[Senate Hearing 114-609]
[From the U.S. Government Publishing Office]
MILITARY CONSTRUCTION, VETERANS AFFAIRS, AND RELATED AGENCIES
APPROPRIATIONS FOR FISCAL YEAR 2016
----------
FRIDAY, NOVEMBER 6, 2015
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 1:08 p.m., in Everett McKinley
Dirksen Federal Courthouse, court room 1903, 219 South Dearborn
Street, Chicago, Illinois, Hon. Mark Kirk (chairman) of the
subcommittee, presiding.
Present: Senator Kirk.
A REVIEW OF WHISTLEBLOWER CLAIMS AT THE DEPARTMENT OF VETERANS AFFAIRS
OPENING STATEMENT OF SENATOR MARK KIRK
Senator Kirk. We will bring this hearing to order.
We would not have a country without our veterans. The best
way to care for our men and women in uniform is to provide for
their healthcare after they have finished Active Duty.
I was so disappointed to hear that veterans had been
mistreated in Department of Veterans Affairs (VA) hospitals by
those charged with providing their care. Dedicated nurses and
doctors reporting poor treatment of our vets should be heard
and not silenced. Instead, these brave Americans are being
victimized for reporting on the culture of corruption that
currently exists in the VA.
As chairman of this subcommittee, I want to do all I can to
help the professionals who are serving our veterans. We must
protect the protectors of our veterans.
I will soon be introducing a VA Patient Protection Act in
the Senate, to make sure that abuse and wrongdoing is reported
immediately and fixed right away, with the truth-tellers coming
forward without fear.
This week, I won a great victory in the Senate for
veterans' healthcare when the Senate agreed to move forward on
the VA appropriations bill that I wrote with funding for our
veterans. In that 93-0 vote, we won the support of every single
voting Democrat in the Senate. This was a true bipartisan
victory for my bill, which has the highest level ever for
funding for our veterans and makes sure that it provides more
than $1 billion more than the President even requested for his
budget.
I ask that we go quickly to the President's desk and that
he sign it as quickly as possible.
I do want to thank my ranking minority member, Senator
Tester of Montana, for working so well with me in a bipartisan
manner.
In Illinois, we have several veterans' facilities, like in
Marion, Danville, Jesse Brown, and North Chicago. I would argue
that Lovell VA is the best in the State because it is half Navy
and that my fellow sailors who staff that facility would never
mistreat their fellow veterans like some VA bureaucrats have
treated our veterans.
I have the most concerns now with the Hines VA, where we
know that people are hurting veterans. We will hear stories
today from a cardiologist who was stripped of her career for
coming forward with stories about how veterans have been
mistreated.
I would like to now recognize Dr. Lisa Nee to describe the
culture of corruption at the Hines VA.
Dr. Nee, you are recognized.
STATEMENT OF DR. LISA NEE, M.D., FORMER CARDIOLOGIST AT
EDWARD HINES, JR. VA HOSPITAL, CHICAGO,
ILLINOIS, DEPARTMENT OF VETERANS AFFAIRS
Dr. Nee. Thank you. Chairman Kirk, thank you for the
opportunity to testify today regarding the ongoing issues of
retaliation against truth-tellers within the Veterans Affairs
system. I wish to extend my gratitude to you and your staff for
the continued attention to the alarming matter of increasing
whistleblower retaliation.
Although there is significant rhetoric from various
branches of Government that this type of behavior is
detrimental to the care of the veteran, there seems to be no
end in sight for those who continue to face retribution for
taking the courageous step of coming forward.
A September 2015 report from the Committee on Homeland
Security and Governmental Affairs stated the Office of Special
Counsel has received 35 percent of its entire retaliation
caseload from VA employees. Despite its efforts to prioritize
investigations, special counsel Carolyn Lerner testified before
Congress in August of this year that the volume of incoming VA
complaints remains overwhelming.
This clearly demonstrates the severe dysfunctional culture
within the VA that encourages retaliation against the very
individual who has exposed harm to the veteran in an attempt to
improve the healthcare delivery process.
There are many journeys we all participate in during the
course of our lifetime. Some are arduous. Many are attainable.
But none has been more agonizing and unfulfilling than the
current process of obtaining justice for the men and women who
have fought for our freedom.
I realize that not every complex situation in life presents
itself with moral clarity. However, this is not one of them.
Caring for our veterans should be elementary. There should
never be a single instance where a physician must choose
between self-preservation and the life of a patient, or suffer
an assault to their character in order to obtain accountability
for criminal and inhumane acts against patients and fraudulent
behavior toward the taxpayer.
The amount of bureaucratic gymnastics coupled with agency
corruption can render the strongest individual forlorn and
exhausted. Knowing when to lose with grace is an honorable
skill and one that requires precise timing. This is not that
time.
Armed with veracity for equity, an insatiable appetite for
the truth, and a colossal amount of evidence, I am prepared to
continue this battle until there is responsibility from
leadership and transformative action, which will hold those at
fault accountable.
My personal journey began over 4.5 years ago with exposure
to the corruption at the Hines VA Medical Center regarding
patients who died of cardiac complications while awaiting their
cardiac ultrasound to be read. Unfortunately, for them, the
tests were hidden in bankers boxes left unread for a year.
The mere questioning of such an egregious act resulted in
significant retaliation, which went unabated the entire 2 years
I was employed at Hines. But hell hath no fury like a VA
administration scorned, and retaliation continued, even after I
left VA, by the Office of Inspector General (OIG) and its
pervasive culture of disparaging the truth-teller.
Multiple allegations regarding deficiencies in
cardiovascular care were made, including but not limited to
patients having their chest sawed open for unnecessary
procedures, disparity in care based on ethnicity, procedural
diagnostic errors resulting in arm, and pervasive billing
fraud.
These allegations have resulted in an initial deficient OIG
investigation, a subsequent Office of Special Counsel (OSC)
investigation, a second contemptible OIG investigation,
insistence from the OSC for an authentic and thorough
investigation, and culminating with an ongoing Office of
Medical Inspector's (OMI's) investigation.
It is a mind-numbing process to not only keep track of the
endless agency acronyms but also calculating the amount of
wasted taxpayer dollars consumed by these ineffectual
inquiries. They are not true investigations, for they lack
experienced subject matter experts and have a predetermined
conclusion, which maintains the status quo.
The path this case has taken over the last 4 years has been
objectively obfuscated and its bureaucratic oscillations can
only be the result of stunning deficiencies at all levels of
Veterans Health Administration (VHA) leadership. The task has
become the exercise within itself. To engage in multiple
investigations by varying internal agencies, which have
substantiated patient harm as well as criminal activity, and to
never mention one single word regarding accountability, one can
only conclude this maladjusted behavior is designed to serve
the agency itself and not the veterans.
It is the VHA leadership attempting to gain credit for
oversight that the agency has failed to provide. Duplicitous--
no other word can describe it.
The OMI report from July 2015 substantiated some of my
allegations regarding deficiencies in cardiovascular care;
deficiencies in echocardiogram processing; failure to disclose
deficiencies in care and harm to patients; inflated
productivity measures by cardiologists; and evidence that
veterans were inappropriately charged copayments for care they
never received, otherwise known as billing fraud.
In regard to this billing fraud, the report states, ``We
found that these actions possibly violate 18 U.S. Code 208,
acts affecting a personal financial interest.'' The OMI
referred this criminal matter to the OIG, who has declined to
open an investigation.
Interestingly, the bulk of the report is dedicated to the
fraudulent billing practices, including in-depth statistical
analysis, diagrammatic explanations, and extensive billing
pattern documentation right. This provides a glaring contrast
to the lack of investigative fervor and expertise when dealing
with patient morbidity and mortality.
However, all this effort is for naught as the end result
once again allows the documented criminal activity to go
unpunished.
For the agency to demand an OMI investigation yet deny the
credibility of criminal findings is administrative misconduct.
The OIG must adhere to the quality standards for investigations
issued by the Counsel of Inspector General on Integrity and
Ethics, and the Attorney General guidelines for OIG with
statutory law enforcement authority.
You do not get to be above the law just because you work
for the VA. Or do you?
An equally compelling question is, if the OMI substantiated
findings and then those are ignored, why do we need any of
these investigative arms within the VA? They are redundant and
wasteful and should be restructured.
To sum up the totality of all the reports to date is to
call them a mismatch between words and deeds, a failed promise
to treat and protect the veterans while instead protecting
hundreds of useless report generators who will then retire with
benefits. The investigators have gone so far out of their way
to protect the VHA leadership that it has rendered every
investigator impotent and every investigative finding
ineffectual.
They are highly skilled at one part of their job:
generating a paper trail designed to justify their professional
existence. But they have failed at their original mission
statement and severely compromised the health of the men and
women who have fought for our freedom.
In order for any type of transformative action to begin to
take shape and halt systemic corruption, there must be
protection for truth-tellers, accountability for those who fail
at their duties, and transparency to eliminate both operational
deficiencies but also properly analyze collected data.
These are far from novel concepts and are most certainly
codified in policy and procedure.
Chairman Kirk's VA Patient Protection Act will demand
accountability for those who retaliate against truth-tellers
and empower those who can begin to make a positive impact on
the outcomes of patient care. Preventing retaliation in the
current defective culture of the VA requires deterrence, which
should be timely, formidable, and indelible.
This bill would properly punish VA supervisors who have
been found to take retaliatory actions against whistleblowers.
There can be no saving of an agency as large as the VA if the
employees operate from a constant position of fear rather than
conviction and collaboration.
An additional step toward agency accountability which
should be addressed by Congress is extending legislative
authority to the OSC in two arenas: one, allow the agency to
embark on a criminal investigation or partner with the
Department of Justice, if the preponderance of evidence
suggests illegal activity; and two, grant the OSC the necessary
authority to determine the corrective action and punishment
once the allegations are substantiated.
They currently have independent authority to determine if
conduct constitutes a violation of law, rule, gross
mismanagement, and a substantial and specific danger to public
health. If they can determine the crime, they should be allowed
to determine the punishment.
Many people have asked me why I continue to fight for the
veterans even though I have left the VA. ``What can you do?''
they ask. I want the American public to contemplate that
question for a moment and then consider an alternative
perspective and perceive it as, ``What should I do?'' With
that, the only acceptable response would be to strive for
social justice and search for the truth, which brings us to the
truth--a glorious, unadulterated supreme reality holding the
ultimate meaning of values of existence corroborated by
evidence. It does not change over time, and it never has to
rely on anyone else's interpretation.
As a Nation, we can achieve this goal for the genuine
protectors of truth, our veterans. Thank you.
[The statement follows:]
Prepared Statement of Dr. Lisa M. Nee
Chairman Kirk, thank you for the opportunity to testify today
regarding the ongoing issues of retaliation against truth tellers
within the Veterans Affairs (VA) system. I wish to extend my gratitude
to you and your staff for the continued attention to the alarming
matter of increasing whistleblower retaliation. Although there is
significant rhetoric from various branches of government that this type
of behavior is detrimental to the care of the veteran, there seems to
be no end in sight for those who continue to face retribution for
taking the courageous step of coming forward. A September 2015 report
from the Committee on Homeland Security and Governmental Affairs stated
the Office of Special Counsel (OSC) has received 35 percent of its
entire retaliation caseload from VA employees. Despite its efforts to
prioritize investigations, Special Counsel Carolyn Lerner testified
before Congress in August of this year that the volume of incoming VA
complaints remains overwhelming. This clearly demonstrates the severe,
dysfunctional culture within the VA that encourages retaliation against
the very individuals who expose harm to the veteran and attempt to
improve the healthcare delivery process.
There are many journeys we all participate in during the course of
our lifetime. Some are arduous, many are attainable, but none has been
more agonizing and unfulfilling than the current process of obtaining
justice for the men and women who have fought for our freedom. I
realize that not every complex situation in life presents itself with
moral clarity, however this is not one of them. There should never be a
single instance where a physician must choose between self-preservation
and the life of a patient. Or suffer an assault to their character in
order to obtain accountability for criminal and inhumane acts against
patients and fraudulent behavior towards the taxpayer. The amount of
bureaucratic gymnastics coupled with agency corruption can render the
strongest individual forlorn and exhausted. Knowing when to lose with
grace in an honorable skill and one that requires precise timing--this
is not that time. Armed with voracity for equity, an insatiable
appetite for the truth and a colossal amount of evidence, I am prepared
to continue this battle until there is responsibility from leadership
and transformative action which will hold those at fault accountable.
My personal journey began over 4\1/2\ years ago with exposure to
the corruption at Hines regarding patients who died of cardiac
complications while awaiting their cardiac ultrasound to be read.
Unfortunately for them the tests were hidden in bankers boxes and left
unread for a year. The mere questioning of such an egregious act
resulted in significant retaliation, which went unabated the entire 2
years I was employed at Hines VA Medical Center. But hell hath no fury
like a VA Administration scorned, and the retaliation continued even
after I resigned, with the Office of Inspector General (OIG) and its
pervasive culture of disparaging the truth teller. Multiple allegations
regarding deficiencies in cardiovascular care were made including, but
not limited to: patients having their chest sawed open for unnecessary
procedures, disparities in care based on ethnicity, procedural
diagnostic errors and billing fraud. These allegations have resulted in
an initial deficient OIG investigation, a subsequent OSC investigation,
a second contemptible OIG investigation, insistence from the OSC for an
authentic and thorough investigation, and culminating with an ongoing
Office of Medical Inspector's (OMI) investigation. It is a mind-numbing
process to not only keep track of the endless acronyms but also
calculating the amount of taxpayer dollars this course of action has
taken.
The path this case has taken over the last 4 years has been
objectively obfuscated, and its bureaucratic oscillations can only be
the result of stunning deficiencies at all levels of the Veterans
Health Administration (VHA) leadership. The task has become the
exercise within itself. To engage in multiple investigations by varying
internal agencies which have substantiated patient harm as well as
criminal activity, and to never mention one, single word regarding
accountability, one can only conclude this dysfunctional behavior is
designed to serve the agency itself, and not the veterans. It is the
VHA leadership attempting to gain credit for oversight that the agency
has failed to provide. Duplicitous. No other word describes it.
The OMI report from July 2015 substantiated my allegations
regarding deficiencies in cardiovascular care, deficiencies in
echocardiogram processing, failure to disclose deficiencies in care and
harm to patients, inflated productivity measures by cardiologists, and
evidence that veterans were inappropriately charged copayments for care
they did not receive, otherwise known as billing fraud. In regards to
the billing fraud, the report states, ``We found that these actions
possibly violate 18 U.S. Code 208--Acts affecting a personal financial
interest''. The OMI referred this criminal matter to the OIG who has
declined to open a criminal investigation.
Interestingly the bulk of the report is dedicated to the fraudulent
billing practices, including in depth statistical analysis,
diagrammatic explanations and extensive billing pattern documentation.
This provides a glaring contrast to the lack of investigative fervor
and expertise when dealing with patient morbidity and mortality.
However all this effort is for naught as the end result once again
allows the documented criminal activity to go unpunished. For the
agency to demand an OMI investigation yet deny the credibility of
criminal findings is administrative misconduct. The OIG must adhere to
the Quality Standards for Investigations issued by the Council of
Inspectors General on Integrity and Efficiency (CIGIE) and the Attorney
General Guidelines for OIG with Statutory Law Enforcement Authority.
You don't get to be above the law just because you work for the VHA. Or
do you? An equally compelling question is, if the OMI substantiated
findings are ignored, why do we need any of these investigative arms
within the VA?
To sum up the totality of all the reports to date is to call them a
mismatch between words and deeds. A failed promise to treat and protect
the veterans, while instead protecting hundreds of useless report
generators who will then retire with benefits. The investigators have
gone so far out of their way to protect the VHA leadership that it has
rendered every investigator impotent and every investigative finding
ineffectual. They are highly skilled at one part of their job,
generating a paper trail designed to justify their professional
existence. But they have failed at their original mission statement and
severely compromised the healthcare of the men and women who have
fought for our freedom.
In order for any type of transformative action to begin to take
shape and halt systemic corruption, there must be protection for truth
tellers, accountability for those who fail at their duties and
transparency to illuminate both operational deficiencies but also
properly analyze collected data. These are far from novel concepts and
are most certainly codified in policy and procedure. Chairman Kirk's VA
Patient Protection Act will demand accountability for those who
retaliate against truth tellers and empower those who can begin to make
a positive impact on the outcomes of patient care. Preventing
retaliation in the current dysfunctional culture of the VA requires
deterrents, which should be timely, formidable and indelible. This bill
would properly punish VA supervisors who have been found to take
retaliatory actions against whistleblowers. There can be no saving of
an agency as large as the VHA if the employees operate from a constant
position of fear, rather than transparency and collaboration.
An additional step towards agency accountability that can be
addressed by Congress is extending legislative authority to the OSC in
two arenas:
--Allow the agency to embark on a criminal investigation or partner
with the Department of Justice if the preponderance of evidence
suggests illegal activity and
--Grant the OSC the necessary authority to determine the corrective
action and punishment once the allegations are substantiated.
They have independent authority to determine if conduct constitutes
a violation of law, rule, gross mismanagement and a substantial and
specific danger to public health. If they can determine the crime, they
should be allowed to determine the punishment.
Many people have asked me why I continue to fight for the veterans
even though I have left the VA. ``What can you do?'' I want the
American public to contemplate that question for a moment and then
consider an alternative perspective, and perceive it as ``What should I
do?''--the only acceptable response would be to strive for the truth.
Which brings us to the truth. A glorious, unadulterated supreme
reality, holding the ultimate meaning and value of existence,
corroborated by evidence. It does not change over time, as it never has
to rely on anybody else's interpretation.
UNREAD ECHOCARDIOGRAMS
Senator Kirk. Thank you, Dr. Nee.
So to summarize, the thing that you found when you went to
work for Hines, as a cardiologist, you found boxes and boxes of
echocardiograms. For someone having an echocardiogram, that
means they have some signs of heart disease.
And if I can summarize, when you looked through these boxes
and boxes of echocardiograms, you had found some of the
veterans had passed already?
Dr. Nee. That is true. Looking up their names to initiate a
report, the system tells you if someone has expired or not.
Senator Kirk. And when you said that, hey, we should follow
up with these patients because they have heart disease, what
did the VA at Hines say?
Dr. Nee. Hines wanted me to be readily aware that they
already knew that the boxes were there and that it was my job
to be quiet and continue to read.
That is nothing even remotely close to what you would
experience in the private sector. A risk management team would
have been involved. There would have been accountability.
Patients would have been notified. Patients would have been
offered additional testing in an urgent manner.
Senator Kirk. In a normal civilian hospital, if the
hospital did not read the echocardiogram and the patient died,
would that be grounds for a malpractice lawsuit?
Dr. Nee. Absolutely. Absolutely.
Senator Kirk. So many of these veterans had no idea that
they had severe medical heart issues because the VA never even
bothered to read the echocardiogram?
Dr. Nee. That is correct. And you are taking advantage of a
population in two manners. You are taking advantage because
they have no choice for their healthcare, so they are
presenting to you and expecting you to react in a responsible
manner. And now they are not even being notified that there may
be something wrong or harm may come to them because of this
delay.
Senator Kirk. Could you estimate for the subcommittee how
many patients' echocardiograms were in those boxes that were
never read?
Dr. Nee. There were hundreds, so my best estimation would
be----
Senator Kirk. So they were doing echocardiograms and not
even looking at them?
Dr. Nee. Correct.
It was just another box to check. The test was ordered. We
will do it. Put it in the box. Do not worry about it.
RETALIATION TO WHISTLEBLOWERS
Senator Kirk. You were also confirmed by the Office of
Medical Inspector, who said this was an improper thing. What
was the follow-up when the Office of Medical Inspector said
that you were right in calling out this problem?
Dr. Nee. Well, the problem with all these agencies is even
if you can get the allegation substantiated, the report then
goes back to the agency itself. So Hines VA received the report
from the OMI before I ever knew about it. And unfortunately,
the people who came forward to testify to the OMI were
retaliated against.
So not only are you not holding people accountable, you are
placing a chilling effect on the entire institution that people
should never come forward because nothing will change and they
will be harmed along with the patient.
Senator Kirk. Before when you testified before my
subcommittee, you described this retaliation mechanism that
they have against physicians where they would try to pull your
Statewide credentials, so you would not be able to practice as
a cardiologist.
Dr. Nee. Well, I think what they do to you is, your first 2
years as a physician, you are probationary. So even if you
recognize problems and/or the retaliation is so bad you want to
leave, if you leave before that 2 years, they will alter your
H.R. record, and it will be listed that you were fired, which
pretty much puts an end to your career. So you have to stay the
2 years, regardless of what is going on, to make sure that your
record is clean.
Senator Kirk. So if you report a problem like you reported,
they will put in your H.R. record that you were fired?
Dr. Nee. Correct.
Senator Kirk. And you will lose accreditation to practice
medicine in another hospital?
Dr. Nee. It would look very suspicious to anyone else
hiring, why you were fired from the Veterans Administration.
Senator Kirk. Let us go to our next witness, Germaine
Clarno. Let me call Germaine Clarno to the table.
Germaine is the president of Local 781 of the American
Federation of Government Employees, the union that represents
the workers at Hines.
Germaine, if you could continue your statement.
STATEMENT OF GERMAINE CLARNO, LCSW, PRESIDENT, AFGE
LOCAL 781, EDWARD HINES, JR. VA HOSPITAL,
CHICAGO, ILLINOIS, DEPARTMENT OF VETERANS
AFFAIRS
Ms. Clarno. Thank you. Senator Kirk, I want to thank you
for the opportunity to provide my testimony to discuss the
culture of continued fear and retaliation at the Edward Hines
Jr. Hospital.
I also want to personally thank you for your support. If it
wasn't for your involvement, I don't know if I would have the
strength to withstand the constant retaliation I continue to
experience.
You have also shown me that it is possible for a Republican
and a Democrat, who is also a union leader, that we can work
together. So thank you.
I am a social worker and local president of the American
Federation of Government Employees (AFGE), and a very proud
whistleblower and truth-teller. I have worked at Edward Hines
Jr. Hospital in Illinois for 6 years, 2 years after receiving a
master's in social work.
Social work is a second career, and it was important to me
that I work with veterans, so I was elated with the opportunity
to work at the VA. It has been an honor and a privilege to
serve our Nation's veterans in the capacity of a mental health
provider.
I worked alongside amazing, dedicated employees that shared
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 a 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 care 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 dedication to our
veterans convinced 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 chief steward of Local 781 at Hines. With
determination and the union contract, I optimistically marched
onward with an honored mission to change the culture at Hines.
The master agreement, our union contract, states in our
preamble 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.
This agreement is not honored by the leadership at Hines.
They spend more time finding loopholes of the contract and
ways not to comply with this simple agreement, which is also an
element of Secretary McDonald's Blueprint for Excellence. He
states, ``The VA will become an organization where employees
are comfortable raising issues and concerns. Only then can we
truly thrive and innovate.'' This plan for change was published
a year ago, and employees are still afraid more than ever.
During my time as a union representative, I have seen
firsthand the obstacles for employees to perform at the highest
level due to an environment that is not conducive to enhancing
employee morale or efficiency.
In the fall of 2012, after exhausting all avenues with our
chain of command, Dr. Lisa Nee came to me, as other employees
have, with overwhelming evidence of wrongdoing by leadership at
Hines.
The severe retaliation that Dr. Nee experienced as a result
of her disclosure is not unique. Retaliation at Hines is a
systematic campaign of interpersonal destruction that
jeopardizes employees' health, careers, and the jobs they once
loved.
These forms of retaliation are a nonphysical form of
violence. But because it is violence and it is abusive,
emotional harm often is the result.
It has been over a year since I disclosed wrongdoing at
Hines in regard to the wait list, scheduling manipulation, and
excessive wait time for veterans requesting individual therapy
for post-traumatic stress disorder (PTSD) on the CBS Evening
News. The very next day after my disclosure, the Hines
leadership had a meeting without my knowledge in the chapel of
the hospital with approximately 300 of my coworkers from Mental
Health.
That day, 300 employees were taken away from their work
areas and were not serving veterans. The purpose of this
meeting was to discredit my claims and turn my coworkers
against me.
The same day, I received emails and voicemails from my
supervisor ordering me to contact and report to the Criminal
Division of the OIG on Hines' campus.
What was more outrageous is the leadership's attempt to
discredit a veteran who was also in this news story by sharing
information from his medical chart, blaming him for the delays
by saying that he canceled appointments and was a no-show.
Veterans are not immune to the retaliation at Hines.
I wish I could report that things have improved at Hines
but the sad truth is, it has not. Just the past couple weeks,
employees have been severely retaliated against.
One of these employees is Jasmine Ramakrishna. Jasmine has
given me permission to tell her story today. Jasmine is a
dental hygienist at Hines. Like most of our frontline
employees, she is dedicated to serving veterans. She has
reported wrongdoing on issues in the dental clinic to include
unnecessary procedures for the purpose of increasing
productivity, and issues with assessments and coding
procedures.
As a result of her raising concerns, she is currently being
retaliated against. Jasmine has always been rated outstanding
on her performance appraisal, but when she received her
performance appraisal a few weeks ago, her rating was lowered.
Jasmine and I met with her supervisor to discuss her
rating, and he responded that she violated the VA Code of
Conduct. Jasmine has never been counseled or informed of any
wrongdoing. But in this meeting, he referenced a folder that
contained information that he said he has on her and is
refusing to share with the employee.
As you can imagine, this is devastating for this employee.
This is an example of a supervisor using his power to make
false allegations and violate the law to harass and intimidate
an employee.
The union has filed grievances, and he is refusing to
respond. As a result, the union has filed two separate unfair
labor practices with the Federal Labor Relations Authority
against the agency.
The same supervisor, the chief of the dental clinic, is
also harassing another employee, a dentist. The supervisor is
asking coworkers to do surveillance on him. After a meeting I
had with the supervisor to notify him that asking coworkers to
surveillance other employees is not appropriate and it is
illegal, he called the police on me and made false reports that
I was aggressive and threatening him.
This event took place just this past Monday. Ironically,
Senator Kirk, one of your staff members was in my office when
the police came and witnessed the harassment.
That same day, I notified Hines leadership of this
disgraceful conduct, and I have not received a reply.
Another form of retaliation is to ignore the complaint or
justify the supervisor's behavior.
My concern is for our veterans. Employees are being
intimidated and retaliated against for speaking up for quality
care. The Nation's veterans pay that price. In order to retain
the best and brightest healthcare providers to serve the needs
of our Nation's heroes, we must rid our workplace of the toxic
retaliatory practices engaged by this management. Thank you.
[The statement follows:]
Prepared Statement of Germaine M. Clarno
Senator Kirk, thank you for the opportunity to provide my testimony
to discuss the culture of continued fear and retaliation at Edward
Hines, Jr Hospital.
I also want to personally thank you for your support. If it wasn't
for your involvement I don't know if I would have had the strength to
withstand the constant retaliation I continue to experience. You have
also shown me that it is possible for a republican and democrat, who is
also a union leader that we can work together.
I am a social worker and local president of the American Federation
of Government Employees (AFGE). I have worked at Edward Hines, Jr.
Hospital in Illinois for 6 years, 2 years after receiving a masters in
social work. Social work is a second career, it was important to me
that I work with veterans so I was elated with the opportunity to work
at the VA. 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
dedication to our veterans convinced 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 an honored mission to
change the culture at Hines.
The Master Agreement (our union contract) states in our preamble
``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''.
This agreement is not honored by the leadership at Hines. They
spend more time finding loop holes of the contract and ways not to
comply with this simple agreement, which is also an element of
Secretary McDonald's ``Blue Print for Excellence.'' He states ``VA will
become an organization where employees are comfortable raising issues
and concerns. Only then, can we truly thrive and innovate''. This plan
for change was published a year ago and employees are still afraid,
more than ever.
During my time as a union representative I have seen firsthand the
obstacles for employees to perform at the highest level due to an
environment that is not conducive to enhancing employee morale and
efficiency. In the fall of 2012, after exhausting all avenues with in
her chain of command, Dr. Lisa Nee came to me, as other employees have
with overwhelming evidence of wrongdoing by the leadership at Hines.
The severe retaliation that Dr. Nee's experienced as the result of
her disclosure is not unique. Retaliation at Hines is a systematic
campaign of interpersonal destruction that jeopardizes employee's
health, careers, and the jobs they once loved. These forms of
retaliation is a non-physical form of violence, but because it is
violence and abusive, emotional harm often is the result.
It's been over a year since I first disclosed wrong doing at Hines
in regards to waitlist, scheduling manipulation and excessive wait time
for veterans requesting individual therapy for PTSD on CBS evening
news. The very next day of my disclosure the Hines leadership had a
meeting without my knowledge, in the chapel, with approximately 300 of
my coworkers from mental health. That day 300 employees were taken away
from their work areas and were not serving veterans. The purpose of the
meeting was to discredit my claims and turn my co-workers against me.
That same day I received emails and voicemails from my supervisor
ordering me to report to the criminal division of the OIG on Hines
Campus.
What was more outrageous is that leadership attempted to discredit
a veteran that also was in this news story by sharing information from
his medical chart. Blaming him for the delays by saying that he
cancelled appointments or was a no show. Veterans aren't immune to
retaliation at Hines.
I wish I could report that things have improved at Hines but the
sad truth is it has not. Just in the past couple of weeks employees
have been severely retaliated against. One of these employees is
Jasmine Ramakrishna. Jasmine gave me permission to tell her story
today. Jasmine is a Dental Hygienist at Hines, like most of our front
line employees she is dedicated to serving veterans. She has reported
wrongdoing on issues in the dental clinic to include unnecessary
procedures (for the purpose of increasing productivity) and issues with
assessments and coding procedures. As a result of her raising concerns,
she is currently being retaliated against. Jasmine has always been
rated outstanding on her performance appraisals but when she received
her performance appraisal a few weeks ago her rating was lowered.
Jasmine and I met with her supervisor to discuss her rating and he
responded that she has violated the VA Code of Conduct. Jasmine has
never been counseled or informed of any wrongdoing but in this meeting
he referenced a folder that contained information that he ``has on
her'' and is refusing to share with the employee. As you can imagine
this is devastating for this employee. This is example of a supervisor
using his power to make false allegations and violate the law to harass
and intimidate an employee. The union has filed grievances and he is
refusing to respond. As a result, the union has filed two separate
Unfair Labor Practices with the Federal Labor Relations Authority
against the agency.
This same supervisor, the Chief of the Dental clinic is also
harassing another employee, a dentist. This supervisor is asking co-
workers to surveillance him. After a meeting I had with this supervisor
to notify him that asking co-workers to surveillance other employees is
not appropriate and is illegal, he called the police and made a false a
report that I was aggressive and threatening him. This event took place
just this past Monday. Ironically, one of Senator Kirk's staff members
was in my office when the police arrived and witnessed the harassment.
That same day I notified Hines leadership of this disgraceful conduct
and I have not received a reply. Another form of retaliation is to
ignore the complaint or justify the supervisor's behavior.
My concern is for our veterans. When employees are being
intimidated and retaliated against for speaking up for quality care,
the Nation's veterans pay the price. In order to retain the best and
brightest healthcare providers, to service the needs of our Nation's
heroes, we must rid our workplace of the toxic, retaliatory practices
engaged in by management.
PROTECTING THE PROTECTORS
Senator Kirk. Germaine, let me just follow up. That is
pretty brazen. Senate staff is in with you, and they are
sending in the police to harass you. That is a pretty brazen
feeling that nobody can touch them.
Ms. Clarno. Right.
Senator Kirk. In your case, as president of the union, let
me ask you how many union members do you have at 781?
Ms. Clarno. We represent approximately 1,000 bargaining
unit members. I represent the professionals at the hospital.
Senator Kirk. So you have 1,000 people taking care of our
veterans at Hines.
Ms. Clarno. Yes.
Senator Kirk. In your job of protecting the protectors, I
would think you are particularly vulnerable to retaliation.
Given the fact that this is a Democratic administration that is
very pro-union, do you feel any benefit by being a union
leader, that you are simply carrying out your duties that you
were elected to do to care for union members?
Ms. Clarno. I do, and it is because of the union I belong
to. That is the reason that I took on these roles, because I
thought I could proceed, bring up issues of fraud, waste, and
abuse and illegal actions, and be able to----
HINES VAMC WAIT LIST
Senator Kirk. Germaine, let me get into our work together.
I have been able to get you to meet with the Secretary of
Veterans Affairs Robert McDonald. Since you have met with
Robert McDonald and the White House Deputy Chief of Staff
Robert Nabors, has the wait list problem improved at Hines at
all?
Ms. Clarno. Well, the VA is very good at, when they get
caught doing one thing, they create another way to manipulate.
So they are not doing the same tactics, because they got
busted. But now what they are doing is they are overbooking and
double-booking.
I just talked to a scheduler yesterday who came to me and
said she has veterans coming into the clinic, four veterans
scheduled for one appointment, say 9 o'clock in the morning,
three veterans for 10, 11. So what happens is, the experience
of the veteran is that they wait all day to see a provider.
So that is now the gaming system that they are doing. So
now they can say we are meeting the benchmark of 30 days, and
we are getting the veteran an appointment. But the appointment
is to come and spend the day at Hines. If they do not get seen,
and most of them do not, they are sent home and then it is on
them. They canceled the appointment.
Dr. Nee. And those no-shows are counted against them.
Senator Kirk. Even though the veteran is there in the
hospital, it is listed as an appointment canceled by a patient.
Ms. Clarno. Right.
PERFORMANCE AWARDS
Senator Kirk. You have gone through extensively the bonus
program, which I have looked into, in which the Hines VA paid
over $16 million in bonuses to employees there. And you have
told me that to get these bonuses, they have been falsifying
work, claiming to have done work that they did not actually do.
Can you describe the bonus system, how it works, and the
culture of corruption at Hines?
Ms. Clarno. Well, all employees in their performance
appraisal, whether you are a physician, a chief of staff, a
director, a social worker, a pharmacist, we all have critical
elements, standard elements. One of them is access to care.
That is a critical element that they look at. It is the first
element that they look at.
So you are being rated on access to care. So that
translates into getting veterans appointments, not access to
real care, but to just get them an appointment on the books.
Senator Kirk. Germaine, as a social worker, I would think
that you are pretty much on the frontline of making sure that
veteran suicide is as low as possible. In your case, I think
that frontline job is to make sure a veteran never makes that
tragic decision to end his own life.
Ms. Clarno. Absolutely.
MENTAL HEALTH TREATMENT
Senator Kirk. If people are manipulating the wait times,
then somebody in crisis could make that decision and you could
have avoided it. I want to make sure people understand just how
important your work is at the VA.
Ms. Clarno. Absolutely. And I think that, in mental health,
one of the issues that I disclosed was in mental health and
veterans accessing individual treatment for PTSD.
They are placed in groups, and I consider them holding
pens, so that they are waiting for individual appointments. If
I was to seek a therapist in the private sector, and I was
having thoughts and nightmares and having the effects of PTSD,
I could get in to see someone within 24 hours.
Senator Kirk. Did any of your veterans commit suicide while
in one of your holding pens when they could not see you?
Ms. Clarno. No, not that I am aware of. But they should not
have to suffer.
Senator Kirk. Right.
Ms. Clarno. They are barely holding onto life. Their family
no longer knows who they are. With PTSD and traumatic brain
injury (TBI), there are anger issues. They have a hard time
focusing. They are losing their job. Domestic violence is a big
piece, because they do not know how to handle civilian life.
And they are suffering.
It is our job and responsibility when a veteran, first of
all, has the courage to come and say, ``I need help,'' that is
not always an easy thing for our soldiers. Immediately, they
should be taken in to see an individual therapist for crisis.
Senator Kirk. If an individual veteran says, ``Hey, I am
thinking about committing suicide,'' is there a way to make
sure that you see him right away?
Ms. Clarno. In Hines, I have to be honest, we do a good job
of that, because of the frontline employees, because we care. I
know social workers that will sit in the waiting room for hours
with a veteran because they have exhibited some signs of
suicide ideation and they do not want to leave them alone. So
they will sit there and wait and wait and wait long hours until
they are seen.
Senator Kirk. I would like to now hear the testimony of
Lydia Dennett from the Project on Government Oversight, who has
flown in from Washington, an investigator.
Lydia, you are recognized by the subcommittee.
STATEMENT OF LYDIA DENNETT, INVESTIGATOR, PROJECT ON
GOVERNMENT OVERSIGHT
Ms. Dennett. Chairman Kirk, thank you for inviting me to
testify today, as well as for your leadership and ongoing
interest in this issue.
My name is Lydia Dennett, and I am an investigator at the
Project on Government Oversight (POGO), a nonpartisan,
independent watchdog that champions good government reforms. I
personally have been working on issues at the Department of
Veterans Affairs since the allegations at Phoenix first came to
light. I have been the point of contact at POGO for hundreds of
whistleblowers who shared their stories with us.
If it were not for whistleblowers, none of us would be
aware of the extent of problems at the VA. The bravery of
Doctors Mitchell and Foote from Phoenix caused an avalanche of
reports from whistleblowers at VA facilities across the
country.
Last year, 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 our 34-
year history, POGO has never received as many submissions from
a single agency.
In 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, and 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.
I want to emphasize 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 willing
to put their lives at risk to come forward in order to fix it.
Some 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.
For example, from right here in Illinois at the Hines
Hospital, we received several allegations of scheduling
manipulations. These whistleblowers described VA staff members
improperly canceling and rescheduling veteran appointments, as
well as fake waiting lists hiding the fact that some vets were
waiting 4 or more months for an appointment.
The majority of the current or former Hines employees
decided to remain anonymous out of fear of retaliation. One
stated, ``I can't reveal my name as I fear retribution from my
supervisors and other staff members. I need my job and would
surely lose it for telling you any of this.''
VA whistleblowers are supposed to be able to turn to the
VA's Office of Inspector General, but many have come to doubt
the VA 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 has been an example of
oversight at its worst. Last year, in the midst of our
investigation, the VA Inspector General issued a subpoena to
POGO demanding all records we received from current or former
VA employees. Of course, POGO refused to comply with the
subpoena. However, it was understandably cause for concern for
many of the whistleblowers who had come to us and caused a
chilling effect.
It was only thanks to your interest and support, Chairman
Kirk, that the new Acting Inspector General dropped the
subpoena against POGO 3 months ago.
In comparison, the Office of Special Counsel has been
working to investigate claims of retaliation and get favorable
actions for many of the VA whistleblowers who have come
forward. In 2014 and 2015 alone, the OSC has achieved favorable
actions for 116 VA whistleblowers. Last year, the VA surpassed
the Defense Department in the number of cases filed with the
OSC for the first time, even though the Defense Department has
twice the number of civilian employees as the VA.
We commend the OSC's good work and commitment to helping VA
whistleblowers. But merely addressing isolated incidents is not
enough. The cultural shift that is required inside the VA
cannot be accomplished without legislation that codifies
accountability for those who retaliate against whistleblowers.
POGO is extremely pleased to note that this has been
included in your Veteran Patient Protection Act, as it has been
missing in other pending VA legislation. This bill would punish
VA supervisors who have been found to take retaliatory actions
against whistleblowers first with a 12-day unpaid suspension,
and if a second offense is committed, the removal of the
supervisor.
Additionally, we are glad to see that how supervisors
handle whistleblower complaints will be included as criteria
for their annual review and that bonuses will not be awarded to
those who have retaliated against whistleblowers.
It is POGO's hope that this legislation will ensure that
whistleblowers can expose wrongdoing confident that it will not
result in retaliation. Your bill, Chairman Kirk, gives teeth
for protecting VA employees. But Congress should also extend
whistleblower protections to contract employees and veterans
who raise concerns about medical care provided by the VA.
We have heard countless stories from veterans who fear
reporting problems to their doctors or even patient advocates
because they worry their medications will be stopped or they
will not be able to get another appointment for months.
Additionally, we urge the Senate to vote and, if found to
be qualified, confirm the President's recent nomination for a
permanent VA Inspector General as soon as possible.
POGO also 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. Secretary
McDonald should personally meet with whistleblowers and elevate
their status from villain to hero.
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 and improve care for our veterans across the country.
[The statement follows:]
Prepared Statement of Lydia Dennett
Chairman Kirk, thank you for inviting me to testify today, as well
as for your leadership and ongoing interest in the care of our
veterans. I am Lydia Dennett, an investigator at 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 little over a month, nearly 800 current and
former VA employees and veterans contacted us. We received 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 risk their livelihood 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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From right here in Illinois, at the Hines VA Medical Center, we
received several allegations of scheduling manipulations. These
whistleblowers described VA staff members improperly canceling and
rescheduling veteran appointments, as well as fake waiting lists hiding
the fact that some vets were waiting four or more months for an
appointment. The majority of the current or former Hines employees
decided to remain anonymous out of fear of retaliation. One stated, ``I
can't reveal my name as I fear retribution from my supervisors and
other staff members. . . . I need my job, and would surely lose it for
telling you any of this.''
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 [Veterans
Health Administration] 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 clearly isn't 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 had come to doubt the VA Inspector General'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
Inspector General's office issued an administrative subpoena to POGO
that was little more than an invasive fishing expedition for
whistleblowers who had come to us in confidence. The Inspector General
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, then-Acting Inspector General,
Department of Veterans Affairs, to Project On Government Oversight,
regarding subpoena to POGO, May 30, 2014.
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In June of this year, the VA Inspector General's office attacked
POGO again. In an unusual step, the VA OIG submitted a statement to the
Senate Homeland Security and Governmental Affairs Committee raising
concerns about POGO's investigation into the VA.\7\ However, the OIG
could provide almost no relevant or specific evidence to support its
own claims or rebut POGO's arguments. The very next day the VA OIG sent
a white paper to all HSGAC members as well as 22 other Members of
Congress publicly attacking victims and whistleblowers at the VA
Medical Center in Tomah, Wisconsin.\8\
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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.
\8\ Department of Veterans Affairs, Office of Inspector General,
``OIG Releases White Paper on Evidence Supporting Administrative
Closure of 2014 Tomah, WI, VA Medical Center Inspection on Opioid
Prescription Practice,'' June 4, 2014. (Downloaded July 22, 2015).
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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 Inspector General, Linda Halliday, released two
statements detailing steps she plans to take to improve the Inspector
General's whistleblower protection program, including seeking
certification by the Office of Special Counsel.\9\
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\9\ Linda Halliday, Department of Veterans Affairs, Office of
Inspector General, ``Deputy Inspector General Announces Steps to
Strengthen Whistleblower Protection Training for OIG Employees,'' July
10, 2015. http://www.va.gov/oig/pubs/press-releases/VAOIG-
WhistleblowerProtections
PressRelease.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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Furthermore, at the request of Chairman Kirk, Acting Inspector
General Halliday dropped the subpoena against POGO. We greatly
appreciate Chairman Kirk's continued support and applaud his commitment
fixing these issues at the VA, perhaps best evidenced by the VA Patient
Protection Act he introduced just this week.
va patient protection act
The cultural shift that is required inside the Department of
Veterans Affairs cannot be accomplished without legislation that
codifies accountability for those who retaliate against whistleblowers.
This important piece has been missing in other pending VA legislation
but is one of the strongest aspects of Chairman Kirk's VA Patient
Protection Act.
This bill would punish VA supervisors who have been found to take
retaliatory actions against whistleblowers, first with a 12-day unpaid
suspension, and if a second offense is committed, the removal of the
supervisor. Additionally we are glad to see that how supervisors handle
whistleblower complaints will be included as criteria for their annual
review, and that bonuses will not be awarded to those who have
retaliated against whistleblowers.
Preventing retaliation is also key to fixing the culture at the VA.
We are pleased to see that The VA Patient Protection Act requires
annual training for all VA employees on prohibited personnel actions,
which includes retaliating against whistleblowers as a prohibited
action. Further, VA employees will receive an explanation of all the
methods they can use to report wrongdoing. This bill would also create
a new formal process for VA whistleblowers to file complaints within
the VA, to be handled by a new Central Whistleblower Office, separate
from the VA's General Counsel Office. This office will be required to
report to Congress the number of complaints filed and how the Secretary
addressed those complaints.
It is POGO's hope that this legislation will ensure that
whistleblowers can step forward to expose wrongdoing, confident that it
will not result in retaliation.
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.
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.
Additionally, the VA still does not have a permanent Inspector
General in place. That position has been vacant for over 670 days--over
a year and a half.\10\ Our own investigations have found that the
absence of permanent and competent leadership can have a serious impact
on the effectiveness of an Inspector General office.\11\ Acting
Inspector Generals do not undergo the same kind of extensive vetting
process required of permanent Inspector Generals, and as a consequence
usually lack the credibility of a permanent Inspector General. Acting
Inspector Generals 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.\12\ Perhaps most worrisome, given the significant
challenges facing the VA Inspector General, a 2009 Southern California
Law 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.\13\ POGO urges the Senate to vet and, if qualified, confirm
President Obama's nomination for a permanent VA Inspector General as
soon as possible.
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\10\ 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.
\11\ 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?'')
\12\ Testimony of POGO's Jake Wiens on ``Where Are All the
Watchdogs?''
\13\ 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. In 2014 and 2015 alone, the OSC
has achieved favorable actions for 116 VA whistleblowers. But the OSC
still has nearly 100 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.\14\ POGO
recommends that Congress consider appropriating additional funds to
this agency to help with the increased workload.
---------------------------------------------------------------------------
\14\ Testimony of Carolyn Lerner, Special Counsel U.S. Office of
Special Counsel on ``Improving VA Accountability: Examining First-Hand
Accounts of Department of Veterans Affairs Whistleblowers,'' September
22, 2015. http://www.hsgac.senate.gov/hearings/improving-va-
accountability-examining-first-hand-accounts-of-department-of-veterans-
affairs-whistleblowers (Down-
loaded November 2, 2015).
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But it's not just the OSC, VA Secretary, or Inspector General who
can work to fix this problem. Congress should enact legislation, like
Chairman Kirk's VA Patient Protection Act, to increase protections for
VA whistleblowers and hold their retaliators accountable.
POGO also urges Congress to 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 the 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.
VA RETALIATION COMPLAINTS
Senator Kirk. Let me follow up, Lydia, to sum up, as I
understand it, POGO got about 800 whistleblowers who contacted
it about problems in the VA. The Inspector General demanded you
hand over the names of all those whistleblowers.
In your view, what would have happened if you had given the
Inspector General the names of all those whistleblowers?
Ms. Dennett. We believe that they would have been
retaliated against. We have heard from several whistleblowers
who did not contact the Inspector General anonymously and the
Inspector General went back to their hospitals and revealed
their names, and they were subsequently retaliated against by
their supervisors.
Senator Kirk. So since the hearing that we had with the
Acting Inspector General, they have now backed down on that
subpoena and you have not provided those names. So we could say
that those 800 whistleblowers are all protected, and the
Inspector General does not even know who they are.
Ms. Dennett. Yes, correct.
Senator Kirk. Let me pull up a board that we have made,
showing the rising number of retaliation complaints at the
Department of Veterans Affairs, rising from about 291 to 712.
It is a pretty alarming rising there.
Lydia, could you comment on that?
Ms. Dennett. Yes. It is not surprising based on what we
have been hearing ever since the doctors in Phoenix came
forward in 2014. I think that gave some confidence to other
employees there that they could also come forward, or should
come forward to report the kinds of problems at Phoenix and
other kinds from all over the country.
Senator Kirk. Germaine, I would just say, normally, you
would not expect people who work at Hines VA would get a
highway sign. You guys have been responsible for this sign that
says, ``VA is lying and veterans are dying.'' What led you to
get the sign to be put up?
Ms. Clarno. It really came from VA employees who wanted to
help the cause, but were too afraid to come forward in any
other way. So this came from an idea from a VA employee. And I
contacted Ron Nestler, who is a veteran who has a Facebook
page. We collected funds. It is not an inexpensive thing to do,
to put a billboard up in Chicago. But we collected money and
the Facebook group also contributed to helping.
Senator Kirk. So how many folks do you have on Facebook
with you after this sign went up?
Ms. Clarno. Part of not only being a local president, a
social worker, after I made my disclosure on CBS Evening News,
I got calls from all around the country from whistleblowers. I
started a Facebook page----
Senator Kirk. Germaine, I wanted to get into that. You have
talked to a number of employees around the country who are also
in your union, and they have described the same kind of
retaliation. You suspect there is a retaliation memo, and that
they all get retaliation of the same kind. Can you describe the
disturbing similarities that you have seen?
Ms. Clarno. Sure. We often joke that there must be a manual
on how to retaliate against whistleblowers, because it is the
same. They will start with the harassment and intimidation, and
it will just proceed from there to such a point that there are
whistleblowers around the country that have been hospitalized
in psychiatric wards for suicide ideation, for depression. It
is shocking.
The sacrifices that truth-tellers make to protect our
veterans is very alarming, and the numbers are very high.
Senator Kirk. I want to present one last board where we
have seen that the Department of Justice has decided to
prosecute a number of people at the VA for poor medical care.
At places like Florida and Ohio and Tennessee, we have seen
people prosecuted for poor care.
Lisa, could you comment on that, this lack of prosecution
that we have seen?
Dr. Nee. Well, it is glaringly obvious. Health and Human
Services has partnered with the Department of Justice to go
after physicians who commit fraud, so they can recover the
funds. It is clear that the exact same law that is used by them
for prosecuting people is ignored in Hines.
Many physicians at Hines have committed these exact acts
word for word. Not only are they not prosecuted, the Hines VA
is allowed to then investigate itself to make any corrective
action, which is ludicrous. You would never allow a criminal to
investigate themselves and then come back to you with their
plan of action to not do that again.
It is a very scary thought, I think, for good physicians
and for any patient.
Senator Kirk. All right, I will start to wrap up. Let me
finish with a closing statement.
It is totally demoralizing for us to hear all of this about
our own VA taking care of the best of the best, the men and
women of the greatest generation that saves civilization who
get terrible treatment like this.
We need to focus on legislation to protect the protectors
and to make sure that medical professionals like the ones we
heard from are able to report mistreatment of a veteran and
ensure high quality for that veteran.
CONCLUSION OF HEARINGS
Senator Kirk. I will close this hearing. We are adjourned.
[Whereupon, at 1:53 p.m., Friday, November 6, the hearings
were concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]