by Art Levine
New bipartisan legislation has been introduced in Congress to expedite the VA Secretary’s authority to fire any of the department’s more than 300,000 employees. It’s a measure that its backers hope will now pass constitutional muster—although it’s opposed even by some whistleblowers who worry that it could be turned against them and, of course, public-sector unions. (Hypocrisy alert: the unions, including the American Federation of Government Employees (AFGE), framed their opposition to the bill as standing up for dissident employees, but whistleblowers, including Brandon Coleman, told me that the unions did little or nothing to protect them. “They offered no help,” Coleman says, and when he finally went public with his concerns, his local AFGE president denounced him for being “foolish” by going to the media.)
The groundwork for this latest “accountability” legislation was set in motion when the Justice Department announced in May 2016 it would not contest Helman’s claim to get her job back—and the VA openly declared in June 2016 it would no longer use the enhanced firing authority granted the agency as part of the sweeping $16 billion 2014 reform legislation.
Yet in 2014, after scandal engulfed the agency, the VA spent nearly half of its millions in bonuses on the same people it rewarded the previous year. The same pattern continued through fiscal 2015, USA Today reported, with senior executives averaging $10,000 each in bonuses amid a bounty of $177 million to nearly 190,000 employees. That untrammeled, brazen largesse was unleashed even as hundreds of its 312,000 employees were directly linked to the use of the secret waiting lists that caused patient delays in at least 110 major hospitals, 70 percent of all those studied in June 2014 by the agency. The same wide-ranging internal audit by the Veterans Health Administration—the VA division directly in charge of health care—discovered that 121,000 veterans were still being victimized by delays lasting more than ninety days for their first appointment. The 2014 survey looked at more than half of the VA’s 1,053 hospitals and clinics then in operation.
Few VA staffers were punished or lost their jobs, but many who created these waiting lists throughout the VA system were handsomely rewarded for their schemes. “VA’s sordid bonus culture is a symptom of a much bigger organizational problem: the department’s extreme reluctance to hold employees and executives accountable for mismanagement that harms veterans,” now-retired Rep. Jeff Miller (R-Fla.), then the chairman of the House Veterans’ Affairs Committee, declared in 2014.
But most of the congressional reforms turned out to be little more than window-dressing. The 2014 legislation, although designed in large part to shorten wait times, actually allowed by 2016 a 50 percent increase in veterans who waited more than a month for primary care. Even the agency’s feeble Inspector General found in April 2016 that veterans were waiting as long as seventy-one days for primary care appointments—while officials were still gaming the system by starting the clock when they called back veterans with available times, not when veterans first requested care. More than two hundred veterans died while waiting for care in 2015 at the Phoenix VA alone.
In a well-publicized response to such concerns, Secretary Shulkin unveiled a new website, accesstocare.va.gov, in April 2017 that purports to show the average wait times for patients at VA facilities around the country and how they compare to nearby private-sector hospitals, along with the percentages of veterans expressing satisfaction.
Some reformers have applauded this departure from past secrecy and his other reform gestures, including Brandon Coleman, a prominent Phoenix VA whistleblower who won a settlement from the federal government. “I’m cautiously optimistic,” he says of Shulkin, citing such actions as the quick removal of the director of the DC VA hospital in April 2017 after the Inspector General reported unsafe conditions there, and the new website that at least acknowledges some long wait times. Nevertheless, he points out its limitations: “Internal figures are never accurate with the VA.” After quickly checking with fellow dissidents in a few VA hospitals, he found some significant discrepancies between the new website’s claims and the reality on the ground, but not as bad as the flagrant fakery during the height of the 2014 VA scandals. Look, for instance, at the Shreveport, Louisiana, VA hospital, where Shea Wilkes, then a mental health administrator who was busted back down to social worker, exposed in 2014 thirty-seven wait-time deaths among those people on a secret mental health waiting list of 2,700 patients. As a result of exposing these deaths, Wilkes was subjected to a contrived criminal investigation by the VA’s Inspector General that drew national attention; his courage helped spur years of complaints about long waits and the bullying behavior of director Toby Mathew that finally led to Mathew’s firing in April 2017. Yet the VA’s access website reported in the spring of 2017 that the wait time for new primary care appointments in Shreveport was a still-problematic forty-five days, when the reality for some clinics, Wilkes notes, was that it took as long as sixty days. And while the VA has been able to provide some same-day crisis mental health services, as it promised, all too often at his and other hospitals, he says, patients can’t get prompt, regular counseling: “The one thing the VA is very good at is throwing pills at the problem.”
Even when wait times seem to be reported honestly, as in the unusually long eighty-seven day delay for new mental health appointments in April 2017 at a clinic in Santa Fe Springs, California, it’s another sign of just how far the VA under Shulkin still has to go to keep its promises to veterans. Having seen VA secretaries come and go, all ignoring problems and shielding wrongdoers, Wilkes has a somewhat jaundiced view of Shulkin: “He’s talking the talk, but will he walk the walk?”
So it was an open question how much impact the ambitious 2015 VA mental health legislation, the Clay Hunt Suicide Prevention for American Veterans Act, would actually have. The law aims to improve access and quality through the use of peer outreach programs, the recruiting of more psychiatrists and annual independent assessments of the VA’s mental health care. Worthy goals, but it’s not clear that these plans will fare better than other promises and guidelines that have crashed against the rocky shores of the VA’s stubborn bureaucracy. In recent years, destroying the reputations of whistleblowers was a higher VA priority than improving services. Doctors, counselors and even a few bold executives discovered this after they came forward to try to stop fraud or save patients’ lives.
CHAPTER 4
The Secret History of the VA Scandals, Part II: The Empire Strikes Back
AT THE PHOENIX VA MEDICAL CENTER, CHIEF FINANCIAL OFFICER Tonja Laney should have been honored for helping expose fraud and the undermining of patient care. Instead, after she assumed her post in 2012 and soon started raising questions about apparent financial fraud by a top administrator, she became the target of harassment. It included bizarre, poison-pen allegations that she was having sex orgies with black men inside her office; these were initially concocted by racist colleagues outraged that she was divorced, had biracial children and was dating a black man. The mounting workplace hostility became so severe that she even attempted suicide by overdosing on OxyContin at one point.
Three VA-led inquiries in 2012, 2013 and 2014 found that the smears against Laney were indeed baseless. The harassment campaign against her was ramped up again in May 2014 after she told investigators from the VA’s Inspector General about fraud at the hospital and barriers to patient care. She was thrown out of her office the next day, demoted and, a few months later, even faced a trumped-up criminal charge—later dismissed—of stealing government property (she’d kept two copies of letters from her previous VA post). Remarkably, in April 2015, a national VA board that was sent by the new VA Secretary, Robert McDonald, to supposedly investigate the Phoenix wait-time deaths and other scandals instead asked Laney, “Did you have threesomes in your office?”
Meanwhile, for nearly a decade, staff and patient complaints about real, life-threatening problems that had caused hundreds, if not thousands, of deaths due to fatal delays, negligent care and prescription drug overdoses had be
en ignored throughout the country. As a spokesperson for the Phoenix VA concedes, the Laney inquiries were a “distraction,” while still contending that the allegations against her were so serious that they had to be investigated multiple times.
Laney has a more sensible view: “I wish the VA cared as much about the wait times as they did about my [fabricated] sex life,” she says.
If this happened to a top executive at the Phoenix VA, imagine the fate of lower-level whistleblowers and average patients struggling to get decent health care at VA facilities that did not fall under such intense national scrutiny. As a result of such attacks, there’s a high cost paid by both patients and the thousands of honorable VA employees—whether administrators, clerks, social workers or doctors—when staff morale and the opportunity to do their best work are under sustained institutional assault.
Until July 2015, when the Department of Justice belatedly filed its first indictment against a VA administrator for falsifying records, that criminal charge against Laney remained the sole criminal filing brought to court against any employee at any of the VA’s scandal-scarred facilities. Unfortunately, in the absence of either accountability or transparency at the VA, we’ll never know the precise count of all those who needlessly died because of the delays.
Although Laney believes there has been some progress made in reducing the long wait times at the Phoenix VA, she says, “There is a systemic problem: You can’t improve access and care for veterans unless you improve morale for employees.” And despite public vows by then-VA Secretary McDonald and his deputy, Sloan Gibson, that they would protect and encourage whistleblowers, Laney, along with several other prominent whistleblowers, never heard back from them after seeking help. (McDonald and Gibson were still in charge before Trump’s inauguration, but they both left their jobs early in 2017.)
Even after Laney had been reinstated to her CFO post in September 2014, and after the federal MSPB ruled in October 2015 that she had indeed been retaliated against, the harassment continued. Hospital executives occasionally delayed paying Laney’s checks, cut her staff 50 percent and forced her to work overtime without added compensation. Finally, amid the unrelenting abuse that worsened her military service-related depression and her PTSD, she took a leave without pay early in 2016 and retired in June, at age forty-one, unable to work again. She is filing a lawsuit against the VA for the decades of lost earnings she faces, while expecting to receive additional damages from the MSPB. No officials at the VA have ever been punished or lost their jobs because of their campaign against her.
“It was clear that the retaliation was never going to end,” she says.
For the VA’s clinical staff throughout the country, such persistent harassment is especially damaging: it is a direct attack not just on them but on their ability to care for their patients and broader efforts to improve quality. In Phoenix and at other hospitals, dissidents such as Brandon Coleman kept getting punished just for trying to save lives. A bearded, blunt-talking addiction therapist at the Phoenix VA and a disabled Marine Corps veteran with a blown-off left foot, he filed a formal federal whistleblower complaint in December 2014. With his own past as a meth addict who came close to shooting himself in 2005 in a cemetery, he was especially alarmed that the understaffed ER was allowing suicidal or homicidal patients in crisis—often brought over by addiction counselors—to simply wander off the site. One patient killed himself in the parking lot after being ignored by the staff.
“It crushes me personally when a veteran successfully commits suicide,” he says—and since 2011, at least six of the addicts he counseled killed themselves until he was pushed out of his job early in 2015. All told, Coleman has said of veterans’ care, “There are dozens and dozens who commit suicide in the Phoenix area each year.” After going public with his concerns in January 2015, a successful, specialized year-long outpatient program he ran in the evenings for addicted veterans with criminal convictions was shut down; he was forced to take administrative leave; and he was then investigated for purportedly threatening a colleague, actions that hospital officials claimed were unrelated to Coleman going public with his concerns.
All these ginned-up VA assertions were shattered when an independent federal agency, the Office of Special Counsel (OSC), sided with Coleman in May 2016. It offered him a generous, undisclosed financial settlement that allowed him to pay off all his debts and help his kids buy a home and cars. He was reinstated as an addiction specialist at an outpatient clinic unaffiliated with the Phoenix system, and was able to restart his life-changing program for addicted vets. During more than a year of forced leave, he became an informal leader of the nation’s countless VA whistleblowers. He says now, “I kicked the VA in the nuts and I won my case.” Today, he rides around in a prized new classic car, a blue 1968 Mustang, with a license plate that reads, “THX VA.”
Coleman’s fierce advocacy on behalf of the VA’s truth-telling insiders has earned him a national platform as a witness before Congress, as a regular interview subject on TV and, in late April 2017, on the stage at VA headquarters when Donald Trump signed an executive order establishing a new office at the VA to investigate employee misconduct, including retaliation against whistleblowers. Even as he stood there behind the President, an unbowed, imposing man who felt no need to cut his pony-tail and proud to be a representative of the hundreds of employees punished for exposing wrongdoing, he was all too aware of how hollow the new “Office of Accountability and Whistleblower Protection” could prove to be if people like him aren’t involved.
As he later told Shulkin after the ceremony and the viewers of Fox and Friends, “If they don’t bring whistleblowers to the table, this is just going to be another dog-and-pony show; we’ve already got a lot of agencies inside the VA that are supposed to protect whistleblowers and none of them do it.” Equally worrisome, many whistleblowers were concerned that this new office will be yet another instrument of retaliation and cover-ups as the Inspector General’s office, a similar accountability group within the VA and the Office of Medical Inspector (OMI) have all turned out to be, regardless of their ostensible missions. Even so, while standing on the stage with the President and later sharing photos as a dad of three Marines with Vice President Mike Pence, also the father of a Marine, Brandon Coleman recalls, “It was the first time as a whistleblower that I actually felt that I’d really won.”
But there usually isn’t a happy ending for other whistleblowers. They are now targeted with apparently greater ferocity by the VA’s leaders since most national media outlets have turned their attention away from the VA scandal and the Phoenix hospital where it all began.
“I still get two to four calls a week from VA whistleblowers [across the country] I have never met who are crying, scared and losing their careers all for merely telling the truth,” he says. “It has not stopped because the VA has never been made to stop.”
So patients at VA sites such as the Phoenix and St. Louis hospitals (where the chief of psychiatry, Dr. Jose Mathews, was forced out in 2013 after reporting that suicidal patients were ignored by staff) continue to see honest, dedicated clinicians get punished and removed from their posts. The agency has done virtually nothing on its own to rein in those who engaged in clinical misconduct or harassment. In reply to questions about the rarity of such reforms, a VA spokesperson pointed to the Office of Accountability Review established in 2015 to focus on senior executives that “ensures leadership accountability for improprieties” and its cooperation with the independent Office of Special Counsel on whistleblowing retaliation complaints. (That same VA accountability office, though, refused in January 2016 to confirm all but one of the major acts of administrator retaliation against Brandon Coleman and buried its mild report on his case for ten months.)
To be blunt, it’s hard not to conclude that all these accountability sound bites from federal officials are just noble-sounding bromides that haven’t changed the most poisonous culture in the federal government. VA’s true scorn for both ve
terans and whistleblowers was most recently underscored by the revelations in February 2016 of horrifying scandals at the chaotic VA Medical Center in Cincinnati. It was bad enough that thirty-four whistleblowers had to turn to the Scripps News Washington Bureau and its affiliated local TV station, WCPO, to expose such longstanding problems as surgeons being pressured to use blood-and-bone splattered instruments as “sterilized” for operations by the hospital’s acting chief of staff, Dr. Barbara Temeck, who then denounced them as “picky” for raising objections. Meanwhile, she raked in over $300,000 a year as both an administrator and thoracic surgeon without doing any surgeries, and essentially shut down the orthopedic surgery, neurosurgery and prosthetic limbs units to save money by sending veterans into the wilderness of the Choice program to wait as long as nineteen months for surgery. Yet she wasn’t even demoted until she was exposed by the Scripps organization for improperly prescribing opiates to the wife of her regional supervisor, Jack Hetrick, who eventually retired before being fired. (She denies any wrongdoing.) The VA’s leadership was doubtless aware by 2013 of dangerous hospital conditions after a Cincinnati congressman complained about dirty surgical instruments soon after Temeck’s arrival—and the hospital staff started reporting hundreds of dangerous incidents in internal documents compiled in 2015, later obtained by Scripps and WCPO.