Legal Meets Practical

by Sarah Schauerte*

It’s official. The Secretary of the Department of Veterans Affairs (“VA”), Eric Shinseki, resigned today amidst the VA health care scandal. This followed a face-to-face meeting with President Obama about mounting evidence of widespread misconduct and mismanagement at the VA’s vast network of medical facilities.

Shinseki had said for weeks that he wanted to stay in his job to confront accusations that officials at the department’s hospitals had manipulated waiting lists to cover up long delays in scheduling appointments for thousands of veterans. In a recent testimony before Congress, Shinseki also discussed taking action to address the misconduct once a pending report on the wait times and scheduling practices at the Phoenix Health Care System by the VA’s Office of Inspector General (“VA OIG”) was received.

In a speech last Friday morning to the National Coalition for Homeless Veterans, Shinseki apologized and described his agency as having “a systemic, totally unacceptable lack of integrity.” He vowed to fix what he called a “breach of integrity” and said he had already initiated the firing of top managers at the VA medical center in Phoenix, where allegations of mismanagement first surfaced.

Then, however, came the interim report by the VA OIG (the “Report”).

The report notes that since 2005, the VA OIG has issued 18 reports that identified, at both the national and local levels, deficiencies in scheduling resulting in lengthy waiting times and the negative impact on patient care.

The full Report can be accessed here. It identified serious conditions at the Phoenix healthcare center under investigation, to include a gross understatement of the times patients waited for healthcare. As noted by the Report: “A direct consequence of not appropriately placing veterans on EWLs is that the Phoenix HCS leadership significantly understated the time new patients waited for their primary care appointment in their FY 2013 performance appraisal accomplishments, which is one of the factors considered for awards and salary increases.”

So what does that mean? It means that veterans who desperately needed health care were not receiving it. And because this was not recorded by those entrusted to manage these veterans’ health, they waited in suffering while leadership at Phoenix received bonuses and raises for their performance.

The VA OIG also found multiple scheduling instances that were not in compliance with national policy. These are likely the basis of the allegations of “secret wait lists.”

When it came to Shinseki, the Report was the straw that broke the camel’s back. It increased the pressure on him to step down, especially after some Senate Democrats broke with others in the party to demand his removal.

Mr. Walsh, the Montana senator, said that the report “confirms the worst of the allegations against the VA” and that “it’s time to put the partisanship aside and focus on what’s right for our veterans.”

So this is where we are. A report confirming our gravest concerns, a deposed Secretary, and full-time coverage by CNN.

When the dust settles, what will be done?

Access my prior blogs on the issues at the Phoenix and San Antonio health care centers. And if you found this article informative, please sign up for my legal blog on veterans issues at https://legalmeetspractical.com. Remember to click the link sent to your email to activate your subscription!

*Sarah Schauerte is an attorney and veterans advocate. Her practice is primarily dedicated to helping veteran-owned small businesses grow, as well as to promote awareness of issues affecting the well being of our nation’s veterans.

I was emailing back and forth with one of my veteran friends over the weekend, and he commented about “keeping in mind the true meaning of Memorial Day, kind of like the true meaning of Christmas.” How right he is, and how worth dedicating this week’s blog to the notion.

Everyone knows what Memorial Day is for – to remember the members of our armed forces who have died while serving our country. Because I lived in Washington, D.C. for the last five years, I was constantly aware of their sacrifice because the national monuments were close by. Now that I live in Georgia, I’m commemorating the day by attending an event hosted by the American Legion in Roswell, Georgia.

I’m keeping this blog short because you shouldn’t spend your time reading my words today. You should spend your time watching the video I am including, because it is powerful and will impress upon anyone who views it the meaning of Memorial Day.

This is a video of the changing of the guard at the Tomb of the Unknown Soldier in Arlington Cemetery. The Tomb is there to honor those who died without a grave marker, but with honor and our nation’s indebtedness. I used to visit the Tomb once a year, but now that I have moved, I’ll have to settle for this video and for memories.

The video doesn’t capture everything. If you visit D.C., I ask that you visit the Tomb to experience the changing of the guard firsthand. Walk the long, winding asphalt road to the Plaza, and see how the pansies dotting the ground bloom year-round. Read the words carved into the white marble side of the enormous tomb: “HERE RESTS IN/HONORED GLORY/AN AMERICAN/SOLDIER/KNOWN BUT TO GOD.” It’s an experience that stays with you.

I’ll leave the rest to you to watch, and to remember. And for those of you who serve or have served our country – thank you.

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Last Thursday, the Secretary of the Department of Veterans Affairs (VA), Eric Shinseki, testified before the Senate Veterans Affairs Committee to address the recent scandals within the VA health care system.

This hearing was highly anticipated by the public. As CNN and other news stations have lamented, Shinseki is an elusive fellow to interview about – well, anything.

So how was the hearing? Did Shinseki convince us that he shouldn’t resign, as the American Legion and others have called for him to do? (This is the first time in 30 years that the American Legion has called for the VA Secretary to resign).

To be perfectly honest, prior to the hearing I had no solidified opinion regarding whether Shinseki should resign.

Obviously (as I have a working brain and conscience), I think it’s figuratively (and in some cases, literally) criminal how our veterans are being treated. At the same time, I acknowledge that someone at the absolute top like Shinseki isn’t responsible for everything. How is he supposed to prevent fudging the numbers at an individual health care center? Or a single Regional Office from having a particularly high error rate in resolving disability claims?

And while Shinseki might dodge CNN interviews or give general answers to burning questions, that might not be his choice.

Now I’m inclined to side with the American Legion. Even though Shinseki testified (absolutely stone-faced) that he is “mad as hell” about the VA’s shenanigans, I didn’t get the sense from his testimony that change will come with him at the helm. Instead, we’ll get reports and memos.

Here why the testimony convinced me of this:

First, on a basic level, Shinseki’s common answer to important questions was “I was not aware of that.” And at his level, he should have been aware. For example:

Johnny Isakson (R-Ga.) asked whether Shinseki was aware of an April 26, 2010, memo by William Schoenhard, former deputy undersecretary for health for operations and management, sent to all 21 VA service regions titled “Inappropriate Scheduling Practices.”

“Paragraph two begins, “It has come to my attention that in order to improve scores on assorted access measures, certain facilities have adopted the use of inappropriate scheduling practices, sometimes referred to as gaming strategies.”

A listing of inappropriate scheduling practices was attached to the memo, which noted that the extensive list was “not a full description of all current possibilities of inappropriate scheduling practices that need to be addressed.”

This memo was sent to all 21 VA service regions. By the deputy undersecretary. Four years ago. Confirming, in writing, inappropriate scheduling practices (ie, “fudging the numbers”). Now Mr. Secretary, I know you’re busy, but no one clued you in?

Shinseki also responded that he “didn’t know” or was “unaware” of other instances or facts with a significant impact on the VA and/or our veterans. As the Secretary, it’s his high-paid (with taxpayer dollars) job to know.

Second, Shinseki was evasive when it came to concrete plans for change. When asked whether there would be a change in the management team given systematic failure over a period of years, he gave a non-answer referencing the pending Inspector General (IG) report. He also dodged the question of how veterans can believe that positive change in the VA health care will occur. Nor did he give a straight answer on whether employees who engaged in wrongdoing at individual facilities would be disciplined or terminated (as opposed to being “reassigned” or given administrative leave).

In general, Shinseki’s testimony was soft, leaving no one to believe that change is going to come. Even though Shinseki has ordered an IG investigation, national review of the Veterans Health Administration, and has asked President Obama for assistance in reviewing the allegations, the issue is that this doesn’t do anything, at least not yet. As Senator Jerry Moran, one of the senators calling for Shinseki’s resignation, said after the testimony, “the last thing we need is another report.”

I couldn’t agree more. We don’t need another report with “recommendations.” We need some pink slips and some serious overhaul of a broken system.

But once we clean house, where do we begin? And if Shinseki is shown the door, what can we expect of his replacement? Even if Shinseki should resign, he’s only one piece of a very, very big problem.

Did you find this article informative? If so, sign up for my weekly blog on veterans issues at: https://legalmeetspractical.com.

Access the hearing before the Senate Veterans Committee here.

On Thursday, May 15th, the Senate Committee on Veterans’ Affairs will hold a hearing on “The State of VA Health Care” at 10:00 AM in Room 106 of the Dirksen Senate Office Building. Secretary of the Department of Veterans Affairs (VA), Eric Shinseki, will testify as to the state of VA health care and will inevitably be asked questions about the scandals in Phoenix and San Antonio.

Representatives from other veterans organizations will also testify, to include the American Legion, which earlier called for Shinseki’s resignation (the first time the American Legion has called for the resignation of a VA Secretary in thirty years). Also included on the witness panel are representatives from the Disabled American Veterans, Paralyzed Veterans of America, Iraq and Afghanistan Veterans of America, as well as the acting Inspector General of the VA.

As stated by the committee chairman, Senator Bernie Sanders (I-VT), “this committee will do everything it can to review the serious allegations regarding the Phoenix VA and other facilities, but we will not rush to judgment. As soon as the inspector general completes its independent investigation in Phoenix, we will hold a hearing or series of hearings regarding what happened there.”

The hearing will be aired live on C-SPAN. Tune in at 10:00 AM tomorrow, May 15, here. 

Did you find this article informative? If so, sign up for my weekly blog on veterans’ issues at:: https://legalmeetspractical.com. Remember to click on the link sent to your email to activate your subscription!

Last week, the news of veterans dying while waiting for health care at the VA’s Phoenix medical center outraged the nation. Now, a clerk at another medical center has come forward with a similar, equally horrifying story.

Brian Turner, a clerk at a VA medical center in San Antonio, was tasked with making sure that veterans received their health appointments in a timely fashion. According to Turner, he was told to “fudge the numbers” to meet the VA’s own national timeline goal of setting an appointment within 14 days of the veteran’s desired appointment date. He was told to schedule the appointments in “actual” time – months in advance, but not put the veteran in the system. This was called “zeroing out” that date – this way, there would be no record of the medical center not meeting its goals.

The VA’s Public Affairs Office has claimed that Turner’s claims were investigated from April 25th through April 28th and were found to be “not substantiated.” In an interview with CNN, however, Turner noted that the VA never even approached him to speak with him about his allegations. He was also admonished to stop emailing his concerns to VA personnel. CNN’s own requests for interviews with the VA on this subject have been ignored.

After the scandal in Phoenix hit the news waves, two of the largest veterans organizations called for the resignation of Eric Shinseki, the Secretary of the VA. One of these is the American Legion, which has not called for the resignation of a VA Secretary in thirty years. Two United States Senators also called for his resignation. While President Obama has publicly reinforced his belief in Shinseki’s abilities to lead the VA, CNN and members of Congress have attempted to interview Shinseki to no avail. In fact, they have been attempting to interview him on similar topics for over six months.

Where is Shinseki? Why has CNN been asking him for interviews for six months with no response? Why isn’t he coming forward to address these issues that are literally costing the lives of the veterans he is tasked to protect?

These aren’t rhetorical questions. Shinseki and these other senior officials at the VA need to be held accountable.

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Everyone knows the old adage “late is late.” Every year, there are bid protests that illustrate this. If a proposal must be received via email by noon on Wednesday, it must be received via email by noon on Wednesday.

If you’re having problems with your server, it takes too long for the emailed proposal to go through, or your messenger is hit by a bus….sorry, Charlie. Thanks for playing.

But every once in a while, a protest comes along that gives a contractor a break.

On April 23, 2014, the GAO sustained a bid protest brought by a ICI Services, Inc (ICI). ICI had initially been awarded a task order under the Navy’s Seaport-e vehicle, but then had the award yanked when the Navy determined the proposal was “late.” ICI Services, Inc., B-409231-2.

In this case, the Navy had  instructed offerors to submit their proposals via the Seaport-e portal; however, because the portal was inaccessible, ICI received instruction from the contract specialist to submit its proposal via email. ICI timely emailed its proposal.

After the Navy revoked its award, ICI filed a bid protest with the GAO, arguing that it was arbitrary and unreasonable for the Navy to deem its proposal “late.”  The GAO agreed with ICI and sustained the protest.

The GAO noted that although a late proposal generally cannot be considered, “the policy underlying the late proposal rule is to ensure fair and equal competition and avoid confusion.”  In this case, “[a]lthough the Navy argues that accepting ICI’s proposal ‘without evidence that [ICI] even attempted to upload its proposal . . . would have put the other offerors at a competitive disadvantage,’ the agency does not explain or show how other offerors would be disadvantaged, nor do we see any such possibility here.” Common sense prevailed!

In general, where a contractor is late in submitting a bid or submits it in an improper format, the contractor is generally out of luck even if its plight is sympathetic.

For example, in one bid protest, a contractor had called ahead to let an agency know a messenger was coming to drop off a proposal. The messenger got to the building in time but since the agency took its sweet time in admitting the messenger and escorting him to the proper department, the proposal was stamped  “received” too late and a protest was unsuccessful. Technically, the protestor could have prevented its proposal from being late – its courier could have showed up earlier. Accordingly, no dice. Aerospace, Inc., B-403464.2 (October 6, 2010).

Sometimes, however, circumstances are truly extenuating. For instance, when the government shut down due to D.C.’s great blizzard of 2010, it was proper to extend a proposal due date until the government opened again. CFS-Inc., J.V., B-401809.2 (March 31, 2010).

The distinction is this – could the protestor have done anything differently? Or was the situation truly beyond its control?

In ICS’ case, the GAO ruled that ICI did all that it could, and it was even entitled to its protest costs. But think of all the stress and work that went into protesting the Navy’s decision.

Oh, the things we put ourselves through for the privilege of doing business with the federal government.

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