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89–377 2015

VA WHISTLEBLOWERS: EXPOSING INADEQUATE 

SERVICE PROVIDED TO VETERANS AND ENSURING 

APPROPRIATE ACCOUNTABILITY 

HEARING 

BEFORE THE

COMMITTEE ON VETERANS’ AFFAIRS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

TUESDAY, JULY 8, 2014 

Serial No. 113–78 

Printed for the use of the Committee on Veterans’ Affairs 

( 

Available via the World Wide Web: http://www.fdsys.gov 


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COMMITTEE ON VETERANS’ AFFAIRS 

JEFF MILLER, Florida, Chairman 

DOUG LAMBORN, Colorado 

GUS M. BILIRAKIS, Florida, Vice-Chairman 

DAVID P. ROE, Tennessee 

BILL FLORES, Texas 

JEFF DENHAM, California 

JON RUNYAN, New Jersey 

DAN BENISHEK, Michigan 

TIM HUELSKAMP, Kansas 

MIKE COFFMAN, Colorado 

BRAD R. WENSTRUP, Ohio 

PAUL COOK, California 

JACKIE WALORSKI, Indiana 

DAVID JOLLY, Florida 

MICHAEL H. MICHAUD, Maine, Ranking 

Minority Member 

CORRINE BROWN, Florida 

MARK TAKANO, California 

JULIA BROWNLEY, California 

DINA TITUS, Nevada 

ANN KIRKPATRICK, Arizona 

RAUL RUIZ, California 

GLORIA NEGRETE MCLEOD, California 

ANN M. KUSTER, New Hampshire 

BETO O’ROURKE, Texas 

TIMOTHY J. WALZ, Minnesota 

JON TOWERS, Staff Director 

NANCY DOLAN, Democratic Staff Director 

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records 

of the Committee on Veterans’ Affairs are also published in electronic form. The printed 

hearing record remains the official version. Because electronic submissions are used to 

prepare both printed and electronic versions of the hearing record, the process of converting 

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process 

is further refined. 


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C O N T E N T S 

Page 

Tuesday, July 8, 2014 

VA Whistleblowers: Exposing Inadequate Service Provided to Veterans and 

Ensuring Appropriate Accountability ................................................................. 1 

OPENING STATEMENTS 

Hon. Jeff Miller, Chairman ..................................................................................... 1 

Prepared Statement ......................................................................................... 84 

Hon. Mike Michaud, Ranking Minority Member .................................................. 3 

Prepared Statement ......................................................................................... 86 

Hon. Corrine Brown ................................................................................................

Prepared Statement ......................................................................................... 87 

Hon. Gloria Negrete McLeod ..................................................................................

Prepared Statement ......................................................................................... 88 

WITNESSES 

Jose Mathews, M.D., Former Chief of Psychiatry, St. Louis VA Health Care 

System ................................................................................................................... 5 

Prepared Statement ......................................................................................... 88 

Christian Head, M.D., Associate Director Chief of Staff Legal and Quality 

Assurance Greater Los Angeles VA Health Care System ................................ 8 

Prepared Statement ......................................................................................... 97 

Katherine Mitchell, M.D., Medical Director, Iraq and Afghanistan Post-Deployment Center Phoenix VA Health Care System .......................................... 10 

Prepared Statement ......................................................................................... 113 

Mr. Scott Davis, Program Specialist, VA National Health Eligibility Center .... 11 

Prepared Statement ......................................................................................... 140 

The Hon. Carolyn Lerner, Special Counsel, Office of Special Counsel ............... 53 

Prepared Statement ......................................................................................... 142 

Accompanied by: 

Mr. Eric Bachman, Deputy Special Counsel for Litigation and Legal 

Affairs, Office of Special Counsel 

James Tuchschmidt, M.D., Acting Principal Deputy Under Secretary for 

Health, Department of Veterans Affairs ............................................................ 54 

Prepared Statement ......................................................................................... 149 

Accompanied by: 

Edward C. Huycke, M.D., Deputy Medical Inspector for National Assessment, Office of the Medical Inspector, Department of Veterans 

Affairs 

MATERIALS SUBMITTED FOR THE RECORD 

Letter to Hon. Miller From DVA ............................................................................ 152 

Letter to AFGE From DVA Inspector General ...................................................... 154 

Letter to President Obama From Hon. Carolyn Lerner ....................................... 157 


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VA WHISTLEBLOWERS: EXPOSING INADEQUATE SERVICE PROVIDED TO VETERANS 

AND ENSURING APPROPRIATE ACCOUNTABILITY 

Tuesday, July 8, 2014 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON VETERANS’ AFFAIRS, 

Washington, D.C. 

The committee met, pursuant to notice, at 7:33 p.m., in Room 

334, Cannon House Office Building, Hon. Jeff Miller [chairman of 

the committee] presiding. 

Present: Representatives Miller, Lamborn, Bilirakis, Roe, Flores, 

Runyan, Benishek, Huelskamp, Coffman, Wenstrup, Walorski, 

Jolly, Michaud, Takano, Brownley, Titus, Kirkpatrick, Ruiz, 

Negrete McLeod, Kuster, and O’Rourke. 

Also present: Representative Price. 

OPENING STATEMENT OF CHAIRMAN JEFF MILLER 

The CHAIRMAN. Good evening, everybody. This hearing will come 

to order. I want to welcome everybody to tonight’s hearing entitled 

‘‘VA Whistleblowers: Exposing Inadequate Service Provided to Veterans and Ensuring Appropriate Accountability.’’ I would also like 

to ask unanimous consent that Representative Tom Price, from the 

great State of Georgia, be allowed to join us here on the dais and 

participate in tonight’s hearing. Without objection, so ordered. Oop, 

I think I heard an objection. 

Tonight we’ll hear from a representative sample of the hundreds 

of whistleblowers that have contacted our committee, seeking to 

change the VA to improve patient safety and better serve veterans 

who have served our great Nation. We’ll also hear from the Office 

of Special Counsel regarding its work protecting VA whistleblowers 

and the vital information that they provide. Representatives of VA 

will also be here to answer for the Department’s reprisals against 

whistleblowers and its continuing failure to abide by its legal obligation to protect employee rights to report waste, fraud, and abuse 

and mismanagement to the Inspector General, to the Counsel, to 

Congress, and to this committee. 

It’s important to emphasize that the national scandal regarding 

data manipulation of appointment scheduling did not spring forward out of thin air at the Department of Veterans Affairs. Deceptive performance measures that serve as window dressing for automatic SES bonuses have been part of the organizational cesspool 

at the Department for many, many years. Instead of being a customer-driven Department dedicated to veterans, the focus instead 


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has been on serving the interests of the senior managers in charge. 

The manipulation of data to gain performance goals is a widespread cancer within the VA. We have often heard that VA is a 

data-rich environment, but when data is exposed as vulnerable to 

manipulation it cannot be data that is trusted. 

Until recently, VA would continue to trot out the tired canard 

that patient satisfaction exceeds the private sector. That may be 

true at a few select VA centers. However, as our colleague Mr. 

O’Rourke demonstrated through local polling, such results have 

been over generalized. Moreover, during the course of the past year 

this committee has held a series of hearings showing a pattern at 

VA of preventable patient deaths across the country, from Pittsburgh to Augusta, to Columbia, to Phoenix. VA’s satisfaction results are refuted by these tragic outcomes. 

In every one of these locations whistleblowers played a vital role 

in exposing these patient deaths at the Department. Whistleblowers serve the essential function of providing a reality check on 

what is actually going on at the Department. At great risk to themselves and their families, whistleblowers dare to speak truth to 

power and buck the system in VA designed to crush dissent and 

thereby alter the truth. 

Tonight we’re fortunate to have three distinguished physicians 

testify with regard to their experiences in the VA. We’ll also hear 

from a conscientious program manager in VA’s National Health 

Eligibility Center who will show that the disease of data manipulation may have spread to the initial eligibility determinations for 

medical benefits. None of these whistleblowers lost sight of the essential mission of the VA—that mission to serve veterans. They understand that people are not inputs and outputs on a central office 

spreadsheet. They understand that metrics and measurements 

mean nothing without personal responsibility. Unlike their supervisors, these whistleblowers have put the interests of veterans before their very own interests. 

Unfortunately, what all of these whistleblowers also have in common is the fear of reprisal by the Department. They will speak of 

the many different retaliatory tactics used by VA to keep employees in line. Rather than pushing whistleblowers out, it is time that 

VA embraces their integrity and recommits itself to accomplishing 

the promise of providing high quality health care to America’s veterans. 

In order to make sure there is follow through at VA, I have 

asked my staff to develop legislation to improve whistleblower protections for VA employees, and I invite all the members of this 

committee to work with us towards the end. 

With that, I now yield to my good friend and ranking member, 

Mr. Michaud, for any opening remarks that he may have. 

[THE PREPARED STATEMENT OF CHAIRMAN JEFF MILLER APPEARS

IN THE APPENDIX] 


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OPENING STATEMENT OF MIKE MICHAUD, RANKING 

MINORITY MEMBER 

Mr. MICHAUD. Thank you very much, Mr. Chairman. 

This committee has held many hearings over the last years on 

problems with access to VA health care. At each of these hearings, 

problems were disclosed and the VA promised to improve, but little 

has changed. VA is widely known to have a culture of denying 

problems and not listening to feedback, be it from Congress, veterans, or its own employees. 

The Department of Veterans Administration has had a reputation as being intolerant of whistleblowers. So far in this fiscal year, 

nearly half of the matters transmitted to agency heads by the Office of Special Counsel, 7 out of 15 involved the VA. According to 

the OSC, it currently has 67 active investigations into retaliation 

complaints from VA employees and has received 25 new whistleblower retaliation cases from VA employees since June 1 of 2014. 

A recent New York Times article stated that within the VA there 

was a ‘‘culture of silence and intimidation,’’ end of quote. Acting 

Secretary Gibson recently stated that he was deeply disappointed, 

not only in the substantiation of allegations raised by the whistleblowers, but also in the failures within the Department to take 

whistleblowers’ complaints seriously. 

Within VHA, the problem of intimidation and retaliation may be 

magnified by what some consider a protective culture of the medical profession. It is often thought to be against the code to point 

out colleagues’ mistakes or where a nurse or attendant is told it is 

not appropriate to question a physician or surgeon. The natural 

tendency is to close ranks, to deny that problems exist or mistakes 

were made. 

So after we listen to the testimony before us this evening from 

the whistleblowers, the Office of Special Counsel, and the VA, will 

anything change after we hear what the whistleblowers have to 

say, and how do we fix this culture and encourage all VA employees to step forward to identify problems and work to address those 

problems? 

Changing a culture is not easy. It cannot be done legislatively 

and it cannot be done by throwing additional resources at it. Talk 

is cheap. Real solutions are hard to find. It is clear to me that the 

VA as it is structured today is fundamentally incapable of making 

real changes in the culture. 

I note that Acting Secretary Gibson announced today that he was 

taking steps to restructure the Office of Medical Inspector by creating a, quote, ‘‘strong internal audit function which will ensure 

issues of the quality care and patient safety remains at the forefront,’’ end of quote. This is an improvement, but it raises additional questions regarding how these restructures will better enable OMI to undertake investigations resulting from whistleblowers’ complaints forwarded by the OSC, or how will it also have 

the authority to ensure that medical actions will be taken to the 

appropriate components of the VA? 

Time and time again, as the June letter from OSC demonstrates, 

the VA found fault, but determined that these grave errors did not 

affect the health and safety of veterans. Anyone reading the speVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 Y:\89377.TXT PAT

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cifics of any of these cases will find that this harmless error conclusion, as stated by the OSC, to be a serious disservice to the veterans who received inadequate patient care for years. I agree that 

the OSC June 23 letter, and it quotes, ‘‘This approach has prevented the VA from acknowledging the severity of the systematic 

problems and from taking the necessary steps to provide quality 

care to veterans,’’ end of quote. 

We all seem to have some goals this evening. We all want the 

VA employees to feel comfortable raising problems and having 

them addressed without fear that raising their voices will mean the 

end of their careers. The VA has stated that it wants to make fundamental changes in its culture so that the workforce intimidation 

and retaliation is unacceptable. Talk is cheap. Real change is difficult. 

I would propose that the very first order of business at the VA 

is to take accountability seriously. If any VA employee is shown to 

have intimidated or retaliated against another VA employee, then 

that employee should be fired. The VA should have zero tolerance 

for policies that would harm whistleblowers and intimidate whistleblowers or retaliate against whistleblowers. As I see it, effective 

leadership and real accountability is the only way to begin the 

process of institutional changes, and I hope tonight is the beginning of that change. 

And with that, Mr. Chairman, I yield back the balance of my 

time. 

The CHAIRMAN. Thank you very much to the ranking member. 

[THE PREPARED STATEMENT OF HON. MIKE MICHAUD, APPEARS IN

THE APPENDIX] 

The CHAIRMAN. Thank you very much to the Ranking Member. 

I would ask that all members would waive their opening statements, as is the custom of this committee. 

Thanks to the witnesses that are here at the witness table tonight. Our first panel that we’re going to hear from is Dr. Jose 

Mathews, former Chief of Psychiatry at the St. Louis VA Health 

Care System; Dr. Christian Head, Associate Director, Chief of 

Staff, Legal and Quality Assurance, at the Greater Los Angeles VA 

Health Care System; Dr. Katherine Mitchell, Medical Director for 

the Iraq and Afghanistan Post-Deployment Center at the Phoenix 

VA Health Care System. 

And at this time I’d like to introduce our colleague, Dr. Price, to 

briefly introduce his constituent, who will be the fourth witness on 

the panel this evening. 

Mr. PRICE. Thank you, Mr. Chairman. I want to thank you and 

the ranking member for allowing me to offer this introduction. This 

is a remarkably important topic, and I commend the committee for 

the work that you’ve done. 

As a physician, I worked at the VA hospital in Atlanta, as a matter of fact, for a number of years during my training, and I know 

how important it is to have honest and real information for our veterans to honor their service, which is why I am so very pleased to 

offer Scott Davis, Mr. Davis, who will be on the panel today. He 

is a resident of my district. He is a graduate of Morehouse College. 

His father served in Vietnam. 


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Mr. Davis is a program specialist at the VA’s National Health 

Eligibility Center in Atlanta. He’s been in contact with my office 

for a number of months outlining his concerns. He’s come forward 

with the allegations and concerns that he has in a very brave and 

courageous manner. He’s put his career and reputation on the line, 

and I have no doubt that his testimony tonight will help shine a 

light on the situation at hand. We must know the facts on the 

ground in full before we can truly begin to fix the untenable situation at the VA. 

So I welcome Mr. Davis, and I thank you for allowing me to join 

you for this introduction. 

The CHAIRMAN. Thank you very much, Dr. Price. We appreciate 

you joining us here this evening. 

I appreciate the testimony of the witnesses today and look forward to working with all of you to find a solution for our veterans. 

I would ask the witnesses if you would please rise. Raise your 

right hand. 

[Witnesses sworn.] 

The CHAIRMAN. Thank you. Please be seated. All of your complete written statements will be entered into the record. 

And, Dr. Mathews, you are now recognized for 5 minutes. 

STATEMENT OF JOSE MATHEWS, M.D. 

Dr. MATHEWS. Honorable Chairman and distinguished members 

of the committee, I am honored to appear before you today to speak 

about my experiences while serving in the capacity as the Chief of 

Psychiatry with the Department of Veterans Affairs in St. Louis, 

Missouri, and in the capacity of the detail when I was removed 

from this position. I just want to very briefly outline the goals I 

had when I took this position as the Chief of Psychiatry, leaving 

my full-time faculty position at Washington University. 

I had very simply wanted to create the very best care possible 

with the resources I had. And very soon I realized that the metrics 

I had, that the VA was putting out, was not reflecting what I was 

actually seeing. I had made it a point that I’d review every veteran 

complaint, and the majority of the veteran complaints I had its had 

to do with their inability to obtain care at a reasonable time, the 

long wait times, having difficulty even contacting the clinic to 

schedule an appointment. 

So I started out with a very simple question as to how busy are 

we really at the outpatient clinic. And the answer I got was not 

very good. I got the answer that I verified that the psychiatrists 

were only spending approximately 3.5 hours in direct patient care. 

I could not account for the rest of their time. I verified this. I put 

this data transparently as prospective data where any psychiatrist 

could challenge me and ask me question whether that was accurate 

or not, and I did not get one valid question. 

So I knew that the data was accurate, I discussed this with the 

Chief of Staff, and I wanted to change this. There were two things 

that I wanted changed. One was that the veteran has easy access 

to care, timely access to care. And the second was that no veteran 

would be turned away if they come to the clinic. I had a very sad 

veteran complaint about a disabled veteran who had requested his 


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friend to drive because he does not drive. He drove approximately 

an hour and a half to come to the clinic. He had two requests. He 

wanted to see his provider earlier because he was not doing well 

and he wanted his medications refilled. 

Unfortunately, that veteran had neither of these requests met. 

He was sent away with another appointment 48 days later, and his 

medications were not refilled. And just before this meeting I 

checked, and that veteran, unfortunately, is lost to follow-up, has 

not come back to the clinic since last May. And his description of 

that event includes how disappointed and how upset he is at the 

VA for not providing him care. 

So that was the context of how I started out. I discovered that 

the physician time was not being utilized properly. There was long 

wait times. And one of the metrics that’s very important is, especially in mental health, is engagement and care or the dropout 

rate, and what I found was there were 60 percent of the veterans 

were not coming back for their visits in the outpatient setting. So 

there was 60 percent attrition rate. 

So there were only four pieces of information that I needed to 

provide very good care. One was the wait time to care. The second 

was the utilization of expertise or what amount of time does a physician actually expend in direct patient care. The third was the retention in care, how many veterans actually follow up with care or 

dropping out of care. And the fourth metric, that was not existent, 

is the veteran’s satisfaction with care. 

Like Chairman Miller talked about these surveys not being complete and may not be reflective of all places, I wanted the survey 

to be a complete set. So I talked to some donors who I knew from 

Washington University, and they pledged $60,000 over 2 years to 

institute a real time veteran satisfaction survey. So I had the contract, the educational contract for iPads, I had logged in people to 

program valid questionnaires in it, and my intent was that while 

a veteran is waiting in the waiting area to be seen would be able 

to complete this questionnaire using touch screens, which would be 

automatically compiled, and I would have information on whether 

a particular clinic or a particular healthcare professional I need to 

focus on. 

So this last bit was very concerning to the staff, and shortly after 

I made these disclosures, including two avoidable deaths, that I 

wanted root cause analysis on and an inpatient suicide attempt 

while the joint commission was reviewing our hospital, which was 

completely covered up, and I did not go along with that. So very 

shortly I was put on detail. I was told that there would be an administrative investigation and that I was put to compensation and 

pension, doing compensation and pension evaluations. 

Now, I took this job, also it was dealing with veterans, I’d filed 

the complaint with OSC, and while they were processing my complaints I took this very seriously, to evaluate the veterans for 

whether they had compensate mental disorders related to their 

service. And what I found again here was that in many instances 

the veteran was not even heard properly. I had doubts whether the 

prior evaluation report was the same veteran or not, and this was 

a serious concern, so I actually started to look at their IDs again 

to make sure that this was not some other person. 


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And the problem here was that the veterans did not have enough 

time to explain their situation. It was a hurried, conveyer belt-like 

system where I was specifically told that I was spending too much 

time with the veteran, that I should hurry up and see the veteran 

and just check a few boxes in my evaluation because it’s meant for 

some rater somewhere to rate the disability. But that’s not how I 

saw my job, and I think that’s not the right way to do it. The three 

competency to be accomplished in these evaluations, because these 

are disability evaluations: You have to make sure that the veteran 

is heard properly, and the second thing is that I review the prior 

records properly to make sure that I capture a full history, and 

then the third is to make sure that my report reflects some of the 

inconsistencies in the record and I speak to it, so that the very next 

person, if it becames an appeal issue, can determine how I made 

my decision. 

Now, there were a few egregious errors that were there, and that 

really bothered me, and as I was detailed under primary care. So 

I wrote to the Chief of Primary Care recently about these examples, about why this was really unfair to the veteran and how it 

affected the life of the veteran. And just 2 weeks ago, on the 26th 

of June, I’m detailed now to another place. 

So from my perspective, I have always put the veterans’ interests 

first, and I have disclosed, I have disclosed the wrongdoings that 

I found promptly to the Chief of Staff and to the Chief of Mental 

Health with the expectation that they would address it. And what 

I have found is that nothing has really changed. As late as June, 

just 2 weeks ago, the response to my finding about these evaluations that were not done properly was to just detail me elsewhere. 

So this seems to be an ongoing practice. When it’s detailed I 

don’t have any responsibility of the Chief of Psychiatry. That’s the 

position I accepted. Two people who I really worked hard on recruiting, both excellent psychiatrists, one trained at Hopkins, the 

other at Harvard, they both declined to join the VA after I had to 

disclose that I’m no longer the chief, I’ve been removed. 

So there’s a sense of mission that’s lacking, and I’m really hoping 

that this committee with its powers will take aggressive actions to 

really make sure that this retaliation stops and that the people responsible are held accountable, because really, with the data being 

so cooked up and so unbelievable, it’s extremely important that, 

while we work on data integrity, to make sure that the data reflects reality, it’s extremely important that people step forward and 

are able to speak the truth and talk about what’s really happening 

at the patient interaction level. I’m really hoping that this committee would do that, and I’m really honored that I have this opportunity to be able to answer questions and to be here. 

The CHAIRMAN. Thank you, Dr. Mathews. We’ll have an opportunity, each of us, to ask questions and get into specifics a little 

bit later on. 

[THE PREPARED STATEMENT OF DR. JOSE MATHEWS, APPEARS IN

THE APPENDIX] 

Next I’d like to recognize Dr. Head for 5 minutes. 


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STATEMENT OF CHRISTIAN HEAD, M.D. 

Dr. HEAD. Thank you for inviting me to testify today. I’m honored, Congressman. And I think it’s a very important topic, our veterans, and we shouldn’t lose focus of that. I’m Associate Director/ 

Chief of Staff at the West Los Angeles VA Hospital. I’m very proud 

of my position, and I can’t think of a better job than serving our 

veterans. 

But retaliation is alive and well across our country, especially 

within the VA Administration. My first encounter was a number of 

years ago. I was subpoenaed by the Inspector General to investigate time card fraud involving two surgeons in my area. I was 

among close to 30 individuals who gave testimony. I gave honest 

and true testimony. And during that testimony I said I feared retaliation, and I outlined how I felt they would retaliate against me. 

Every aspect I outlined came true. The person who did the deposition was Inspector Solomon from the Inspector General’s Office, 

and she promised I would be protected both from the State and 

Federal Government. Three months after they came out with the 

final results, one of the individuals was paid back a year’s salary 

to the Federal Government and resigned. Another individual who 

they recommended immediate termination was allowed to stay in 

her supervisory role. 

There was an end-of-the-year party because we’re affiliated with 

a university that’s nearby. At that party, this slide was shown. 

[Slide] 

Dr. HEAD. I know. That actually is me. I’m much younger back 

then, and I had hair. But you see I’m flipping the bird, and it says, 

‘‘If all else fails, call 1–800–488–VAIG.’’ In front of close to 300 individuals, I was labeled a rat. I was labeled the person who ratted 

out this person. 

The slide that followed this is so heinous that I can’t even show 

or discuss it today. I could discuss it under subpoena. That person, 

by the way, is still in the supervisory role at the VA. No apology, 

nothing. 

I somehow survived that. Retaliation has been relentless. The 

problem my retaliators have is that I think the VA and the veterans deserve far better. No matter what happens to me, I think 

the focus still should be on the veterans of this country. 

I somehow survived that process, and again I was retaliated 

again later when I gave my opinion on the investigation of a physician who was wrongly terminated. I was asked to change my testimony. I stopped getting paid for two weeks. And because of a number of other factors, my house went into foreclosure. I didn’t lose 

my house, but the harm it causes the family members of Federal 

workers who are being retaliated against cannot be measured. I 

have two young girls who I would be proud if they decided to join 

the Armed Forces or even work for the VA. 

I think the VA has the potential to be one of the finest institutions in the world. We have seen certain aspects. The pharmacy 

cannot be matched. It’s one of the best in the world. Very efficient. 

There are many different things that are efficient within our system, but what we should ask ourselves. When someone came up 

with the idea of seeing a veteran in 14 days, that actually sounded 


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like a good idea, that a veteran should be seen promptly. What we 

should be questioning is, if we made a mistake and somehow overloaded the system, how come people’s names disappeared off lists? 

How come hundreds of thousands of veterans electronically no 

longer existed? That should be the question. 

Retaliation exists because there’s a culture. This culture of retaliation, that’s really the cancer to the Veterans Administration. 

Most physicians and nurses and people who work in the hospital 

are disgusted. Morale is extremely low. People come up to me all 

the time and say, did that happen here? People care. When I heard 

some of the testimony from the Phoenix VA, it was gut-wrenching, 

I couldn’t sleep. And I believe there’s a lot of people within the VA 

system that feel the same way. 

But there exists a cancer within leadership, a few individuals 

that perpetuate this idea that we should be silent, that we 

shouldn’t stand up and do the right thing and be honest. Everyone 

makes mistakes. But when you make a mistake and you try to conceal it, that is really the question we should be asking. Who are 

these individuals who would alter data and hide the truth and prevent patient care? 

I’ve been receiving text messages all day from veterans saying, 

be careful, Dr. Head, we don’t want to lose you as a surgeon. Be 

careful, something might happen to you. If you get labeled as a 

whistleblower, oh, my God, they’ll take you out. I’m not afraid to 

be taken out. I do hope if I am taken out someone will take care 

of my family. But I think people need to speak up. And we 

shouldn’t be isolated, ostracized. 

And the level of defamation, you notice that every time there’s 

a whistleblower there’s usually an email that follows: Well, this 

person is not getting a bonus and so they’re upset. Or this person 

didn’t get the raise they wanted, so they can be suspect. Or this 

person didn’t do this. They always defame. They defame. They isolate. Usually they transfer you to another position. Why? Because 

they’re slowly building a case, if they don’t have one already, to say 

that you’re crazy, that you’re not being truthful. 

And I would hope—I apologize for running over—I would hope 

that—I’ve given you close to 176–276 pages, I think, of evidence 

and a number of other statements of other individuals that would 

be helpful in trying to improve the system—I would hope—and especially the press, I will challenge you also to be a real reporter 

and actually report the truth—but also—not to insult the reporters—and also the Congressmen and Congresswomen, this is very 

important, that we try to focus on what’s really important here, 

and that’s the veterans of this country. 

Thank you. 

The CHAIRMAN. Thank you very much for your courage, Dr. 

Head. 

[THE PREPARED STATEMENT OF DR. CHRISTIAN HEAD, APPEARS IN

THE APPENDIX] 

The CHAIRMAN. Dr. Mitchell, you’re recognized for 5 minutes. 


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STATEMENT OF KATHERINE MITCHELL 

Dr. MITCHELL. Good evening. I am deeply honored by the committee’s invitation to testify tonight. 

As a Phoenix VA employee, I have suffered retaliation for years 

for routinely reporting health and safety concerns. My written testimony details some of that retaliation and the devastating effects 

on patient care. In addition, section 4 and section 5 of my written 

testimony outline specific tactics that the VA uses to suppress 

whistleblowing and also to retaliate against anyone who speaks up 

within its ranks, even without whistleblowing. The VA, in my opinion, has routinely intimidated any employee who brings forth information that is contrary to the public image that the VA wishes to 

project. 

In 2013, I submitted a confidential OIG complaint regarding the 

life-threatening issues within the Phoenix VA system. Approximately 10 days after the national VA received my report I was 

placed on administrative leave for a month. I was subsequently investigated for misconduct because I had provided limited amounts 

of patient information through the confidential OIG channel in 

order to support my allegations of the suicide trends and the facility’s inappropriate response to them. Eventually I would receive a 

written counseling stating that I violated a specific patient policy, 

but to this day my human resources department refuses to tell me 

the name of the policy I violated. 

This is relatively minor retaliation considering what happened 

during my last 3 years as Medical Director in the Emergency Department. During that time we were grossly understaffed in terms 

of physicians and nurses. In addition, there was insufficient ancillary staffing to do basic items such as wash beds, answer telephones, deliver patients, transport labs. As a result, doctors and 

nurses were routinely pulled away from direct patient care in order 

to perform these extra duties. 

When the number of patient visits increased greatly to our ER, 

the deficiencies became obvious. The actual number of mistakes, as 

well as near misses, in our nursing triage skyrocketed. Symptoms 

such as stroke, heart attack, pneumonia, blood infections, and 

other serious medical issues were routinely missed by inexperienced triage nurses or by seasoned triage nurses who were simply 

overwhelmed by the flood of patients that were hitting our ER. 

I started reporting the cases of actual mistakes or near misses 

to the facility chain of command. In the process of reporting hundreds of these, approximately 20 percent of the ER nurses would 

retaliate against me. They would stop doing my orders for patients. 

They would refuse to answer questions in the nurses station. They 

would not give me verbal reports on patients that were placed in 

rooms. 

Administration was made aware of this and yet declined to intervene to stop this behavior that was obviously interfering with my 

care for patients. In addition, they ignored my repeated requests 

for additional resources for our ER, and they would never institute 

the comprehensive standardized nurse triage training that we 

needed in order to prevent future mistakes in care being made in 

our ER. 


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This is not to say they were idle however. They did ban me from 

reporting any cases to the Risk Management Department. My proficiencies dropped each year that I worked. I was forced to work 2 

years of unlimited scheduled shifts to fill in holes in the physician 

staffing because HR was too slow at credentialing emergency room 

physicians to fill in. 

Eventually things reached a critical mass. When the new oncoming Medical Center Director Sharon Helman arrived, I told her that 

the ER was too dangerous on an hour-to-hour basis to remain open 

and we should be closed unless additional vitally needed support 

was given. Unfortunately, the administration’s response was to 

haul me into a meeting within about a week and a half and tell 

me that the only problem in the ER was my lack of communication 

skills. The nursing backlash that was reported would never be investigated. 

Eventually I was involuntarily transferred based on critical need 

to an empty medical clinic. I assumed the medical director position 

of a clinic that only houses a social work program, and that’s where 

I remain today. I do very useful work, but it’s certainly not what 

I intended when I started reporting patient safety, health, and concerns. 

The veterans needing care that presented to the ER have survived campaigns like D-Day, Iwo Jima, Chosin Reservoir, Tet 

offensives and counteroffensives, Desert Storm, Kosovo, Croatia, 

the battle of Fallujah, and dismal years in Helmand Province. It 

is a bitter irony to me that I as a physician could not guarantee 

their health and safety within a VA facility in the middle of cosmopolitan Phoenix. 

The VA needs to embrace the core values that it advertises on 

its Web site. Administrators who place their own personal gain 

above the welfare of veterans need to face consequences for so 

doing. However, in the process it’s very important that employees 

of any pay grade who truly care about veterans and their welfare, 

that they be protected. They were often placed in the unthinkable 

position of being forced to follow orders or else permanently lose 

their livelihoods and their ability to help any veteran in the future. 

Most importantly, the ability to positively influence the patient 

care and safety of any veteran should not be considered a Democratic or Republican stance, a pro-union or anti-union choice, or 

even a uniquely American problem. The ability to freely advocate 

for the health and safety of any patient is a human issue, and it 

has ethical implications for all of us. 

Thank you for your time. 

The CHAIRMAN. Thank you very much, Doctor. 

[THE PREPARED STATEMENT OF DR. MITCHELL, APPEARS IN THE

APPENDIX] 

The CHAIRMAN. Thank you very much Mr. Davis. Mr. Davis, you 

are now recognized for 5 minutes. 

STATEMENT OF SCOTT DAVIS 

Mr. DAVIS. Thank you, Mr. Chairman. I’d like to thank the committee for providing a platform so that the voices of VA whistleblowers can be heard. I urge the committee to take prompt action 


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as time is running out. Every day a window of opportunity closes 

on a veteran to receive quality health care because of the inaction 

of senior VA officials. Some veterans even face the burden of being 

billed for care their service has earned them. 

As noted in the Office of Special Counsel report, VA leadership 

has repeatedly failed to respond to the concerns raised by whistleblowers about patient care at VA. Despite the best efforts of truly 

committed employees at the HEC and the Veterans Health Administration who have risked their careers to stand up for veterans, 

management at all levels have ignored them or retaliated against 

them for simply exposing the truth. 

Some of the critical issues reported to senior VA officials by whistleblowers at the HEC include mismanaging critical veteran health 

programs and wasting millions of dollars on an Affordable Care Act 

direct mail campaign; the possible purging and deletion of over 

10,000 veteran health records at the Health Eligibility Center; a 

backlog of over 600,000 pending health applications; nearly 40,000 

unprocessed applications discovered in January of 2013. These 

were primarily applications from returning servicemembers from 

Iraq and Afghanistan. 

The harassment I’ve experienced at the HEC from top levels of 

management include my whistleblower complaint to White House 

Deputy Chief of Staff Rob Nabors was leaked to my manager Sherry Williams, who stated in writing that she was contacting me on 

behalf of Acting Secretary Gibson and Mr. Rob Nabors. Neither Mr. 

Gibson nor Mr. Nabors have responded to this fact. My employment records were illegally altered by CBO Workforce Management 

Director Joyce Deters. I was illegally placed on a permanent work 

detail by Assistant Deputy Under Secretary Philip Matkovsky and 

Acting Chief Business Officer Stephanie Mardon. I was placed on 

involuntary administrative leave curiously at the same time the 

OIG investigation was taking place in Atlanta by Acting HEC Director Greg Becker. 

Unfortunately, my experience is not unique at VA. Daron and Eileen Owens, who work at the Atlanta VA Medical Center, have experienced the same retaliation for reporting medical errors and patient neglect, as well as misconduct by senior VA police officials. 

Our Local 518 union president, Daphne Ivery, is routinely harassed 

as a direct consequence of assisting me and other disabled Federal 

employees with retaliatory actions by members of management. 

Mr. Owens, Mrs. Owens, Ms. Ivery are all veterans. And in fact, 

over 50 percent of the staff that works at the HEC are disabled 

veterans. 

In 2010 allegations surfaced that applications for VA health care 

were being shredded at the HEC. Under the direction of the HEC 

Director and Deputy Director, Ms. Kimberly Hughes, former Associate Director for Informatics, and her team began to investigate 

this allegation. Her team discovered nearly 2,000 applications that 

were reported as being processed that did not appear as new enrollments in the enrollment system. Ms. Hughes’ investigation was 

abruptly closed by the HEC Director’s office. She was also subjected to harassment and intimidation because she dared to advocate for veterans. 


VACREP180 with DISTILLER
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The whistleblower statements I have provided to the committee 

were also provided to the OIG and are more relevant to the committee than many may realize. I urge additional review of those 

whistleblower statements. In addition to providing specific examples of whistleblower harassment to the committee, I hope my testimony provides some insight to three key issues VA management 

fails to address: Reckless waste of Federal funds and causing greater backlog of enrollment applications for the sole purpose of achieving performance goals; why there is resistance to implementing 

proper and effective processing and reporting systems, and the 

source of the resistance, as addressed previously by Dr. Draper 

during her testimony; and the need to remove ineffective managers, 

and the critical need for the VA Management Accountability Act to 

be fully implemented. 

Thank you for this opportunity. I look forward to your questions. 

The CHAIRMAN. Thank you very much, Mr. Davis. 

[THE PREPARED STATEMENT OF MR. SCOTT DAVIS, APPEARS IN THE

APPENDIX] 

The CHAIRMAN. Thank you very much. And, Mr. Davis if you 

would, explain a little bit further the information you provided to 

Rob Nabors, who was detailed from the White House over to VA, 

that led to adverse employment actions being taken against you. 

Mr. DAVIS. Yes. I contacted Mr. Nabors about 4 weeks ago. As 

the point of contact for the White House, I wanted him to be aware 

of what was going on in our office. A lot of attention has been 

placed on scheduling, but it’s important to understand if you’re not 

enrolled, you’re not going to be placed on a schedule. I wanted him 

to know about shortcomings with the enrollment system, a system 

that many of you have talked about, we have spent millions of dollars on, and yet we’re still back at square one with these VA systems. 

I also reached out to him about a Medicare Part D marketing initiative by VA to encourage senior citizens who are veterans to drop 

their subsequent companion Medicare insurance and enroll in VA. 

That was problematic because, as you know, if you enroll in VA you 

can only use the pharmacy at VA. You have to use your VA doctor. 

Many of our most vulnerable veterans were not aware of that and 

could be confused and cancel their supplemental Medicare insurance and end up being stuck in the donut hole in the backlog. 

I also contacted Mr. Nabors about the continued mismanagement 

of VA health programs managed by the HEC and the Chief Business Office under the direction of Mr. Philip Matkovsky and Lynne 

Harbin. 

After sending that information to Mr. Nabors, I did not receive 

a response. I subsequently contacted the office of Deputy Chief of 

Staff Anita Breckenridge. I also did not receive a response until 

after receiving notification from Ms. Sherry Williams that she was 

contacting me on behalf of the Acting Secretary and Mr. Rob 

Nabors. It surprised me that Ms. Williams would do this because 

she is a former OIG official. 

To this date no action has been taken to reprimand Ms. Williams 

for her behavior. This goes to the very heart of the question whether or not VA should be allowed to police itself and whether or not 


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an outside agency should be brought in to fully conduct an investigation into the actions taken at VA. 

The last thing I will say is I did receive an email from the White 

House Office of White House Counsel directing me to contact the 

Office of Special Counsel. If that was the official position from the 

White House, there would have been no need for anyone to contact 

Ms. Williams about my complaint. 

The CHAIRMAN. You also, in your testimony, you described the 

possible purging of over 10,000 veteran health records at the 

Health Eligibility Center, that there’s a backlog of 600,000 pending 

benefit applications and 40,000 unprocessed applications discovered 

that span 3 years? 

Mr. DAVIS. Absolutely. Currently we have over 600,000 pending 

applications. These are applications that have been applied for by 

a veteran, turned in to VA, and for whatever reason we could not 

take that application to a final determination. This backlog has 

reached again the number of 600,000. What we should have done, 

instead of hiring 40 people to address the Affordable Care Act in 

a belief that we’re going to have this surge of people because of a 

buddy letter marketing campaign where the veteran was encouraged to pass on information about enrolling into VA health care to 

a fellow veteran, well, unfortunately, the information for the veteran to take the action was on the second page of the letter. Therefore we ended up getting 80,000 duplicate applications of which 

only about 1,650 were actually applications that we could actually 

do something with. 

In terms of the 40,000, this was discovered in January of 2013, 

and this is important to the committee because I want to share 

something that was in a report that I forwarded to the committee 

from 2013. Increasing online application submissions versus paper 

and improving turnaround times for eligibility decisions has a positive direct impact on providing timely access to health care. Data 

reveals applications submitted in person are processed with higher 

urgency while online applications linger in a less visible queue. 

To answer your question how could this happen, because these 

applications linger in a less visible queue. Even though the IT Department had paid licensing fees for over $40,000 for us to have a 

new system for managing the queue, a system referred to as 

BizFlow, that system was only put into play for implementation 

until after the 40,000 applications that were lingering in the queue, 

in some cases for nearly 3 years, was discovered. That is something 

that is shameful. 

The CHAIRMAN. Thank you, Mr. Davis. 

Members, I have one more question I’d like to ask Dr. Head. 

Dr. Head, you talked about the retaliation against you, and I 

want to specifically talk about a Dr. Wang, who I read that the 

OIG concluded that Dr. Wang had, in fact, committed time card 

fraud. Is that correct? 

Dr. HEAD. Yes. The official report was not released to the 

layperson. The information I received was that they had recommended immediate termination of her and this other individual. 

Through other chief of staff and counsel, they had said that they 

had found significant fraud, time card fraud. 

The CHAIRMAN. And so she’s been terminated? 


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Dr. HEAD. She has not been terminated. She has been maintained in a supervisory role. 

The CHAIRMAN. Can you explain a little bit about how that has 

occurred? 

Dr. HEAD. I have no idea how she was able to maintain her position. 

The CHAIRMAN. But VA did not follow the Inspector General’s 

recommendations? 

Dr. HEAD. They elected not to follow the Inspector General’s recommendation. She has been left in her Division Chief position. She 

was my supervisor. I filed a complaint, numerous complaints. They 

moved me from that office under her chain of command to the 

Chief of Staff, which in my opinion was an excellent opportunity. 

I rose in the ranks, became head of Legal and Quality Assurance, 

and have become I think an expert in system analysis and quality 

assurance, which I think will help the veteran even more, ironically, now from being retaliated against. That’s just how I was 

brought up: Find a way. 

The CHAIRMAN. Thank you, Doctor. 

Mr. MICHAUD. Thank you very much, Mr. Chairman. 

As you all know, whistleblowers, you often risk your career in 

order to bring problems to light. What would you recommend that 

we do as far as to change the rules or laws government-wide to actually help protect the whistleblowers. And I’ll start with Dr. Mathews and work down, if there’s anything that we should do to 

strengthen the Whistleblower Protection Act. 

Dr. HEAD. Yes. That’s an excellent question. And one of the 

things that I experienced was that I was immediately removed 

from my position. So under the guise of an administrative investigation with a specific directive to not contact any of the psychiatrists that I was managing, and they cut off my access to the databases, some of which I’d set up myself to get accurate data. So one 

of the things could be that if there is this sort of an investigation, 

that the person continues rather than be detailed. And if the person has to be detailed, perhaps there should be a review by peers 

to see whether that’s even warranted or not. 

There seems to be no time limit to these kinds of detail. And this 

is the second time I’ve been detailed. Just recently I’ve been detailed again. So as Dr. Mitchell mentioned, these are not the jobs 

that we wanted to do, not that we would not do it. We would do 

it to the best of our abilities. So having that protection. Having the 

OSC have some sort of a time limit to review these complaints 

would be very beneficial. Having a process for, you know, like you 

rightly mentioned, if a supervisor is, indeed, found to have retailed, 

to have some very tangible consequences to that person would be 

very, very important. 

Right now I think, at least in the St. Louis VA, they do not think 

that this is a serious issue. Like I said, like 2 weeks ago I was 

called into a meeting with the Chief of Staff where the chief of the 

outpatient psychiatry, the person I had worked with very closely to 

implement my changes was also called into that meeting. And in 

that meeting I was specifically told that the chain of command 

must be respected at all times, that if I had any issue or if Dr. 

Esses had any issue, that we should report it first to our supervisor 


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and then move up to the next level and the next level. So I called 

the— 

Mr. MICHAUD. Could you finish up because I’m running out of 

time. We have got three others, so. 

Dr. HEAD. Yes. So I think your recommendation for having very 

quick and serious consequences to retaliation would be very important. 

Mr. MICHAUD. Thank you. Dr. Head. 

Dr. HEAD. Yes. I think there needs to be greater repercussions 

for retaliation. We have laws referred to shield laws and sword 

laws. Sword laws meaning that if I retaliate against someone, 

there are Federal laws that say, look, retaliation is against the law, 

and they can warn the person don’t retaliate. But they can continue to retaliate against the person, which ultimately will have a 

direct or indirect effect on the care of the veteran, endangering the 

veteran only because their caregiver or doctor or nurse is being retaliated against. 

Shield law means that not only do you have a sword law, repercussions for retaliation, but you have a shield law where you can 

immediately take action and there can be immediate repercussions 

for any type of retaliation against the whistleblower. In other 

words, you tell the Chief of Staff, look, if this person gets retaliated 

against, pushed out of a job or anything, we’re going to hold you 

accountable for this until we figure out what’s going on here. 

And we have a shield law that was enacted in the State of California, but that’s something that should be considered by Congress. 

Ultimately you will address it one way or another because retaliation in the health place is different than in a factory, because if you 

retaliate against a physician or surgeon or nurse practitioner or 

nurse, you’re going to have direct repercussions one way or another 

to the health and well-being of a veteran. 

Mr. MICHAUD. Thank you. Dr. Mitchell. 

Dr. MITCHELL. I’m not sure all of it needs to be legislated, but 

certainly the OIG needs to put in writing that providing limited patient information to support allegations in a complaint is not a violation of HIPAA. It isn’t, but certainly there are employees charged 

all over the Nation for it. 

In addition, sham peer reviews need to be part of the prohibited 

personnel actions. That’s where they drum up a reason to examine 

a physician’s cases. They have a predetermination that this physician is not properly functioning, even though there certainly is no 

problem with this level of functioning. And then they can permanently sabotage a physician’s ability to get employed not only inside the VA, but in a private sector. 

Whenever you’re subjected to a peer review you have to report 

being a subject of a peer review for the rest of your professional 

life, on every job application, on every license renewal. Sham peer 

reviews are done specifically to sabotage the credibility of a physician. Physicians truly face losing their livelihood, their ability to be 

employed again as a physician. You need whistleblowers that are 

physicians, people that are trained to identify the high risk problems. 

Mr. MICHAUD. Mr. Davis. 


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Mr. DAVIS. Yes, thank you. I don’t know if a new law would really change anything, honestly, at VA if you don’t have accountability. I think there are some structural changes that need to take 

place, one being a centralized human resource office that actually 

has operational authority. 

Currently, when I went through my situation of retaliation, I 

spoke with a representative from the VA HR office. They told me 

they’re only a policy body, that they could contact the HR office 

where I work and maybe make some recommendations and see 

what they could negotiate. That’s problematic, because in VA, unlike a corporation or a normal healthcare system, every division or 

the hospital itself has its own HR department which becomes the 

secret police force for the managers who harass employees. And 

that’s problematic, and that’s what needs to change. So I think an 

operational change for a centralized human resource office would 

also help. 

But also I think you need to start making bad managers pay 

their own legal fees. Currently, managers who engage in harassment have no fear because the bill is going to be passed on to the 

taxpayer. And even if they lose the case or they’re found guilty of 

wrongdoing, well, the bill just goes on to the taxpayer. Currently, 

we have managers in our office that have several different complaints for harassment. It’s not a big deal to them. Regional counsel will take care of it. The Office of General Counsel will take care 

of it. So I think that’s the issue that really would change people’s 

behavior, if you hit them in their pocket. 

The CHAIRMAN. Mr. Lamborn, you’re recognized for 5 minutes. 

Mr. LAMBORN. Thank you, Mr. Chairman, for having this hearing. 

And I want to thank all of you for being here. You’re showing a 

lot of bravery and courage. You’re putting it all out on the line to 

do this, and I know that you’re doing it for our veterans. 

Dr. Mitchell, I’d like to ask you, you’ve been at the Phoenix VA 

for 16 years. Do you believe that the lack of response to safety 

issues that you’ve brought up over the years have threatened the 

health and even the life of veterans in Phoenix. 

Dr. MITCHELL. Yes. Anything that impairs the efficiency or the 

delivery of care threatens the lives of patients. Certainly in the ER 

I can recall at least three specific deaths and several more I believe 

actually occurred in the ER. As a resident I also trained through 

the Phoenix VA. There were at least two patients I know that died 

because they were delayed in getting their cardiac cath because the 

VA only did cardiac catheterizations Monday through Friday, not 

on weekends. These veterans had to wait because there wasn’t time 

to get them done on Friday, so they died on Sunday. 

When I was a nurse there, there were tremendous problems with 

patient care, and there weren’t sufficient nurses to turn patients 

the adequate number of times. We had patients developing huge 

bed sores. I can remember JCAHO certification inspections that to 

this day still haunt me because administration would authorize 

overtime for charting, because a JCAHO administrator would look 

at charting, but would not authorize overtime for nursing staff to 

turn patients because there wasn’t enough staff to do it or to feed 


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patients. We used to volunteer our time quite a bit because we 

couldn’t leave the team short staffed. 

Mr. LAMBORN. Doctor, did these problems catch the hospital and 

the administrators by surprise or had they been warned that there 

were pending problems if something didn’t change? 

Dr. MITCHELL. I am aware of problems throughout the facility 

without necessarily having access to upper administration. I know 

that people communicate these concerns as best they can. What 

happens is any concern you bring up you have to present to your 

supervisor in a politically correct manner, because if you don’t you 

will be retaliated against, either you’ll be harassed at the moment 

you’re giving the information, your proficiencies will drop, something bad will occur. It’s best that management not know your 

name, because if they do it makes you an automatic target. And 

I’m sorry, that’s not to say that all supervisors are that way. There 

are some incredibly ethical supervisors at the facility where I work. 

Mr. LAMBORN. Okay, good. That’s good to hear. The interim OIG 

report which brought out some of the issues that we’re seeing even 

better as a result you believe didn’t go far enough, if I understand 

your testimony correctly. Do you think that there were flaws with 

the methodology and that it could have even been more revealing 

of problems out there? 

Dr. MITCHELL. There’s a saying that has to do with lies, damn 

lies, and statistics. And what they did was they took out a segment 

of patients and said, well, this is the average wait time. The NEAR 

list that they were looking at was divided by clinics. Some of the 

clinics had relatively short waiting time. The NEAR list ran from 

I believe January of 2013 to April 24 of 2014. 

Some clinics had very short waiting times. The downtown Phoenix clinics were all aggregated or an aggregate of some, and the 

waiting time started at 477. They didn’t hit down to the 110s, 120s 

until page 8 or page 9. Because some of the wait times were zero 

or 1 day or 2 days, because they extended up until April 24, I have 

no idea which patients they picked. It would have been certainly 

more accurate to say at the Phoenix VA clinics we had this many 

patients waiting zero to 30 days, this many from 31 to 45. 

Mr. LAMBORN. So as a result, and we are getting the real detail 

here, you don’t think that the report revealed nearly as much of 

the problems as it could have? 

Dr. MITCHELL. No. I told them about the mental health waiting 

delays, the huge problems with that. Other people told them that, 

the issues. I told them about the patient safety issues. It certainly 

didn’t go into that. 

Mr. LAMBORN. Okay. Thank you. 

Once again I want to thank you all for your service to our veterans and for being here today. 

Mr. Chairman, I yield back. 

The CHAIRMAN. Thank you. 

Mr. Takano, you are recognized for 5 minutes. 

Mr. TAKANO. Thank you, Mr. Chairman. 

Dr. Mathews, are you familiar with the Federal classification of 

employees, whether it is SES or Title 38 employees? Are you aware 

of that system? 

Dr. HEAD. Yes. 


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Mr. TAKANO. In your capacity as chief of psychiatry, was that a 

Title 38 position; do you know? 

Dr. HEAD. Yes. Title 38 position. 

Mr. TAKANO. Okay. Dr. Head, in your position where you formally were, was that a Title 38 position or something below a Title 

38? 

Dr. HEAD. Title 38. I am still employed by the—— 

Mr. TAKANO. You are still employed, I understand. 

Dr. HEAD. Yes. 

Mr. TAKANO. Okay. And Dr. Mitchell? 

Dr. MITCHELL. Yes, I am a Title 38 employee, and I have been 

employed as a physician throughout my VA career there. 

Mr. TAKANO. Okay. 

And Mr. Davis? 

Mr. DAVIS. No, I am just a General Service employee. 

Mr. TAKANO. General service employee. 

So one of the things I am grappling with is the proposal for us 

to make it easier to fire VA employees guilty of wrongdoing, so a 

more at-will sort of basis, and that would apply to the Senior Executive Service. And typically whistleblowers come from the lower 

ranks of employment, but there is a debate about whether or not 

we should extend this sort of standard to Title 38 employees. And 

so in my mind, I am going through this contradiction of, well, there 

is a sense among some Members that we want to make it easier 

to fire people at certain levels of service, but that might seem to 

run against the idea that we need to also protect people who speak 

up. 

Dr. Mathews, do you have any thoughts on this? We have a whistleblower protection, but, I mean, how do you feel about making it 

easier for us to fire Title 38 employees? 

Dr. HEAD. Well, I think, you know, when veterans’ life and 

health is at issue here, I think that, you know, you should be able 

to be fired. Any person in direct patient care right now enjoys almost a lifetime tenure where they are completely protected from 

their actions, the consequences of their actions, and I think that is 

not good for providing a safe work environment for the veterans, 

or safe health environment for the veterans, or work environment 

for the physicians and other people who come forward. 

I do not think that the Chief of Staff or the Chief of Mental 

Health, who just threatened me 2 weeks ago, has any concern 

about their position being threatened in any manner. So I think 

that kind of protection should end. 

At the same time, I also would want us to consider that a workplace is only as good as the employees there, and I’m hoping that 

we take a look at what the salary structure is, especially for some 

hard-to-fill positions, so that, you know, we can have less protection with—— 

Mr. TAKANO. Dr. Mathews, excuse me, but wouldn’t that ability 

to have fired you so absolutely have eliminated your ability to even 

voice any dissent or act as a whistleblower? 

Dr. HEAD. Well, that already exists. I mean, they already professionally assassinated me in the sense that, you know, I’m no longer 

the Chief of Psychiatry. They’ve already spread this, you know, the 

fact that I am no longer the Chief of Psychiatry. In fact, the way 


VACREP180 with DISTILLER
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I found out that there was this—you know, this administrative investigation stuff going on is when one of the psychiatrists I recruited called me concerned that, you know, are you fired? I mean, 

I hear that you’re fired. So professionally—and it’s a bad statement 

on the VA that, you know, me having trouble with the VA is—— 

Mr. TAKANO. But would you have been worse off having your 

voice completely eliminated by you being summarily fired because 

they had the ability to do so? You at least are able to be here and 

voice your concerns. And actually, I mean, it’s far from where we 

need to be in order to have feedback from people at the mid level 

and lower levels to be able to say what is wrong. 

That is our interest, right, I think, in our national interest, to be 

able to have lower-level employees be able to speak up without fear 

of being retaliated, but is whistleblower protection enough? Do we 

need to have some sense of due process, which some of the Members would like to see eliminated so it’s easier to fire people? I see 

a tension here. I mean, I think you might even recognize. I, too, 

would like to be able to fire people, not have them have complete 

tenure and they feel insulated. 

Dr. HEAD. Right. 

Mr. TAKANO. But I don’t know how we solve this. 

Dr. HEAD. Well, you know, I think one way that I can suggest 

is to put ourselves or our loved one in the veteran position. Would 

I want to obtain care, or would I want my son to obtain care, at 

a system where poorly performing nurses or physicians cannot be 

fired? And I would not want to go to that hospital. So I think, I 

mean, that would help perhaps resolve this tension about who are 

we protecting? Are we protecting the veterans, or are we protecting 

the VA employees? 

Mr. TAKANO. I understand. 

Mr. Chairman, I yield back. 

The CHAIRMAN. Thank you very much. 

And also, the legislation that we have passed in the House does 

not reach down to this level of a SES or Title 38 employee, only 

senior level, the top 450. 

Mr. Bilirakis, you’re recognized for 5 minutes. 

Mr. BILIRAKIS. Thank you, Mr. Chairman. I appreciate it. Thanks 

for holding this hearing. 

And I want to thank you, the people that are testifying tonight, 

for putting the veteran first. Thank you so much for your courage. 

I really appreciate it. 

Dr. Head, I know I don’t have a lot of time, you mentioned in 

your testimony that this potentially could be—the VA system, 

VHA, could be the best healthcare system in the world. How do we 

get there? 

Dr. HEAD. I believe with leadership. You know, there are certain 

people in leadership that have been there for 18, 20 years, and if 

they’re a great leader, it’s fabulous; but if they’re not, it’s very disruptive to the system. 

We need to find ways to bring in leadership on a continuing 

basis. Maybe term—I don’t know if this is the answer—maybe term 

limits. And if you’re a good leader, you’re identified as a good leader, and perhaps you could be part of the team that brings on new 

leadership and show them the right direction. And if you’re not 


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such a good leader, maybe you should be integrated in another part 

of the Federal Government or retire. 

But leadership is clearly the key. Our surgical team at the West 

L.A. VA could be matched against any surgical team in the country, possibly in the world. My wife, much smarter than I am, is an 

interventional electro physiologist, cardiologist at the VA. She 

could work anywhere in the country. Somehow she agreed to marry 

me and also dedicated her life to serving veterans. She loves her 

job. She obsesses over it. She’s always worried about trying to save 

another veteran. I commend that. And there’s lots of people like 

that within our system. 

We need leadership. The leadership will take the VA to that next 

level. I think it’s not resources. We all care about the veterans. And 

you’re very giving. And we’ll do anything to serve our veterans. 

And it’s not resources. We’ll do anything it takes to make this situation right and to serve the veterans. And I have no doubt that if 

the right leadership is brought to bear on this problem, we can 

solve this problem. 

Mr. BILIRAKIS. Thank you. 

My next question, and this is for the entire panel: In the previous fiscal years, all Senior Executives Service employees, all received a fully successful performance. Last year, in particular, they 

received a fully successful performance, which totaled to $2.8 million in performance awards. Yes or no, and we’ll start with Dr. 

Mathews—yes or no, do you believe that this is an accurate assessment and that all eligible senior employees performed at a fully 

successful capacity and higher? 

Dr. HEAD. No. 

Mr. BILIRAKIS. No. Okay. 

How about Dr. Head? 

Dr. HEAD. No. 

Mr. BILIRAKIS. Mr. Davis? 

Mr. DAVIS. Based on what we now know in the public record, absolutely not. 

Mr. BILIRAKIS. Dr. Mitchell? 

Dr. MITCHELL. No. 

Mr. BILIRAKIS. Thank you. 

Next question is for Dr. Mathews: Through your own investigative work during your time at the St. Louis VA, you identified that 

on average—you spoke to this in your testimony—on average, psychiatrists were seeing six veterans per day, which accounted for 3.5 

hours in an 8-hour workday. When you contacted other psychiatry 

chiefs regarding actual time spent in direct patient care by psychiatrists seeing veterans, do you know if they had been tracking this 

information prior to your inquiry? 

Dr. HEAD. No, I do not know if they were tracking it. I know that 

our VA does not track it, and I know that many other VAs do not 

track it, because a lot of the other chiefs wanted to know the answers as well. So I got a lot of emails from other chiefs saying, you 

know, why don’t you forward the responses to me as well? And just 

recently there was another new Chief of Psychiatry who had the 

exact same question that was, you know, sent out to everybody saying, you know, what is a reasonable expectation? What number 

should be reasonable? 


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Mr. BILIRAKIS. Thank you. 

Next question, again, for Dr. Mathews: Your findings also discovered that 60 percent of veterans were dropping out of mental 

health care after one or two visits. And I have town meetings, and 

I have veterans advisory councils, and they tell me the same thing. 

Do you believe it was directly connected to the experience they had 

while seeking treatment with the VA? Is it the type of treatment? 

Should there be alternatives to that treatment? If you could—— 

Dr. HEAD. Sure. You know, my goal was to make the VA mental 

health clinic a very welcoming place with very easy access to care. 

The majority of the veteran complaints that I reviewed had to do 

with long wait times, not being able to come to seek their care, 

and, you know, that really demoralized them from obtaining care. 

Some of the young veterans that I saw in my new capacity—well, 

the previous capacity as the compensation and pension evaluator, 

I came across some really horrendous barriers to care for veterans 

who had tremendous amount of combat exposure. They were in 

some of the specialized forces. 

And just one instance I will mention here—— 

Mr. BILIRAKIS. Please do. 

Dr. HEAD [continuing]. This veteran was doing so poorly that his 

roommate, who was also a veteran, had both taken off a day of 

work so that he can take this veteran and get him care. So they 

come to the VA, and it takes 3 or 4 hours to find out whether this 

person is even eligible for care or not, and then they determine 

that, yes, this person is actually eligible for care. 

So this veteran then comes to the PTSD clinic and is not seen 

by a healthcare provider, is told that we will contact you next week 

after a meeting to determine what we can—what we are going to 

do for it. Now, I was doing a compensation and pension evaluation, 

so I had access to the records, and I was looking at whether there’s 

a record of this veteran actually going to the clinic or not, and I 

did not find any record. But there is a subsequent notation saying—a form letter that was sent to this veteran that stated that 

we learned that you were interested in obtaining care at our facility; please call these numbers to schedule an appointment. 

So this is for a veteran who has served our country and sacrificed 

a lot, who even the military recognized had PTSD, had taken a day 

off of his low-paying job to obtain care, and then there was no 

record of this person being at the VA, and the contact was not 

made. So when I evaluated him, I asked this person that, you 

know, would you consider coming to the VA to obtain care, and this 

veteran was very clear in saying, no, I am not going to obtain care 

here. I was not treated with respect. And, you know, he didn’t want 

to come to get care there. 

So that’s one really bad example that I can say about how the 

access to care and the whole attitude of it not being a welcoming 

place, of erecting barriers, you know, that really prevents people 

from coming back. And there’s a lot of such complaints that I heard 

in my capacity as the Chief. 

So yes, the answer is yes. You know, how we are interfacing with 

the veteran, what kind of access we are providing, and what kind 

of care and environment we are providing, I think, is critical in 

maintaining patients and care. 


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Mr. BILIRAKIS. Thank you very much. I appreciate it. 

Thank you all for your testimony. 

The CHAIRMAN. Thank you. 

Ms. Brownley, you’re recognized for 5 minutes. 

Ms. BROWNLEY. Thank you, Mr. Chairman, and thank you for 

holding this hearing, and thank you to all of you for being here. 

Your testimony is extremely important, and we appreciate it very, 

very much, and I believe that all of you, by virtue of being here 

and having gone through what you have gone through, you have 

also, as our veterans, served our country honorably. So thank you 

for that service. 

I just wanted to ask Dr. Mitchell and Mr. Davis, because both 

of you went through a—well, Dr. Mitchell, you went through a formalized process, a confidential process with the OIG, and somehow 

that information leaked out, and it was not confidential. And, Mr. 

Davis, you reached out to the White House, and obviously there 

were—based on your testimony there were leaks as well. So I was 

wondering if the two of you could just comment on do you know 

how those leaks occurred? Were you promised confidentiality? 

Dr. MITCHELL. Yes. The Senator McCain’s office submitted the 

request—or my complaint with two requests, one, that there be an 

outside investigative team because the local OIG had a long history 

of not doing very good investigations, and the second one was that 

my name be kept confidential. I don’t know who leaked my name; 

I just know that it was leaked. And I don’t even know if there’s 

any consequence to whomever leaked my name. 

The second thing is I don’t even know if the OIG actually investigated. What happened was there’s no official report, although certainly the Web site—the OIG has complete discretion as to which 

reports it puts on the Web site. Anecdotally I have been told that 

those that are unfavorable to SES service do not go on there. Someone has since forwarded me a complaint that is certainly unfavorable to SES service, and it can’t be found on the Web site. I have 

no idea what occurred, and I can’t even get a report of it. 

Ms. BROWNLEY. Have you tried to find out, though? 

Dr. MITCHELL. I had Senator McCain’s office checking, and 

they’re stonewalling them. 

Ms. BROWNLEY. Thank you. 

And Mr. Davis. 

Mr. DAVIS. I can tell you that as late as about 4:30 p.m. this 

evening, I was informed by my union president that the Acting 

Chief Business Officer Stephanie Mardon sent a correspondence 

saying that Ms. Williams, the person who said she was responding 

on what behalf of Secretary Gibson and Mr. Nabors, was not officially authorized to speak on their behalf. 

What she didn’t provide, which would probably be more important, is who told her in the first place. And I think that is the problem with VA: a complete lack of accountability. And when people 

know that they can engage in behavior without consequences, 

something has got to change. 

Ms. BROWNLEY. Thank you. 

Dr. Head, I represent Ventura County in California, so my veterans use your facility in West Los Angeles. And so I am wondering, after being here this evening with us, what it’s going to be 


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like for you when you return back to West L.A.? What will the environment be? 

Dr. HEAD. I’m not sure. I do fear retaliation, but I also know this 

was the right thing to do. And more importantly, I think many veterans that I care for support me. 

Ms. BROWNLEY. And do you believe by virtue of what you have 

been through and now being here, do you think that that has—and 

everything that has happened, and what we have learned about 

what is going on in the VA across the country, I mean, do you feel 

a difference when you go back to West Los Angeles than you did 

a few months ago? 

Dr. HEAD. Well, I think more importantly I’ve enlightened, I believe, Congress, and they have an opportunity to look very factual. 

All I ask is that you look at the facts and unveil the facts, and I 

think that in itself will be helpful. 

And as far as going back to my job, I could afford not to work, 

but I want to work, and I want to serve the veterans. And when 

I first came, Dr. Mitchell and I were chatting, and we both want 

to retire within the VA Administration. 

Ms. BROWNLEY. Yeah. I think I’m just trying to drill down a little 

bit to see if there’s been any shift or change over the course of the 

last month or two in the culture, because you feel it every single 

day, and, you know, changing culture is really a hard thing to do. 

But I’m just curious to know if there’s been—you know, do you feel 

a shift? 

Dr. HEAD. I think there’s been awareness. They are very much 

aware that I was coming here tonight, and I think they’re very 

much aware that I will stand up for myself and for the veterans, 

that I will not cower down. 

I’m human, I have my frailties, and this is wearing on me. I wish 

I could just go to work and dedicate all my energy to caring for veterans and to make processes that will improve the care of veterans, 

but instead, the reality is I do worry about retaliation on a daily 

basis. I’m always looking over my shoulder. I’m always wondering 

about, you know, peer reviews. Fortunately, I’ve been head of a certain area of peer review, so I’ve been immune to some of those retaliatory efforts. 

I am worried, and I’m tired. If you could do one thing for me tonight, you would relieve the obstructions of this retaliation and 

allow me to serve the veterans and be able to work without the 

fear of retaliation. That would be a great gift. 

Ms. BROWNLEY. Thank you, Dr. Head. 

And again, thank you to all of you, and my time is up, and I 

yield back. 

The CHAIRMAN. Thank you. 

Dr. Roe, you are recognized for 5 minutes. 

Mr. ROE. I thank you, Mr. Chairman. 

Dr. Mathews, I was a young doctor once, and I remember returning from Southeast Asia, and I was full of vim and vigor, and I was 

stationed at Fort Eustis, Virginia, and there was 2,000 women that 

needed Pap smears. I was going to solve that problem. When I left 

Fort Eustis, Virginia, there were 2,000 women on the Pap smear 

list. I ran into inertia, which is what I think you ran into. 


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And I admire what you did because you touched on two very important things. You all have hit the nail on the head. It’s the backlog, which we can easily take care of. We can do that. Number two, 

changing the culture of the VA is going to be much more difficult, 

and that’s much more critical downstream years from now. 

But what you did when you got to the VA in psychiatry was you 

recognized a problem. You saw long wait times for patients, and 

you wanted to make sure those patients in need got there. And I 

have seen those patients in my office. 

Two, you said how much work are we actually doing? And when 

you evaluated it, you found out that your colleagues were seeing 

basically six patients a day. There’s no private practice in the 

world doing anything that can stay afloat seeing six patients a day. 

So you wanted to increase productivity, shorten the wait times. 

And what I found astonishing was that 60 percent of our veterans 

who sought out care—and these are folks have PTSD that desperately need this care, and we know there is a shortage of your 

kind of specialty in the VA and in the country, quite frankly— 

wouldn’t come back. I found that absolutely amazing to me that 

they found the environment so inhospitable to them that they refused to come back. 

And then very simply, how we’re all being evaluated with accountable care organizations and so forth is were you satisfied with 

your visit? A very fair question. And you hit the nail right on the 

head a minute ago when you said, what if you were the veteran? 

Would you want to be in a place where less-qualified people or people who didn’t seem to have your best interests at heart, would you 

want to be them? 

I want to ask all of you, Dr. Head and Dr. Mitchell, too, just very 

briefly, how does retaliation within the VA affect patient care? And 

I think we all know that, because if you’re retaliated against, you 

go back to the six patients a day, that means 60 percent of those 

veterans that need care are not getting it. Am I right? 

Dr. HEAD. That’s unfortunately the case. And I can tell you that 

being in compensation and pension evaluation, I know of at least 

one veteran who committed suicide while waiting for, you know, 

the call-back to get care. So, you know, unfortunately it went back 

to where it was, and we really don’t have a real-time veteran satisfaction with care metric. 

And I think that’s very important, because we do not really 

know, other than these surveys which are incomplete and which 

are administered not correctly. You know, mostly the clinic itself 

hands out these surveys to the veterans to fill out, and then they 

collect it as well. So although you tell them it’s confidential, I don’t 

think anyone would really believe that. 

Mr. ROE. Yeah, I think you could take what you did and go 

across primary care, specialty care, anything, and find out is it a 

staffing need? Do we need more people to work, or do we need to 

be more efficient at work while we’re there? 

I want to ask Mr. Davis a question, and it dawned on me just 

a minute ago, what happened to the 40,000 veterans that were 

queued up? What happened to them? 

Mr. DAVIS. Well, the 40,000 veterans that were discovered, 

40,000 applications, they were eventually processed. But I think 


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here lies the problem of sort of the callous and carelessness in VA 

management, and that’s why I go back to my point of make them 

pay for it. 

The problems with the queue, as it’s referred to, could have been 

addressed. Again, VA was paying for licensing and maintenance 

fees for them to institute a new workflow management system that 

could have resolved that issue. It wasn’t resolved or addressed 

until after the 40,000. 

Now, what’s interesting is—and I’ll give you an example of the 

sort of lackadaisical attitude by VA management. In the report 

that I read from earlier, in 2013, it talks about the backlog. It talks 

about the slow processing of online applications. You’re a physician. 

Could anyone imagine an application for health care that you can 

write in your house, drive to a VA medical facility, wait in line, 

turn it in to someone at the counter, wait for them to process it 

is actually faster in 2014 than the online process? If this was a private corporation, we would be run out of town. 

Now, let’s put that into context. I have submitted to the committee a document, a fact-finding report, which dealt with the marketing contract, that dealt with waste and mismanagement, and it 

addresses the issue at our office that the contract was so poorly 

mismanaged that the $5 million contract would not withstand scrutiny if it was subject to a third-party audit. 

I ask you to look at this in the context of the enrollment system, 

look at it in the context of the workflow management contract, 

about $2 million. It’s the same sort of reckless attitude. They don’t 

assume responsibility for their actions when it comes to retaliation, 

and they don’t assume responsibility for their actions when it 

comes to wasting the resources given to them to provide services 

to veterans. 

Mr. ROE. Mr. Davis, just one other thing, and it’s a statement, 

not an answer. But in our briefing today, it said—and officially the 

St. Louis VA Medical Center is reporting to VA central office that 

its productivity was along the highest in the Nation. When that 

sort of thing happens, how in the world can we believe anything 

that’s in front of this committee? I get asked at home, why do you 

know about this? And I say, well, we get this kind of information. 

How would we know about it when the people giving us information are not giving us factual information? 

Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. Thank you very much. 

Mrs. Kirkpatrick, you’re recognized for 5 minutes. 

Mrs. KIRKPATRICK. Thank you, Mr. Chairman. 

I’d like to start by thanking our whistleblowers for having the 

courage to come forward when you witnessed wrongdoing. I would 

particularly like to recognize Dr. Katherine Mitchell from the Phoenix VA. I asked you to come and testify before our committee. I 

know that you’ve risked your career to report wrongdoing and suffered repeated retaliation from administrators who refuse to do the 

right thing, so thank you. 

By bravely stepping forward, Dr. Mitchell and Dr. Foote made 

Congress, the IG and the VA aware of the problems in Phoenix 

which led to the discovery of systemic patient wait time data manipulation at VA facilities across the country. Unfortunately, withVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 Y:\89377.TXT PAT

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out whistleblowers we were unable to identify many of the problems in the VA. Because of whistleblowers, we can now work to fix 

them. 

It is unacceptable and reprehensible that almost half of the Office of Special Counsel’s whistleblower retaliation cases involve the 

VA. The bullying of patients and VA employees that report wrongdoing must stop now. I sent a letter to Acting Secretary Gibson last 

month asking him to remind all VA employees of their rights at 

whistleblowers; however, it is not enough that employees are informed of their rights. The VA must still develop a culture of zero 

tolerance for whistleblower retaliation at all levels of its organization. 

Employees should not be afraid of losing their jobs or ruining 

their careers for speaking up when something is wrong. Patients 

should not be afraid that they will be denied care because they 

think something is wrong. The VA must stop using the harmless 

error defense to downplay wrongdoing. This finding by the VA Office of the Medical Inspector in most cases was baseless and an excuse for administrators to do nothing while patients were put at 

risk. 

This is why I’m introducing a bill this week to give further protections to VA whistleblowers. Employees and patients should be 

able to report wrongdoing directly to the Office of the VA Secretary 

so they do not have to face retaliation from the same administrators that refuse to act. The office will investigate complaints of 

whistleblower retaliation and ensure that whistleblowers’ rights 

are protected. 

While all VA employees should work to serve veterans, the sad 

reality is that the VA has a corrosive culture and a history of retaliating against those who speak to break the code of silence. 

Until the VA is able to instill transparency throughout its ranks 

and develop a culture focused on caring for veterans, I believe additional protections for VA whistleblowers are necessary. 

My question is for all of our witnesses: If you could name one 

thing that the VA could do immediately to change its culture of silencing whistleblowers, what would it be? And let’s start with you, 

Dr. Mathews. 

Dr. HEAD. Well, if I had one wish, that would be that data integrity is there. And the VA has demonstrated over and over again 

that they will make up numbers, they will come up with blatant 

lies. Like Dr. Mitchell said, and I will paraphrase the great person 

from Missouri, Mark Twain, that there are lies, damned lies, and 

VA statistics that go beyond lies. 

So that would be my one wish would be to have meaningful 

metrics that are transparent and accurate and are vouched for by 

another organization, perhaps a major university that have a higher degree of integrity, and people who are found cooking these 

numbers are punished, because it has real-life consequences for 

veterans. These are not just, you know, some games that they are 

playing. People’s lives are at risk here. 

Mrs. KIRKPATRICK. Thank you, Doctor. Not to cut you off, but I 

want to hear from the others. I’m starting to run out of my time. 

I have about 45 seconds here. 


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Dr. HEAD. I believe accountability. When people or supervisors 

have knowingly done something wrong, and they have been shown 

they have done something wrong, but they’re allowed to maintain 

their position, sometimes even get raises and bonuses, that should 

be unacceptable. You’re sending a signal throughout the entire VA 

that—— 

Mrs. KIRKPATRICK. Thank you. I’m sorry, I’m just going to go 

quickly to Dr. Mitchell and then Mr. Davis. 

Dr. MITCHELL. I think that most whistleblowers want to make 

sure that—they are willing to put their careers on the line, but 

they want to make sure that if there is retaliation, it will be investigated immediately. Right now they sent out the memo that said 

all the places you could go if you felt you were being retaliated 

against. Those haven’t worked in the 16 years I’ve been there. No 

one that I know of thinks that they’ll work, and they’re waiting to 

see what will happen. 

Mrs. KIRKPATRICK. Thank you. 

Mr. Davis. 

Mr. DAVIS. I think the body that’s going to be responsible for enforcing whistleblower protection at VA cannot be a part of VA. I 

can tell you that whistleblowers who shared information with me 

to take to the committee are scared to cooperate with the OIG. 

Mrs. KIRKPATRICK. Thank you, all. I’ve run out of my time, but 

thank you all very much. 

And thank you, Mr. Chairman, for the extra time. 

The CHAIRMAN. Thank you, Mrs. Kirkpatrick. 

Mr. Flores, you’re recognized for 5 minutes. 

Mr. FLORES. Thank you, Mr. Chairman. 

I thank each of you for your service to our veterans, also for your 

courage in joining us here tonight to share your stories. 

Dr. Mitchell, as you know, the VA has had several internal investigations now. We’ve had reviews by the medical inspector. We’ve 

had OIG inspections or reviews. We’ve actually had a couple of 

high-profile resignations. And so in response to that, the VA has 

begun to make some changes and take some actions to try to deal 

with the news that’s come out. 

My question is this: Based on what you’ve seen so far, will any 

of the changes in activities that the VA’s been involved in the last 

3 or 4 weeks really make a measurable difference in the care for 

our veterans? 

Dr. MITCHELL. No. Right now what’s happening is that although 

they’ve checked into—looked into the appointment scheduling, 

nothing has changed for me. The chain of command that refused 

to investigate nursing retaliation is still in place. The chain of command that authorized a written counseling for violating a policy 

and then said they don’t have to tell me what policy I violated is 

still in place. The chain of command that interpreted the 24/7 Federal contract to mean that I could be forced to work unlimited 

scheduled shifts for 2 years without any compensation is still intact. 

You’ve only addressed the scheduling issue. You certainly haven’t 

addressed what’s happening when you bring all those vets in, and 

you’ve already got your physicians overloaded. 


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Mr. FLORES. Okay. That’s the answer I was afraid that I was 

going to get. 

Dr. Head, I think you passed over something pretty quickly in 

your testimony. You said that your pay was stopped for a while. 

Did you say that? 

Dr. HEAD. Yes. 

Mr. FLORES. Were you ever told why it was stopped? Was it 

blamed on administrative error or what? 

Dr. HEAD. I was accused of time card fraud, and they said they 

weren’t going to pay me. And when I obtained an attorney and 

showed proof of my presence, they paid me. But it took a number 

of months to do that, and, you know, I interpreted that as clear retaliation. It was a very painful time when that occurred, and they 

really gave me no clear explanation. 

Mr. FLORES. That’s truly amazing that the Federal Government 

would do something like that. 

Mr. Michaud asked a question regarding legislative fixes to some 

of the things we’re talking about. Let me ask you this: I mean, is 

there any legislation that we could do to fix the culture at the VA? 

I mean, I think what each of you have said clearly in your testimony, we have a real cultural issue, a sick culture at the VA. What 

can we do legislatively to fix that, if anything? 

Dr. HEAD. I’ll be very brief. You know, I think there has to be 

some fear of accountability. Currently evidently certain individuals 

feel they can act with impunity; that either the system is too slow 

to respond, or maybe it never responds. But they fear they can engage in these activities and know that they have government attorneys to represent them on the taxpayer’s dollar to protect them in 

these legal fights. And sometimes they know they’re absolutely 

wrong, and they have a protracted battle on purpose because they 

know most individuals can’t withstand that type of punishment. 

Mr. FLORES. I see. 

And, Mr. Davis, anything you could add to that? 

Mr. DAVIS. I would echo what I said earlier. You have to spread 

the accountability. It’s one thing to have a VA manager go through 

initial lawsuit or some sort of just claim of retaliation and be represented by an attorney, but when you see a pattern behaving— 

just as when we look at people’s time cards, if you see people constantly taking Friday off, you know something is probably wrong, 

if you see the same VA manager constantly being represented by 

the General Counsel’s Office, then at some point you need to less 

that coverage. 

Think about it like car insurance. If I keep banging my car into 

other cars, I’m going to get dropped off the policy. So if the VA official continues to put the agency at risk of litigation and liability, 

then the coverage should lapse as well in that situation. 

Mr. FLORES. Dr. Mitchell? 

Dr. MITCHELL. I would agree with the others on the panel in the 

interest of time. 

Mr. FLORES. And, Dr. Mathews, you can go until the light turns 

red. 

Dr. HEAD. Okay. I’ll be more mindful. 

So if I had two wishes, the first would be that the data integrity 

should be there, because once the data is transparent and accurate, 


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I think, you know, our lawmakers can act on it, the veterans service organizations can act on it, the newspapers can report on it. 

Now, if they just cook up data, there is no way to even find out 

that there is a problem, so that would be number one. And the second thing—and, at least for a short while, to take away that responsibility away from the VA, of managing their old data. And the 

second is, I agree with everybody else about accountability and not 

having lifetime tenured positions. 

Mr. FLORES. Thank you, Dr. Mathews. 

I yield back, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Dr. Ruiz, you are recognized for 5 minutes. 

Dr. RUIZ. Thank you, Mr. Chairman. 

Thank you all for being here. 

I’m an emergency medicine physician, and oftentimes we’re put 

in a position where we are the last stop for our patients, the gatekeepers, and also in the front lines in taking care of our patients. 

And I understand that we have to sometimes fight the system very 

hard in order to do what’s right for our patients, because if not us, 

then who? 

And I appreciate all of your efforts in advocating for your patients despite the consequences and the risks that you put on yourselves regardless of your specialty or of your responsibilities in the 

hospital, and that’s admirable, and that’s what I refer to as a highquality, veteran-centered culture of responsibility and accountability in our VA system that we need to transform into. We’re not 

there yet, and we need to make sure that we apply the mechanisms, the processes and the evaluations within the system that 

will lead to a veteran-centered institution. 

Now, having said that, in the private sector and in our training 

as physicians, there’s a form of ceremony that we do that ensures 

that we address these atrocities, and that is the M&M rounds, morbidity and mortality rounds. Do you have those, Dr. Head and Dr. 

Mitchell? 

Dr. MITCHELL. Not for the emergency room. I know that they 

exist in surgery service. 

Dr. RUIZ. Do you have one, Dr. Head? 

Dr. HEAD. Yes, we do. It’s more traditionally in surgery, but we 

have equivalents for internal medicine, also for emergency. 

Dr. RUIZ. I think all specialties should have them. Emergency 

medicine practices throughout the country also have them where 

they review things that went wrong, mortalities, people that have 

died, and what were the causes of those. Do you have the COO of 

the hospital or Administrator sitting in to listen in to determine if 

there was any lapses of any systematic failures that led to those 

problems? Dr. Head? 

Dr. HEAD. Traditionally there’s several layers. We have our risk 

management committee, then it’s presented to risk management. I 

often will hear things either through the tort process or a week or 

two after it’s been presented, and then egregious activities presented by our Chief of Staff directly to the COO. 

Dr. RUIZ. Well, there should definitely be metrics based on those 

morbidity and mortality results and classifications to determine if 

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lowing in integrity and practice, or lack of judgment, et cetera. And 

that will give information as to what needs to happen, and that information should be directly linked to the COO’s and the Administrator’s ability to make those changes that are necessary. 

The other way to ensure a systemic and a transparent, open way 

to evaluate certain practices so that we don’t have to rely on whistleblowers are through chart reviews and spontaneous or random 

audits. Do any of that exist in your practices? 

Dr. MITCHELL. I was the person that would look at the issues 

that would come up, because the physicians would give me all their 

cases. I asked them to do that so that I would be the only one that 

would be retaliated against by the nursing staff. 

I do know there is a process of looking at suicides in our facility, 

but the chain of command over that area refuses to release that information. That was not even available to the suicide prevention 

team members when I asked them. 

Dr. HEAD. And the M&M process is only as strong as the people 

who self-report those issues. If there is a complication, it’s not reported, it can become invisible. 

And the other thing, too, is another strong part of our component, of our institution’s root cause analysis, but that’s only as 

strong as the ability to actually report an incident. If an incident 

is not reported, then it can go invisible. And usually I will catch 

it later, several years down the road when it’s coming to the tail 

end of the tort process. It’s too late at that point. 

Dr. RUIZ. Yeah. I agree, and I think that mortality is very evident. When somebody dies, that should be investigated and determined if there was any wrong during that care for that veteran. I 

believe that part of the solution, and I’m very encouraged on Ms. 

Kirkpatrick’s efforts and advocacy with the Phoenix VA, and I appreciate her leadership, and I believe that the idea of taking the 

responsibility away from those that will have to do self-evaluations, 

from those supervisors, and placing it in another location that has 

more of the advocacy role is a very good idea. 

With that, I yield back my time. 

The CHAIRMAN. Thank you very much, Doctor. 

Mr. Runyan, you’re recognized for 5 minutes. 

Mr. RUNYAN. Thank you, Chairman. 

And thank you, all, for, again, your courage to come out and 

stand up for our veterans. 

Mr. Davis, I want to just put this out there because I know Dr. 

Ruiz just talked about this, and Ms. Kirkpatrick had ran out of 

time, but, again, a statement you made earlier: Can the VA police 

itself, and if not, who? 

Mr. DAVIS. Thank you. I don’t think VA can police itself. It’s kind 

of like a scholarly journal; you don’t peer-review yourself. I would 

look at maybe an organization like the Government Accountability 

Office maybe finally setting up some sort of oversight panel of 

healthcare professionals. 

One of the things I will tell you that VA employees talk about 

is during the financial crisis there was talk about bringing people 

like Elizabeth Warren. During the talk about national security 

issues, they talked about bringing back Dr. Gates. When we had 

the crisis in VA, we were sent the Deputy Chief of Staff, and that 


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is no disrespect to Mr. Nabors, but where’s the medical leader 

that’s going to come rescue health issues at the Nation’s largest 

health organization? And I think that’s the issue. It goes to the 

issue of how people look at VA. 

One of the reasons why I reached out to the White House was 

because I was trying to find the person who could answer questions 

and resolve the issue. We have almost a czar for almost everything 

you could imagine in this town, but not one for veterans, and I 

think that’s the issue. There has to be an outside source to say, Mr. 

Chairman, Members of Congress, Mr. Speaker, Mr. President, I 

have noticed this information; this information came to me; it’s not 

going to work. 

In terms of the context of giving the Secretary the right to fire 

people, in November 2013, a memo was released by the Assistant 

Secretary for Human Resources stating that employees were not to 

go to the Secretary’s office about complaints because it obstructs 

the final decision of disputes, but he still will accept confidential 

emails. Well, if that’s the approach they take, even if we change 

the law, we still would not get the information to the right people 

to hold the 400-and-something-odd people accountable. There has 

to be some change in the law to allow outside institutions to become the policing organization over VA. It’s simply not going to 

come from within. 

Mr. RUNYAN. Which kind of leads to my next question, and I’ll 

ask Mr. Davis first, and if there’s any time left, I’ll ask Dr. Mathews to follow up. Because Dr. Mathews said in one of his statements that he doesn’t necessarily know that it gets above the St. 

Louis regional into maybe the central office. Can you shed some 

light on that? 

Mr. DAVIS. I can shed light on that. I will tell you the only reason why my case got to where it was, because I didn’t go through 

the elongated grievance process, because that’s a way of trapping 

the employee and constantly filing complaints, filing complaints, 

appeal process after appeal process. 

What I decided to do was to go to the person at the top, the principal executive in our organization, and I sent the information to 

him. When that didn’t work, I sent it directly to the Secretary. 

When that didn’t work, I went to my Congressman. So I think that 

we have to put something in place which would allow VA employees to fast-track the grievance process. 

And it depends on the variation. If it’s something, me and supervisor doesn’t get along, well, that can go through a normal process. 

If it’s about patient care and the welfare of human beings or lost 

applications to people who have served in Iraq and Afghanistan, 

that needs to be fast-tracked and brought to the forefront. 

In Ms. Hughes’ case, when she was conducting the investigation 

of the 2,000 missing applications, once the Director said stop, there 

was no recourse for her. And so I think we’ve got to find something 

to put in place to allow these complaints to kind of go to the forefront based upon the severity and the critical nature that they represent. 

Mr. RUNYAN. And with my remaining time, Dr. Mathews, I 

mean, you made the statement. Do you have a sense if central ofVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 Y:\89377.TXT PAT

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fice sees this as an issue? Because it seems like there’s a disconnect. 

Dr. HEAD. Well, there is a disconnect, and, you know, I really 

don’t believe any of the data that the VA puts out, unfortunately. 

And, you know, we have to have data integrity, and how we, you 

know, are basically talking about ways to make that happen, and 

that at least at this time, maybe for a temporary period of time, 

we need to have an external agency that has higher integrity than 

the VA looking into the data, looking into these complaints and 

triaging as to what needs to happen first and what can wait. 

And unfortunately, the VA has demonstrated over and over again 

that they are not able to police themselves. They are not able to 

come up with honest, negative information. And it, again, is not an 

academic exercise; it really hurts the lives of our veterans. 

Mr. RUNYAN. Thank you. 

Mr. Chairman, I yield back. 

The CHAIRMAN. Thank you. 

Ms. Kuster, you are recognized for 5 minutes. 

Ms. KUSTER. Thank you, Mr. Chair, and thank you to all of you 

for your courage in coming forward. We appreciate it, and we understand the risk that you are taking, and just know that we are 

your witness. If there is anything that happens to you, please be 

in touch with our offices. 

I would like to follow up on Dr. Ruiz’s questions to Dr. Head and 

Dr. Mitchell. In the private sector, in the healthcare field, we have 

a process of quality assurance that sounds like maybe what you’re 

doing in your root cause analysis, but to get at the issues that impact patient safety and the safety of veterans, but also some of the 

staffing issues, Dr. Mitchell, that you raised in your testimony. 

Is there any type of process within the VA for sharing best practices or for determining what are effective mechanisms? The types 

of problems that you are describing we perhaps are fortunate not 

to have. I have toured our VA facilities in Manchester, New Hampshire, and White River Junction, Vermont, and found very high levels of competence, and access and quality of care. So I’m wondering, what is the practice of sharing best practices, and how 

would you go about improving upon that? 

Dr. HEAD. Well, in 2012, November of 2012, I noticed a spike, increased number of veterans who were presenting with advanced 

cancer. And once I did a little research, I found they were in the 

system, but, for whatever reason, they weren’t either receiving a 

screen, like a colonoscopy, or there wasn’t really follow-up, and that 

troubled me. 

So I sent the email to the Director around 1:30 in the morning 

saying that we should follow the practices that are well established 

in the community and the standard of care within the National Institutes of Health. And it’s around 50 pages. There are flow diagrams, standard operating procedures to kind of make it basically 

idiot-proof that when you have certain patients that come in, that 

you should have guidelines of when the patient should be screened, 

when they should receive treatment; that if they have cancer, they 

need to be presented a multidisciplinary team so we can expedite 

therapy, because most therapy is a multimodality of either chemotherapy, radiation therapy, surgery, if possible. 


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For whatever reason, this was not happening in the number of 

patients that I saw. And so I encourage us to adopt some of those 

things. And but—— 

Ms. KUSTER. Did you have any success with that? 

Dr. HEAD. Well, I had some success, but I think one veteran 

who’s in the system who doesn’t receive the screenings necessary 

is too many, in my opinion. And so I thought that we should have 

more—those type of ideas should always be flowing within the VA 

to have procedures so we don’t miss the veterans. No veteran 

should be left behind, even if it’s cancer. 

Ms. KUSTER. And is there any process for quality improvement? 

Is there any—do you have any procedures or protocols within the 

VA system that you could bring forward these types of standards 

and procedures? 

Dr. HEAD. That’s what I’d like to do. But, you know, I can’t say 

I’ve been able to do it because of the other activities I’ve had to be 

involved in. But—— 

Ms. KUSTER. Dr. Mitchell, have you had any experience with 

that? 

Dr. MITCHELL. Yeah. There is a whole quality assurance division 

in our VA. And certainly I was on an email group for ER physicians, the Directors, and we shared ideas. The problem is what we 

need is a best practice of how to overcome bad management, because we all knew we were all suffering from short staffing. We 

were all suffering from other issues, problems with nurse triage, 

other things. We just couldn’t get anyone in our facility to listen 

to us that had the power to make the change. Again—— 

Ms. KUSTER. And with the short staffing, were you told that that 

was a fiscal issue, that you couldn’t hire people, or is it an issue 

of timing in terms of getting professionals credentialed? 

Dr. MITCHELL. The reason varies depending on the week. It can 

be because we’re short, there’s a hiring freeze. It can be there 

aren’t enough good applicants, which is often the case. A lot of 

times there are fantastic applicants, but the process of 

credentialing them takes 8 or 9 months, in which case they’ve already found another job. 

Ms. KUSTER. And just briefly, and I have very little time left, but 

I just want to say, Dr. Head, having reviewed your testimony in 

the various lawsuits, I’m extremely concerned about the issue of racial bias in your record, and I just want to commend you on your 

courage and your professionalism and admire the strength that it 

takes for you to just get up and go to work every single day. So 

thank you for coming here today. I appreciate it. 

Dr. HEAD. That is quite a compliment. Thank you very much. 

Ms. KUSTER. Thank you, Mr. Chair. 

The CHAIRMAN. Thank you. 

Dr. Benishek, you’re recognized for 5 minutes. 

Mr. BENISHEK. Thank you, Mr. Chairman. I. 

Want to thank you all for your very, very powerful testimony 

that you presented here today. You know, I was a VA doctor for 

a long time myself, and, you know, I really feel that there’s a great 

deal of difficulty in communicating with leadership. 

And I think, Dr. Mitchell, you sort of mentioned it, too, is that 

when you find problems within the VA as a physician, you try to 


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tell somebody up the ladder what the problem is in order to improve care, there is no one that seems to be able to get something 

done. I mean, you talk to your Chief of Surgery or the Chief of Psychiatry, the Chief of the ER and then you talk to the Chief of Staff. 

Is the Chief of Staff usually an advocate for the physician, or are 

they an advocate for the administration? Or who do you go to then? 

My concern is that physicians don’t have enough access to management to make changes that they recognize need to be done. How 

can we do that better? Let me ask all of you how to do that. 

Dr. Mathews, why don’t you start. 

Dr. HEAD. Yeah. Well, you know, in my particular case, you 

know, I was the Chief of Psychiatry, and I was going to the Chief 

of Staff, and it seems like, you know, these things don’t register, 

like you said. It’s not given the right urgency or the right priority. 

Mr. BENISHEK. Does the Chief of Staff have somebody that they 

can talk to up higher on the list? You know, I mean, that seems 

to be the place where it seems to stop, from my experience working 

there. Is that the problem, you think? 

Dr. HEAD. Well, you know, I really do not know what the Chief 

of Staff—— 

Mr. BENISHEK. Dr. Head, what’s your opinion about that? 

Dr. HEAD. Well, you know, one person’s Chief of Staff came to 

my defense, and this person was severely punished and pushed out. 

So I do think there are a good people in Chief of Staff. In our hospital, we have one of the largest VAs in the country, there is close 

to 12 Chief of Staff members. You know, some of them know that 

retaliation is a problem, and then others are part of it, so—— 

Mr. BENISHEK. Dr. Mitchell, what do you think about that? 

Dr. MITCHELL. My experience with Chief of Staff, and we certainly run through several at the Phoenix VA, is that generally 

they advocate for themselves. We do have the option of going above 

to the VISN level, but often they just refer you back to the facility 

director. 

Every physician has the ability to go to the local union office and 

say they want to organize. There are certainly some physician 

groups that have done that that have gotten memos of understandings to stop the overload of physician panels and things like 

that. 

But the physicians have to organize themselves in whatever way 

they want to approach that, whether it’s through the union or 

whether it’s by themselves, and then going through management. 

The problem is everyone is too afraid to do anything because the 

risk of retaliation is so real, and that’s the loss of your livelihood 

at best. At worst, it’s the loss of your career and your ability to be 

employed anywhere within the vicinity of that VA. 

Mr. BENISHEK. Can you tell me more about this—I understand 

there is kind of a sham peer review thing. Can you explain that 

to me again? 

Dr. MITCHELL. Normally a legitimate peer review is where someone has questioned the ability of a physician to meet—— 

Mr. BENISHEK. Well, I’m familiar with M&M, morbid and mortality conference. That’s where we typically would do that in my 

hospital setting. 


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Dr. MITCHELL. It’s more than just an M&M, though. Everyone 

can make a mistake, and things can be overlooked. A peer review 

is where you are so afraid that this person is not practicing up to 

the standard of care that you pull a large section of cases and have 

his peers review them to see if there are truly significant deficits 

in the person’s ability to practice medicine. That is only supposed 

to be done in extreme cases where there truly is legitimate concerns that this physician is not up to standard as far as practice. 

Sham peer review is where you have the ability to call a review, 

a major review, of a physician’s cases. If you can’t find anything 

that they have done wrong that’s significant, then what you can do 

is put kind of subjective findings; well, this physician, you know, 

doesn’t necessarily practice with the most professional ability to 

interact with people, or something very vague, very subjective. 

What happens is that in the medical community, peer reviews 

are only done if there are huge red flags. That’s the reason why 

it’s important that if you were ever the subject of a peer review, 

you have to report it on a license or a job application. Most people 

that don’t work in the VA don’t realize that peer reviews are done 

as punitive actions in the VA in order to sabotage a physician’s 

credibility. It’s also incredibly demeaning and debasing for a physician to go through a peer review practice because they are practicing professionally. Psychologically it’s so stressful, most physicians would quit. 

Mr. BENISHEK. This is done by other physicians on the staff with 

you, though. 

Dr. MITCHELL. Yeah. Usually it’s the Administrator and then 

friends of the Administrator. They all get together and say, this 

guy, you know—— 

Mr. BENISHEK. There is not a physician, then, you’re saying? 

There is not really peer review. 

Dr. MITCHELL. No, it’s physicians. Just because someone has an 

M.D. doesn’t mean they have ethics. 

Mr. BENISHEK. I guess I’m out of time. 

The CHAIRMAN. Thank you, Doctor. 

Mr. Walz, you’re recognized for 5 minutes. 

Mr. WALZ. Well, thank you, Mr. Chairman, and, again, I will associate myself with my colleagues. Thank you, all, for the work you 

are doing, because you understand the corrosive nature of this is 

not just the personal damage that is done to you, but, as each of 

you have so clearly stated, and eloquently and with passion stated, 

it hurts our veterans. That’s what’s at stake here, too, so I appreciate that. 

Mr. DAVIS, you summed up what I’ve been beating this drum for 

years: There is no national veterans strategy. When I asked them 

what their strategy was, they give me a goal that they’re going to 

get to. There’s no strategy how to get there. So it doesn’t surprise 

me when you call the White House, they’re not quite sure who to 

send, they’re not quite sure who to go with, because it doesn’t work 

that way. 

I’ve been asking for a quadrennial vets review just like we do in 

DOD so that we can have a strategy, we can resource it correctly, 

and we can have the things in place to make the corrections, but 

that is lacking. 


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And I would go further on this, and I could tell each of you that 

we’re coming to this how do we get this. I am with Dr. Mathews. 

I will tell you, Dr. Mathews, I am not putting my veterans’ health 

care nor my reputation on the data I receive. So when people ask 

me how are the local facilities doing, I am worried to tell them. I 

said, well, the data they’ve given us is showing this. I’m out there 

every day. I’m someone who has been there. 

But here we sat, and my colleagues will tell you this, months ago 

we got flagged after the audit, and we had some of our facilities 

flagged. And they sat right there, and those of you sitting in the 

VA behind there, you can be sure that we want an answer, and we 

will ask you again tonight, whether it’s your field or not, why don’t 

we know what happened at Rochester? Why is it flagged? Why is 

it flagged? Can somebody speak to that? Can somebody say? And 

tonight we get general counsel. They all blamed you in all the other 

hearings, so now you get the answer tonight. 

But I would suggest this—and not to point at you, because I 

know the good work that is going on. I would submit to all of us 

here, the watchdog on this and the outside agency to look at this 

is here, is us. We are given the constitutional right to do it. 

When I go home, I’m asked about this, and I should be held accountable of where this is asking, but we don’t know where to get 

it. And I would suggest that this committee is the most nonpartisan in many cases. The staff that sits up here, I can go to either one, the majority and minority, and get answers to fix problems for veterans because that’s what they do, but it’s been historically understaffed. 

I would like to send this staff out there to tell me what’s happening in St. Louis, to what’s happening in Los Angeles, come back 

to report so I get it from the horse’s mouth, because right now I 

can’t trust where that data’s coming. 

So that’s my soapbox to each of you. And we all feel very strongly, but we have to come up with a solution. We have to have an 

accountability. We have the constitutional power. We need to get 

some authority to be able to do this. We need to add to these good 

staffers who are up here so that they can get out there and ask 

the questions and start doing this. 

And I would suggest or put forward to each of you, maybe I’m 

a little Pollyannaish on this, but, I mean, it’s just beyond the pale 

to me that there’s people acting—I’m a high school teacher. This 

is bullying. I mean, this is what it amounts to. You talk about horizontal violence. There’s been a lot of research done on this. Here’s 

what happens when you have that: Increased turnover; lost productivity; employee loss of motivation, commitment, satisfaction; lots of 

lateral transfers, lawsuits; and adverse impact on patients’ customer satisfaction. We know all that. That research is out there. 

The question I have is that we can say it’s the VA, we can go 

down this it never happened in the private sector. It happens in 

the private sector, too. This is about people and accountability. 

What we need to figure out: National strategy, put in place the 

accountability pieces, have the elected people who get here by the 

public’s will who want to get this right, and then have the resources and the power to make sure it happens. Because there’s 


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wonderful people—you work with them every day—providing great 

care. 

Mr. WALZ. One question to you, Dr. Mitchell. You said, over 16 

years, the care has improved at Phoenix, the care of veterans. How 

do you simultaneously improve care while this corrosive culture 

has existed? Is that just the quality of the people that are coming 

there to work? 

Dr. MITCHELL. Yeah, what you have is you have an incredible 

force for change in your employees. The majority of employees are 

veterans themselves or family members of veterans. They give incredibly good care, whether it’s direct patient care or whether it’s 

indirect care. 

And so, despite the fact that there’s a knot that their stomach 

when they try to get in their car to go to work, despite the fact that 

they know that their supervisors are going to harass them all during the day, they try to give the best care that—— 

Mr. WALZ. So that’s really happening? So when someone says the 

care—when my veterans say the care at the VA, once you get in, 

if you can get past that—I would ask each of you, have you been 

in different VA hospitals? Does Minneapolis look like L.A.? 

Dr. MITCHELL. I’ve only been in Phoenix, and we give tons of 

really good care. The problem is, with healthcare needs, when you 

ignore them, a veteran falls through the cracks, and that has devastating consequences to their health. 

So what we’re focusing on is the hundreds of thousands of cases 

where there’s been bad care given. We shouldn’t lose sight of the 

fact that we give millions of instances of quality patient care. And 

that’s the reason why the VA is worth saving, because our employees make it worth saving. 

Mr. WALZ. Well, our young residents and our young graduates of 

our medical institutions, will they still choose to continue to go to 

the VA like you did and give careers? Because my fear is this: We 

drive them away, we make it so unattractive, we make it so 

poisoned that we can’t—and I’d just—— 

Dr. MITCHELL. I wouldn’t recommend, in the current state, that 

people get a job at the VA as a physician until there’s some guarantee that whistleblower retaliation will be protected, that the pay 

will be the commensurate with what’s in the community, that 

there’s a professional work environment. Everyone just—I’m really 

proud to be a VA physician—— 

Mr. WALZ. That’s a nightmare scenario for me, because we know 

what the numbers look like, we know the care that our veterans 

are going to need, and we’ve got to get this figured out. 

So I yield back. Thank you, Chairman. 

The CHAIRMAN. Thank you, Mr. Walz. 

Mr. Huelskamp, you’re recognized for 5 minutes. 

Mr. HUELSKAMP. Thank you, Mr. Chairman. 

I appreciate the witnesses coming and visiting with us tonight 

and sharing your story. 

And I’m particularly troubled by the last comment, the suggestion, the recommendation that folks look for employment elsewhere 

until these problems are fixed, Dr. Mitchell. 

One thing I would ask for each you: Each named superiors or 

other senior staff who ignored your pleas, violated your confidenVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 Y:\89377.TXT PAT

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tiality, knowingly injured veterans or placed them at risk. Do you 

know if any of these have been punished or censured by the VA? 

I’ll start with you, Dr. Mathews. 

Dr. HEAD. No, I do not know. And, you know, with the whistleblower retaliation and cooking up numbers, it’s basically sending 

all the wrong messages, that it doesn’t matter, care is optional, 

we’ll protect you, we’ll come up with the numbers. You know, it’s 

so corrosive. 

And, you know, going back to the point of Mr. Walz, I started the 

Washington University residents rotating through the VA. And I 

had one resident, who was very good, who wanted to join, who did 

not. And I had two other people I knew in the community who were 

excellent psychiatrists, trained at very good places. And they came 

and interviewed, but, you know, they couldn’t, they didn’t want to 

work in these situations where—they were wanting to join because 

I wanted to build a good mental health clinic there. And then it 

was inconceivable that, you know, they just removed me from that 

position. 

So this is a very corrosive—it’s very demoralizing to a lot of the 

ethical people who work there, as well, because they see either they 

have to leave or they have to just keep quiet and suffocate internally. I think that there are no other choices there. 

Mr. HUELSKAMP. So there’s no doubt in your mind other employees see the mistreatment, the violations, and see your treatment 

and choose to remain silent in the face of that. 

Dr. HEAD. I absolutely know that for a fact, that that’s the case. 

Mr. HUELSKAMP. What would you recommend—and all members 

of the committee have probably heard from constituents since this 

scandal really broke open, and the committee’s been looking at this 

for a number of years. But what would you recommend to whistleblowers that have knowledge, have this concern, that share your 

doubts about how they’ll be treated? What should they do? Who 

should they turn to? 

I’ve had three to four whistleblowers. I showed up unannounced 

for a surprise visit to a facility, somehow was able to get in and 

started to uncover things. But what do I tell whistleblowers when 

they say, Congressman, this is what we’ve seen happen, but we’re 

not going to tell you our name because we’re afraid we’re going to 

lose our job? What should I tell them? 

Dr. MITCHELL. Well, at this point, you could give them my name, 

and I’ll report it. Since I’ve already got a target on my back, it 

doesn’t matter. 

Actually, that’s what’s happening. I’ve had multiple phone calls 

from physicians from VAs across the country. There’s a VA facility 

that’s bedsore-free, not because they don’t have bedsores, but because the physicians and the nurses were forbidden to document 

bedsores. 

There’s several—and there are many, many, many issues. I’ve 

certainly contacted Jeff Miller’s, or Representative Miller’s office 

and gotten a phone number of someone who said that they would 

maintain the confidentiality and investigate. And, at this point, I 

would tell whistleblowers to go to the Congressman or see Mr. Miller. And that’s a problem above my pay grade. 

Mr. HUELSKAMP. Yeah, and that’s what’s happened in our office. 


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Mr. Davis? 

Mr. DAVIS. Yeah. I would say, I’ve had several whistleblowers 

come to me directly, and I’ve shared their testimony with the committee, and I’ve actually read some of their statements into the 

record. And I, too, would say those that I know are familiar with 

the administrative process side of the House, I’ll be more than 

happy to take their whistleblower complaint to the public. I think 

that’s our ability to do what we can. My background is communications, so I was able to navigate through the press process a little 

bit quicker than most whistleblowers. 

And I think that’s the key thing. It doesn’t take everyone to do 

the same thing. Some people may be comfortable at just going to 

the IG. Some may be comfortable going to their Representative or 

Senator. Some may be comfortable going to the press. But there’s 

different levels of whistleblowing. You don’t have to go as far as we 

did. I think we’re something—a little bit, in some cases, the exception. But I think there are different ways you can get the information out. 

And there are different people who want to report it. There’s interest groups, there are civil groups, there are veteran service organizations who would be more than happy to get the information. 

They have the right connection with many of the leaders in Congress. There are different ways you can get the information out. 

But I will tell you this: You feel much better when you say something versus holding it in. 

Mr. HUELSKAMP. And I have no doubt there are VA employees 

that are as concerned as you are listening tonight or seeing the 

comments. And, I might add, there are probably—there’s folks out 

there probably tearing all four of you down for having the courage 

and bravery to show up. 

But recognize, if you’re listening, step forward. And my office, 

other offices, we’ll be there to carry that water for brave employees 

like yourself. So I appreciate your commitment. 

Mr. Chairman, I—— 

Dr. MITCHELL. Excuse me, I wanted to make a clarification. Even 

though I said I would not recommend getting a job at the VA, I actually am not looking for a job elsewhere. The VA is really important work. I would tell those people they’re working—they’d be 

working with great people, but they have to have a true understanding of the administrative culture and where it stands today 

and then make the decision. 

Mr. HUELSKAMP. Yeah, Dr. Mitchell, there is no doubt in my 

mind your commitment to our veterans, so thank you. 

And, Mr. Chairman, I yield back. 

The CHAIRMAN. Thank you, Mr. Huelskamp. 

Mr. O’Rourke, you’re recognized for 5 minutes. 

Mr. O’ROURKE. Thank you, Mr. Chairman. 

To follow up on Mr. Huelskamp’s statement, Dr. Mitchell, I 

couldn’t help wondering during your testimony and in the answer 

to many of the questions that were asked of you, as you detailed 

the ostracism that you endured, the being shunted aside when you 

made problems for management, ending up in a position now 

where you say you’re doing good but it wasn’t the position that you 

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ing you would recommend to somebody who’s thinking about working for the VA, not now, not until we get accountability and oversight and protection for whistleblowers, I couldn’t help wondering 

why you stayed. 

Dr. MITCHELL. I stay for a couple of reasons. One, the work is 

incredibly fulfilling and important. I went back to medical school 

specifically to be a VA physician because I saw there was a great 

need. 

Everyone who works at the VA knows there are limitations. 

That’s—we’re a Federal department; there are limitations. The veterans are so grateful for the quality of care. You’ll see such a wide 

variety of people at the VA and, certainly, disease states. From a 

physician standpoint, it’s interesting. My background is geriatrics. 

It was a playing field for geriatric. In fact, ER was geriatric urgent 

medicine at its best. It’s very interesting, it’s very fulfilling. 

I don’t always feel so resilient, though, as a physician there. I’m 

definitely tenacious, I’ll give myself that, but sometimes it’s really 

hard. There is that knot in the center of your stomach driving in, 

where you just don’t want to show up because, as much as you love 

the veterans, the administration wears you down, and you begin to 

doubt your own professional abilities. 

Mr. O’ROURKE. Just from your answer to my question and what 

you said earlier—and, really, for everyone on the panel, I mean, we 

keep asking about culture, which is the most important issue but 

probably the most difficult task before us as a country in terms of 

turning around the VA, but you really represent the culture that 

I think we’re looking for and that we want to see throughout the 

system, not just at the provider level, at management, at the Secretary level, on through this committee, and, again, as a country. 

So I want to thank you for that and thank you for the example that 

you provide. 

But I also want to follow up on another comment that you made. 

You mentioned surviving 16 years of this. And these problems 

didn’t just occur, you know, under this administration or the administration prior to that, but they’re longstanding. 

And I remember—I’ve been here for a year and a half, and one 

of the first hearings I attended was a joint hearing with the Senate 

VA Committee, where we heard from the veteran service organizations. And I remember a commander coming before us and saying, 

you know, this is my—I don’t know what the exact number was— 

this is the 32nd time I’ve appeared here, I’ve been coming up for 

decades, and I’ve been saying the same things over and over again. 

So you said that this is a system worth saving, but my question 

to you is, is it salvageable? 

Dr. MITCHELL. Oh, yes. You’ve got thousands and thousands of 

employees that are dedicated to the veterans and the welfare of the 

veterans. I am really discouraged when I hear people say the VA 

is too big to change. You have an entire group of people that are 

ready for a revolution, and they want this. They want a productive 

healthcare system delivering good care. 

The horizontal violence has to stop. That was one of the implications of whistleblower retaliations, that it affects care because you 

don’t speak up to say what the problems are because you’re afraid 

of the repercussions. The corollary to that is that you begin to— 


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it’s a pressure cooker—you begin to pick on each other. Gossiping, 

bullying, exclusive cliques at work. We kind of feed on each other 

because we’re don’t know what—we’re under so much pressure. 

And that needs to stop, too. 

Mr. O’ROURKE. Yeah. 

I wanted to—and each of you have given us some ideas and some 

direction on how we can make those changes, but I do wonder how 

we’re going to be able to do it after so many years and so many 

fundamental systemic problems. 

Dr. Mathews brings up the issue of not being able to trust the 

integrity of the data, which has become obvious to all of us. And 

I commend your efforts to measure those things that are important 

to patient care and outcomes in the facility at which you worked. 

We’ve been trying to do that in El Paso. We’ve seen similar attrition rates of over 40 percent of veterans seeking mental health who 

can’t get an appointment just give up and stop trying. And we can 

only, right now, because we don’t have the full story, wonder at the 

outcomes. 

Mr. Flores and I and Mr. Jolly and others on the committee introduced the Ask Veterans Act, which would not rely on the VA to 

tell us how the VA is doing but ask veterans to do exactly what 

you are trying to measure in your facility. 

So, anyhow, let me just conclude by thanking you all for what 

you’re doing. And I hope that the recommendations and direction 

that you gave us tonight lead to some of the cultural changes that 

we all know are essential to turning the VA around. So thank you. 

Mr. Chair, I yield back. 

The CHAIRMAN. Thank you, sir. 

Mr. Coffman, you’re recognized for 5 minutes. 

Mr. COFFMAN. Thank you, Mr. Chairman. 

Thank you all for stepping forward as whistleblowers. I believe 

that the rank-and-file in the Veterans Administration are, in fact, 

employees that truly care about serving the needs of our Nation’s 

veterans. And without the whistleblowers, such as yourself, who 

have had the courage to step forward, we would never know the 

problems that exist within the Veterans Administration, because 

none of the problems have ever been self-identified by the leadership within the Veterans Administration. We’ve always been aware 

of them simply by whistleblowers coming forward and sharing with 

us the reality of what is occurring on the ground within the Veterans Administration, particularly the Veterans Health Administration. 

Mr. Davis, one thing, I think, when we became aware of—started 

to become aware of the magnitude of the crisis, it was concerning 

the patient wait times and the fraudulent changes in terms of 

those records, often fueled by a drive for bonuses. 

Mr. DAVIS. Uh-huh. 

Mr. COFFMAN. But what you’re saying is, actually, the problem 

was much deeper than simply patient wait times, that they were 

also denying people inside the system. Is that correct? 

Mr. DAVIS. They were actually—— 

Mr. COFFMAN. To get into the system. 


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Mr. DAVIS [continuing]. Neglecting the applications. And I think 

this is where I think we have to look at—you can only get the appointment if you’re enrolled. 

Mr. COFFMAN. Oh, okay. 

Mr. DAVIS. And so we have systemic problems in the enrollment 

system. 

And to give you some context—you may hear this from the next 

panel—the office where I work, the Health Eligibility Center, is 

about to start what they’re calling a command center. This is something that they’re going to probably send to VA leadership, perhaps 

even this committee. 

But I want you to understand that real change will only come 

from real solutions at VA. Currently, this is part of what I call the 

gimmicks that go on at VA. We announce something, give it a new 

name, and we send it out, making the public and the leadership 

on the Hill think there’s a change. 

But I will tell you, when you look at this document, the communication training people perform communication training every day. 

That’s not anything new. The enrollment people perform the enrollment task. The call center people perform the call center task. This 

is not going to change anything. The strategy is to take people from 

the fifth floor and put them in a room on the second floor. This is 

what constitutes responding to veteran concerns at VA. 

And so I think what has to happen, what I would encourage the 

committee to do is follow something that I do think does work in 

business, and that is make people sign off on the reports they turn 

into the Congress. I can tell you what’s disappointing to me, as a 

citizen and a VA employee, is to watch leader after leader in the 

VA sit in these chairs and say, ‘‘I don’t know. I’ll get back to you. 

So-and-so was supposed to do that. General Counsel won’t let me.’’ 

That, to me, is just inefficient. If you’re going to be in a leadership 

position, you first need to lead. And so making people sign off on 

quarterly reports to say that I own the data that I turn in, I own 

the enrollment records that we turn in. 

I doubt very many people in this room knew there was a 600,000 

pending backlog at VA or that, last year, 40,000 applications, 

18,000 or more from Iraq and Afghanistan veterans. If people 

would’ve known that, something could’ve happened. If those reports 

had to be signed off on by people like Ms. Harbin, people like Mr. 

Matkovsky, people in positions that were held formerly by Dr. 

Jesse, Dr. Petzel—— 

Mr. COFFMAN. Uh-huh. 

Mr. DAVIS [continuing]. This is where the change comes from. 

Mr. COFFMAN. Right. 

Mr. DAVIS. But you’ve got to document. One of the problems we 

have as whistleblowers, the first time you go to make something 

public, they tell you, ‘‘Well, where’s your proof? Where’s the document?’’ Well, most people are not going to sign a document, ‘‘I’m 

deleting applications. I failed to process applications.’’ But this is 

the type of conversation—— 

Mr. COFFMAN. Sure. 

Mr. DAVIS [continuing]. You get when you go and talk to them. 

Mr. COFFMAN. Well, let me just put it this way. And if you all 

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tional right now in terms of its leadership, in terms of the culture, 

as well, so, I mean, having a new Secretary come in, the culture 

is still there. I mean, I hope that the new Secretary can make the 

appropriate changes, but it’s going to be difficult. 

Do you all believe that there should be an entity really outside 

of the Veterans Administration for which a whistleblower reports? 

To Mr. Davis, and then let me go down to the physicians here. 

Mr. DAVIS. I would absolutely say, yes, it’s imperative. If you 

really want real change and a true whistleblower environment 

where people will come forward, you have to take the policing 

power outside of VA. 

Mr. COFFMAN. Dr. Mitchell? 

Dr. MITCHELL. I would agree. No one trusts the VA to handle 

their own problems, nor report it to them. 

Mr. COFFMAN. Dr. Head? 

Dr. HEAD. I agree. 

Mr. COFFMAN. Dr. Mathews? 

Dr. HEAD. I completely agree. I mean, VA doesn’t acknowledge 

a problem exists. So, you know, I mean, it’s absurd to expect that 

they would want to fix it. Their position has been that there is no 

problem. And we have the numbers to prove it. 

Mr. COFFMAN. Okay. 

Mr. Chairman, thank you. I yield back. 

The CHAIRMAN. Thank you, Mr. COFFMAN. 

Ms. Titus, you’re recognized for 5 minutes. 

Ms. TITUS. Thank you, Mr. Chairman. 

Thank you for being here. 

I realize that there’s a pattern that leads us to the conclusion we 

need to go outside the VA. But aren’t we at a point where there’s 

a real opportunity to make a change because about nine of the top 

positions, including the Secretary, are vacant right now? 

So if we can bring in a new leadership team and impress upon 

them the need for this accountability, which we have heard repeated in every hearing, whether it’s on the backlog or the bonuses 

or whistleblowers, that this is the message, that maybe we’re at a 

point where we can start to make that difference? 

I’m sorry that Mr. McDonald can’t come in here and hear what 

we are hearing. I know that Sloan Gibson is scheduled to come, 

but, Mr. Chairman, we need to get the new Secretary in here as 

soon as we can, because he needs to hear the kind of things that 

we’re hearing so that we can move this in a new direction. 

I would just ask y’all: You’re located kind of near my district in 

Las Vegas. We have a new hospital. I met with some of the emergency room doctors there. It was at my invitation. They were 

scared to come. They aren’t as brave as y’all are. They wanted to 

be sure that they knew I invited them, because they feared some 

retaliation. 

Have you heard—and you travel in small circles. Have you had 

any contact with people at the Las Vegas hospital or are familiar 

with any whistleblower problems there? 

Dr. Head or Dr. Mitchell? 

Dr. MITCHELL. No. The individuals who’ve contacted me are from 

across the country but not from Las Vegas. 


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Dr. HEAD. No, I haven’t. And we’ve had a significant number of 

our staff actually relocate in Las Vegas when they were building 

their new hospital, but I haven’t heard of any whistleblower problems. 

Ms. TITUS. Well, I’m glad to hear that. 

One other thing I wanted to ask you, Dr. Head, you mentioned 

that the first response to a whistleblower is to try to impugn their 

integrity. And one of the examples you mentioned is that they often 

say is, well, you’re just a disgruntled employee because you didn’t 

get the bonus that you wanted. 

I just wonder, could you talk about maybe the possible nexus between bonuses and whistleblowing? Are people getting paid to be 

quiet? 

Dr. HEAD. I don’t—well, I have no evidence of people getting paid 

to be quiet. 

But I do think, you know, there is a tendency to try to generate 

a motive for why someone is coming forward and telling the truth 

or reporting wrongdoing, and it’s often associated with somehow a 

personal gain from a whistleblower. But I’ll tell you, there is no 

personal gain from being a whistleblower. Even when you go 

through long litigation and you ultimately win, you know, there’s 

no financial incentive whatsoever—— 

Ms. TITUS. Right. 

Dr. HEAD [continuing]. Believe me. 

Ms. TITUS. Oh, I’m sure of that. I was thinking of just the opposite, that you keep people kind of tamped down and not speaking 

up if you give them regular bonuses. And—— 

Dr. HEAD. I don’t—— 

Ms. TITUS [continuing]. That maybe keeps that culture of silence 

that you mentioned. 

Dr. HEAD. I think you’ll see that the bonuses are usually among 

the Chief of Staff or higher-ups who are receiving those bonuses. 

You’re not necessarily receiving bonuses at the level of some of 

these whistleblowers. 

Ms. TITUS. Dr. Mathews or Dr. Mitchell? 

Dr. HEAD. You know, in my experience at the St. Louis VA, I had 

productivity data or had data for every psychiatrist as to the number of patients being seen. And I know that there’s only one psychiatrist, perhaps, who did not get the full performance pay, which 

is, you know, what could be considered a bonus, and that’s me. I 

got 50 percent, and, actually, not for the wrong reason. They were 

correct, because I only could accomplish probably less than 50 percent of what I set out to do. 

But it sends a very wrong message, that, you know, the way to 

go about in the VA is to just keep quiet, just do what you want 

to do, and you will not get into trouble for not working. You know, 

the only reason, I think, one can get into trouble is by identifying 

problems and coming forward. So that has to change. 

And I think, you know, it’s a complex issue if you call it ‘‘culture,’’ but I think the fix to it can be very simple: demanding data 

integrity and holding people accountable. You know, that once that 

starts to happen and once some senior positions, not people who resigned who, you know, again, have high integrity that they resigned—I mean, the people resigned because, you know, they have 


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integrity—but the people who don’t care. And those people need to 

be fired so that it sends the message that this is not—this cannot 

be tolerated anymore. 

So, you know, I would say that you are right. You know, the people who get bonuses are the ones who just keep quiet and keep 

doing what they’re doing. 

Ms. TITUS. Dr. Mitchell? 

Dr. MITCHELL. Well, there’s a difference between a performance 

measure bonus and proficiency bonus. Performance measure bonus 

is what you get if your facility has met the performance measures 

to whatever degree. Most of us that are eligible for those are quite 

frustrated because the facility never has the resources to meet the 

performance measures. And so there is a bonus per se, but it is nowhere near—we want to be rewarded for the work we do on our 

proficiencies. 

Our proficiencies are actually how we perform through the year 

on our own personal merits, and those are subjective. Our administrators, if they like us, can rate us high; if they don’t like us, can 

rate us low and don’t necessarily have to give a reason why. 

Basically, most people stay quiet just for survival in the VA system, not because there’s any benefit one way or the other, at least 

at my level. I don’t know what’s in the SES service. 

Ms. TITUS. Thank you, Mr. Chairman. 

The CHAIRMAN. Dr. Wenstrup, you’re recognized for 5 minutes. 

Mr. WENSTRUP. Thank you, Mr. Chairman. 

And I thank all of you for being here tonight. 

And as I sit here and listen to your testimony, one of the things 

that comes in my mind is, somewhere along the line, through your 

parents or somewhere, someone taught you about doing the right 

thing and about being able to look in the mirror at the end of the 

day and know that you’re doing the right thing. And I applaud you 

for that. And know that you’re respected by those that matter. And 

those that don’t, they have their own issues. And I appreciate that. 

You know, I served in Iraq as a doctor, and we had something 

that you mentioned tonight, a sense of mission. We had a shared 

sense of mission, and everyone was on the same page. We’re a Reserve unit. We all come from private practice. There’s no room for 

slacking, and the patients were the first priority. And you work 

through the night if you have to, and you take shifts sleeping. And 

there’s esprit de corps. And wouldn’t you love to be able to practice 

in an environment like that every day? 

And the people that I’m talking about, these are our veterans, 

the ones that provided that type of service and they provided for 

the others that are our veterans today. And it’s really sad for me 

to hear that there is a need for an agency with a higher integrity 

than the VA, which was said tonight, that the people in the VA 

would be willing to accept that they need someone to watch over 

them because of their lack of integrity. 

And Dr. Ruiz brought up mortality and morbidity, and we talked 

about peer review. What I’m used to with peer review in my hospital was you had people from the same specialty reviewing charts 

and people that are familiar with the procedures you’re talking 

about, the problems that maybe exist. And you do that to try and 

make things better. And if someone is really failing, then they have 


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to go, because the reputation is on the line. And it’s not there to 

be punitive but to make everything better, as far as care. 

So my question is, besides whistleblowing, is there any chance 

for provider input, such as, ‘‘We have too much administrative responsibility, we don’t get to see patients’’; such as, ‘‘I need another 

clinical assistant in here, I need a PA or a medical assistant, then 

I can see five times more patients’’? Or do you have the opportunity 

to say, ‘‘So-and-so is really a poor performer in the clinic, and it’s 

slowing my time down with my patients and I don’t get to see as 

many’’? Is that available to you? 

I’ll start with you, Dr. Mitchell. 

Dr. MITCHELL. In that particular form, that’s not available. 

There are certainly—in section 4 and 5, I talk—especially 4—I 

talk about the retaliation tactics against providers. And one of 

them is failing to fill the ancillary services so the provider’s clinical 

time is stretched incredibly thin. There’s another one where they 

overload the provider’s patient panel so there’s no way they can humanly get through them. 

You’re not talking—we’re not at the level to be able to communicate equally with our administration. We’re far below. And anyone that speaks up is retaliated against. We don’t have that freedom to speak freely and advocate for patients and ourselves. 

Mr. WENSTRUP. And, as you said before, just because you have 

‘‘M.D.’’ after your name doesn’t mean you have ethics. So, in those 

situations, it may be another doctor, but they’re saying, you don’t 

need this, or, we’re not listening to you. Would that be correct? 

Dr. MITCHELL. Yes, that would be correct. And for a variety of 

reasons. Certainly, a legitimate reason like, you know, Congress 

hasn’t passed funding, or something like that, we can’t hire anyone, 

that’s legitimate. But there are decisions that are made, at least as 

far as we can tell in the rank-and-file, that are made for the benefit 

of the administrators, not for the benefit of the facility or the veteran. 

Mr. WENSTRUP. Any other input? 

Dr. HEAD. You know, I think it’s—I think it’s mixed. I mean, I’ve 

seen extraordinary efforts to move mountains, to, for instance, 

build a new cath lab in our institution that was definitely needed. 

There was—— 

Mr. WENSTRUP. By providers? 

Dr. HEAD. Yeah, by providers. Basically, the provider said they 

would no longer practice their craft in an area they felt endangered 

veterans. And they were responsive to that. Now, it took a certain 

amount of receptive, particularly receptive leadership. And it also 

took very stern providers who, as a group, spoke up and said, this 

is not right. 

And so I did think the response was appropriate in that instance, 

but other times I think resources are placed in areas where there’s 

too many resources and things. And so, again, you know, it involves leadership. 

Mr. WENSTRUP. Real quick. I’m almost out of time. 

Dr. HEAD. To quickly add, you know, I was trying to institute a 

time map of the available time of a physician and what’s being provided. That, along with veteran satisfaction, if we have those two 

accurate measures, we can know which facility is overloaded. You 


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know, if a physician’s time—if they’re putting in more than, say, 

50 hours or whatever and still if there’s a wait time and the veteran satisfaction is not there, then the answer there is more resources. 

But in the St. Louis VA, in the mental health, the situation was 

that the physicians were—the psychiatrists that I was monitoring 

or I was responsible for were working less than 50 percent of their 

time. So, you know, the solution there is more accountability and 

more efficiency; it’s not more resources. And we can only know that 

if we have real data that we can believe. 

Mr. WENSTRUP. Correct. Well, thank you very much. I appreciate 

it. 

I yield back. 

The CHAIRMAN. Ms. Walorski, you’re recognized for 5 minutes. 

Mrs. WALORSKI. Thank you, Mr. Chairman. 

And I’m grateful, as well, that you’re all four here. 

And it’s interesting that you said something, Mr. Davis, that I 

find that I relate to, and I can see it even again tonight, and you 

hear it from members of the committee, as well. But I’ve been here 

18 months, as well. And the typical pattern of how this issue, with 

the investigation of the VA and looking out for our veterans and 

making sure they get the health care that we promised them when 

they fought for our liberty and freedom. And, typically, a panel 

comes in—and you referenced this—and tells us unbelievably 

shocking stories—and back to your comment, Dr. Head—that are 

so shocking and they’re so disappointing, they’re disappointing to 

me as an American, horribly disappointing to me as representing 

veterans in my district, 54,000 of them in Indiana, horribly disappointing, nothing celebratory about it, just shocking. 

And, I think, every time I come to these hearings, I want so 

much for a panel to say, okay, we’ve turned the corner, you know, 

we’ve drilled down, we’ve routed out the bad actors, we’ve turned 

the corner, and now we can hit the reset button, and we have a 

bright future, and we can promise our fellow Americans and our 

veterans we have a bright future. 

But, again, tonight, you know, we’re going to sit here—and Representative Walz alluded to this, as well. You’re going to walk out 

of here, and there’s going to be another VA panel—there’s been 

dozens of VA panels—that are going to come in and give us two 

answers, either that you’re not telling the truth or they simply 

don’t have the answers to all the questions that we’re going to ask 

based on your testimony. And that’s going to happen again tonight. 

And if it doesn’t happen tonight, I will be absolutely shocked. 

But, you know, there are dozens and dozens and dozens of highranking members of the VA that come in here and have really absolutely said nothing. 

And I guess my question to all of you, but specifically Dr. Mitchell, because the Phoenix facility has kind of been at the apex of this 

whole kickoff of this urgent reaction time. And one of the things 

that has floored me is the lack of urgency on the part of the VA, 

that there’s a five-alarm fire and nobody is rushing to put it out. 

I’m thinking, if I was in the Phoenix VA and I was responsible 

for any of the stuff that’s been going on in the Phoenix VA that 

the minute this hit the fan nationally, I would be looking and tryVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 Y:\89377.TXT PAT

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ing to figure this out double-time and make sure that my facility 

is the standard and that we’ve raised the standard and that we’ve 

reset the record and we are an example for the rest of the country. 

In the 3 months that this has been under the scrutiny of the 

American people—and the American people have stood up and said 

they will not tolerate this. This committee has said we’re not going 

to tolerate this either. We’re going to drill this down and rout out 

these back actors to where we can provide the best health care to 

our veterans. 

But have you seen anything, Dr. Mitchell, in the last 3 months 

in Phoenix that says, wow, what a turnaround, they got the message, people have been fired, they’ve removed these people, there’s 

a ton of accountability, and there’s transparency because of the 

American people demanding accountability? Have you seen that in 

the last 3 months in Phoenix, any kind of turnaround? 

Dr. MITCHELL. The turnaround I’ve seen has to do with scheduling. I’ve actually had consults. I’ve actually—because the backlogs have been reduced, I’ve actually put in a consult with the patient, and they’ve gotten a phone call from the VA during my appointment with the appointment time for the consult. 

They’ve certainly done tremendous work getting the veterans 

processed. The problem is they only fixed the problem that was in 

the media. They haven’t fixed the patient care problems, the hidden mental health delays, although they’re certainly working on 

that for the psychiatry department. 

But it boils down to there are still administrators there who 

refuse to address nursing retaliation that was directly impeding 

care for ill patients in the emergency room. There was actually a 

meeting where five or six of the full-time physicians told the chain 

of command this, and they said flat-out, ‘‘We will not investigate 

the backlash against Dr. Mitchell.’’ 

Mrs. WALORSKI. Well, and we had the Inspector General in here 

a couple weeks ago, who said that the issue of routing out corruption at the administrative level is not going to stop, it’s still actively going on—and you’re really corroborating that it’s actively 

going on, against you—until somebody goes to prison and people 

are fired, that there’s actually tangible action taken that, number 

one, the American people can see; number two, the veterans, to restore some kind of faith and integrity in that system where they’re 

going for health care; and then, thirdly, so your colleagues that you 

work with, as well, feel like their backs are covered. 

How long do you see, if it took a national urgency to move the 

scheduling issue and it took a resilience on the part of the chairman and the ranking member to really go after this issue and try 

to reset it, how long do you see, even if we keep pressure up, even 

if a new VA Secretary comes in—if we don’t rout out the corruption, a new VA Secretary won’t be any more successful than 

Shinseki was. 

How long do you see it’s going to take to turn this around if we 

keep up the same amount of pressure? 

Dr. MITCHELL. I’m not sure I’m in the best position to judge that. 

What I do know is that the media paid attention to the scheduling 

issues, and, all of a sudden, I get consults completed within 10 


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minutes. The media needs to pay attention to the lack-of-ethics 

issue, and maybe we’ll get that turned around. 

Mrs. WALORSKI. Absolutely. 

And, Mr. Davis, just quickly? 

Mr. DAVIS. Yes, I wanted to say that I think we’ve got to do two 

things. 

I think, first of all, we do need a separate group to look at VA, 

because, as you alluded to, when the new Secretary comes in—— 

Mrs. WALORSKI. Yeah. 

Mr. DAVIS [continuing]. He or she, whoever finally gets approved 

by the Senate, will have to deal with the healthcare issue first. 

They’re probably not going to have time to become the chief of police for VA and also make the healthcare reforms. So you’re going 

to need some assistance, even if it’s a sunshine law where this operating authority only acts for a period of years until you get VA 

under control. 

The next thing you have to look at, look at performance standards for leadership. Unlike those of my colleagues who work at 

medical facilities, they may have some legitimate reasons for their 

challenges in terms of dealing with their leadership group. At our 

organization, our primary function is to enroll veterans into health 

care. We stir that away to the ACA project. 

And this is not about the politics of the law. This is about VA 

having a public affairs division here in DC, a national veteran outreach office here in DC, a health system communication office here 

in DC. And that project was sent down to Atlanta for the sole purpose of a senior executive reaching a performance goal. It had nothing to do with our core business. 

I go back to a previous point I make, why you need an outside 

agency to look at this. We have, again, 600,000, and that rivals the 

number of people who actually enroll in VA in a given year. So 

imagine a year’s worth of applications just sitting in a pending status. Put this in the context of if we were talking about a bank: 

600,000 deposits go in on Monday, we never hear about them for 

another year or 2. Do you think the walls in that bank would still 

be standing here today? 

Yet the men and women who sacrificed for this country have to 

deal with this. And why? Not because we don’t have the resources. 

Because we focused on ACA, we focused on the veteran dental insurance program. We create marketing materials for Delta Dental 

and MetLife. Yet we could put these same little fliers in a post office, in a grocery store, to let people know, hey, if you had a pending application in VA through the years 2000 and 2014, contact 

such-and-such a number. 

The same effort we put in getting senior leadership bonuses and 

the same interest we put in attaching ourselves to high-profile 

projects is the same amount of attention that needs to go to veterans. 

So I encourage you guys, if nothing else, please make sure that 

we move to a system that has more data integrity. Require the people who come here and sit on these panels to sign off on the information they turn in to Congress. This way, when they come back, 

they can’t say, ‘‘That report was done by somebody else.’’ That’s the 


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only way. Hold them accountable, and do it in public, and do it 

while the cameras are on. 

Mrs. WALORSKI. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Mr. Jolly, you’re recognized for 5 minutes. 

Mr. JOLLY. Thank you, Mr. Chairman. 

Dr. Head, what is the relationship between UCLA and the L.A. 

VA hospital? 

Dr. HEAD. Like many of our VA institutions, we have an affiliation agreement. It’s a, you know, public institution. And a number 

of the physicians, surgeons have joint appointments with both their 

chair counterparts within the university and also with the VA. 

Mr. JOLLY. So I ask because you’re a very egregious case. And 

I share my colleagues’ comments admiring your courage. But it was 

a case, ultimately, against UCLA and the Board of Regents of California; is that right? 

Dr. HEAD. That’s correct. 

Mr. JOLLY. And so the settlement, the $4.5 million settlement, 

was with the Board of Regents of California, not with the VA; is 

that right? 

Dr. HEAD. Well, it’s a complicated case. I would say, with my 

case with the regents, we both satisfactorily agreed to part ways. 

But, as you have noticed, there’s tremendous overlap, and there is 

a Federal component to that. 

Mr. JOLLY. Right. I guess my—so here’s my question. And I’m 

trying to distinguish between the fact pattern and the law on this. 

So the incident that you refer to was a June 2006 party, one of 

the more egregious cases, which was referred to as a UCLA party. 

Was it strictly a UCLA party, or was it also—was the VA institutionally involved in that? 

Dr. HEAD. At that particular party, there were a number of members who were employed as physicians at the VA. 

Mr. JOLLY. Right. 

Dr. HEAD. And, as you have seen, a component of that was directly related to an investigation that occurred at the VA. 

Mr. JOLLY. Right. The facts of the case that led to a settlement 

with the Board of Regents of California, did the facts also support 

a claim against the VA and the law simply prohibited you from filing some type of legal action against the VA? Or was the fact pattern specific to UCLA and not to the VA? 

Dr. HEAD. I won’t comment on the—on the State component of 

it, but there—— 

Mr. JOLLY. Well, I guess, I mean, here’s my question. 

Dr. HEAD. Yes. 

Mr. JOLLY. Because it is a very significant case. 

Dr. HEAD. Yes. 

Mr. JOLLY. Do the facts solely lead you to litigation against 

UCLA, or does the law prohibit somebody in your position from 

seeking redress from the VA? 

Dr. HEAD. The law allows me to seek redress from the VA. And 

there is a State component, and there’s a Federal component, 

and—— 

Mr. JOLLY. But your settlement was strictly on the State side. 


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Dr. HEAD. That is correct. 

Mr. JOLLY. Okay. 

Now, for the entire panel, a question for you: Are you familiar 

with the VA’s ‘‘Stop the Line’’ program, the video? It’s something 

that I’ve seen at my—and that’s interesting that you’re not, because it’s something that has been highlighted by my local VA hospital as a program that every employee sees. 

It says, for anybody from custodial staff to a doctor, if they see 

something that interferes with the delivery of patient care at any 

level, it says, ‘‘Stop the line.’’ You know, it’s an imagery, if you will, 

that any employee has the ability to stop operations immediately 

out of concern for something that they might see. 

I know it’s been adopted at a number of different facilities, but 

none of you are aware of this? 

Dr. HEAD. I certainly am not. 

Mr. JOLLY. Okay. 

Dr. HEAD. More like, ‘‘Stop the train wreck.’’ 

Mr. JOLLY. Right. 

Well, listen, I will be honest with you. It was promoted to me as 

an effort by the VA to encourage every employee to be able to step 

up and say there’s a problem. But each of you have already stepped 

forward in a whistleblower capacity and yet have no knowledge of 

the program, which says to me perhaps it is not as promoted internally as some would suggest it has been. 

Dr. HEAD. I would say, I felt alone during this long process that 

continues. And I find that very disturbing. 

Mr. JOLLY. Okay. Very good. 

Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. Thank you very much. 

Members, I’d like to go ahead to the next panel unless somebody 

has a burning question that they want to ask. 

Thank you very much to the witnesses. We do all appreciate the 

courage that it took to come here tonight. And we will be watching, 

and rest assured, if any of you contacts us, we’ll all jump to protect 

you from any further retaliation at the Department. Thank you for 

being here tonight. 

And, Members, we’re not going to take a break. We’re going to 

continue on with the next panel. 

Okay. Members, we’re going to go ahead and call our second 

panel to the witness table. 

Our second panel, we’re going to hear from the Honorable Carolyn Lerner, Special Counsel, who is accompanied by Mr. Eric 

Bachman, Deputy Special Counsel for Litigation and Legal Affairs. 

From the VA, We will hear from Dr. James Tuchschmidt, Acting 

Principal Deputy Under Secretary for Health. He is accompanied 

by Edward C. Huycke, Deputy Medical Inspector for National Assessment at the VA’s Office of the Medical Inspector. 

If you would please rise again before you get too comfortable. 

Raise your right hand. 

[Witnesses sworn.] 

The CHAIRMAN. Thank you very much. If you would take your 

seats. 

As with the first panel, your complete written statements will be 

made a part of the hearing record. 


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Ms. Lerner, you are now recognized for 5 minutes. 

STATEMENT OF CAROLYN LERNER 

Ms. LERNER. Thank you. 

Chairman Miller, Ranking Member Michaud, and members of 

the committee, thank you for the opportunity to testify today about 

the U.S. Office of Special Counsel and our ongoing work with whistleblowers at the Department of Veterans Affairs. 

I am joined today by Deputy Special Counsel Eric Bachman, who 

is supervising OSC’s efforts to protect VA employees from retaliation. 

I also want to acknowledge the many employees at the Office of 

Special Counsel who have been working tirelessly on all of our VA 

cases. There are too many of them to identify by name, but several 

of them are here with us this evening. 

My statement tonight will focus on three areas: First, the role of 

the Office of Special Counsel in whistleblower retaliation and whistleblower disclosure cases; second, an overview of OSC’s current VA 

caseload; and, third, some encouraging signs of progress. 

OSC is an independent investigative and prosecutorial agency 

with jurisdiction for over 2 million Federal employees. We have a 

staff of about 120 and the lowest budget of any Federal law enforcement agency. 

We provide a safe channel for employees to disclose government 

wrongdoing, and we evaluate disclosures using a very high standard of review. If the standard is met, I send the matter to the head 

of the appropriate agency, who, in turn, is required to investigate 

and send a report back to me. It was within this statutory framework that we received and are still receiving dozens of disclosures 

from VA employees from across the country. 

The Office of Special Counsel also protects Federal workers from 

prohibited personnel practices, especially retaliation. In these 

cases, OSC conducts the investigation and determines if retaliation 

occurred. 

Turning first to VA whistleblower disclosures, we have found 

that, rather than using the valuable information provided by whistleblowers as an early warning system, the VA often ignores or 

minimizes problems. This approach has allowed serious issues to 

fester and grow. 

In the numerous cases before our agency, we see a pattern where 

the VA, in particular the VA’s Office of Medical Inspector, admits 

to serious deficiencies in patient care, yet implausibly denies any 

impact on veterans’ health. The impact of this denial has been to 

hide many of the issues which have only recently come to light. 

My written testimony provides several examples of this approach, but I want to highlight one egregious example about patient neglect in a long-term VA mental healthcare facility in Brockton, Massachusetts. Specifically, the OMI report substantiated allegations that two veterans with severe psychiatric conditions waited 

7 and 8 years, respectively, to get mental health treatment. Despite 

these findings, OMI denied that this neglect had any negative impact on patient care. This unsupportable conclusion is indicative of 

many other cases we have reviewed and reported on. 


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Turning now to retaliation cases, OSC has received scores of 

complaints from VA employees alleging retaliation. We currently 

have 67 active investigations into retaliation complaints from employees who reported health and safety concerns. These complaints 

come from 28 States and 45 separate facilities, and the number increases daily. Since June 1st, we have received 25 new retaliation 

complaints. 

In addition to these ongoing investigations, we are taking several 

steps to resolve these complaints. For example, we’ve reallocated 

staff and resources to investigate reprisal cases, and we now have 

a priority intake process for VA cases. And in an effort to find ways 

to work constructively with the VA, both my staff and I have met 

with many VA officials, including Acting Secretary Gibson. 

I do think it’s very important to note the encouraging recent 

signs that we have seen from the VA leadership. There appears to 

be a new willingness to listen to concerns raised by whistleblowers, 

act on them appropriately, and ensure that employees are protected for speaking out. 

When I met recently with Acting Secretary Gibson, he committed 

to resolving meritorious whistleblower complaints on an expedited 

basis. If this happens, it will avoid the need for lengthy investigations and help whistleblowers who have suffered retaliation get 

back on their feet quickly. It will also send a very powerful message to other VA employees that if they have the courage to report 

wrongdoing the VA will take prompt action to protect them from 

retaliation. 

In conclusion, I want to applaud the courageous VA employees 

who are speaking out. These problems would not have come to light 

but for the information they have provided. We look forward to 

working with the whistleblowers, with this committee, and with 

the VA to find solutions to these ongoing problems. And we look 

forward to answering any questions that the committee may have. 

Thank you. 

Office of Special Counsel 

The CHAIRMAN. Thank you, Ms. Lerner. 

[THE PREPARED STATEMENT OF CAROLYN LERNER, APPEARS IN THE

APPENDIX] 

Dr. Tuchschmidt, you are now recognized for 5 minutes. 

STATEMENT OF JAMES TUCHSCHMIDT, M.D. 

Dr. TUCHSCHMIDT. Thank you. Good evening, Chairman Miller, 

Ranking Member Michaud, and to the committee. 

I know I come here tonight with my credibility in question. There 

is no doubt about that. I have some prepared remarks, but I’d rather just speak my mind. 

We failed in the trust that America has placed in us to fulfill our 

mission. Patients have clearly waited too long for care that they 

have earned. And I would agree with Congresswoman Kirkpatrick 

that it seems that it took a whistleblower and a crisis to expose the 

events and get us focused on those—correcting those deficiencies. 

As I sat and listened to the first panel, I, quite frankly, was very 

disheartened that staff feel that they cannot fix problems in the organization that affect safety, quality, and our business integrity. I 


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think this is unacceptable. The Acting Secretary has made it clear 

that this is unacceptable. He sent a memo to all employees on June 

the 13th indicating that that kind of behavior was unacceptable 

and that we would not tolerate retaliation. 

The stories I heard tonight clearly depict, in my mind, a broken 

system. I have to believe, have to hope, that these things are exceptions and not the rule. I know that there are many, many good employees in this organization who work tirelessly on the behalf of 

veterans, and there are many managers and executives within the 

organization that do the same. 

The sad part of it is that, for every whistleblower who comes forward and says something, there is someone out there who is quiet, 

who tries, can’t make any effort, and just goes away. And those, 

unfortunately, leave risks in our system and deficiencies that are 

not fixed. 

I apologize to every one of our employees who feels that their 

voice has been silenced, that their passion has been stifled, because 

that’s just not acceptable, and it’s certainly not what I stand for. 

Quite frankly, I’m past being upset and mad and angry about 

this. I’m very disillusioned and sickened by all of this. I think 

that—I can’t believe that I’m at a point in the organization where 

we are, of a place that I was so proud of and have worked so hard 

to make it a great place. 

I left private medicine to come to work for the VA. I did that because I thought there was no nobler mission, no more greater devotion than what I’m doing. I did not come to work for a mediocre 

healthcare system. I came to work for one of the best healthcare 

systems in the country. And I believe the system can be the best 

healthcare system in the country once again. 

The problems we have can be fixed. We went through probably 

one of the greatest transformations in the healthcare industry in 

the mid-1990s to become what I think was a great, great system, 

and I have hope and confidence that we can do that again. 

So, Mr. Chairman, that really concludes my remarks, and I 

promise you we will do our best to answer your questions. 

[THE PREPARED STATEMENT OF JAMES TUCHSCHMIDT, APPEARS IN

THE APPENDIX] 

The CHAIRMAN. Thank you for your comments. Still, there are a 

lot of things that we need to cover. 

And I was looking over the testimony of the OSC, where they described an issue at the Montgomery VA, where, in fact, a VA physician, instead of writing accurate notes for a given patient, was confirmed to have copied and pasted pulmonologist notes to 1,241 separate records, yet, astonishingly, he still works for VA. 

Explain to this committee how that can be. 

Dr. TUCHSCHMIDT. So, I don’t want to go into a lot of detail in 

these cases tonight for a number of reasons. There are ongoing investigations in a number of areas around the country by the OMI, 

by other entities, law enforcement entities. There are potential 

issues around privacy and the rights of both employees and patients here. And most of these issues are very complicated issues, 

and I think we would be better discussing those in a brief with you, 

and I’m happy to do that. 


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The CHAIRMAN. Well, it may be better for you, but it’s not better 

for this committee. 

Dr. TUCHSCHMIDT. I understand. 

The CHAIRMAN. I haven’t identified anybody by name; we haven’t 

divulged any patient names. Do you accept the fact that OSC says 

that, in fact, they found where a pulmonologist did, in fact, do this? 

Dr. TUCHSCHMIDT. Absolutely. I don’t dispute that. So—— 

The CHAIRMAN. Okay. So the question is, how in the world can 

this person still be employed at the VA? 

Dr. TUCHSCHMIDT. So, as I said, I don’t feel like I can really go 

into the details, but I would say this to you, and that is that I 

think that we very much are interested in the quality of care within VA. That documentation is an important part of that. 

It is a common practice to take historical information from prior 

notes and use that information; that doesn’t change. But we don’t 

copy and paste material from other—from old records into new 

records as evidence of the current encounter with a patient. We 

would not tolerate that, we would not support that in the organization. That would clearly represent inferior patient care. 

The CHAIRMAN. Ms. Lerner, could you comment on what’s going 

on? You may not share the same fear that Dr. Tuchschmidt shares 

tonight of discussing something that may, in fact, be a source of the 

VA investigation. 

Ms. LERNER. The theme that we see is that there is an investigation by the Office of Medical Inspector; the OMI confirms the whistleblower’s allegations but then says it’s not a problem. 

So here in Montgomery, Alabama, the whistleblower said this is 

happening with a doctor who—a surgeon who discovered that another physician was cutting and pasting patient records. And these 

are things like vital signs, treatment plans—really important information for the surgeon to have before he operates on someone. He 

discovered that this physician was cutting and pasting. An OMI investigation substantiated it and, in fact, substantiated that it was 

over 1,200 patient records that were involved. 

The problem is they put that physician on sort of a review plan. 

There’s a specific name for it, FPPE, and I’m forgetting what all 

that stands for. But they did a review. While he was on that review, he still was cutting and pasting. And instead of them taking 

disciplinary action against the physician, they ended the FPPE— 

I think that’s right, FPPE—and, as far as we know, no serious disciplinary action was taken. 

So this fits the pattern that we’re concerned about, where allegations are confirmed, no harm is found to patient health, and no corrective action is taken against wrongdoers. And that’s really what 

I think needs to be fixed. 

The CHAIRMAN. Who’s luckier, the doctor that cut-and-pasted or 

the veterans that didn’t get harmed by the egregious incident that 

the doctor, in fact, perpetrated on the patients? 

Dr. TUCHSCHMIDT. Well, so, I think—I can’t answer that question, but what I can say to you is that I think that, again, the cutting and pasting of information, if that particularly misrepresents 

things, would not be acceptable. It’s not acceptable to us. And I’m 

happy to come and discuss those details. 


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There is this issue of harm. And when the OMI does their briefing and puts out their reports and says that they found no harm, 

I think that—I mean, I’ve looked at some of these cases, clearly. 

And I think that, while there might not have been evidence that 

someone actually was harmed by the process, I don’t think that 

means that we, as an agency, would say that what happened was 

appropriate. I think those are different things, in terms of the 

OMI’s work that they did of saying our review could not disclose 

that someone was actually harmed by that. But I want to reiterate 

that I do not believe that that—I don’t personally interpret that, 

and I don’t think our agency does, as necessarily condoning appropriate behavior. 

The CHAIRMAN. But I would submit to you, before I yield to Mr. 

Michaud, that, in fact, by this person still being employed at the 

Department of Veterans Affairs, it does give the signal that it is 

an appropriate thing to do. 

Dr. TUCHSCHMIDT. I understand. 

The CHAIRMAN. Mr. Michaud. 

Mr. MICHAUD. Thank you very much, Mr. Chairman. 

Doctor, according to the VA’s press release that today Acting Secretary Gibson has announced a restructuring of the Office of Medical Inspector in order to create a strong internal audit function 

which will ensure that issues of care, quality and patient safety remains in the forefront. What do you believe is the primary mission 

of OMI, what it should be? 

Dr. TUCHSCHMIDT. Well, the OMI was set up really as a qualityimprovement process within the organization. I think that it is 

clear, particularly with respect to the OSC cases, they were done 

prior to this in a different way. When the OMI took over them, the 

quality of those reviews improved tremendously. I think everybody 

agreed to that. The OMI did it at the request of OSC. 

Today I think we realize that we need a different function within 

the organization, and that is really this kind of internal qualitycontrol audit function that has been proposed. Today I can tell you 

that the OMI calls are going to the OIG. The OMI is not taking 

new cases in this interim period. And all of the issues, whether 

they come from OSC, or the OIG, or law enforcement or wherever 

they might come from, whistleblowers, are now being handled by 

a team of people at the Department level that report directly to the 

Secretary. 

So I think that the organization is trying desperately to address 

the issues that are there with respect to doing these investigations, 

and the Secretary has made it very clear that not only will we expedite those investigations, but that, where appropriate, we will expeditiously take disciplinary action and hold people accountable. 

Mr. MICHAUD. How many more employees does the Department 

plan to add to create this strong internal audit function? 

Dr. TUCHSCHMIDT. I do not believe at this time that the plans for 

that—I know; it’s not that I don’t believe—I know the plans for 

that have actually not been entirely formulated, so I don’t really 

have an answer to that question. 

Mr. MICHAUD. Thank you. 

Ms. Lerner, in your opinion, does the press release by the Department today vowing to restructure the Office of Medical InspecVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6633 Y:\89377.TXT PAT

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tor address the issues that you have raised time and again regarding VA responses to complaints that your office has forwarded? 

Ms. LERNER. That’s a tough question to answer because we don’t 

really know what the restructuring is going to look like. I am encouraged by the VA’s sort of new response to this issue. I’m encouraged by statements that have been made to me personally by the 

Acting Secretary and by other leaders at the VA. You know, I’m an 

optimist. I think that it is very possible to make improvements and 

solve this problem. So I don’t know the answer to your question. 

I think time will tell. 

Mr. MICHAUD. This is for the VA: How would the VA ensure the 

recommendations and results of investigations undertaken by OMI 

are acted upon? 

Dr. TUCHSCHMIDT. So we have for a long time taken the recommendations, the findings of the OMI. We ask facilities to develop 

plans of corrective action, and they have those plans, and those 

plans are tracked. 

I think that one of the things that we need to do going forward 

in this new process is clearly to tighten up those various steps of 

the process from discovery, investigation, to action planning and 

accountability in a much tighter way. Those have been, up to now, 

really distributed over different silos within the organization. And, 

you know, in any system like that, that’s prone for things to fall 

through the cracks, et cetera. So I think part of this process is really beginning to tighten those things up and draw a clear line 

through them. 

Mr. MICHAUD. And following up on Chairman Miller’s point, how 

will OMI achieve real accountability? 

Dr. TUCHSCHMIDT. So I think the OMI itself—I don’t know that 

the OMI will ultimately be doing this work, but the OMI itself 

probably will not be responsible for the accountability part, right? 

So that’s a management function that requires its own set of activities to be able to do the fact finding, to look at the evidence and 

say, this is an appropriate disciplinary process. That needs to happen swiftly and systemically, but also with fairness. 

Mr. MICHAUD. Thank you. 

The CHAIRMAN. Mr. Lamborn, you’re recognized for 5 minutes. 

Mr. LAMBORN. Thank you, Mr. Chairman. 

Ms. Lerner, you heard my questions to Dr. Mitchell and her responses. Veterans’ health and safety, at least in Phoenix, was compromised because her warnings as a whistleblower were not heeded 

even to the point of patients dying, according to what she said. And 

as thanks for her efforts, she was retaliated against, to make it 

even worse. 

How can we strengthen the whistleblower statutes that are already on the books to better protect whistleblowers like Dr. Mitchell in the future? 

Ms. LERNER. You know, the Whistleblower Protection Enhancement Act, I think, has all the elements that are necessary to protect whistleblowers. It has to be enforced. People need to feel comfortable coming forward. The employer needs to create a welcoming 

environment for whistleblowers, and then welcome change that 

whistleblowers recommend and not ignore it, not minimize it. 


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Our agency, you know, enforces the Whistleblower Protection 

Act. And I think it’s a good act. I think the structure is in place 

now for whistleblowers to be protected. I think robust enforcement 

is really important. I’m not positive what changes I would recommend making to the act to provide more protection. 

Mr. LAMBORN. Well, then, if it’s not working as well as it was 

intended to work, and you just said it needs to be better enforced, 

what has to change in the culture of the VA to prevent these problems from happening in the future? 

Ms. LERNER. One step that can happen is the VA can become certified under the Section 2302(c) certification program. It’s a pretty 

simple program that our agency helps to implement. I have gotten 

a commitment from Acting Secretary Gibson to have the VA become certified under that program. It’s things that require more 

training for new employees, training for existing employees, having 

posters put up in the facilities, having a link to my agency’s Web 

site on their Web site. Pretty simple steps, but it’s a good first step 

for the VA to take. 

I think another really important step is for the VA to actually 

take some expedited actions once retaliation cases are before us, 

and if we are working with them, to try and resolve them. Not having to go through a prolonged investigation and getting relief 

quickly to whistleblowers will send a very positive message. It 

would put some meat on the bones of the promise not to tolerate 

retaliation. So I’m very hopeful that will happen, and if it does, I 

think that will be a positive step. 

There are other things that agencies do when they have a problem with culture of retaliation. We have worked with many agencies since I became Special Counsel 3 years ago. One that comes 

to mind very easily is the Air Force, where we got very serious 

complaints about retaliation at the mortuary when there were allegations about lost body parts and misconduct happening up in 

Dover, and we heard repeatedly from whistleblowers that the culture there was very, very bad. And once the Air Force decided to 

take steps to improve things and change the leadership and sent 

a strong message to its employees, we got reports back that things 

were much, much better. 

So I don’t think that this is an insurmountable problem, but because the VA is so big, it’s going to really require a lot of effort to 

train supervisors at the regional level in how important it is not 

to retaliate when people come forward, and how to value the information that we’re getting from whistleblowers. 

Mr. LAMBORN. Well, if you want to weigh into this, there’s legislation at least that the House has passed making it easier to fire 

certain people, the top 400 or so people in the VA. To me, that 

would send a very powerful signal, even if it’s just the threat of 

that being available. 

Ms. LERNER. That’s possible. I haven’t reviewed that legislation. 

I don’t really feel comfortable commenting on it. But I will tell you, 

I think that it doesn’t require firing. What we’re seeing is not even 

sort of minimal disciplinary action. I’d like to see, you know—— 

Mr. LAMBORN. Anything. Anything at all. 

Ms. LERNER.—at least some disciplinary action. I am not sure it 

requires termination, although in some cases it probably does. But 


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I think, again, there’s probably a structure in place that would provide for that type of disciplinary action; we just haven’t been seeing 

a lot of it. I’m not sure if new legislation is really necessary rather 

than just enforcement of the law as it exists today. 

Mr. LAMBORN. Okay. Thank you very much. 

Mr. Chairman, I yield back. 

Mr. BILIRAKIS [presiding]. Thank you. 

Mr. TAKANO, you’re recognized for 5 minutes. 

Mr. TAKANO. Thank you, Mr. Chairman. 

Ms. Lerner, so are you saying that the current civil service protections are not so onerous for managers to be able to impose progressive discipline, discipline dismissals in this case that we have 

cited today about the doctor copying and pasting medical records? 

Ms. LERNER. You can be terminated for misconduct under the 

Federal civil service laws for sure. 

Mr. TAKANO. And there’s a current—— 

Ms. LERNER. There’s a current framework for doing that. 

Mr. TAKANO. You are saying, for whatever reason, it’s just not 

happening at the VA. Do you have any—can you speculate as to 

why it’s not? Is it because managers aren’t adequately trained? I 

mean, it’s quite extraordinary for a colleague to turn on another 

colleague, so it points to a management abandonment here in this 

instance. 

Ms. LERNER. We do have at least one case I know of where the 

VA has taken disciplinary action in a retaliation case. It’s not impossible to do it at all; there just has to be a willingness to do it. 

What we have seen for the most part in our cases is that people 

are not really disciplined, or if they are, it’s a very mild discipline. 

What is going on at the VA in terms of why they are not doing 

that, I really can’t say, but it is certainly possible, and we have 

seen it done. 

Mr. TAKANO. I’m just curious, Dr. Tuchschmidt, this case of this 

particular physician copying and pasting, I’ve generally heard positive reviews of VistA by VA doctors. Some people outside the VA 

tell me that the—it’s not—it’s incredibly user friendly; that there 

can be pages and pages, and finding relevant data is difficult. 

One doctor I spoke to recently, who is retired from private practice, now evaluates records for the courts for the purposes of determining whether people are eligible for SSI disability. He reviews 

lots of veterans records, and he says he’ll get a record from the VA 

that will be like a phone book, whereas other record systems in the 

private sector, much, much thinner, and he has to go through 

pages and pages and pages to be able to get the relevant information. 

Is there some truth to this? And is part of the reason why this 

doctor was able to maybe think that he could get away with this 

is some vulnerability in the VistA system? 

Dr. TUCHSCHMIDT. Well, so when you print out charts, they may 

be very thick. Our patients tend to have multiple complex diseases, 

have a lot of visits in the organization. They’re sicker than the average private patient. 

I think that the computerized patient records system—so without 

going into the specifics of this case, I can talk a little bit about 

what is common practice. So that if I am seeing a patient, and I 


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need to put into that record the patient’s problem list, the things 

that are wrong with them, a list of things that are wrong with 

them, their past medical history about when they had surgery or 

when they were hospitalized in the past, those facts don’t change. 

So it is common practice on paper to go look at the chart and rewrite those things on a new note, or, in an electronic record system, to copy that section and paste it. If someone is not careful, 

they may capture more than they intend to and inadvertently place 

it in a new note. I’m not saying that’s what happened here. I’m actually not defending what happened in this situation; I’m just trying to explain a common practice in what could happen. 

You know, I want to say a couple things, and that is that I think 

that we have many elements of the whistleblower certification program in place. We have training. We’ve had training for a long 

time. I think the Secretary has made a commitment to have that. 

We’ve had some discussions about that, and, you know, we want 

to do that. 

I think that accountability, we heard a lot tonight about culture. 

You know, you can change structure and processes and people. In 

the end it’s about leadership, and it’s about accountability in the 

organization, and I think that’s the commitment that Secretary 

Gibson has made. It’s a commitment I’m making tonight. 

And I would say I think one of the biggest issues that I heard 

tonight was people who felt like they suffered while the process 

was being resolved. And I would make a commitment tonight: I’ll 

give you my cell phone number, and you can call me, and I will 

do whatever I can to intervene the moment you know so that those 

employees do not suffer adverse consequences while you do your investigations. 

Ms. LERNER. Thank you. You’re the second person who’s given 

me their cell phone number for that very reason. So, you know, I 

am getting that message. I am encouraged. 

Mr. TAKANO. Mr. Chairman, my time has expired. 

The CHAIRMAN [presiding]. He didn’t say he would answer his 

cell phone. 

Dr. Roe, you’re recognized for 5 minutes—excuse me, Mr. Vice 

Chairman, Mr. Bilirakis, you’re recognized for 5 minutes. 

Mr. BILIRAKIS. Thank you, Mr. Chairman. I appreciate it. 

Dr. Tuchschmidt, how many employees have been placed on administrative leave, reprimanded or terminated thus far in connection to falsifying or negligence which negatively affects a veteran 

and the health care they receive through the VA? 

Dr. TUCHSCHMIDT. I can’t give you a number tonight, sir. I can 

tell you that we have in some of these—specifically some of the 

cases cited looked at those action plans, and where there was administrative action recommended, we have taken administrative 

action in those cases. I am not prepared tonight to actually—— 

Mr. BILIRAKIS. You can’t give me a rough estimate over the past 

year? 

Dr. TUCHSCHMIDT. I can’t. I don’t have that. 

Mr. BILIRAKIS. Can you get that information to me as soon as 

possible? 

Dr. TUCHSCHMIDT. I can take it for the record, and we can get 

that to you. 


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Mr. BILIRAKIS. All right. Thank you. 

Mr. BILIRAKIS. How many employees have been placed on administrative leave, reprimanded or terminated for actively retaliating 

against whistleblowers? 

Dr. TUCHSCHMIDT. Again, I would have to take that for the 

record. 

Mr. BILIRAKIS. I would like to get that information as soon as 

possible. 

Dr. TUCHSCHMIDT. Sure. Absolutely. 

Mr. BILIRAKIS. Thank you. 

Mr. BILIRAKIS. Ms. Lerner, how many whistleblowers have been 

placed on administrative leave, reprimanded or terminated for attempting to expose misconduct within the department? Can you 

give me a rough estimate if you don’t have that information at this 

time? 

Ms. LERNER. I don’t actually have that information. I can tell you 

that we have complaints from 67 whistleblowers right now that are 

active in our agency. I’m going to turn to my deputy Mr. Bachman 

and see if he can add to that. 

Mr. BILIRAKIS. Okay. 

Mr. BACHMAN. Thank you. 

Yes. I don’t know that we have a specific number. We do, however, have at least three whistleblowers from the VA who have 

come forward recently that OSC has been able to get stays of pending disciplinary action against them. For example, they come forward and are almost immediately hit with the 14-day suspension, 

a 7-day suspension. We have contacted the VA and persuaded them 

to stay those actions while OSC conducts its investigation. So that’s 

one role that OSC is able to play in all this. 

I would be happy, though, to go back and check our records and 

see if we can find exact numbers for you in terms of administrative 

leave or even other disciplinary actions. 

Mr. BILIRAKIS. Yeah. Would you say that there are more whistleblowers who are being reprimanded per se as opposed to those who 

have misconduct and negligence in treating our veterans? 

Mr. Bachman. If what you are asking is do the whistleblowers 

who come to us suffer adverse consequences and—— 

Mr. BILIRAKIS. Adverse consequences more so than maybe someone who has committed negligence or malpractice on a veteran? 

Mr. Bachman. Unfortunately, I just don’t know the goings on of 

those negligence or malpractice cases. 

Mr. BILIRAKIS. Anyone on the panel know the answer to that 

question? 

Dr. TUCHSCHMIDT. No, I don’t think I could answer that question. 

Mr. BILIRAKIS. Okay. I’d like to get that information as soon as 

possible, please. 

When cases are referred to the OSC, and claims of misconduct 

have been substantiated, what disciplinary action is taken? Anyone? Ms. Lerner. 

Ms. LERNER. Sure. One of the things that we look for when we 

get the agency’s report of investigation is what disciplinary action, 

if any, has been taken. And I would say in most of the cases that 

we have reviewed, there has not been disciplinary action taken. I 


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can’t give you exact numbers, but I can tell you that it is the exception and not the rule. 

Mr. BILIRAKIS. Okay. One last question. Dr. Tuchschmidt: What 

consequences will those who provide false information to the OIG 

face? 

Dr. TUCHSCHMIDT. Well, I don’t know that I can answer that 

question specifically, but I can tell you that when we do believe 

that disciplinary action needs to be taken, there is a set of criteria 

that depend on the egregiousness of the, you know—— 

Mr. BILIRAKIS. Give me a hypothetical case. 

Dr. TUCHSCHMIDT. Well, so I’m not sure I’m going to be able to 

make up a hypothetical case. So there is a table of penalties that 

exists, and that is both judged by what has happened before, because the intention of disciplinary action is not to, you know, be 

punitive, it is intended to try and change the behavior of the employee. Where we feel that we can’t change that behavior, it’s a 

hopeless situation, obviously separation is what has to happen. But 

usually that’s the end result of a series of processes to try and remediate the situation. 

Mr. BILIRAKIS. So if they give false information to the OIG—— 

Dr. TUCHSCHMIDT. That would be criminal, I would think. 

Mr. BILIRAKIS. Okay. All right. Thank you very much. 

I yield back, Mr. Chairman. And I would like to have that information as soon as possible, the answers to those questions. Please. 

Thank you. 

Dr. TUCHSCHMIDT. Yes, we’ll get you what we can. 

The CHAIRMAN. Ms. Brownley, you’re recognized for 5 minutes. 

Ms. BROWNLEY. Thank you, Mr. Chair. 

Ms. Lerner, you spoke about the whistleblower program and certification as being a good first step. So can you tell me why the certification program is an optional one, and why it’s not mandatory? 

Ms. LERNER. Now it is mandatory. Recently the President and 

Office of Management and Budget issued an order requiring agencies to go through that certification process, and their plans for 

doing so were supposed to have been posted by June of this year. 

I don’t know why it was initially made a voluntary program. We 

started this certification program, I believe, in the early 90s, and 

unfortunately not a lot of agencies have been certified. 

Ms. BROWNLEY. So did the VA comply with that by the deadline 

of June, or are they saying now they are going to go through the 

steps for certification? 

Ms. LERNER. I don’t know if their plan has been posted. I don’t 

think it has, but I was told last week by the Acting Secretary that 

they would be doing so very soon. So I’m going to try and follow 

up. 

Ms. BROWNLEY. Trust and verify. 

Ms. LERNER. We’ll verify for sure, and our agency will help them 

become certified. In fact, I sign a little certificate for every agency 

that becomes certified, so I will know the minute that they reach 

that milestone. 

Ms. BROWNLEY. Very good. 

And we heard from our panelists earlier today whose identities 

were compromised in the process of working with the IG and one 

panelist with the White House. You heard the testimony. So can 


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you give me an idea of what your office does, what the IG’s office, 

what steps are taken to ensure protection of a whistleblower? 

Ms. LERNER. Sure. If someone comes to us with a disclosure, they 

have the option of remaining anonymous. If they choose not to remain anonymous, when we refer it to the agency for investigation—and let me just make it clear, we don’t do independent investigations for disclosures. Once we make a finding of a substantial 

likelihood, it’s a high burden, we then send it to the agency for investigation. We then review the agency’s investigation for reasonableness and then report to the President and the oversight committees in Congress. 

So the first step on keeping information confidential is asking 

the whistleblower if they want to remain anonymous. The second 

is that when we refer a matter for investigation to an agency, we 

remind them of the need to protect the whistleblower. If they are 

choosing not to remain anonymous, we remind them that they have 

to protect that person from retaliation. 

In order to do a full investigation, though, sometimes you have 

to actually speak to the whistleblower. One problem that we have 

found is that often in the investigations, the IG or OMI doesn’t actually talk very thoroughly to the whistleblower, and sometimes 

they don’t even interview them. And that’s a problem in and of 

itself because the whistleblower is really a subject matter expert, 

and they have to speak to the whistleblower to really get the full 

picture. So it’s very hard to, you know, do an investigation without 

disclosing identity. 

Ms. BROWNLEY. Will part of the certification program, though, 

help with enforcement in terms of the protection piece? 

Ms. LERNER. The certification program in itself doesn’t directly 

involve enforcement, but by making sure that supervisors are 

trained and informed and knowledgeable about their responsibilities when someone does come forward, and reminding them that 

retaliation in all forms is unlawful, I do think that it would have 

the derivative effect of serving that purpose. 

Ms. BROWNLEY. Thank you. 

And, Dr. Tuchschmidt, so I understand you’re relatively new to 

this position? 

Dr. TUCHSCHMIDT. Yes, I am. 

Ms. BROWNLEY. And you were formally with the VHA and their 

transformation efforts? 

Dr. TUCHSCHMIDT. Yes. 

Ms. BROWNLEY. So I presume that means the VA’s transformation. And so I’m just curious to know from in your old position, you know, how you thought you were doing vis-α-vis the 

transformation of VHA, and did you know of any of the things that 

have been discovered over the last few months in this committee? 

Were you aware of any of those things? 

Dr. TUCHSCHMIDT. No, I don’t think—I was not aware. I think 

most people in the organization at senior levels were unaware, 

which I think is actually part of the problem. I think that—you 

know, I mean, my job as transformation lead for the organization, 

we implemented our PACT program, we expanded our telehealth 

program. Those are the things that I was working on. I can tell you 


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before that I was a medical center director for 12 years, so I have, 

you know, a lot of operational experience. 

I think, just to add on to her point, you know, I think that training and education is really important, right? People have to know 

what the right standard of conduct is. And then second point I 

would make is that once they know, it makes it a lot easier for us 

to hold people accountable. I mean, you can’t say, I didn’t know, 

you know, those rules anymore. So I think that program actually 

has the potential to have a pretty positive impact. 

Ms. BROWNLEY. Thank you. I yield back. 

The CHAIRMAN. Dr. Roe, you’re recognized for 5 minutes. 

Mr. ROE. I thank the chairman. 

Dr. Tuchschmidt, we do a lot of things to patients, as you 

know—— 

Dr. TUCHSCHMIDT. Yes, we do. 

Mr. ROE [continuing]. That require one thing that is very important, and that is called trust. And, you know, you’ve said the VA 

was great, and I want it to be that. I have a VA a mile from my 

home, and a lot of good people tomorrow are going to get up and 

go to work at the VA and try to take the very best care of patients 

they can. But through all of this investigation, we’ve lost trust in 

the VA. How can we trust anything the VA says when we have 

panel after panel that come explain, tell us these egregious things 

that have occurred? 

And let me just give you an example. It’s almost impossible to 

make a politician speechless, but the VA has done that. And Brockton, Massachusetts, when you have two severely mentally ill veterans in the hospital, and, listen to this, a second veteran was admitted to the facility in 2003 with significant and chronic mental 

health issues, yet his first comprehensive psychiatric evaluation 

did not occur until 2011, how in the world in a healthcare system 

in America could that happen anywhere? 

And let me go on. No medication assessments or modifications 

occurred until 2011 when another doctor came along and reevaluated this veteran. Despite these findings, the OMI would not acknowledge that the confirmed neglect of residents at the facility 

had any impact on patient care. The VA’s typical answer is a harmless error approached concluding the OMI feels that in some areas 

the veterans could have been better taken care of—yeah, not like 

ignored for 8 years—but the OMI does not feel their patients’ 

rights were violated. How in the world with a straight face can you 

do that? 

And then back to the chairman just a moment ago with this person pasting and cutting and all that, that is someone who is dishonest. And me, when I have a consultant, and I’ve been to the operating room thousands of times, I have got to know what they’re 

telling me is truthful. And I can promise you this: If that had occurred in my practice, they would have been fired on the spot. If 

we found that out in our hospital where I practiced for over 30 

years, they would have been fired on the spot. 

And what we are hearing is is that the people, the whistleblowers who bring this up, as Mr. Bilirakis just said, suffer more 

consequences than the people who actually did the egregious act. 

I don’t understand that at all. Can you enlighten me a little bit? 


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Dr. TUCHSCHMIDT. Well, quite frankly, I’m speechless. I mean, 

I’m appalled. I mean, I don’t know what else to say. I think that— 

and Dr. Huycke may have some comments about the OMI process 

that he’d like to make, but I can tell you that I don’t think any of 

us think that that’s acceptable for a patient to be in one of our facilities for 8 years and not have a major psychiatric exam except 

once. I can’t defend that. 

Mr. ROE. It is beyond comprehension to me that not one but two 

veterans were at that facility. And I know you said this a moment 

ago, but we have—the OIG brings information up here. If someone 

knowingly lies to the OIG, you shouldn’t have to go any further. 

You’re dealing with a liar. You shouldn’t have to go any further 

other than you’re out of here today. Don’t go by the cash register 

and pick up your check. You’re fired. 

Dr. TUCHSCHMIDT. Yep. 

Mr. ROE. And right now it doesn’t appear the VA is doing that. 

We tap dance around all these things. 

Let me just ask one other question very quickly. My time is 

about up, also. Basically how can you—and I know you’re new in 

this position—undo the damage you’ve done to physicians and others whose careers have been damaged by this? What do you do to 

repair their reputations? 

Dr. TUCHSCHMIDT. I don’t know the answer to that. You know, 

in some cases the damage clearly has been done. I don’t know. But, 

you know, I think that we clearly owe some people an apology. I 

think that we need to figure out how, where we can, make people 

whole. I think we try to do that. But, you know, I think the most 

important thing is that we have to go forward. I can’t undo the 

past, but I can do something to change the future. 

Mr. ROE. I appreciate that, and, as I said, I feel very badly for 

the people who are going to go to work tomorrow for the VA who 

are doing a good job. They’re working hard. And let me tell you 

who needs an apology: the two veterans who are mentally ill and 

their families who they were completely ignored, and the 1,241 people that had something done to them at the VA. You have a reasonable expectation when you’re in a hospital that people are being 

honest. 

I mean, I handed off cases at night when we would turn over the 

duty, and you’d take the beeper—now it’s a cell phone—take the 

beeper. You expected your partner to tell you the truth because 

people’s lives depended on it. This is not some game we’re playing. 

Dr. TUCHSCHMIDT. Absolutely. 

Mr. ROE. These people’s lives are at stake. 

Mr. Chairman, I yield back. 

The CHAIRMAN. Thank you. 

Mrs. Kirkpatrick, you’re recognized for 5 minutes. 

Mrs. KIRKPATRICK. I appreciate what Acting Secretary Sloan Gibson is doing with restructuring the OMI and coming up with a 

strong internal audit system; however, I must express that I am 

skeptical about how that’s going to work. Ms. Lerner testified that 

we have the Whistleblower Protection Act, but it’s not enforced. 

And so my concern, first of all, is that we’ve heard so much testimony in this committee about a culture of secrecy, about a culture 


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of retaliation, and retaliation is a huge deterrent to hearing complaints. 

So my first question, Ms. Lerner, is to you. We’ve heard that 

there’s been retaliation against employees. I’m concerned that 

there is retaliation against patients who might feel that they have 

a complaint against a facility. Are you aware of any retaliation 

against patients, against veterans? 

Ms. LERNER. I think that’s a really important question, and I 

don’t know the answer to it. I’m not aware of any retaliation, in 

part because my agency’s jurisdiction is just for employees to come 

forward with retaliation complaints or disclosures of waste, fraud 

or abuse, or health or safety problems. Someone could come to us 

with a disclosure if they thought that a patient, you know, was 

being retaliated against. I don’t believe we’ve gotten any of those 

cases. 

People do come to my agency with disclosures about poor patient 

care, where they complain about patients not getting appropriate 

treatment and then are retaliated against themselves for having 

made those complaints. But in terms of patients, we probably 

wouldn’t get those. 

Mrs. KIRKPATRICK. Is there some kind of national hotline that 

VA patients can call if they have a complaint about a facility? 

Ms. LERNER. I don’t know the answer to that. 

Mrs. KIRKPATRICK. Doctor, do you know? 

Dr. TUCHSCHMIDT. So there are a number of mechanisms that 

patients now have to give us feedback about their system. They 

complain, quite frankly, do complain directly to our patient advocate system. That is a real human being sitting at each facility that 

they can go to. 

Mrs. KIRKPATRICK. That’s my concern: at each facility. So you 

see, what we’re seeing here is this pattern that, yeah, the complaint stays within the facility. It never goes outside of that. 

Dr. TUCHSCHMIDT. Yes. 

Mrs. KIRKPATRICK. And let me just throw out an idea. You know, 

I’m a former prosecutor, and we used to have a really difficult time 

getting people to report child abuse and neglect, elder abuse until 

we established a hotline where the reports could be anonymous, 

but there would be an investigation, and then we started to be able 

to get these reports. There was absolutely no possibility of retaliation any way, anywhere because of those reports, even if they 

turned out to be false. 

And I just don’t see how we’re going to be able to get to the root 

of this without something like that in place where there’s a hotline 

that veterans can call if they feel like that they didn’t get the care 

they wanted, and that employees can call and make reports so that 

there’s absolutely no possibility of retaliation. Would you consider 

something like that? 

Dr. TUCHSCHMIDT. Yeah. So in addition to the local options that 

veterans have, veterans can—patients can call the OIG hot line 

today, and we are—— 

Mrs. KIRKPATRICK. But who knows that? Who knows that? Who 

knows how to do that? Do you get my point? I mean, we’re really 

going to have to look at this very hard, you know, and really put 

our veterans first. 


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Dr. TUCHSCHMIDT. Absolutely. 

Mrs. KIRKPATRICK. The employees are taking care of them first. 

I’m sorry to interrupt you, but I feel very passionate about this. 

Dr. TUCHSCHMIDT. I do, and I respect that tremendously. You 

know, so I think that one of the things that we are looking at 

today, so the Department of Defense has a program that they call 

ICE. It is an interactive thing on their Web site. Actually any patient, any employee can go right on that Web site and provide feedback, file a complaint, say you did a great job, and it goes right up 

to the top of the command chain. We are looking at that. It’d be 

free to us to bring it over into the VA, to be able to put it on our 

Web site. 

Right now we are in discussions about what’s the mechanism, 

you know, what’s the business processes behind that. And, quite 

frankly, I will take your point that you’re making tonight back 

home and say it needs to be high in the organization. 

Mrs. KIRKPATRICK. Thank you. Thank you very much. 

I yield back the balance of my time, Mr. Chairman. 

The CHAIRMAN. Mr. Flores, you’re recognized for 5 minutes. 

Mr. FLORES. Thank you, Mr. Chairman. 

Ms. Lerner, it’s our understanding the OCS is spending a substantial amount of its time on these whistleblower—on the caseload 

from the whistleblowers. Can you tell us what Congress can do to 

help alleviate the amount of time that you’re having to spend on 

that activity so that you can continue to take care of the needs of 

the VA whistleblowers? 

Ms. LERNER. Well, I want to maybe start by answering the question by noting that this committee has been particularly supportive 

of our work. I want to recognize the staff of the Oversight and Investigation Subcommittee for their work on this issue and their 

work with our agency. We consider it to be a real partnership, and 

we are very grateful for this committee’s support. We’ve also received a number of referrals from this committee, and we appreciate your confidence in our ability to work with the employees that 

your office refers. So that’s one thing that’s already happening. 

We are doing everything that we possibly can to address VA 

cases quickly and thoroughly. We’ve set up a priority intake system 

for VA cases. We’ve reallocated staff to handle VA employee claims. 

But as the numbers increase, it’s very hard to keep up. We were 

at capacity before the VA cases kind of overtook us, and the total 

number of cases between disclosures and retaliation cases now exceeds 130, and the number, as I mentioned, continues to increase 

pretty much daily. 

Mr. FLORES. Wow. 

Ms. LERNER. We’re a tiny agency. We have 120 employees, more 

or less. We have jurisdiction for four statutes: the Hatch Act, the 

Uniformed Services Employment and Reemployment Rights Act, 

and we are working now on the demonstration project that this 

committee provided to us. We also handle disclosures, over 1,200 

a year, and this year will be a record with the VA disclosures. And 

we also handle prohibited personnel practices. So we’re stretched 

pretty thin right now. 

Mr. FLORES. Well, please continue to let us know what we could 

do to be helpful so that we can sort through your current workload 


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as well as the new VA workload that you’re having to deal with 

now. 

Ms. LERNER. Thank you. 

Mr. Flores. Dr. Tuchschmidt, one of the things we’ve talked 

about is that some whistleblowers have provided some limited patient information which is allowed through special channels to deal 

with what they perceive as problems at the VA. When they do this, 

it is not a violation of HIPAA, but yet these employees are being 

charged with privacy violations. What can we do about this? How 

do we get the VA to stop the charges of privacy violations when the 

whistleblowers go through the proper steps to do this? 

Dr. TUCHSCHMIDT. So I am aware of one instance where that 

happened, and an employee, in my opinion inappropriately, was 

put on administrative leave while that investigation was being 

done over concerns that the person took patient information and 

did violate HIPAA. I can tell you that the leadership at that facility 

now knows that people, whistleblowers have a right to have information, can share that information with the OSC, the OIG, with 

Congress, and it is not a HIPAA violation. 

We need to do a better job of making sure people across our organization understand this issue clearly. And, you know, I wish I 

could say it will never happen again. I think that would certainly 

be our intention to make sure that people are more aware and 

more cautious about what they do. 

Mr. FLORES. Okay. We will continue to try to put that message 

out. 

I yield back. 

The CHAIRMAN. Ms. Kuster, 5 minutes. 

Ms. KUSTER. Thank you very much, Mr. Chairman, and thank 

you to all of you for coming this evening. 

I wanted to ask Dr. Tuchschmidt, in the private sector in hospitals, they have a process of quality assurance, typically a quality 

assurance committee where information that is shared in reviewing 

cases with that committee is typically by statute protected from 

discovery in a medical malpractice lawsuit. 

And as an attorney, I want to get to the bottom of whether part 

of the behavior that we’re hearing about tonight and throughout 

the testimony from the whistleblowers has to do with people within 

the VA trying to protect the agency from medical malpractice lawsuits; and, if that’s the case, is there something that we could do 

statutorily? 

This is something that I’d worked on at the State level many, 

many years ago is a statute that protected quality assurance so 

that you can have a quality-improvement process going forward 

without all this behavior of covering their backs and, you know, 

blaming people that are bringing these issues forward. Could you 

comment on that? 

Dr. TUCHSCHMIDT. So I think we have, quite frankly, adequate 

protections in place for quality assurance documents that are covered statutorily, right? I can’t say—I mean, we’re an organization 

of 300,000 people, right? I don’t know what everybody thinks when 

they go out and do something, but I can tell you that I don’t—I’d 

be surprised if a concern about the release of quality information 


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is part of what might be motivating some of the concerns and particularly the retaliatory behavior about whistleblowers. 

You know, I think clearly managing those situations is difficult 

for local management. I think we need clearly to do a better job of 

informing and educating. I mean, again, I don’t know how to say 

it any better. I mean, I was appalled by the stories I heard tonight. 

I don’t think we as an organization should tolerate that. I don’t 

think you should let us tolerate that. 

Ms. KUSTER. Trust me, we’re shocked. 

Dr. TUCHSCHMIDT. I’m shocked. I’m shocked. 

Ms. KUSTER. Well, I just wanted to get to that issue. 

On another issue entirely, another level of shock for me was the 

information in the record that we have about Dr. Head and the 

very clear pattern, disturbing pattern, of racial prejudice. Can you 

tell me, within the organization, first off, how does that exist in 

this day and age? But second off, is there some way to cope with 

that and make sure that that’s not—you know, in this day and age, 

honestly, with the progress that we’ve made in our country in all 

aspects of diversity, gender, race, religion, ethic background, I can’t 

imagine with this many employees that it could even begin to be 

tolerated, the type of behavior that is documented here in this lawsuit. It’s extraordinary. 

Dr. TUCHSCHMIDT. Well, I mean, I was absolutely floored. I was 

floored when he held up his picture tonight, and I know what was 

in his other slide, and it’s even more abhorrent. And it’s astounding 

that it happened at the UCLA medical school amongst highly educated professionals. I don’t get it. I mean, I just don’t get it. You 

know, again, in an organization with 300,000 people, people do stupid things, right, and we can’t always control that. 

Ms. KUSTER. But would there be a procedure, would there be any 

kind of protocol or process if that was reported up the chain? 

Dr. TUCHSCHMIDT. Absolutely. And, you know, in my 20-something years, I can tell you, I think that this organization has been 

for a long time one of the most inclusive and supportive of diversity 

organization I have seen. I mean, we train people. We train people 

on EEO and workplace harassment issues. We have programs to 

support cultural diversity and cultural competency within the organization. You know, I’m astounded, quite frankly, by Dr. Head’s 

story. Quite frankly, I learned about three of these four whistleblowers the first time by reading about it in the paper. 

So I think that, you know, we clearly need to do a better job of 

making sure that people can communicate their concerns. There 

are a lot of avenues, right? I mean, they have the OSC process. 

They have the OIG. They can come to you all. But my dismay is 

that they don’t feel like they can come to us within the organization, because that’s where it has to start. 

If we really want an organization that is dedicated to safety, to 

quality, to integrity, it has to start with our employees on being engaged on the frontline, and taking a meaningful role, and feeling 

like they can fix those things that are within their sphere of influence and go to people that can when they can’t. And if we can’t do 

that, we will fail. 


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Ms. KUSTER. My time is up, but we all concur that that’s what 

we need to do. And as far as I’m concerned, there are people that 

need to lose their positions over this. 

So thank you, and I apologize, Mr. Chairman. 

Dr. TUCHSCHMIDT. Thank you for letting me go over. 

The CHAIRMAN. Dr. Benishek, you’re recognized for 5 minutes. 

Mr. BENISHEK. Thank you, Mr. Chairman. 

Ms. Lerner, Dr. Mitchell in the previous panel talked about what 

she thought was—explained was a sham peer review process. Have 

you seen anything like that in your investigations? 

Ms. LERNER. I’m going to ask Mr. Bachman. 

Mr. BACHMAN. We have seen that in some of our investigations 

and are taking a very close look at those when we see them. These 

types of investigations can be difficult to prove as pretext for retaliation sometimes, but we are seeing that as an emerging trend, and 

it’s something that we are focusing on and making sure that we’re 

gathering all the evidence we can to see exactly why was this peer 

review undertaken. 

Mr. BENISHEK. All right. Thank you. 

Dr. Tuchschmidt, are you aware of this VA program that was 

started on April 2013 called the ‘‘Stop the Line’’ patient safety initiative that Mr. Jolly talked about? Are you aware of that program? 

Dr. TUCHSCHMIDT. Yes. So I’m not sure exactly I know which 

program you’re talking about, because there are—you know, so 

Stop the Line is part of a lean technology, right, process. There are 

many—— 

Mr. BENISHEK. Well, as I understand, it’s a way for current VA 

employees to step forward when they see something going on that 

they would expect a change in quality. 

Dr. TUCHSCHMIDT. Absolutely. So many of our facilities have implemented lean on their own, but as part of our national patient 

safety program, we have a Stop the Line timeout process. So any 

employee—and this is particularly true in our procedure-based 

areas—any employee who feels like something is not right before 

something is about to happen to the patient can call a timeout, stop 

the line and say, I disagree with that. That could be the doctor; it 

could be the nurse; it could be the housekeeper in the operating 

room that stops the line because they feel that something isn’t 

right, and the line stops until it’s resolved. So that’s part of our national patient safety. 

Mr. BENISHEK. Does the VA keep track of how many times this 

initiative is invoked? 

Dr. TUCHSCHMIDT. No, not to my knowledge. 

Mr. BENISHEK. Are reports collected? 

Dr. TUCHSCHMIDT. Not to my knowledge. It’s part of the business 

process. It’s not something—— 

Mr. BENISHEK. You know, I was just aware of this incident here 

where I’ve got a report of 60 Chiefs of Anesthesia within the VA 

around the country invoked a formal communication to the VA 

with this Stop the Line initiative regarding a policy that would 

change how surgical care was delivered. And the Chiefs’ communication was sent to the VA Secretary, the Under Secretary for 

Health and the Principal Deputy Under Secretary for Health on 

October 1, 2013. 


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Dr. TUCHSCHMIDT. That would be the former Principal Deputy. 

Mr. BENISHEK. Yeah, yeah, yeah, you’re the acting, I understand. 

But despite being told otherwise by VA officials on as recently as 

June 17, the Chiefs of Anesthesia have informed me that they 

haven’t received a response at the VA. 

Dr. TUCHSCHMIDT. I’m unaware, I can’t comment, but I’m happy 

to take that back and find out—— 

Mr. BENISHEK. We were briefed that they did get a response, and 

then subsequent to that we were told by them that they didn’t. So 

I’d like to know what the response is, and if you didn’t respond, 

could you please get that to me? 

Dr. TUCHSCHMIDT. I have no idea, but I will get a response for 

you and for them if they didn’t get one. 

Mr. BENISHEK. Do you know how often the VA gets a letter from 

more than 60 Department heads about a problem? 

Dr. TUCHSCHMIDT. I don’t. 

Mr. BENISHEK. It would seem like that would be worth a response to me. 

Dr. TUCHSCHMIDT. It would seem atypical, yes. 

Mr. BENISHEK. Well, there’s so many atypical things, Doctor, that 

you’re having to explain. And, actually, I really appreciate your 

apology to the veterans of this country. I felt your emotion when 

you first gave your statement. 

Dr. TUCHSCHMIDT. Thank you. 

Mr. BENISHEK. But you see what a huge problem we’re trying to 

deal with here. 

Dr. TUCHSCHMIDT. We have—— 

Mr. BENISHEK. I mean, you know, you yourself are expressing, 

you know, severe emotion, and it’s hard for us to even sit here 

without going, what is going on, and how do we fix this. And you’re 

in the same boat. And, you know, we need some real dramatic 

change here. And we’re hoping—we’re all hoping that this new Secretary and the legislation that we will work on will make a dramatic change within the VA, because, you know, I worked at the 

VA for 20 years, and I felt that. And with the comment you made 

earlier about these things being isolated incidents that these guys 

talked about, it’s not. It’s not isolated incidents. I mean, I went to 

the meeting of the VA physicians in Dennis, and there’s like a 

whole mess of them are telling me this. So, you know, it is a systemic problem, and we need to deal with it. 

Dr. TUCHSCHMIDT. I appreciate your sentiments. 

Mr. BENISHEK. Anyway, I am out of time. Thanks. 

The CHAIRMAN. Mr. Walz, you’re recognized for 5 minutes. 

Mr. WALZ. Thank you, Chairman. 

I thank you all for being here. 

And, Dr. Tuchschmidt, I agree. And as so often is the case, I concur with Dr. Roe. I think what’s at heart here and maybe something it doesn’t appear like to me people have come to grips with. 

Your feeling of being sick and disillusioned, that’s how I feel. That’s 

how my veterans feel. A generation of good work has been erased. 

I think you understand that. 

Dr. TUCHSCHMIDT. Absolutely. 

Mr. WALZ. Very, very difficult because this is about care. It’s 

about getting the trust in them. It’s about getting them into the 


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system. It’s about working on things like seamless transition. It’s 

about making sure programs for blinded veterans are there, all the 

things we’ve worked on. And I sat sitting here for 8 years and 24 

years prior in uniform trying to prove to be a good actor on this 

or whatever. But the question I have is, again, what’s going to 

change? What’s your definition of ‘‘unacceptable’’? 

Dr. TUCHSCHMIDT. Well, I think, quite frankly, that the bottom 

line for me from the time I went to medical school until today has 

been has the patient gotten what he or she believes they needed? 

And it has to be quality; it has to be safe and effective. I mean, 

to me, that’s the bottom line. 

Mr. WALZ. The thing is we try and work around this and find 

what the fix is, because at the end of the day, we’re going to sit 

here—and I agree, we have to diagnosis first before we can prescribe the treatment on this. We’re going to have to commit, but 

we have to move forward on how to get it fixed. 

So today the letter comes out on the restructuring of the Office 

of Medical Inspector. And it is very clear that the Acting Secretary 

made it clear, as I told our workforce, intimidation or retaliation 

against whistleblowers or against any employee who makes a suggestion or reports what may be a violation of law is absolutely unacceptable. 

Was it not unacceptable to Secretary Shinseki? Was there any 

way in that man that you got the impression or your employees got 

the impression that it was acceptable then; it’s not now? 

Dr. TUCHSCHMIDT. That was never apparent to me. 

Mr. WALZ. What changed? What changed today? 

Dr. TUCHSCHMIDT. I think what has changed today is that we do 

have new leadership, right? I mean, so Acting Secretary Gibson has 

stepped up. He is out in the field going to medical centers. He has, 

in fact, pulled this process of whistleblower and investigations up 

to the Department level where he can personally supervise it. His 

engagement and commitment in this is phenomenal. 

Mr. WALZ. One of the complaints about how the VA works and 

the insular nature of it is that there’s a belief that they can just 

outlive people. They are going to outlive Mr. Gibson. And they 

might be thinking, we’ll outlive this guy. November is coming 

around; he’ll be gone. Secretaries will be gone, Presidents will be 

gone or whatever. 

I have to tell you, and this pains me more than anything, this 

breach of faith—and I have sat up here for 8 years, and I’m your 

strongest supporter, but I’ll be your harshest critic. I listened to 

this today, and it floors me that I don’t believe with one fiber in 

my being that you’re going to get this right, and that is disturbing, 

which makes me then come back and say, and if I were you sitting 

there asking what are you going to do about it, that’s what I’m asking for. I want us to take back more of this, I want us to pull this 

back in, and I want to do the data and know that the data is true. 

And so I ask you, Ms. Lerner, is there a way to do this? Is there 

a way to have the third-party validation, to have that accountability? I would argue we can be the most accountable people because we have to stand in front of voters that are the constituents 

and the veterans every 2 years. Those SES folks are never going 

to see my veterans, ever. So I ask you, how do we restructure this? 


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Are we trying to fix a broken system that is beyond repair on trying to get this accountability? 

Ms. LERNER. Well, I said before, I’m an optimist. 

Mr. WALZ. I am, too. I supervised a high school lunchroom for 

20 years. 

Ms. LERNER. And you’re very brave as well. 

Mr. WALZ. So I am the ultimate optimist, and I have been shaken by this. So that’s why I ask you, what proof is there? Words or 

something. What proof is there to you? Your reputation is on the 

line now, too, if you say it’s going to be fixed by this. 

Ms. LERNER. Well, I don’t know. I mean, my job is to shed light, 

because that’s the best disinfectant on, you know, a broken system. 

And the whistleblowers are shedding light on where the problems 

are. The next step is to actually see some action. 

Mr. WALZ. Correct. 

Ms. LERNER. And what we’ve heard in the last several weeks 

from the new leadership I believe is encouraging, but it is going to 

have to be—— 

Mr. WALZ. Eight weeks ago I asked what is the problem with the 

Rochester VA, and higher people than you sat there and told me, 

you are right, Congressman, you deserve an answer right away. So 

here I said I’m off the reservation on this one. Why has there not 

been an answer on that? So how should I believe that? A Member 

of Congress was told they would get them an answer about what’s 

wrong with their local VA, a place where I sat much time with my 

veterans, and I have not got an answer. 

Ms. LERNER. I’m not here to defend the VA. I mean, I’ve had a 

pretty ringing indictment of what’s been going on. But I think that 

there are steps that can be taken. 

Expediting review of whistleblower complaints when people believe that they’re being retaliated against, if we get can get that 

expedited review in place and whistleblowers can see quick action, 

that sends a very powerful message, not just to the individuals who 

are involved but to the facility. If there’s disciplinary action when 

someone retaliates against someone, we need to have actions that 

back up the positive words. 

Mr. WALZ. Yes. 

Ms. LERNER. And we haven’t—— 

Mr. WALZ. And you think we can get them, doing this new structure? 

Ms. LERNER. I’m going to do my best to follow up on the promises 

that have been made to me. I expect this committee will join me 

in continuing to do oversight. That’s our job. I am happy to come 

back here in 6 months and report back to you on what actions 

we’ve actually seen taken. 

But one of the problems, I think, has been that we’ve gotten the 

warnings from the whistleblowers about where the problems are, 

but they have been sort of hidden from, I think, probably VA leadership because the OMI has been saying, no harm, no foul, you 

know, there’s no violation here, there’s no regulation that’s been 

violated. 

In Brockton, what we heard from the OMI—— 

Mr. WALZ. Why did you not suggest total elimination of the OMI? 


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Ms. LERNER. Well, whatever replaces the OMI is going to have 

the same issues. I think there are certain steps that can be taken, 

whether it’s the OMI, whether it’s the IG. 

Whatever the entity is that is investigating, there needs to, number one, have a review triggered whenever there is a finding of a 

problem. It has to go higher than whatever the investigating entity 

is. 

I think the second thing is there has to be a look to see whether 

actual harm has occurred. Because what we’ve been seeing is that 

the OMI says, yes, the allegations are true but there’s no harm 

here, but they don’t really look to see whether patients have been 

harmed or not. 

In the Brockton case, the OMI only looked at the three patients 

that the psychiatrist reported on. The psychiatrist said, ‘‘I think 

this is probably a widespread problem throughout the facility,’’ but 

the OMI only looked at those three patients, didn’t look to see if 

it was a more widespread problem. And that’s—— 

Mr. WALZ. I appreciate that. I’m beyond my time, Ms. Lerner. 

I’m sorry. 

Thank you, Mr. Chairman. I apologize. 

The CHAIRMAN. Yes, sir, Mr. Walz. 

Mr. Huelskamp, you’re recognized for 5 minutes. 

Mr. HUELSKAMP. Thank you, Mr. Chairman. 

I’d like to go back to some of the testimony we heard on the prior 

panel. And the first question would be for Dr. Tuchschmidt. 

In his testimony, Dr. Mathews stated that when he repeatedly 

brought up problems with doctors only doing 3-1/2 hours of work 

during any given 8-hour workday, the consistent explanation he received was that this is the VA. 

Considering that response, is it common practice throughout the 

VA for doctors to work only a proportion of the time they’re being 

paid for? 

Dr. TUCHSCHMIDT. No, that’s not a common practice. That’s not 

actually an expectation. You know, so I think that—— 

Mr. HUELSKAMP. Doctor, can you tell me how you know whether 

that’s true or not? 

Dr. TUCHSCHMIDT. Well, so I think there was a briefing on capacity in the organization that—— 

Mr. HUELSKAMP. Yeah, and I’ll tell you, the VA briefing said 

their data was no good. And I’ve had whistleblowers to that effect. 

The second question is with reference to Mr. Davis, if Ms. Lerner 

could shed some light on this. But you indicated that folks from 

your association had met with White House Deputy Chief of Staff 

Rob Nabors and Secretary Gibson about these issues. Were you in 

on those meetings? 

Ms. LERNEr. I was. And Mr. Bachman was, as well. 

Mr. HUELSKAMP. Okay. And I’d like to ask you, because Mr. 

Davis does note that he believes that the Deputy Chief of Staff of 

the White House, Rob Nabors, leaked his whistleblower complaint, 

did you visit with Mr. Nabors about this possibility and what the 

problems and penalties might be for doing such an action? 

Ms. LERNEr. My meeting with Mr. Nabors was—did not focus on 

this matter. I don’t know anything about it, quite frankly. My 

guess—— 


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Mr. HUELSKAMP. Okay. 

Ms. LERNER. [continuing].—Is that, and I’m just guessing here, 

is that Mr. Nabors was trying to probably intervene to help and not 

to leak someone’s name in a vindictive kind of way. 

Mr. HUELSKAMP. Well, this goes to the highest levels. You said 

that you thought they understood very well, but the allegation tonight was that the very folks at the very highest level that we’re 

relying on actually were violating their own whistleblower laws 

that are very clear. 

And I want to ask Dr. Tuchschmidt, how do you inform the employees about the rights in a whistleblower protection? How often 

do you do that? 

Dr. TUCHSCHMIDT. So we have training that employees take in 

our electronic education system. So there’s online training that is 

available to all employees and supervisory training, as well. 

Mr. HUELSKAMP. Is it mandatory? 

Dr. TUCHSCHMIDT. Yes, it is mandatory. 

Mr. HUELSKAMP. How often do they take this training? 

Dr. TUCHSCHMIDT. I believe it’s annually. 

Mr. HUELSKAMP. And you will certify everyone takes this training? 

Dr. TUCHSCHMIDT. We do track it in the—the TMS system 

tracks—— 

Mr. HUELSKAMP. Well, your data is sometimes questionable. If 

you could provide evidence of that, as well. 

Following up on a few more things, Dr. Tuchschmidt, in fiscal 

2013, Donna Beiter, the director of the VA Greater L.A. Healthcare 

System, received an $8,985 bonus. Based on the testimony from Dr. 

Head tonight, including the continued retaliation and discrimination, will there be any effort to pull back or rescind her bonus? 

Dr. TUCHSCHMIDT. I really—I can’t comment. I don’t know. You 

know, we—— 

Mr. HUELSKAMP. Okay. Let me ask you about another one then. 

Similarly, in the VISN 18, the director of that VISN, which includes Phoenix VA Healthcare System, the director, Susan Bowers, 

received an $8,985 bonus in fiscal year 2013, as well. Based on 

what we heard tonight about retaliation, discrimination, will there 

be any efforts to rescind that bonus? 

Dr. TUCHSCHMIDT. So, typically, we—performance awards are 

tied to a performance evaluation, that a performance evaluation 

was done based upon the knowledge at the time that was completed. And we don’t really believe that we have the authority to 

go back, once those are done, and change prior performance evaluations. 

Mr. HUELSKAMP. And, thirdly, Dr. Tuchschmidt, Mr. Davis’s testimony, folks above him, the Deputy CBO, received an $8,252 

bonus, and the CBO for Member Service received a bonus of over 

$7,600. Will there be an effort, or are you going to ignore these— 

allow these bonuses to remain, as well? 

Dr. TUCHSCHMIDT. I think that, again, my answer would be that 

we don’t normally go back and change performance evaluations 

once they’re completed. 


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Mr. HUELSKAMP. I want to zero in on the 1,241 patient records 

that were falsified. How many records do you have to falsify in 

order to be fired as an employee? 

Dr. TUCHSCHMIDT. I would hope you don’t have to falsify any. 

Mr. HUELSKAMP. 1,241 apparently was not enough. 

Dr. TUCHSCHMIDT. One would be unacceptable. 

Mr. HUELSKAMP. 1,241? 

Dr. TUCHSCHMIDT. I can’t comment on the specifics of that case. 

Mr. HUELSKAMP. Well, I know you’re not commenting on a specific case, but you said it’s one. But we’ve verified—the lady next 

to you has verified 1,241 times. And they’re still working serving 

veterans, when they’ve falsified data in clear violation of the law 

and harming potentially veterans. And your response is, well, they 

still get to keep their job. 

Dr. TUCHSCHMIDT. I’d be happy to arrange a time to come and 

share the details of that with you. 

Mr. HUELSKAMP. I would be happy to hear that. But what I think 

the American public needs to know is, are you really serious about 

that? Still giving out bonuses, still hearing these reports, and 130 

complaints still continue to be investigated. 

I yield back, Mr. Chairman. 

Dr. TUCHSCHMIDT. I hear you, sir. 

The CHAIRMAN. Dr. Tuchschmidt, the VA has come and briefed 

our staff and said that the VA believes that they have up to 1 year 

to be able to claw a bonus back. And is it your testimony that, even 

though fraud was committed, that a bonus is still something that 

an individual should receive based on the information that was 

known at the time? 

Dr. TUCHSCHMIDT. So I think you’re getting out of my swim lane. 

I don’t know the technical answer to that question, but I’m—I am 

happy to go back and get that answer for you. 

The CHAIRMAN. It’s called fraud, and that’s illegal. 

Dr. TUCHSCHMIDT. I understand. 

The CHAIRMAN. Mr. O’Rourke, you’re recognized for 5 minutes. 

Mr. O’ROURKE. Thank you. 

I want to continue Mr. Huelskamp’s line of questioning about 

Montgomery and just highlight some of what Ms. Lerner included 

in her testimony: that, in 2012, a whistleblower who was a surgeon 

was first alerted to this misconduct by an anesthesiologist during 

a veteran’s preoperative evaluation prior to an operation. So I 

think that establishes the danger and the threat and the potentially bad outcome for the veteran when we don’t have the right information for the anesthesiologist, in this case. 

Whistleblower reports these concerns to the Alabama VA management in 2012. They put him on this—him or her—this FPPE 

evaluation. And during that evaluation, he does this again; he cuts 

and pastes information onto veterans’ medical records. 

And then you get OMI involved. And then, far worse than previously believed, the review determines that the pulmonologist engaged in copying and pasting, as Mr. Huelskamp and others have 

said, in 1,241 separate patient records. 

So, a couple things. You keep saying you can’t comment on this. 

I mean, it just defies commonsense and what all of us would expect 

from anyone, that you would just say that this person will be fired. 


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I don’t know why Ms. Lerner can tell us all these details—and this 

is now public record—and you can’t tell us, and you can’t tell the 

people in Alabama, more importantly, the veterans there, what’s 

happening. 

And, also, if we’re talking about creating a culture of accountability, what does it say to the surgeon who is the whistleblower? 

What does it say to the anesthesiologist that this pulmonologist is 

still working? What does it say to the people who testified in the 

panel before yours about what happens when you have the courage 

and take the risk to stand up and alert your superiors to malpractice or malfeasance within a VA? 

I think the signal you sent to everybody tonight is, ‘‘Don’t take 

that risk. We’re not going to do anything.’’ I mean, the sin could 

not be more glaring than that documented by Ms. Lerner here. 

Is there anything that you can say? What would it cost you or 

the VA or the Federal Government to go out on a limb and say, 

‘‘We’re going to fire that person; he or she should not be working 

for us’’? 

Dr. TUCHSCHMIDT. Right. So, as I said earlier, I mean, there are 

reasons why I feel I cannot go into details here. Right? So there 

are still active investigations going on into a lot of these issues by 

the OIG. There are—if I put enough details out there, somebody 

can make connections, right, back to individuals. And, again, these 

are complicated issues that—— 

Mr. O’ROURKE. It’s—I don’t know how it’s complicated. 

Let me ask this follow-up question for Ms. Lerner. 

In your testimony related to this case, you say, ‘‘OSC requested 

and has not yet received information from the VA to determine if 

the 1,241 instances of copying and pasting resulted in any adverse 

patient outcomes.’’ 

When did OSC request that? 

Ms. LERNER. I’m sorry, I don’t know the exact date. We have—— 

Mr. O’ROURKE. More than a week? 

Ms. LERNER. Yeah. 

Mr. O’ROURKE. More than a month? 

Ms. LERNER. I’m quite sure. 

Mr. O’ROURKE. Okay. 

Ms. LERNER. And we’ll do a final—— 

Mr. O’ROURKE. And, Dr. Tuchschmidt, what’s the response on— 

I mean, I still don’t understand why you can’t answer our previous 

questions about why this pulmonologist is still working, but certainly you could answer this question, about responding to the request to understand how this has affected patient outcomes. 

Dr. TUCHSCHMIDT. Yeah, so—I don’t know where that response 

is. I did not know that they had not received something. But I can 

go back and take care of that and find out where that is and why 

a response hasn’t been received. 

I mean, I can say to you that I think that, you know, it is our 

intention—I’m committed in the job that I am now acting in to try 

and address these issues—— 

Mr. O’ROURKE. I’m not convinced—and I apologize for interrupting. I’m just not convinced that you’re going to do it. And I 

don’t know you, so you can’t take this personally, but it’s been reflected in testimony we’ve heard from almost every representative 


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of the VA for almost as long as I’ve been here, which has not been 

a long time but long enough to know that we have a major problem 

with accountability and performance. And I’m not convinced that 

we’re going to be able to turn it around, from what I’ve heard. 

I mean, everything was lined up beautifully by the previous 

panel about the kind of problems and for how long they’ve existed 

and what’s needed to change this. And then we hear from the VA 

essentially a non answer that basically sends the message to us 

and to every employee of the VA that you don’t take this seriously. 

I mean, you can say you’re appalled, you can say you’re outraged, 

you can said you’re deeply disappointed, but that’s all been said before. What we need now is: This is what we have done, this is what 

we are currently doing, this is what we will do. And I haven’t 

heard any of that tonight. 

And just really quickly, Mr. Chairman, Dr. Jesse, the previous 

head of the VHA, when we alerted him to these outrageous problems in El Paso, with 36 percent of veterans seeking mental health 

appointments not being able to obtain one, huge, gross discrepancies between what El Paso VHA was reporting and what we finally learned through the VHA audit was the truth, Dr. Jesse’s response was, ‘‘Let’s not get into assigning blame.’’ In other words, 

let’s not hold anybody accountable, let there not be consequences, 

let’s not change anything we’re doing. 

I just have to register that very deep, profound disappointment 

that I have and you’ve heard from so many others today. And I, 

through you, ask the Acting Secretary to change the culture now 

and change the responses that we’re getting at these hearings. 

Dr. TUCHSCHMIDT. Message heard. 

Mr. O’ROURKE. Thank you. 

The CHAIRMAN. Mr. Coffman, you’re recognized for 5 minutes. 

Mr. COFFMAN. Thank you, Mr. Chairman. 

Dr. Tuchschmidt, based on the testimony provided by the four 

whistleblowers here tonight, it appears that the same unethical 

tactics are occurring at numerous VA medical centers across the 

country. This would seem to indicate that there is a universal policy in place against whistleblowers that is well-known among all 

the VA SES-level supervisors throughout the country. 

Do you have an explanation for this? 

Dr. TUCHSCHMIDT. Well, I don’t believe there is any policy or a 

collusion to suppress whistleblowers amongst the top leadership at 

the organization. In fact, I think the organization has said today, 

particularly Secretary Gibson, that we intend to do something 

about that. The message has clearly gone out to everybody in that 

June 13th letter that there are consequences for retaliation. 

We have to go through a process when those complaints come in, 

I think, of investigating those so that we treat people fairly and we 

know both sides of the story and we have the facts before we take 

action. But I think the organization—the Secretary speaks for the 

organization. And I think that commitment is there, and I have to 

take him at his word. 

It is clear to me tonight from all of the comments here and from 

the comments from all of you, I mean, we have an enormous problem. And we are a huge organization; it isn’t going to change overVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6633 Y:\89377.TXT PAT

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night. I would—I know we’re all impatient, but it’s going to take 

some time, I think, to fix some of these fundamental issues. 

It’s going to start with, really, leadership. And we have a new 

Acting Under Secretary, we have a nominee. We will have a new 

Under Secretary for Health at some point and, I hope, a new Principal Deputy Under Secretary. And I think that the organization— 

that’s the kind of change we need in the organization to get back 

on the right track. And it’s going to take—— 

Mr. COFFMAN. But how long have you been a part of—you’ve 

been a part of leadership in the VA for quite some time. How long 

have you been a part of the leadership of the—— 

Dr. TUCHSCHMIDT. For over 20 years, I’ve been in—— 

Mr. COFFMAN. Over 20 years. And you testified tonight that this 

is really the first time that you’ve become aware of the problems 

that were brought forward by the whistleblowers tonight. Isn’t that 

correct? That was your previous testimony. 

Dr. TUCHSCHMIDT. I learned about these whistleblowers mostly 

by reading them in the paper, yes. So—— 

Mr. COFFMAN. And so, you’ve been in 20 years. Here’s the problem: That you’ve been in leadership within the VA—— 

Dr. TUCHSCHMIDT. Yes. 

Mr. COFFMAN [continuing]. And you’ve been in leadership for 20 

years, and you’re just totally oblivious to what is occurring around 

you, in terms of all the problems, and it really wasn’t until it’s become a national story that now you’re suddenly aware of them. 

And I think that that’s—I think that really speaks to the culture 

of the VA and the problem, and that, if not for the whistleblowers 

who have come forward, we would never be aware of the magnitude of the problems that exist today, because the leadership, or 

the lack thereof, never brought these issues forward. 

And I’ve got to tell you—let me ask you, are you a veteran yourself? 

Dr. TUCHSCHMIDT. No, I’m not. 

Mr. COFFMAN. Well, I’ve got to tell you, you know, if you—the 

military axiom for this is, I don’t think you could lead starving 

troops to a chow hall. And I’ve got to tell you, that if the new Secretary, when he comes aboard, after being confirmed by the United 

States Senate, which I believe he will, has folks like you in senior 

leadership, he is sending a message to us, the American people, 

and the veterans of this country that he’s not serious about change. 

With that, Mr. Chairman, I yield back. 

The CHAIRMAN. Ms. Titus, you’re recognized for 5 minutes. 

Ms. TITUS. Thank you, Mr. Chairman. 

I’d like to go back to what I mentioned earlier, and that is my 

concern about the emergency room doctors at the new Las Vegas 

hospital. They came and spoke with me, at my invitation, and they 

talked about the problems there, the lack of leadership, the manipulation of schedules, those who work for the VA directly versus 

those who are contracted from the private sector who get special 

treatment. 

And I just don’t want them to get in trouble because of my initiating an invitation to learn more about what was going on out 

there. So I would ask you if—maybe you can’t provide it here, but 


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if you can let me know if they are among those cases that you have 

that have been filed, if anything has come out of Las Vegas. 

Mr. BACHMAN. I can’t speak to any of the specifics. I can tell you 

we have not received any complaints from the Las Vegas facility. 

Ms. TITUS. Okay. Well, I’m glad to hear that. 

I would also like to ask you—we heard, I think Mr. Davis was 

saying there are different—different things are comfortable for different people. Some whistleblowers go to the press, some hire lawyers, some go to veterans advocacy groups, and some go to their 

Members of Congress. Well, I think a lot of them come to me. This 

is our biggest constituent kind of service that we do in the district, 

was with veterans. 

So if someone who works at the hospital, some doctor or somebody who works out there, feels like they want to be a whistleblower and they come to me, tell me what practical advice I give 

them: Here’s what you should do, here’s how you’re protected, 

here’s who you call, here’s the form you fill out. What advice do I 

give them? 

Mr. BACHMAN. The first advice I would give is to please refer 

them to us. This is the number-one priority in our office right now. 

We are throwing everything we have at it. We’ve dedicated over 

half of our program staff to dealing with these whistleblower retaliation complaints. And so that would be the first step. 

And once we get in contact with them, we can find out what their 

issues are. If for some reason we’re unable to help, we can point 

them in the right direction. 

Ms. TITUS. And that would be—they would come to you here in 

Washington, not in Nevada? 

Mr. BACHMAN. Correct, in Washington. 

Ms. TITUS. Okay. 

All right, thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. Mr. Jolly, you’re recognized for 5 minutes. 

Mr. JOLLY. Thank you, Mr. Chairman. I’ll be brief. 

I would just like to know, Dr. Tuchschmidt, for the record, this 

‘‘Stop the Line’’ conversation that we had, because I do think it’s 

important. You recognize the program; you mentioned the program. 

It was presented to me at my local hospital as something that was 

the end-all, be-all for accountability and the ability of employees to 

step up and make a comment. And yet we had four whistleblowers, 

clearly with the conviction and courage to come forward, who 

hadn’t heard of the program. 

And there’s not really a question other than just, I recognize the 

importance of the program, but clearly it hasn’t penetrated to the 

level that at least was presented to me during my meeting. 

And I would just finish tonight, actually, with a bit of a softball 

question, I’ll admit it, but—— 

Dr. TUCHSCHMIDT. I appreciate it. 

Mr. JOLLY [continuing]. It’s an important question. And I’m going 

to give you the rest of the time to answer it. 

You’ve apologized tonight. You’ve spoken of accountability. 

You’ve mentioned being appalled, speechless. You’ve passed your 

cell phone number. Mr. Matkovsky impressed me several weeks 

ago by apologizing and referring to what he called a ‘‘crisis of integrity.’’ 


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I notice, as a new Member of Congress, we have heard a change 

in tone under the Acting Secretary, and I will say but for the witness who, 2 weeks ago, said the system was dishonest, which, 

frankly, I think was a deferral of responsibility. But, by and large, 

I think we’ve seen a change in tone. 

You’ve been with the VA more than 20 years; is that—— 

Dr. TUCHSCHMIDT. Yes. 

Mr. JOLLY. Here’s the softball for you, but also exceedingly important: Have you noticed a change in the last 6 or 8 weeks as a 

result of the attention? How we got here is another question. Do 

you believe, with 20-years-plus experience at the VA, that we are 

entering a new era of leadership within the VA, regardless of who 

steps into the position? 

And the time is yours on that one. 

Dr. TUCHSCHMIDT. I do. 

So I think that there are many places around this system that 

are phenomenal, where we have outstanding care, better care than 

exists in private sector. We have places that have outstanding access. 

Our problem, I think—one, I agree with you absolutely, we have 

a crisis of integrity. How we restore that is going to be a slow and 

painful process. 

The clinical issues, I think our biggest issue is that we do not 

have a uniform, systematic approach to these things, and so we 

have pockets of excellence and places that are not performing so 

well. 

The amount of activity in the 4 weeks that I’ve been in this job 

and have had the opportunity to be aware of these problems has 

been outstanding. I mean, the Secretary’s out there. We are sending hot teams into the facilities—I think we’ve sent teams into 

Phoenix now three or four times—to help them, to ask them what 

do they need. And we—I spend my days trying to get them what 

they need. 

I can tell you that 12 of those 20-something years I was a facility 

director. I practiced as a clinician in the intensive care unit. I’m a 

critical care physician. I practiced there. I knew what was going on 

in my facility. I walked the halls. My values I wore on my 

shirtsleeve. And people knew where I stood on issues around integrity, around bringing problems forward, about people coming together and solving those problems. 

There was no doubt in my mind about what it took to make sure 

the patient was the end-all and be-all of what we took care of. 

That’s why we were there, every one of us. And if you weren’t there 

for that purpose, then you better take a hike. That was clear, I 

think, to everybody. 

And I don’t know that I’m the perfect shining example because, 

quite frankly, I spend many nights sitting in bed wondering what 

I could have done differently, what I personally could have done 

differently. When could I have raised my hand? Could I have 

pushed back harder? What did I not know that I should have 

known? Many sleepless nights. 

I don’t know that I am the epitome of what it’s going to take. But 

I think it’s going to take leadership who really—not just at the Secretary level, not just at the Under Secretary level, but all the way 


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down to the service chief—who owns the problem and says, we can 

fix it. 

And I think we have a lot of great people in this organization 

that will step up to the plate. And I am confident that we’re going 

to bring new people into the organization today to help solve those 

problems. 

Mr. JOLLY. Okay. Thank you very much. 

Mr. Chairman, I yield back. 

The CHAIRMAN. Thank you, Mr. Jolly. 

Thanks to the panel. 

Based on our hearing today, we would expect the Secretary of 

Veterans Affairs to establish a long-term plan of intended actions, 

with target dates, that would determine what actions to take 

against VA managers when reprisals have been found to have 

taken place, notifying on a periodic basis all employees of their 

whistleblower rights, and measuring the effectiveness of such actions, such as a periodic survey of employees, and designing and 

implementing a system for tracking overall whistleblower complaints—complaints for which reprisal was determined or the complaint was settled. 

In addition, we recommend that VA analyze this data periodically to ascertain whether additional steps are needed to ensure 

that reprisal is not tolerated. 

With that, I ask unanimous consent that all Members would 

have 5 legislative days to revise and extend their remarks and include any extraneous materials. Without objection, so ordered. 

The CHAIRMAN. I want to thank both panels of witnesses and the 

audience members for joining us at tonight’s critical hearing on the 

importance of whistleblowers and effective oversight investigations. 

And, Dr. Tuchschmidt, one last question: Is Ms. Helman still on 

the payroll? 

Dr. Tuchschmidt. I don’t honestly know the answer to that question. 

The CHAIRMAN. Does she work under your purview? 

Dr. Tuchschmidt. Many layers down. 

The CHAIRMAN. But you don’t know if she still is on the payroll? 

Dr. TUCHSCHMIDT. I would have to get an answer and take that 

for the record. 

The CHAIRMAN. Okay. 

With that, this hearing’s adjourned. 

[Whereupon, at 12:01 a.m., Wednesday, July 9, 2014, the committee was adjourned.] 


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APPENDIX 

PREPARED STATEMENT OF JEFF MILLER, CHAIRMAN

Good Evening. 

This hearing will come to order. 

I want to welcome everyone to tonight’s hearing titled, ‘‘VA whistleblowers: Exposing inadequate service provided to veterans and 

ensuring appropriate accountability.’’ 

I would also like to ask unanimous consent that representative 

Tom Price from the state of Georgia be allowed to join us here on 

the dais and participate in tonight’s hearing. 

Hearing no objection, so ordered. 

Tonight, we will hear from a representative sample of the hundreds of whistleblowers who have contacted this committee seeking 

to change the VA to improve patient safety and better serve veterans who have served this country. 

We will also hear from the office of special counsel regarding its 

work protecting VA whistleblowers and the vital information they 

provide. 

Representatives of VA will also be here to answer for the department’s reprisals against whistleblowers and its continuing failure 

to abide by its legal obligation to protect employee rights to report 

waste, fraud, abuse, and mismanagement to the inspector general, 

to the special counsel, to congress, and to this committee. 

It is important to emphasize that the national scandal regarding 

data manipulation of appointment scheduling did not spring forward out of thin air at VA. Deceptive performance measures that 

serve as window dressing for automatic SES bonuses have been 

part of the organizational cesspool at VA for many years. 

Instead of being a customer driven department dedicated to veterans, the focus instead has been on serving the interests of the 

senior managers in charge. 

The manipulation of data to game performance goals is a widespread cancer within the VA. 

We have often heard that VA is a data rich environment, but 

when data is exposed as vulnerable to manipulation, it cannot be 

trusted. 

Until recently, VA would continue to trot out the tired canard 

that patient satisfaction exceeds the private sector. 

That may be true at a few select VA centers. 

However, as our colleague, Mr. O’Rourke, demonstrated through 

local polling, such results have been over generalized. 

Moreover, during the course of the past year, this committee has 

held a series of hearings showing a pattern at VA of preventable 

patient deaths across the country, from Pittsburgh to Augusta to 

Columbia and to Phoenix. 

VA’s satisfaction results are refuted by these tragic outcomes. 

In every one of these locations, whistleblowers played a vital role 

in exposing these patient deaths at VA. 

Whistleblowers serve the essential function of providing a reality 

check to what is actually going on within the department. 

At great risks to themselves and their families, whistleblowers 

dare to speak truth to power and buck the system in VA designed 

to crush dissent and thereby alter the truth. 


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Tonight, we are very fortunate to have three distinguished physicians testify with regard to their experiences in the VA. 

We will also hear from a conscientious program manager in 

VA’s national health eligibility center who will show that the disease of data manipulation may have spread to the initial eligibility 

determinations for medical benefits. 

None of these whistleblowers lost sight of the essential mission 

of VA to serve veterans. 

They understand that people are not inputs and outputs on a 

central office spreadsheet. 

They understand that metrics and measurements mean nothing 

without personal responsibility. 

Unlike their supervisors, these whistleblowers have put the interests of veterans before their own. 

Unfortunately, what all of these whistleblowers also have in common is the fear of reprisal by the department. 

They will speak of the many different retaliatory tactics used by 

VA to keep employees in line. 

Rather than pushing whistleblowers out, it is time that VA embraces their integrity and recommits itself to accomplishing the 

promise of providing high quality health care to veterans. 

In order to make sure there is follow through at VA, I have 

asked my staff to develop legislation to improve whistleblower protections for VA employees and I invite all members of the committee to work with us towards this end. 

With that, I now yield to ranking member Michaud [MEE– 

SHOW] for any opening remarks he may have. 

Thank you, ranking member Michaud. 

I ask that all members waive their opening remarks as per this 

committee’s custom. 

Based on our hearing today, we would expect the secretary of 

veterans affairs to establish a long–term plan of intended actions 

with target dates for: 

(1) Determining what actions to take against VA managers when 

reprisal was found to have occurred; 

(2) Notifying on a periodic basis all employees of their whistleblower rights and measuring the effectiveness of such actions, such 

as with a periodic survey of employees; and 

(3) Designing and implementing a system for tracking overall 

whistleblower complaints, complaints for which reprisal was determined, or the complaint was settled. 

In addition, we recommend that VA analyze these data periodically to ascertain whether additional steps are needed to ensure 

that reprisal is not tolerated. 

I ask unanimous consent that all members have five legislative 

days to revise and extend their remarks and include extraneous 

material. 

Without objection, so ordered. 

I would like to once again thank all of our witnesses and audience members for joining us for tonight’s critical hearing on the importance of whistleblowers to effective oversight investigations. 

With that, this hearing is adjourned. 


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PREPARED STATEMENT OF HON. MIKE MICHAUD

Thank you Mr. Chairman. 

This Committee has held many hearings over the years on problems with access to VA health care. At each of these hearings, 

problems were disclosed and the VA promised to improve. But little 

has changed. 

VA is widely known to have a culture of denying problems and 

not listening to feedback—be it from Congress, veterans or its own 

employees. 

VA has had a reputation as being intolerant of whistleblowers. 

So far in this fiscal year, nearly half of the matters transmitted to 

agency heads by the Office of Special Counsel, seven out of 15, involve the VA. 

According to the OSC, it currently has 67 active investigations 

into retaliation complaints from VA employees, and has received 25 

new whistleblower retaliation cases from VA employees since June 

1, 2014. 

A recent New York Times article stated that within the VA there 

was a ‘‘culture of silence and intimidation.’’ 

Acting VA Secretary Gibson recently stated that he was ‘‘deeply 

disappointed not only in the substantiation of allegations raised by 

whistleblowers, but also in the failures within VA to take whistleblower complaints seriously.’’ 

Within VHA, the problem of intimidation and retaliation may be 

magnified by what some considered the ‘‘protective’’ culture of the 

medical profession. 

It is often thought to be against the ‘‘code’’ to point out a colleague’s mistakes. Or, where a nurse or attendant is told it is not 

‘‘appropriate’’ to question a physician or surgeon. 

The natural tendency is to close ranks to deny that problems 

exist, or mistakes were made. 

So, after we listen to the testimony before us this evening—from 

whistleblowers, the Office of Special Counsel, and the VA, will anything change? How do we fix this culture and encourage all VA employees to step forward to identify problems and work to address 

them? Changing a culture is not easy. It cannot be done legislatively, and it cannot be done by throwing additional resources at 

it. Talk is cheap and real solutions are hard to find. 

It is clear to me that the VA, as it is structured today, is fundamentally incapable of making a real change in its culture. I note 

that Acting Secretary Gibson announced today that he was taking 

steps to restructure the Office of Medical Inspector by creating a 

‘‘strong internal audit function which will ensure issues of care 

quality and patient safety remain at the forefront.’’ 

This is an improvement, but it raises additional questions regarding how this restructuring will better enable OMI to undertake 

investigations resulting from whistleblower complaints forwarded 

by the OSC, or how it will have the authority to ensure that remedial actions are taken by the appropriate components of the VA. 

Time and again, as the June letter from OSC demonstrates, the 

VA found fault, but determined that these grave errors did not affect the health and safety of veterans. Anyone reading the specifics 

of any of these cases will find this ‘‘harmless error’’ conclusion, as 


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stated by the OSC to be a ‘‘serious disservice to the veterans who 

received inadequate patient care for years[.]’’ 

I agree with the OSC’s June 23rd letter—‘‘This approach has prevented the VA from acknowledging the severity of systemic problems and from taking the necessary steps to provide quality care 

to veterans.’’ 

We all seem to have the same goals this evening—we want all 

VA employees to feel comfortable raising problems and having 

them addressed without fear that raising their voices will mean the 

end of their careers. 

The VA has stated that it wants to make fundamental changes 

in its culture so that workforce intimidation or retaliation is unacceptable. Talk is cheap. Real change is difficult. 

I would propose that the very first order of business at the VA 

is to take accountability seriously. If any VA employee is shown to 

have intimidated or retaliated against another VA employee then 

that employee should be fired. 

The VA should have a zero tolerance policy for whistleblower intimidation or retaliation. As I see it, effective leadership and real 

accountability is the only way to begin the process of institutional 

change. I hope tonight is the beginning of that change. 

Thank you Mr. Chairman, and I yield back the balance of my 

time. f 

PREPARED STATEMENT OF HON. CORRINE BROWN

Thank you, Mr. Chairman and Mr. Ranking Member, for calling 

this hearing today. 

As we have learned over the past few months there are serious 

problems at the VA. We now need to focus on what can be accomplished by these hearings. 

How do we address the change of culture at the VA? Currently, 

there is no leadership at the VA. All the top positions are ‘‘acting.’’ 

We can hold hearings from now until the cows come home and if 

we don’t work with a permanent leadership at the Department, 

nothing will be accomplished for all these hearings. 

During the Cold War, in order to feel comfortable with the Soviet 

Union, we had what were termed Confidence Building Measures. 

Continuing to lob bombs from this dais will not help the veterans 

needing health care. 

The VA operates 1,700 sites of care, and conducts approximately 

85 million appointments each year, which comes to 236,000 health 

care appointments each day. 

The latest American Customer Satisfaction Index, an independent customer service survey, ranks VA customer satisfaction 

among Veteran patients among the best in the nation and equal to 

or better than ratings for private sector hospitals. 

I am confident in the health care our veterans in Florida are receiving. With eight VA Medical Centers in Florida, Georgia and 

Puerto Rico and over 55 clinics serving over 1.6 million veterans, 

veterans are getting the best in the world. Over 2,312 physicians 

and 5,310 nurses are serving the 546,874 veterans who made nearVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00091 Fmt 6621 Sfmt 6602 Y:\89377.TXT PAT

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ly 8 million visits to the facilities in our region. Of the total 25,133 

VA employees, one-third are veterans. 

f 

PREPARED STATEMENT OF HON. NEGRETE MCLEOD

Thank you, Mr. Chairmen for having this hearing. VA’s history 

of ignoring reported problems in the delivery of health care and not 

protecting whistleblowers is unacceptable and must change. I appreciate Acting Secretary Gibson announcing that the Office of 

Medical Inspections will be reformed. These reforms must be sincere and meaningful. VA must have an open and honest conversation about its practices and what steps must be taken to improve 

care for veterans. Thank you and I yield back. 

f 

PREPARED STATEMENT OF DR. JOSE MATHEWS

Executive Summary 

Since the tragic events of September 11, 2001 and our country’s 

involvement in Afghanistan and Iraq, millions of troops have deployed overseas in the interest of protecting our nation and advancing others. Although the VA was charged with the responsibility of 

providing services to generations of veterans, it has only been in 

the most recent years that mental health care treatments for conditions like PTSD have been better understood with modalities of 

treatment reaching heightened rates of efficacy. We know now that 

with proper treatment of mental health concerns, joblessness, 

homelessness, and suicide risk can be mitigated and in some instances eliminated. And it is from this perspective that the VA’s 

role in treating veterans should be evaluated. 

It is the responsibility and duty of the federal government to provide these esteemed service members with the best health care possible. 

I can only speak from my personal experiences and observations 

as the Chief of Psychiatry at the St. Louis VA. There, the 

healthcare system as currently exists, has proven only to be a maze 

of bureaucracy and red tape for veterans to weave through upon 

their return home. Instead of being provided with the immediate 

medical treatment and VA related benefits they are entitled to, the 

St. Louis, VA has failed the same vulnerable population it was designed to serve. 

The men and women who have so bravely served our country deserve a system that will be responsive and efficient; and more importantly, will not fail them. The only way to ensure effective and 

timely access to health care is to provide transparency and to create objective metrics that evaluate the care that is provided on a 

regular basis. Perhaps more poignantly, the existing resources to 

provide this care is simply not being managed effectively. 

There are several initiatives I would like to propose that will improve access and quality of health care afforded to veterans. These 

initiatives include: (i) objective metrics to increase transparency; 

and, (ii) ensuring accountability by amending the Whistleblower 

Protection Enhancement Act, which has proven inadequate for 


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whistleblowers who make allegations regarding risks to veteran 

health and safety. 

These recommendations will provide a paradigm to ensure that 

the quality of care is not only maintained but exceeded. The Department of Veterans Affairs should be a world leader in the treatment of combat related medical conditions; not an institution where 

mismanagement and indifference breaches a community’s prevailing standard of care. 

Mr. Chairman and distinguished members of the committee: I 

am honored to appear before you today to speak about my experiences while serving in the capacity as the Chief of Psychiatry with 

Department of Veterans Affairs in St. Louis, Missouri. 

In order for you to better understand my connection and interest 

in veteran related health care matters; I would like to provide you 

with some brief information about myself. I am a first generation 

immigrant from India and my father is a combat veteran of the Indian Army. I am well acquainted with the aftermath of a war and 

the toll it takes on the warrior and their family. I have had a longstanding interest in understanding mental illness, particularly 

mood disorders and trauma related illnesses. I was fortunate to 

have had the opportunity to study psychiatry and complete my 

residency training at Washington University in St. Louis, a topnotch psychiatry program in the country. I subsequently completed 

my fellowship training in forensic psychiatry at Yale University. 

I accepted the position of the Chief of Psychiatry at the St. Louis 

VA in November 2012. I considered my job as a mission to improve 

the mental health care of our veterans. I worked hard to understand the VA system of care and I diligently followed-up on veteran 

complaints about their mental health care. I was very concerned 

about some of the complaints I reviewed that were about poor access to care. I studied the official VA productivity data and this 

data showed that the psychiatrists at the St. Louis VA were 

amongst the most productive in the nation. Based on this, I concluded that I needed more psychiatrists to provide good, timely and 

safe mental health care to our veterans. During the course of my 

employment, and as I identified deficiencies I took actions to correct these deficiencies. Notwithstanding, the management structure 

of the VA not only precluded me from correcting the deficiencies, 

but treated me adversely as a result of my initiatives to make 

changes. This represented a dramatic departure from my experience working in private and academic settings. 

A. Defining the Problem 

I requested an extra full time psychiatrist position and this was 

approved by the VA administration. However, some of the veteran 

complaints still persisted. Including the complaint of a veteran who 

came to the clinic with a deterioration of his illness and who instead of being evaluated by a provider, was turned away with an 

appointment scheduled for months later. Another case that I found 

alarming involved a disabled veteran without independent transportation, who was experiencing worsening of his serious mental 

illness and who had traveled a long distance to the VA clinic to get 

help. Again, he was not seen by his provider or any other provider, 

or any provider for that matter. His medications were not refilled; 


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instead, he was sent away with an appointment that was no fewer 

than 48 days later. I found it difficult to believe that no one could 

spare 15 minutes to address this veteran’s urgent medical needs. 

I wanted to find the answer to a simple question: ‘‘How busy are 

the providers at the outpatient clinic?’’ 

The St. Louis VA, to my surprise, could not identify the average 

number of veterans seen by a provider/day or the time a provider 

spends on direct patient care/day. I asked other psychiatry Chiefs 

to estimate similar data at their facilities by contacting them 

through a national e-mail group that encompassed other VA facilities and I received answers that ranged from 8 to 16 veterans/day/ 

psychiatrist. I also worked with a VA database administrator and 

my outpatient psychiatry director to find out how many veterans 

were actually being seen/day/psychiatrist at the St. Louis VA. I was 

interested in estimating time spent on direct patient care. I wanted 

to know the amount of available physician time for direct patient 

care and the amount of actual time spent in direct patient care in 

order to estimate utilization of expertise (available time/actual 

time). 

I was shocked to find that outpatient psychiatrists at the St. 

Louis VA were only seeing on average, 6 veterans/8 hours for 30- 

minute appointments with rare 60-minute appointments (3/week). 

I could only account for 3.5 hours of work during an 8-hour workday. In essence, we were utilizing less than 50% of the available 

physician time for direct veteran care. I checked my data multiple 

times and once I was confident that my data was accurate, I investigated why there was such low utilization of psychiatrist time, 

what the wait time for care was for the veterans and whether we 

were able to engage and retain our patients in ongoing mental 

health care and what the veteran experience of care was at the VA. 

The answers I got were alarming: 

1. Low utilization of expertise: 

a. I discovered that veterans were not being scheduled in all the 

available appointment slots. Three slots out of the possible 12 (1.5 

hours) were inexplicably blocked from scheduling each day. 

b. There was a very high no-show rate (35%). 

2. Wait times: 

a. I found that the wait time for a new appointment was 25 days 

and for a follow-up appointment was 30 days after the desired follow-up date. 

3. Retention in care: 

a. I was most troubled by my finding that 60% of the veterans 

were dropping out of mental health care after one or two visits 

with their psychiatrist. 

4. Veteran Experience: 

a. There was a lack of meaningful veteran satisfaction measure. 

The surveys administered by the VA that I saw were not done with 

safeguards to preserve anonymity and confidentiality e.g., the 

treating provider would hand out the surveys to the veterans and 

would also collect the completed surveys: From the veteran’s perspective, it would be extremely difficult to make any negative assessment/comments under these circumstances as one cannot feel 

confident about confidentiality and will have concerns about their 

opinion impacting the care they receive. 


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B. Disclosing the Inadequate Care to Veterans 

I discussed my data with the Chief of Staff, Chief of Mental 

Health and my staff. The staff psychiatrists contested my data and 

offered various unconvincing reasons for not seeing more veterans/ 

day (usually this involved pointing fingers at the scheduler/person 

tasked with reminder calls/other specialties). To address this, I collected prospective data (going forward) for 1 month for all the specialties (Psychiatry, Psychology, Social Work, Nurse Practitioners) 

and 22 weeks (5 months) of data for the psychiatrists (other specialties opted out). 

I could only account for less than 4 hours of work during an 8- 

hour workday for any of the staff in Mental Health (psychiatry, 

psychology etc . . . ) It was as if there was an agreement amongst 

all the clinic employees to only work for less than half the time 

they are paid to work. An agreement amongst administration and 

staff that on paper everyone would be ‘‘productive’’ and that everyone would qualify for ‘‘performance’’ bonuses. 

I argued that this situation was unethical and unsafe for our veterans and that this needed to change urgently. I ran my intervention strategies by the Chief of Staff and I instituted three changes: 

1. I increased the scheduling grid to accommodate 19 veterans/ 

day in the hopes of seeing, on average, 12 veterans/day/psychiatrist 

and when this milestone was accomplished, to reduce the scheduling grid to 16 veterans/day to maintain access to care. 

2. Instituted a strict policy of not turning away a veteran who 

had presented for care. I instructed the clinic to arrange for the 

veteran to be evaluated by other providers if a provider calls in 

sick. I put myself in this pool and I saw veterans on three occasions 

to underscore my commitment to this policy. 

3. I instructed outpatient psychiatrists to stratify their patients 

into two groups: high intensity care and usual intensity care. I 

wanted more intense monitoring and follow-up for those in high intensity care group. 

I was also able to secure philanthropic support for a pilot program to collect real time, meaningful veteran satisfaction survey 

with questions such as: Did your provider address your concerns 

today? Do you know when your next appointment is? Using ipads 

and real time data integration. 

There was a significant amount of resistance from many psychiatrists and other specialties. I was yelled at on many occasions, I 

was told repeatedly, ‘‘this is the VA’’ to explain away the poor access to care. I persevered and I had partial success in increasing 

the number of veterans seen/day/psychiatrist; in reducing the wait 

times and in implementing a real-time veteran satisfaction survey. 

I wanted to focus on four core meaningful metrics: 

1. Time to care. 

2. Utilization of resource (available/actual) 

3. Veteran retention in care. 

4. Veteran satisfaction with care. 

I had argued that if the above metrics were headed in the right 

direction, we would be advancing towards our goal of creating a 

care environment where we could honestly refer a loved one, and 

if these metrics were not improving, other metrics (e.g., productivity measures) were meaningless. 


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I observed several unethical practices at the VA and I would 

bring this to the attention of the administration or address these 

if they were my staff. 

1. Some of the psychiatrists were not respecting their tour of 

duty time commitments. I called them on it that resulted in improved behavior. 

2. I was part of a search committee for a senior position at the 

VA and I was concerned about a particular candidate not being accorded proper consideration. I wrote a frank e-mail to all the members including the Chief of Staff where I argued that this was both 

unethical and possibly illegal. 

3. I had a transgender veteran complaint about the quality of 

psychological evaluation report that had resulted in the denial of 

hormonal treatment. I found this psychological report grossly inadequate and I strongly argued for a second opinion for this veteran. 

This resulted in the then Chief of Psychology falsely vouching for 

the ‘‘expertise’’ of the evaluating psychologist. Subsequently I found 

out that the evaluating psychologist was placed on probation, that 

her clinical privileges were restricted, that she had many veteran 

complaints and that she was hired despite concerns about her competence, I requested a meeting with the Chief of Staff and the 

Chief of Psychology where I voiced my concern about this incident 

and I suggested that this psychologist’s work be reviewed by a psychologist from outside the St. Louis VA. The Chief of Staff did not 

seem concerned and the next veteran complaint against this psychologist for a similar issue was deliberately hidden from me. 

4. I had concerns about two avoidable deaths: 

a. One involved a young OIF/OEF veteran who was not assessed 

properly at the VA, whose medication management was sub-standard and who was discharged the very next day after his inpatient 

admission. My request for a Root Cause Analysis was not honored. 

b. An elderly veteran was not assessed properly in the ER and 

he died shortly after he was admitted to the psychiatry inpatient 

unit. 

5. A suicide attempt by a veteran in the inpatient unit while the 

Joint Commission was reviewing the VA was covered up and this 

incident was not reported to the Joint Commission. A safety barrier 

was breached during this attempt and this vulnerability was not 

addressed promptly as this event was not reported to the Joint 

Commission, hence, corrective actions were deliberately delayed at 

real risk of harm to the veteran. 

6. The Acting Chief of Mental Health had opened up a back 

channel communication with the psychiatrists who were opposed to 

my increasing access to care and with my demanding accountability from all. I had met with the Chief of Staff and the Acting 

Chief of Mental Health regarding this. The Acting Chief of Mental 

Health had apologized to me for his behavior, I accepted his apology and his assurances that he would fully support my efforts to 

improve access to care. 

7. However, shortly thereafter, while I was on paternity leave, 

the Acting Chief of Mental Health was the person who determined 

that an Administrative Investigation was warranted based on the 

complaints he got from the very disgruntled psychiatrists who were 

opposed to my initiatives. 


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C. Retaliation for Whistleblower Disclosure and Subsequent 

Disclosures 

On the heels of disclosing the deficiencies and barriers to care, 

the Chief of Staff called me into a meeting on August 26, 2013 to 

inform me that there was a ‘‘mutiny’’ and that to ‘‘protect’’ me ‘‘and 

the VA’’ he was authorizing an Administrative Investigation to investigate the allegation that I had created a hostile work environment for the staff psychiatrists. I reminded him that the staff psychiatrists had nominated me for an award before I had discovered 

the extremely poor work ethic and I had started to demand accountability. He told me that this would give people time to ‘‘cool 

off.’’ He assured me that I did not need an attorney and that he 

did not anticipate this process to take more than a few months and 

that I would be immediately detailed to Compensation and Pension 

and was not to access any of my patient files or information pertaining to the provider/patient care ratio. 

Although provided with very little information about the exact 

nature of the investigation against me, my understanding is that 

the Chief of Staff and the Chief of Mental Health met with all the 

staff psychiatrists after my meeting with the Chief of Staff. The 

three of the psychiatry directors were excluded from this meeting. 

This meeting was described to me by some of the psychiatrists I 

had recruited as ‘‘embarrassing, bad-mouthing’’ and I got a phone 

call from a concerned psychiatrist who wanted to know if I was 

fired. 

I continued doing Compensation and Pension evaluations 

throughout the pendency of the ‘‘investigation.’’ I independently 

filed a complaint with the Office of Special Counsel and although 

I disclosed all of this information, because of the way I phrased the 

information, the Office of Special Counsel declined to find that I 

had establish that I was subject to a prohibited personnel practice. 

I was forced to retain counsel and only with the assistance of an 

attorney was able to craft a complaint that has engendered the interest of the Office of Special Counsel; which only recently notified 

me last week that they were referring my complaint for investigation. 

In broad brush stroke terms, since the time of my disclosures 

last year, the VA has retaliated against me in the following manner: 

1. I was completely removed from my position as Chief of Psychiatry; 

2. I was forbidden from contacting other psychiatrists and my access to the database I set up to monitor the number of veterans 

seen by provider each day was terminated; 

3. The independent funding for the veteran satisfaction survey 

project I secured was put on hold because of my removal from the 

Chief position; 

4. Two excellent psychiatrists I had worked hard to recruit, who 

had interviewed at the VA, were from excellent training programs 

(Hopkins and Harvard) decided not to join the VA; 

5. A hostile work environment was created in so much as, some 

of the staff psychiatrists outwardly mocked me; 

6. I had an earlier performance review completed by Dr. Steve 

Gaioni who was the ACOS for Mental Health until July 2013 that 


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was a reasonable assessment however I did not agree with his assessment of my management as Dr. Gaioni would counsel me to ‘‘go 

slow’’ where I saw an urgent need to improve access to care. I was 

re-evaluated by Dr. Metzger and he used a ‘‘performance’’ metric 

that I could not understand but it covered 5 weeks of my work 

from October 1 2013 until November 4 2013 and he determined 

that I had only met 50% of the goals he had set for me that was 

unbeknownst to me and was set after I was put on the administrative investigation. I refused to sign this document, however Dr. 

Welling, the Chief of Staff determined that this was an accurate 

representation of my work for the entire fiscal year and as represented by their approval. This is why almost every psychiatrist 

got the full performance pay they were eligible for based on bogus 

‘‘productivity’’ data. 

7. I was overlooked for promotion opportunities. More specifically, The Chief of Staff, on at least two occasions, pre-selected individuals for the Associate Chief of Staff position (a position for 

which he was aware I intended to apply), before the position was 

even advertised. Although, as the Agency was also aware, the fact 

that I was under investigation, impacted my ability to compete for 

positions. 

8. Approximately one year after my initial disclosures, and although, no one at the VA had ever disagreed with my calculations 

concerning the number of veterans seen on a daily basis, the St. 

Louis, VA defamed my professional reputation and issued a press 

release suggesting that the VA’s own careful investigation showed 

that the actual number was more than double of what I had found 

(14). This was blatantly false. 

9. After my disclosures to the Offices of Senators Blunt and 

McCaskill I was contacted by the VA Privacy officer, who suggested 

he was investigating violations of PHI; which I did not. They filed 

complaints with the Federal Prosecutors office and the OIG. I had 

to have my attorney intervene again on my behalf. 

10. Shortly after Senators Blunt and McCaskill made an inquiry 

into the caliber of patient care at the St. Louis, VA, the Chief of 

Staff called me into his office and demanded to know what my ‘‘end 

game was? Where is all this going?’’ I told him that I did not know 

and that I had no control over how everything was going to play 

out. This meeting ended abruptly. 

11. I discovered that false data was entered into the medical 

records of veterans in June of 2014. After disclosing this to Acting 

Secretary Gibson, I was immediately reprimanded. More specifically, both myself and a colleague were subsequently instructed to 

report to a meeting with the Chief of Staff, who stated in pertinent 

part that it was Acting Secretary Gibson’s expectation that the 

‘‘chain of command is followed.’’ The Chief of Staff went on to state 

that ‘‘I am telling you what the chain of command is, this is what 

it is, you work for me.’’ I was offended by this and I told him that 

I thought I was working for the US government and not for him. 

He reiterated that it was Secretary Gibson’s expectation that we 

first discuss any issues first with Dr. Metzger, if there is no resolution, to ‘‘go up the chain of command.’’ I clearly felt that I was 

being reprimanded for writing to Secretary Gibson and that I 

should resolve the issue ‘‘locally first.’’ He commented that this was 


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the best way to manage any organization and that this was the 

‘‘safe’’ thing to do. The way he said safe and the manner he lingered on it made it clear to me that he was conveying a gag order 

and a threat. I called him on it and I asked him if this was a gag 

order. He said no but that this was the expectation of Secretary 

Gibson. 

He also stated that he wanted to tell us that even discussing deidentified information with outside agencies and looking for information in patient chart may constitute privacy violation and he 

wanted us to be aware of this. I asked for clarification if he was 

telling me that I could not contact OIG, OSC or Senators, he said 

that this is not what he meant but for us to be mindful of the fact 

that the VA takes veteran privacy very seriously. The spirit and 

tenor of this meeting was in direct contradiction to the memo Secretary Gibson had sent that called for Whistleblower protection. 

12. Shortly after I disclosed the false data entry in June of 2014, 

my official protected time for research was revoked. 

D. Crafting an Effective Solution 

Any effective mechanism for improving Veteran care will necessarily incorporate transparency and accountability; neither of 

which is mutually exclusive of the other. 

I have had the opportunity to think deeply about some tangible 

and concrete measures that the Congress and White House could 

take immediately to restore trust and faith in the St. Louis, VA by 

focusing on two elements. The First component of which applies to 

patient care and transparency: 

Safe Guarding Patient Care 

1. Data Integrity: VA data must be managed by an independent 

entity. Transparently tracking just four simple metrics can yield 

huge benefits: 

a. Wait times for each specialty/procedure: This could be available on a real-time basis. 

b. Reasonable time veteran satisfaction measure: We have the 

technology to implement a concise, well validated measure of veteran satisfaction on a reasonable time basis (compiled weekly), at 

the point of contact to get a more complete set of veteran experiences. 

c. Utilization of expertise: Available time/actual time spent by 

providers. 

d. Retention in care or the attrition rate of the veterans. 

2. Employee Discipline: Those individuals in direct patient care 

role must not have life-time tenured positions. I think that this ‘‘job 

security’’ is a big factor in veteran interest not being central which 

then ironically threatens the very existence of VA as a health care 

system. 

Protecting and Fostering Transparency: As currently drafted, the 

Whistleblower Protection Enhancement Act (WPEA) as enacted, 

has done little to shield the professional rebuke that has occurred 

following my disclosures. Moreover, some of the events that have 

happened, although impacting my professional career, fall beyond 

the ambit of the definition of Prohibited Personnel Practice (PPP). 

For this reason alone, the WPEA should be amended to require the 

VA to maintain the status quo for all whistleblowers who allege 


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breaches to the standard of patient care. This will ensure timely 

investigation and resolution of the allegations and will preclude the 

VA from conducting ‘‘administrative investigations’’ that, while 

harmful and professionally detrimental, may not fall neatly with 

the confines of the PPP. 

Perhaps more importantly however, is the personal and financial 

sacrifice associated with the disclosures. Although I have a medical 

degree and am a Yale trained psychiatrist, I could not navigate the 

OSC process without the benefit of counsel. Not every whistleblower will be able to afford to retain an attorney to provide the 

legal advice that is absolutely necessary when an Agency begins 

making professional and potentially criminal allegations; all of 

which are grossly unfounded. Even now that OSC is involved, an 

investigation has not been completed and I am required to commence an action before the Merit Systems Protection Board if the 

OSC declines to prosecute or if the OSC is not successful in negotiating an agreeable resolution to my complaint. To that end, the 

WPEA should be amended to make optional the need to exhaust 

administrative remedies by first filing whistleblower appeals with 

the OSC and to provide for the mandatory payment of treble attorney fees for prevailing parties in order to provide VA employees 

with greater access to private legal representation at all stages of 

the whistleblowing process. 

I would, and will continue to, blow the whistle a thousand times 

over again to protect the patients I treat; but some of the barriers 

I have identified may for example prove too onerous a burden for 

others to sustain. For this reason alone, the laws must change to 

afford actual and timely protection for whistleblowers. 

The recommended solutions identified will result in the following: 

Veterans: With readily available wait times and satisfaction 

measure, a veteran will have the choice to obtain care at a facility 

that optimizes acceptable wait time with satisfactory care. This will 

lead to a more even utilization of specialty care that in-turn will 

improve efficiency by distributing care. The cost savings from early 

intervention and reductions in secondary complications could justify travel assistance or other incentives to distribute care. 

Policy Makers: A more accurate and meaningful measure of resource utilization and hospitals/ specialties needing closer scrutiny 

will be available to guide sounder policy. VA will not be saddled 

with poorly performing employees who may be toxic to veterans 

health. 

Veteran Service Organizations: More effective monitoring of the 

VA with transparent reasonable time data. 

Taxpayers: Determine if we are getting value. 

Whistleblowers: Will be encouraged. This will create transparency in their individual VA institutions without the fear of professional rebuke and potentially, financial devastation. 

I would like to deeply thank the Committee for the privilege of 

appearing before you today on, what I view, to be a defining moment in how our Government responds to the mental health needs 

of veterans. Thank you. 


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1To avoid confusion, I will refer to myself in the third person throughout this testimony. 

The CHAIRMAN. Thank you Dr. Mathews. We’ll have an opportunity, each of us, to ask questions and get into specifics a little 

bit later on. f 

PREPARED STATEMENT OF DR. CHRISTIAN HEAD

Introduction 

Dr. Christian Head 1 comes before Congress to testify, not motivated by any political agenda, but based purely on a genuine interest in seeking solutions to address employee mistreatment, but 

most importantly, to improve the healthcare provided to our Country’s heroes. Dr. Head submits this testimony in response to 

Congress’s request to appear and testify on this issue. 

Dr. Head is uniquely qualified to testify regarding issues within 

the VA system. Dr. Head is a world-renown, board certified Head 

and Neck Surgeon. Between 2002 through 2013, Dr. Head held 

dual appointments at the UCLA David Geffen School of Medicine 

becoming a tenured Associate Professor in Residence of Head and 

Neck Surgery, as well as an attending surgeon at the West Los Angeles Campus of the VA Greater Los Angeles Healthcare System 

(‘‘GLAHS’’). In 2007, Dr. Head was promoted to Associate Director, 

Chief of Staff, Legal and Quality Assurance within GLAHS. 

Dr. Head’s clinical and academic successes over the years have 

been numerous. However, despite Dr. Head’s many accomplishments and contributions to the medical profession, Dr. Head has 

endured and witnessed, firsthand, illegal and inappropriate discrimination and retaliation of physicians, nurses, and staff members within GLAHS. Throughout this testimony, Dr. Head will 

speak on the growing number of complaints coming from VA employees, complaints ranging from racial, gender, and age discrimination and harassment to complaints regarding substandard patient care and treatment. 

Additionally, Dr. Head will address the inappropriate and often 

illegal response, or at times lack of response, by VA administration 

in regards to complaints by hospital employees. For example, this 

testimony will focus on how administrators and supervisors within 

GLAHS have created a climate of fear and intimidation, where the 

system not only fails to protect whistleblowers, but actively seeks 

to retaliate against them. 

Further, Dr. Head’s testimony here will discuss the general lack 

of accountability of VA administrators and supervisors who actively 

retaliate against and ostracize hospital employees who attempt to 

speak out against illegal behavior. Dr. Head will testify, firsthand, 

about the climate within the GLAHS which perpetuates this illegal 

behavior, due in large part to the system’s failure to take any action against certain individuals. Specifically, how wrongdoers are 

left in positions of high leadership to continue their illegal behavior 

without recourse. 

Dr. Head’s testimony will further discuss how the current morale 

of employees within GLAHS is dangerously low. Dr. Head’s testimony will discuss how the system’s failure to properly respond to 


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complaints leaves employees within GLAHS with a sense of helplessness, creating undue stress and anxiety amongst those attempting to provide quality healthcare to our Country’s veterans. 

Finally, but most importantly, Dr. Head’s testimony here will explain how this dangerous climate of intimidation and retaliation 

against whistleblowers negatively affects patient care. Dr. Head 

will discuss how he has witnessed, firsthand, veterans receiving 

below-standard healthcare, or no healthcare at all, because of the 

retaliatory behavior and lack of accountability within the system. 

Background 

Dr. Christian Head is a prominent Head and Neck Surgeon, 

known worldwide. As some would say, ‘‘one of our finest surgeons 

in Southern California. . . . [Who is] generous with his time and 

talent, helping Veterans and giving back to our community both locally and nationally. . . . [W]ho will make a difference in our world 

with his skills as a surgeon, his scientific research and laboratory.’’ 

Unfortunately, Dr. Head has been the victim of outrageous racial 

harassment, discrimination, and retaliation occurring within 

GLAHS. 

Dr. Head obtained his Doctor of Medicine degree from Ohio State 

University, College of Medicine in 1993. Between 1992 and 1993, 

Dr. Head completed an Internship in Surgery at the University of 

Maryland at Baltimore. Between 1994 and 1996, Dr. Head commenced his employment with a Fellowship in Neuro-Otology Research at UCLA School of Medicine. Between 1996 and 1997, Dr. 

Head completed a Surgical Internship at UCLA School of Medicine. 

Between 1997 and 2002, Dr. Head worked as a Resident in the 

UCLA School of Medicine Head and Neck Surgery Department. In 

2002, Dr. Head joined the faculty as a Visiting Professor in Head 

and Neck Surgery at UCLA. In 2002, Dr. Head also joined GLAHS. 

During his time with GLAHS, Dr. Head worked as a Head and 

Neck Surgeon, and in 2007, was promoted to Associate Director, 

Chief of Staff, Legal and Quality Assurance within GLAHA. In August 2003, Dr. Head joined the faculty of the UCLA Geffen School 

of Medicine as a full time Head and Neck Surgeon. Dr. Head left 

UCLA in 2013. Dr. Head has been board certified in Head and 

Neck Surgery since June 2003. 

Over the years, Dr. Head’s work has included clinical practice, 

surgery, academia, and research. Dr. Head has received accolades 

for his work, including the National Institute for Health National 

Cancer Institute Faculty Development Award. In or around 2001 to 

2002, Dr. Head was nominated for the UCLA Medical Center Physician of the Year award. In or around November 2003, Dr. Head 

launched the UCLA Jonsson Cancer Center Tumor Lab, which has 

been tremendously successful, yielding valuable research and benefitting many physicians and patients at UCLA and worldwide. In 

2003, Dr. Head was one of a few surgeons nationwide to receive the 

Faculty Development Award from the National Institute of Health 

Comprehensive Minority Biomedical Branch, intended to increase 

the number of minority physicians in cancer research at major academic institutions. 

An important point relevant to this testimony includes the relationship between GLAHS and the University of California, Los AnVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00102 Fmt 6621 Sfmt 6602 Y:\89377.TXT PAT

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2While there may be additional information relevant to Dr. Head’s testimony, because of certain conditions, Dr. Head will focus his testimony here solely on incidents related to his employment at GLAHS. 

geles (‘‘UCLA’’). UCLA has several affiliated hospitals, one of which 

includes GLAHS. As part of this affiliation, UCLA provides physicians and surgeons to staff GLAHS. Until his departure from 

UCLA in July 2013, Dr. Head worked at both entities under this 

UCLA/GLAHS affiliation. 2

Dr. Head’s supervisors include Marilene Wang, M.D. (‘‘Dr. 

Wang’’), UCLA/GLAHS Head and Neck Surgeon and Dr. Head’s immediate clinical supervisor at GLAHS; Dean Norman, M.D. (‘‘Dr. 

Norman’’), GLAHS Chief of Staff; Matthias Stelzner, M.D. (‘‘Dr. 

Stelzner’’), GLAHS Chief of Surgical Services; and Donna Beiter, 

RN, MSN (‘‘Ms. Beiter’’), GLAHS Director. Dr. Head’s immediate 

supervisor at UCLA was Gerald Berke, M.D. (‘‘Dr. Berke’’), Chairman of the UCLA Department of Head and Neck Surgery, who has 

tremendous power and influence at GLAHS. 

Discrimination and Retaliation Against Dr. Head 

Despite Dr. Head’s many accomplishments and contributions to 

the medical profession, Dr. Berke and Dr. Wang have made several 

inappropriate racial comments about black people, including Dr. 

Head. In or around 2003, Dr. Wang made comments that Dr. Head 

was hired as a Visiting Professor because he was an ‘‘affirmative 

action hire’’ and ‘‘affirmative action project.’’ In or around 2003, Dr. 

Wang also publicly stated that Dr. Head is inferior because he is 

black, that he would not pass the boards, and that he was unqualified. In or around 2003, Dr. Wang stated that ‘‘cream rises to the 

top,’’ that Dr. Head ‘‘would not make it in academic medicine,’’ and 

that Dr. Head and ‘‘doctors like him’’ who are black, were the reason for failed hospitals like King Drew. In or around mid-2003, Dr. 

Berke stated that ‘‘we’re about to have some color’’ in the department. Dr. Berke also stated, ‘‘I guess we’ll have our first Nigger’’ 

now. 

From 2003 to present, Dr. Head has lived with Dr. Wang’s 

threats and affirmative actions to destroy Dr. Head’s career, reputation, and ability to earn a living. In that regard, in 2003, Dr. 

Wang, who has supervisory authority over Dr. Head at GLAHS and 

prepared evaluations of his performance, clearly indicated it was 

her intention to prevent Dr. Head from receiving promotions, full 

time equivalents, tenure, and advancement. Dr. Wang’s discriminatory conduct has been continuous and consistent throughout Dr. 

Head’s employment. 

Starting in or around 2003, Dr. Wang began stating to other surgeons that she fully intended to interfere with Dr. Head’s professional advancement, in part by giving Dr. Head subpar evaluations 

and falsely attacking Dr. Head’s credentials and performance at 

GLAHS. 

In March 2004, Dr. Head submitted an EEO complaint outlining 

the discriminatory and hostile behavior against him by Dr. Wang. 

(A true and correct copy of this EEO complaint is attached hereto 

as Exhibit 1.) 

In or around June 2004, Dr. Wang was ordered by UCLA officials 

to stop submitting negative evaluations about Dr. Head after Dr. 


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Wang was reported by Dr. Head as having called Dr. Head an ‘‘affirmative action hire,’’ amongst other racist comments. At that 

time, Dr. Wang promised not to interfere with Dr. Head’s career 

advancement. However, in direct violation of this order, Dr. Wang 

continued to submit negative supervisor evaluations at GLAHS regarding Dr. Head’s performance, which evidenced her obvious racial bias against Dr. Head. Dr. Wang’s ongoing harassment and retaliation against Dr. Head in this way continued to negatively impact Dr. Head’s career advancements. 

In or around November 2005, Dr. Wang gave Dr. Head a retaliatory and harassing evaluation of his teaching and performance at 

GLAHS in an attempt to interfere with his advancement at UCLA. 

Dr. Wang rated Dr. Head a 1 out of a possible 4 points in his review. Dr. Wang further wrote that Dr. Head ‘‘doesn’t teach, yells 

at junior residents,’’ ‘‘poor availability, doesn’t respond to messages,’’ and ‘‘poor example & role model for residents.’’ Dr. Wang’s 

performance review was in sharp contrast to reviews and comments made by other colleagues. 

On or about February 2, 2006, Dr. Head sent a letter to Dr. 

Rosina Becerra (‘‘Dr. Becerra’’), then-Vice Provost for Faculty Diversity and Development at UCLA, regarding this harassment, discrimination, and related problems at UCLA and requested financial 

and other support to stop the harassment, retaliation, and interference with his career advancement. Dr. Head also requested that 

he be assigned more time working at UCLA in order to be removed 

from Dr. Wang’s supervision at GLAHS. In response, Dr. Becerra 

told Dr. Head that she could not help him, and warned Dr. Head 

it was not a good idea to participate in an investigation against Dr. 

Wang. 

In or around April 2006, Dr. Head was contacted for the first 

time by Investigator Nancy Solomon (‘‘Investigator Solomon’’) of the 

Office of Inspector General (‘‘OIG’’) regarding an investigation of 

Dr. Wang for time card fraud concerning work Dr. Wang performed 

at GLAHS. Dr. Head learned from Investigator Solomon that Dr. 

Wang was under investigation by the federal government for submitting and/or approving false time cards pertaining to services 

provided at GLAHS. Dr. Head was asked by Investigator Solomon 

to testify about Dr. Wang’s involvement in time card fraud. Dr. 

Head requested protection from Investigator Solomon, stating that 

he feared retaliation for his participation in the investigation. With 

a promise by Investigator Solomon regarding protection from retaliation for his cooperation, Dr. Head testified in an OIG deposition 

regarding Dr. Wang’s time card issues. 

The OIG investigation concluded that Dr. Wang had in fact committed time card fraud. There was a recommendation by the OIG 

that Dr. Wang be removed from her leadership position and terminated from GLAHS; however, Dr. Wang’s immediate supervisor, 

Dr. Berke, took steps to save Dr. Wang’s job and leadership position—UCLA transferred vacation hours to Dr. Wang’s account and 

research funds were transferred from Dr. Berke. Additionally, Dr. 

Berke approached Dean Norman, M.D. (‘‘Dr. Norman’’), GLAHS 

Chief of Staff, to request that Dr. Wang not be terminated. Due to 

Dr. Berke’s intervention and powerful influence, Dr. Norman did 

not terminate Dr. Wang, did not dock her pay, and did not remove 


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her from her leadership position as Chief of Head and Neck Surgery at GLAHS, despite the recommendation for termination by the 

OIG. In fact, the only action taken was a written warning issued 

to Dr. Wang and termination of a subordinate. 

Prior to Dr. Head’s participation in the time card fraud investigation of Dr. Wang, Dr. Head had been nominated for Head and Neck 

Department teacher of the year. However, following Dr. Head’s participation and truthful testimony in connection with Dr. Wang’s 

time card fraud investigation in April 2006, Dr. Berke and Dr. 

Wang escalated their campaign of intimidation, harassment, discrimination, and retaliation against Dr. Head. 

In or around April/May 2006, Dr. Head met with Dr. Berke to 

discuss Dr. Head’s total compensation package for the academic 

year 2006–2007. Dr. Berke threatened Dr. Head stating, ‘‘If you 

complain about Dr. Wang,’’ and about not getting the compensation 

enhancement (a Full-Time Equivalent (‘‘FTE’’) that was available, 

which Dr. Wang denied Dr. Head and gave to another surgeon 

from outside the hospital), ‘‘you won’t get anything, you’ll be removed.’’ 

In or around April/May 2006, shortly after Dr. Head provided 

deposition testimony to the OIG, Dr. Wang discussed with the residents of the UCLA Head and Neck Department, whom she supervised and worked with, about Dr. Head’s participation in the time 

card fraud investigation. In addition, Dr. Wang spoke with many 

of the residents who worked under her supervision as they each 

testified in the time card fraud investigation. As a result, these 

residents, began to participate in the intimidation, harassment, 

discrimination, and retaliation of Dr. Head. Dr. Head began to experience horribly offensive discriminatory comments, graphic racial 

photos, and retaliatory actions and statements. 

In or around May 2006, Dr. Head reported to Dr. Dennis Slamon 

(‘‘Dr. Slamon’’) that he was being harassed and retaliated against 

by Dr. Berke and Dr. Wang and was worried about his future. Dr. 

Slamon responded, ‘‘They [Dr. Berke, Dr. Wang, and Dr. 

Abemayor] think you ratted out Wang in the IG investigation. You 

need to keep your head down and stay out of this. Don’t complain.’’ 

In or around May 2006, Dr. Head requested a full-time appointment at GLAHS, but did not receive the appointment despite being 

more qualified than other choices. 

In or around June 2006, at the year-end closing ceremony and 

party for the UCLA Head and Neck Department—attended by approximately 200 people including UCLA and VA faculty, staff, 

chairs, residents, and spouses—the resident class presented a slide 

show. The slide show, presented by the Residents had an entire 

section about Dr. Head. These slides, directed toward Dr. Head, 

were exceptionally vulgar, disturbing, defamatory, discriminatory, 

retaliatory, humiliating, degrading, disgusting, demoralizing, and 

racist. One slide, referencing the OIG time card fraud investigation 

of Dr. Wang, showed Dr. Head on the telephone and read: ‘‘If all 

else fails call 1–800–488–VAIG.’’ (See Exhibit 2.) The other slides 

throughout the presentation were similar to Dr. Wang’s comments 

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In or around June 2006, Dr. Head’s surgical practice was restricted, and more complex surgical operating room time was being 

given to vastly under qualified surgeons. 

In or around December 2006, Dr. Wang continued to submit false 

critical evaluations of Dr. Head, assigning him the lowest marks 

possible. Caused by her malice, personal vendetta, and discriminatory bias towards Dr. Head, Dr. Wang’s false evaluations were defaming to Dr. Head’s professional reputation, criticizing his competence generally and as a teacher, researcher, and mentor. 

In or around early 2007, Dr. Head learned that Dr. Berke and 

Dr. Wang were planning on terminating Dr. Head’s employment if 

given the opportunity. Consistent with the repeatedly expressed intention to remove Dr. Head, Dr. Berke and Dr. Wang micromanaged Dr. Head’s performance, concerning trivial matters or matters 

that were entirely manufactured. Although Dr. Head actively and 

successfully thwarted Dr. Berke’s and Dr. Wang’s efforts to vex, 

annoy, and harass him into voluntarily resigning his position, Dr. 

Wang continued to provide negative evaluations of Dr. Head between 2007 and 2008. 

In or around December 2007, Dr. Wang submitted another critical evaluation of Dr. Head giving him all 1’s out of 5’s. Dr. Wang 

made false statements such as: ‘‘Difficult to reach on pager.’’ ‘‘No 

tangible research activity.’’ ‘‘Poor role model.’’ 

On or about May 5, 2008, Dr. Wang again submitted a Teaching 

Evaluation—knowing it was to be submitted into Dr. Head’s Promotions Packet for tenure decisions—marking all 1’s (Unsatisfactory), stating ‘‘poor clinical judgment, poor availability, poor role 

model.’’ (See Exhibit 3.) Dr. Wang continued to provide negative 

false information and evaluations about Dr. Head, despite orders to 

stop. 

In or around July 2008, in a further attempt to harass and retaliated against Dr. Head, he was wrongfully accused of ten counts 

of time card fraud and lying to his supervisor. 

In July 2008, Dr. Head was forced to file another EEO complaint 

regarding the threatening and retaliatory treatment against him 

by VA administrators and supervisors. (A true and correct copy of 

this EEO complaint is attached hereto as Exhibit 4.) 

In or around August 2008, in order to further retaliate against 

Dr. Head, his salary was reduced. At this time, in order to undermine Dr. Head’s teaching, a fee-based physician was hired in the 

clinic to see Dr. Head’s patients at an increased cost to GLAHS. 

In or around August 2008, Dr. Head was transferred to the Quality Assurance program to minimize the retaliation by management 

resulting from his 2004 EEO complaint. 

On or about September 10, 2008, Dr. Michael Mahler (‘‘Dr. 

Mahler’’), Chief of Organizational Improvement at GLAHS wrote a 

detailed account of the harassment, discrimination, and retaliation 

against Dr. Head. In this letter, Dr. Head was exonerated of time 

card fraud. Furthermore, it was found that ‘‘Dr. Stelzner and Dr. 

Wang improperly treated Dr. Head differently than other members 

of the section.’’ (See Exhibit 5.) 

In early 2009, Dr. Head again consulted with Dr. Becerra regarding Dr. Wang’s unfair and improper evaluations of Dr. Head and 

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ties. Dr. Becerra responded, ‘‘Oh my God, here we go again. I am 

going to legal with this.’’ Dr. Becerra replied, ‘‘Come back to see me 

if you don’t get tenure, otherwise you’re not damaged.’’ 

In or around January 2009, in an attempt to further sabotage 

Dr. Head’s tenure and career advancement, Dr. Wang again submitted false evaluations of Dr. Head. 

On several occasions, regarding Dr. Wang’s unfair treatment and 

improper evaluations of Dr. Head’s performance, Dr. Head individually met with Dr. Gold, Dr. Rosenthal, Dr. Mechoso, and Dr. 

Becerra, all of whom communicated a similar message that if Dr. 

Head wanted tenure, he better not take any action against Dr. 

Wang. 

In or around January 2009, Dr. Head presented to Dr. Richard 

H. Gold (‘‘Dr. Gold’’), Assistant Dean of Academic Affairs, a report 

conducted at GLAHS showing findings that Dr. Wang was biased 

against Dr. Head in her evaluations of his performance, assignments, and research. When Dr. Head first received this report, Dr. 

Head informed Dr. Berke that he had this report and could prove 

that Dr. Wang was treating him differently and unfairly in assignments and research opportunities. Dr. Berke offered to pay Dr. 

Head for the report saying, ‘‘How much do you want for the report? 

You can’t release that report.’’ Dr. Head replied he did not want 

money, he wanted to be treated fairly and to receive the tenure he 

deserved and had earned. 

In or around October 2009, another GLAHS employee reported 

being transferred to another department and refused promotion for 

not submitting false reports against Dr. Head concerning his attendance at GLAHS. 

Also around this time, prior to Dr. Norman’s vacation to Fiji, Dr. 

Head and Dr. Norman met to discuss Dr. Head’s fear of more intense retaliation and loss of income at GLAHS. Dr. Norman stated 

that Dr. Head would be protected with a significant salary increase; however, that increase never occurred, instead, Dr. Head 

endured further retaliation. On information and belief, Dr. Norman 

later told a faculty member on his trip to Fiji that ‘‘he really liked 

Dr. Marilene Wang and that they had a good relationship.’’ 

In or around September through November 2010, Dr. Head participated as a witness, and later in March through October 2011, 

and even through today, Dr. Head has testified on behalf of Dr. 

Jasmine Bowers in a racial discrimination case against GLAHS. 

Dr. Wang is on the peer-review panel at GLAHS and considered a 

witness in the Bowers Case. Immediately after Dr. Head participated in the Bowers Case, Dr. Berke, Dr. Wang, and Dr. Norman 

escalated the retaliation and harassment against Dr. Head. 

In or around June 2011, in an effort to further discredit Dr. 

Head, Dr. Wang began making accusations of wrongdoing against 

Dr. Head. Dr. Wang stated to a group of surgeons that Dr. Wang 

was sure Dr. Head would not last long and that he would be investigated at GLAHS where Dr. Wang is Chief of Head and Neck Surgery. 

In or around September 2011, Dr. Norman confronted Dr. Head, 

stating ‘‘you’re a bad doctor’’ and wrongfully accusing Dr. Head, 

claiming ‘‘you’re never here’’ and asking Dr. Head about his work 


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hours. Dr. Norman threatened Dr. Head stating ‘‘I’m very worried 

about you.’’ 

In or around October 2011, James Itamura, EEO Investigator, 

wrote a detailed account of the harassment, discrimination, and retaliation occurring against Dr. Head at GLAHS, which was provided to the Office of Special Counsel. (See Exhibit 6.) 

On or about October 25, 2011, Dr. Head was on an emergency 

call at UCLA when he contacted Vishad Nabili, M.D. (‘‘Dr. Nabili’’) 

to cover for him on an elective surgery at GLAHS. A few days later, 

Dr. Head learned that he was accused of not showing up for a surgical procedure, which was reported to Human Resources. Despite 

his promise to correct Dr. Head’s time cards to correctly reflect Dr. 

Head’s work, Dr. Norman charged Dr. Head with being Absent 

Without Leave (‘‘AWOL’’) and reduced Dr. Head’s pay approximately $7,000. 

Around this time, Dr. Head was being told by co-workers that 

Dr. Norman was trying to push Dr. Head out of GLAHS. In or 

around November 2011, Dr. Joel Sercarz (‘‘Dr. Sercarz’’), fellow 

Head and Neck Surgeon at UCLA, informed Dr. Head that Dr. 

Wang told Dr. Sercarz that GLAHS was planning to ‘‘get [Dr. 

Head] on time card fraud.’’ Dr. Head reported these allegations to 

Dr. Norman and others. In retaliation, Dr. Norman tried to restrict 

Dr. Head’s tour of duty. 

On or about November 20, 2011 Dr. Norman ordered his assistant to mark Dr. Head AWOL for 90% of the pay period. This action 

resulted in severe financial distress for Dr. Head, causing his house 

to go into foreclosure. Despite Dr. Head providing evidence showing 

he in fact did work his tour of duty, Dr. Norman did not turn in 

Dr. Head’s time cards for several weeks. It was not until after Congresswoman Karen Bass and others inquired into Dr. Head’s pay, 

that Dr. Head finally received a check. 

On November 23, 2011, Dr. Head filed a formal EEO complaint. 

On or about April 17, 2012, Dr. Head filed a lawsuit against the 

Regents of the University of California and certain individuals. The 

case, Christian Head, M.D. v. Regents of the University of California, et al., Case No. BC 482981, was filed in Los Angeles Superior Court. In or around July 2013, the case was settled and ‘‘The 

matter has been resolved to everyone’s satisfaction.’’ 

On or about July 18, 2013, UCLA release a statement which 

read: 

The Regents of the University of California and Dr. Christian 

Head today reached a settlement in a civil case he brought against 

the University last year. The case presented difficult issues of alleged discrimination and retaliation that were strongly contested. 

The University acknowledges that in June 2006 during an endof-year event, an inappropriate slide was shown. The University regrets that this occurred. The University does not admit liability, 

and the parties have decided that the case should be resolved with 

a mutual release of all legal claims. The matter was settled to the 

mutual satisfaction of the parties. A true and correct copy of this 

press release is attached hereto as Exhibit 7.) 

Unfortunately, the retaliation against Dr. Head did not stop with 

Dr. Head himself, but spread to anyone that even attempted to 

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half. In or around June/July 2012, Dr. Jeff Suh (‘‘Dr. Suh’’), fellow 

Head and Neck Surgeon at UCLA, told a representative of a sinus 

surgery supply company not to assist Dr. Head with necessary surgical supplies or with his lawsuit or the representative would lose 

all business at UCLA. Around this same time, Dr. Suh also threatened Dr. Sercarz not to assist Dr. Head with his lawsuit or his 

complex surgical cases or he would not receive help or referred 

cases. Dr. Suh claimed he was speaking on behalf of Dr. Wang in 

regards to these threats. Because of this retaliation, Dr. Sercarz 

was forced to bring his own civil action to protect his name and 

reputation. (A true and correct copy of this civil complaint is attached hereto as Exhibit 8.) 

On or about August 2, 2012, in further harassment and retaliation against Dr. Head, Dr. Wang refused to treat one of Dr. Head’s 

patients, leaving the patient in the emergency room for days, using 

the patient’s care and safety as a weapon against Dr. Head, creating a hostile environment and jeopardizing patient safety. 

Dr. Head was one of the first to draw attention to the delay in 

care and the backlog of patients within the VA system. On November 16, 2012, Dr. Head sent Dr. Norman an email discussing the 

issue of delayed patient care at the VA. Specifically, Dr. Head informed Dr. Norman that the delayed diagnosis of cancer was a 

major issue facing the VA. (A true and correct copy of this email 

and accompanying attachments is attached hereto as Exhibit 9.) 

In or around May 2014, Dr. Head learned that VA administrators had improperly taken approximately 60–100 days of sick leave 

time and approximately 80–90 days of vacation time from Dr. Head 

in retaliation for Dr. Head’s protected whistleblower activity, specifically, Dr. Head’s truthful testimony regarding Dr. Wang’s illegal 

time card fraud, testimony in support of Dr. Bowers’s racial discrimination case, and reports of delayed care and backlog of veterans within the VA system. Less than two months ago, administrators within GLAHS retroactively took these accrued time-off 

days, falsely claiming that Dr. Head had previously failed to enter 

his time. 

Retaliation against other whistleblowers, because of Dr. Head’s 

leadership position within glahs and his willingness to stand up 

against wrongdoers within the system, dr. head has become aware 

of many other VA employees who are enduring their own retaliation. 

Incident 1: 

One instance involved a 53-year-old African American woman, 

Dr. Jasmine Bowers (‘‘Dr. Bowers’’), who is a board-certified anesthesiologist and has practiced in anesthesia and pain management 

for over 24 years. 

In May 2010, Dr. Bowers was offered a per-diem, fee-basis position, which was an hourly position with capped weekly hours, and 

no benefits. Because of the dire need for anesthesiologists at the 

VA, Dr. Michelle Braunfeld (‘‘Dr. Braunfeld’’), chief of anesthesiology, assured Dr. Bowers that the appointment would likely last 

longer than a year. When Dr. Bowers inquired about full-time positions, Dr. Braunfeld stated that the only available position was for 

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ment, and more than twenty years of experience in the field, Dr. 

Bowers expressed interest in the position. Dr. Braunfeld was 

dismissive, and stated Dr. Bowers would likely have to have board 

certification in pain management to be hired for the position. Unbeknownst to Dr. Bowers, Dr. Braunfeld had advertised for a ‘‘general 

anesthesiologist’’ position in May 2010. In addition, at or around 

the same time Dr. Bowers was hired (in June 2010), Dr. Braunfeld 

offered a full-time, FTE anesthesiologist position to Dr. Corey 

Downs (‘‘Dr. Downs’’), who began working at the VA in approximately July 2010. Dr. Downs was fresh out of his residency at 

UCLA, and was not board certified in anesthesia. Dr. Bowers 

began her fee-basis appointment on or about July 6, 2010, but continued to make inquiries regarding a full-time FTE position. At one 

point in her employment, Dr. Bowers overheard Dr. Braunfeld stating to someone else, ‘‘We can’t hire certain people for full time jobs 

because it’s too hard to get rid of them.’’ 

After beginning her fee-basis position, Dr. Bowers began to experience demeaning and disrespectful conduct from the certified 

nurse anesthetists (‘‘CRNAs’’) at the VA. The harassment began 

with relatively minor incidents, including several CRNAs referring 

to her by her first name, and one particular CRNA, Krista Douglas 

(‘‘Douglas’’) making a rude comment in the CRNA lounge. Douglas 

and other CRNAs reprimanded Dr. Bowers in front of others, including patients, and were consistently treating her with disdain 

and disrespect. In over 24 years of practice working with nurses 

and CRNAs without such issues, Dr. Bowers decided to speak to 

the lead CRNA, Dana Grogan (‘‘Grogan’’) and Dr. Braunfeld about 

her concerns. After she complained, the harassment escalated. 

Douglas refrained from speaking to her altogether, and refused to 

relieve her during surgeries, in spite of her duty to do so. On one 

occasion, Dr. Bowers had a conversation with a man working at an 

administrative desk in the surgery department, Terry Woods 

(‘‘Woods’’), and mentioned her issues with Douglas. Woods told her 

that Douglas had treated another African American anesthesiologist in a similar manner, and told Dr. Bowers to ‘‘watch her back.’’ 

Following a surgery on September 14, 2010 in which Dr. Bowers 

administered anesthesia, Grogan went to Dr. Braunfeld with printouts from the blood pressure monitor (‘‘strips’’) from the surgery, 

and the intra-operative anesthesia one-page report, but not the patient’s chart. Grogan claimed that she went to Dr. Braunfeld to report her concerns about the patient’s low blood pressure and what 

she found to be discrepancies between the handwritten chart and 

the blood pressure monitor strips. Dr. Braunfeld then went to Dr. 

Stelzner with her concerns, and then went to the Chief of Staff, Dr. 

Norman. Dr. Braunfeld later stated that she discussed her concerns 

with Dr. Norman and that they agreed to remove Dr. Bowers from 

the September schedule, and investigate the matter. Dr. Norman 

told Dr. Braunfeld to obtain a written response from Dr. Bowers. 

At the end of that day, and after Dr. Bowers was allowed to administer anesthesia all day, Dr. Braunfeld brought Dr. Bowers into her 

office and accused her of falsifying medical records and allowing a 

patient to remain hypotensive for 45 minutes during the surgery, 

essentially endangering the patient. Dr. Braunfeld told her she 

would not be allowed to return to work, pending an investigation, 


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and did not ask Dr. Bowers to provide any written response. Dr. 

Bowers asked to be allowed to provide a written response, which 

she did on September 20, 2010. In her response, Dr. Bowers requested an independent, administrative review of the case, and expressed that she was shocked and upset at being accused of misconduct, especially in light of the fact that the surgery had no complications and was successful. 

The VA obtained a report from Dr. Nitin Shah (‘‘Dr. Shah’’) who 

is an expert, author, professor, and anesthesiologist at the Long 

Beach VA. On November 2, 2010, Dr. Shah spoke with Dr. Mahler, 

deputy Chief of Staff and head of Risk Management about his findings. Dr. Shah stated that while there were some discrepancies between the hand-written chart and the monitor strips, he did not believe there was any misconduct in charting. He also found no negligence, nor patient endangerment, by Dr. Bowers, in light of the 

patient’s history of low blood pressure, and successful outcome of 

the surgery with no complications. Dr. Shah expressed that he was 

troubled by Grogan’s failure to mention her purported ‘‘concerns’’ 

during the surgery to her supervising anesthesiologist or to the 

surgeon. Although instructed by the VA not to comment on the 

standard of care, Dr. Shah submitted a report on November 4, 

2010, with his findings. He stated that out of 16 blood pressure 

chart entries, 7 attributed to Dr. Bowers were inconsistent with the 

monitor readings. He stated that this may be the result of ‘‘sloppiness,’’ but not misconduct. He also stated that discrepancies in 

charting do occasionally happen when the anesthesiologist is managing other aspects of the patient’s care. He reiterated his determination that there was no patient endangerment in the management of the patient’s blood pressure by Dr. Bowers during the surgery. 

Dr. Head, in his role as head of Quality Assurance, reviewed the 

patient’s charts and records. He spoke with the surgeon, the resident who participated in the surgery, the supervising anesthesiologist, and the CRNA and Dr. Raj who started the case. After determining there was no issue with the patient’s low blood pressure, 

he told Dr. Norman and Dr. Mahler that he was troubled with the 

manner in which Dr. Bowers was being treated. Dr. Head also 

heard other medical staff discussing the case, and people stating 

that Dr. Bowers had ‘‘almost killed a patient.’’ This was determined 

to have started with Grogan, and Dr. Head heard the same comment from Sandra Riley-Graves, an administrative assistant in Dr. 

Norman’s office. Shortly after discussing his findings with Dr. Norman, Dr. Head overheard Riley-Graves state, ‘‘It’s a black thing’’ to 

Dr. Mahler, implying that Dr. Head was supporting Dr. Bowers because he was also African American. After he heard Dr. Mahler 

yelling at Riley-Graves behind the closed office door, Dr. Mahler 

came out of the office and told Dr. Head to ‘‘stand down’’ on the 

investigation and leave it alone. 

Dr. Braunfeld never contacted Dr. Bowers again, and never provided Dr. Shah’s report to Dr. Bowers. In spite of Dr. Shah’s favorable review, that there was no negligence, misconduct, or patient 

endangerment, Dr. Bowers was never reinstated or placed back on 

the schedule. 


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Shortly after Dr. Bowers initiated the EEO process, Congresswoman Diane Watson wrote to Donna Beiter (‘‘Beiter’’), Director 

and CEO of the VA, with her concerns and questions about ongoing 

discrimination at the VA. The VA’s response to Congresswoman 

Watson contains inconsistencies. For example, Beiter stated that 

Dr. Bowers never provided a response to the allegations, which was 

false. 

Dr. Bowers initially contacted the EEO office on September 30, 

2010. The EEO Office issued a Notice of Acceptance. After conducting its investigation, the EEO’s assigned investigator, James 

Itamura, concluded that a culture of racial and age discrimination 

exists in the anesthesiology department at the VA, wherefrom Dr. 

Bowers and other older and non-white anesthesiologists were removed in order to make room for younger replacements from 

UCLA. 

Incident 2: 

Dr. Saroja Rajashekara (commonly referred to as ‘‘Dr. Raj’’) was 

a cardiac anesthesiologist at the VA from 2002 to 2011. Dr. Raj reported to the EEO Investigator she observed and experienced age 

discrimination at the VA. While she was initially hired by thenChief of Anesthesia, Richard Chen, Dr. Raj worked under Dr. 

Braunfeld after she became Chief of Anesthesia in January 2010. 

After her mother became ill in early 2010, Dr. Raj took leave 

(which was approved) to visit her mother in India. While she initially expected to return in early May, she sent correspondence to 

Dr. Braunfeld stating that she needed to extend her leave. Dr. 

Braunfeld contacted the HR Department at the VA asking how to 

deem Dr. Raj AWOL. In Dr. Braunfeld’s correspondence with HR, 

she lied about her prior contact and correspondence with Dr. Raj. 

As a result, Dr. Raj was considered ‘‘AWOL’’ and was removed from 

the cardiac schedule. She ultimately provided evidence of her contact with Dr. Braunfeld, and the AWOL status was removed from 

her personnel file; however, Dr. Braunfeld did not reinstate her on 

the cardiac schedule. Instead, Dr. Braunfeld had her replaced with 

younger UCLA graduates, who were far less qualified, with the 

knowledge and approval of Chief of Staff, Dr. Norman. 

Dr. Raj reported to the EEO Investigator her concerns regarding 

Dr. Bowers’s treatment by the VA. (See Exhibit 10.) She was aware 

that there was a need for anesthesiologists at the time of Dr. 

Bowers’s hire at the VA, but Dr. Braunfeld was ‘‘holding’’ jobs for 

younger, less-qualified residents from UCLA. Dr. Raj also remarked about the unusual manner in which Dr. Bowers was immediately removed from the schedule following the September 14, 

2010 surgery. Specifically, she stated it was not the typical protocol 

for a case such as Dr. Bowers’s to bypass the Quality Assurance 

process, and that Dr. Bowers was ‘‘fired’’ in spite of the patient 

having no complications. 

Incident 3: 

Dr. Carol Bennett, an African American woman, has worked at 

the VA for over 15 years and is currently the Chief of Urology. Dr. 

Bennett filed an EEO complaint against Dr. Stelzner and Dr. Norman in 2005 based on race discrimination. Dr. Bennett was discovered to have been allowing her nurse to use her CPRS code to sign 


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off on prescriptions on the electronic chart, albeit with her full 

knowledge and consent. On August 24, 2005, she received a letter 

from Dr. Stelzner advising her that she was placed on administrative leave. Dr. Bennett was immediately taken off duty without an 

investigation. She admitted to Dr. Stelzner her mistake, but that 

it was common practice among surgeons in order to move on to the 

next patient. All of the entries were with the surgeons’ knowledge, 

and they would review and sign the chart later. In her EEO complaint, Dr. Bennett addressed the fact that another non-African 

American physician was found to have a similar infraction, but was 

only given warnings. She also complained that she was being 

‘‘super-audited’’ by Dr. Stelzner, as compared to other non-African 

American medical staff in the Department of Surgery. After mediation, Dr. Bennett was fully reinstated as Chief of Urology. 

Incident 4: 

In another instance, an employee working as an EEO Counselor 

in the Office of Resolution Management was retaliated and terminated for making a protected whistleblower complaint. This employee, considered to be one of the top EEO counselors in the nation, filed a report to internal investigators regarding missing EEO 

files which contained private personnel information of specific VA 

employees. Because this employee’s report reflected negatively on 

his supervisor, Ms. Tracy Strub, Ms. Strub retaliated against the 

employee, initiating an unjustified Performance Improvement Plan. 

In or around July 2013, shortly after Dr. Head settled his lawsuit 

with UCLA, VA administrators questioned this employee about 

whether or not this employee had helped Dr. Head with his lawsuit. This employee denied that he had helped Dr. Head, but because of this employees close relationship with Dr. Head, VA administrators did not believe him. Within hours of this meeting, the 

employee was terminated. 

Incident 5: 

In another instance, Dr. Wang discriminated against a Nurse 

Practitioner working in the Head and Neck Department at the VA 

based on her national origin and Muslim faith. After seeing this 

employee working with Dr. Head, Dr. Wang also told this employee 

not to work with Dr. Head or provide him any assistance with patient care. Because of Dr. Wang’s discriminatory animus towards 

this employee, as well as continued retaliation against Dr. Head, 

Dr. Wang had the employee terminated the day before her probationary period ended. 

Incident 6: 

In a recent incident, an OR tech complained to VA management 

about dangerous conditions in the operating rooms, specifically, 

surgeons using dirty instruments while operating on patients. Following this report, this employee was given both verbal and written 

reprimands. Recently, the employee was suspended for 14 days for 

making these complaints. 

Climate of fear and retaliation within the GLAHS: As outlined 

above in detail, administration within GLAHS has created a climate of fear and intimidation, where the system not only fails to 

protect whistleblowers, but actively seeks to retaliate against them. 


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This retaliation by VA supervisors and administrators often takes 

shape through a similar process. 

Whistleblowers are first threatened and isolated, often being 

warned early that speaking out would not be beneficial to their career. Whistleblowers are made aware, in no uncertain terms, that 

if you tell the truth, you will be punished. 

If the whistleblower chooses to speak out despite the threats, 

they are quickly defamed and humiliated. Supervisors and administrators will begin spreading false information about the whistleblower, suggesting to co-workers that the person is incompetent, 

lazy, and untrustworthy. 

Finally, supervisors place the whistleblower under intense scrutiny, looking for any reason to find fault in the person’s work. 

Whistleblowers, who otherwise have had long, outstanding careers 

within the federal system, all of a sudden are subpar workers who 

begin receiving failing evaluations, verbal and written reprimands, 

salary cuts, transfers, demotions, and sometimes even being forced 

to retire, or worse, terminated. Even those in high administration 

within GLAHS that attempt to do the right thing are not safe. For 

example, Dr. Mahler, former deputy Chief of Staff and head of Risk 

Management, who provided a written statement in support of Dr. 

Head, was eventually forced out. 

Administrators and supervisors with GLAHS have created a 

toxic environment with a clear message, if you do not follow the 

agenda and behave as a ‘‘team player,’’ you will suffer the consequences. 

Lack of accountability: The current system within the VA is one of 

a general lack of accountability of administrators and supervisors 

who actively retaliate against and ostracize hospital employees who 

attempt to speak out against illegal behavior. This climate only 

perpetuates this illegal behavior, due in large part to the system’s 

failure to take any action against certain individuals. Specifically, 

wrongdoers are left in positions of high leadership to continue their 

illegal behavior without recourse. In some circumstances, wrongdoers may even be promoted rather than disciplined. 

For example, the investigation regarding Dr. Wang led to a finding that Dr. Wang had committed time card fraud during a certain 

period of time in her leadership position at GLAHS. However, rather than being disciplined, Dr. Wang was instead promoted. Even 

worse, Dr. Head then was retaliated for providing truthful testimony in Dr. Wang’s time card fraud investigation. 

Leaders within GLAHS, such as Ms. Beiter and Dr. Norman, not 

only have played an active role in retaliating against whistleblowers, but in other cases have chosen to ignore certain occasions 

of retaliation by GLAHS supervisors. Ms. Beiter and Dr. Norman 

have had many opportunities to take action against wrongdoers, 

but have chosen instead to look the other way. 

Low morale amongst healthcare providers: Unfortunately, the current climate of fear and retaliation, coupled with the system’s failure to properly respond and hold wrongdoers accountable, has 

caused morale to be dangerously low, leaving employees within 

GLAHS with a sense of helplessness, creating undue stress and 


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anxiety amongst those attempting to provide quality healthcare to 

our Country’s veterans. 

Dr. Head has witnessed a general sense of fear amongst VA employees. Workers within GLAHS have stated that they are scared 

to speak out for fear of being blamed and punished. Good people 

who are used to doing the right thing and standing up for others 

want to speak out about issues throughout the system, but fail to 

do so for fear of jeopardizing their careers. 

Negative affect on patient care: The issue facing the VA system involves a growing epidemic in hospitals throughout our Country— 

hospital bullying. This issue spans race, gender, religion, and politics because of the life and death danger it poses to patients. This 

problem, while certainly applicable to the VA system, is an issue 

that plagues every hospital nationwide and must eventually be addressed by Congress. 

In her MSNBC article, Hospital Bullies Take a Toll on Patient 

Safety, JoNel Aleccia outlines how hospital bullying ‘‘threatens patient safety and has become so ingrained in health care that it’s 

rarely talked about.’’ (Exhibit 11.) Additionally, in Dr. Kevin Pho’s 

article for FoxNews entitled Bullies in Hospitals?, he concluded 

that ‘‘targeting the toxic culture that perpetuates the problem [of 

hospital bullying] requires everyone to share responsibility. Not 

just doctors, but nurses, hospital administration, and medical educators as well. Only when every stakeholder is part of the solution 

do we stand a better chance of eliminating bullying behavior in 

hospitals altogether.’’ (Exhibit 12.) Dr. Pho’s article was a response 

to a highly-touted New York Times article by Theresa Brown entitled Physician, Heel Thyself, in which she detailed bullying behavior she experienced as a nurse and explained how hospital bullying 

poses a critical problem for patient safety which, not surprisingly, 

leads to a rise in medical errors. (Exhibit 13.) 

Of course, all of these articles came after The Joint Commission 

published Sentinel Event Alert, Issue 40, on July 9, 2008 which described how: 

Intimidating and disruptive behaviors can foster medical errors, 

. . . contribute to poor patient satisfaction and to preventable adverse outcomes, . . . increase the cost of care, . . . and cause qualified clinicians, administrators and managers to seek new positions 

in more professional environments. . . . Safety and quality of patient care is dependent on teamwork, communication, and a collaborative work environment. To assure quality and to promote a 

culture of safety, health care organizations must address the problem of behaviors that threaten the performance of the health care 

team. (Exhibit 14.) 

Unfortunately, health care organizations have not addressed the 

problem, and doctors, nurses, and hospital administrators are left 

to bully and belittle others; and sadly, anyone who dares speak out 

about this behavior threatens not only their job, but their entire career in the healthcare profession. 

Possible solutions: While this testimony has focused on current 

problems within the VA system, all hope is not lost. The mission 

of the VA system is good and noble and should be maintained. The 

VA system has some of the best healthcare providers in the world; 


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however, certain changes must be considered. There are a number 

of possible solutions that can be implemented to affect change and 

improve the system. 

The first, and obvious, solution is one of leadership. Administrators and supervisors within the VA system that are contributing to 

the current culture must be held accountable. New leadership must 

be established—leaders who will encourage and welcome open discussion and dialogue, leaders who will root out divisive and intimidating behavior, and leaders who will create a safe and enjoyable 

atmosphere that focuses on top-quality patient care for our veterans. 

Another important improvement to the system would involve a 

change in the appointment scheduling of veterans. Rather than the 

current process of adding patients to a long list based on when the 

person calls for an appointment, patients need to be assigned appointments based on conditions. There is a Standard Operating 

Procedure (‘‘SOP’’) in place that could be updated and implemented 

which would greatly improve patient scheduling. Based on SOP 

flowcharts, schedulers would be able to schedule more critically ill 

patients sooner, ensuring every veteran receives the proper 

healthcare he/she deserves. 

Additionally, there needs to be some type of computer accountability process implemented. Currently, the computer records can 

be too easily manipulated to hide scheduling and patient backlog 

issues. Hospital administrators should not be able to clear patient 

information unchecked. Perhaps some type of centralized data collection can be created to ensure individual hospitals are not fraudulently changing records. 

Finally, the current proposal of simply assigning more patients 

to already overwhelmed physicians is not the answer. The system 

desperately needs to add additional primary care physicians. Then, 

veterans should be matched up to one specific primary care physician. This would allow the physician to establish a relationship 

with the patient and would create a vested interest with that physician who would then be more inclined to ensure his/her patient 

received proper medical care. That way, if the physician’s patient 

is not receiving the needed care, that primary care physician would 

do what private practice physicians do and call his/her colleagues 

and follow up. For example, Dr. Head’s wife, who is an interventional radiologist within the VA system, is deeply vesting in 

each of her patient’s healthcare and does what is needed to ensure 

her patients are receiving the proper health services. 

Dr. Head provides this testimony with the hopes of finding solutions to address employee mistreatment and improve the quality of 

healthcare provided to our Country’s veterans. As a long time employee within the VA healthcare system, Dr. Head is optimistic 

that appropriate changes can be implemented, and he looks forward to being an integral part of that change and the bright future 

that is ahead. 

Dated: October 31, 2014 

CHRISTIAN HEAD, M.D. 

For additional information, you may contact Dr. Christian Head 

through his attorneys: 


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Lawrance A. Bohm, Esq., Bradley J. Mancuso, Esq. OR BOHM 

LAW GROUP, 14600 Northgate Blvd., Suite 210, Sacramento, CA 

95834, Phone (916) 927–5574 and Fax (916) 927–2046 

f 

PREPARED STATEMENT OF DR. MITCHELL

Dedication 

This written testimony is respectfully submitted in memory of 

my uncles: 

Capt. Jay Anderson Mitchell, a good-natured, red-haired, blueeyed, freckle-faced young Marine, husband, and father who lost his 

life & crew in 1967 when his helicopter shook apart over the South 

China Sea because the U.S. government failed to timely investigate 

the safety deficiencies of that aircraft type, and Phillip V. Mitchell, 

a former Institute of Defense Analyses employee and Army Veteran 

who moved heaven & earth within the Pentagon to ground and repair the remaining faulty helicopters in the days that followed 

Uncle Jay’s death so other young Marines would have a chance of 

returning home alive to their families. 

CONTENT SUMMARY 

I. Introduction & Background 

II. Executive Summary 

III. Phoenix VA Administrative Retaliation: Personal Experiences 

and Clinical Implications 

IV. VA Horizontal Violence: Specific Retaliation Tactics Against 

Title 38 Health Care Providers (Physicians, Surgeons, Dentists) 

1. Overview Summary 

A. Types of Retaliation 

B. Clinical Implications (in numerical order based on retaliation type) 

C. Professional Implications (aggregate) 

D. Outcomes (aggregate) 

2. Detailed Explanation of Retaliation Tactics Against Title 38 

Employees 

V. VA Horizontal Violence: General Retaliation Tactics Against All 

Employees 

1. Overview Summary 

A. Types of Retaliation 

B. Clinical Implications (in numerical order based on retaliation type) 

C. Staff Implications (aggregate) 

D. Outcomes (aggregate) 

2. Detailed Explanation of Retaliation Tactics Against All VA 

Employees 

SECTION I: Introduction & Background 

My name is Dr. Katherine Mitchell. I am an internist who is fellowship trained in geriatrics. My various positions caring for the 

Phoenix VA Veteran population have given me a great sense of personal pride during my 5 years as a registered nurse on the hospital 

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ment, and my 1.5 years as medical director of the Post Deployment 

Clinic. 

I greatly admire my fellow VA employees, past and present, who 

have spent years trying to meet the VA mission despite facility politics, low pay, lack of resources, and the barrage of negative publicity that often overshadows the vast amounts of amazing care we 

have provided to countless Veterans through millions of high quality patient encounters. 

Like other Phoenix VA employees, I have diligently worked within the system to identify and resolve numerous care issues and system deficiencies slowing the provision of care to Veterans. I have 

rewritten policies, served on committees, developed action plans, 

participated in Lean Teams, and composed endless emails in the 

pursuit of better care. Along with a huge number of other VA personnel, I have spent untold hours each pay period trying to meet 

work responsibilities which cannot be humanly completed within 

the space of the designated 40 hour workweek. 

It is a great honor and pleasure to work with the many experienced VA employees who, though they could find private sector jobs 

with better working conditions, remain dedicated to providing and 

enhancing the quality of Veteran health care. Their combined expertise is vital to advancing the future of the Department of Veterans Affairs. 

It is imperative for us to join together and address the longstanding series of crises within our VA that are currently threatening the viability of our institution and undermining its ability to 

meet and exceed our obligations to the nation’s current and future 

Veterans. 

SECTION II: Executive Summary 

In the last 75 years, the VA institutional culture has descended 

into a breeding ground for horizontal violence within the workplace. While overt acts of physical aggression are extreme examples, VA horizontal workplace violence includes, but is not limited 

to, open ridicule, shouting, failure to promote for merit, inappropriate down-grading of proficiencies, unfair distribution of workload, political back-biting, and formation of, as well as exclusion 

from, influential workplace cliques. 

Such horizontal violence has propagated in response to high 

stress levels, unequal distribution of power, disparate advancement 

opportunities, and unreasonable performance expectations. The destructive phenomenon of this internal violence has greatly eroded 

the quality of patient care throughout the VA system to the point 

that the VA has been unable to fulfill its mission to ‘‘care for him 

who has borne the battle . . . ’’ for hundreds of thousands of Veterans. 

In unscrupulous VA health care administrators’ hands, horizontal violence has been wielded as a specific tool to advance the 

administrators’ personal and financial goals to the detriment of 

quality Veteran care and system efficiency. By directly propagating 

horizontal violence or by ignoring the presence of it among employee ranks, VA administration has betrayed the VA core values 

of integrity, commitment, advocacy, respect, and excellence. 


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As a 16 year Phoenix VA employee who has routinely advocated 

for patient care improvements, I have been the recipient of horizontal violence at my facility for years. I have personally witnessed 

the devastating consequences such horizontal violence has wreaked 

on the quality of patient care within the Emergency Department. 

The purpose of this written testimony is to clearly describe the 

details of those experiences and provide a description of administrators’ tactics of retaliation against others within the Phoenix VA 

Medical Center and elsewhere at sister facilities. 

Although improvements in overall care have propelled the Phoenix VA to a level of care significantly greater than what I observed 

in 1989 when I first jointed the facility, regretfully there has been 

no significant change in the dysfunctional institutional culture of 

the Phoenix VA Medical Center. Employees today still risk backlash for bringing up patient care problems, identifying misuse of facility resources, and questioning the presence of prohibited personnel practices. 

Quite simply, a problem isn’t allowed to exist within the Phoenix 

VA care system unless senior administrators officially allow it to be 

recognized. No matter how critical the issue is to patient care or 

safety, senior officials will deliberately avoid the problem by covering up any evidence of deficiency. This routinely is accomplished 

by ignoring legitimate requests for resources, manipulating statistics, hiding objective reports critical of the local VA’s operations, 

and providing misleading information to outside official inquiries. 

Most pointedly, certain employees systematically intimidate any 

fellow employee who dares advocate for Veterans in a manner inconsistent with the Phoenix VA administration’s party line. 

Ethics have never been made an official VA performance measure, and thus do not appear to be a clear administrative goal. 

There seems to be no perceived financial advantage to pursuing 

ethical conduct. Administrative repercussions are lacking for unethical behaviors that are so routinely practiced among senior executive service employees. Unfortunately, Phoenix administration has 

had a financial incentive to artificially maintain a positive public 

image using retaliation tactics even if such a facade comes at the 

expense of quality patient care provision and the inability to attract and/or retain quality employees. 

The most serious retaliation against me occurred during my last 

3 years as the sole ER medical co-director. During that time, our 

ER remained greatly understaffed in terms of nurses, physicians, 

and ancillary employees. New graduate nurses were filling in for 

seasoned triage nurses. There were insufficient personnel to wash 

beds, answer phones, transport patients or labs, and perform other 

tasks. The ER physicians and nursing staff continually were pulled 

away from direct patient care to absorb those extra duties in order 

to keep the ER flowing. 

As the number of patient ER visits greatly increased beginning 

in 2010, deficiencies in our ability to meet high standards of health 

care became readily apparent. In our tiny 8-room ER, even the 

most experienced triage nurses could not have kept up with the 

dangerous flood of patients diluting triage time. The number of actual or potential misses in nursing triage sky-rocketed. Internal 

head bleeding, strokes, heart attacks, pneumonias, and dehydration 


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were examples of cases missed by either inexperienced triage 

nurses or seasoned nurses overwhelmed by the glut of patients engulfing the ER. 

Without targeting any nurse, I began reporting actual or potential misses to the nursing chain of command. As backlash from a 

few nurses became evident, I had to ask all physicians to give me 

their cases to report. I knew I had to be the only backlash target. 

Any large scale adversarial relationship between physicians and 

nurses would grind patient care to a halt during a time when we 

were already gasping from insufficient resources. 

After reporting hundreds of cases, eventually about 20% of the 

ER nurses actively began to impede care of my own ER patients. 

Those nurses stopped initiating protocol orders for me, providing 

me with verbal patient reports, handing me EKGs, and answering 

basic questions I asked. 

Although my immediate supervisor provided support to the degree the VA culture allowed, senior executives chose not to intervene to stop or investigate the horizontal violence against me. I 

was accused of poor communication skills. I was banned from submitting cases to the risk manager. I worked 2 years of unlimited 

scheduled shifts without compensation in order to keep my position 

as medical co-director and provide even bare bones physician staffing. My yearly proficiencies dropped. I was subjected to verbal 

abuse from senior executives. Human Resources failed to expedite 

requests for physician hiring. Eventually I would be involuntarily 

transferred to a medical director position in a defunct medical clinic without receiving a valid reason for such a transfer. 

Staffing was increased after I was removed from the ER. Additional resources were provided including additional patient rooms. 

Triage was expanded. However, the intense, recurring nurse triage 

training for which I advocated would never be instituted. 

With few avenues for change left open to me, in 2013 I submitted 

a 30+ page confidential OIG report through my senator’s office outlining a variety of patient safety concerns & facility deficiencies. I 

was subsequently placed on administrative leave for a month, investigated for improper conduct, and eventually received a written 

counseling for violating a patient privacy policy which the Phoenix 

HR department still declines to name. 

I remain very concerned for the future of our Veterans and the 

Phoenix VAMC. 

The Veterans who present in Arizona for VA care have survived 

campaigns like D–Day, Iwo Jima, Heartbreak Ridge, Pork Chop 

Hill, Chosin Reservoir, Inchon Landing, multiple Tet Offensives 

and Counter-Offensives, Desert Storm, Kosovo, Croatia, Ethiopia, 

the Battle of Fallujah, and dismal years in Helmand Province. It 

is a bitter irony that our VA cannot guarantee their high quality 

health care and safety inside our medical facility in the middle of 

cosmopolitan Phoenix. This tragedy is no doubt mirrored in other 

VA facilities across the country. 

This country’s founding fathers organized government into 3 

branches so that no one department would possess the majority of 

power. Eventually cabinets and departments would be created to 

help fulfill the obligations of the federal government to its citizens. 

President Lincoln conceived the VA mission eloquently as ‘‘to care 


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for him who have born the battle and his widow and his orphan’’. 

Sometime in the last 75 years, the Department of the VA has 

evolved into a powerful, narcissistic, unethical bureaucracy which 

at times openly defies the laws of the land including federal employment law, flouts congressional authority by ignoring requests 

for information, and jeopardizes the health of Veterans by statistical indiscretions. 

There must be swift congressional bipartisan effort to address 

the gross misconduct within the VA. Congress must ensure those 

unscrupulous administrators who ignored ethical standards and 

sacrificed patient well-being for financial gain or personal prestige 

face consequences for unethical and/or illegal behaviors. In addition, steps must be taken to protect those employees truly devoted 

to patient care who found themselves in the untenable position of 

following orders or risk losing their livelihoods and their ability to 

provide any services to Veterans within the system. 

With proper reforms, the horizontal violence within the VA can 

be stopped. VA employees will then be free to voice concerns without fear of retaliation. It is only with the combined efforts and 

voices of our current dedicated VA employees that the Department 

of Veterans Affairs will be able to evolve from a bureaucratic institution today into a dynamic health care model for tomorrow. 

Most importantly, in this process, the ability to positively influence patient care and safety should not be misconstrued as being 

a specific Democratic or Republican platform, a pro-union or antiunion choice, or even a uniquely American problem. The ability to 

freely advocate for the health and safety of any patient is a human 

issue with ethical implications for all societies 

SECTION III Phoenix VA Administrative Retaliation: Personal 

Experiences and Clinical Implications 

Note: Because whistle-blowing retaliation in my facility is currently being investigated, I cannot include of the names of the employees or the specific documents to which I refer. These omissions 

are necessary to maintain the integrity of the whistle-blower investigation and also prevent potential retaliation against my co-workers. 

In the last 75 years, the VA institutional culture has descended 

into a breeding ground for horizontal violence within the workplace. While overt acts of physical aggression are extreme examples, VA horizontal workplace violence includes, but is not limited 

to, open ridicule, failure to promote for merit, inappropriate downgrading of proficiencies, unfair distribution of workload, dangerous 

work hour requirements, political back-biting, and formation of, as 

well as exclusion from, influential workplace cliques. Such horizontal violence has propagated in response to high stress levels, 

unequal distribution of power, disparate advancement opportunities, and unreasonable performance expectations. 

In unscrupulous VA health care administrators’ hands, horizontal violence has been wielded as a specific tool to advance the 

administrators’ personal and financial goals to the detriment of 

quality Veteran care and VA efficiency. Horizontal violence is commonly used by many supervisors to ensure compliance with their 

personal agendas which are disconnected from the mission and 


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stated values of the Department of Veterans Affairs. Administrators’ retaliatory tactics essentially debase employees and suppress 

any identification of system deficiencies that would make the administration look unfavorable if the deficiency was openly identified. 

As a 16 year Phoenix VA employee, I have seen what happens 

to personnel who advocate for patient safety and welfare in a manner that challenges the administrative status quo. The devastation 

of the individual’s career is usually the end result and likely is the 

only transparent process that exists within the Phoenix VA Medical Center today. 

During the last 3 years that I served as the sole medical co-director of the Phoenix VA Emergency Department, I routinely suffered 

negative workplace consequences for persistently reporting issues 

related to drastically inadequate staffing, lack of sufficient training, and lack of ancillary resources. After I was involuntarily transferred to the Post-Deployment medical director position in December 2012, the administration’s retaliation tactics against me persisted into 2014. 

Because I am a practicing physician, such retaliation greatly impeded my ability to provide high quality care for patients presenting to the ER and crippled my ability to serve as an advocate 

for patient health and safety throughout the VA system. The following details some instances of administrative retaliation toward 

me during the timeframe from 2009–2014 and the consequences to 

patient care. 

1. Phoenix VA ER background. 

I was a Phoenix VA emergency department staff physician from 

2003 to approximately 2006 and then promoted to medical co-director of the ER from 2006–2009. After administration failed to fill the 

co-director position when my fellow co-director resigned to attend 

fellowship training, I remained as the sole co-director from 2009– 

12–10–12. Because the co-director position was never filled, I was 

referred to as the ER medical director by default even though the 

position was technically designated for two medical co-directors. 

2. Despite spending 3 years repeatedly alerting senior administration to the dangerous clinical situations in the Phoenix VA Emergency Department, my concerns were ignored repeatedly by Phoenix 

senior administration. 

Since 2009, I had been very vocal about the escalating danger to 

patient care in the ER because of physician shortages, nurse shortstaffing, and lack of formal training for triage nurses. As a matter 

of habit, I notified the nursing chain of command with concerns as 

well as communicated the issues to staff in the physician chain of 

command. 

When reporting morbidity (illness) and mortality (death) related 

to lack of quality triage, I never targeted a specific nurse. Instead, 

cases were used to emphasize the need for formal, ongoing nursing 

triage training as well as additional nursing staff. 

From 2010 to 2011, I was involved in two ‘‘lean teams’’ (system 

redesign teams) to exam ER process issues affecting the quality 

and efficiency of the Emergency Department. Both teams concluded 

that the influx of new resources including additional manpower 


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and formal nurse triage training were necessary to help resolve 

care issues and correct serious flow inefficiencies. 

Unfortunately, although the Phoenix VA administration did 

make some changes in availability of ancillary/non-medical staff, 

senior administration did not directly address those poor quality 

triage issues nor quickly resolve the ER nursing/physician shortage. Although a few nurses were sent for formal triage training in 

early 2012, there was never any comprehensive nurse triage training implemented despite repeated episodes of the same nursing 

triage patient care mistakes being made. 

While on paper there were some gains in ER nursing staffing, 

those gains were offset by the loss of extremely experienced nurses 

who chose to leave the ER because of the unsafe working conditions. An increase in full-time physician manpower (above 6 full 

time physician positions) was extremely slow in coming. The significant understaffing of physicians in the Phoenix ER was not corrected until early 2013 

Although senior officials may contend the Emergency Severity 

Index (ESI) was the ‘‘standard training’’ required for nursing triage 

training, ESI is only a classification system based on ER resources 

used. It is not a nursing-based assessment of potential complaints 

presenting to the Emergency Department. It does not teach nurses 

how to stratify potential symptoms to determine the patient’s proper level of acuity (severity of health impairment). 

Senior Phoenix VA administration has claimed the quality of 

nursing triage has significantly improved since 2012 after hiring of 

experienced triage nurses from the community. However, VA staff 

members continue to tell me anecdotally the triage process is still 

extremely variable. This variability increases the risk of mistakes 

and near-misses in ER triage. 

During the years I was in the ER, there were countless instances 

when the lives of Veterans were needlessly placed in jeopardy because of Phoenix VA administration’s lack of response to clearly 

identified deficiencies within the ER including lack of sufficient 

triage training and resources. The following cases are a few examples when appropriate care was not expedited for Veterans: 

(a) A patient with homicidal thoughts and potential gastrointestinal bleeding was put in a room for 49 minutes with no report 

given to a physician. A patient like this is at risk for extreme violence as well as severe blood loss. 

(b) Two patients were discovered to have bleeding inside their 

heads after sitting in the lobby for several hours. They had to be 

transferred out immediately for stat neurosurgery. 

(c) An elderly patient with an elevated pulse rate of 119, nausea/ 

vomiting, and abdominal pain was deemed stable for the lobby 

even though his presentation indicated severe illness. 

(d) A patient on a blood thinner who reported dark red blood in 

stool was deemed stable for the lobby. This patient was potentially 

at risk for severe blood loss. 

(e) An obviously ill, immunosuppressed patient was neglected for 

5 hours before report was given to a physician. 

(f) A patient with possible heart attack had no mandatory protocol orders initiated by nursing staff. 


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(g) No protocol lab orders initiated for an immunosuppressed patient on a blood thinner who had fallen and reported feeling lightheaded and weak. 

(h) A diabetic patient with a fast heart rate of 110 who was 

breathing rapidly was placed in the lobby instead of being brought 

to the attention of the physician on duty. 

(i) A patient with low blood pressure and a heart rate of 130 at 

rest was left to wait in the lobby for 10 hours before a physician 

was notified. This patient was very ill. 

3. I was verbally banned from submitting cases to the Risk Manager/Patient Safety Office by a former Senior Executive Service administrator and well as by others who remain at the Phoenix 

VAMC. 

Frustrated by the nursing service’s inability to stem the issues 

related to nursing triage and understaffing, I submitted several 

concerning cases to the Risk Management department in 2011. 

When I checked on the status of those cases, I was informed that 

the cases would not be investigated. I learned the department had 

been told by Phoenix senior executives not to investigate my cases 

nor accept any future cases from me. This is contrary to both local 

and national VA policies which were designed to identify and address potential health and safety issues through the use of risk 

management reviews. 

4. In 2011 & 2012 I was forced to work unlimited scheduled 

shifts to prevent job loss and to provide at least minimal physician 

staffing coverage in the ER. 

When jobs were offered to ER physician candidates, Human Resources was so slow at credentialing them that those ER physicians 

eventually obtained employment elsewhere. Phoenix VA administrators then developed a plan to compensate for the VA’s unsuccessful attempts at ER physician recruiting efforts. This plan involved having salaried ER physicians work without compensation 

to fill any open, scheduled shifts. 

To remain a salaried medical co-director, I was informed I would 

have to work all scheduled, unfilled shifts myself or convince my 

colleagues to work the shifts without compensation. I believed forcing ER physicians to work additional scheduled shifts was not safe 

or ethical unless there was a facility-wide emergency declared. I 

stated I legally couldn’t schedule any physicians for more than 80 

hours per 2 week pay period. In response, I was informed that the 

Human Resources department had investigated and determined 

current physician contracts allowed the unlimited scheduling of 

any physician. 

I had no choice but to work open unlimited shifts in order to 

keep my position and provide at least minimum physician staffing 

coverage in the ER. I knew if I refused to work those open shifts, 

my work environment would become more hostile from senior management. I hoped HR would expedite ER physician hiring as I was 

promised it would during that meeting. 

Unfortunately, HR never expedited the recruitment or hiring of 

additional ER physicians until late 2012/early 2013. Because I 

worked so many open shifts, the amount spent on fee basis (hourly) 

ER physicians in 2011 and 2012 significantly dropped prior to hirVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00124 Fmt 6621 Sfmt 6602 Y:\89377.TXT PAT

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ing any full-time physicians. At one point, I was physically present 

working various hours in the ER for 18+ days in a row to cover 

open shifts/short staffing. The physical and emotional strain on me 

was tremendous. Although administration seemed indifferent to 

the consequences of forced excessive work hours, I knew being 

forced to work abnormally long workweeks greatly increased the 

risk of patient care mistakes. 

5. I was ordered to cut fee basis (hourly) physicians even though 

insufficient ER physician staffing still existed and open shifts were 

covered only when I worked excessive hours. 

I was informed a senior administrator refused to approve any additional fee basis physicians until I cut the number of fee basis 

physicians. I was forced to fire several fee-basis (hourly wage) physicians who couldn’t commit to the number of monthly shifts the 

senior administration was requiring. After cutting those fee basis 

physicians, additional approvals/hires for more fee basis physicians 

did not come/were not processed in a timely manner by HR. Thus 

I was forced to work even more hours above my scheduled workweek. 

In my opinion, I believe this was a deliberate attempt by senior 

executive service members to make my working conditions so intolerable that I would choose to resign. 

6. Because senior administrators ignored the growing problem in 

the Phoenix ER, short staffing and inadequate quality triage became routine within the ER in 2011 and 2012. 

The quality of triage in general was extremely inconsistent depending up on the skill set of the triage nurse assigned and the 

number of patients presenting for triage. 

At one point, I identified 3 full-time nurses who were considered 

extremely unreliable triage nurses by all full-time staff because of 

the inappropriate triaging of seriously ill patients and the frequency of mistakes made by those nurses on all shifts. However, 

I was told nursing staffing in the ER was too short-staffed to prevent the inexperienced and/or inadequately trained nurses from 

being placed in triage. 

One of these nurses actually sent a seriously ill patient to the 

Eligibility Clinic instead of performing triage because the patient 

had never been registered at the Phoenix VA before. 

Triaging of the patient’s problem should always be done before 

any patient is diverted away from the ER. 

New grads were allowed to do triage only after a very short period of triage training. Some of them were even trained by nursing 

staff who previously had demonstrated inadequate triage nursing 

skills. 

The Phoenix ER patient flow rapidly increased and the inexperienced nurses could not keep up nor were they given sufficient time 

to be mentored in triage. By late 2011 and early 2012 the triage 

mistakes or near misses were so prevalent it was impossible for the 

physicians to monitor all the misses/mistakes on an hourly basis. 

Although senior administrators may state that the ER usually 

met the minimum requirements for nursing staffing, in truth many 

times the ‘‘ER nurses’’ were float nurses from other parts of the 

hospital with no ER experience or specialty training. In addition, 


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the minimum nursing staffing was inadequate because it didn’t 

allow an increase based on the sheer number of patients presenting 

for triage nor make adjustments for the high acuity of patients presenting. 

Phoenix senior administration declined to institute formal nursing triage training on a recurrent basis even when the lack of nursing knowledge contributed to significant morbidity and some instances of mortality. 

7. Despite my well-articulated concerns regarding the number of 

nursing triage mistakes and the difficulty physicians would have 

addressing those mistakes quickly without paper print-outs of triage 

notes, Phoenix senior officials ordered the cessation of all paperbased triage note print-outs. 

The VA goal nationally was to move away from paper-based processing of triage notes. However, I felt this move could not be done 

safely at the Phoenix VA in 2011. I repeatedly explained in meetings that the majority of triage nursing notes as of 6/2011 were 

still inadequate with significant concerns regarding the quality of 

triage. Paper based print-outs allowed the physicians on duty to 

rapidly determine if there were serious symptoms/vital signs documented within the note that the triage nurse did not realize indicated seriously ill/potentially unstable patients. I opposed the loss 

of backup printed triage nurse notes because it meant the physician on duty could not quickly monitor the triage notes/vital signs/ 

patient complaints to reassign the patient’s acuity level to the proper category. 

The need for close physician monitoring was quite evident based 

on the admission data present during that timeframe. There continued to be a high number of patients who were inappropriately 

designated as low-acuity (indicating non-urgent condition) in 

triage. These Veterans were actually high-acuity and were subsequently admitted to the hospital. 

Multiple ER physicians reported to me that nursing triage quality was extremely unreliable. I repeatedly communicated those concerns to both the nursing chain of command and my physician 

chain of command. Senior executives still did not respond. 

8. I was exposed to ongoing extremely hostile working conditions 

in the ER from a small percentage of nursing staff whom senior administration refused to investigate. 

Beginning in approximately 2010, I became more vocal regarding 

the need for nurse triage training and the understaffing of triage. 

Shortly thereafter, a few nurses began intermittently ignoring my 

orders, not answering my questions in the nurses’ station, not giving me verbal reports on patients, and not expediting the discharge 

of my patients. As a result, I asked that all ED physicians direct 

any concerns regarding nursing triage outcomes to me for submission in order to avoid having other physicians be the recipient of 

nursing backlash which could grind patient care to a halt in the 

ER. 

By late 2011, approximately 20% of nurses were consistently ignoring my orders, failing to give me verbal report on patients, declining to notify me of ekgs, and refusing to initiate protocol orders 

for serious complaints like as chest pain in my patients. Patient asVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00126 Fmt 6621 Sfmt 6602 Y:\89377.TXT PAT

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signments would be changed to my name in the computer without 

telling me. Those nurses were intermittently verbally aggressive toward me when I was in the ER nurses’ station. 

From 2011–2012, the aggressiveness towards me from those few 

nurses was so open that it was frequently observed by fee basis ER 

physicians, full-time ER physicians, other nursing staff, front desk 

staff, Phoenix VA police officers, and even housekeepers. 

Although I communicated my concerns through the nursing 

chain of command, there was no significant change in the level of 

hostile work environment for me. I was told by the nursing chain 

of command that the nursing department could not stop such behavior. 

When I spoke to my physician chain of command, senior administration refused to intervene on my behalf. I was told not create any 

problems for nursing staff which I believed included not completing 

formal write-ups. 

9. By late February 2012, ER conditions were so dangerous that 

I told the on-coming medical center director, Ms. Helman, the ER 

should be shut down completely unless additional staffing, resources, and triage nurse training were provided. 

I mentioned the multiple actual negative outcomes and potential 

near-misses that had been ignored by prior administrators for several years. I cited both acute and long-term short staffing shortages 

in the ER. I told her the last 3 days had been so dangerous for patient care that I believed the ER should be completely shut down 

unless there was an immediate influx of resources. 

I reported conditions had been dangerous during the prior 3 days 

for a variety of reasons including nurses unable to write orders 

during shift because the current nursing protocols could not be 

found within the facility, extremely high flow of patient walk-ins, 

inadequate availability of nursing staffing, multiple instances of 

poor quality of nursing triage, inadequate physician staffing, and 

lack of ancillary services. I stated current policy for nursing order 

protocols was not available despite 2 months of me asking for the 

protocols to be located. 

10. After reporting to Ms. Helman the dangerous conditions in the 

ED at the end of February 2012, I was subsequently told by senior 

administrators that the only problem in the ER was my lack of communication skills. 

Within 1.5 weeks of telling Ms. Helman that the ER was grossly 

unsafe, I was called into a meeting with senior executives and told 

the only problem in the ER was my lack of communication skills. 

After emphatically stating the issue was not my communication 

skills, I gave the group a stack of 20+ cases of actual patients with 

negative outcomes related to triage. I also provided additional cases 

for the senior executives to review after the meeting. 

11. After I reported the dangerous conditions in the ER and discussing staffing shortages, no action was taken by senior executives 

for another 5–6+ weeks. 

Despite my statements describing life-threatening situations 

within the ER to S. Helman at the end of February 2012 as well 

as my description of dangerous ER conditions at the early March 


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2012 meeting where I was accused of poor communication skills, no 

formal action or investigation was taken by the senior executives 

at the Phoenix VA to investigate or address the grave concerns I 

had verbalized. 

I sent additional emails to administration emphasizing the dire 

conditions within the ER. In my April 2012 email to my physician 

chain of command I wrote ‘‘ . . . I continue to be extremely concerned about the safety of our veterans who are presenting to the 

ED (Emergency Department) for care when the ED is saturated. 

Based on the events of [omitted] & [omitted] as well as numerous 

events over the last 24 months that have been reported on ongoing 

basis, I believe the potential for patient mortality in our ED is incredibly high during periods of ED saturation . . . The number of 

near-misses is so high during peak flow/high acuity days that multiple occurrences of significant nosocomial morbidity & mortality 

are inevitable . . . I have tried multiple avenues to alert this facility 

to the issues vital to our ED & improve provision of care in the ED 

despite being faced with incredibly toxic circumstances & political 

backbiting. This facility must not delay focusing immediate resources to reduce the risk of needless suffering and loss of life in 

our ED . . . ’’ 

Unfortunately, even that email would not generate any significant response for 3+ weeks from management. 

Finally, in late April 2012, my chain of command agreed to meet 

with ER physicians to corroborate my statements. During that 

meeting all the ER physicians confirmed the significant care issues, 

staffing shortages, and nursing backlash against me. 

A formal action plan was written by senior executives to address 

many of the issues outlined in the meeting. However, I was informed the nursing backlash against me would not be investigated. 

I was also told not to cause any problems for nursing staff. I was 

devastated to learn senior executives were ignoring nurses who had 

jeopardized ER patient care. I was very fearful for my patients in 

the ER because I knew it would be a continual struggle for me to 

provide quality care for ER patients in the face of continual backlash from a small group of nurses. 

There should have been an immediate internal response/action 

plan developed after I informed former Director Helman of the severe internal crisis state existing in the ER. Inquiring into the 

issues including interviewing the other ER physicians should not 

have been delayed for almost 2 months. 

12. My care for patients remained impeded by a small group of 

ER nursing staff throughout 2012. 

The following are a few of the many episodes when my ability 

to care for ER patient was impeded by a small group of nurses in 

2012 while I was on duty. (None of the delays were related to 

short-staffing issues.) 

(a) Patient with an elevated heart rate of 112 was placed alone 

in an exam room for 2 hours and 40 minutes before I was notified. 

(Such a resting heart rate can indicate significant illness requiring 

the patient to be seen much sooner.) 


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(b) Nursing staff refused to draw blood on a patient because I 

had put a patient in a room they didn’t like. (It was the only available bed and the care needed to be expedited for the patient.) 

(c) A nurse did not give me report or the ekg on a patient with 

recent chest pain who had a history of prior heart attack. 

(d) A hypertensive patient with a bad headache was put in a 

room for 20 minutes without ever telling me. This delayed care for 

a patient with a potential hypertensive emergency. 

(e) On one shift, four patients were placed in rooms without giving me any type of report. 

(f) An obviously ill patient with fast heartbeat was placed in a 

room without giving me any type of report on the patient. 

(g) A nurse refused my request to respond to telemetry alarm 

monitors on my patient even though the nurse was assigned to the 

room and was not otherwise occupied. 

(h) Labs I had ordered on an ill patient were still not drawn 3 

hours after I ordered them. 

(i) My chest x-ray order for a patient with shortness of breath 

was ignored for 3 hours despite my asking the nurse twice to have 

it completed. 

(j) A stat ekg I ordered on a patient was not done for 2.5+ hours 

and my other orders were delayed including orthostatic vital signs. 

(k) IV fluid administration was significantly delayed because a 

nurse didn’t want to restart a heplock on my patient. 

(l) Care was delayed when the pregnancy test and other tests I 

ordered were not done. 

I continued to communicate my concerns to the physician and 

nursing chains of command without any success. 

13. In December 2012, I was notified unexpectedly that I was 

being laterally transferred out of the ER to the Post-Deployment 

Clinic because of a ‘‘critical need’’ which management would not 

specify. 

I was told this administratively-driven lateral transfer was necessary to meet a critical need in the Post-Deployment Clinic. However, that clinic had been a defunct medical clinic for 1.5 years 

prior to my transfer. It only contained a social work program working with returning combat Vets and a part-time polytrauma case 

manager. There was one physician assistant who performed basic 

registry exams for traumatic brain injury. These types of exams do 

not require a physician to complete. 

My chain of command declined to specify the critical need in the 

Post-Deployment clinic that I was supposed to address. It took over 

a month for senior administrators to grant me clinical privileges to 

see any Veterans. 

My transfer to the Post-Deployment Clinic left the ER critically 

short-staffed. At management’s request, I returned for a few shifts 

over the Christmas holiday to provide emergency coverage for open 

shifts. 

Despite the circumstances of the transfer to the Post-Deployment 

Clinic, I eventually discovered a way to make my position an important adjunct to the OEF/OIF/OND Transition Services social 

work team. 


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14. I chose to submit a confidential OIG report to address multiple health and safety concerns within the Phoenix VA that were 

being ignored by administration. 

In 2013, I was working on a project to reduce the risk of suicides 

among Veterans. Despite phenomenal attempts by the Suicide Prevention Team to work within the confines of grossly inadequate resources, the rates of suicide at the Phoenix VA increased over a 

very short time span. I inadvertently became aware of long-standing Phoenix VA system inadequacies that were placing our Veterans at higher risk of successful suicide completion. Senior administration’s lack of response heightened my concerns. 

I decided to initiate an OIG complaint and submit it through my 

senator’s office. Our nation, has lost too many Veterans from all 

eras to suicide. While no one factor will prevent a suicide, as health 

care providers we are obligated to make the safety net as tight as 

possible in our attempt to do outreach to those who are considering 

taking their own lives. 

When I chose to initiate the OIG complaint, I was aware of previous inadequate OIG investigations at the Phoenix VAMC and 

failures to maintain confidentiality of those making the complaint. 

I could not submit the complaint anonymously because that would 

have severely limited the scope of the pending OIG investigation. 

I organized my complaint so it would address as many patient 

care and safety issues as possible. I hoped this would increase the 

likelihood that my OIG complaint would result in significant positive changes within the Phoenix VA. 

I went to my fellow Phoenix VA employees with whom I had developed a trusted relationship and asked them to provide me with 

information regarding the most serious issues within the VA facility. The problems must be easily proven and be urgent enough that 

the issues could not wait for resolution by the normally ponderous 

VA process of change. It was equally important the information 

could not be traced back by management to my ‘‘sources’’. I wanted 

only me to be the only target if my name was not kept confidential 

by the OIG. The Phoenix VA couldn’t afford to lose any more good 

employees if management chose to retaliate against anyone else 

whose name might be associated with the report. 

As the result of the information collected as well as my firsthand knowledge of facility issues and overt backlash, I wrote a 

lengthy complaint detailing the various problems. When I presented my written OIG complaint to staff at Senator McCain’s office, the seriousness of the VA situation was evident to even those 

staff who had no health care background. I was informed the most 

serious safety issues listed in my complaint would be forwarded 

with a request for an expedited investigation performed by an outside OIG team to address the issues and maintain the confidentiality of my name. 

Some of the issues in my complaint included disturbing system 

issues involving suicides, statistical manipulation of the wait list, 

failure to prioritize appointments according to national VA policy, 

and improper distribution of complex patients. 

15. My confidential 2013 OIG complaint regarding multiple safety 

concerns within the facility resulted in overt retaliation against me. 


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My plan to address system deficiencies failed almost completely. 

My name was not kept confidential by the OIG. Shortly after the 

national VA acknowledged receipt of my complaint, I was placed on 

administrative leave for about a month and investigated for alleged 

wrong-doing for including truncated patient information in the confidential OIG complaint submitted through approved channels. 

I was told I acted outside the scope of my duties as Post-Deployment medical director and ‘‘may have’’ violated privacy policy by including patient information to support my allegations regarding the 

disturbing suicide trends at the facility. 

I eventually would receive a written counseling in January 2014 

for violating privacy policy and for working outside the scope of my 

duties as purportedly evidenced by the content of the OIG complaint submitted for me by Senator McCain’s office. There was no 

information in the written counseling specifying exactly what policy 

I had violated or how it was concluded I was working outside the 

scope of my duties. I was not given access to the investigative file. 

Instead, I was told the investigative file had been ‘‘shredded for my 

protection’’. 

I sent a formal request outlining my concerns and requesting to 

have the investigative file re-created. I also asked to be informed 

of which patient privacy policy I violated. I subsequently was told 

that HR determined it did not need to respond because written 

counseling did not rise to the level of disciplinary action that Title 

38 employees were allowed to challenge. 

My senior physician chain of command did not intervene on my 

behalf, and thus clearly supported HR’s decision. The written counseling was never rescinded even though HR declined to tell me the 

name of the policy I supposedly violated. 

16. The 2013 OIG report of my complaint was never officially provided to me and can’t be found on the OIG web site. I was forwarded a brief email received by the senator’s office indicating the 

investigative findings were benign. Of note, the investigation found 

no significant problems with scheduling issues. 

I have never seen the official OIG report on my 2013 complaint 

and do not know if one exists. Senator McCain’s office made attempts to locate the report for me without success. There is no indication of the investigation on an OIG Web site search. 

I subsequently learned the OIG has complete discretion as to 

which reports it puts on its Web site. I was told anecdotally the VA 

OIG often doesn’t list any reports which are critical to senior administrators. Recently I was sent an OIG report critical to senior 

administrators at another VA. That report issued in 2014 and was 

assigned an OIG case number. However, this report cannot be located on the OIG Web site and was obtained only by FOIA request. 

SECTION IV: 

VA Horizontal Violence: Specific Retaliation Tactics Against Title 38 Health 

Care Providers (Physicians, Surgeons, Dentists) 

Note: Variations of some tactics are commonly used against 

wage grade employees & Title 38-hybrid employees. The implications may differ (depending on the skill set) but the outcomes are 

similar. 


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Overview Summary 

A. Types of Retaliation: 

1. Sham peer review. 

2. Malicious down-grading of proficiencies. 

3. Deliberate understaffing of Title 38 provider positions. 

4. Deliberate understaffing of necessary ancillary personnel. 

5. Inequitable distribution of extremely challenging patients to 

overburden provider. 

6. Faulty clinical profile to overwhelm provider. 

7. Unjustified written counseling. 

8. Lateral transfer for factitious reasons. 

9. Exploitation of ‘‘24/7’’ work contract. 

10. False accusations of patient privacy violations in retaliation for 

whistle-blowing. 

11. Unreasonable timeframe assigned for completion of nonessential training requirements or extraneous tasks. 

12. Removal of teaching privileges to ostracize provider. 

B. Clinical Implications (in numerical order based on retaliation type): 

1. Veterans are denied the skills of talented, qualified providers 

who are fired due to unjustified accusations of poor medical skills. 

2. Qualified candidates for direct patient care positions or supervising administrative positions are not promoted to positions where 

they can use their skills sets to fulfill the VA’s mission for quality 

health care. 

3. Provision of direct patient care services is greatly slowed. 

4. Direct patient care time is diminished due to additional, excessive daily tasks. 

5. Punitive and dangerous system is used for managing care of 

complex Veterans. 

6. Delays occur in necessary follow-up required for labs, studies, 

and consults. 

7. Ineffective disciplinary system doesn’t support high quality care 

for Veterans. 

8. Potentially dangerous health and safety problems perpetuate 

when advocates for quality care are removed from clinical settings. 

9. The risk of patient care mistakes increases when providers are 

physically/mentally exhausted. 

10. Malicious administrative conduct stifles the reporting of future 

legitimate patient care concerns and perpetuates unsafe situations. 

11. Delays occur in completion of important administrative tasks 

related to patient care. 

12. Increased potential for patient health care mistakes occur when 

there is loss of talented attending physicians who normally would 

guide students/new doctors to consistently deliver high quality 

medical care. 

C. Professional Implications (aggregate): 

In an unethical and unprofessional institutional culture, providers quickly develop high stress, low morale, and physical/mental 

exhaustion. Providers who advocate for patient care and safety 

against the local administration’s status quo are isolated in their 

work environments, demoralized, and professionally impeded in 


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their careers. In some cases, providers are exposed to extreme retaliation that can effectively ruin their medical careers in both the 

VA system and the private sector. 

D. Outcomes (aggregate): 

1. Administrators have extremely effective methods to ensure compliance with their personal agendas which are disconnected from 

the mission and stated values of the Department of Veterans Affairs. 

2. The VA system is unable to effectively retain and/or recruit wellqualified providers who have been/would be effective advocates for 

patient health and safety. 

3. Veterans are denied the highest quality, efficient medical services within the VA despite VA administration having access to a 

talented pool of dedicated patient care providers already employed 

within the system. 

4. The U.S. government loses money compensating for high staff 

turn-over and defending administrators’ inappropriate personnel 

decisions. 

5. The horizontal violence within the VA institutional culture propagates. 

6. Outcomes 1 through 5 above threaten the viability of the VA and 

undermine its ability to meet and exceed our obligations to the nation’s current and future Veterans. 

Detailed Explanation of Retaliation Tactics Against Title 38 Employees 

1. Sham peer review. 

Note: In contrast to a sham peer review, a professional peer review is a formal, lengthy review done of a physician’s cases by his/ 

her peers and is initiated only when there is legitimate concern the 

physician may not be following medical standards of care. The outcomes are based on objective findings, not subjective opinion. 

Tactic: A well-orchestrated attempt to sabotage a physician’s 

credibility/professional reputation via organizing a sham review of 

cases by the administrator’s associates/cronies. Even though there 

is no objective evidence of improper care, the predetermined written ‘‘findings’’ imply the physician has, at a minimum, subjective 

deficiencies in professional or personnel qualities. (The practice of 

sham peer review is not considered a prohibited personnel practice. 

The Office of Special Counsel doesn’t accept sham peer review 

cases.) 

Clinical implications: Veterans are denied the skills of talented, well-qualified physicians when those providers are relieved 

of patient care duties or fired due to unjustified accusations of poor 

medical skills. 

Professional implications: Professionally and personally devastating to the provider. The physician has to fight the sham findings at great financial expense in civil court or via the Merit Protections Board. For the rest of his/her professional career, the physician has to report on job applications and license renewals that 

he or she was the subject of a peer review. 


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Outcome: 

a. Management can effectively and permanently sabotage a physician’s ability to be gainfully employed anywhere as a physician 

inside or outside of the VA system. 

b. Threat of a sham peer review can effectively stifle physicians 

who want to voice serious concerns about patient safety. 

c. Fighting a sham peer review can financially devastate a physician who is pitted against the unlimited legal resources of the U.S. 

Department of Veterans Affairs. 

d. Patient care is delayed as yet another VA physician chooses 

to resign or retire instead of facing a sham peer review. 

2. Maliciously down-grading proficiencies. 

Tactic: Deliberately reducing the accuracy of a provider’s yearly 

written performance evaluation on the whim of the administrator 

instead of completing the evaluation based on objective criteria normally used to judge accomplishments of providers. 

Clinical implications: Qualified candidates for direct patient 

care positions or supervising administrative positions are not promoted to positions where they can use their skills sets to fulfill the 

VA’s mission for quality health care. 

Professional implications: Physicians and other providers are 

not allowed to expand their professional careers. If the provider decides to obtain a position at another VA or in an outside institution, the unfairly downgraded proficiencies make the provider less 

apt to be selected for the new position. 

Outcomes: 

a. Patients are denied the benefits of having the most qualified 

personnel in supervisory/other positions who would normally work 

toward efficient/high quality care. 

b. Management has a direct/efficient method of sabotaging the 

professional reputation of a provider who verbalizes concerns about 

patient safety, fiscal irresponsibility, or prohibited personnel practices. 

c. Management saves money on bonuses associated with providers who earn ‘‘outstanding’’ ratings on yearly proficiencies. 

d. Management wields significant power to create compliance 

with administrative edicts by granting monetary awards to providers based on whim instead of merit. 

e. Rank and file staff member burn-out. 

f. Impedance of a provider’s ability to be employed in the private 

sector or at another VA. 

3. Deliberate understaffing of provider/Title 38 provider 

positions. 

Tactic: Vacancies or identified needs for staffing increases are 

ignored by administrators so that remaining Title 38 employees 

have to manage ever-increasing patient loads. 

Clinical Implications: Provision of direct patient care services 

is greatly slowed. Providers are routinely managing complex patient loads that are 10%–50% above the VA’s predetermined safe 

levels for provider patient panels. The risk of overlooking key paVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00134 Fmt 6621 Sfmt 6602 Y:\89377.TXT PAT

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tient needs is very high. There is often slowed clinical response to 

mountains of patient requests flooding provider’s clinic. 

Professional Implications: Providers frequently worry about 

meeting the complex needs of huge patient panels that outstrip the 

available resources. Providers are also penalized on their yearly 

performance appraisals because they can’t keep up with the unwieldy patient flow. 

Note: Unlike wage-grade, non-supervisory positions, Title 38 employees can be penalized on performance appraisals even if deficiencies in care are directly related to chronic understaffing/excessive patient workloads. 

Outcomes: 

a. Patient appointments/consults are difficult to schedule because 

the provider is booked so far into the future. 

b. Delays in patient care and interpretation/communication of 

testing results/future needs. 

c. Senior administrators save money/reap potential bonuses for 

avoiding salary expenditures. 

d. Rank and file staff members burn-out as workweeks extend 

far beyond 50–60 hours and their yearly proficiencies drop despite 

every attempt by the provider to meet the needs of the vast patient 

load. 

4. Deliberate understaffing/failing to post positions for 

necessary ancillary personnel. 

Tactic: Vacancies or identified staffing needs are unanswered by 

managers so that basic clerical/ancillary functions of clinic are not 

addressed. 

Clinical implications: Direct patient care time is diminished 

due to additional, excessive daily tasks. Providers have to absorb 

those tasks in order to keep the clinic running. This pulls providers 

away from direct patient care time. 

Professional implications: Providers have their administrative 

& clinical time stretched so incredibly thin that they are often unable to fully meet the needs of their patients during any given day. 

Providers have to use off-duty time to meet their ethical and medical obligations to patients. They are also faulted for failing to meet 

clinical requirements or performance measurements in a timely 

fashion. 

Outcomes: 

a. Provision of direct patient care is slowed. 

b. Patient frustration because they don’t understand why phones 

aren’t answered, lab results aren’t timely communicated, and messages aren’t returned promptly. 

c. Management can reap bonuses for keeping labor costs low by 

avoiding the salary expenditures for hiring/replacing basic staff 

members. 

d. Management is able to wring more time out of salaried rank 

and file employees. 

e. Rank and file staff member burn-out as workweeks extend far 

beyond 50 hours and impossible standards of achievement are 

mandated. 


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5. Inequitable distribution of extremely complex patients 

to overburden provider. 

Tactic: Extremely complex patients are ‘‘dumped’’ onto a provider’s panel en masse without allowing the provider additional 

clinical time to address the patient needs at each visit. These patients are time-consuming in terms of physical/clinical interactions 

needed to address multiple physical problems and approach the 

psychological issues inherent to the patient’s ability to engage in 

the health care process. 

Clinical implications: Punitive and dangerous system used for 

managing care of complex Veterans. The provider is chronically 

‘‘running behind’’ in clinic trying to meet the pertinent needs of 

each Veteran within an appointment timeframe that is too short 

for such a complex patient. 

Professional implications: Although the provider tries to give 

quality patient care to each Veteran, the provider is penalized on 

proficiencies and in meetings for ‘‘taking too long’’ with his/her patients despite the complexity of the patients. The provider is rated 

negatively by administrators because the provider cannot process 

the complex panel of patients as fast as fellow providers who have 

lighter/less complex patient panels. 

Outcomes: 

a. Management easily creates burdensome working conditions to 

harass staff member. 

b. Managers who have patient panels quickly can reduce their 

own work load/improve their own efficiency ratings by dumping 

complex patients onto other provider panels. 

c. Patient frustration because his/her assigned provider is chronically late starting appointments or only has time to deal with 1– 

2 active problems during the appointment. 

d. A greater number of patients can be neglected when provider 

time is routinely monopolized by fewer but much more complex patients. 

e. Rank and file staff member burn-out. 

6. Faulty clinical profile to overwhelm provider. 

Tactic: Providers are given inadequate administrative time to 

follow-up on electronic alerts and other administrative tasks. The 

clinic appointment time is reduced to a bare minimum in order to 

give the appearance of adequate provider staffing in the entire clinic. 

Note: Electronic alerts are computer notifications of various information of which the provider must be aware. Examples of electronic alerts include requests to co-sign chart notes or the receipt 

of results from labs, radiology studies, consults, or pharmacy actions. Although some alerts can be cleared in seconds, other alerts 

can take from 5–15 minutes each because follow-up action is required. At the Phoenix VA, primary care providers average 85 electronic alerts per day. 

Clinical implications: Delays occur in necessary follow-up required for labs, studies, and consults because providers are inundated with administrative tasks. 


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Professional implications: Providers feel chronically overwhelmed and stressed. His or her yearly proficiency is downgraded 

because the provider is unfairly labeled as being ‘‘inefficient’’ even 

though the provider has been assigned tasks that no human being 

reasonably could meet within a 40–50 hour workweek. 

Outcomes: 

a. Management is able to wring more time out of salaried employees. 

b. Management can save money on proficiency bonuses for staff 

by reducing the number of providers labeled as ‘‘outstanding’’ on 

yearly proficiencies. 

c. Rank and file staff members burn-out as workweeks extend far 

beyond 50–60 hours. 

7. Unjustified written counseling. 

Tactic: Written counseling is used only as a punitive stepping 

stone for unjustified disciplinary actions and as false justification 

for penalizing employee proficiencies. 

Clinical implications: Ineffective disciplinary system is created 

which doesn’t ensure high quality care for Veterans. Providers who 

perform appropriately are penalized unjustly. Providers who demonstrate inappropriate behaviors are not issued written counseling 

as long as those providers are pleasing the administrative chain of 

command. 

Professional implications: Providers are helpless to defend 

themselves because written counseling doesn’t rise to the level of 

disciplinary action that Title 38 employees are allowed to challenge. 

Outcomes: 

a. Administrators have an easy tool to discipline providers without being challenged. 

b. Written counseling is never used to correct inappropriate behaviors of providers who are favored by administrators. 

c. Rank and file staff member burn-out. 

8. Lateral transfer for factitious reasons. 

Note: Lateral transfers are allowed in only 3 situations: an employee requests the change and a vacancy is open in the new 

workstation; an employee faces a disciplinary action and management believes a new workstation would be a better fit for the employee’s skill set; or there is a true ‘‘critical need’’ in another area 

which management must meet by transferring the employee to the 

new location even if the employee doesn’t desire the transfer. Declining a ‘‘critical need’’ lateral transfer can result in disciplinary 

action against the employee. 

Tactic: An employee is laterally transferred to a less favorable 

work site based on a factitious ‘‘critical need’’ in the new area. 

Often the employee will then be penalized on his/her proficiencies 

for not performing well in the new area. 

Clinical implications: Potentially dangerous health and safety 

problems perpetuate when advocates for quality care are removed 

from clinical settings. 


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Professional implications: Providers become hesitant to verbalize concerns for patient health and safety in any work station. 

Outcomes: 

a. Management has a powerful tool to punish employees who persistently advocate for patient care/other issues against administration’s party line. 

b. Effective, dedicated professionals are essentially ‘‘moth-balled’’ 

to areas where they have less of an ability to effect positive change 

within the work-environment. 

9. Exploitation of ‘‘24/7’’ work contract. 

Note: A full-time federal Title 38 employee at one agency cannot 

work for another federal agency simultaneously even if the second 

agency’s work hours fall within the federal employee’s off-duty 

work hours from the first agency. In my limited understanding, I 

believe that the salaried Title 38 employee contract has been interpreted in recent years to mean the employee can only be scheduled 

for 80 hours per 2 week pay period even if the actual work day extends far longer. When a Title 38 employee’s workday inadvertently lasts more than the usual timeframe, the employee does not 

get paid overtime or comp time. A VA Title 38 employee may be 

scheduled to work more than 80 hours per 2 week pay period if the 

VA facility director declares an emergency at the VA facility. The 

true interpretation/implication of the 24/7 work contract needs to 

be officially clarified in writing by senior VA officials. 

Tactic: Clinics are set up with faulty administrative time/odd 

hours that routinely extend the usual 8 hour/day (40 hours/workweek) to 10–12 hours per day (50–70 hours/workweek). 

Clinical implications: The risk of patient care mistakes increases when providers are physically/mentally exhausted during 

any given workweek. 

Professional implications: Even if actual mistakes are not 

made, providers are physically/mentally exhausted and greatly fear 

making a critical mistake or overlooking important health care 

needs of their patients. 

Outcomes: 

a. Management is able to wring more time out of salaried employees. 

b. Providers are quickly burn-out as their personal/family time is 

steadily eroded. 

10. False accusations of patient privacy violations in retaliation for whistle-blowing. 

Tactic: Even though the employee uses the approved administrative channels of VA oversight, any provider who includes the 

necessary patient care information to support the allegations of 

wrong-doing is subsequently disciplined for violating patient privacy. In extreme cases of administrator wrath, the practitioner will 

be reported to his/her credentialing board for privacy violations. 

Note: Disclosure of pertinent patient care information in support 

of whistle-bower activity through approved channels of VA oversight is not a patient privacy violation. Unfortunately, the Office of 


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Inspector General has declined thus far to put that opinion in writing. With lengthy legal efforts, these inaccurate disciplinary actions 

can be overturned, but the process may take years. 

Clinical implications: Malicious administrative conduct stifles 

the reporting of future legitimate patient care concerns and perpetuates unsafe clinical situations. Patient care cannot rise to the high 

level of quality care needed by our Veterans until health and safety 

issues are reported and corrected. 

Professional implications: Fear of retaliation can silence providers or reduce their ability to effectively advocate for patients. 

Outcomes: 

a. Administrators have a powerful tool to suppress any information that may be contrary to a positive public image of the VA facility. 

b. The quality of patient care in the VA can never reach its full 

potential. 

c. The U.S. taxpayers foot the bill for legal wrangling between 

the VA who supports the disciplinary action and the Office of Special Counsel which is trying to overturn the disciplinary action. 

11. Assigning unreasonable timeframes for completion of 

excessive training requirements/tasks to penalize the provider. 

Tactic: Mandatory training requirements/task assignments, 

often assigned at the last minute, are required to be done within 

a short timeframe without allowing any flexibility in administrative time. If requirements/tasks are not completed, the provider is 

penalized on proficiencies or in write-ups. 

Clinical implications: Delays occur in the completion of important administrative tasks related to patient care. Administrative 

time for most providers is filled with daily tasks including reviewing mandatory electronic alerts. Being given additional tasks without additional time allowance means the providers may have to ignore administrative tasks related to patient care during allotted 

timeframes to complete the extraneous or nonessential tasks. This 

tactic erodes the Title 38 employee’s ability to complete other/more 

pressing administrative tasks within the course of daily duties. 

Professional implications: Staff frustration/burn-out because 

unreasonable time demands force the employees to use lunch 

breaks, weekends, or other off-duty hours to either complete training criteria/extra duties or follow-up on patient care administrative 

duties. 

Outcomes: 

a. Management is able to wring more time out of salaried employees. 

b. Rank and file staff member burn-out as workweeks extend far 

beyond 50–60 hours. 

12. Removal of teaching privileges to ostracize provider. 

Tactic: An administrator will exclude the physician from teaching privileges, an inherently renewing professional activity. 


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Clinical implications: Increased potential for patient health 

care mistakes occur when there is loss of talented attending physicians who normally would guide students/new doctors to consistently deliver high quality medical care. 

Professional implications: Involuntary removal of teaching 

privileges isolates/ostracizes the professional provider within the 

workplace. 

Outcomes: 

a. Management is able to effectively isolate ‘‘trouble-makers’’ 

within the work environment who threaten administrator’s status 

quo. 

b. Quality of training in the facility is reduced by the loss of an 

effective educator. 

SECTION V VA Horizontal Violence: General Retaliation Tactics Against 

all VA Employees 

Overview Summary 

A. Types of Retaliation: 

1. Open ridicule in meetings. 

2. Anonymous ‘‘report of contact’’ writing campaigns to sabotage 

employee’s credibility and justify malicious disciplinary actions. 

3. Deliberate exclusion of employee from participation in projects 

necessary for promotion/career advancement. 

4. Failure to promote on merit by willfully denying promotions to 

the best qualified candidate. 

5. Reassignment/relocation in the workplace in order to debase an 

employee. 

6. Abrupt firing of probationary employees who report patient care 

concerns, identify misuse of facility resources, and/or question violations of human resource policy. 

B. Clinical Implications (in numerical order based on retaliation type): 

1. Legitimate hazards to patient care and safety remain 

unaddressed due to perpetuation of hostile work environment. 

2. The firing, resignation, or failure to promote competent and dedicated employees impairs the quality of direct and/or indirect Veteran services. 

3. The available staffing expertise is not utilized for the maximum 

benefit of the patients. 

4. Because less qualified employees do not possess the mandatory 

traits/skills required for their new positions, the quality of all direct and/or indirect care is compromised. 

5. An employee who feels debased often cannot perform new duties 

to meet the standards and requirements of the VA system. 

6. Potential health and safety concerns are not addressed appropriately. 

C. Staff Implications (aggregate): 

In a system where there is disparate advancement opportunities, 

unequal balance of power, and emphasis on retaliation, qualified 

employees dedicated to the care of Veterans and the VA mission 


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are subjected to horizontal violence that prevents them from 

achieving their full career potential and encourages them to seek 

career opportunities elsewhere. Less qualified employees are allowed to fill direct and indirect care positions which results in a 

lower standard of care throughout the VA system. 

D. Outcomes (aggregate): 

1. Administrators can employ a variety of retaliatory methods to 

debase employees and to suppress identification of system deficiencies that may make the administration look unfavorable. 

2. The system is unable to effectively retain and/or recruit employees who have been/would be effective advocates of health and 

safety in all aspects of the VA health care system. 

3. Veterans are denied high quality, efficient medical services 

within the VA despite administration having access to a talented 

pool of dedicated employees already working within the system. 

4. The U.S. Government spends inordinate amounts of money 

trying to legally defend administrators’ retaliation against employees and also compensate for high staff turn-over. 

5. The horizontal violence within the VA institutional culture 

propagates. 

6. Outcomes 1 through 5 above threaten the viability of the VA 

and undermine its ability to meet and exceed our obligations to the 

nation’s current and future Veterans. 

Detailed Explanation of Retaliation Tactics Against all VA Employees 

1. Open ridicule in meetings. 

Tactic: In meetings and other personal interactions that don’t 

leave a paper trail, administrators use verbal behavior such as 

raising voice, profanity, sarcasm, and interruption in response to 

an employee verbalizing concerns about safety or care. Nonverbal 

behaviors such as crossing arms, rolling eyes, and scowling are 

done while the employee is speaking about his/her concerns. 

Clinical implications: Legitimate hazards to patient care and 

safety remain unaddressed due to perpetuation of hostile work environment. 

Staff implications: The employee immediately becomes aware 

he/she is displeasing administrators and is often humiliated in 

front of co-workers. Thereafter, employees remain silent to avoid 

becoming targets for administrative abuse. 

Outcomes: 

a. Management has a method of discouraging employees from 

voicing concerns about safety. 

b. Management can later claim ‘‘no knowledge’’ of the problem if 

the deficiency/issue later comes to the surface in another manner. 

c. Lines of facility communication are impaired because rankand-file staff avoid meetings. 

2. Anonymous ‘‘report of contact’’ writing campaigns to 

sabotage employee’s credibility and justify malicious disciplinary actions. 

Tactic: Administrators orchestrate a ‘‘write-up’’ campaign 

against an employee wherein the employee is the subject of falVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00141 Fmt 6621 Sfmt 6602 Y:\89377.TXT PAT

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sified or exaggerated reports of contact from employee’s co-workers. 

The employee is never told who composed each ‘‘report of contact’’ 

write-up. The employee is then penalized/disciplined within the 

workplace based on these write-ups against which the employee 

cannot easily mount a defense. 

In a variation of this tactic, an administrator will pressure coworkers into writing up reports of contact on incidents, even if 

those incidents are outdated and/or insignificant. The co-workers 

are forced to write up the employee or face retaliation themselves 

from the administrator. Co-workers who refuse are viewed as ‘‘not 

being team players’’ or are told they are ‘‘unprofessional’’. These derogatory labels will negatively affect future proficiencies for the coworkers. 

Clinical implications: The firing, resignation, or failure to promote competent and dedicated employees impairs the quality of direct and/or indirect Veteran services. 

Staff implications: An employee feels attacked by unseen enemies or by his/her own co-workers. 

Outcomes: 

a. Administrators have a tool to easily justify disciplining employees on trumped-up charges or minor infractions. 

b. Administrators have a divisive tool to isolate an employee or 

break up a cohesive team of employees. 

c. Employees have significant distrust of each other. 

3. Deliberate exclusion of employee from participation in 

projects necessary for promotion/career advancement. 

Tactic: Administrators avoid assigning an otherwise qualified 

employee to participate in projects that are needed to advance the 

employee’s VA career. This is done because the administrators view 

the employee as a threat to the current status quo. 

Clinical implications: The VA doesn’t utilize its staffing expertise to the maximum benefit of its operational goals. 

Staff implications: An employee’s potential remains undeveloped even though the employee otherwise is truly capable of expanding his/her role within the VA. 

Outcomes: 

a. Administrators have an easy way to prevent employees who 

are vocal on patient care issues from ever being given opportunities 

to achieve career fulfillment or advance into supervisory roles. 

b. Inappropriate utilization of staffing resources. 

c. Overall staff productivity is decreased. 

4. Failure to promote on merit by willfully denying promotions to the best qualified candidate. 

Tactic: Administrators deliberately overlook qualified candidates 

in favor of the administrators’ friends/co-workers who conform to 

the unethical administrative power structure. 

Clinical implications: Because less qualified employees do not 

possess the mandatory traits/skills required for their new positions, 

the quality of all direct and/or indirect care is compromised. 


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Staff implications: Employees with desired expertise are extremely frustrated because they are unable to apply those skills to 

the maximum extent possible within their own department. Positions are filled with candidates who do not possess the preferred 

expertise and qualifications for the job. 

Outcomes: 

a. An administrator has now filled positions of responsibility with 

unqualified individuals who continue to promote an unethical and 

unsafe work environment. 

b. Government monies are wasted on avoidable legal proceedings 

between the VA that supports the administrator and the Office of 

Special Counsel/EEOC which is trying to overturn the prohibited 

personnel action. 

5. Reassignment/relocation in the workplace in order to 

debase employee. 

Tactic: An experienced employee is transferred to an entry level 

position/other position that doesn’t effectively use employee’s skill 

set while the employee is being ‘‘investigated’’ for an alleged infraction. 

Clinical implications: An employee who feels debased often 

cannot perform new duties to the standards and requirements of 

the VA system. 

Staff implications: An employee’s dignity is reduced when removed from a role that he/she had great personal pride in fulfilling. 

Outcomes: 

a. Administrators have an effective tool to isolate an employee or 

break-up a cohesive group of workers who verbalize health/safety 

concerns. 

b. Inappropriate use of experienced staff member. 

c. Loss of productivity. 

6. Abrupt firing of probationary employees who report patient care concerns, identify misuse of facility resources, 

and/or question violations of human resource policy. 

Note: Administrators have the ability to fire any probationary 

employee without cause during a period of probation that can last 

up to 2 years. This ability is supposed to be judiciously applied only 

in situations where the employee is not a good fit for the VA. 

Tactic: As a way of filtering out new employees who express 

health/safety concerns or violations of other policies/procedures, an 

administrator unjustly/abruptly terminates these probationary employees simply because they are viewed as a threat to the administrator’s power base. 

Clinical implications: Potential health and safety concerns are 

not addressed appropriately within the work environment. 

Staff implications: Probationary employees are afraid to vocalize health and safety concerns because they fear unjustified job 

loss. 


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Outcomes: 

a. Administrators have an effective leverage over probationary 

employees to suppress any identification of system deficiencies that 

may make the administration look unfavorable. 

b. In order to meet administrators’ personal goals, there can be 

coercion of probationary employees to do activities that are not in 

keeping with VA official standards of conduct. 

f 

PREPARED STATEMENT OF MR. DAVIS

Good evening, I’m Scott Davis, a Program Specialist at the 

Health Eligibility Center in Atlanta, Georgia. I filed for whistleblower protection in January 2014. 

I’d like to thank Chairman Miller, Ranking Member Michaud 

and the committee for their leadership and for providing a platform, so the voices of VA Whistleblowers can be heard. 

I urge the committee to take prompt action as time is running 

out. Every day a window of opportunity is closing on a Veteran to 

receive care before irreparable harm is done to their health or mental well-being. Because of the inaction of senior VA officials, some 

Veterans even face the burden of being billed for care their service 

has earned. 

As noted in the Office of Special Counsel’s June 23rd report, VA 

leadership has repeatedly failed to respond to concerns raised by 

whistleblowers about patient care at VA. Despite the best efforts 

of truly committed employees at HEC and the Veteran Health Administration, who have risked their careers to stand up for Veterans, management at all levels ignored or retaliated against them 

for exposing the truth. 

CRITICAL ISSUES REPORTED TO SENIOR VA OFFICIALS BY

WHISTLEBLOWERS AT THE HEC INCLUDE: 

1. Mismanaging critical Veteran health programs and wasting 

millions of dollars on an Affordable Care Act direct mail marketing 

campaign. 

2. The possible purging & deletion of over 10,000 Veteran health 

records at the Health Eligibility Center. 

3. A backlog of 600,000 pending benefit enrollment applications. 

4. Nearly 40,000 unprocessed applications discovered in January 

2013. These were primarily applications from returning service 

members from Iraq and Afghanistan. 

THE HARASSMENT I EXPERIENCED AT THE HEC WAS FROM TOP LEVELS

OF MANAGEMENT: 

1. My whistleblower complaint to White House Deputy Chief of 

Staff Rob Nabors was leaked to my manager Sherry Williams, who 

stated in writing, that she was contacting me on behalf of Acting 

Secretary Gibson and Mr. Rob Nabors. Neither Mr. Gibson, nor Mr. 

Nabors have responded to that fact. 

2. My employment records were illegally altered by CBO WFM, 

Director Joyce Deters. 


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3. I was illegally placed on a permanent work detail by Assistant 

Deputy Under Secretary, Philip Matkovsky and Acting Chief Business Officer, Stephanie Mardon. 

4. I was placed on involuntary administrative leave, curiously at 

the same time the OIG’s investigation was occurring in Atlanta by 

Acting HEC Director Greg Becker. 

UNFORTUNATELY MY EXPERIENCE IS NOT UNIQUE. 

Daron and Eileen Owens, who work at the VA Hospital in Atlanta, GA, have experienced the same retaliation for reporting 

medical errors and patient neglect as well as misconduct by senior 

VA police officials. 

Our Local 518 Union President, Daphne Ivery is routinely harassed as a direct consequence of assisting me and other disabled 

employees with addressing retaliatory actions by members of management. Mr. and Mrs. Owens as well as Ms. Ivery are Veterans. 

In fact over 50% of the 300 employees at our office are disabled 

Veterans. 

In 2010 allegations surfaced that applications for VA health care 

were being shredded at the HEC. Under the direction of the HEC 

Director and Deputy Director, Ms. Kimberly Hughes, Former Associate Director for Informatics and her team began to investigate 

this allegation. Her team discovered nearly 2,000 applications that 

were reported as being processed in WRAP that did not appear as 

new enrollees in the Enrollment System. 

Ms. Hughes, investigation was abruptly closed by the HEC Director’s Office. Although she completed a report of her findings it is 

unclear whether that report was given to the OIG or whether the 

nearly 2,000 Veterans who sought medical care from VA ever received the health care they earned. She was also subjected to harassment and intimidation, because she dared to advocate for Veterans! 

RELEVANCE TO THE COMMITTEE JUSTIFIES CLOSER REVIEW

The whistleblower statements I have provided to the committee 

were also provided to the OIG and are more relevant to this committee than many may realize. I urge additional review of those 

whistleblower statements. 

In addition to providing specific examples of whistleblower harassment to the committee, I hope my testimony provides some insight on three key issues VA management fails to address: 

1. Reckless waste of federal funds and causing greater backlog of 

enrollment applications for the sole purpose of achieving performance goals. 

2. Why there is resistance to implementing proper and effective 

processing and reporting systems and the source of that resistance, 

as addressed by Dr. Draper during her testimony. 

3. The need to remove ineffective managers and the urgent need 

for the VA Management Accountability Act to be fully implemented, as stated by Mr. Griffin. 


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WHY IT IS SO CRITICAL TO ACT QUICKLY: 

More records and documents could be deleted or manipulated to 

mask backlog and mismanagement, due to system integrity issues. 

VHA is losing talented, committed individuals who continue to 

transfer to other agencies or are harassed to the point of resignation. The volume of EEO complaints should be examined. 

TV commercials are currently airing across the country about VA 

career opportunities. VA will not attract much needed health care 

professional to improve the quality of care, if it is known and even 

stated by current employees that ‘‘VA is not a place you want to 

work!’’ 

Most importantly: transitioning management, clearing backlog, 

restructuring care, implementing new access programs and building a quality organization will require the intervention and strong 

oversight by Congress. 

Thank you again for this opportunity. I welcome your questions 

on the issues I’ve noted or any items I’ve submitted to the committee. 

f 

PREPARED STATEMENT OF CAROLYN LERNER AND ERIC BACHMAN

‘‘VA Whistleblowers: Exposing Inadequate Service Provided to 

Veterans and Ensuring Appropriate Accountability’’ 

July 8, 2014, 7:30 P.M. 

Chairman Miller, Ranking Member Michaud, and Members of 

the Committee: 

Thank you for the opportunity to testify today about the U.S. Office of Special Counsel (OSC) and our ongoing work with whistleblowers at the Department of Veterans’ Affairs (VA). I am joined 

today by Deputy Special Counsel Eric Bachman, who is supervising 

OSC’s efforts to protect VA employees from retaliation. 

I. The Office of Special Counsel 

OSC is an independent investigative and prosecutorial federal 

agency that protects the merit system for over 2.1 million federal 

employees. We fulfill this good government role with a staff of approximately 120 employees - and the smallest budget of any federal 

law enforcement agency. Our specific mission areas include enforcement of the Hatch Act, which keeps the federal workplace free of 

improper partisan politics. OSC also protects the civilian employment rights for returning service members under the Uniformed 

Services Employment and Reemployment Rights Act (USERRA). 

Over the last three years, OSC has successfully implemented the 

USERRA demonstration project this Committee established as part 

of the Veterans Benefits Act of 2010. With limited resources, we 

have found innovative ways to resolve USERRA claims and ensure 

that service members are positioned to succeed upon their return 

to the civilian federal workforce. 

In addition to enforcing the Hatch Act and USERRA, OSC is also 

uniquely positioned in the federal government to receive whistleblower disclosures and protect whistleblowers from retaliation. We 

do this in two distinct ways. 


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First, we provide a safe channel for federal employees to disclose 

allegations of waste, fraud, abuse, illegality, and/or threats to public health and safety. We receive approximately 1,200 whistleblower disclosures annually. If the disclosure meets the high 

threshold required for triggering a government investigation, we 

then refer it to the agency involved. After an OSC referral, the 

agency is required to investigate and submit a written report to 

OSC. OSC analyzes the agency’s report, receives comments from 

the whistleblower, and transmits our findings and recommendations to the President and Congress. OSC’s work with whistleblowers often identifies trends or areas of concern that require 

greater scrutiny and/or systemic corrective action. Our testimony 

today will provide additional detail on OSC’s June 23, 2014 letter 

to the President and Congress, which made recommendations in response to dozens of whistleblower disclosures from VA employees 

across the country. 

Second, OSC protects federal workers from ‘‘prohibited personnel 

practices,’’ especially retaliation for whistleblowing. OSC receives 

approximately 3,000 prohibited personnel practice complaints annually, a number that has increased 51% over the last five years. 

Most of these complaints allege retaliation for whistleblowing or 

protected activity, such as cooperating with an OSC or Inspector 

General investigation. In these cases, OSC conducts the investigation and determines if retaliation or another prohibited personnel 

practice has occurred. After an investigation, OSC has the ability 

to secure relief on behalf of the employee and to seek disciplinary 

action against any employee who has engaged in retaliation. Our 

testimony today will provide the Committee with a summary of 

OSC’s efforts to protect VA employees from retaliation. 

Finally, we will discuss a number of encouraging commitments 

made recently by the VA, in response to our June 23 letter. If implemented, these commitments will go a long way toward ensuring 

that whistleblowers feel free to step forward, and that their information will be used to improve the quality of care within the VA 

system. 

II. Whistleblower Disclosures 

As stated in our June 23, 2014 letter to the President, which is 

attached to this testimony, ‘‘The goal of any effective whistleblower 

system is to encourage disclosures, identify and examine problem 

areas, and find effective solutions to correct and prevent identified 

problems from recurring.’’ Unfortunately, too often the VA has 

failed to use the information provided by whistleblowers as an 

early warning system. Instead, in many cases the VA has ignored 

or attempted to minimize problems, allowing serious issues to fester and grow. 

Our June 23 letter raised specific concerns about ten cases in 

which the VA admitted to serious deficiencies in patient care, yet 

implausibly denied any impact on veterans’ health. As we stated in 

that communication, ‘‘The VA, and particularly the VA’s Office of 

the Medical Inspector (OMI), has consistently used a ‘harmless 

error’ defense, where the Department acknowledges problems but 

claims patient care is unaffected.’’ This approach hides the severity 

of systemic and longstanding problems, and has prevented the VA 


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from taking the steps necessary to improve quality of care for veterans. 

To help illustrate the negative consequences of this approach, we 

will highlight three cases that were addressed in the June 23 letter. 

1. Ft. Collins, CO 

In response to a disclosure from a VA employee in Fort Collins, 

CO, OSC received an OMI report confirming severe scheduling and 

wait time problems at that facility. The report confirmed multiple 

violations of VA policies, including the following: 

• A shortage of providers caused the facility to frequently cancel appointments for veterans. After cancellations, providers did not conduct required 

follow-up, resulting in situations where ‘‘routine primary care needs were 

not addressed.’’ 

• The facility ‘‘blind scheduled’’ veterans whose appointments were canceled, meaning veterans were not consulted when rescheduling the appointment. If a veteran subsequently called to change the blind-scheduled appointment date, schedulers were instructed to record the appointment as 

canceled at the patient’s request. This had the effect of deleting the initial 

‘‘desired date’’ for the appointment, so records would no longer indicate that 

the initial appointment was actually canceled by the facility, resulting in 

faulty wait time data. 

• At the time of the OMI report, nearly 3,000 veterans were unable to reschedule canceled appointments, and one nurse practitioner alone had a 

total of 975 patients who were unable to reschedule appointments. 

• Staff were instructed to alter wait times to make the waiting periods look 

shorter. Schedulers were placed on a ‘‘bad boy’’ list if their scheduled appointments were greater than 14 days from the recorded ‘‘desired dates’’ for 

veterans. 

In addition, OSC is currently investigating reprisal allegations 

by two schedulers who were reportedly removed from their positions at Fort Collins and reassigned to Cheyenne, WY, for not complying with the instructions to ‘‘zero out’’ wait times. After these 

employees were replaced, the officially recorded wait times for appointments drastically ‘‘improved,’’ even though the wait times 

were actually much longer than the officially recorded data. The 

chart below, which was provided in the report to OSC, clearly illustrates this phenomenon. After the new schedulers complied with 

orders to ‘‘zero out’’ wait times, the officially recorded percentage 

of veterans who were ‘‘scheduled within 14 days of [their desired 

date]’’ spiked to nearly 100%. There is no indication that actual 

wait times decreased. 

Despite the detailed findings in their report, OMI concluded, 

‘‘Due to the lack of specific cases for evaluation, OMI could not substantiate that the failure to properly train staff resulted in a danger to public health and safety.’’ This conclusion is not only 

unsupportable on its own, it is also inconsistent with reports by 

other VA components examining similar patient-care issues. For 

example, the VA Office of Inspector General recently confirmed 

that delays in access to patient care for 1,700 veterans at the Phoenix Medical Center ‘‘negatively impacted the quality of care at the 

facility.’’ 

It is important to note that OSC first referred these allegations 

to the VA in October 2013, providing the VA with an opportunity 

to assess and begin to address the systemic scheduling abuses occurring throughout the VA health system. Yet, as discussed, the 

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edge the severity of the identified problems, mischaracterized the 

concern as a ‘‘failure to properly train staff,’’ and then did not consider how the inability to reschedule appointments impacted the 

health and safety of the 3,000 veterans who could not access care. 

There is no indication that the VA took any action in response to 

the deeply troubling facts outlined in the February 2014 report. 

2. Brockton, MA 

In a second case, a VA psychiatrist disclosed serious concerns 

about patient neglect in a long-term mental health care facility in 

Brockton, MA. The OMI report to OSC substantiated allegations 

about severe threats to the health and safety of veterans, including 

the following: 

• A veteran with a 100 percent service-connected psychiatric condition was a resident of the facility from 2005 to 2013. During that time, he had only one psychiatric 

note written in his medical chart, in 2012, when he was first examined by the whistleblower, more than seven years after he was admitted. The note addressed treatment recommendations. 

• A second veteran was admitted to the facility in 2003, with significant and 

chronic mental health issues. Yet, his first comprehensive psychiatric evaluation did 

not occur until 2011, more than eight years after he was admitted, when he was 

assessed by the whistleblower. No medication assessments or modifications occurred 

until the 2011 consultation. 

Despite these findings, OMI would not acknowledge that the confirmed neglect of residents at the facility had any impact on patient 

care. Given the lack of accountability demonstrated in the first 

OMI report, OSC requested a follow-up report. The second report 

did not depart from the VA’s typical ‘‘harmless error’’ approach, 

concluding: ‘‘OMI feels that in some areas [the veterans’] care could 

have been better but OMI does not feel that their patient’s rights 

were violated.’’ Such statements are a serious disservice to the veterans who received inadequate patient care for years after being 

admitted to VA facilities. 

Moreover, in its initial referral letter to the VA, OSC noted that 

the whistleblower ‘‘believed these instances of patient neglect are 

an indication of large systemic problems present at the Brockton 

Campus.’’ When the whistleblower was interviewed by OMI, the 

whistleblower stated his belief that these were not the only instances of neglect, and recommended that OMI examine all the patients receiving mental health care in the facility. However, when 

OMI was onsite, they limited the investigation to the three specific 

individuals treated by the whistleblower. OMI did not conduct a 

broader review. Additionally, there is no indication that the VA 

took action in response to the detailed factual findings in the OMI 

report, including ordering a broader review of patient neglect at 

Brockton or in other long-term mental health care facilities. 

3. Montgomery, AL 

Finally, in Montgomery, AL, an OMI report confirmed a whistleblower’s allegations that a pulmonologist copied prior provider 

notes to represent current readings for veterans, likely resulting in 

inaccurate recordings of patient health information and in violation 

of VA rules. Rather than recording current readings, the 

pulmonologist copied and pasted the patients’ earlier recordings 

from other physicians, including the patients’ chief complaint, 

physical examination findings, vital signs, diagnoses, and plans of 


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care. Despite confirming this misconduct, OMI stated that it could 

not substantiate whether this activity endangered patient health. 

The timeline and specific facts indicate a broader lack of accountability and inappropriate responses by the VAMC leadership in 

Montgomery. 

In late 2012, the whistleblower identified six instances in which 

a staff pulmonologist copied and pasted information from prior patient visits with other physicians. The whistleblower, a surgeon, 

was first alerted to the possible misconduct by an anesthesiologist 

during a veteran’s preoperative evaluation prior to an operation. 

The whistleblower reported these concerns to Alabama VAMC 

management in October 2012. In response to the whistleblower’s 

report, VAMC management monitored the pulmonologist’s medical 

record documentation practices. After confirming evidence of copying and pasting in medical records, the pulmonologist was placed 

on a 90-day ‘‘Focused Professional Practice Evaluation’’ (FPPE), or 

a review of the physician’s performance at the VA. Despite additional evidence of improper copying and pasting of medical records 

during the 90-day FPPE, VAMC leadership ended the FPPE, citing 

satisfactory performance. 

Meanwhile, the whistleblower brought his concerns to OSC, citing mismanagement by VAMC leadership in handling his complaint, and a threat to veterans’ health and safety caused by the 

copied recordings. 

OSC referred the allegations to the VA in April 2013. OMI initiated an investigation in May 2013. Despite confirming the underlying misconduct, OMI did not substantiate the whistleblower’s allegations of mismanagement by VAMC leadership or threats to patient care. However, to its credit, OMI recommended that the 

Montgomery VAMC review all consults performed by the 

pulmonologist in 2011 and 2012, and not just the six known to the 

whistleblower. 

Far worse than previously believed, the review determined that 

the pulmonologist engaged in copying and pasting activity in 1,241 

separate patient records. 

Despite confirming this widespread abuse, Montgomery VAMC 

leadership did not change its approach with the pulmonologist, who 

was again placed on an FPPE. Montgomery VAMC leadership also 

proposed a reprimand, the lowest level of available discipline. 

OSC requested, and has not yet received, information from the 

VA to determine if the 1,241 instances of copying and pasting resulted in any adverse patient outcomes. Despite the lack of confirmation on this critical issue, Central Alabama VA Director 

James Talton publicly stated that the pulmonologist is still with 

the VA because there was no indication that any patient was endangered, adding that the physician’s records are checked periodically to make sure no copying is occurring. As VA headquarters 

completes its review of the patient records, we encourage the VA 

to also review the specific actions taken by Montgomery VAMC 

leadership in response to the confirmed misconduct. 

Beyond these specific cases, OSC continues to receive a significant number of whistleblower disclosures from employees at VA facilities throughout the country. We currently have over 60 pending 

cases, all of which allege threats to patient health or safety. OSC 


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has referred 28 of these cases to the VA for investigation. This represents over a quarter of all cases referred by OSC for investigation 

government-wide. Moving forward, it is critical that VA leadership, 

including the Office of the Secretary, review all whistleblower reports and proposed corrective actions to ensure that outcomes such 

as those described above are avoided. 

III. Whistleblower Retaliation 

1. Overview and scope of the problem 

OSC has received scores of complaints from VA employees who 

say they have been retaliated against for blowing the whistle on 

improper patient scheduling, understaffing of medical facilities, 

and other dangers to patient health and safety at VA centers 

around the country. Based on the scope and breadth of the complaints OSC has received, it is clear that the workplace culture in 

many VA facilities is hostile to whistleblowers and actively discourages them from coming forward with what is often critical information. 

OSC currently has 67 active investigations into retaliation complaints from VA employees. These complaints arise in 28 states and 

45 separate facilities. Approximately 30 of these 67 cases have 

passed the initial review stage in our intake office, the Complaints 

Examining Unit, and are currently in our Investigation and Prosecution Unit, where they are being further investigated for corrective and disciplinary action. The number of cases increases daily. 

By way of example, OSC has received approximately 25 new whistleblower retaliation cases from VA employees since June 1, 2014. 

2. Actions OSC has taken to investigate and address these cases 

In addition to the ongoing investigation of nearly 70 retaliation 

cases, OSC has taken a number of steps to address and attempt 

to resolve these widespread complaints of whistleblower reprisal. 

• OSC has reallocated staff and resources to investigating VA whistleblower reprisal cases. These cases are the office’s highest priority and more 

than 30 attorneys and investigators are currently assigned to these whistleblower retaliation cases (in addition to all 14 employees in the Disclosure 

Unit). We have also implemented a priority intake process for VA cases. 

• OSC representatives have met personally with VA officials in recent 

weeks, including Acting Secretary Gibson, Chief of Staff Jose Riojas, White 

House Deputy Chief of Staff Rob Nabors, attorneys from the Office of General Counsel, and others. 

• OSC representatives recently traveled to Phoenix, Arizona to meet with 

FBI and VA Inspector General agents who are investigating the Phoenix 

VA cases, and also met with a number of the Phoenix VA whistleblowers. 

• In addition to this testimony, OSC continues to brief the House and Senate Committees on Veterans Affairs on an ongoing basis, and provide information to individual Members of Congress who have concerns about disclosures or retaliation claims in their states or districts. 

3. Examples of relief obtained 

We cannot speak today about the details of ongoing reprisal 

cases, because doing so would jeopardize the integrity of the investigations and could improperly reveal the confidential identity of 

certain whistleblowers. However, we would like to mention a few 

cases where OSC has recently been able to obtain relief for whistleblowers: 


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An employee in a VA facility in Florida raised concerns about a 

number of issues, including poor patient care. The highlights of the 

employee’s complaint are as follows: 

• The employee had worked for the federal government for over two decades, 

including over 15 years with the VA. Throughout this lengthy service, the employee received ‘‘outstanding’’ and ‘‘excellent’’ job performance ratings and had 

never been disciplined. 

• However, soon after the employee reported the poor patient care and other 

issues to the VA OIG in 2013, the VA removed certain of the employee’s job 

duties and conducted a retaliatory investigation of the employee. 

• Notably, in 2014, the VA also attempted to suspend the employee but OSC 

was able to obtain a stay of the suspension pending OSC’s investigation of the 

matter. 

• Due to the retaliatory environment, the employee decided to transfer to a VA 

facility in a different state in order to help protect the employee’s job status and 

retirement benefits. 

In a VA facility in New York, an employee complained to a supervisor about a delay in reporting a possible crime in the VA facility, as well as another serious patient care issue. The key points 

of the employee’s complaint are as follows: 

• Prior to blowing the whistle on this alleged misconduct, the employee received 

high job performance ratings as well as a bonus. 

• However, soon after reporting the misconduct to a supervisor, this same supervisor informed the employee that an investigation into the employee’s job 

performance would be conducted, which could result in the employee’s termination. The basis for the investigation and possible termination was that the 

employee was ‘‘not a good fit for the unit.’’ 

• The investigation was set to convene in late June 2014, but OSC was recently 

able to obtain a stay pending OSC’s investigation of the matter. 

A VA employee in Hawaii blew the whistle after seeing an elderly patient improperly restrained in a wheelchair, which violated 

rules prohibiting the use of physical restraints without a doctor’s 

order. 

• Almost immediately after this disclosure, the employee was suspended for two 

weeks and received a letter of counseling. 

• OSC investigated the matter and determined the VA had retaliated against 

the employee. As a result, OSC obtained corrective action for the employee, including a rescission of the suspension, full back pay, and an additional monetary award. At OSC’s request, the VA also agreed to suspend the subject official 

who was responsible for the retaliation. 

The severity of these cases underscores the need for substantial, 

sustained cooperation between the VA and OSC as we work to protect whistleblowers and encourage others to report their concerns. 

IV. A New and Better Approach from the VA 

While this has been a difficult period for the VA, it is important 

to note several encouraging signs from VA leadership suggesting a 

new willingness to listen to whistleblower concerns, act on them 

appropriately, and ensure that employees are protected for speaking out. 

• In a June 13, 2014 statement to all VA employees, Acting Secretary Gibson 

specifically noted, ‘‘Relatively simple issues that front-line staff may be aware 

of can grow into significantly larger problems if left unresolved.’’ We applaud 

Acting Secretary Gibson for recognizing the importance of whistleblower disclosures to improving the effectiveness and quality of health care for our veterans 

and for his commitment to identifying problems early in order to find comprehensive solutions. 

• In response to OSC’s June 23, 2014 letter to the President and Congress, Acting Secretary Gibson directed a comprehensive review of all aspects of the Office of Medical Inspector’s operation. And, in response to OSC’s recommendaVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00152 Fmt 6621 Sfmt 6621 Y:\89377.TXT PAT

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tion, he stated his intent to designate an official to assess the conclusions and 

the proposed corrective actions in OSC reports. We look forward to learning 

about the results of the OMI review and believe the designated official will help 

to avoid the same problematic outcomes from prior OSC whistleblower cases. 

• In their June 27, 2014 report to the President, Deputy White House Chief of 

Staff Rob Nabors and Acting VA Secretary Gibson confirmed that a review of 

VA responses to OSC whistleblower cases is underway, recommended periodic 

meetings between the Special Counsel and the VA Secretary, and recommended 

completion of OSC’s whistleblower certification program as a necessary step to 

stop whistleblower retaliation. We look forward to working with the VA on the 

certification and training process. 

• At a July 2014 meeting at OSC, Acting Secretary Gibson committed to resolving meritorious whistleblower retaliation cases with OSC on an expedited basis. 

We are hopeful this will avoid the need for lengthy investigations and help 

whistleblowers who have suffered retaliation get back on their feet quickly. In 

the very near future, we look forward to working out the details of this expedited review process and providing these whistleblowers with the relief and protection they deserve. Doing so will show employees that the VA’s stated intolerance for retaliation is backed up by concrete actions. We will keep this Committee fully-informed on significant developments in this area. 

V. Conclusion 

In conclusion, we want to applaud the courageous VA employees 

who are speaking out. These problems would not have come to light 

without the information provided by whistleblowers. Identifying 

problems is the first step toward fixing them. We look forward to 

working closely with whistleblowers, the Committee, and VA leadership in the coming months to find solutions. 

We would be pleased to answer any questions that the Committee may have. f 

PREPARED STATEMENT OF JAMES TUCHSCHMIDT

Good evening, Chairman Miller, Ranking Member Michaud, and 

Members of the Committee. Thank you for the opportunity to discuss whistleblower claims at the Department of Veterans Affairs 

(VA). I am accompanied today by Dr. Edward Huycke, Deputy 

Medical Inspector for the Veterans Health Administration’s (VHA) 

Office of the Medical Inspector. 

Our core values at VA are Integrity, Commitment, Advocacy, Respect, and Excellence—‘‘I CARE.’’ To get to excellence, we rely on 

the integrity, experience, observations, insights, and recommendations of VA’s front-line staff, those who work professionally and 

compassionately with Veterans each and every day. We value that 

input and rely on it to help us better serve Veterans. Clearly, we 

are deeply concerned and distressed about the allegations that employees who sought to report deficiencies were either ignored, or 

worse, intimidated into silence. Let me be clear, VA will not tolerate an environment where intimidation or suppression of reports 

occurs. 

Leaders are responsible for establishing a workplace atmosphere 

in which employees are comfortable highlighting and sharing their 

successes—as well as identifying areas in which we can improve. 

Whether that means notifying managers and supervisors of isolated gaps or bringing attention to larger, systemic issues that impede excellence, it is important that all employees are encouraged 

to report deficiencies in care or services we provide to Veterans. 

Relatively simple issues that front-line staff may be aware of can 


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1 Available at http://www.diversity.va.gov/policy/statement.aspx. 

grow into significantly larger problems if left unresolved. In the 

most serious cases, these problems can lead to and encourage improper and unethical actions. 

Across VA, we expect workplace environments that protect the 

rights and enable full participation of all its employees. To that 

end, we have implemented biennial Workplace Harassment Prevention and the Notification and Federal Employee Antidiscrimination 

and Retaliation Act of 2002 (No FEAR Act) training for all 

330,000+ employees VA-Wide to ensure they are aware and educated on their rights and responsibilities in these areas. We also 

recognize that supervisors and managers bear a heightened responsibility in maintaining a fair, safe, and inclusive culture. Accordingly, five years ago VA implemented additional mandatory Equal 

Employment Opportunity (EEO), Diversity & Inclusion, and Conflict Management training for all VA executives, managers, and supervisors VA-Wide. VA monitors compliance with this requirement 

on an on-going basis. 

We expect employees to bring to the attention of their managers 

and supervisors shortcomings in the delivery of our services to Veterans, any perceived violations of law, rule or regulation, official 

wrongdoing, gross mismanagement, gross waste, fraud, abuse of 

authority, or any substantial and specific danger to public health 

or safety. Intimidation or retaliation against whistleblowers—or 

any employee who raises a hand to identify a legitimate problem, 

make a suggestion, or report what may be a violation of law, policy, 

or our core values—is absolutely unacceptable. 

We all have a responsibility for enforcing appropriate workplace 

behavior. Protecting employees from reprisal is a moral obligation 

of VA leaders, a statutory obligation, and a priority for this Department. We will take prompt action to hold accountable those engaged in conduct identified as reprisal for whistleblowing, and that 

action includes appropriate disciplinary action. VA notifies all employees of their Whistleblower Protection rights annually in the 

Secretary’s EEO, Diversity & Inclusion, No FEAR Act, and Whistleblower Protection Policy Statement. 1 We strongly encourage all 

supervisors to review this policy statement with their employees 

and ensure their full understanding. VA also conducts annual site 

visits to select facilities in the field to review their compliance with 

these policies and educate the leadership in these critical areas. 

Recently, we have taken steps to strengthen and expand the scope 

of these reviews and technical assistance visits. 

Employees have several avenues of redress if they are confronted 

with whistleblower reprisal. Employees may file a complaint with 

the Office of Special Counsel (OSC) or appeal directly to the Merit 

Systems Protection Board. Employees are also always free to report 

whistleblower reprisal to a VA management official, to VA’s independent Office of Inspector General (OIG), and to the Congress. VA 

emphasizes the importance of employees bringing their concerns 

forward and strongly encourages these actions. Each concern is 

taken seriously and addressed to the best extent possible. 

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blower cases about the Department. These are investigations conducted pursuant to 5 U.S.C. § 1213 and require VA to investigate 

and prepare a report of its investigation into the whistleblower disclosures. We take these investigations very seriously and they are 

undertaken immediately, as required by law. First, VA leaders are 

reminded of the mandate to protect whistleblowers from retaliation 

and other prohibited personnel practices. VA initially interviews 

the whistleblower, and follows up with him/her as often as necessary. Then, an investigation is conducted, which includes a site 

visit consisting of a document review, interview with individuals 

identified by the whistleblower, and any other appropriate individuals as determined by OMI. Reports generated by these investigations are reviewed and approved by VA leadership. VA facilities or 

program offices are required to complete action plans to address 

each report recommendation. VA tracks these action plans until 

completion. If appropriate progress is not apparent, subsequent onsite visits may be conducted. VHA will initiate administrative processes, when and where appropriate, to pursue disciplinary actions. 

There is a second type of OSC whistleblower reprisal complaint 

that is investigated by OSC pursuant to 5 U.S.C. § 1214. In these 

cases, OSC works with VA to coordinate document discovery and 

interview requests with VA employees. If OSC finds there is sufficient evidence to support an allegation of a prohibited personnel 

practice, VA works with OSC to develop a meaningful way to resolve the complaint, normally through a settlement agreement between the whistleblower and VA. If a resolution is not reached, 

OSC may seek remedial action by filing an appeal against the Department with the Merit Systems Protection Board. 

On June 23, 2014, OSC sent a letter regarding complaints about 

VA care across the country. In response to the OSC letter, Acting 

Secretary Gibson directed a comprehensive review of all aspects of 

the Office of Medical Inspector’s operation. The VA Medical Inspector, John Pierce, M.D., has retired. Acting Secretary Gibson has 

met with Special Counsel Carolyn Lerner and a number of other 

staff-level meetings have also occurred. VA intends to regularly 

meet with OSC officials. We welcome OSC’s insights, and we look 

forward to working closely with its staff to improve our process and 

culture regarding whistleblower complaints going forward. 

VA is committed to making the changes necessary to ensure that 

we, in conjunction with OSC and OIG, properly investigate all allegations. We also will not tolerate retaliation against any employee 

who raises a hand to identify a legitimate problem or suggest a solution. 

Conclusion 

Mr. Chairman, we will continue to depend on the service of VA 

employees and leaders who place the interests of Veterans above 

and beyond self-interest; who serve Veterans with dignity, compassion, and dedication; who live by VA’s core values of Integrity, 

Commitment, Advocacy, Respect, and Excellence; and who have the 

moral courage to help us serve Veterans better by helping make 

our policy and procedures better. I assure you that VA takes these 

issues very seriously and will do everything possible to ensure we 

cultivate an environment that empowers our employees and demands accountability in service to our Veterans. Mr. Chairman, 


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this concludes my testimony. My colleague and I are now prepared 

to answer your questions. f 

MATERIALS SUBMITTED FOR THE RECORD 

LETTER TO HON. MILLER FROM DVA, INSPECTOR GENERAL

Dear Mr. Chairman: 

I respectfully request that this letter be included in the record 

for the July 8, 2014, hearing before the Committee entitled, ‘‘VA 

Whistleblowers: Exposing Inadequate Service Provided to Veterans 

and Ensuring Appropriate Accountability.’’ At that hearing information was provided by two witnesses that was not accurate regarding the Office of Inspector General (OIG). 

a. Dr. Katherine Mitchell on Claimed Disclosures to the OIG—Dr. 

Mitchell testified that she submitted a confidential OIG complaint 

in September 2013 regarding life-threatening conditions at the 

Phoenix VA Health Care System and that approximately 10 days 

after the national VA received her report she was placed on administrative leave for a month. She further testified that she was disciplined for misconduct for providing confidential information 

through the OIG channels. Her testimony is inaccurate in regard 

to her interactions with the OIG. The OIG first received information relating to complaints by Dr. Mitchell in April 2014, and that 

information was provided by the Senate Committee on Veterans’ 

Affairs, not Dr. Mitchell. We determined through inquiries with 

relevant congressional and VA staff that Dr. Mitchell submitted 

her complaint to the office of Senator John McCain in September 

2013, and that Senator McClain’s office sent that information to 

the VA Congressional Liaison Service. VA’s Congressional Liaison 

Service assigned the correspondence to the Veterans Health Administration (VHA) and an investigative team from the Veterans 

Integrated Service Network 18 was tasked with conducting an investigation into her allegations. The OIG was not aware of and did 

not participate in any review or investigation conducted by VHA. 

Dr. Mitchell’s testimony implies that the OIG breached her confidentiality, which is simply untrue because she did not file a complaint with the OIG in September 2013. 

b. Dr. Mitchell on Providing Protected Information to the 

OIG—Dr. Mitchell further states in her written testimony that 

‘‘Disclosure of pertinent patient care information in support of 

whistle-blower activity through approved channels of VA oversight 

is not a patient privacy violation’’ and further states ‘‘Unfortunately, the Office of Inspector General has declined thus far to put 

that opinion in writing.’’ Her statement regarding the OIG is not 

accurate because Dr. Mitchell never asked the OIG to put such a 

statement in writing. While Dr. Mitchell may be unaware, the OIG 

has provided both written and verbal advice to complainants and 

other employees that they can legally provide protected information 

to the OIG. As recently as June 25, 2014, we addressed this issue 

in our response to a June 20, 2014, letter sent by the American 

Federation of Government Employees (AFGE) to Mr. William 

Gunn, former VA General Counsel. Copies of this response were 

sent to the Chairman and Ranking Members of the House and SenVerDate Aug 31 2005 12:13 Feb 11, 2015 Jkt 000000 PO 00000 Frm 00156 Fmt 6621 Sfmt 6602 Y:\89377.TXT PAT

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ate Committees on Veterans’ Affairs. A copy of the letter from 

AFGE and our response are attached. 

c. Dr. Mitchell on Publication of Reports Involving VA Senior Executives—Dr. Mitchell testified during the hearing regarding OIG 

policy for releasing reports on members of VA’s Senior Executives 

either on our Web site or through our Release of Information office. 

She also stated that neither she nor Senator McCain had been able 

to obtain a copy of an investigation. Similar testimony was provided by Dr. Christian Head. I can assure you that the OIG follows 

all applicable laws and rules regarding release of information in 

both forums. Reports dealing with allegations of misconduct by VA 

employees are posted on the OIG’s public Web site. All reports are 

identified on our Web site within 3 days of being issued as required 

by the Inspector General Act. Unless we have received a request 

under the Freedom of Information Act (FOIA), to comply with applicable confidential legal requirements, only the title of the report 

and other summary information are posted on our Web site. However once the requisite number of FOIA requests are received, a redacted report is posted on our Web site. To comply with FOIA and applicable case law, it is our practice 

to redact the names of employees and other individuals below the 

GS–15 level. When the issues in the report relate directly to an employee’s duties and responsibilities, applying the analysis required 

under FOIA, it is usually determined that the individual’s right to 

privacy is outweighed by the public’s right to know for employees 

at or above the GS–15 level. In those instances, the names are not 

redacted when the report is posted on the OIG website. In the last 

7 years, we have published on our website 33 reports of administrative investigations, of which 16 included substantiated allegations against one or more members of the Senior Executive Service 

whose names were fully disclosed in the reports. Dr. Mitchell’s testimony that neither she nor Senator McCain have been able to obtain a copy of a report relating to her complaint and that the OIG 

was stonewalling Senator McCain is also inaccurate because, as 

noted above, her complaint was not forwarded to the OIG. In addition, after listening to the testimony, we reviewed our files and 

have no record of any request by Dr. Mitchell or Senator McCain 

for a report or any other records relating to Dr. Mitchell. d. Dr. Mitchell on the OIG’s Phoenix Office—Dr. Mitchell also 

made comments during her testimony that the OIG staff assigned 

to the Phoenix area had a history of not conducting good investigations. The basis for her statement is not clear since she has not 

been involved in any of the investigations conducted by that office. 

The OIG’s only presence in Phoenix is an Office of Investigations 

Resident Agency office on the campus of the medical center staffed 

with four Criminal Investigators who are highly trained, competent, and objective. If Dr. Mitchell would have contacted them, 

they would have followed OIG procedures for reviewing a complaint 

and would have protected her confidentiality. It is not uncommon 

for VA employees in Phoenix to contact our onsite Criminal Investigators either in-person or by telephone when they have concerns. 

In the past 5 years, the work conducted by the Phoenix OIG office 

has resulted in 192 arrests, 108 administrative actions, and $9.4 


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million in monetary recoveries. These statistics refute the assertion 

that the OIG office in Phoenix does not conduct good investigations. 

e. Dr. Head on a Prior OIG Administrative Investigation—Dr. 

Head made comments in his testimony relating to his participation 

in an OIG administrative investigation that needs to be clarified. 

Dr. Head stated that he received a subpoena from the OIG to testify in a case, which is not correct. With the exception of the Department of Defense OIG, no Federal OIG has testimonial subpoena power. The subpoena authority granted to Inspectors General under the Inspector General Act is limited to records. When 

conducting an investigation, we notify VA employees that we want 

to conduct an interview with the expectation that they will appear 

for the interview as required by VA regulation. Although the regulation provides that the failure to cooperate with an official investigation may result in a disciplinary action, the VA OIG has no authority to propose or take such an action. The investigative report cited by Dr. Head, which was issued in 

March 2007, is identified on our website but as a restricted report. 

Information in the report, including the identity of the individuals 

who were the subjects of the investigation, is protected from disclosure under the Privacy Act. Without a FOIA request, we are prohibited by law from releasing the information in the report as it 

relates to individuals identified in the report. We have no record 

of a FOIA request by Dr. Head or anyone else for this report. Had 

we received a request, the report would have been reviewed for release under FOIA. Also, Dr. Head testified that medical center 

management did not follow the recommendations of the OIG to 

take a specific administrative action. As we have advised the Committee in the past, the OIG does not make recommendations to VA 

in our reports to take a specific administrative action because a 

concurrence by VA on the report would deprive the employee of his 

or her right to due process. The OIG takes seriously its mission to review allegations of poor 

quality of care and goes to great lengths to protect all sources of 

information who request confidentiality as required by the Inspector General Act. 

Thank you for your interest in the Department of Veterans Affairs. 

Sincerely, 

Richard J. Griffin, Acting Inspector General 

f 

LETTER TO AFGE FROM DVA, INSPECTOR GENERAL

Dear Mr. Borer: 

I am responding on behalf of Mr. Richard J. Griffin, the Acting 

Inspector General, to your June 13, 2014, letter to Mr. William 

Gunn, addressing the disclosure of medical information by whistleblowers to the Department of Veterans Affairs Office of Inspector 

General (VA OIG) and the Office of Special Counsel. Based on our 

review of the applicable laws, I believe that the VA OIG may be 

the only entity with the authority to investigate allegations relating to patient care to which VA employees can legally provide medical and other protected information and remain confidential. 


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Your letter primarily addresses issues relating to the disclosure 

of medical information protected under the Health Insurance Portability and Accountability Act (HIPAA). With regard to HIPAA, the 

implementing regulations specifically permit disclosures to ‘‘a 

health oversight agency for oversight activities authorized by law, 

including audits; civil, administrative, or criminal investigations; 

inspections. . . . ’’ 45 CFR Section 164.512 (d). Section 164.502 (G) 

addresses disclosures by workforce members and business associates who are whistleblowers. This section allows for disclosure if 

the individual: 

Believes in good faith that the covered entity has engaged in conduct that is unlawful or otherwise violates professional or clinical 

standards, or that the care, services, or conditions provided by the 

covered entity has engaged in conduct that is unlawful or otherwise 

violates professional or clinical standards, or that the care, services, or conditions provided by the covered entity potentially endangers one or more patients, workers, or the public. 

However, the disclosure must be made to a: 

Health oversight agency or public health authority authorized by 

law to investigate or otherwise oversee the relevant conduct or conditions of the covered entity or to an appropriate health care accreditation organization for the purpose of reporting the allegation 

of failure to meet professional standards or misconduct by the covered entity. . . . 

The VA OIG has been determined to be a health oversight agency for the purposes of these regulatory provisions. Therefore, any 

disclosure of HIPAA protected records would be authorized. 

However, in addition to HIPAA, there are other statutes that 

prohibit the disclosure of VA medical records. These statutes have 

associated criminal penalties for wrongful disclosure. In addition to 

the Privacy Act, 5 U.S.C. Section 552, other relevant statutes that 

can be found in Title 38 of the United States Code include: Section 

5701, which protects veterans claims records (including medical 

records), Section 5705, which protects medical quality assurance 

records, and Section 7732, which protects records relating to the diagnosis and treatment of drug and alcohol abuse, HIV, and sickle 

cell anemia. As discussed below, VA employees and contractors can 

provide these protected records or information obtained from these 

records to the VA OIG, without violating any of these statutes. 

The Inspector General Act specifically states that the Inspector 

General has access to all agency records. 5 U.S.C. App. Section 6. 

Neither HIPAA nor any of the statutes cited above prohibits the 

disclosure of medical records to the VA OIG. Accordingly, an employee can legally provide any VA record to the VA OIG. 

The Whistleblower Protection Act (WPA) prohibits officials from 

taking, threatening to take, or failing to take a personnel action 

with respect to any employee or applicant because of: ‘‘Any disclosure to the Special Counsel or the Inspector General of an agency. 

. . . ’’ 5 U.S.C. Section 2302 (b)(8)(B). This subsection of the WPA 

does not include any restrictions on the nature of the information 

provided to the Inspector General or the Special Counsel. In contrast, the statute states that disclosures to other entities are only 

protected if the ‘‘disclosure is not specifically prohibited by law and 

if such information is not specifically required by Executive Order 


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to be kept secret. . . . ’’ 5 U.S.C. Section 2302 (b)(8)(A). This section 

also makes it a prohibited personnel practice to take, threaten to 

take, or fail to take any personnel action against any employee for 

‘‘cooperating with or disclosing information to the Inspector General of an agency or the Special Counsel in accordance with the applicable provisions of law.’’ 5 U.S.C. Section 2302 (b)(8)(C). This 

last provision not only protects employees who file a complaint 

with the VA OIG, it also protects employees who cooperate with a 

VA OIG investigation, audit, or other review and who provide information to us during those reviews. 

We understand that employees are reluctant to make disclosures 

for fear of retaliation. The Inspector General Act also mandates 

that the VA OIG maintain the confidentiality of employees and others who file a complaint or otherwise bring information to our attention. 5 U.S.C. App. Sections 7 and 8L. When employees contact 

the VA OIG Hotline they are advised of their right to remain confidential or be anonymous and, if they choose to waive these rights, 

are asked to do so in writing. 

As noted above, the VA OIG has the authority to investigate allegations of wrongdoing in the VA. While, like the VA OIG, the Office of Special Counsel’s (OSC) Disclosure Unit has the authority 

to receive allegations of violations of law, rule, or regulation or 

gross mismanagement of funds, an abuse of authority, or a substantial and specific danger to public health or safety, OSC has no 

authority to investigate these claims. If after reviewing the information OSC determines that an investigation is warranted, OSC is 

required to transmit the information to the appropriate agency 

head for investigation. 5 U.S.C. Section 1213. Although OSC will 

not identify the complainant if confidentiality is requested, this 

may impact the agency’s ability to conduct a thorough and comprehensive investigation of the issues. 

As you note in your letter, our reports may state that an allegation cannot be substantiated. In some cases this is because we obtained and reviewed additional information that refutes an allegation. In other cases, this is because the complainant has not provided sufficient information on which to base an investigation. 

When an employee submits a complaint to the VA OIG and requests confidentiality, we contact that individual to obtain any additional information he or she may have regarding their complaint, 

which may include records that the employee may not have identified or submitted due to concerns about the confidentiality of the 

records. This allows the VA OIG to conduct a more thorough and 

complete investigation without disclosing the identity of the source 

of the information than may be possible if the complainant is anonymous or the matter is referred to the VA OIG through a third 

party and the identity of the complainant is unknown. 

I hope this addresses your concerns about the legal implications 

relating to the disclosure of protected information to the VA OIG. 

Sincerely, 

MAUREEN REGAN, Counselor to the Inspector General 


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The Honorable Sloan Gibson, Acting Secretary, Department of 

Veterans Affairs; The Honorable Carolyn Lerner, Office of Special 

Counsel 

The Honorable Bernie Sanders, U.S. Senate, Chair, Committee 

on Veterans’ Affairs; The Honorable Jeff Miller, Chair, House Veterans’ Affairs Committee 

The Honorable Michael Michaud, Ranking Member, House Veterans’ Affairs Committee; The Honorable Richard Burr, Ranking 

Member, U.S. Senate, Committee on Veterans’ Affairs 

The Honorable Rob Nabors, White House Deputy Chief of Staff; 

The Honorable W. Neil Eggleston, White House Counsel 

The Honorable Sylvia Mathews Burwell, Secretary of Health and 

Human Services; The Honorable Eric H. Holder, Jr., Attorney General 

Mr. J. David Cox, Sr., National President AFGE, Ms. Alma Lee, 

Council President, NVAC 

f 

LETTER TO PRESIDENT OBAMA FROM HON. CAROLYN LERNER

Dear Mr. President: 

I am providing you with the U.S. Office of Special Counsel’s 

(OSC) findings on whistleblower disclosures from employees at the 

Veterans Affairs Medical Center in Jackson, Mississippi (Jackson 

VAMC). The Jackson VAMC cases are part of a troubling pattern 

of responses by the Department of Veterans Affairs (VA) to similar 

disclosures from whistleblowers at VA medical centers across the 

country. The recent revelations from Phoenix are the latest and 

most serious in the years-long pattern of disclosures from VA whistleblowers and their struggle to overcome a culture of non-responsiveness. Too frequently, the VA has failed to use information from 

whistleblowers to identify and address systemic concerns that impact patient care. 

As the VA re-evaluates patient care practices, I recommend that 

the Department’s new leadership also review its process for responding to OSC whistleblower cases. In that regard, I am encouraged by the recent statements from Acting Secretary Sloan Gibson, 

who recognized the significant contributions whistleblowers make 

to improving quality of care for veterans. My specific concerns and 

recommendations are detailed below. 

Jackson VAMC 

In a letter dated September 17, 2013, I informed you about numerous disclosures regarding patient care at the Jackson VAMC 

made by Dr. Phyllis Hollenbeck, Dr. Charles Sherwood, and five 

other whistleblowers at that facility. The VA substantiated these 

disclosures, which included improper credentialing of providers, inadequate review of radiology images, unlawful prescriptions for 

narcotics, noncompliant pharmacy equipment used to compound 

chemotherapy drugs, and unsterile medical equipment. In addition, 

a persistent patient-care concern involved chronic staffing shortages in the Primary Care Unit. In an attempt to work around this 

issue, the facility developed ‘‘ghost clinics.’’ In these clinics, veterans were scheduled for appointments in clinics with no assigned 


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provider, resulting in excessive wait times and veterans leaving the 

facility without receiving treatment. 

Despite confirming the problems in each of these (and other) patient-care areas, the VA refused to acknowledge any impact on the 

health and safety of veterans seeking care at the Jackson VAMC. 

In my September 17, 2013 letter, I concluded: 

‘‘[T]he Department of Veterans Affairs (VA) has consistently 

failed to take responsibility for identified problems. Even in cases 

of substantiated misconduct, including acknowledged violations of 

state and federal law, the VA routinely suggests that the problems 

do not affect patient care.’’ 

A detailed analysis of Dr. Hollenbeck’s and Dr. Sherwood’s disclosures regarding patient care at the Jackson VAMC is enclosed with 

this letter. I have also enclosed a copy of the agency reports and 

the whistleblowers’ comments. 

Ongoing Deficiencies in VA Responses to Whistleblower 

Disclosures 

OSC continues to receive a significant number of whistleblower 

disclosures from employees at VA facilities throughout the country. 

We currently have over 50 pending cases, all of which allege 

threats to patient health or safety. I have referred 29 of these cases 

to the VA for investigation. This represents over a quarter of all 

cases referred by OSC for investigation government-wide. 

I remain concerned about the Department’s willingness to acknowledge and address the impact these problems may have on the 

health and safety of veterans. The VA, and particularly the VA’s 

Office of the Medical Inspector (OMI), has consistently used a 

‘‘harmless error’’ defense, where the Department acknowledges 

problems but claims patient care is unaffected. This approach has 

prevented the VA from acknowledging the severity of systemic 

problems and from taking the necessary steps to provide quality 

care to veterans. As a result, veterans’ health and safety has been 

unnecessarily put at risk. Two recent cases illustrate the negative 

consequences of this approach. 

First, in response to a disclosure from a VA employee in Fort 

Collins, CO, OSC received an OMI report confirming severe scheduling and wait time problems at that facility. The report confirmed 

multiple violations of VA policies, including the following: 

• A shortage of providers caused the facility to frequently cancel appointments 

for veterans. After cancellations, providers did not conduct required follow-up, 

resulting in situations where ‘‘routine primary care needs were not addressed.’’ 

• The facility ‘‘blind scheduled’’ veterans whose appointments were canceled, 

meaning veterans were not consulted when rescheduling the appointment. If a 

veteran subsequently called to change the blind-scheduled appointment date, 

schedulers were instructed to record the appointment as canceled at the patient’s request. This had the effect of deleting the initial ‘‘desired date’’ for the 

appointment, so records would no longer indicate that the initial appointment 

was actually canceled by the facility. 

• At the time of the OMI report, nearly 3,000 veterans were unable to reschedule canceled appointments, and one nurse practitioner alone had a total of 975 

patients who were unable to reschedule appointments. 

• Staff were instructed to alter wait times to make the waiting periods look 

shorter. 

• Schedulers were placed on a ‘‘bad boy’’ list if their scheduled appointments 

were greater than 14 days from the recorded ‘‘desired dates’’ for veterans. 


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In addition, OSC is currently investigating reprisal allegations 

by two schedulers who were reportedly removed from their positions at Fort Collins and reassigned to Cheyenne, WY, for not complying with the instructions to ‘‘zero out’’ wait times. After these 

employees were replaced, the officially recorded wait times for appointments drastically ‘‘improved,’’ even though the wait times 

were actually much longer than the officially recorded data. 

Despite these detailed findings, the OMI report concluded, ‘‘Due 

to the lack of specific cases for evaluation, OMI could not substantiate that the failure to properly train staff resulted in a danger to 

public health and safety.’’ This conclusion is not only unsupportable 

on its own, but is also inconsistent with reports by other VA components examining similar patient-care issues. For example, the 

VA Office of Inspector General recently confirmed that delays in 

access to patient care for 1,700 veterans at the Phoenix Medical 

Center ‘‘negatively impacted the quality of care at the facility.’’ 

In a second case, a VA psychiatrist disclosed serious concerns 

about patient neglect in a long-term mental health care facility in 

Brockton, MA. The OMI report substantiated allegations about severe threats to the health and safety of veterans, including the following: 

A veteran with a 100 percent service-connected psychiatric condition was a resident of the facility from 2005 to 2013. In that time, 

he had only one psychiatric note written in his medical chart, in 

2012, when he was first examined by the whistleblower, more than 

seven years after he was admitted. The note addressed treatment 

recommendations. 

A second veteran was admitted to the facility in 2003, with significant and chronic mental health issues. Yet, his first comprehensive psychiatric evaluation did not occur until 2011, more than 

eight years after he was admitted, when he was assessed by the 

whistleblower. No medication assessments or modifications occurred until the 2011 consultation. 

Despite these findings, OMI failed to acknowledge that the confirmed neglect of residents at the facility had any impact on patient 

care. Given the lack of accountability demonstrated in the first 

OMI report, OSC requested a follow-up report. The second report 

did not depart from the VA’s typical ‘‘harmless error’’ approach, 

concluding: ‘‘OMI feels that in some areas [the veterans’] care could 

have been better but OMI does not feel that their patient’s rights 

were violated.’’ Such statements are a serious disservice to the veterans who received inadequate patient care for years after being 

admitted to VA facilities. 

Unfortunately, these are not isolated examples. Rather, these 

cases are part of a troubling pattern of deficient patient care at VA 

facilities nationwide, and the continued resistance by the VA, and 

OMI in most cases, to recognize and address the impact on the 

health and safety of veterans. The following additional examples illustrate this trend: 

• In Montgomery, AL, OMI confirmed a whistleblower’s allegations that a 

pulmonologist copied prior provider notes to represent current readings in over 

1,200 patient records, likely resulting in inaccurate patient health information 

being recorded. OMI stated that it could not substantiate whether this activity 

endangered patient health. 


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• In Grand Junction, CO, OMI substantiated a whistleblower’s concerns that 

the facility’s drinking water had elevated levels of Legionella bacteria, and 

standard maintenance and cleaning procedures required to prevent bacterial 

growth were not performed. After identifying no ‘‘clinical consequences’’ resulting from the unsafe conditions for veterans, OMI determined there was no substantial and specific danger to public health and safety. 

• In Ann Arbor, MI, a whistleblower alleged that employees were practicing unsafe and unsanitary work practices and that untrained employees were improperly handling surgical instruments and supplies. As a result, OMI partially substantiated the allegations and made 12 recommendations. Yet, the whistleblower informed OSC that it was not clear whether the implementation of the 

corrective actions resulted in better or safer practices in the sterilization and 

processing division. OMI failed to address the whistleblower’s specific continuing concerns in a supplemental report. 

• In Buffalo, NY, OMI substantiated a whistleblower’s allegation that health 

care professionals do not always comply with VA sterilization standards for 

wearing personal protective equipment, and that these workers occasionally 

failed to place indicator strips in surgical trays and mislabeled sterile instruments. OMI did not believe that the confirmed allegations affected patient safety. 

• In Little Rock, AR, OMI substantiated a whistleblower’s allegations regarding 

patient care, including one incident when suction equipment was unavailable 

when it was needed to treat a veteran who later died. OMI’s report found that 

there was not enough evidence to sustain the allegation that the lack of available equipment caused the patient’s death. After reviewing the actions of the 

medical staff prior to the incident, OMI concluded that the medical care provided to the patient met the standard of care. 

• In Harlingen, TX, the VA Deputy Under Secretary for Health confirmed a 

whistleblower’s allegations that the facility did not comply with rules on the 

credentialing and privileging of surgeons. The VA also found that the facility 

was not paying fee-basis physicians in a timely manner, resulting in some physicians refusing to care for VA patients. The VA, however, found that there was 

no substantial and specific danger to public health and safety resulting from 

these violations. 

• In San Juan, PR, the VA’s Office of Geriatrics and Extended Care Operations 

substantiated a whistleblower’s allegations that nursing staff neglected elderly 

residents by failing to assist with essential daily activities, such as bathing, eating, and drinking. OSC sought clarification after the VA’s initial report denied 

that the confirmed conduct constituted a substantial and specific danger to public health. In response, the VA relented and revised the report to state that the 

substantiated allegations posed significant and serious health issues for the 

residents. 

Next Steps 

The goal of any effective whistleblower system is to encourage 

disclosures, identify and examine problem areas, and find effective 

solutions to correct and prevent identified problems from recurring. 

Acting Secretary Gibson recognized as much in a June 13, 2014, 

statement to all VA employees. He specifically noted, ‘‘Relatively 

simple issues that front-line staff may be aware of can grow into 

significantly larger problems if left unresolved.’’ I applaud Acting 

Secretary Gibson for recognizing the importance of whistleblower 

disclosures to improving the effectiveness and quality of health 

care for our veterans and for his commitment to identifying problems early in order to find comprehensive solutions. 

Moving forward, I recommend that the VA designate a high-level 

official to assess the conclusions and the proposed corrective actions in OSC reports, including disciplinary actions, and determine 

if the substantiated concerns indicate broader or systemic problems 

requiring attention. My staff and I look forward to working closely 

with VA leadership to ensure that our veterans receive the quality 

health care services they deserve. 


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As required by 5 U.S.C. § 1213(e)(3), I have sent copies of the 

agency reports and whistleblowers’ comments to the Chairmen and 

Ranking Members of the Senate and House Committees on Veterans’ Affairs. I have also filed copies of the redacted reports and 

the whistleblowers’ comments in OSC’s public file, which is available online at www.osc.gov. 

Respectfully, 

Carolyn N. Lerner, President 

Æ 


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