United in Speaking Truth to Powerwww.whistleblowersofamerica.org @whistleP2P601 Pennsylvania Ave, South Tower, Suite 900 Washington, DC 20004

Statement of

Ms. Jacqueline Garrick, LCSW-CExecutive Director

Whistleblowers of America

Before the Committees on Veterans’ Affairs

U.S. SenateU.S. House of Representatives

March 14, 2018

Honorable House and Senate Committee Members:

Whistleblowers of America (WoA) was incorporated in 2017, as a newly focused nonprofit service organization providing peer support to whistleblowers, so we are honored to be able to share our concerns with you today. The majority of our members are with Department of Veterans Affairs (VA) employees or veterans who have identified waste, fraud, and abuse, medical errors, denials of care or benefits, discrimination, or harassment. For doing so, they have suffered reprisal and retaliation. They have spent endless hours with investigators, lawyers, judges, reporters, and members of Congress. They have spent thousands of dollars in family savings to reveal the truth, seek vindication, right wrongs, save lives, and obtain justice. Today, WoA hopes to give voice to many of these whistleblowers and anonymous tipsters from behind the scenes, who are the thin line of protection between a powerful agency and harm caused to disabled veterans. This statement is a compendium of over two dozen WoA cases from VA.

Recently, VA released its $198.6 billion budget request. A $12 billion increase over last year. As this Congress considers this historic funding level for VA, WoA asks that you weigh appropriating these funds against the track record of the Veterans Health Administration (VHA) and the Veterans Benefits Administration (VBA). An amalgamation of reports from Office of Inspector General (OIG) and Government Accountability Office (GAO), cases before the Office of Special Counsel (OSC) – where VA represents 40 percent of the workload, the Merit System Protection Board (MSPB), the Equal Employment Opportunity Commission (EEOC) – with reprisal being the number one complaint from VA, or the Unions, such as the American Federation of Government Employees (AFGE) along with the new Office of Accountability and

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Whistleblower Protection (OAWP) are additional sources for WoA findings. In the 2017 Federal Employee Viewpoints Survey1, 57.9% of VA employees agreed that they could not make disclosures without fear of reprisal – among the worst of the Federal Agencies with an average of 64%. This level of discontent and fear is concerning because it means that VA will continue to have difficulty recruiting and retaining competent employees while suffering a staffing shortage, veterans will lose access to care, quality is at risk, sentinel events will go unreviewed and benefit delivery will be delayed or denied. WoA asks that the Committees consider the following concerns related to VA spending and oversight.

VA Central Office

Contracting and Procurement:

Given the ample size of this proposed budget for 2019, and that VA recently awarded 68 companies spots on Veteran Enterprise Contracting for Transformation and Operational Readiness (VECTOR), which is a multiple-award, indefinite-delivery/indefinite-quantity (IDIQ) contract that has a five-year base period and five option years, and a set-aside for service-disabled, veteran-owned small businesses, VA leaders should have an oversight plan for how they intend to execute these funds.

The potential for a 10-year, $25 billion contract vehicle that covers general management and business support services to VA should include within an oversight plan measures to hold government managers accountable for funds spent on VECTOR. While contractors will compete for task orders to provide analyses, training, management and improvement, supply chain support, outreach and human resources and staffing services through VA, accountability should identify relationships between VA managers and contractors, competencies for task order selections, pre-hired experts, and comprehensive descriptions of task orders to include the indirect costs and sub-contractors involved. For example, a whistleblower noted a 2017 OIG report that implicated an Senior Executive Service (SES) who spent approximately $3 million, for a human capital dashboard that was never used because the leader failed to spend a few thousand dollars on hosting services. The SES was provided anonymity in the report and quietly moved to lead training and development. The disproportionate consequences between whistleblowers and incompetent employees is shockingly large. A full accounting of all names working on VA contracts should be made available to senior government officials. All allegations involving contract fraud should have expedited investigations by VA OIG.

According to several sources, there are multiple on-going OIG investigations into VA contracting. These investigations will no doubt identify deficiencies in current contract and procurement management. VA must show compliance with these recommendations prior to its ability to execute on non-emergent task orders.

Whistleblower Retaliation and Office of Accountability and Whistleblower Protection:1 Conducted annually by the Office of Personnel Management (OPM). Figures are from 2017 report.

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Significant, ongoing retaliation against VA front-line whistleblowers is rampant while assistance from the VA Office of Whistleblower Protection (OAWP) is sparse, slow, and cloaked in unreasonable secrecy. Giving quick authority to facilities to remove “the bad VA employee” has proven dangerous to retaining medical personnel who were following codes of ethics and Joint Commission standards and reported wrongdoing. For example, a physician in Indiana who fought the dangerously addictive opioid prescribing practices at her facility was removed in 2017 after more than a two-year battle to save her career when the facility was given the carte blanche to strip her medical staff privileges based on an internal review of the agency’s proposed action instead of on external judgement. OAWP was unable to assist.

In order to address the toxic whistleblower reprisal tactics being employed across VA, the President and Congress created OAWP in 2017. In his testimony on January 30, 2018, Secretary Shulkin touted that in seven months about 900 employees were terminated and 250 more were suspended. Nowhere in that statement does he explain how the OAWP assisted a single whistleblower or how many of the 900 fired had open whistleblower retaliation cases with OSC, MSPB, or EEOC. Based upon discussions with former VA employees who have contacted WoA, many of those who were terminated were forced out on trumped up charges after the employee persisted in whistleblowing activities, such as our Indiana doctor.

The recent VA policy that requires all monetary settlements over $5,000 to obtain Under Secretary approval or above have stalled and penalizes many whistleblowers who are unable to fund hundreds of thousands of dollars in attorney fees to get remedy via MSPB or Federal Circuit Court. Little transparency exists into the existing environment and remedies to whistleblower complaints. In fact, without public data releases, we can only assume that whistleblowers are facing increasing pressure to resign without remedy against their perpetrator.

In addition, due to the backlog of cases against VA, VA managers know that the process of appealing VA termination can take years through the OSC, MSPB, or EEOC. VA administrators know they essentially are insulated from any consequences of their unscrupulous actions because they can “outlast” the victims. Former employees often give up the daunting legal fight prematurely because they cannot withstand the financial toll incurred by prolonged legal battles.

Furthermore, for cases where the employee alleges whistleblower retaliation but the OAWP believes the case does not meet the standard definition of such retaliation, the OAWP is referring the reports back to VA for investigation via the Veterans Integrated Service Network (VISN) office overseeing the facility where the complainant works. The VISNs often notifies the facility of the report and subsequently the facility notifies employee’s supervisor of the complaint. This process exposes the employee to further retaliation from his or her superior.

Congress should require OAWP to provide detailed public reports on its activities including specific data on the numbers of employee complaints received, the nature/locations of those

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complaints, the OAWP action taken, and the outcome/where the case was referred. The OAWP should not automatically refer cases back to the VISN office unless it has the written permission of the complainant. The OAWP should establish an independent ad hoc board to re-adjudicate the merits of the termination and ensure that termination, suspension or other adverse actions against whistleblowers were made in good faith, if not, the whistleblower should be immediately “made whole” with any negative actions reversed.

Veterans’ Health Administration

Most of the whistleblowers who have contacted WoA are physicians, nurses, and social workers working in VA Medical Centers (VAMC) across the country. They have reported mismanagement of patient care, substandard care, overprescribing of narcotics, inappropriate use of suicide prevention funds, presumption and research discrepancies, and inaccurate accounting of homeless veterans.

Sentinel Events

Sentinel events, defined by The Joint Commission (TJC), are any unanticipated occurrences while delivering health care, not related to a patient’s injury or illness that result in serious adverse outcomes. Researchers2,3 conclude that medical errors can be attributed to 250,000 to 440,000 deaths a year in the United States, making them the 3rd leading cause of death among Americans as tracked by the Centers for Disease Control and Prevention (CDC). In efforts to prevent these deaths and other adverse outcomes, TJC recommends policies and procedures that include conducting root cause analyses that are transparent and inclusive while engaging in continuous process improvements that includes personnel and systems. The goal is to incentives reporting and overcome the barriers to disclosures. These are healthcare industry standards.

However, at VA, there has been a flurry of media reports related to these adverse events that started with the Phoenix VAMC with patients who died while waiting for appointments to other cases, such as nursing home patients mistreated in Boston, cancelled surgeries in Fayetteville, unsanitary equipment in Washington, DC, violations of single-use only medication vials at Bay Pines, and multiple substandards of care problems at Manchester. Whistleblowers in each of these reports also identify the retaliation and punitive measures taken against them for disclosing. This goes against TJC recommended protocols.

The lack of assertive oversight coupled with the widespread fear of retaliation by management among VA employees, results in silence; thereby keeping veteran healthcare and safety at-risk. The VA needs to spearhead a system of genuine accountability to maintain checks and balances currently absent from the established reporting matrix. There is a lack of confidence among VA staff regarding the current systems in-place for reporting VA wrongdoing.VA must immediately

2 Journal of Patient Safety, September 2013, Vol 9. Issue 3. Pgs. 122-128.3Johns Hopkins Medicine, May 3, 2016 release

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update and create a more transparent and non-punitive process for reporting sentinel events so a complete root cause analysis can be conducted, and results reported and addressed.

Sub-standard Patient Care Protocols

In 2014 testimony4, Dr. Katherine Mitchell raised concerns regarding substandard care, as have several other physicians, but VA has yet to address these deficiencies. WoA raises the following issues as a call to action:

Improper Assignment of Complex VA Patients to Inexperienced VA Providers:

Complex VA patients are being randomly assigned to non-physician primary care providers who do not usually have the advanced training necessary to properly care for such medical problems. Patients usually are assigned to a primary care provider according to availability of the provider with no regard to the ability of a provider to handle the complexity of the patients. There is a disparity between the primary care providers training and skills based upon whether the provider is a physician (MD or DO), nurse practitioner (NP), or physician assistant (PA). Physicians must complete a 4-year physician doctorate program and 3+ years of a continual training program “internship/residency” in medicine. Depending upon the program, NPs complete only 2+ years of training via a master’s degree in nursing and participate in no residency program or equivalent of a “continual training” program. PAs generally complete a 2+ year program of classes/hand-on training but do not complete a continue training program for years.

In the VA system, each of these providers can be a primary care provider regardless of training. All providers are qualified to manage simple, acute problems or limited/ stable chronic problems. However, unless there has been additional study/training completed, primary care for very complicated patients with multiple co-morbidities is outside the scope of practice for many NPs and most PAs. These complicated patients (VA leaders often proclaim the complex nature of veterans’ care) should be managed by physicians with extensive medical training. Patients in the VA are assigned by non-medical staff according to availability of the health care provider’s time slots with no regard to the ability of that provider to handle the complexity of the patients. Patients with multiple, serious medical problems are being managed by NPs or PAs even though those providers do not have the training to manage those complicated patients adequately.

VHA only reports the number of provider slots filled but does not report the number of MDs/DOs, NPs, or PAs filling those slots. This enables VHA to obscure the fact that they are steadily losing physicians with extensive medical training to treat complex patients and replacing those physicians with advanced NPs or PAs who do not have the training to provide in-depth medical care to patients with multiple serious medical problems. Providers fear retaliation if they ask that a patient not be assigned to their panel because the patient’s acuity level is too complex.

4 Mitchell’s September 2014 written congressional testimony can be found at: http://docs.house.gov/meetings/VR/VR00/20140917/102650/HHRG-113-VR00-Wstate-MitchellK-20140917.pdf

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VA should be required to develop a list of complex medical conditions and a process that automatically require assignment of the patient to a primary care physician, not an NP or PA. This should include; significant polypharmacy, organ transplants, end stage renal disease, advance liver disease, etc. Congress should mandate that VA report on the number of MD/DOs, NPs, and PAs filling primary care provider roles at each site and require analysis to determine if that mix of primary care provider types is adequate meet the patient care needs of each facility’s cohort of patients. This would identify gaps in the system.

Panel Sizes - Although VA has a policy to annually adjust patient panel sizes to match the complexity of VA patients assigned to any one VA provider, it is not routinely following this policy. This results in providers who are overwhelmed with massive numbers of very complex patients and unnecessary slowing the care for all veterans in the system. Within primary care, providers are struggling to manage oversized patient panels or with panels that do not have a balanced mix of patients. Once the above requested list of Complex Medical Conditions is developed, VA should assign complex patient panels to physicians, but to keep them from being stretched too thin, VA should reduce the patient panel sizes of physicians to reflect an increased percentage of patients with more complex medical problems and increase the patient panel sizes of NPs and PAs to reflect that they have more patients with low acuity (uncomplicated medical problems). Given that the veteran population is a very complex/high acuity group of patients to manage because of unique exposures/injuries during military service as well as significant frequency of medical co-morbidity. Multiple comorbidities greatly complicate medical management of patients because any one disease process can make the individual more likely to suffer complications or worsening symptoms from his/her other medical problems. The clinical decision-making process is often extremely intense to effectively manage a cluster of medical problems presenting in one patient.

A VA Directive does make recommendations for panel limits, which can be up to 1,200 patients per primary care provider (MD/OD, NPs or PAs). However, some provider panels can be 10-20+% over the recommended limit, which very thinly stretches the provider. Inevitably, the provider must address a higher number of patient requests/telephone messages, meet increased numbers of potential walk-in requests, fill more medication refills, review greater quantities of labs, follow more consults to completion, process significantly more electronic chart alerts daily, and perform a greater number of screening and annual exams. Even if the provider panel is near recommended sizes, the complexity of the panel requires that the provider must dedicate more time during/after each visit to address the needs of each complex patient. By necessity, high acuity patients with diabetes, strokes, autoimmune disorders, heart disease, kidney failure, liver disease, widespread joint disease, chronic pain syndromes, and/or other chronic disease states are given more provider attention. The providers screen for multiple potential symptoms, gather information on current daily functioning/symptom control, and review medications/labs to determine if the medical conditions are stable. Any needed studies or consults will require additional time to order, evaluate, and communicate to the veteran and family.

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Currently, patient care panels are not evaluated to determine if any provider has a highly complex panel of patients, which should require a smaller patient panel assignment, especially given the disparity of education and training between MD/DO and NPs and PAs. This results in the providers being overwhelmed trying to meet the needs of all patients. Experienced, talented medical providers leave the VA system because of high rates of professional burn-out caused by being chronically stretched too thin as well as the demands of administrators who micromanage patient care from a distance. VA should be required to follow its policy regarding adjusting provider panels based on the mix complexity and evaluate the acuity levels of patient care panels and adjust provider panel sizes up or down to reflect it.

No Standardization of Nurse Triage Training - Appropriate nurse triage is a cornerstone for high quality patient care. Nursing triage skills are used to assess patient complaints and requests in to help the patient access the next appropriate step in health care. Nursing insights also can be valuable in understanding the psychosocial needs of the patients and families.

Currently, the quality of nurse triage in the primary care clinics, mental health clinics, and emergency departments is extremely variable for walk-in patients. Some nurses are highly skilled through many years of nursing practice and have excellent clinical insight and judgment. Other nurses do not have the experience or training to appropriately triage complex patients or recognize when reported symptoms may require urgent/emergent intervention by other health care providers. On the other hand, call center triage nurses follow specific standardized computer protocols for evaluating patients’ problems, but such protocols are NOT used in primary care, mental health, or emergency departments. In the private sector, there are standards for triage nurses including minimum years of experience and certification requirements for specialty areas including emergency departments and behavioral health urgent/emergent care.

For years, the VA has implied that the Emergency Severity Index (ESI) is adequate training for emergency room triage nurses. However, the ESI is only a system of counting potential interventions (labs, x-rays, IV fluids) a patient may require and then assigning a score, which determines the priority with which a patient may be seen by a physician. The ESI system does not teach a nurse how to triage symptoms or recognize when symptoms are potentially being caused by a serious/life-threatening condition.

VHA allows any nurse to be a triage nurse with no national standards/requirements for triage experience or triage training/certification. This has significant implications for patients because they do not consistently receive high quality care or adequate triage when presenting as walk-ins. This causes inconsistent and often erroneous patient evaluations, delays in obtaining adequate care, and missed opportunities. Patients will potentially encounter significant barriers to accessing the next level of proper care efficiently. Slowed or erroneous nursing triage can cause medical or mental health delays and result in serious worsening of medical condition or death by illness/suicide. Only after the exposure that the Phoenix VAMC was a “danger to public health and safety” did it adopt a plan to use the Emergency Nurses Association’s ER training materials

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to provide standardized training in Phoenix. However, no other ER in any VISN has followed. VHA MUST set national standards and training requirements for triage nurses in primary care clinics, emergency departments and mental health clinics to ensure a consistent, high quality triage evaluation. Require VHA to provide standardized training either self-generated or from a well-recognized entity such as the Emergency Nurses Association.

Opioids and Pain Management Standards of Care:

Given that there are about 65,000 drug overdoses annually in America5, physicians should be on the cutting edge of ending the opioid epidemic. They should have control over the prescription pad. But at VA, that has not been the case according to several insiders. WoA has received multiple complaints from VA providers who believe that VA administrators are unduly forcing the physicians to taper opioids prematurely without having alternative pain management strategies in place so that the opioid prescribing numbers can appear to be reduced.

Administrators who are more concerned with workload (Relative Value Units) and performance metrics run the show. Panel size policies with predetermined patient time allotments that administrators by default, are dictating patient care rather than it being veteran-centric. Senior managers must reach their performance goals to get their bonuses. Doctors are given bad evaluations to force them into compliance with no regard for the best interest of the patient. There are no true patient centered checks and balances between the doctors and the leadership. Since doctors’ schedules are heavily regulated, they have no time to call or talk to patients, so medication becomes the primary tool for care management.

VA physicians are limited in their prescriptive powers and need permission, even if a certain medication is on the formulary to control costs. Unfortunately, cost containment can result in the over prescribing of some medications such as Scheduled II-III narcotics to manage conditions such as chronic pain. But, when a veteran complains about a doctor who cuts their medications or refuses to prescribe the amount of controlled substance they want, then the doctor gets in trouble. This sequence of events is quite problematic for VA practitioners because any provider who is the subject of a Veteran’s “Congressional” complaint, runs the risk of retaliation and loss of employment. Thus, many very skilled, ethical and dedicated practitioners leave VA to protect themselves. Physicians, NPs and PA should follow standard of care practice guidelines, for such conditions as heart disease or diabetes and the level of narcotics prescribed which can be difficult to do because they are not in control of their practice. Pain cannot be managed to zero. It is not recommended that a patient have a fully blocked pain response. For example, heart patients need to know when they have chest pain. Doctors who go against administrative decisions face punitive measures. Minimizing complaints supersedes patient safety. Safe opioid practices are ignored if patient satisfaction is questioned. If a patient overdoses because of these prescribing practices, then the doctor is held accountable.

5 According to data presented at the 2018 National Governors Association, Washington DC,

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In places like Kentucky, Ohio, or Indiana, it is dangerous because opioids ended up in communities that already have a higher than average overdose rate.6 When veterans are heavily prescribed narcotics, there is a risk that those drugs will be diverted (stolen, sold or given away). Now, to meet new metrics related to reducing opioids, physicians are being told to arbitrarily reduce a patient’s pain medications without having non-pharmacological alternatives or the ability to timely refer the patient to a pain management specialist who can assist with managing patients with complex pain needs. Suboxone and Subutex therapy for opioid addiction is getting increased press. The VA facilities that prescribe Suboxone could very well be unintended sources for diversion of this partial opioid agonist, which has become one of the preferred drugs for abuse reported in prison populations. Suboxone is touted as a safer treatment than methadone for opioid addiction due to a shorter duration of therapy and less potential for abuse (via inhalation and injection) due to its content of Naloxone (opioid antagonist). The presence of Naloxone reduces the opioid high if you have an opioid addiction but if you are not an opioid user, it can prolong a high.

Some Chronic Pain Syndrome can be managed with improved sleep hygiene, dietary changes, exercise (physical therapy, yoga, stretching), orthotic intervention usage, as well as good calcium and Vitamin D levels. Strong occupational and physical therapy programs as well as dieticians are indicated in thorough pain management. This standard of care can be time consuming and expensive, but it does not need involve controlled substances. Instead of a paying for pain management evaluations, VA leaderships either intentionally or passively have coerced physicians into prescribing escalating amounts of controlled substances for pain management.

There are many alternatives to assist with pain management, but VA is often slow to approve referrals to alternatives, fails to contract with sufficient numbers of alternative therapy providers, and fails to pre-authorize a sufficient number of appointments for the alternative therapies. For example, chiropractic treatment for many conditions requires a minimum of 12 visits but some VA facilities will only authorize 6 treatments at a time. Because the VA will not authorize many alternative treatments or will not authorize an adequate number of sessions, wounded warriors who have transitioned to VA care, are out of pocket for therapies that are more productive than medication. They have benefited from massage, Reiki, yoga, acupuncture, aqua therapy and the adaptive sports programs at the Department of Defense (DoD). In the private sector, pain management is an integral part of the care management team. This has not been the case with VA and patients see the disparity in their treatment.

A pain management clinic could assess conditions like joint alignment (resulting from flat feet) that could be addressed through proper orthotics and other therapies. VA should be attuned to soldiers’ boots that are not ergonomic and will be prematurely crippling and manage those patients and better train doctors who are conducting C&P exams. This could also reduce the appeal rate for VBA if exams are done properly and get veterans into the care sooner. But, not

6 CDC data on drug overdoses by state: https://www.cdc.gov/drugoverdose/data/statedeaths.html

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clearing exams within 20 days is viewed as incompetence and not thoroughness, which is indicative of the disconnect between VHA and VBA.

Many whistleblowers see pain management as improperly regarded across the VISNs. For example, the pain management clinic in Poplar Bluff, MO, was closed after spending thousands on state-of-the-art equipment that went unused, for no other reason than to retaliate against the physician who identified substandard of care issues. A preferred standard of care should include patient education and management agreements, that included a risk assessment for diversion, abuse, addiction, and other medical and social factors. A Medication Management Agreement should be signed by all patients who are prescribed controlled substances.  The Medication Management Agreement should include that the patient agrees to a fixed random schedule of urine toxicology testing, which must include "confirmation" testing as a standard of care. Countless veterans have been on chronic opioid therapy for many years.  Instead of opioid therapy, there are many other effective therapies to mitigate pain to include various interventional procedures.  For example, an epidural steroid injection can provide months of pain relief as compared to a few hours of pain relief from hydrocodone therapy.

Finally, the Federal Government has no Center of Excellence for Pain Management (CoEPM) but could greatly benefit from such a focus. Strategically located CoEPMs in partnership with DoD were recommended by a joint task force report issued by the Army Surgeon General in 20107. If this recommendation were instituted, VA and DoD could be leading the nation in responding to the opioid epidemic as required by President Trump. However, eight years later, we still do not have these Centers, proper toxicology or accountability for opioids, or standardized protocols for pain management. A joint formulary for a continuum of care with DoD was also recommended for transitioning Service members going from DoD to VA. Congress should ask for an update on these recommendations, especially regarding the CoEPM.

Mental Health and Suicide Prevention:

Mental health is the “bread and butter” of VA, especially related to posttraumatic stress disorder (PTSD). The VA had led the nation in developing training, policies and practices to mitigate PTSD symptoms. It houses a body of knowledge (National Center for PTSD and Vet Centers) that is unexceed anywhere else. However, if the VA continues to not be able to attract new providers or retain the ones it has, it will lose the expertise it had built that has benefited so many veterans. According to the AFGE8, VA hired about 900 mental health providers last year, but in the same period, lost 945. This turnover rate can be attributed to the stress and burnout associated with a dysfunctional work environment and whistleblower accounts of reprisal. VA providers need to be supported and trained, especially in areas related to Military Sexual Trauma (MST) and Traumatic Brain Injury (TBI) impacts on cognitive therapies. In a 2018 OIG report, (15-7 The Pain Management Task Force Report: Providing a Standardized DoD and VHA Vision and Approach to Pain Management to Optimize the Care for Warriors and their Families made 109 recommendations. The report was required by NDAA 2010. 8 Gordon, S. VHA needs stronger recruitment method. The Hill. February 23, 2018

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01580-108) it found problems with providers who could not effectively diagnose TBI or differentiate it from PTSD, which negatively impacted veterans’ ability to obtain proper service connection and access care. Additionally, investments should be made in exploring and testing some of the innovative technologies that are available for identifying brain functioning and treating or mitigating TBI impacts.

Compounding mental health treatment at VA has been the numbers of veterans who die by suicide. According to the CDC, about 40,000 American die by suicide each year making it the 10th leading cause of death. The propensity rate for veterans, especially female veterans is even greater. Over the 2017 summer, VA released its most recent data on veterans who have died by suicide. The problem with this data release is that it is not tied to any VA program outcome data or funding. There is no indication that VA uses this report in any meaningful way to target its interventions or other approaches. In fact, there have been several OIG investigations that recommend that VA do more targeted outreach at the local levels. However, VA continues to fund awareness campaigns that have no evidence of effectiveness. There is growing research that awareness campaigns do not work or could even have an adverse impact because they normalize the behavior they are trying to mitigate.9 Yet, in the last few years, VA has awarded almost $100 million in contracts for “Make the Connection” and the “Veterans Crisis Line” campaigns instead of using those funds to address shortfalls at the call center, hire more mental health providers, expand peer support or conduct local outreach. Whistleblowers have noted that money gets spent on things like videos, posters, dashboards or SharePoint sites that could have been allocated for direct patient care or provider training.

Congress has passed the Joshua Omvig, Clay Hunt, and the Chris Kirkpatrick Acts in attempts to mandate VA suicide prevention efforts. We lost Omvig, Hunt, and 20 other veterans a day, along with Kirkpatrick, a whistleblower psychologist to suicide while VA has struggled to provide evidence-based interventions and support. Ongoing OIG and GAO investigations should prove fruitful in identifying suicide prevention improprieties and shortfalls along with recommendations for better practices. Congress needs to hold VA accountable for how it uses the data it collects to inform the programs it creates and how it aligns appropriated funds for these purposes.

The Choice Program

There are well dug-in arguments on both sides of the Choice Program. There are those who would advocate for the complete privatization of veterans’ healthcare with a voucher system to those who believe it is a system worth saving. Undoubtedly, there is sufficient studies, such as those by RAND, that enumerate VA’s value and military medicine knowledge base in comparison to the private sector. But, Choice is a great option to provide the needed specialty

9 University of Michigan, School of Public Health

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care for veterans because strong, varied access to specialist is much needed by all VA Medical Centers (VAMC) if they want to address health care needs of all veterans. TBI, PTSD, Chronic Pain, and Women’s Health require integrated areas for effectiveness. Too many VAMCs cannot maintain staffing to support this integration so accessing the community could be beneficial. However, in one WoA case, a veteran in need of Invitro Fertilization (IVF), access has been problematic because of the delays. It has taken VA since her military discharge in June 2017 to schedule an IVF appointment for May 2018. Given the time sensitivity for IVF and no response from complaints sent to VA, this is unacceptable access to Women’s Health Care.

Furthermore, veterans in rural areas or where VA is distant or overloaded, Choice appears to be an appropriate option that veterans favor. VA insiders encourage VHA to provide better oversight and integrate its options for outsourced care. Choice, along with Fee Basis and Community Care are delivered along separate business lines. This needs to be integrated and better managed. Whether a provider is VA or community based, they must be able to meet the same standard of care and be trained in conducting military-related assessments.

The Choice program fails to achieve goals due in part to the VA hierarchy: Chief of Staff, Director and VHA who determine the veteran’s outcome overall because they control when and how veterans are referred for care and what, if any, specialist will accept the veteran. The Chief of Staff controls the consults that ‘leave the building’ and the Director has override authority. VHA is responsible for paying or not paying the bills. It is not uncommon for VA to be in arrears for 120 or more days, which is too burdensome for many private sector providers. For example, In rural southern Minnesota, where there is top-notch private sector medical care, Choice is not accepted because of the reimbursement rates and delays in payment. The community stops accepting veterans because they cannot afford the expensive delays in payment associated with Choice accounts. When VA fails timely Choice reimbursements, veterans are then billed. In many cases, collection agencies threaten to initiate legal actions on these overdue accounts. VHA leaders appear not to understand or are completely unaware of the ripple effect their failure to pay has on the financial integrity of veterans and their families.

Additionally, VA fails to track quality of care measures pertaining to Choice including point-of-care patient satisfaction, patient referral delays within Choice, liabilities, and timeliness of receipt of patient care records from any private providers for care given. There is no central VA data base identifying private providers who provide substandard care to VA patients and nothing to prevent those providers from working at a different VA facility in the future. When VA is unaware of a provider with serious issues but did not quite meet the level of reporting to the National Practitioner Data Bank or with issues that the private medical system chose not to report to the State Licensing Board or other entity. Though Choice, third party administrators (TPA) contractually are required to gather/report data regarding delays and other issues. However, TPAs is not providing this information and VA has not yet demanded the data.

Toxic Exposures and Environmental Hazards Research and Presumption:

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Agent Orange: A primary source of concern for veterans that have contacted WoA has been related to toxic exposures and environmental hazards. There are still so many Vietnam-era Veterans with Agent Orange related issues that have not been appropriately recognized because of the shortfalls in the research, such as Blue Water Navy. For example, eye cancers are a continuous issue that lack research support. VA continues to deny claims for disability benefits, which in turn blocks veteran from accessing care. As the Vietnam generation ages and has more complex needs for care, the arguments over probable correlations need to be resolved before there is no one left for the science to help.

Gulf War Illness: Although it has been more than 25 years since the US invaded Iraq, the mysteries of Gulf War Illnesses haunt veterans while perplexing VA. A July 2017 GAO report concluded that VA is still inappropriately denying veterans claims. It found an 80 percent denial rate, which is three times greater than any other type of claim denials. Plus, it also took VA longer to adjudicate these benefits. This delay means that sick veterans are not fully eligible for VA healthcare. VA has promised better training and to develop a new plan for research.

Fort McClellan: When the Veterans Disability Benefits Commission (VDBC) issued its report,10 it included the Service members (mostly women) from Ft. McClellan, AL in its recommendation for a new presumption framework. The VDBC made 20 recommendations for improvements to the VA presumption process, the creation of a scientific review board, and veteran health surveillance. Over 10 years later, the American Legion is still reporting on the “unknown toxic legacy” of Anniston and has resolutions that requires a toxic substance national research center, comprehensive examinations for environmental exposures, and improvement in these rules.11

Camp LeJeune: Due to the water contamination at the Marine Corps Base, Camp LeJeune, NC, increased reports of cancers in veterans and their families have been document over the last several decades related to the cleaning solvents in the water. Referring to the previous notes on Ft. McClellan, VA would be better situated to address these issues if they were to have a standardized process and scientific review board.

Burn Pit Exposures: Similar to previous generations of veterans, those who have served in Afghanistan and Iraq since 9/11 were exposed to a concoction of burning substances on military installations that has caused them to raise health concerns from cancers to respiratory and gastrointestinal disorders. Although VA denies conclusive research for these conditions and does not have a presumption for burn pits, it has established a registry. However, this is an area yet again that the VDBC recommendation could be informative and assistive to veterans’ wellness if implemented. A registry alone assists no one.

Research Waste, Fraud and Abuse:

10 VDBC. Honoring the Call to Duty: Veterans Disability Benefits in the 21st Century. October 2007.11 Olsen, K. the long shadow of Ft. McClellan. The American Legion Magazine. March 2018. Pgs. 22-28

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WoA has reviewed complaints related to the waste, fraud and abuse of research program funds that have gone to universities and other private sector partners. In these cases, VA failed to provide proper oversight of government funds or property and could not account for items issued to non-government researchers or other staff. Property that should have been returned to the government was not and funds unexecuted were not returned.

The OIG has conducted several investigations into VA research and development and has time and time again found mismanagement issues. For example, it investigated the development of a mobile application by VA and found that there were 80 potential contracts totaling over $1 billion and VA did not “pick and stick” to the line item appropriation, thereby executing funds without the proper congressional authorities and confusing technology and patient care funds. In another investigation, the OIG found that VA did not have proper safeguards with its data when sharing information with external entities, such as universities.

Considering these research deficits and the lack of VA’s ability to grant presumptive disability claims based on the above cited exposures, VA should immediately put forth a plan for research oversight and Congress should authorize VA to grant presumptions more broadly when a veteran’s claim involves a more likely than not toxic exposure given dates and areas of service.

Homeless Veteran Program Data:

VA administrators are intimidating VA employees to match homeless Veterans to housing that is grossly inadequate for the veteran and to underreport the number of homeless veterans who cannot maintain independent living. Whistleblowers report having been directed by administrators to change their homeless veteran count. They are using the HUD vouchers to get homeless veterans into apartments, but then do not have the ability to furnish or provide supplies for them. Many of these veterans are chronically mentally ill and need more supervision than can be provided in an apartment. The veteran fails to conduct appropriate hygiene, so neighbors complain to landlords who evict these veterans. The VA case manager should be showing these veterans as homeless, but instead are told to document these veterans as transferring and not to report anything until they get the veteran into new housing. VA employees believe that they are being directed to do this because VA wants to be able to use the funds that have been fenced for the homeless program to fund other expenditures, such as an expansion of the Choice Program.

Although the OIG has reviewed some issues related to the Homeless program (i.e.: Homeless Veteran Call Center and the Grant and Per Diem Program), it has not done a comprehensive review of the numbers VA reports as homeless. VA should be required to closely document the needs of each homeless veteran, match him or her with the appropriate type of facility, and enhance case manager assistance with ongoing issues while the veteran is transitioning from homelessness. The VA should better leverage its relationship with community partners to help obtain adequate provisions for these veterans, but still monitor success. Over $1 billion has been provided to community organizations via Supportive Services to Veterans Families (SSVF)

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grants, with little to no performance data. VA should be required to report data regarding the number of veterans placed in transitional housing and the number who subsequently leave and the reasons why they left housing. It should also collect and report SSVF outcome data.

Veterans Benefits Administration

Toxic Corporate Culture:

Often overlooked due to VHA scandals, VBA suffers from outdated leadership models and an environment that whistleblowers call “toxic and hostile towards change.” This toxic and entrenched “Command Climate” is at the root of many VBA problems, so WoA raises it today as the primary focus for redesign before any of its operational problems can be truly addressed.

For example, in 2016, a “Friday afternoon massacre” replaced the leadership team of VBA under Tom Murphy leaving the front office changed and reflecting what has been referred to as “Friends of Tom.” Notably top positions and temporary positions were given to leaders who have historically managed and moved funds, directed relationships with VSOs, and designated a known manager as Chief of Staff who has a reputation as ineffective. In an environment that targets whistleblowers and leaves little room for dissent, these actions were taken swiftly and without consideration for the impact to morale. This same pattern of behavior occurs throughout VBA to the lowest level of management at the Regional Offices. It is counter to any Organizational Development philosophy for success, especially related to Employee Engagement and Change Management. Every manager within VBA should be held accountable and should have a 360 review from top down and bottom up.

Whistleblowers suggest that VBA should focus on being an organization of choice and not to keep hiring, but to stop the exodus from its organization. It should value diversity and inclusion and lead the federal government in hiring and accommodating disabled veterans, especially those who have achieved success through Vocational Rehabilitation and Employment or GI Bill. However, disabled veterans are often targeted because of reasonable accommodations or leave requested for medical appointments in violation Executive Order 5396 and several Codes. If they are incapacitated on FMLA12, they are ordered back to work and charged as AWOL if they do not report in. Additionally, a comparison of rates of pay and bonuses between male and female employees would be indicative of the hostile work environment many female employees report.

Furthermore, WoA believes that the recalcitrant fiscal oversight is because VBA lacks a stringent Planning, Programming, Budgeting and Execution system. Thus, growth of the VA budget does not necessarily correlate to better outcomes for veterans and their families, just more opportunity for waste, fraud and abuse. The OIG investigations into the VBA showed it lacked accountability for the proper stewardship of funds.

12 Family Medical Leave Act

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It is our hope that a new USB will be empowered to make swift and immediate change that creates transparency, supports retention of personnel, and encourages discussion and analysis. Our veterans deserve an opportunity to be served by best in class innovative operations not the outdated status quo model in place today.

Compensation and Pension (C&P)

The C&P exam is still the cornerstone of the Disability Claims Rating process. Rarely does a Regional Office rate a claim without an exam regardless of how well developed a claim is or no matter what the veteran has certified. An exam is required. This even applies to transitioning Service members who might be found “fit for duty” but not “medically ready” to perform their military occupational specialty, so they are discharged with VA refusing to accept their conditional rating and requiring the newly minted veteran to file a C&P claim from the beginning. Then, these exams are conducted by providers with varying degrees of experience, training or knowledge of military service.

The same holds true for the Veteran Service Representatives (VSR) who rates those claims. VA reports that it can take 1-2 years to train a VSR, but the average VSR stays about 5 years. The deprivation of knowledge, skills and abilities at multiple touch points increases the likelihood for rating errors, missing or duplicate files, and overpayments. In one WoA case, for example, it took a Regional Office (RO) six months to get a claim “under control” and then several more months for the contractors (MSLA) to schedule exams, which it did erroneously and sent the veteran four different schedules for appointments further delaying benefits that took a year to receive. Contract providers have complained about these scheduling improprieties and inabilities to get information from MSLA or VA when needed. This leads whistleblowers to question why VBA wants to hire over 600 more people to double down on a process that is fraught with errors, mismanagement and ineffective in delivery timely and life-saving benefits to disabled veterans and their families.

Machine Learning Capabilities - Although VA has claimed to have automated its system, it has not truly made it computable. It has simply turned a paper record into a screen shot. Every year there are advances in machine learning and artificial intelligence that have improved healthcare and other institutional processes. VA should apply these tools and integrate the Disability Benefits Questionnaires (DBQ) with the VA Schedule for Rating Disabilities (VASRD), so that as providers click exam DBQs, the VASRD is key-word classified to match. In this way, a rating value could be generated in real time at the conclusion of the exam. The VSR would review and generate a rating letter. VSRs would then have more time for veterans and could act more like financial advisors then paper-pushers. However, this would require a sea change in culture for the VBA.

Hiring – For decades, VBA asks for more people, which has created an almost runaway cost on labor with promises of efficiency and transformative results in the future that never fully happen.

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VBA has now asked for an additional 605 hires to assist in reducing the backlog of claims but has not been able to explain in more certain terms how it would employ those people. VA cannot keep throwing money and people at its problems and demanded more efficiency from inexperienced workers who are more focused on production that quality. VBA reports that it loses about 55 staff every pay period.13 This means that about 110 trained/skilled people leave in droves every month, equating to approximately 1,430 employees a year. This would suggest that VBA has a 70% turnover rate a year in its appeals program, which is then backfilled by new/unskilled staff who can then take a year to train. VA should consider analyzing the retention data of federal employees who transfer into the VA or are direct hires from outside of government. It would be a good indicator and lead to areas of deeper analysis.

C-File Privacy Violations

Many veterans wrongly believe that their private information, which includes Personally Identifiable Information (PII) and Sensitive Personal Information (SPI) is protected by federal privacy laws, but at VA this belief could not be further from the truth. Veterans’ PII and SPI have more protection in the civilian sector because there are very real and serious consequences for privacy violations, but there appears to be very little recourse for veterans whose privacy is violated by government officials at VA if they even know this is occurring. According to the Center for Democracy and Technology, VA remains one of the top Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy offenders. The VBA is required by several regulations to develop, sustain, and retain audit records to supervise, analyze, and report on inappropriate access of information systems and develop the capability to monitor individual users. The VA Handbook states that information systems are required to create detailed audit logs that can help recreate a data security incident. Yet, in April 2015, the OSC Director, Carolyn Lerner, testified before Congress that the prevalence of privacy violations at the VA has become an epidemic. Inappropriate access of C-file information is often used in retaliation against whistleblowers. Managers who seek to discrete, intimidate, manipulate, marginalize, harass and bully employees will use PII and SPI to spread gossip among co-workers, embarrass employees before leadership and impugn their reputation and weaponize their medical care against them in official complaint proceedings with OSC, MSPB, EEOC or in federal court. Veteran employees report that their disability ratings have been changed and their vocational rehabilitation status discriminated against because of these violations.

In April 2016, the OIG documented that VBA had not integrated proper audit logs into the Veterans Benefits Management System (VBMS). Without accurate audit logs, Information Security Officers cannot effectively identify, report, and react to data security issues. The OIG discovered that VBA cannot detect if an employee improperly accessed a claim and that VBMS was not compliant with audit log procedures and regulations. Further, OIG reported that the security vulnerability occurred because VA did not create system requirements in VBMS to 13 According to Mr. Jamie Manker at February 15, 2018, House Committee on Veterans Affairs hearing. (https://www.c-span.org/video/?440979-1/veterans-affairs-secretary-shulkin-testifies-fiscal-year-2019-budget.)

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assure audit logs could accurately pinpoint security violations. It assumed that the audit log functionality was already built into VBMS as it was for the legacy claims processing systems. This ineffective outdated security system does not allow for proper sensitivity control because managers can authorize other managers or employees, depending on the sensitivity level, to work on a C-file classified at a higher sensitivity level. Furthermore, VA leadership is misrepresenting the capabilities of the Restricted Access Claim Center (RACC) at the St. Paul Regional Office (and other RACC locations). It appears the RACC only restricts people from making changes to a C-file, but it can still be inappropriately viewed.

It is every veteran’s right to know who has been viewing their private information. However, when veterans ask for the audit log, it is often incomplete or redacted. They also report that these requests must be made via Freedom of Information Act (FOIA), which can take months or years to get a response. Veterans may have to submit multiple FOIA requests when VA claims to have not gotten or lost them. Veterans should not have to go through a cumbersome process to know who has accessed their files. Veterans should be able to view that information via eBenefits or through another portal and be able to defend themselves against these privacy violations.

Office of Economic Opportunity (OEO):

It is our hope that due consideration will be given to legislation seeking to establish a fourth administration within VA that promotes empowerment and economic opportunity. A 4th administration proposal has been introduced multiple times without success. Much of that has been due to the desire to consolidate the Department of Labor (DOL) Veterans Employment Program into VA. The current proposal avoids such drastic measures and instead seeks to promote proactive and supportive benefits for purposes of achieving independence and economic stability, which is more involved than just getting a job. For years VBA has been redirecting funds away from OEO programs in an effort to proactively prevent a 4th administration from being established. The use of funding intended for transitioning Service members, service-connected veterans, and veterans seeking to improve their economic future has been consistently decremented or eliminated to use funds for VBA claims backlog strategies, which primarily rely on overtime, new hires, and technology promising future gains without much results. Establishing a 4th Administration could begin the overhaul of VBA by refining scope of work and redirecting program and pecuniary oversight. Breaking up the VBA conglomerate that has been fraught with waste, fraud, and abuse could add more transparency and accountability.

Fraud and Scams Against Veterans:

Although WoA recognizes that it is not inherent within the VA mission to protect veterans from fraud and scams that could cost them their benefits, it suggests that it could be assistive in educating veterans against these unscrupulous tactics. For example, WoA has had multiple complaints from veterans related to timeshare deceit and bait and switch tactics, which are defined by the FBI as fraud for profit. Often elderly veterans are mentioned as being targeted by

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the Timeshare Advocacy Group, TM which fights for active duty and retired military who fear losing their security clearances, careers, homes or other assets.  Foreclosures and financial distress because of these misrepresented investments happen every day to elderly disabled veterans and their families. In the past, VA has cooperated with the Consumer Financial Protection Bureau (CFPB) over mortgage and other loan scams that caused financial hardships for veterans. Home loans and timeshare loans are identical as both are reported as foreclosures. WoA asks that Congress consider a role for the VBA Employment and Economic Initiative (EEI) in cooperation with CFPB to educate and protect veterans from unscrupulous financial predators and fraudulent practices. This would be a mission for a new OEO as well.

Recommendations Summary:

Improve VA Contracting and Procurement Oversight with revised standards and transparency. Detail implementation plans related to OIG and GAO reviews and report timeline compliance.

Require OAWP to report how it is assisting whistleblowers. It should establish an independent ad hoc board to re-adjudicate the current cases before these bodies and ensure that termination, suspension or other adverse actions against whistleblowers were made in good faith, if not, the whistleblower should be immediately reinstated with backpay.

Integrated Choice, Fee Basis, and Community Care business lines and track veteran satisfaction and health outcomes along with provider performance.

Require VA to have a standardized transparent and nonpunitive sentinel event review process and report findings to Congress.

Require the development of a list of complex medical care that automatically requires that patient be assigned to a primary care physician, not an NP or PA.

Reduce the patient panel sizes of physicians to reflect patients with higher medical acuities and increase the panel sizes of NPs and PAs to reflect patients with low acuity.

Mandate that VA report on the number of MD/DOs, NPs, and PAs filling primary care provider roles at each site and require and analysis to determine if that mix of primary care provider types is adequate to meet patient care needs at each facility’s. Identify gaps.

Mandate VA set national standards and training requirements for triage nurses in primary care clinics, emergency departments and mental health clinics to ensure a consistent, high quality triage evaluation.

Authorize a Center of Excellence for Pain Management. Allow VA to partner with DoD and develop implementation plans based on the Army Surgeon General Task Force report and other recommendations made by whistleblowers for a more comprehensive approach to treating pain across multiple disciplines

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Hold a hearing to review the OIG and GAO reports related to mental health and suicide prevention and investigate how appropriations are aligned to risk factors and program outcomes along with the implementation of previous legislation.

Authorize VA to research emerging technologies that could better assess and mitigate TBI.

Create a scientific review board process to address the range of toxic exposures and environmental hazards as recommended by the VDBC.

Authorize VA to grant presumptive disability awards when toxic exposures are more likely than not involved in known areas.

Require VA to report its enforcement of research portfolio funds and account for equipment and data it has shared with external entities.

Direct the OIG to review the homeless veteran data since this data is the basis of VA policies and programs and to ensure that the data is informing programmatics and appropriately aligns funds.

Conduct in-depth review of VBA leadership and management accountability. This review should pay particular attention to retention rates and discrimination cases. Rates of pay and bonuses based on gender and retaliation against disabled veterans should be reported. Develop a strategic plan for VBA to be an organization of choice that addresses its retention rates, diversity and inclusion, and whistleblower protections.

Standardize training for VA and contracted C&P exam providers, ensure knowledge, skills and abilities with military related medical conditions.

Require VA institute computable DBQs that automatically match with the VASRD to key word classify ratings in real time.

Require VA develop a Planning, Programming, Budgeting and Execution system across VBA to track allocations and expenditures.

VA must fix the security deficient within VBMS and add controls over access to C-files. Audit logs should be made readily available to the veteran so that they can access timely reports identifying anyone who has accessed their medical or claims folders without a FOIA.

Establish a OEO as a 4th Administration focused on veterans’ economic stability and work with CFPB to educate veterans against scams that target them and their pensions.

----------Jacqueline Garrick is a former Army social work officer who has worked in the Departments of Veterans Affairs and Defense as well as for the House Veterans Affairs Committee. She is a

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subject matter expert in mental health and program evaluation. She is an advocate for disabled veterans and the use of peer support to improve resilience in traumatized populations. She founded Whistleblowers of America in 2017 based on her experience reporting attempted fraud with DoD Suicide prevention funds.

Whistleblowers of America is a 501C3, EIN 82-3989539. Its mission is to provide peer support to employees and veterans who have reported wrongdoing and experienced retaliation.

Contact:Jacqueline Garrickjackie@whistleblowersofamerica.org202-309-1870

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