Watchdog: Accountability

Veterans Affairs whistleblowers face 'long slog' in fighting retaliation

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Watchdog,Mark Flatten,Veterans Affairs,Whistleblowers,Accountability,Veterans,Scandals

Retaliation comes quickly to whistleblowers who expose wrongdoing at the Department of Veterans Affairs.

Those who have revealed potentially lethal lapses in health care say they have been ridiculed, transferred, demoted and sometimes fired by agency managers attempting to cover up wrongdoing and silence anyone who dares challenge their dangerous practices.

The fates of those who have already stepped forward are critical now. The agency's inspector general is investigating reports across the country that patient records were falsified or destroyed to hide long wait times for medical care.

The IG is checking multiple allegations of phony appointment logs and other practices that endangered veterans' lives in 26 veterans' medical facilities nationwide.

Getting to the truth will depend in part on the willingness of rank-and-file employees to tell what they know, and have faith that they will be protected.

"My individual case is horrible," said Oliver Mitchell, a former Marine who in 2009 exposed the mass cancellation of medical appointments to hide long backlogs at the veterans’ hospital in Los Angeles.

Mitchell was stripped of his duties, put on administrative leave and eventually separated from the agency shortly after he reported the purging of medical appointments to the inspector general.

The IG closed Mitchell's complaint after VA officials claimed the "mass purge" of appointments was within policy. The U.S. Office of Special Counsel, the agency that is supposed to protect whistleblowers, also dropped his case.

Mitchell said he got no help from either office.

"I wouldn't treat anybody the way I've been treated," said Mitchell, whose allegations were publicly exposed by the Washington Examiner in February.

"I think that’s the culture of the agency. When you don’t join the party line this is what they do to you," Mitchell said.

Mitchell is not alone.

Dr. Richard Krugman, another VA whistleblower whose allegations were first reported by the Examiner, told a similar story of being isolated and eventually forced out of the agency after he complained about unsafe conditions and policies to OSC.

Krugman, former associate chief of staff in the Veterans Affairs health care network based in Harlingen, Texas, said his boss had a policy requiring three positive tests for bloody stools before a colonoscopy would be authorized to detect colon cancer.

Krugman also complained to the OSC in July 2011 of unsafe conditions at a new $40 million surgical center being built in Harlingen, and that a secretary had mass-purged thousands of backlogged medical appointments in a single afternoon.

He was fired in May 2012 after spending a year on administrative leave.

"I was treated like a pariah," Krugman said. "I was a story that had to be destroyed at any cost."

Others who have come forward to report wrongdoing had similar fates:

• Dr. Jose Mathews lost his job as chief of psychiatry at a St. Louis VA facility after reporting other psychiatrists worked only a few hours a day.

• Nicholas Tolentino, former mental health administrator at the Manchester, N.H., VA Medical Center, reported "gaming" policies to hide long wait times.

The response from agency supervisors and an internal investigative board was to attempt to discredit him by claiming his combat service in Iraq made him prone to substance abuse.

• Dr. Katherine Mitchell, director of the emergency department at the VA hospital in Phoenix, said she was put on administrative leave within days of reporting to Sen. John McCain, R-Ariz., that patients were jeopardized because of slow and inadequate care. She was later disciplined in writing.

• Dr. Pamela Gray warned that patients were being overprescribed dangerous narcotics at the Hampton VA Medical Center in Virginia, and that their underlying medical conditions were left untreated.

After being ignored by her supervisors, she took her charges to then-Sen. Jim Webb, D-Va., and was fired within weeks.

VA Secretary Eric Shinseki denied whistleblowers face retaliation during a brief press conference that followed a May 15 Senate hearing.

“We comply with the law and the law protects whistleblowers,” Shinseki said.

That’s true on paper. The law does say whistleblowers are protected from retaliation and supervisors who engage in it can themselves be disciplined.

But reality is something different, according to whistleblowers and government watchdogs interviewed by the Examiner.

No one officially gets fired for being a whistleblower.

Instead, employees who previously had stellar performance reviews suddenly are deemed incompetent or disruptive.

They often are relieved of their duties, demoted or transferred under some other pretense.

“There’s almost an unwritten playbook when it comes to how to retaliate against whistleblowers,” said Joe Newman, director of communications at the Project on Government Oversight, a non-partisan group that exposes government misconduct and corruption.

“It’s a pattern that would basically be intimidating whistleblowers and sending a chilling message to them,” Newman said.

POGO launched a joint project with Iraq and Afghanistan Veterans of America to give VA whistleblowers a safe outlet for their charges.

The aim is to allow agency employees to report unsafe, wasteful or illegal practices without fear of reprisal.

Managers do not seem to fear retaliating against whistleblowers at VA, said Derek Bennett, chief of staff at IAVA. That reputation could discourage others from cooperating with the ongoing investigation, he added.

“I don’t think there is a memorandum of instruction somewhere instructing supervisors to do this kind of thing,” Bennett said. “But I do think there’s a culture where it’s at least acknowledged as OK or not a bad thing to do.”

Despite that, he hopes employees do cooperate with the inspector general’s investigation so the agency’s shortcomings can be corrected.

Enforcing the protections in the law is a long and costly process through a tangled bureaucracy.

A whistleblower is legally protected when disclosing wrongdoing to anyone, including the agency's inspector general, the OSC, the media, Congress or an outside group.

Generally, the inspector general investigates the underlying allegations of wrongdoing within the agency, but not whether it resulted in retaliation against the employee.

The OSC investigates whether there was retaliation, but not the merits of the underlying charges.

If OSC finds retaliation occurred, it can pressure the agency to reach an agreement with the whistleblower, which may involve reinstatement and financial compensation.

If the agency refuses, OSC can bring a case on the whistleblower's behalf to the Merit Systems Protection Board, which decides personnel disputes in federal agencies.

Ultimately the decision is with the MSPB. The process can take years and cost thousands of dollars in legal fees.

"Even if they end up being vindicated and having some sort of compensation for their loss and experience of retaliation, you’re still looking at a really long slog and many people just choose to stay quiet instead of fighting the agency," said Angela Canterbury, director of public policy at POGO.

Neither the MSPB nor OSC could provide figures on how many whistleblowers claimed they suffered retaliation, how many were reinstated, or how many supervisors were disciplined for taking illegal actions against those who reported wrongdoing.

Anonymity is the whistleblower’s best protection, said Joseph Vallowe, the VA’s deputy assistant inspector general for investigations, which operates independently of agency administrators.

VA employees do not have to give their names to the IG. If they do identify themselves, the IG will not disclose the information without the whistleblower’s permission unless it is required by law, Vallowe said.

People often get into trouble when they tell their supervisors, co-workers, union representatives or others outside the agency that they filed a complaint with the IG, he said.

"We cannot guarantee that action will not be taken against an employee just as you cannot guarantee because there are laws on the books prohibiting crimes that a crime will not happen to any particular individual," Vallowe said. "That’s reality."

Darshan Sheth, chief of the prohibited personnel practices unit at OSC, said his agency does what it can to protect whistleblowers and seek penalties against supervisors who retaliate.

But ultimately it is up to the agency or the MSBP whether a whistleblower is reinstated or a supervisor is disciplined, he said.

The investigation can take time as witnesses are interviewed and documents are reviewed, Sheth said, adding it is an "arduous process" that can be tough on the whistleblower.

"It can be a difficult process and probably a frustrating process," Sheth said. "Some of these agencies are very large and have a lot of resources. It’s not easy to be the individual standing up to a very large agency."

That’s what VA officials are counting on, said Krugman, who is still appealing his termination to the MSPB

"If the game plan for the VA is to destroy and to basically make us give up, nine out of 10 will," Krugman said. "The one out of 10 will do it all the way to the end. But it takes a large toll."

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