Legal Meets Practical

Members of an informal watchdog group testified before a Senate committee this Tuesday, resulting in media blasting of the VA’s Office of Inspector General (OIG) for failure to properly investigate claims concerning potential harm to veteran health.

The watchdog group, known as the Truth Tellers, is comprised of more than 40 whistleblowers from different VA facilities. It is headed by Shea Wilkes, a mental health social worker at the Shreveport, Louisiana VA location who discovered that veterans were waiting months, even years, for appointments. In 2013, Wilkes filed a report with the OIG alleging secret wait lists, and when nothing was done, he went to the media.

The result? The OIG opened a criminal investigation into how Wilkes obtained the list he used as evidence to show that patients were not receiving adequate care. (The criminal investigation was dropped just this last July).

The Truth Tellers’s testimony before the Senate painted a horrifying picture of retaliation against whistleblowers and inaction by the OIG. In particular, it alleged that if hospital leaders at the Tomah, Wisconsin VA hospital and the OIG had listened to whistleblowers, Marine Corps veteran Jason Simcakoski may have not been prescribed the lethal mixture of 13 different medications that killed him last year. (The OIG had completed an investigation of excessive opiate prescriptions at Tomah last year but closed the case without sharing findings with the public or Congress).

Sean Kirkpatrick, whose brother Christopher was a psychologist and whistleblower at the Tomah hospital, testified that his brother frequently told his family he was concerned about the overmedication of many of his veteran patients. Christopher Kirkpatrick killed himself in 2009. He had been fired after filing a complaint about narcotics abuse at the Tomah site.

The VA’s OIG’s office has responded to the panel testimony, but it has been a defense rather than a game plan. Claiming a lack of resources, ​Deputy Inspector General Linda Halliday acknowledged that the OIG investigates less than 10 percent of the nearly 40,000 complaints it receives annually about problems at the agency. “There is a serious discrepancy between the size of our workforce and the size of our workload,” Halliday said. She said her office has roughly 650 professional staff members while the agency they investigate has more than 350,000 employees and a budget greater than $160 billion. “The OIG is not right-sized to respond to all the complaints that we currently receive.”

That’s not something Halliday specifically can fix, but someone needs to. It’s like inviting a party of 50 over for dinner and saying well, sorry, I only have chairs and food for five of you and then staring at the guests until they leave. That’s not how you would hold a dinner party, and it’s certainly not how one of our most important federal departments should operate.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran issues. Be sure to click the link sent to your email to activate your subscription! And Legal Meets Practical, LLC (LMP) is now on Twitter. Follow LMP to get all veteran business, healthcare, and disability claim updates as they happen.

Imagine getting fired for filing a whistleblower action against your employer, and then returning to work after vindication two years later. How awkward would that be?

Department of Veterans’ Affairs (“VA”) employee and Army veteran Mr. Bradie Frink is in that exact situation after a federal investigatory body determined that he was retaliated against for seeking Congressional help in finding his lost disability claims file.

According to the VA’s Office of Special Counsel (“OSC”), Mr. Frink’s supervisor wrongly accused him of abusing vacation time and misusing his position to track down his file, which was lost for four months before Mr. Frink contacted Senator Barbara Mikulski’s office for assistance in resolving the issue. The OSG also found that the three different employees involved in the firing “lacked credibility” in their stories, and even if they had been correct, the punishment should have been less severe than being fired.

“In nearly every single instance involving similarly-situated employees, the penalties were much lower relative to the alleged misconduct than in Frink’s case,” the OSC noted in its 19-page report. “Furthermore, the level of care taken to counsel employees and document misconduct, as well as the amount of investigation done to confirm what really happened, all contrasted sharply with how the VA handled Frink’s case.”

Investigators speculated that the supervisors were touchy over Mr. Frink because the Baltimore RO was already facing scrutiny over claims processing. The Baltimore Sun had revealed months earlier that the Baltimore RO had the highest percentage of backlogged disability claims in the country, as well as the highest processing error rate. As such, Mr. Frink’s query to Senator Barbara Mikulski was particularly unwanted. This is also evidenced by the fact that Mr. Frink was let go within a month after Congressional staffers reached out to the RO.

“Intimidation or retaliation — not just against whistleblowers — but against any employee who raises a hand to identify a problem, make a suggestion or report what may be a violation in law, policy or VA’s core values — is absolutely unacceptable,” the VA said in a statement.

The OSC recommended that Mr. Frink be given his job back and given back pay, and recommended two supervisors who retaliated be disciplined. Mr. Frink was officially rehired as of yesterday.

One last note – Mr. Frink’s file was located soon after Senator Mikulski’s staff contacted the RO, and his claim was processed later that year. But who knows the outcome?

After all, the Baltimore RO allegedly has the highest error rate in the country.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran issues at: https://legalmeetspractical.com. Please remember to click the link sent to your email to activate your subscription!

A VA Office of Inspector General (OIG) Report released this week contains some truly heartbreaking, but not shocking, news: based on enrollment center records capturing the number of now-deceased VA healthcare applicants, 307,000 vets may have died waiting for health care.

The OIG Report, which was prompted by a whistleblower tip, found that of about 800,000 records stalled in the agency’s system for managing health care enrollment, there were more than 307,000 records that belonged to veterans who had died months or years earlier. Not only that, but the Report substantiated three serious allegations:

• That 47,000 veterans died while their health care applications were in a pending status;
• That over 10,000 veteran health records were purged or deleted at the VA’s Health Eligibility Center; and
• That 40,000 unprocessed applications, spanning a 3-year time period, were discovered in January of 2013.

This was all in response to a request by the House Committee on Veterans Affairs’ to investigate the whistleblower’s allegations of mismanagement at the VA’s Health Eligibility Center. While details on the whistleblower are scant, it would appear that it is a VA employee who spoke up. (Also note that there is currently legislation in the works intended to enhance protections for such whistleblowers).

It should be kept in mind that due to limitations in the system’s data, the number of records do not necessarily represent veterans actively seeking enrollment in VA health care. As such, these numbers are certainly overblown. Still, reading the Report is like reviewing a laundry list of bad acts. In one case cited, a veteran who applied for VA care in 1998 was placed in “pending” status for 14 years. Another veteran who passed away in 1988 was found to have an unprocessed record lingering in 2014.

Interestingly enough, this report was released only a week after the VA sent out a mass email blast, congratulating itself for its “record level of service” as it relates to reducing its disability claims backlog. (Faster processing, of course, comes at the cost of quality. Also, as soon as a claim is decided, the VA can say “that’s one less for our backlog!” even if the vet appeals. I would love to know the rate of appeals now versus prior to the implementation of the disability backlog initiative).

As I’ve said before, the VA has some truly good folks, and I’ve had the pleasure to work with many of them. (Many of which end up leaving the VA). But when I see this Report, coupled with this email, it makes me realize how important advocating for our veterans truly is.

Our veterans need all the help they can get.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s blog on veteran issues at: https://legalmeetspractical.com.