I'm from the Government and I'm Here to Kill You

by David T. Hardy

  But what goes around, eventually comes around—just often not in time for our veterans to benefit. Dr. Sam Foote was also a physician in the Phoenix VA. In 2013, he had filed a complaint with the Office of Inspector General (OIG), and his superiors engaged in retaliation. His caseloads were increased to the point where he accelerated his retirement date. In the meantime, he gathered evidence.9

  A key part of the hospital’s malfunctioning related to scheduling appointments. One of the VA’s standards was that a patient requesting an appointment should be seen no more than fourteen days in the future. Most higher VA supervisors were in the federal Senior Executive Service, where earning bonuses is a major part of pay: 10 percent of the amount budgeted for their salaries is put in a fund to award bonuses based on performance. If a supervisor’s operation couldn’t give veterans appointments within fourteen days of request, the supervisor would be ineligible for a bonus.

  The fact was that no patients were getting appointments in anything like fourteen days. Six months to a year was typical, and some veterans who needed specialists had to wait for nearly two years. (By way of comparison: a 2014 survey of doctors in fifteen major metropolitan areas found that the average wait time to see a specialist was 18.5 days.)10

  The Phoenix VA supervisors were not about to give up their bonuses, and so they set out to cook the books. The VA system required appointments to be made through a computerized system that would track when the appointment was requested and the date assigned for the appointment. VA regulations forbade any other scheduling system, whether paper or computerized; that way its computerized system could report real wait times, with no one able to alter the data. But the supervisors instructed the scheduling personnel to keep unofficial calendars that would reflect the real date and time of appointments. Each appointment would only be entered into the official computer database fourteen days before its assigned date. All the veterans still waited six months to a year for an appointment, but the computer record showed that every patient got an appointment in fourteen days or less.

  Dr. Foote took his early retirement and set out to expose the corruption. He contacted the VA’s OIG, which is charged with preventing “fraud, waste, and abuse,” as well as the Arizona Congressional delegation and national news media. The results were dramatic. A later OIG report noted the enormity of the problem:

  As of April 22, 2014, we identified about 1,400 veterans waiting to receive a scheduled primary care appointment who were appropriately included on the PVAHCS EWL [Phoenix VA’s Electronic Wait List]. However, as our work progressed, we identified over 3,500 additional veterans, many of whom were on what we determined to be unofficial wait lists, waiting to be scheduled for appointments but not on PVAHCS’s official EWL. These veterans were at risk of never obtaining their requested or necessary appointments. PVAHCS senior administrative and clinical leadership were aware of unofficial wait lists and that access delays existed. Timely resolution of these access problems had not been effectively addressed by PVAHCS senior administrative and clinical leadership.11

  The OIG report found that falsified appointment records were not unique to Phoenix; since the story first appeared in the media, the OIG had “received approximately 225 allegations regarding PVAHCS and approximately 445 allegations regarding manipulated wait times at other VA medical facilities.” The OIG concluded:

  Inappropriate scheduling practices are a nationwide systemic problem. We identified multiple types of scheduling practices in use that did not comply with VHA’s scheduling policy. These practices became systemic because VHA did not hold senior headquarters and facility leadership responsible and accountable for implementing action plans that addressed compliance with scheduling procedures. In May 2013, the then-Deputy Under Secretary for Health for Operations Management waived the FY 2013 annual requirement for facility directors to certify compliance with the VHA scheduling directive, further reducing accountability over wait time data integrity and compliance with appropriate scheduling practices. Additionally, the breakdown of the ethics system within VHA contributed significantly to the questioning of the reliability of VHA’s reported wait time data.12

  This was merely the beginning. A year later, the OIG returned to investigate the Urology Department, which had functioned for four months with only one full-time and one part-time physician.13 The report singled out ten cases where delays in urological treatment “significantly impacted” the patient’s medical care. The first was a veteran with a history of prostate cancer; his February 2013 appointment was canceled by the hospital for unknown reasons. Ten months later, during a routine checkup, it was discovered that the disease had flared up and invaded his bones. Four months later he was dead. Another veteran began urinating blood clots, but it took two months for him to get an appointment, and then the records of that appointment were lost. He died ten days after his appointment.14

  The Office of Special Counsel, which is tasked with protecting federal whistleblowers and investigating retaliation against them, investigated the VA and found:

  In Federal Way, Washington, the manager of a VA clinic falsified government records, repeatedly overstating the amount of time she spent in face-to-face counseling sessions with veterans. Regional leaders were aware of the manager’s misconduct, yet failed to take action to address it. The VA’s Office of Medical Inspector (OMI) substantiated both sets of allegations, yet the manager and regional leaders received only a reprimand, the lowest form of available discipline.

  The director of a VA outpatient clinic within the Martinsburg, West Virginia, VAMC [VA Medical Center, or hospital] system improperly monitored witness interviews through a video feed to a conference room during an OMI investigation of patient care problems. The manager also approached a witness after the employee provided testimony to OMI and was not candid when interviewed about his actions. The director’s actions create a chilling effect on the willingness of employees to participate in OMI and other investigative processes that promote better care for veterans. Yet the director received only a written counseling.

  Officials at the Beckley, West Virginia, VAMC attempted to meet cost-savings goals by requiring mental health providers to substitute prescriptions for veterans, requiring them to prescribe older, cheaper, and less effective antipsychotic medications. These actions violated VA policies, undermined effective treatment of veterans, and placed their health and safety at risk. To date, no one has been disciplined.

  In Montgomery, Alabama, a staff pulmonologist copied and pasted prior provider notes for veterans, resulting in inaccurate recordings of patient health information and in violation of VA rules. The pulmonologist copied and pasted other physicians’ earlier recordings, including the patients’ chief complaint, physical examination findings, vital signs, diagnoses, and plans of care. An investigation confirmed that the pulmonologist copied and pasted 1,241 separate patient records. Yet the physician received only a reprimand.15

  The Office of Special Counsel reports led to more investigations and more discoveries. The VA OIG found that the Los Angeles Regional Office had shredded documents, including applications for care or for benefits, submitted by veterans that should have been placed in their files.16 In New York, a Veterans Crisis Line, meant to provide suicide counseling and similar aid, let telephone calls go to voice mail, and then never returned the calls. Personnel manning the hotline did not even know there was a voice mail system and thus never checked it.17 When the General Accounting Office turned its attention to the VA, it found that VA hospitals had exposed over 2,600 vets to blood-borne diseases, such as HIV and hepatitis, through mistakes that included putting the wrong parts in dialysis machines and failure to properly sanitize the equipment used for colonoscopies.18

  A new VA facility in Colorado had an estimated cost of $600 million—and actually cost $1.7 billion—mostly due to “aesthetic” features of the building.19 That kind of hospital budget overrun was the rule rather than the exception. A Government Accounting Office study of four VA hos
pitals under construction found that construction costs had increased by 80 to 144 percent during construction, and completion dates had been pushed back by one to six years.20 This did not stop the VA from giving its construction chief $55,000 in performance bonuses.21

  In 2010, a VA hospital in Missouri had to inform 1,800 veterans that they may have been exposed to hepatitis and HIV due to defective cleaning of dental instruments.22

  BONUSES TO THE MISCREANTS

  The VA supervisors most responsible for the messes seem to have been the ones most rewarded and protected. Take Rebecca Wiley, head of the VA Medical Center in Augusta, Georgia: “Rebecca Wiley received nearly $18,000 in bonuses while she served as the director of the Augusta and Columbia VA medical centers in Georgia from 2007 to 2013. During that time, mismanagement delayed 8,500 gastrointestinal appointments and nine veterans died while awaiting treatment …”23

  Wiley ultimately agreed to retire—in exchange for $76,000 plus $10,500 in attorneys’ fees.24 She was not the only person rewarded for failure. A 2016 investigation by the Arizona Republic found that the VA had handed out $177 million in bonuses the previous fiscal year. USA Today noted that the following were among those receiving bonuses:

  • Dr. Darren Deering, former chief of staff of the Phoenix VA hospital, who was fired for “negligent performance of duties.”

  • Jack Hetrick, formerly the top VA official in Ohio, who had retired after receiving a notice of firing.

  • Stella S. Fiotes, former executive director of VA’s Office of Construction and Facilities Management, who was in charge of building the Colorado VA center with its billion-dollar overrun.25

  A 2013 investigation by the General Accounting Office found that the VA had paid thousands of dollars in bonuses: to a doctor who had been disciplined for practicing without a license (the VA noted that being licensed to practice medicine was not “a specific performance pay goal”), to an ER doctor who had refused to see ER patients, and to a surgeon whose privileges had been suspended after he abandoned the operating room midway through a surgery procedure.26

  PUNISHMENT FOR THE WHISTLEBLOWERS

  In 2015, the Office of Special Counsel, the agency tasked with protecting whistleblowers, found: “The VA has attempted to fire or suspend whistleblowers for minor indiscretions and, often, for activity directly related to the employee’s whistleblowing.” It cited a long string of examples: the first was a food services manager who was fired for eating some expired-date sandwiches rather than throwing them away; the last was a nurse suspended for fourteen days over having, a year before, charged another employee five dollars to notarize a document.27

  In 1996, a VA nurse botched connecting a veteran to a dialysis machine. She then stepped out to take a phone call while the machine “drained him of blood instead of cleansing it.” The veteran died, and she was prosecuted. The VA noted she was “only” their third medical professional arrested in 18 months for killing a patient.28

  And those were only the official punishments for having “snitched.” Unofficial sanctions included ostracism and rumor-mongering. Two Phoenix whistleblowers, who were VA patients as well as VA employees, found that another employee had been illegally examining their medical files.29 A Louisiana whistleblower who exposed secret wait lists found the VA was trying to get him prosecuted for having revealed confidential medical data—that is, the secret wait lists.30

  It would be fair to say that the Office of Special Counsel found that protecting VA whistleblowers was a full-time job. It required a team of full-time employees to combat a culture rotten to the core: “In 2015, OSC received over 2,000 complaints from VA employees.”31 In that year, investigating the VA comprised 40 percent of the OSC’s entire, government-wide workload.32

  Reforms have not been made, so little is likely to change. In 2016, the Senate Committee on Veterans Affairs considered an omnibus bill to reform the VA and—among other things—make it easier to fire negligent employees and supervisors. The American Federation of Government Employees resisted the proposals, and in the end the bill was amended to quell the union’s resistance.

  Even the accountability measures for senior executives are burdened with so many caveats they may have little effect. Senior executives stand to have their pensions diminished after resigning to avoid firing only if they are convicted of a felony, have exhausted appeals on the felony, the Office of Personnel Management (OPM) determines the felony was sufficiently related to their work, and the VA secretary chooses to avail themselves of the option.

  Even then, the disgraced director can appeal this decision to OPM.33

  The measure did, at least, allow for somewhat accelerated firing of Senior Executive Service managers, and under those provisions Sharon Helman, head of the Phoenix VA, was given her walking papers. She appealed, as the statute required, to the Merit Systems Protection Board, which upheld her firing. She went to court—and Attorney General Loretta Lynch ruled that the statute was unconstitutional and refused to let her Justice Department attorneys defend it.34 Since (with a few exceptions, none applicable here) the Justice Department has a monopoly on representing government agencies, the effect was to reinstate Helman as head of the Phoenix VA and to prevent any further firings under the 2016 reform legislation.

  So, essentially, nothing could be done. Government-run hospitals can kill their patients with little in the way of personal accountability: punishment is meted out to those who try to keep patients alive, and bonuses are given to management who let them die. No wonder General Eric Shinseki resigned as agency head, after essentially proclaiming the VA’s problems to be unsolvable.

  I’d suggest he was partially right and partially wrong. The VA’s problems may well be beyond solution. The question we should be asking is why that hopelessly fouled-up agency should be responsible for veterans’ health care. The VA hospital system is largely a historical fluke. It has its origins in the nineteenth century when the government established what were essentially retirement homes for elderly veterans, rather than hospitals. (The Army’s first, “Soldier’s Home,” north of Washington, D.C., was established by General Winfield Scott, with funds he had accumulated as a conqueror’s “perks” during the Mexican War.35)

  Federal civilian employees and retirees, in contrast, are covered by a far more modern program that allows them to pick from a wide variety of health insurance companies offering a wide variety of coverage (in most states, eleven insurers are available to all federal employees, with more plans available to employees of certain agencies).36 Costs are kept low by subsidies, and also by insurers’ desire to bid for a market containing several million potential customers (2017 Virginia rates for a very good Blue Cross family plan are $254 per month, with a government subsidy adding another $505 to the insurer’s revenue).37 Abolishing the VA hospital system and enrolling military retirees into the system that covers civilian federal retirees seems an approach worthy of consideration. It makes no sense to have a retiree from the IRS or FBI, or for that matter, the VA itself, to have a health plan that allows a choice of private-sector caregivers, while military retirees must receive care from an irresponsible agency that suffers no penalty if it kills or maims them.

  CONCLUSION

  PUTTING A LEASH ON THE DEADLY BUREAUCRACY

  The Government, as a defendant, can exert an unctuous persuasiveness, because it can clothe official carelessness with a public interest.

  —Supreme Court Justice Robert H. Jackson, dissenting in Dalehite v. United States, 19471

  Experience suggests that the discretionary function exception is probably the most important reason that the Tort Claims Act does not exceed several billion dollars in additions to the deficit each year.

  —Assistant Attorney General Stuart M. Gerson, testifying before a Congressional subcommittee, 19892

  PONDER, FOR A MOMENT, THE ASSISTANT Attorney General’s words. The discretionary function exception can only save the government money to the extent that:

  1. federal
employees negligently harm taxpayers’ persons and property; and

  2. the government uses the exception to escape paying for the damage caused.

  His statement thus translates to: We, federal employees, negligently inflict several billion dollars of harm on Americans annually, and we should be allowed to walk away from it because of the cost.

  Billions of dollars annually? It’s not unbelievable.

  THE UNINTENDED LEVIATHAN

  The federal government was envisioned as a miniscule establishment (see how often the authors of the Federalist Papers assured Americans that the prospective national government would be small and have quite limited powers). At the outset, the federal government was incredibly tiny: Secretary of State Thomas Jefferson, for example, presided over a headquarters consisting of four clerks, a translator, and a messenger.3 Attorney General Edmund Randolph’s operation was no larger: he was the federal government’s only “headquarters attorney,” obliged to privately practice law on the side to supplement his salary.4

  The government’s design matched its intended size. In a typical county government, voters elect about six executive officials, but with the federal government, we elect only the president and vice president. Electing just two officials was seen as sufficient to ensure accountability to the voters, given how few employees the president supervised and the fact that all were employed on a “hire and fire at will” basis. If a federal employee became a danger to the public, the president was likely to observe it or hear of it, and could boot the employee.