United States General Accounting Office

GAO Testimony

Before the Subcommittee on Oversight and Investigations

Committee on Veterans’ Affairs

House of Representatives

For Release on

Delivery Expected

at 9:30 a.m., EDT

Thursday

May 14, 1998

INSPECTORS GENERAL

Veterans Affairs Special

Inquiry Report Was

Misleading

Statement of Eljay B. Bowron

Assistant Comptroller General for Special Investigations

Office of Special Investigations

GAO/T-OSI-98-12

Inspectors General: VA OIG Special Inquiry

Was Misleading

Mr. Chairman and Members of the Subcommittee:

Thank you for inviting me here today to discuss the results of our review

of the Special Inquiry conducted by the Department of Veterans Affairs

(VA) Office of Inspector General (OIG) and its resulting report entitled

Special Inquiry: Alleged Cover-up of an Unexplained Increase in Deaths,

Harry S. Truman Memorial VA Medical Center, Columbia, Missouri.

1

Our review focused on how the VA OIG planned, conducted, and reported

the results of its inquiry. In its Special Inquiry report,2

 the OIG analyzed

and criticized VA management’s response to the deaths, calling the top

management team “dysfunctional.” It concluded that management’s

actions could be attributed to bad judgment and found no conclusive proof

of an intentional cover-up and no evidence of criminal conduct by top

managers.

From our examination and analysis of the evidence in the OIG files and

from interviews with individuals having knowledge of the events, we

conclude the following:

• The VA OIG conducted the Special Inquiry as a management review to

determine how Hospital and VA Central Region management had

responded to “an ’out of norm’ situation” regarding the unexplained

deaths. We determined that the OIG did not collect or analyze evidence in

a manner that would identify intentional cover-up efforts. Thus, the

Special Inquiry’s conclusion that no evidence of an intentional cover-up

had been found was not consistent with the inquiry conducted and was

misleading.

• The OIG failed to comply with its own reporting policies on completeness

and accuracy by presenting statements in its report that were not

supported by the evidence contained in the OIG’s files. These statements

included, for example, reference to a discussion that the Special Inquiry

never verified.

• The OIG attributed the nearly 2-year delay in acting on the cover-up

allegations received in February 1993 to administrative error.

1

See also Inspectors General: Veterans Affairs Special Inquiry Report Was Misleading (GAO/OSI-98-9,

May 13, 1998).

2

In February 1993, the OIG received specific allegations that the Hospital Director and the VA Central

Region Chief of Staff had attempted to cover up the unexplained increase in patient deaths, including

by not referring the matter to law enforcement authorities. In January 1995, the OIG initiated an

administrative investigation (known as a Special Inquiry) after the complainant notified the media of

allegations of a cover-up and an additional allegation.

Page 1 GAO/T-OSI-98-12
Inspectors General: VA OIG Special Inquiry

Was Misleading

• The confidentiality of the staff physician who had made the allegations of

a cover-up was breached by the OIG on at least three occasions.

• Current OIG policies and procedures on confidentiality are adequate.

Special Inquiry

Report’s Conclusion

Regarding Alleged

Cover-Up Is

Misleading

The title and text of the Special Inquiry report suggests that allegations of

a cover-up on the part of the Hospital Director and the Central Region

Chief of Staff had been investigated. We determined that the OIG did not

plan or conduct its review or analysis in a way that could determine if a

cover-up had occurred. Had the OIG conducted such a review, its efforts

and documentation would have included linking individual pieces of

evidence that together would suggest additional lines of

inquiry—including elements of a cover-up. Further, both the lead analyst

who conducted the review and the Assistant IG who wrote the final report

told us that the issue of cover-up was “off the table” because, in their view,

their “charge” from OIG management did not include looking at cover-up

allegations.

The lead analyst completed the interviews and field work and wrote a

draft report entitled Special Inquiry: Management Response to

Unexplained Patient Deaths, Harry S. Truman VA Medical Center,

Columbia, Missouri. The body of that draft report made no reference to

allegations of a cover-up by the Hospital Director and Central Region Chief

of Staff. In the draft report, only one issue was addressed—whether

management officials complied with VA and Hospital policies when

responding to the revelation of the unexplained deaths.

According to the Assistant IG who prepared the final report, he neither

reviewed the underlying evidence while preparing the final report nor

reconciled the stated facts in the report with the underlying evidence prior

to issuing the report. He stated that in writing the final Special Inquiry

report, he changed the original title to Special Inquiry: Alleged Cover-up of

an Unexplained Increase in Deaths, Harry S. Truman Memorial VA Medical

Center, Columbia, Missouri and edited the report in an attempt to tie the

text to the complainant’s allegations. Although the Assistant IG stated that

there was no intent to mislead, the report title and two of the report’s

three major sections—“Alleged Cover-up by Medical Center and Central

Region Officials Subsequent to the Criminal Investigation” and “Alleged

Cover-up by the Office of Inspector General”—specifically refer to the

cover-up allegations. The Assistant IG characterized this as wordsmithing.

He concluded that in hindsight he probably should not have changed the

title and that the report probably overstated its case concerning “no

Page 2 GAO/T-OSI-98-12
Inspectors General: VA OIG Special Inquiry

Was Misleading

evidence of a cover-up,” as the OIG did not investigate the cover-up

allegations. Therefore, the Special Inquiry’s conclusion was not supported

by work done and evidence collected and is misleading.

The then IG told us that he had intended for the Special Inquiry to

investigate allegations of a cover-up and that, based on his reading of the

report, it appeared that it had. He added that if the review did not include

an investigation of the cover-up allegations, he believes that the report, as

written, is misleading.

Review Planned and

Executed From a

Management

Perspective

We determined that the OIG did not plan or conduct its Special Inquiry in a

manner to determine if improper acts pertaining to cover-up had occurred.

The Assistant IG directly responsible for the inquiry stated that when he

prepared the report, he examined components of the complainant’s

allegation separately, rather than linking or relating the information

gathered. He added that had the inquiry included investigation of a crime,

it would have been appropriate to show whether a pattern of conduct

existed. One method of establishing such a pattern, as required by the

OIG’s Policy and Procedure Guide for special inquiries, is to create a

chronology of events and actions. The OIG did not do this.

Frequently a single act taken by itself is not sufficient to establish that the

act was done willfully and intentionally with improper purpose. However,

a series of acts considered collectively may suggest a pattern of conduct

indicative of intentional impropriety rather than accident or error. If

certain actions by the Hospital Director had been linked or followed up on,

the need for further investigation and additional lines of inquiry would

have been apparent. For example, the Hospital Director (1) did not inform

law enforcement authorities about the unexplained deaths although

District Counsel advised him to do so; (2) did not inform the OIG that a

staff physician had accused the nurse in question of killing his patients;

and (3) did not provide the Peer Review Board with the statistical analysis

that established a relationship between a nurse and the unexplained

patient deaths. Also, the Hospital Director instructed the staff physician

who had prepared the statistical analysis to have no further contact with

the Federal Bureau of Investigation (FBI). The OIG did not pursue or

connect these events.

Based on our review of relevant memorandums and tape recordings of

interviews, we determined that the analysts questioned the Hospital

Director and the Central Region Chief of Staff about compliance with VA

Page 3 GAO/T-OSI-98-12
Inspectors General: VA OIG Special Inquiry

Was Misleading

policy. The analysts told us that they accepted “I don’t know” answers

instead of asking follow-up questions. For example, the analysts accepted,

without probing further, the Hospital Director’s response that he did not

recall the District Counsel’s advice in August 1992 that he notify the FBI or

OIG about the unexplained deaths. At a minimum, the analysts should

have provided the Hospital Director available information to refresh his

recollection.

OIG Noncompliance

With Policies, Report

Inaccuracies, and

Unsupported

Statements

The OIG failed to follow its own policies concerning the completeness and

accuracy of its report.3

 Specifically, statements in the report purported to

be factual were inconsistent with or unsupported by the evidence in the

OIG’s files. The following three instances are examples of such statements.

• The report states that the Hospital Director followed the VA Central

Region Chief of Staff’s advice and did not inform law enforcement

authorities of the suspicious deaths and the possible relationship of a

particular nurse to the deaths. Our review of memorandums of interview

and transcripts of recorded interviews found insufficient documentation

to support the OIG report’s conclusion that the Central Region Chief of

Staff had told the Hospital Director not to report the issue to law

enforcement authorities.

• The report states that the Central Region Chief of Staff and the Hospital

Director withheld the complainant’s statistical analysis—which identified

a statistical relationship between the increase in patient deaths and a

particular nurse—from the Hospital Peer Review Board so as to allow the

Board to look at patient deaths objectively. However, documentation

shows that the Central Region Chief of Staff told the OIG that he had never

issued instructions to deny the Peer Review Board access to the statistical

analysis. The Hospital Director told the OIG that he recalled no one asking

to see the statistical data and it did not occur to him to provide the Peer

Review Board with the data.

• In a March 1994 letter, the Hospital Director instructed the complainant,

“You should . . . refrain from further contacts with the FBI and OIG about

this case. If you are contacted directly by either the FBI or OIG you should

inform me of the content of your discussion.” The Special Inquiry report

rightly states that the Hospital Director could not keep the complainant

3

The Quality Standards for Investigations established by the President’s Council on Integrity and

Efficiency are guidelines applicable to all types of federal investigative efforts. The VA OIG has

adopted these standards and incorporated them into the standards in its policy and procedure guide.

VA OIG reporting policy states, in part, “Reports must cover all relevant aspects of the investigation

(complete); [and] correctly and succinctly describe the facts uncovered and the evidence obtained

(accurate). . . .”

Page 4 GAO/T-OSI-98-12
Inspectors General: VA OIG Special Inquiry

Was Misleading

from talking with the FBI and the OIG and noted that the complainant was

under no obligation to report those conversations to the Hospital Director.

However, the report concludes that the Hospital Director’s action did not

limit the OIG or the FBI in obtaining appropriate information from the

complainant or other Hospital employees. We found no evidence in the

documentation of any investigative effort to support this conclusion. At a

minimum, one would expect to find documentation that the OIG had

talked to the complainant and the cognizant FBI and OIG criminal

investigators before arriving at such a conclusion.

VA OIG Officials Did

Not Address the

Complainant’s

Cover-Up Allegations

for Nearly 2 Years

As reflected in the Special Inquiry report, the OIG received the

complainant’s allegations of a cover-up of patient deaths in February 1993,

acknowledged its receipt to the complainant, and filed the complainant’s

letter without investigating the allegations. The Assistant IG for

Investigations told us that at the time the OIG received the allegations the

criminal investigation with the FBI was ongoing,4

 and available resources

were being devoted to that investigation. The OIG did not begin its Special

Inquiry until after the complainant had discussed the allegations with the

media in January 1995.5

 The OIG’s Special Inquiry report issued in

September 1995 attributed the delay to administrative error. Further, the

Assistant IG for Investigations characterized the OIG’s failure to follow up

on the allegations as a failure of its process.

VA OIG Breached

Complainant’s

Confidentiality

When the complainant sent his allegation letter to the OIG in

February 1993, he requested confidentiality.6

 In the Special Inquiry report,

the OIG acknowledged that it had twice released the name of the

complainant and that it should have been more careful in protecting the

4

In October 1992, the FBI and the VA OIG initiated a joint investigation into a possible crime on a

government reservation. They soon learned, however, that the Truman Memorial Veterans Hospital is

one of the approximately 20 “proprietary” VA hospitals and is not a federal reservation. The FBI and

the OIG then began a civil rights investigation immediately after the Department of Justice determined

that they could properly investigate the matter as a civil rights case. The focus of the investigation—to

determine whether a crime (homicide) had occurred at the Hospital and, if so, who was

responsible—never changed.

The FBI made a February 2, 1998, report to the Congress on its investigative results regarding the 1992

suspicious deaths at the Hospital. The FBI concluded that, after extensive investigation, the federal

statute of limitations had expired without a determination that a crime had, in fact, been committed.

5

On January 10, 1995, a newspaper identified the complainant as the source of cover-up allegations and

an additional allegation.

6

Section 7(b) of the Inspector General Act of 1978, 5 U.S.C., App. 3, provides that “[t]he Inspector

General shall not, after receipt of a complaint or information from an employee, disclose the identity

of the employee without the consent of the employee, unless the Inspector General determines such

disclosure is unavoidable during the course of the investigation.”

Page 5 GAO/T-OSI-98-12
Inspectors General: VA OIG Special Inquiry

Was Misleading

complainant’s confidentiality. We found yet a third instance in which the

complainant’s contact was provided to Hospital management.

• In one instance, the OIG Office of Investigations received documents from

the FBI that had been prepared by the complainant. In turn, the Office of

Investigations passed the information to the District Counsel, who

forwarded it to the Central Region and the Hospital Director, one of the

subjects of the allegations. The Special Inquiry report characterized this

incident as an error.

• In another instance, in March 1994, the Assistant IG for Healthcare

Inspections gave Central Region officials a report of contact that they had

had with the complainant. In the Special Inquiry report, the OIG said that

(1) in this instance, the OIG had an obligation not to release the

complainant’s identity to other VA officials without the complainant’s

consent and (2) controls to prevent such release were not properly

applied. The report characterized the release of the information as an

honest mistake.

• We found a third instance in which the complainant’s contact with the OIG

was provided to Hospital management, but the Special Inquiry report did

not identify this incident. On January 11, 1995, the Hospital Total Quality

Improvement (TQI) Coordinator asked the Assistant IG for Healthcare

Inspections (1) if the complainant had had recent contact with the OIG

and (2) if the OIG planned to investigate the complainant’s

obstruction-of-justice allegation. The Assistant IG acknowledged recent

contact with the complainant and stated that the OIG would not

investigate unless forced to do so. That same day, the Hospital Chief of

Human Resources and the Associate Director had the TQI Coordinator

contact the FBI and the Kansas City OIG to determine if they had recently

been in contact with the complainant. In contrast with the Assistant IG’s

previously discussed answer acknowledging contact with the complainant,

the Kansas City OIG advised that it would have to consult with OIG

Counsel prior to any discussions concerning the complainant. The Kansas

City OIG later contacted the TQI Coordinator and stated that OIG Counsel

had advised that it could not respond to the Hospital’s inquiry. The

Hospital Chief of Human Resources7

 told us he was not sure why he and

the Associate Director had the TQI Coordinator make inquiries concerning

contact with the complainant but thought it concerned a March 9, 1994,

letter from the Hospital Director advising the complainant not to have any

contact with the FBI or the OIG.

7

The Chief of Human Resources at the Hospital is the son of the Hospital Director, one of the subjects

of the allegations.

Page 6 GAO/T-OSI-98-12
Inspectors General: VA OIG Special Inquiry

Was Misleading

Revised Policies and

Procedures

Our review of the August 1995 revision of the OIG Policy and Procedure

Guide, Part I, Chapter 12 Hotline, indicates that the OIG’s policies and

procedures concerning Protection of Complainants (Section 5) mirror

other hotline policies and procedures in federal agencies. Consistent

adherence to and ongoing awareness of these policies by OIG personnel

should result in effective protection of complainants.

Scope and

Methodology

We conducted our investigation from April 1997 to March 1998 at the VA

OIG headquarters in Washington, D.C., and the Harry S Truman Memorial

Veterans Hospital in Columbia, Missouri. Initially, we reviewed the draft

and final OIG Special Inquiry reports and related files and workpapers. We

interviewed both current and former OIG officials and Hospital personnel

involved with the review of the suspicious deaths. We also reviewed (1) all

congressional testimony and related documents, (2) the OIG Investigative

Policy and Procedure Guide, and (3) all transcripts and tapes of the

recorded interviews conducted during the Special Inquiry. We transcribed

all tapes that had not been transcribed by the OIG. We reviewed available

files at the Hospital and documentation provided by individuals

interviewed. In conducting our review, we also assessed the OIG’s policies

and procedures concerning confidentiality.

Mr. Chairman, this concludes my prepared statement. I would be happy to

respond to any questions that you or Members of the Subcommittee may

have.

(600472) Page 7 GAO/T-OSI-98-12
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