problems and deficiencies in VA
programs and operations, and I will continue to review and evaluate
ways in which the OIG can enhance its interactions with complainants.
We are committed to protecting the identity of any person who comes
forward to the OIG to report serious allegations of criminal activity,
fraud, waste, abuse, and mismanagement; getting to the bottom of those
allegations; and monitoring VA to ensure they pursue accountability and
corrective action when wrongdoing is found. We are committed to work on
behalf of complainants and whistleblowers to ensure that VA operates in
a manner that is befitting those veterans who have served to protect
our country and our country's principles. Mr. Chairman, this concludes
my statement and I would be happy to answer any questions that you or
members of subcommittee may have.
[Clerk's Note.--See three letters and a fact sheet
submitted by Linda A. Halliday at the end of the hearing in the
``Material Submitted Subsequent to the Hearing''.]
IG SUBPOENAED POGO
Senator Kirk. Ms. Halliday, let me ask you a question. We
have Danielle Brian here from POGO. Where her organization set
up a hotline for VA employees, she got 800 complains. You hit
POGO with a subpoena asking for all those names. It would seem
that you wanted to retaliate against all of POGO's
whistleblowers. Why did you issue that subpoena?
Ms. Halliday. I did not issue that subpoena. And I think
there might be a communications breakdown.
From what I understood, the concern of the Inspector
General was to understand all of the issues with relation to
the manipulation of wait times, to make sure that we had the
sites identified, and we had all of the sites where potential
patient harm could occur. That was the method used. Certainly,
we understood that POGO did not have the authority to
investigate these and we did.
Senator Kirk. Do you understand the feeling that, based on
this record that this subcommittee has received, you were
subpoenaing POGO to make sure that you could retaliate against
those 800 people?
Ms. Halliday. I understand that POGO could have that
perception. I do not think that was the perception of the
Inspector General.
We had 98 sites identified where there was potential
manipulation of data. VA had approximately 150 sites plus all
at CBOCs. We were not sure if we had all the information and
something that POGO may have received and we didn't even care
if we had the name; as far as I knew. We just needed to know
the site and should we look at it, what's the egregiousness of
the complaint. So I do think that there might have been some
communication issues here.
Ms. Brian. Mr. Chairman.
Senator Kirk. Ms. Brian, if the situation is as Ms.
Halliday says, that the confidentiality is at the cornerstone
of the Inspector General's work, then they have no interest in
getting the identities of the people who complained at POGO.
Ms. Brian. Yes. Thank you, Mr. Chairman, for an opportunity
to clarify. There was no confusion. It is true that Ms.
Halliday wasn't there at the time. But Counselor Maureen Regan,
of her office, contacted POGO's General Counsel and we told
them right away we were very happy to work with them to give
them any information that we were getting without having to
give any identifying information about the individuals with
whom we were speaking. We had every interest and we wrote that
in an email to them saying, ``Give us a second, we're
overwhelmed, but as soon as we get capacity to let you know
what we're finding and where it is we are happy to talk to
you.'' And then the next day, we received a subpoena
specifically asking for the identities of the people who had
contacted us.
Senator Kirk. Ms. Halliday, if I asked you to withdraw that
subpoena, what would you say back to me?
Ms. Halliday. At this point, I would hope that there was no
information at POGO that would have resulted in patient harm
that we wouldn't know about to go take a look at. I'd like to
ask Maureen Regan to come up----
Senator Kirk. Behind you----
Ms. Halliday [continuing]. If she'd like to----
Senator Kirk. Behind you is Dr. Lisa Nee who, within 24
hours of complaining to the Inspector General, her identity was
disclosed to her workmates. It seems that the disclosure of a
confidential source is routine at the Inspector General's
office.
Ms. Halliday. I'd like to speak to that. I definitely heard
Dr. Mitchell, what she said. And I believe what the confusion
is her complaint went from Senator McCain's office to VA. It
did not come directly to us. As a result, it is very hard for
us to protect confidentiality, and I do not believe that the
reprisal actions came from our office based on the facts that
I'm looking at now. However, it did go to VA and it came down
the tree from VA headquarters to the VISN, to the the medical
center. And I can understand some of the frustration that Dr.
Mitchell has.
Senator Kirk. Danielle, I would expect that--could you talk
about this quashing the subpoena and the work on that? I would
expect that if you gave the information to the Inspector
General's office, those 800 employees would receive severe
retaliation.
Ms. Brian. Oh, there is no doubt in our mind that that was
an unacceptable step for us. The purpose of our organization is
to protect the people who are coming to us and so that there is
never a question that we were never going to turn over the
identities. So I agree with you, sir.
Senator Kirk. Could you describe the prospects of not
complying with the subpoena?
Ms. Brian. Well, it has expired and we are waiting because
they haven't withdrawn the subpoena. What the VA Inspector
General need to do is go to a court and have the court enforce
it and there has been a number of Senators, like yourself, who
have questioned the Inspector General and why they have done
this and would they withdraw it. And they haven't been willing
to do so. I believe that this matter has been turned over to
the CIGI Integrity Committee for review as well.
Senator Kirk. It would seem to me, Ms. Halliday, that your
predecessor made a mistake by issuing this subpoena. I would
ask you to withdraw it.
Ms. Halliday. I will take that under strong consideration.
Senator Kirk. Thank you.
Ms. Brian. Thank you, Chairman.
Senator Kirk. You bet.
Okay, Ms. Lerner.
OFFICE OF SPECIAL COUNSEL
STATEMENT OF CAROLYN M. LERNER, SPECIAL COUNSEL
Ms. Lerner. Chairman Kirk, Ranking Member Tester and
members of the subcommittee, thank you for the opportunity to
testify today about the U.S. Office of Special Counsel (OSC)
and our work with VA whistleblowers.
Given the time limitations, my statement today will focus
on just three areas. First, OSC's role in whistleblower
disclosures and whistleblower retaliation cases. Second, an
overview of progress made in the past year. And finally, some
areas of ongoing concern.
Starting with our role, OSC helps employees who make
disclosures of wrongdoing and those who experience retaliation
for doing so. There are separate processes for these two types
of cases. If an employee discloses a health or safety concern
or a violation of law, rule, or regulation and it meets a very
high standard of review, I send the matter to the agency for
investigation. After investigating, the agency head must then
submit a report to my office. The whistleblower is given an
opportunity to comment on that report. I then determine whether
the report contains the information required by statute and
also whether the findings of the agency appear to be
reasonable. This includes whether appropriate corrective
action, including discipline, has been taken. I then send that
information and our findings to the President and Congress, and
I also post them on our public Web site. That is the process
for disclosures.
OSC also protects Federal workers from prohibited personnel
practices, especially retaliation for whistleblowing. Unlike
disclosure cases, where we do not have independent
investigative authority, in retaliation cases OSC conducts the
investigation and determines if retaliation has occurred. We
can get relief for the employee including a stay of any
disciplinary action, reversing a termination, and damages for
any losses they may have suffered as a result of retaliation.
So that, in a nutshell, is our process for whistleblower
disclosures and whistleblower retaliation complaints.
In over the past year, there has been a tremendous surge of
cases from the VA. I will talk now about how our agency is
addressing them and some signs of progress.
OSC has about 140 employees with jurisdiction over most of
the Federal Government. So we are stretched pretty thin. But we
have reallocated our resources to prioritize our work on VA
cases. And perhaps most significantly, we implemented an
expedited review process for retaliation cases. This process
allows OSC to present strong cases to the VA at an early stage
saving significant time and resources and getting quicker
relief for employees.
In the past year, we have obtained 22 corrective action for
VA whistleblowers through this expedited process, including a
settlement on behalf of Dr. Katherine Mitchell, who you heard
from earlier, and two other Phoenix VA employees who were at
the heart of the wait time scandal. My written testimony
summarizes a number of the other cases we resolved through this
expedited program, including three VA whistleblower complaints
settled just last week.
It is a sign of progress that the VA leadership agreed to
the expedited review process and also agreed to resolve many
more cases through our regular processes, including mediation;
99 to be exact. We are also encouraged that VA leadership has
enlisted our assistance in training its counsel in retaliation
law.
On the disclosure side, our work has led to important
improvements at the VA as well as discipline for over 40
officials with many more cases pending. These disciplinary
actions include the termination of employees who failed to
properly safeguard patient information and the suspension of
four employees who improperly handled and restocked expired
prescription drugs. So these are some of the positive steps
that we are seeing.
There are, however, several ongoing areas that require more
attention. Of particular concern, is the accessing of
employees' medical records. In many instances, VA employees are
themselves veterans and receive care at VA facilities. In
several cases, their medical records have been accessed without
adequate justification, possibly to discredit them. We have and
will continue to pursue relief for these whistleblowers, and
discipline for those who improperly access medical records. I
have also notified the VA that it should consider system-wide
corrective action, which could deter these types of breaches.
Finally, I want to comment briefly on the two
whistleblowers who testified on the first panel. OSC recently
received the VA reports generated in response to the
disclosures made by Drs. Mitchell and Nee. After our review,
and Drs. Mitchell and Nee had the opportunity to comment on
those reports, we will formerly transmit the information to
Congress and the President. Given where we are in the process,
I can't provide details about these matters at this time.
However, I can say that Drs. Mitchell and Nee exemplify the
courage and tenacity that are necessary to overcome obstacles
to change in an organization like the VA. While work still
needs to be done, their efforts will lead to improved care in
Phoenix and at Hines and I want to thank them both.
In conclusion, we appreciate the committee's interest in
our efforts to protect VA whistleblowers. Thank you for this
opportunity to testify and I am happy to answer any question
that you many have.
[The statement follows:]
Prepared Statement of Carolyn M. Lerner
Chairman Kirk, Ranking Member Tester, and members of the
subcommittee:
Thank you for the opportunity to testify today about the U.S.
Office of Special Counsel (OSC) and our work with whistleblowers at the
Department of Veterans Affairs (VA). Since April 2014, our office has
seen a dramatic increase in the number of whistleblower cases from VA
employees. These cases fall into two categories, retaliation complaints
and disclosures of misconduct.
In response to retaliation complaints, we have secured relief for
dozens of VA whistleblowers, helping courageous employees restore
successful careers at the VA. The number of victories for
whistleblowers is increasing steadily, with improved cooperation from
the VA and our expedited review process for retaliation complaints. In
2015, we will more than double the total number of favorable outcomes
for whistleblowers achieved in 2014.
Our work with whistleblowers in disclosure cases has improved the
quality of care for veterans throughout the country and promoted
accountability. The VA has disciplined or proposed discipline for 40
employees as a result of the wrongdoing identified by whistleblowers in
disclosures to OSC. These actions include the termination of employees
who failed to properly safeguard patient information and the suspension
of four employees who improperly handled and restocked expired
prescription drugs.
This statement describes our process for investigating retaliation
complaints and reviewing whistleblower disclosures. It provides updated
statistical information on case numbers and outcomes, and summarizes
recent cases in which OSC secured relief for whistleblowers. Finally,
it highlights areas of concern from the investigation and review of
hundreds of these claims.
OSC Investigations of Whistleblower Retaliation Complaints
A. Process
OSC investigates allegations of whistleblower retaliation, one of
the 13 ``prohibited personnel practices'' that Federal employees may
challenge with our office. After receiving a retaliation complaint, we
conduct an investigation to determine whether the employee has been
fired, demoted, suspended, or subjected to some other personnel action
because the employee blew the whistle. If OSC can demonstrate that a
personnel action was retaliatory, we work with the agency to provide
relief to the employee. Relief can include reinstatement, back pay, and
other remedies, including monetary damages. OSC also commonly works
with the agency involved to implement systemic corrective actions, such
as management training on whistleblower protections. Frequently, we
resolve cases through alternative dispute resolution, including
mediation. If the agency does not agree to provide the requested relief
to the employee, either through mediation or based on our investigative
findings, we have the authority to initiate formal litigation on behalf
of the whistleblower before the Merit Systems Protection Board (MSPB).
In egregious cases, we can also petition the MSPB for disciplinary
action against a subject official.
B. VA Retaliation Complaints, by the Numbers
Government-wide, OSC is on track to receive over 3,800 prohibited
personnel practice complaints in 2015. Over 1,300 of these complaints,
or approximately 35 percent, will be filed by VA employees. In 2014,
for the first time, the VA surpassed the Department of Defense in the
total number of cases filed with OSC, even though the Defense
Department has twice the number of civilian employees as the VA.
We have taken a number of steps to better respond to this
tremendous surge in VA complaints. We reallocated a significant
percentage of our program staff to work on VA cases. I assigned our
deputy special counsel to supervise investigations of VA cases, and we
hired an experienced senior counsel to further coordinate our
investigations of VA cases. We prioritized the intake and initial
review of all VA health and safety related whistleblower complaints and
streamlined procedures to handle these cases. And, we established a
weekly coordinating meeting on VA complaints with senior staff and case
attorneys.
Although we have dedicated more staff and resources to these
investigations, the volume of incoming VA complaints remains
overwhelming. As I noted in testimony before the House Committee on
Veterans' Affairs (HVAC) last year, the number and ``severity of these
cases underscores the need for substantial, sustained cooperation
between the VA and OSC as we work to protect whistleblowers and
encourage others to report their concerns.'' I am pleased to report
that we are receiving that cooperation from VA leadership.
Working with the VA's Office of General Counsel (OGC), we
implemented an expedited review process for whistleblower retaliation
cases. This process allows OSC to present strong cases to the VA at an
early stage in the investigative process, saving significant time and
resources. To date, we have obtained 22 corrective actions for VA
whistleblowers through this process, including a landmark settlement on
behalf of Dr. Katherine Mitchell, who testified today, and two other
Phoenix VA Medical Center (Phoenix VAMC) employees. The Phoenix VAMC
cases were the first to be settled through the expedited program. My
April 2015 testimony before HVAC summarized a number of the other cases
we resolved in collaboration with the VA through the expedited process.
I have attached that statement for reference.
Last week, OSC announced the resolution of three additional VA
whistleblower complaints. These cases are summarized here:
Ryan Honl.--Mr. Honl was a secretary in the mental health
unit at the Tomah VA Medical Center in Tomah, Wisconsin. In
addition to other concerns, he disclosed the alleged excessive
prescription of opiates to patients. On the same day he made a
disclosure to the VA Office of Inspector General, the VA
stripped Mr. Honl of his job duties, locked him out of his
office, and isolated him from co-workers. Shortly thereafter,
he resigned. The VA and Mr. Honl settled his complaint with Mr.
Honl receiving several corrective actions, including the
removal of negative information from his personnel file and
monetary damages.
Joseph Colon Christensen.--Mr. Colon is a credentialing
support specialist with the VA Caribbean Health System in San
Juan, Puerto Rico. Mr. Colon reported concerns relating to
patient care at his facility and information about alleged
improper conduct by the director of his facility. In September
2014, two days after a newspaper called the facility's director
asking for comment on a story about the director's conduct, the
facility's chief of staff issued Mr. Colon a notice of proposed
removal. In late December, the VA replaced the proposed removal
with a three-day suspension and detailed him to a different
position. Prior to his disclosures, Mr. Colon had an
unblemished disciplinary history at the VA and had received
``outstanding'' performance reviews. The VA and Mr. Colon
settled his retaliation complaint with Mr. Colon receiving
several corrective actions, including the repeal of his
suspension, a return to his position, and compensatory damages.
Troy Thompson.--Mr. Thompson is a food services manager with
the Philadelphia VA Medical Center. In 2012, Mr. Thompson
reported management inaction on disciplinary issues and several
violations of VA sanitation and safety policies, including a
fly and pest infestation in facility kitchens. On the same day
he made these disclosures to his supervisor, the supervisor
detailed Mr. Thompson to the VA's Pathology and Lab Service
pending an investigation into him for eating four expired
sandwiches worth a total of $5. His new job mostly consisted of
janitorial work, including sanitizing the morgue and handling
human body parts. Mr. Thompson already had admitted that he ate
and gave away the sandwiches instead of disposing of them per
VA practice. After the VA investigation concluded he had stolen
government property (the sandwiches), he was issued a proposed
removal and fined $75. Mr. Thompson spent over 2 years on the
detail and was under the pending removal for most of that time.
The VA ultimately took positive steps to address his case by
reassigning him to his previous position and rescinding the
proposed removal. OSC determined, however, that the VA also
owed Mr. Thompson compensatory damages, which the VA has agreed
to provide as part of a settlement.
These are important victories for employees who risked their
professional lives to improve VA operations and patient care. In
addition to cases resolved through the expedited relief program, we are
steadily increasing the number of corrective actions in all VA cases.
In 2014 and 2015 to date, OSC has secured either full or partial relief
99 times for VA employees who filed whistleblower retaliation
complaints, including 66 in fiscal year 2015 alone. These positive
outcomes are generated by the OSC-VA expedited settlement process,
OSC's normal investigative process, and OSC's Alternative Dispute
Resolution, or mediation, program. In addition, OSC is also currently
reviewing the retaliatory conduct of six managers in three locations
for possible disciplinary action.
OSC currently has 316 active VA whistleblower retaliation cases in
43 States, the District of Columbia, and Puerto Rico. Approximately 100
of these pending cases allege retaliation for blowing the whistle on a
patient health or safety concern. We will continue to update the
subcommittee as we resolve additional cases in the coming months.
Whistleblower Disclosures
A. Process
In addition to protecting employees from retaliation, OSC also
provides Federal workers a safe channel to disclose violations of law,
rule, or regulation; gross mismanagement; a gross waste of funds; an
abuse of authority; or a substantial and specific threat to public
health or safety. Unlike our role in retaliation complaints, OSC does
not have investigative authority in disclosure cases. Rather, OSC plays
a critical oversight role in agency investigations of alleged
misconduct.
After receiving a disclosure from a Federal employee, OSC evaluates
the information to determine if there is a ``substantial likelihood''
that wrongdoing exists. If OSC makes a ``substantial likelihood''
determination, we transmit the information to the head of the
appropriate agency. The agency head, or their designee, is required to
conduct an investigation and submit a written report on the
investigative findings. The whistleblower is given the opportunity to
comment on the agency report. After we review the agency report and the
whistleblower comments, we transmit them with our analysis to the
President and Congress and place the information on our website.
This process promotes accountability and is transparent. We require
agencies to investigate difficult subjects. And, the process empowers
whistleblowers, most often the subject matter experts in the issues
they have raised, to assess the quality of the agency investigation. In
recent years, the OSC disclosure process has prompted significant
changes in government operations, including an effort to modernize the
pay structure for Border Patrol Agents, an action that saves taxpayers
approximately $100 million a year--an amount over four times the size
of OSC's annual budget.
At the VA, our work with whistleblowers led to an overhaul of the
VA's internal medical oversight office, the Office of the Medical
Inspector (OMI), and has prompted positive changes throughout the
department. For reference, I have attached my July 2014 testimony
before HVAC, which provides a detailed summary of OSC's prior efforts
to promote accountability through our disclosure program.
B. VA Disclosure Cases, by the Numbers
Government-wide, OSC will receive nearly 2,000 whistleblower
disclosures from Federal employees in 2015.\1\ At current levels,
approximately 750, or 37.5 percent, of these disclosures will be filed
by VA employees.
---------------------------------------------------------------------------
\1\ Each year, OSC receives a number of cases that are
inadvertently filed by Federal employees as disclosures of wrongdoing,
and properly should have been filed as retaliation complaints because
the employee is seeking to remedy a personnel action. OSC is in the
process of modernizing its online complaint filing system to make it
more user-friendly and intuitive. With a smarter, more user-friendly
interface for Federal employees, the new system will greatly diminish
the historical problem of wrongly-filed disclosure forms. By
diminishing the number of wrongly filed disclosure cases, the new
system will provide a more accurate, but lower number of disclosure
cases received in fiscal year 2016 and beyond. The changes may increase
the number of retaliation complaints.
---------------------------------------------------------------------------
Through OSC's disclosure channel, VA whistleblowers have identified
and set in motion corrective action plans to address significant
threats to the health and safety of veterans. For example, numerous
whistleblowers at the Jackson, Mississippi VAMC helped to remedy
chronic under-staffing in the Primary Care Unit, improper prescriptions
of narcotics, and unsanitary medical equipment. A whistleblower at a
Brockton, Massachusetts VA community living center exposed extreme
shortcomings in the care provided to long-term mental health patients.
And, two whistleblowers at a VA clinic in Fort Collins, Colorado, were
among the first to identify VA efforts to manipulate data on patient
wait times. These efforts all led to positive changes at the facility
involved, leaving the hospital, clinic, and living center better able
to provide quality care to veterans.
As stated above, I have attached my prior testimony to the Veterans
Affairs' Committee, which provides more extensive summaries of these
cases and others. The reports are also available in the public file on
OSC's website. https://osc.gov/Pages/
Resources-PublicFiles.aspx.
These employees' efforts not only improve the care provided to
veterans, they also promote accountability and help to deter future
misconduct. Over the last 2 years, the VA has taken or proposed
disciplinary actions against 40 officials who engaged in misconduct
identified by whistleblowers in disclosures to OSC. Some of these
actions include:
--Four pharmacy employees were suspended for the improper handling of
prescription drugs as identified by a whistleblower in West
Palm Beach, Florida.
--Six employees were disciplined for pressuring employees to
manipulate scheduling and wait time data in a case brought to
light by two whistleblowers in Fort Collins, Colorado and
Cheyenne, Wyoming. (One of the six, a high-level employee,
retired pending a proposed removal.)
--Two employees were disciplined, including one receiving a notice of
proposed removal, for not properly reporting an alleged sexual
assault, as disclosed by a whistleblower in Syracuse, New York.
--A manager was disciplined for misrepresenting time spent in
counseling sessions with veterans. The VA is currently
reviewing the regional leadership's responsibility for lack of
oversight on this issue in a case brought to OSC by a
whistleblower in Federal Way, Washington.
--A physician received a reprimand and ultimately resigned after a
whistleblower in Montgomery, Alabama, exposed that the
physician had cut and pasted medical records and vital signs,
rather than taking current readings. OSC has requested that the
VA review the appropriateness of the level of disciplinary
action taken in this case.
--Five employees received disciplinary actions, including two
terminations, for failing to safeguard patient information, as
disclosed by a whistleblower in Jackson, Mississippi.
--A total of 12 employees in multiple locations have been disciplined
for improperly accessing a whistleblower's medical records.
OSC is in the process of reviewing the VA reports generated in
response to disclosures made by Drs. Mitchell and Nee, who you heard
from today. After our review and the whistleblowers' have the
opportunity to comment, we will formally transmit the information to
the Veterans Affairs Committees and the President.
I cannot go into detail on the content of these reports at this
time. However, I can say that Dr. Mitchell and Dr. Nee exemplify the
courage and tenacity that is necessary to overcome obstacles to change
in an organization like the VA. While work still needs to be done,
their efforts will lead to improved emergency care in Phoenix and
improved cardiology care at Hines.
Indeed, we were delighted to present Dr. Mitchell with OSC's
``Public Servant of the Year'' award at a ceremony last year. At the
event, VA Deputy Secretary Sloan Gibson commented on the importance of
whistleblowers in prompting change. About Dr. Mitchell, he specifically
noted, ``[W]hile we still have vast work to do, I believe that it's
because of Dr. Katherine Mitchell that access to care in Phoenix is
beginning to improve.'' I can certainly add that it is because of Dr.
Lisa Nee that cardiology care is beginning to improve at Hines. I
applaud both of these heroes.
Areas of Ongoing Concern
In my April 2015 testimony, I highlighted several ongoing areas of
concern in our investigation and review of VA whistleblower cases. As
stated, my April 2015 statement is attached here for reference. I want
to add detail today on two of the issues I identified in April,
accessing employees' medical records and retaliatory investigations.
Also, I will discuss our concern about the pace of culture change
within the local facilities and regional levels of the VA.
A. Accessing Whistleblowers' Medical Records
An ongoing concern is the accessing of employee medical records in
order to discredit whistleblowers. In many instances, VA employees are
themselves veterans and receive care at VA hospitals. In several cases,
the medical records of whistleblowers have been accessed by those who
had no legitimate reason for doing so, in some instances with the
apparent motive of using the information contained in those records to
discredit the whistleblowers. We have pursued and will continue to
pursue relief for these whistleblowers and discipline for those who
improperly access medical records. In February of this year, in a
referral of a whistleblower disclosure, I notified the VA that it
should consider system-wide corrective action to avoid these types of
breaches.
We have started to look more closely at this important issue. While
we are not experts on record-keeping systems, our review of multiple
cases in which an employee alleged improper access of their records
leads us to believe that certain systemic changes could deter the
retaliatory, accidental, and curiosity-fueled searches of
whistleblowers' records.
First, the VA should implement an IT fix to its records-keeping
systems to make it more difficult for an employee to access a fellow
employee's medical records. The VA should determine the most cost-
effective way to both deter improper access to records while still
ensuring that those with a legitimate need to access the records can do
so easily. Quite simply, it is too easy right now for a mischief-minded
employee to enter the medical record system and access information on
his or her coworkers. That should not be the case. A better ``lock'' on
the system would potentially eliminate, and certainly reduce, this
problem.
Second, a broader problem seems to exist within VistA--the Veterans
Health Information Systems and Technology Architecture--or, the VA's
Health IT system. VA employees routinely access the VistA system in
order to obtain administrative and personnel information for employees.
This use of a health information system to obtain both employment and
medical information is problematic because it causes unnecessary
searches of the medical records system, often to receive demographic
information such as an employee's mailing address. In multiple
investigations of improper access of medical records, the VA's
justification for the searches was to access employee data, not medical
information. Even where these searches are justified by VA procedures,
there is a clear threat to an employee's privacy when medical records
are accessed every time demographic or employment information is needed
by HR or a manager. I understand that the VistA system may be
undergoing a modernization effort. We believe the VA should address how
to better segregate medical records from personnel or administrative
information as part of this modernization effort.
B. Retaliatory Investigations
From a whistleblower protection standpoint, there are limitations
in OSC's ability to address retaliatory access of medical records and
other forms of retaliatory investigations. I should note that the VA
has fully cooperated with our investigations and requests for review of
improper records searches. However, a policy change may be appropriate
to better equip OSC to address this unique form of retaliation.
The whistleblower law allows OSC to seek relief in cases where
there has been a concrete personnel action, such as a termination,
demotion, suspension, or a decision concerning pay. Congress has not
included ``an investigation'' as a personnel action that we can stop or
fix, even if the reason for launching the investigation is retaliation
for whistleblowing. There are obviously competing interests at stake.
An agency needs to be able to conduct investigations of its employees,
and managers should not feel chilled from investigating misconduct
because it could lead to a whistleblower complaint. At the same time,
current law leaves a gap in coverage for whistleblowers who are
subjected to retaliatory investigations, including medical records
searches.
It is important to address these more subtle forms of retaliation,
which have a negative effect on the whistleblower and their employment,
and may chill others from blowing the whistle. However, under the
current state of the law, it can be very difficult to challenge these
less concrete retaliatory tactics. We will continue to investigate
these actions as appropriate, but closing the statutory gap in our
enforcement power may ultimately require a legislative fix.
C. Culture Change Within the VA
Another ongoing concern is that the cooperation and commitment we
are seeing at VA headquarters has not consistently filtered down to the
regions. For example, regional counsels do not necessarily have a clear
understanding of what constitutes appropriate treatment of
whistleblowers. In many cases, the regional counsel is the person who
signed off on the very same retaliatory action that OSC challenges, and
therefore should not be handling the individual case, or advising
managers about their legal responsibilities.
We think that the VA General Counsel's recent efforts to re-orient
and sensitize regional counsel through training and other clear
directives are extremely helpful and should be continued and expanded.
We are particularly pleased that the General Counsel asked OSC staff to
meet with VA regional counsels from all over the country this past
April, and hope that we can continue such efforts. Also, OSC provided
several high-level officials within the VA with in-person ``train the
trainers'' training on whistleblower issues. Those officials can now
act as force multipliers to go out and train others throughout the VA.
It is worth noting that no other agency in the Federal Government,
much less one the size of the VA, has taken such a proactive approach
to training managers on whistleblower protections. The VA deserves
recognition for this important initiative.
Conclusion
We appreciate the subcommittee's attention to the issues we have
raised and your interest in our efforts to protect and promote VA
whistleblowers. I thank you for the opportunity to testify, and am
happy to answer your questions.
[Clerk's note: Attachments 1 and 2 were provided to be included
with Carolyn Lerner's prepared statement.]
______
(ATTACHMENT 1)
Testimony of Carolyn Lerner, Special Counsel
U.S. Office of Special Counsel
U.S. House of Representatives
Committee on Veterans' Affairs
Subcommittee on Oversight and Investigations
``Addressing Continued Whistleblower Retaliation Within the VA''
April 13, 2015, 4:00 P.M.
Chairman Coffman, Ranking Member Kuster, and members of the
subcommittee:
Thank you for the opportunity to testify today about the U.S.
Office of Special Counsel (OSC) and our ongoing work with
whistleblowers at the Department of Veterans Affairs (VA).
In July of last year, I spoke to this Committee about OSC's early
efforts to respond to the unprecedented increase in whistleblower cases
from VA employees. Since that time, and as detailed in the sections
below, there has been substantial progress. For example, OSC and the VA
implemented an expedited review process for retaliation claims. This
process has generated timely and comprehensive relief for many VA
whistleblowers. In addition, in response to OSC's findings, the VA
overhauled the Office of Medical Inspector (OMI), and has taken steps
to better respond to the patient care concerns identified by
whistleblowers. Finally, in response to the influx of whistleblower
claims, the VA became the first cabinet-level department to complete
OSC's ``2302(c)'' whistleblower certification program. The program
ensures that employees and managers are better informed of their rights
and responsibilities under the whistleblower law.
Despite this significant progress, the number of new whistleblower
cases from VA employees remains overwhelming. These cases include
disclosures to OSC of waste, fraud, abuse, and threats to the health
and safety of veterans, and also claims of retaliation for reporting
such concerns. OSC's monthly intake of VA whistleblower cases remains
elevated at a rate nearly 150 percent higher than historical levels.
The percentage of OSC cases filed by VA employees continues to climb.
OSC has jurisdiction over the entire Federal Government, yet in 2015,
nearly 40 percent of our incoming cases will be filed by VA employees.
This is up from 20 percent of OSC cases in 2009, 2010, and 2011.
These numbers provide an important overview of the work OSC is
doing. And, while these numbers point to an ongoing problem, it is
important to put them in context. The current, elevated number of VA
whistleblower cases can be viewed as part of the larger effort to
restore accountability at the VA, and do not necessarily mean there is
more retaliation than before the scheduling and wait list problems came
to light, or that there are more threats to patient health and safety.
Instead, these numbers may indicate greater awareness of whistleblower
rights and greater employee confidence in the systems designed to
protect them.
The current VA leadership has shown a high level of engagement with
OSC and a genuine commitment to protecting whistleblowers. As many VA
officials and Members of this Committee have repeatedly stated, culture
change in an organization the size of the VA is difficult and will take
time. But, if the current number of whistleblower cases is an
indication of employees' willingness to speak out, then things are
moving in the right direction.
I. Whistleblower Retaliation--Collaboration with the VA to Provide
Expedited Relief to VA Employees
My July 2014 statement to the Committee summarized a series of
whistleblower retaliation cases. I noted, ``The severity of these cases
underscores the need for substantial, sustained cooperation between the
VA and OSC as we work to protect whistleblowers and encourage others to
report their concerns.'' I further noted that Acting (now Deputy)
Secretary Gibson had committed to resolving meritorious whistleblower
retaliation cases with OSC on an expedited basis.
Since that time, OSC, working in partnership with the VA's Office
of General Counsel (OGC), implemented an expedited review process for
whistleblower retaliation cases. This process has generated significant
and timely results on behalf of VA employees who were retaliated
against for speaking out. To date, we have obtained 15 corrective
actions for VA whistleblowers through this process, including landmark
settlements on behalf of Phoenix VA Medical Center (VAMC) employees.
Summaries of the cases in which the employees consented to the release
of their names are included below:
--Katherine Mitchell, Phoenix VAMC.--Dr. Mitchell blew the whistle on
critical understaffing and inadequate triage training in the
Phoenix VAMC's emergency room. According to Dr. Mitchell's
complaint, Phoenix VAMC leadership engaged in a series of
targeted retaliatory acts that included ending her assignment
as ER Director. Dr. Mitchell has 16 years of experience at the
Phoenix VAMC, and also testified twice before this Committee
last year. Among other provisions, Dr. Mitchell's settlement
included assignment to a new position that allows her to
oversee the quality of patient care.
--Paula Pedene, Phoenix VAMC.--Ms. Pedene was the chief spokesperson
at the Phoenix VAMC, with over two decades of experience. She
made numerous disclosures beginning in 2010, including concerns
about financial mismanagement by former leadership at the
medical center. Many of the allegations were substantiated by a
November 2011 VA Office of Inspector General review.
Subsequently, according to Ms. Pedene's reprisal complaint,
Phoenix VAMC management improperly investigated Pedene on
unsubstantiated charges, took away her job duties, and moved
her office to the basement library. Among other provisions, Ms.
Pedene's settlement includes assignment to a national program
specialist position in the Veterans Health Administration,
Office of Communications.
--Damian Reese, Phoenix VAMC.--Mr. Reese is a Phoenix VAMC program
analyst. He voiced concerns to Phoenix VAMC management about
the amount of time veterans had to wait for primary-care
provider appointments and management's efforts to characterize
long wait times as a ``success'' by manipulating the patient
records. After making this disclosure, Mr. Reese had his annual
performance rating downgraded by a senior official with
knowledge of his email. Mr. Reese agreed to settle his claims
with the VA for mutually agreed upon relief.
--Mark Tello, Saginaw VAMC.--Mr. Tello was a nursing assistant with
the VAMC in Saginaw, Michigan. In August 2013, he told his
supervisor that management was not properly staffing the VAMC
and that this could result in serious patient care lapses. The
VAMC then issued a proposed removal, which was later reduced to
a five-day suspension that Mr. Tello served in January 2014.
The VA again proposed his removal in June 2014. OSC facilitated
a settlement where the VA agreed, among other things, to place
Mr. Tello in a new position at the VA under different
management, to rescind his suspension, and to award him
appropriate back pay.
--Richard Hill, Frederick, Maryland.--Dr. Hill was a primary care
physician at the Fort Detrick, Community Based Outpatient
Clinic (CBOC) in Frederick, Maryland, which is part of the
Martinsburg, West Virginia VAMC. In March 2014, Dr. Hill made
disclosures to VA officials, the VA Office of Inspector
General, and others regarding an improper diversion of funds
that resulted in harm to patients. Specifically, Dr. Hill
expressed serious concerns about the lack of clerical staff
assigned to his primary care unit, which he believes led to
significant errors in patient care and scheduling problems. In
early May 2014, the VA issued Dr. Hill a reprimand. Dr. Hill
retired in July 2014. As part of the settlement agreement
between Dr. Hill and the VA, the VA has agreed to, among other
provisions, expunge Dr. Hill's record of any negative personnel
actions.
--Rachael Hogan, Syracuse VAMC.--Ms. Hogan is a registered nurse (RN)
with the VAMC in Syracuse, New York. She disclosed to a
superior a patient's rape accusation against a VA employee and,
when the superior delayed reporting the accusations to the
police, warned the superior about the risks of not timely
reporting the accusations. Later, she complained that a nurse
fell asleep twice while assigned to watch a suicidal patient
and that another superior engaged in sexual harassment, and
made a number of other allegations regarding the two superiors.
In spring 2014, the two superiors informed Ms. Hogan that they
would seek a review board to have her terminated because of her
``lack of collegiality'' and because she was not a good fit for
the unit, and gave her an unsatisfactory proficiency report.
The VA agreed to stay the review board for the duration of
OSC's investigation. As part of the final settlement, the
agency permanently reassigned Ms. Hogan to a RN position under
a new chain of command, corrected her performance evaluation,
and agreed to cover the costs for an OSC representative to
conduct whistleblower protection training at the facility.
--Charles Johnson, Columbia VAMC.--Mr. Johnson, a technologist in the
radiology department at the VA Medical Center in Columbia,
South Carolina, disclosed that a doctor ordered him to hydrate
a patient using a new, unfamiliar method in February 2014. Due
to his concerns about the new hydration method, Mr. Johnson
consulted with two physicians about the method, neither of whom
would verify the method's safety. Mr. Johnson then contacted
his union, which suggested he send an email seeking
clarification of the method under the VA's ``Stop The Line For
Patient Safety'' policy. In July 2014, Mr. Johnson was issued a
proposed 5-day suspension by the same doctor whose hydration
method Mr. Johnson had questioned. In October 2014, at OSC's
request, the VA agreed to stay Mr. Johnson's suspension. In
February 2015, Mr. Johnson and the VA settled his case, under
which the VA will, among other things, rescind the proposed
suspension and evaluate the hydration method.
--Phillip Brian Turner, San Antonio, Texas.--Mr. Turner is an
advanced medical support assistant in a VA Behavioral Health
Clinic in San Antonio, Texas. In April 2014, Mr. Turner emailed
his supervisor and others about his concerns that the agency
did not follow proper scheduling protocols and may have
falsified or manipulated patient wait times for appointments.
The next day, VA management instructed him to stop emailing
about the VA's scheduling practices. Several weeks later, in
May 2014, VA management directed Mr. Turner to sign four copies
of the VA's media policy, which he refused to do. On May 9,
2014, an article in the San Antonio Express-News--one of the
largest newspapers in Texas--quoted a high-level VA official as
stating that the agency had conducted an investigation into Mr.
Turner's allegations and that Mr. Turner retracted his comments
about the improper scheduling practices. Mr. Turner denies
making any such retraction. The VA's actions in this case raise
important concerns due to the potential chilling effect on
other whistleblowers. The case was settled in February 2015 and
the VA agreed to several corrective actions.
--Debora Casados, Denver, Colorado.--Ms. Casados is a nurse in the VA
Eastern Colorado Health Care System. In August 2014, she
reported that a coworker sexually assaulted two other VA staff
members and made inappropriate sexual comments to her. Human
resources told Ms. Casados and the other staff that they were
not permitted to discuss the allegations and threatened them
with disciplinary action if they did so. In October, human
resources removed Ms. Casados from her nursing duties at the
clinic and reassigned her to administrative tasks. In January
2015, she was moved again, this time to a windowless basement
office to scan documents. In February, her superior denied Ms.
Casados leave to care for her terminally ill mother. On April
3, 2015, the VA agreed to OSC's request for an informal stay on
behalf of Ms. Casados, returning her to nursing duties at
another clinic while OSC investigates her whistleblower
reprisal claims to determine if additional corrective action
and disciplinary action are appropriate.
Including these cases, in 2014 and 2015 to date, OSC has secured
either full or partial relief for over 45 VA employees who have filed
whistleblower retaliation complaints. OSC is on track to help nearly
twice as many VA employees in 2015 as in 2014. These positive outcomes
have been generated by the OSC-VA expedited settlement process, OSC's
normal investigative process, and OSC's Alternative Dispute Resolution
program. OSC is currently examining about 110 pending claims of
whistleblower retaliation at the VA involving patient health and
safety, scheduling, and understaffing issues. These pending claims
involve VA facilities in 38 States and the District of Columbia. We
look forward to updating the Committee as these cases proceed.
II. Whistleblower Disclosures and the Office of Medical Inspector
In my July 2014 testimony, I raised concerns about the VA's
longstanding failure to use the information provided by whistleblowers
as an early warning system to correct problems and prevent them from
recurring. I summarized a series of cases in which the Office of
Medical Inspector (OMI) identified deficiencies in patient care, such
as chronic understaffing in primary care units, and the inadequate
treatment of mental health patients in a community living center. In
each case, OMI failed to grasp the severity of the problems, attempted
to minimize concerns, and prevented the VA from taking the steps
necessary to improve the quality of care for veterans.
In response to our concerns, the VA directed a comprehensive review
of all aspects of OMI's operations. Overall, we believe this review has
resulted in positive change. A recent whistleblower case is
demonstrative.
The case concerns a whistleblower disclosure from a VA employee in
Beckley, West Virginia. In response to OSC's referral, OMI conducted an
investigation and determined that the Beckley VAMC attempted to meet
cost savings goals by requiring mental health providers to prescribe
older, cheaper antipsychotic medications to veterans, to alter the
current prescriptions for veterans over the objections of their
providers, with no clinical review or legitimate clinical need for the
substitutions, in violation of VA policies. The investigation
additionally found the substituted medications could create medical
risks and ``may constitute a substantial and specific risk'' to the
health and safety of impacted veterans. In addition, the OMI
investigation found that the formal objections of at least one mental
health provider were not documented in the meeting minutes at which the
provider raised concerns.
The OMI investigation called for a clinical care review of the
condition and medical records of all patients who were impacted, and an
assessment of whether there were any adverse patient outcomes as a
result of the changed medications. OMI also recommended that, where
warranted, discipline be taken against Beckley VAMC leadership and
those responsible for approving actions that were not consistent with
VA policy, and which could constitute a substantial and specific danger
to public health and the safety of veterans.
While the facts of this case are troubling, the OMI response is
encouraging. In an organization the size of the VA, problems will
occur. Therefore, it is critical that when whistleblowers identify
problems, they are addressed swiftly and responsibly. And OMI is an
integral component in doing so.
In recent days, we have received additional information from
whistleblowers indicating that the OMI recommendations may not have
been fully implemented by Beckley VAMC management. Accordingly, we will
follow up with the VA to verify that all OMI recommendations in the
Beckley investigation, including disciplinary action and necessary
changes to the prescription protocol, have been taken.
III. Training Initiatives and Areas of Ongoing Concern
A. OSC's 2302(c) Certification Program
In my July 2014 statement to the Committee, I referenced the VA's
commitment to complete OSC's ``2302(c)'' Certification Program. In
October 2014, the VA became the first cabinet-level department to
complete OSC's program. The OSC Certification Program allows Federal
agencies to meet their statutory obligation to inform their workforces
about the rights and remedies available to them under the Whistleblower
Protection Act, the Whistleblower Protection and Enhancement Act
(WPEA), and related civil service laws. The program requires agencies
to complete five steps: (1) Place informational posters at agency
facilities; (2) Provide information about the whistleblower laws to new
employees as part of the orientation process; (3) Provide information
to current employees about the whistleblower laws; (4) Train
supervisors on their responsibilities under the whistleblower law; and
(5) Display a link to OSC's website on the agency's website or
intranet.
The most important step in this process is the training provided to
supervisors. Ideally, this training is done in person with OSC staff,
to provide an opportunity for supervisors to ask questions and engage
in a candid back and forth session. However, in an organization the
size of the VA, with tens of thousands of supervisors, in-person
training is extremely difficult to accomplish. Nevertheless, at the
VA's initiative, we are working to develop ``train the trainer''
sessions, so we can reach as many supervisors as possible in real time.
We also anticipate presenting information on the whistleblower law at
an upcoming meeting of VA regional counsel.
Based on the claims OSC receives, VA regional counsel will benefit
from additional training on whistleblower retaliation. Such training
will assist in preventing retaliatory personnel actions from being
approved by the legal department at local facilities, and will also
help to facilitate resolutions in OSC matters. The commitment we are
seeing from VA leadership to correct and eliminate retaliation against
whistleblowers has not consistently filtered down to regional counsel.
Supplemental training for regional counsel may go a long way to address
that issue.
B. Investigation of Whistleblowers
An additional and ongoing area of concern involves situations in
which a whistleblower comes forward with an issue of real importance to
the VA--for example, a cover-up of patient wait-times, sexual assault
or harassment, or over-prescription of opiates--yet instead of focusing
on the subject matter of the report, the VA's investigation focuses on
the whistleblower. The inquiry becomes: Did the whistleblower violate
any regulations in obtaining the evidence of wrongdoing? Has the
whistleblower engaged in any other possible wrongdoing that may
discredit his or her account?
There are two main problems with this approach. First, by focusing
on the individual whistleblower, the systemic problem that has been
raised may not receive the attention that it deserves. And second,
instead of creating a welcoming environment for whistleblowers to come
forward, it instills fear in potential whistleblowers that by reporting
problems, their own actions will come under intense scrutiny.
The VA's focus--not just at headquarters, but throughout the
department--should be on solving its systemic problems, and holding
those responsible for creating them accountable. While there may be
instances in which an individual whistleblower's methods are
particularly troublesome and therefore require investigation, such an
investigation should be the exception and not the rule, and should only
be undertaken after weighing these competing concerns.
C. Accessing Whistleblowers' Medical Records
A final, related issue of ongoing concern is the unlawful accessing
of employee medical records in order to discredit whistleblowers. In
many instances, VA employees are themselves veterans and receive care
at VA hospitals. In several cases, the medical records of
whistleblowers have been accessed and information in those records has
apparently been used to attempt to discredit the whistleblowers. We
will aggressively pursue relief for whistleblowers in these and other
cases where the facts and circumstances support corrective action, and
we will also work with the VA to incorporate these additional forms of
retaliation into our collaborative training programs.
IV. Conclusion
We appreciate this Committee's ongoing attention to the issues we
have raised. I thank you for the opportunity to testify, and am happy
to answer your questions.
______
(ATTACHMENT 2)
Testimony of Carolyn Lerner, Special Counsel and Eric Bachman, Deputy
Special Counsel
U.S. Office of Special Counsel
U.S. House of Representatives
Committee on Veterans' Affairs
``VA Whistleblowers: Exposing Inadequate Service Provided to Veterans
and Ensuring Appropriate Accountability''
July 8, 2014, 7:30 P.M.
Chairman Miller, Ranking Member Michaud, and Members of the
Committee:
Thank you for the opportunity to testify today about the U.S.
Office of Special Counsel (OSC) and our ongoing work with
whistleblowers at the Department of Veterans' Affairs (VA). I am joined
today by Deputy Special Counsel Eric Bachman, who is supervising OSC's
efforts to protect VA employees from retaliation.
I. The Office of Special Counsel
OSC is an independent investigative and prosecutorial Federal
agency that protects the merit system for over 2.1 million Federal
employees. We fulfill this good government role with a staff of
approximately 120 employees--and the smallest budget of any Federal law
enforcement agency. Our specific mission areas include enforcement of
the Hatch Act, which keeps the Federal workplace free of improper
partisan politics. OSC also protects the civilian employment rights for
returning service members under the Uniformed Services Employment and
Reemployment Rights Act (USERRA). Over the last 3 years, OSC has
successfully implemented the USERRA demonstration project this
Committee established as part of the Veterans Benefits Act of 2010.
With limited resources, we have found innovative ways to resolve USERRA
claims and ensure that service members are positioned to succeed upon
their return to the civilian Federal workforce.
In addition to enforcing the Hatch Act and USERRA, OSC is also
uniquely positioned in the Federal Government to receive whistleblower
disclosures and protect whistleblowers from retaliation. We do this in
two distinct ways.
First, we provide a safe channel for Federal employees to disclose
allegations of waste, fraud, abuse, illegality, and/or threats to
public health and safety. We receive approximately 1,200 whistleblower
disclosures annually. If the disclosure meets the high threshold
required for triggering a government investigation, we then refer it to
the agency involved. After an OSC referral, the agency is required to
investigate and submit a written report to OSC. OSC analyzes the
agency's report, receives comments from the whistleblower, and
transmits our findings and recommendations to the President and
Congress. OSC's work with whistleblowers often identifies trends or
areas of concern that require greater scrutiny and/or systemic
corrective action. Our testimony today will provide additional detail
on OSC's June 23, 2014 letter to the President and Congress, which made
recommendations in response to dozens of whistleblower disclosures from
VA employees across the country.
Second, OSC protects Federal workers from ``prohibited personnel
practices,'' especially retaliation for whistleblowing. OSC receives
approximately 3,000 prohibited personnel practice complaints annually,
a number that has increased 51 percent over the last 5 years. Most of
these complaints allege retaliation for whistleblowing or protected
activity, such as cooperating with an OSC or Inspector General
investigation. In these cases, OSC conducts the investigation and
determines if retaliation or another prohibited personnel practice has
occurred. After an investigation, OSC has the ability to secure relief
on behalf of the employee and to seek disciplinary action against any
employee who has engaged in retaliation. Our testimony today will
provide the Committee with a summary of OSC's efforts to protect VA
employees from retaliation.
Finally, we will discuss a number of encouraging commitments made
recently by the VA, in response to our June 23 letter. If implemented,
these commitments will go a long way toward ensuring that
whistleblowers feel free to step forward, and that their information
will be used to improve the quality of care within the VA system.
II. Whistleblower Disclosures
As stated in our June 23, 2014 letter to the President, which is
attached to this testimony, ``The goal of any effective whistleblower
system is to encourage disclosures, identify and examine problem areas,
and find effective solutions to correct and prevent identified problems
from recurring.'' Unfortunately, too often the VA has failed to use the
information provided by whistleblowers as an early warning system.
Instead, in many cases the VA has ignored or attempted to minimize
problems, allowing serious issues to fester and grow.
Our June 23 letter raised specific concerns about ten cases in
which the VA admitted to serious deficiencies in patient care, yet
implausibly denied any impact on veterans' health. As we stated in that
communication, ``The VA, and particularly the VA's Office of the
Medical Inspector (OMI), has consistently used a `harmless error'
defense, where the Department acknowledges problems but claims patient
care is unaffected.'' This approach hides the severity of systemic and
longstanding problems, and has prevented the VA from taking the steps
necessary to improve quality of care for veterans.
To help illustrate the negative consequences of this approach, we
will highlight three cases that were addressed in the June 23 letter.
1. Ft. Collins, Colorado
In response to a disclosure from a VA employee in Fort Collins, CO,
OSC received an OMI report confirming severe scheduling and wait time
problems at that facility. The report confirmed multiple violations of
VA policies, including the following:
--A shortage of providers caused the facility to frequently cancel
appointments for veterans. After cancellations, providers did
not conduct required follow-up, resulting in situations where
``routine primary care needs were not addressed.''
--The facility ``blind scheduled'' veterans whose appointments were
canceled, meaning veterans were not consulted when rescheduling
the appointment. If a veteran subsequently called to change the
blind-scheduled appointment date, schedulers were instructed to
record the appointment as canceled at the patient's request.
This had the effect of deleting the initial ``desired date''
for the appointment, so records would no longer indicate that
the initial appointment was actually canceled by the facility,
resulting in faulty wait time data.
--At the time of the OMI report, nearly 3,000 veterans were unable to
reschedule canceled appointments, and one nurse practitioner
alone had a total of 975 patients who were unable to reschedule
appointments.
--Staff were instructed to alter wait times to make the waiting
periods look shorter. Schedulers were placed on a ``bad boy''
list if their scheduled appointments were greater than 14 days
from the recorded ``desired dates'' for veterans.
In addition, OSC is currently investigating reprisal allegations by
two schedulers who were reportedly removed from their positions at Fort
Collins and reassigned to Cheyenne, Wyoming, for not complying with the
instructions to ``zero out'' wait times. After these employees were
replaced, the officially recorded wait times for appointments
drastically ``improved,'' even though the wait times were actually much
longer than the officially recorded data. The chart below, which was
provided in the report to OSC, clearly illustrates this phenomenon.
After the new schedulers complied with orders to ``zero out'' wait
times, the officially recorded percentage of veterans who were
``scheduled within 14 days of [their desired date]'' spiked to nearly
100 percent. There is no indication that actual wait times decreased.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Despite the detailed findings in their report, OMI concluded, ``Due
to the lack of specific cases for evaluation, OMI could not
substantiate that the failure to properly train staff resulted in a
danger to public health and safety.'' This conclusion is not only
unsupportable on its own, it is also inconsistent with reports by other
VA components examining similar patient-care issues. For example, the
VA Office of Inspector General recently confirmed that delays in access
to patient care for 1,700 veterans at the Phoenix Medical Center
``negatively impacted the quality of care at the facility.''
It is important to note that OSC first referred these allegations
to the VA in October 2013, providing the VA with an opportunity to
assess and begin to address the systemic scheduling abuses occurring
throughout the VA health system. Yet, as discussed, the OMI report,
which was issued in February 2014, failed to acknowledge the severity
of the identified problems, mischaracterized the concern as a ``failure
to properly train staff,'' and then did not consider how the inability
to reschedule appointments impacted the health and safety of the 3,000
veterans who could not access care. There is no indication that the VA
took any action in response to the deeply troubling facts outlined in
the February 2014 report.
2. Brockton, Massachusetts
In a second case, a VA psychiatrist disclosed serious concerns
about patient neglect in a long- term mental healthcare facility in
Brockton, Massachusetts. The OMI report to OSC substantiated
allegations about severe threats to the health and safety of veterans,
including the following:
--A veteran with a 100 percent service-connected psychiatric
condition was a resident of the facility from 2005 to 2013.
During that time, he had only one psychiatric note written in
his medical chart, in 2012, when he was first examined by the
whistleblower, more than 7 years after he was admitted. The
note addressed treatment recommendations.
--A second veteran was admitted to the facility in 2003, with
significant and chronic mental health issues. Yet, his first
comprehensive psychiatric evaluation did not occur until 2011,
more than 8 years after he was admitted, when he was assessed
by the whistleblower. No medication assessments or
modifications occurred until the 2011 consultation.
Despite these findings, OMI would not acknowledge that the
confirmed neglect of residents at the facility had any impact on
patient care. Given the lack of accountability demonstrated in the
first OMI report, OSC requested a follow-up report. The second report
did not depart from the VA's typical ``harmless error'' approach,
concluding: ``OMI feels that in some areas [the veterans'] care could
have been better but OMI does not feel that their patient's rights were
violated.'' Such statements are a serious disservice to the veterans
who received inadequate patient care for years after being admitted to
VA facilities.
Moreover, in its initial referral letter to the VA, OSC noted that
the whistleblower ``believed these instances of patient neglect are an
indication of large systemic problems present at the Brockton Campus.''
When the whistleblower was interviewed by OMI, the whistleblower stated
his belief that these were not the only instances of neglect, and
recommended that OMI examine all the patients receiving mental
healthcare in the facility. However, when OMI was onsite, they limited
the investigation to the three specific individuals treated by the
whistleblower. OMI did not conduct a broader review. Additionally,
there is no indication that the VA took action in response to the
detailed factual findings in the OMI report, including ordering a
broader review of patient neglect at Brockton or in other long-term
mental healthcare facilities.
3. Montgomery, Alabama
Finally, in Montgomery, Alabama, an OMI report confirmed a
whistleblower's allegations that a pulmonologist copied prior provider
notes to represent current readings for veterans, likely resulting in
inaccurate recordings of patient health information and in violation of
VA rules. Rather than recording current readings, the pulmonologist
copied and pasted the patients' earlier recordings from other
physicians, including the patients' chief complaint, physical
examination findings, vital signs, diagnoses, and plans of care.
Despite confirming this misconduct, OMI stated that it could not
substantiate whether this activity endangered patient health. The
timeline and specific facts indicate a broader lack of accountability
and inappropriate responses by the VAMC leadership in Montgomery.
In late 2012, the whistleblower identified six instances in which a
staff pulmonologist copied and pasted information from prior patient
visits with other physicians. The whistleblower, a surgeon, was first
alerted to the possible misconduct by an anesthesiologist during a
veteran's preoperative evaluation prior to an operation.
The whistleblower reported these concerns to Alabama VAMC
management in October 2012. In response to the whistleblower's report,
VAMC management monitored the pulmonologist's medical record
documentation practices. After confirming evidence of copying and
pasting in medical records, the pulmonologist was placed on a 90-day
``Focused Professional Practice Evaluation'' (FPPE), or a review of the
physician's performance at the VA. Despite additional evidence of
improper copying and pasting of medical records during the 90-day FPPE,
VAMC leadership ended the FPPE, citing satisfactory performance.
Meanwhile, the whistleblower brought his concerns to OSC, citing
mismanagement by VAMC leadership in handling his complaint, and a
threat to veterans' health and safety caused by the copied recordings.
OSC referred the allegations to the VA in April 2013. OMI initiated
an investigation in May 2013. Despite confirming the underlying
misconduct, OMI did not substantiate the whistleblower's allegations of
mismanagement by VAMC leadership or threats to patient care. However,
to its credit, OMI recommended that the Montgomery VAMC review all
consults performed by the pulmonologist in 2011 and 2012, and not just
the six known to the whistleblower.
Far worse than previously believed, the review determined that the
pulmonologist engaged in copying and pasting activity in 1,241 separate
patient records.
Despite confirming this widespread abuse, Montgomery VAMC
leadership did not change its approach with the pulmonologist, who was
again placed on an FPPE. Montgomery VAMC leadership also proposed a
reprimand, the lowest level of available discipline.
OSC requested, and has not yet received, information from the VA to
determine if the 1,241 instances of copying and pasting resulted in any
adverse patient outcomes. Despite the lack of confirmation on this
critical issue, Central Alabama VA Director James Talton publicly
stated that the pulmonologist is still with the VA because there was no
indication that any patient was endangered, adding that the physician's
records are checked periodically to make sure no copying is occurring.
As VA headquarters completes its review of the patient records, we
encourage the VA to also review the specific actions taken by
Montgomery VAMC leadership in response to the confirmed misconduct.
Beyond these specific cases, OSC continues to receive a significant
number of whistleblower disclosures from employees at VA facilities
throughout the country. We currently have over 60 pending cases, all of
which allege threats to patient health or safety. OSC has referred 28
of these cases to the VA for investigation. This represents over a
quarter of all cases referred by OSC for investigation government-wide.
Moving forward, it is critical that VA leadership, including the Office
of the Secretary, review all whistleblower reports and proposed
corrective actions to ensure that outcomes such as those described
above are avoided.
III. Whistleblower Retaliation
1. Overview and scope of the problem
OSC has received scores of complaints from VA employees who say
they have been retaliated against for blowing the whistle on improper
patient scheduling, understaffing of medical facilities, and other
dangers to patient health and safety at VA centers around the country.
Based on the scope and breadth of the complaints OSC has received, it
is clear that the workplace culture in many VA facilities is hostile to
whistleblowers and actively discourages them from coming forward with
what is often critical information.
OSC currently has 67 active investigations into retaliation
complaints from VA employees. These complaints arise in 28 States and
45 separate facilities. Approximately 30 of these 67 cases have passed
the initial review stage in our intake office, the Complaints Examining
Unit, and are currently in our Investigation and Prosecution Unit,
where they are being further investigated for corrective and
disciplinary action. The number of cases increases daily. By way of
example, OSC has received approximately 25 new whistleblower
retaliation cases from VA employees since June 1, 2014.
2. Actions OSC has taken to investigate and address these
cases
In addition to the ongoing investigation of nearly 70 retaliation
cases, OSC has taken a number of steps to address and attempt to
resolve these widespread complaints of whistleblower reprisal.
--OSC has reallocated staff and resources to investigating VA
whistleblower reprisal cases. These cases are the office's
highest priority and more than 30 attorneys and investigators
are currently assigned to these whistleblower retaliation cases
(in addition to all 14 employees in the Disclosure Unit). We
have also implemented a priority intake process for VA cases.
--OSC representatives have met personally with VA officials in recent
weeks, including Acting Secretary Gibson, Chief of Staff Jose
Riojas, White House Deputy Chief of Staff Rob Nabors, attorneys
from the Office of General Counsel, and others.
--OSC representatives recently traveled to Phoenix, Arizona to meet
with FBI and VA Inspector General agents who are investigating
the Phoenix VA cases, and also met with a number of the Phoenix
VA whistleblowers.
--In addition to this testimony, OSC continues to brief the House and
Senate Committees on Veterans Affairs on an ongoing basis, and
provide information to individual Members of Congress who have
concerns about disclosures or retaliation claims in their
States or districts.
3. Examples of relief obtained
We cannot speak today about the details of ongoing reprisal cases,
because doing so would jeopardize the integrity of the investigations
and could improperly reveal the confidential identity of certain
whistleblowers. However, we would like to mention a few cases where OSC
has recently been able to obtain relief for whistleblowers:
An employee in a VA facility in Florida raised concerns about a
number of issues, including poor patient care. The highlights of the
employee's complaint are as follows:
--The employee had worked for the Federal Government for over two
decades, including over 15 years with the VA. Throughout this
lengthy service, the employee received ``outstanding'' and
``excellent'' job performance ratings and had never been
disciplined.
--However, soon after the employee reported the poor patient care and
other issues to the VA OIG in 2013, the VA removed certain of
the employee's job duties and conducted a retaliatory
investigation of the employee.
--Notably, in 2014, the VA also attempted to suspend the employee but
OSC was able to obtain a stay of the suspension pending OSC's
investigation of the matter.
--Due to the retaliatory environment, the employee decided to
transfer to a VA facility in a different state in order to help
protect the employee's job status and retirement benefits.
In a VA facility in New York, an employee complained to a
supervisor about a delay in reporting a possible crime in the VA
facility, as well as another serious patient care issue. The key points
of the employee's complaint are as follows:
--Prior to blowing the whistle on this alleged misconduct, the
employee received high job performance ratings as well as a
bonus.
--However, soon after reporting the misconduct to a supervisor, this
same supervisor informed the employee that an investigation
into the employee's job performance would be conducted, which
could result in the employee's termination. The basis for the
investigation and possible termination was that the employee
was ``not a good fit for the unit.''
--The investigation was set to convene in late June 2014, but OSC was
recently able to obtain a stay pending OSC's investigation of
the matter.
A VA employee in Hawaii blew the whistle after seeing an elderly
patient improperly restrained in a wheelchair, which violated rules
prohibiting the use of physical restraints without a doctor's order.
--Almost immediately after this disclosure, the employee was
suspended for 2 weeks and received a letter of counseling.
--OSC investigated the matter and determined the VA had retaliated
against the employee. As a result, OSC obtained corrective
action for the employee, including a rescission of the
suspension, full back pay, and an additional monetary award. At
OSC's request, the VA also agreed to suspend the subject
official who was responsible for the retaliation.
The severity of these cases underscores the need for substantial,
sustained cooperation between the VA and OSC as we work to protect
whistleblowers and encourage others to report their concerns.
IV. A New and Better Approach from the VA
While this has been a difficult period for the VA, it is important
to note several encouraging signs from VA leadership suggesting a new
willingness to listen to whistleblower concerns, act on them
appropriately, and ensure that employees are protected for speaking
out.
--In a June 13, 2014 statement to all VA employees, Acting Secretary
Gibson specifically noted, ``Relatively simple issues that
front-line staff may be aware of can grow into significantly
larger problems if left unresolved.'' We applaud Acting
Secretary Gibson for recognizing the importance of
whistleblower disclosures to improving the effectiveness and
quality of healthcare for our veterans and for his commitment
to identifying problems early in order to find comprehensive
solutions.
--In response to OSC's June 23, 2014 letter to the President and
Congress, Acting Secretary Gibson directed a comprehensive
review of all aspects of the Office of Medical Inspector's
operation. And, in response to OSC's recommendation, he stated
his intent to designate an official to assess the conclusions
and the proposed corrective actions in OSC reports. We look
forward to learning about the results of the OMI review and
believe the designated official will help to avoid the same
problematic outcomes from prior OSC whistleblower cases.
--In their June 27, 2014 report to the President, Deputy White House
Chief of Staff Rob Nabors and Acting VA Secretary Gibson
confirmed that a review of VA responses to OSC whistleblower
cases is underway, recommended periodic meetings between the
Special Counsel and the VA Secretary, and recommended
completion of OSC's whistleblower certification program as a
necessary step to stop whistleblower retaliation. We look
forward to working with the VA on the certification and
training process.
--At a July 2014 meeting at OSC, Acting Secretary Gibson committed to
resolving meritorious whistleblower retaliation cases with OSC
on an expedited basis. We are hopeful this will avoid the need
for lengthy investigations and help whistleblowers who have
suffered retaliation get back on their feet quickly. In the
very near future, we look forward to working out the details of
this expedited review process and providing these
whistleblowers with the relief and protection they deserve.
Doing so will show employees that the VA's stated intolerance
for retaliation is backed up by concrete actions. We will keep
this Committee fully-informed on significant developments in
this area.
V. Conclusion
In conclusion, we want to applaud the courageous VA employees who
are speaking out. These problems would not have come to light without
the information provided by whistleblowers. Identifying problems is the
first step toward fixing them. We look forward to working closely with
whistleblowers, the Committee, and VA leadership in the coming months
to find solutions.
We would be pleased to answer any questions that the Committee may
have.
______
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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
______
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,
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
LINDA A. HALLIDAY
Deputy Inspector General
Submitted by Danielle Brian, Executive Director, Project on Government
Oversight
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
_______________________________________________________________________
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,
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Danielle Brian
Executive Director