[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
A MATTER OF LIFE AND DEATH: EXAMINING PREVENTABLE DEATHS, PATIENT
SAFETY ISSUES, AND BONUSES FOR VA EXECS WHO OVERSAW THEM
=======================================================================
FIELD HEARING
before the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MONDAY, SEPTEMBER 9, 2013
FIELD HEARING HELD IN PITTSBURGH, PA
__________
Serial No. 113-32
__________
Printed for the use of the Committee on Veterans' Affairs
______
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COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Florida, Chairman
DOUG LAMBORN, Colorado MICHAEL H. MICHAUD, Maine, Ranking
GUS M. BILIRAKIS, Florida CORRINE BROWN, Florida
DAVID P. ROE, Tennessee MARK TAKANO, California
BILL FLORES, Texas JULIA BROWNLEY, California
JEFF DENHAM, California DINA TITUS, Nevada
JON RUNYAN, New Jersey ANN KIRKPATRICK, Arizona
DAN BENISHEK, Michigan RAUL RUIZ, California
TIM HUELSKAMP, Kansas GLORIA NEGRETE MCLEOD, California
MARK E. AMODEI, Nevada ANN M. KUSTER, New Hampshire
MIKE COFFMAN, Colorado BETO O'ROURKE, Texas
BRAD R. WENSTRUP, Ohio TIMOTHY J. WALZ, Minnesota
PAUL COOK, California
JACKIE WALORSKI, Indiana
Helen W. Tolar, Staff Director and Chief Counsel
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
__________
September 9, 2013
Page
A Matter Of Life And Death: Examining Preventable Deaths, Patient
Safety Issues, And Bonuses For VA Execs Who Oversaw Them....... 1
OPENING STATEMENTS
Hon. Jeff Miller, Chairman,...................................... 1
Prepared Statement of Chairman Miller........................ 61
Hon. Michael H. Michaud, Ranking Minority Member................. 4
Hon. Michael F. Doyle, U.S. House of Representatives, (PA-14).... 5
Hon. Tim Murphy, U.S. House of Representatives, (PA-18).......... 6
Hon. Keith J. Rothfus, U.S. House of Representatives, (PA-12).... 7
WITNESSES
Brandie Petit, Veteran Family Member, Atlanta, GA................ 8
Prepared Statement of Ms. Petit.............................. 63
Gerald J. Rakiecki, Veteran and VA Police Officer, Buffalo, NY... 10
Prepared Statement of Mr. Rakiecki........................... 68
Sydney W. Schoellman, Veteran Family Member, Dallas, TX.......... 13
Prepared Statement of Ms. Schoellman......................... 70
Phyllis A.M. Hollenbeck, M.D., FAAFP, VA Primary Care Physician,
Jackson, MS.................................................... 15
Prepared Statement of Ms. Hollenbeck......................... 72
Robert E. Nicklas, Veteran Family Member, Pittsburgh, PA......... 17
Prepared Statement of Mr. Nicklas............................ 85
Accompanied by:
Judy Nicklas, Veteran Family Member, Pittsburgh, PA
Maureen A. Ciarolla, Veteran Family Member, Pittsburgh, PA....... 19
Prepared Statement of Ms. Ciarolla........................... 88
Hon. Robert A. Petzel, Under Secretary for Health, U.S.
Department of Veterans Affairs................................. 34
Prepared Statement of Hon. Petzel............................ 91
Accompanied by:
Michael E. Moreland, FACHE, Network Director, VA Healthcare
(VISN 4), Veterans Health Administration, U.S.
Department of Veterans Affairs
Leslie B. Wiggins, Medical Center Director, Atlanta VA
Medical Center, Veterans Health Administration, U.S.
Department of Veterans Affairs
Brian G. Stiller, Medical Center Director, VA Western New
York Healthcare System, Veterans Health Administration,
U.S. Department of Veterans Affairs
Jeffrey L. Milligan, Medical Center Director, VA North
Texas Health Care System, Veterans Health
Administration, U.S. Department of Veterans Affairs
Joe D. Battle, Medical Center Director, G.V. (Sonny)
Montgomery VA Medical Center, Veterans Health
Administration, U.S. Department of Veterans Affairs
Charles Sepich, FACHE, Network Director, VA Southeast
Network (VISN 7), Veterans Health Administration, U.S.
Department of Veterans Affairs
James Cody, Interim Network Director, VA Health Care
Upstate New York (VISN 2), Veterans Health
Administration, U.S. Department of Veterans Affairs
Lawrence Biro, Network Director, VA Heart of Texas Health
Care Network (VISN 17), Veterans Health Administration,
U.S. Department of Veterans Affairs
Rica Lewis-Payton, Network Director, South Central VA
Health Care Network (VISN 16), Veterans Health
Administration, U.S. Department of Veterans Affairs
Terry Gerigk Wolf, Medical Center Director and Chief
Executive Officer, VA Pittsburgh Healthcare System,
Veterans Health Administration, U.S. Department of
Veterans Affairs
QUESTIONS FOR THE RECORD
Questions From: Chairman Miller, To: U.S. Department of Veterans
Affairs........................................................ 99
Responses From: U.S. Department of Veterans Affairs, To: Chairman
Miller......................................................... 99
STATEMENT FOR THE RECORD
Congressman Brian Higgins, (NY-26)............................... 100
SUBMISSION FOR THE RECORD
The Veterans Health Administration (VHA)......................... 103
A MATTER OF LIFE AND DEATH: EXAMINING PREVENTABLE DEATHS, PATIENT
SAFETY ISSUES, AND BONUSES FOR VA EXECS WHO OVERSAW THEM
Monday, September 9, 2013
U.S. House of Representatives,
Committee on Veterans' Affairs,
Washington, D.C.
The Committee met, pursuant to notice, at 9:00 a.m., in
Room 410 of the Gold Room, Allegheny County Courthouse, 436
Grant Street, Pittsburgh, Pennsylvania, Hon. Jeff Miller
[Chairman of the Committee] presiding.
Members present: Representatives Miller and Michaud.
Also present: Representatives Doyle, Murphy, and Rothfus.
OPENING STATEMENT OF CHAIRMAN MILLER
The Chairman. Good morning and welcome to today's Full
Committee hearing entitled, ``A Matter of Life and Death:
Examining Preventable Deaths, Patient Safety Issues, and
Bonuses for VA Executives Who Oversaw Them.''
Before we begin, I would like to ask unanimous consent that
our colleagues from Pennsylvania, Mr. Doyle, Mr. Murphy, and
Mr. Rothfus be allowed to sit at the dais and participate in
today's proceedings.
Without objection, so ordered.
And I would also like to thank the good people of Allegheny
County for hosting us today here.
As most of you are aware, the Department of Veterans
Affairs, Veterans Health Administration provides health care
services for millions of American veterans, but recently a rash
of preventable veteran deaths, suicides, and infectious disease
outbreaks at several VHA facilities throughout the country has
put this organization under intense scrutiny.
Despite the fact that multiple VA Inspector General reports
have linked a number of these incidents to widespread
mismanagement at VHA facilities, the Department has
consistently given executives who presided over these events
glowing performance reviews and cash bonuses of up to $63,000.
Many Americans have watched in disbelief as these events
have unfolded on their television screens and in the pages of
their local newspapers.
For some, however, this tragic incident has hit much closer
to home.
So I would like to take a moment to recognize all the
family members of those who have suffered preventable deaths at
VA medical centers, as well as any veterans who have endured VA
patient-safety incidents that are here in attendance today.
Additionally, I want to recognize former American Legion
National Commander Ron Conley, for whom the Pittsburgh
Legionnaires Disease outbreak is very personal because he was
at the 1976 American Legion convention and in the hotel during
the original Legionnaires Disease outbreak in Philadelphia.
To the families of those who have passed away, I know I
speak for every Member of Congress here today and every Member
of our Committee when I say that we are deeply sorry for your
loss, and we will simply not tolerate substandard care for our
veterans under any circumstance.
When we hear about it, we will investigate it and keep the
pressure on VA until the problems are resolved and those
responsible for letting patients fall through the cracks are
held accountable, and that is precisely why we are here today.
The purpose of this hearing is to examine whether VA has
the proper management and accountability structures in place to
stop the emerging pattern of preventable veteran deaths and
serious patient safety issues at VA medical centers across the
country.
In doing so, we will specifically look at VA's handling of
recent events in Pittsburgh, Atlanta, Buffalo, New York,
Dallas, and Jackson, Mississippi.
For the folks we just recognized, the good people of
Pittsburgh, and all those watching this hearing over the
Internet, what you are about to hear is going to be disturbing,
but just so everyone understands the significance of the five
locations I just named, I want to offer a brief rundown of why
these incidents are so troubling to the Members of our
Committee and, indeed, to other Members of the United States
Congress.
In Pittsburgh, VA officials knew they had a Legionnaires
Disease outbreak on their hands, but kept it secret for more
than a year. Five veterans are now dead.
Despite all of that, VA Pittsburgh Director, Terry Gerigk
Wolf, received a perfect performance review during a period
that covered the bulk of the outbreak and Regional Director
Michael Moreland, who oversees VA Pittsburgh, accepted a
$63,000 bonus just three days after VA's Inspector General
reported VA Pittsburgh's response to the outbreak was plagued
by persistent mismanagement.
In Atlanta, two VA Inspector General reports identified
serious instances of mismanagement that led to the drug
overdose death of one patient and the suicides of two others.
True to form, VA doled out nearly $65,000 in performance
bonuses to the medical center director who presided over the
negligence.
During a visit to the hospital in early May, hospital
officials told me that although they had identified specific
employees whose actions had contributed to patient deaths, no
one had been fired. When I asked a roomful of Atlanta VAMC
leaders if there were any other serious patient-care incidents
that Congress needed to know about, they said, no, failing to
reveal a previously unreported suicide that the media would
expose just four days later.
At the Buffalo, New York, VAMC, hundreds of veterans were
potentially exposed to Hepatitis and HIV after facility staff
had been reusing multi-use, disposable insulin pens. At least
18 veteran patients have tested positive for Hepatitis so far.
In addition, officials at hospitals in Buffalo and Battavia
failed to properly maintain medical records, leading to the
damage of thousands of patient files. Despite all of this,
David West, the man tasked with overseeing the Buffalo
facility, pocketed nearly $26,000 in bonuses.
The Dallas VA Medical Center has been the subject of a
series of serious allegations from VA workers, patients, and
family members regarding poor care at the facility, as well as
more than 30 certification agency complaints in the last three
years alone. The fact that there have been so many allegations
of poor care at this facility is troubling enough.
What is also troubling is that Congresswoman Eddie Bernice
Johnson of Dallas worked for more than a year behind the scenes
to get VA officials in Washington to seriously investigate the
matter.
Amidst these accusations, two top VA health administrators
in Texas have collected a combined $50,000 in bonuses since
2011.
The situation in Dallas mirrors another instance of VA's
apparent failure to take multiple allegations of poor patient
care seriously, this time in Jackson, Mississippi. At the VA
Medical Center, there a series of whistleblower complaints from
medical center employees to an independent Federal watchdog
called the Office of Special Counsel or OSC, raised concerns
about poor sterilization procedures, understaffing, and
misdiagnoses. Based on OSC's recommendations, VA was required
to investigate the complaints, but VA Under Secretary for
Health, Dr. Robert Petzel, downplayed the problems by referring
to them as ``kerfuffles.''
So is it any wonder that the OSC wrote to the President in
March of this year to voice serious concerns with the outcome
of VA's investigation and the manner in which it was conducted?
In her letter to the President, U.S. Special Counsel
Carolyn Lerner said, ``It does not appear that the agency has
taken significant steps in improving the quality of management,
staff, training, or work product,'' and that the whistleblower
complaints, ``raise serious questions about the ability of this
facility to care for the veterans it serves.''
To me, that is about as far away from a kerfuffle as it can
get.
There are two sides to every story, of course, and later we
will hear from VA officials who will likely tell you that these
problems are all in the past, but just last Friday, VA's
Inspector General released another report that will challenge
that assertion.
After an investigation into the VAMC in Columbia, South
Carolina, the IG found that mismanagement at the facility
helped create a backlog of thousands of gastrointestinal
consultations, leading to 19 instances of serious injury, harm
or veteran patient deaths.
We have a photo on display on this side of the dais that I
took myself during a recent visit to a medical facility in
Albuquerque, New Mexico, and it depicts a quote from Dr. Petzel
that was emblazoned on the wall of the facility. It reads,
``Improving our work is our work.''
Well, it appears that the work is not improving, and the
question VA officials must now answer is, ``Where is the
accountability?''
We are not here as part of a witch hunt, to make VA look
bad, or to score political points. We simply want to ensure
that veterans across this Nation are receiving the care and
benefits that they have earned.
No one is questioning whether VA officials are sorry for
these incidents or if VA officials are committed to providing
the best possible care because we know that they are. We also
know that the vast majority of the Department's more than
300,000 employees are dedicated and hardworking, and many
veterans are satisfied with the medical care they receive from
VA.
What we are questioning today is whether VA has the proper
organizational culture, accountability, and management
structures to minimize the future occurrence of heart-breaking
situations like the ones that I have just described.
Considering that the VA executives who presided over the
incidents I just described are more likely to have received a
bonus or a glowing performance review than any sort of
punishment, the question we are asking here today is entirely
valid.
By now, it is abundantly clear to most that a culture
change at VA is in order, and it is imperative. Today, we will
find out if VA leaders agree.
I now yield to our Ranking Member, Mr. Mike Michaud, the
gentleman from Maine, for an opening statement.
[The prepared statement of Chairman Miller appears in the
Appendix]
OPENING STATEMENT OF HON. MICHAEL H. MICHAUD
Mr. Michaud. Thank you very much, Mr. Chairman. I would
like to thank all of you for coming here today.
Patient care issues are a continuing concern of this
Committee. I want to thank Chairman Miller for his aggressive
oversight hearings, not only field hearings, but also
Washington, DC, to address a lot of the issues affecting the
VA. I also want to thank my colleagues as well from
Pennsylvania who will be here today also.
Patient care is a top priority for me. In my own State of
Maine, I keep a vigilant watch to ensure that veterans receive
timely, quality, and effective health care. While we are here
to discuss the problems within the VHA Care System, I would be
remiss if I do not recognize the Veterans Health
Administration. It is a very large organization, and the
majority of employees throughout VHA are hardworking and very
dedicated to serving veterans and their families. For those
hard-dedicated employees, I want to thank them for their
efforts.
Unfortunately, we are here in Pittsburgh today to talk
about some of the very serious problems within VA Healthcare
System. This hearing is focusing on five VA Medical Centers.
However, patient care issues at 13 different locations have
been brought to our attention just this year. It is clear that
there is much that we have to do, and the systematic issues
that plague the Veterans Health Administration is concerning to
a lot of us on this Committee.
These issues include failing to hold employees responsible
and accountable for their actions, widespread non-compliance
with established policy and procedures, inadequate training of
employees and personnel, and what comes across in reports as a
general disregard to provide effective oversight of programs.
My concern remains the big picture. I am hoping that
today's testimony will not fall upon deaf ears and that VHA
will listen to the veterans and their families to whom they are
responsible for taking care of. I lay the responsibility of the
patient care directly at the feet of VA and VHA management at
every level.
Today's hearing will shed light on what these five
facilities are doing to correct the wrongs and put action plans
in place to ensure these egregious actions are not repeated
throughout the VA System, and I look forward to hearing from
them on the progress that they have made to ensure that the
veterans receive the quality care that they have earned and
deserve, the attention and good health care that we have got to
make sure that every veteran receives throughout the VA System.
And with that, Mr. Chairman, I want to thank you very much
for having this hearing in Pittsburgh, and I want to thank the
panelists on both panels for coming today as well. I look
forward to hearing your testimony.
The Chairman. Thank you very much. I would like to
recognize a gentleman who has the VA Medical Center within the
confines of his Congressional District, the gentleman from
Pennsylvania, Mr. Doyle.
OPENING STATEMENT OF HON. MICHAEL F. DOYLE
Mr. Doyle. Thank you, Mr. Chairman. I appreciate you and
the Ranking Member being in Pittsburgh today. I wish you
weren't in my city. You are here because something has gone
terribly wrong in Pittsburgh.
Before us, we have the family members who lost loved ones,
and I want to say to each and every one of you that you have
our deepest sympathy and condolences, and you deserve answers,
and we are here today to try to get you some answers and to
make sure that there is accountability and to make sure that
this doesn't happen ever again. We can never guarantee
perfection in any system, but every day that the men and women,
and I want to say the vast majority of men and women who serve
our veterans in VA hospitals are good people who care for our
veterans, who love our veterans, and try to provide them the
best care possible, but something clearly went amiss in these
cities, and we need to get to the bottom of it to make sure
that it never happens again.
Mr. Chairman, I want to thank you. When Congressmen Murphy
and Rothfus and I came to you when we first learned of this and
asked for this Committee to provide its oversight function, you
acted swiftly, and I want you to know that we appreciate the
hearings that you held in Washington, DC, and the fact that you
are here today to continue to make sure that we get answers for
these family members and for other families, so that they can
feel secure that when they bring their loved ones to VA
hospitals anywhere in this country, they are going to receive
the best care.
So, Mr. Chairman, thank you for being here today. I
appreciate it.
The Chairman. Thank you very much, Mike, and Mr. Murphy
from Pennsylvania also has been in the forefront of bringing
this issue to the Committee's recognition, and I recognize you
for an opening statement.
OPENING STATEMENT OF HON. TIM MURPHY
Mr. Murphy. Thank you, Mr. Chairman.
Proud to serve his country during World War II, William
Nicholas told his family to always take him to the VA for his
medical care. He, like thousands of other veterans, was loyal
to the VA because of his steadfast belief that the government
would honor its commitment to veterans and deliver the best
possible care.
But the faith and trust placed in the VA by our Nation's
veterans has eroded because of the heartbreaking stories told
by our witnesses due to appear at today's hearing.
These tragedies in many cases could have been avoided had
those responsible for operating the VA hospitals followed their
own internal guidelines and acted decisively when confronted
with problems. We wouldn't be here today if they did that.
As the renowned Institute of Medicine reported on patient
safety states, ``To err is human.'' Mistakes will happen which
is why a rigorous system of safety and accountability must be
in place at hospitals. When issues are identified, errors must
be corrected immediately so that lives are saved. Instead, what
the Inspector General and this Committee have documented at the
Pittsburgh VA Healthcare System was a management beset with an
attitude of arrogance and indifference that led to at least six
veterans to die from a Legionnaires Disease outbreak.
The arrogance led to the destruction of the world-class
special pathogens lab, which kept the VA Pittsburgh free of
Legionnaires cases for nearly a decade. If the SPL still had
been operational, the evidence shows there likely would not
have been a two-year struggle to control Legionella bacteria in
the hospital's water system.
The indifference was that the VA Pittsburgh leadership
failed to maintain water quality equipment, coordinate
infection control efforts, or communicate with medical staff
about the Legionella problems so vulnerable patients would
immediately receive diagnostic testing, and appropriate
treatment when the difference between life and death was
measured in hours.
Even when the Legionella problem was discovered in
Pittsburgh, the VA failed to follow its own protocols in
flushing its plumbing system properly to eliminate the risk of
infection and then during a Congressional hearing, VA personnel
told us the cleaning and testing were thorough. They were not.
And yet for this record of failure, tens of thousands of
dollars in bonuses were given to top executives at the VA
Pittsburgh. Last month, I wrote to the VA Secretary asking
whether there had been any suspensions, sanctions, or firings
of individuals who contributed to the failures that led to the
November 2012 outbreak. I have yet to receive an answer.
The VA let these families down and then took their tax
dollars and gave to those who were in leadership positions when
these tragedies occurred. It is unconscionable, and I hope we
will see a change in culture at the VA, so we can begin to
rebuild the trust that men and women who wear the uniform have
in the VA and the stability to fulfill the words of Abraham
Lincoln to, ``Care for him who shall have borne the battle and
for his widow and his orphan.''
I yield back.
The Chairman. Mr. Rothfus, do you have any opening comments
you would like to make?
OPENING STATEMENT OF HON. KEITH J. ROTHFUS
Mr. Rothfus. I would like to thank the Chairman and the
Ranking Member for allowing me to participate in this hearing
today, and thank you for arranging for this hearing here in
Pittsburgh.
I want to first thank all the witnesses for sharing your
stories here today. The debt we owe your loved ones and all our
veterans can never be repaid, and we must do all we can to
ensure that they receive the best quality health care that they
have earned and rightly deserve.
Transparency and accountability are important parts of
making that happen, and I am hopeful that the testimony that
you give today and the testimony we hear from the VA is going
to be a step in that direction.
I thank the Chairman, and I yield back.
The Chairman. Thank you very much, and thank you to the
witnesses for patiently listening to the opening statements of
the Members here. I want to welcome each of you to the witness
table.
I would like to introduce everybody to the witnesses. They
are veterans, family members, and whistleblowers from across
the country who have personally been impacted by patient safety
violations and management failures at VA Medical Centers,
again, in Atlanta, Buffalo, Dallas, Jackson, and here in
Pittsburgh. We are joined by Brandie Petit from McDonough,
Georgia. Ms. Petit is the sister of Joseph Petit. Last fall,
Joseph went to the Atlanta VA Medical Center seeking mental
health services. When VA failed to provide him with the help he
was asking for, he committed suicide in a staff bathroom where
his body was found the next day. Ma'am, thank you very much for
being willing to come here today and to tell your brother's
story.
We are also joined by Gerald Rakiecki from Depew, New York.
Gerald is an Air Force veteran and VA police officer and
whistleblower at the Buffalo VA Medical Center. Sir, thank you
for your service and, again, thank you for being with us today.
Also with us is Sydney Schoellman from Allen, Texas. Ms.
Schoellman is the daughter of Gary Willingham, a veteran, who
passed away as a result of serious complications resulting from
a medical error he experienced while undergoing surgery at the
Dallas VA Medical Center. Thank you for being here today and
representing your father.
Also joining us is Dr. Phyllis Hollenbeck. Dr. Hollenbeck
has worked at the VA Medical Center in Jackson, Mississippi,
for five years and is a protected witness by OSC. Dr.
Hollenbeck, thank you for being here.
And we are also joined by Robert Nicklas from Butler
County, Pennsylvania. Mr. Nicklas is the son of William
Nicklas, a Navy veteran, who died from Legionnaires Disease he
contracted from the Pittsburgh VA Medical Center. He is
accompanied by his wife Judy. Thank you both for being here and
telling us about your father, and we are grateful for his
service as well.
And finally, we are joined by Maureen Ciarolla from
Monroeville, Pennsylvania, or Monroeville, depending, I guess,
on which side of the mountain you come from. Ms. Ciarolla is
the eldest child of Joseph Ciarolla, a Navy veteran, who died
from Legionnaires Disease he contracted from the Pittsburgh VA
Medical Center. Thank you for being here, too, and sharing your
father's story with us. We are truly grateful for his service
as well.
It is an honor to have each of you here with us today. I
understand how difficult and emotional your testimony today
will be, and I appreciate each of you, again, for joining us to
tell the stories.
Ms. Petit, you may now proceed with your testimony.
STATEMENTS OF BRANDIE PETIT, VETERAN FAMILY MEMBER, ATLANTA,
GEORGIA; GERALD J. RAKIECKI, VETERAN AND VA POLICE OFFICER,
BUFFALO, NEW YORK; SYDNEY N.W. SCHOELLMAN, VETERAN FAMILY
MEMBER, DALLAS, TEXAS; PHYLLIS A.M. HOLLENBECK, M.D., FAAFP, VA
PRIMARY CARE PHYSICIAN, JACKSON, MISSISSIPPI; ROBERT E.
NICKLAS, VETERAN FAMILY MEMBER, PITTSBURGH, PENNSYLVANIA,
ACCOMPANIED BY JUDY NICKLAS, VETERAN FAMILY MEMBER, PITTSBURGH,
PENNSYLVANIA; AND MAUREEN A. CIAROLLA, VETERAN FAMILY MEMBER,
PITTSBURGH, PENNSYLVANIA
STATEMENT OF BRANDIE PETIT
Ms. Petit. I am Brandie Petit, sister----
The Chairman. You are probably going to have to pull the
mike real close to you.
Ms. Petit. Okay. Hold on. I am Brandie Petit, sister of
Joseph Petit. Thank you for allowing me to speak about my
brother. Joseph didn't have a lot as a child, but he wanted
more. Joseph showed me information he had about the Army. He
told me, ``I want to be the best of the best.'' He believed he
could make a difference as an Airborne Ranger.
Growing up, Joseph was very active. He ran, weightlifted,
and seemed to eat everything in sight. I can't ever recall him
taking any medications, even over-the-counter meds for
something as simple as a headache.
Joseph was determined to be a ranger. He passed all his
physical flawlessly at the Atlanta Military Enlistment
Processing Station, but in March of '91, while on airborne
training, he injured both his knees performing parachute
landing falls. Dr. Greer Busbee did not examine him for more
than six months after his injury and would not allow him a
second opinion or other treatment.
Joseph wanted his knees fixed because he still was aspired
to be an airborne ranger, but he received an honorable medical
discharge instead.
With almost two decades of begging for help with no
results, persistence paid off. The VA finally agreed to help
him. He was very happy to have them look at his knees after all
that time. He was in a great deal of pain. The VA saw Joseph
and said the problem was in his head, and sent him home with
meds for his head, not his knees. They said that if he took
those meds and did specific exercises, his knees would quit
hurting. Joseph was willing to try and was hopeful it would
ease his pain, but it never did.
In February of 2012, I took him to an appointment at the VA
set up at QTC Medical Group where he had to do several
movements with his knees. I heard one of his knees pop. It
sounded like a chicken bone snapping. The other one sounded
like bone-on-bone grinding. Those sounds gave me chills. If his
knees were okay, then please explain how I heard those sounds.
Why did my brother break his teeth gritting from the pain of
trying to walk?
One day Joseph went to the VA seeking help, and they told
him that he needed to leave because he didn't have an
appointment. The VA police physically and forcibly removed him
and put a standing order in place to arrest him if he showed up
again without an appointment.
I am outraged at his treatment that day. My brother
deserved respect if nothing else. If your job involves people,
it doesn't matter how many credentials you have, without
compassion, credentials mean absolutely nothing. The Bible says
in Luke to treat others as you would have them treat you. My
brother treated everyone with respect.
Joseph told me if he did what the VA said, they would
finally fix his knees. So he took over 20 pills a day as
prescribed, and just about every time he went to an
appointment, they looked him up for being unstable or suicidal,
and they changed his meds and sent him home. Joseph was afraid
that if he stopped following the VA's treatment, they would
stop helping him.
Due to the side effects, Joseph literally chained himself
around his ankle and used a master lock so that he would not
wake up hallucinating and harm someone. He told the VA he was
suicidal, but they ignored him, so he went to the bathroom, put
a zip tie around his neck, and someone walked in and found him
on the floor unconscious.
Again, they changed some meds and sent him home about a
week later. He begged them to put him on some meds that
wouldn't give him those thoughts. He stated he wasn't thinking
clear. Please lock him up. He didn't want to hurt anyone. He
begged the VA to fix the medication problem they had created.
He wanted to walk without pain.
Many of his medications caused hallucinations. He went to
the VA on November the 8th hearing voices and hallucinating and
asking for help. My brother was a prisoner in his own body. He
couldn't even stand up alone. My 12-year-old son watched his
uncle Joseph fall down the stairs. My brother, who was so
selfless and compassionate to others, was dying in front of me.
Joseph sent me texts, hallucinating. It was very sad to
read those. That was not my brother anymore. My brother was
hiding in there somewhere, trying to get help. He did not
commit suicide because he felt sorry for himself. He committed
suicide to protect others from his hallucinations.
Joseph was given information about homeless shelters. My
brother would have never been homeless. The words homeless and
veteran should not be used together. Veterans fight for our
freedoms. I do believe they should be treated with more
respect. If you go to a VA and look around, you will see a lot
of men and women being neglected, forgotten, and shamed by the
actions of the American people.
The VA also disrespected my mom and I after his death. We
didn't know where to go to pick up his belongings. My mom was
on the phone asking the VA's police where to go. Their reply
was, how did he die? Was it suicide? Now, you tell me why they
had to ask my mother that right then.
We need to make sure that compassion is not forgotten when
dealing with a person, a brother, a son, an uncle, a friend, a
solider. Joseph was gracious and generous to the bitter end.
Seeing no way to a cure in the care provided, he took himself
out of the long, long line to make way for someone else to try
to get help from the VA. It was typical of my brother to bring
much attention in his quiet way to another lack of ethics in
government.
I don't believe my brother was perfect, nor do I believe
anyone else in this world is. I do believe when someone says
they need help, they should be taken more seriously. How dare
anyone try to hide my brother's death. Why didn't someone make
sure he got on the transportation bus home? Ten months ago
today, they found him several, several hours later in a
bathroom where he had committed suicide.
This could have been avoided. He was a good soldier, a good
man, a good son, a good friend, and a damn good brother. What
would you do if Joseph was your brother or your son or your
friend?
Thank you.
[The prepared statement of Brandi Petit appears in the
Appendix]
The Chairman. Thank you very much.
Mr. Rakiecki, you may now proceed with your testimony.
STATEMENT OF GERALD J. RAKIECKI
Mr. Rakiecki. I, Gerald Rakiecki, have been invited by
Congress to testify in regards to all the knowledge I have
about veterans' health care at the Buffalo VA. This written
document contains information about events which occurred from
December 2011, through the present period of time. Some of the
information was directly relayed to me by VA Buffalo HIMS
employee, Mr. Leon Davis, VA Buffalo LPN employee, Patricia
Morrison, VA Buffalo EMS employee, James E. Carney. The
following is my statement and affidavit on this matter.
I served over two years consecutive active duty with the
United States Air Force. I am a service-connected veteran, and
I was honorably discharged from my military service. I am
employed by the facility as a police officer. I have also
served as a steward and a chief union steward with the Service
Employees International Union, Local 200 United, which is the
exclusive representative of the VA employees within the
particular bargaining unit.
In the course of my collateral duties as chief steward, I
represented Mr. Tracy Harrison, a VA Health Information
Management Systems employee, who was, in fact, a whistleblower
concerning the mismanagement of veterans' medical records. Mr.
Harrison made a protected disclosure of damaged and mishandled
records and was subsequently threatened by Associate Director,
Mr. Jason Petti.
In December of 2011, I became aware of these allegations of
mismanaged records by Mr. James E. Carney, who was also a union
steward under my charge. Mr. Carney explained to me the four
HIMS employees' allegations. Over the next month and a half, I
had several conversations with Mr. Carney about these
allegations, and at first it was hard for me to digest the
magnitude of what I was being informed of. According to Mr.
Carney, approximately 240 boxes containing hundreds of patient
records were wet, moldy, stuck together, out of sequence, out
of order, inaccessible, and unattainable.
Eventually, I informed Patricia Morrison, who is also the
current SEIU Divisional Chairperson for the Buffalo Division. I
relayed this information directly to her in January of 2012. In
term, Ms. Morrison warned me to keep out of it. Ms. Morrison
explained that Associate Director Jason Petti confided in her
with his plans to take administrative action against the
reporting HIMS employees in the form of reclassification,
downgrading, and possible removal from government service. It
became clear to me, Ms. Morrison was placing her support as the
SEIU Divisional Chairperson behind Jason Petti and the HIMS
Manager, Liz Kane, instead of the membership she was elected to
represent.
I was aware of a subsequent meeting held between labor and
management on this matter, which took place on February 8,
2012, which proved ineffective. In fact, Associate Director
Jason Petti made a clear, written threat against the four HIMS
employees; Mr. Leon Davis, Cathleen Manna, Pamela Hess-
Wellspeak, and Tracy Harrison. Associate Director Jason Petti
sent a Microsoft Outlook email in which he singled out the
whistleblowers by writing, you four. Assistant Director Jason
Petti also wrote that he expected the four to correct the
problem during their work hours in addition to their regular
duties. Associate Director Jason Petti attached the Union
Chairperson, Ms. Patricia Morrison, to this email, and this
information is documented in the Agency investigation and OSC
findings.
The four HIMS employees followed up by making a formal
disclosure to the Office of Special Counsel. In turn, their
disclosure resulted in an Agency investigation. As a result of
that investigation, a majority of the charges were sustained in
September of 2012. An OSC report of the Agency Investigation
was released to the public in the spring of 2013.
I represented Mr. Tracy Harrison in January of 2013 through
March 6 of 2013 on a proposed discipline. Mr. Harrison was
charged with being AWOL and a reprimand, two forms of
discipline for one incident. The fact is, Mr. Harrison
requested annual leave in the VA's computer leave system. Mr.
Harrison's leave was, in fact, approved, and he took his
approved leave. Ms. Kane, however, performed a corrected
timecard, reversing Mr. Harrison's approved leave so she could
impose discipline.
The evidence proved the discipline Mr. Harrison experienced
was a direct result of retaliation from HIMS Manager, Ms. Liz
Kane. I successfully represented Mr. Harrison by proving to
Assistant Director, Mr. Royce Calhoun, the discipline was
completely unwarranted based on the facts in my investigation.
I disclosed my proof of retaliation against Mr. Harrison in
writing to Assistant Director, Mr. Royce Calhoun. Mr. Calhoun
had assumed Ms. Kane's managerial duties for the VA Release of
Information HIMS on or about February 25 of 2013.
What I have learned throughout this entire ordeal is that
there are two completely different standards of employee
conduct at my facility. The average employee is held completely
accountable for his or her behavior and or misconduct, however,
this standard does not apply to the high-level management
employees and senior executives' service. Evidence of this
exists in the Agency's investigation of mishandled records and
the subsequent report filed by the OSC.
The Agency's investigation and OSC findings clearly proved
Associate Director Jason Petti was found to have made four
separate threats against four whistleblowers that did their job
by reporting wrongdoing. The investigation also proved that
Associate Director Jason Petti's investigation of the moldy
records was not accurate. I believe it is plain to see that
Associate Director Jason Petti's investigation was, in fact,
false.
However, Associate Director Jason Petti was not
disciplined. Associate Director Jason Petti was recognized for
acting quickly. Associate Director Jason Petti was, in fact,
commended for doing the exact opposite of what he should have
done and what he is compensated with GS15 pay to do. Liz Kane
received only a counseling for her part. A verbal or written
counseling is not even considered discipline.
VA employees in Senior Executive Service and high-level
management employees are supposed to be the pillars of
integrity, morals, and ethics. This entire ordeal has shown me
they are, in fact, just the opposite. If an average employee
were to be suspected of displaying a lack of candor, that
employee would be harshly disciplined based on a preponderance
of the evidence, which means the employee would be suspended or
removed if management just believed that they were not being
completely truthful.
Our system of accountability to our veterans cannot work
unless every employee is held equally accountable. The fact
that veterans' medical records were sent out to the retirement
center wet, moldy, inaccessible, and unattainable, shows a
clear disregard for duty and serious ethical violations on the
part of the managers who were, in fact, well aware.
The managers involved displayed a total disregard for
veterans' health. These veterans depend on the VA to maintain
and keep safe their records. Management failed to do so,
management attempted to cover it up, and management
congratulated itself for a job well done. Despicable is the
word I see fit to describe management's conduct and how it
affected our veterans.
Veterans gave their lives in every war we fought. Veterans
place their lives on the line for this country every day. We,
the VA, are supposed to help them, treat them, and keep them
safe. Our veterans should not have to put their lives on the
line twice for their country by seeking assistance or care from
a VA Medical Center. Veterans should feel safe and most
important, be safe, while being serviced and cared for at their
local VA Medical Centers.
In closing, I will answer the questions put forth to me
prior to my invitation to this hearing. I will state for the
record that due to the aforementioned medical records and the
recent report of misuse of insulin pens, no, I will not seek
treatment at the Buffalo VA. I will not reconsider seeking
treatment at the Buffalo VA until this Agency takes appropriate
action concerning the responsible management officials. And,
no, I do not trust the VA System. It is a system in which
managers commit wrongdoing, cover it up, and get rewarded for
doing so. The end result is an inability for this Agency to
identify serious issues and correct them quickly in order to
properly serve our veteran heroes.
Please feel free to ask me any questions, and I will do my
best to answer. Thank you.
Thank you.
[The prepared statement of Gerald Rakiecki appears in the
Appendix]
The Chairman. Thank you very much.
Ms. Schoellman, you are recognized.
STATEMENT OF SYDNEY W. SCHOELLMAN
Ms. Schoellman. Hello. Good morning. I would first like to
thank all of you for inviting me here today. I feel honored and
greatly appreciate the opportunity to testify on behalf of
veterans and their families.
Before I begin, I want to introduce myself and the
gentleman sitting behind me. My name is Sydney Willingham
Schoellman. I live in Allen, Texas, with my husband and two
children near both my mother and one of my sisters, Sarah Bell,
who is here in attendance today. The gentleman sitting behind
me, Larry Taylor, is an attorney for Johnny Cochran's firm in
Dallas and previously served as both an Assistant District
Attorney for Dallas County and as the Director of Outreach for
Congresswoman Eddie Bernice Johnson. Larry and our family
became dear friends due to our matching principles concerning
faith and our United States veterans.
I come to you all today on behalf of not only my dad,
deceased Korean War veteran Gary Willingham, but also on behalf
of all veterans and their families. My dad was a vibrant, God-
fearing patriot who, at the age of 80, lived a full and active
life completely independently. He was a great man of faith who
lived his life based on strong principles. My dad loved the
United States and never passed on exercising his right to vote
and never missed a birthday party for one of his very own
grandchildren. He was the model of what a dad, grandfather, and
citizen should be. He was not a man that took handouts, not
even as he struggled to raise three daughters on his own.
Because he believed in earning everything he received, he
felt it was only appropriate to rely on the VA Health System
for his health care needs. He did, after all, earn it. It was
his pride and his belief that made him continue to use the
Dallas VA for his health care for many years.
In 2009, he noticed a lump forming in his neck, so he went
to the Dallas VA to have it looked it. After over a year of the
VA's doctors unsuccessfully trying to find out what was thought
to be cancer, they recommended surgery to remove the lump.
After removing the lump, they guessed that the problem must be
his tonsils, so they removed them. They discovered after the
tonsillectomy that they had guessed wrong.
By 2010, the lump in his neck had returned, and the
surgeons at the VA, again, recommended to my dad that they
should operate to remove it. On the morning of November 18,
2010, my sister, my dad, and I arrived at the Dallas VA at
approximately 5:45 in the morning. He was not taken back to
begin surgery until 2:25 p.m. After waiting for more than six
hours, two surgeons emerged and began telling us about the
surgery. During their explanation, we were told that multiple
tears had been made into his jugular vein, which caused a
massive blood loss. To stop the blood loss, they began clamping
everything. The next statement is a direct quote from the
surgeon. ``We realized six minutes later that we had clamped
his carotid artery.''
We found out later when we obtained the medical records
that his carotid artery was actually clamped for 15 minutes,
not the six minutes that we were initially told. Due to the 15
minutes that my dad's brain was not getting oxygen, he suffered
a massive stroke. He would undergo three more surgeries to stop
the internal hemorrhage that kept forming in his neck. His
fifth surgery to place a feeding tube would occur a mere three
days after the first.
My dad would spend approximately three weeks in ICU and
would later spend a week on the patient floor. After the week
on the patient floor, we were told that he needed to be
discharged because, had he not suffered a stroke, he would have
already been discharged.
At that time, we were also told that due to the tracheotomy
in his neck, he could not continue his care at the VA's rehab
facility because they were not equipped to handle patients with
tracheotomies. We were urged by an employee at the Dallas VA to
get our dad out of that hospital because it was not safe for
him. We were also told to obtain his records as quickly as
possible before they disappeared.
We used private health insurance to place him in other
rehabilitation facilities. I want to stress that our family
made important, life-changing decisions on behalf of my dad
because we thought he had a chance at recovery based on the
thought that he had only suffered a stroke with six minutes of
oxygen lost to the brain. Had we known the truth, that he had
such a massive stroke of 15 minutes of oxygen loss to the
brain, we would have never made some of the decisions we did to
aggressively rehabilitate him.
We know now that someone who has such a massive stroke has
been given a death sentence. It is only a matter of when, not
if, they will die from the complications of the stroke. My dad
spent the last six months of his life in a skilled nursing
facility at the VA. Every day, his dignity was stripped away as
he defecated in a diaper and then dug his own feces out because
he was being neglected.
Despite promises that these issues would be addressed, my
dad died on December 24, 2011, due to bacterial sepsis and
aspiration pneumonia. E-coli bacteria, like those found in
feces, were found in his body and around his heart. He also
drowned in the tube feedings that had been improperly
administered.
Since his death, our family has filed a Federal Tort Claim
against the VA. After filing the claim, we were shocked to find
out that the attending surgeon could not be held liable for his
medical negligence because contrary to the surgical notes, he
was not a Dallas VA employee. As a result, the VA is refusing
to claim full responsibility for an act committed in their
facility.
I am here relaying our graphic, horrific experience, so
that no other veteran or their family will experience what we
did. In my time working for a large health care system in
Texas, I learned quite a bit, and I have been able to take what
I learned and apply it to the experience we had and can tell
you without any doubt that this system is severely broken.
Again, I want to thank you all for asking me to testify
today, and I would like to leave you with one last statement my
dad made to me. On his deathbed he said to me, ``VA murderers.
Get them, Syd.'' While I am not getting anyone, I will spend
the rest of my life fighting for these national treasures and
their families with the hope that no one will ever go through
or lose what we did.
At this time I am happy to answer any questions.
Thank you.
[The prepared statement of Sydney W. Schoellman appears in
the Appendix]
The Chairman. Thank you.
Dr. Hollenbeck.
STATEMENT OF PHYLLIS A.M. HOLLENBECK, M.D., FAAFP
Dr. Hollenbeck. Thank you. Ladies and gentlemen, good
morning. Thank you for the opportunity to bear witness to the
state of veterans affairs at the G.V. Sonny Montgomery Medical
Center in Jackson, Mississippi. I did not have the honor of
meeting Sonny Montgomery, but I have met people who have and
who knew him well, and I know he served as Chairman of the
United States House of Representatives Veterans' Affairs
Committee from 1980, to 1994, and I know his answer to the
political question of, are you red or blue was always, I am
red, white, and blue.
And I want us all to remember, and I think it has already
been brought up so eloquently by the people who preceded me, in
two days we celebrate--not celebrate, but remember the 12th
anniversary of 9/11. This hearing is about the human treasure
that we sent and that we lost in those wars.
Our medical center in Jackson is named after Sonny
Montgomery because he was a combat veteran who came back from
war and became a champion for the lives of all veterans. He
understood what it means to serve in the United States
military, and he did not want veterans to have to fight more
battles at home.
The current state of affairs and deliberate mismanagement
by leadership at the VA Medical Center that bears his name
would sicken him. It dishonors all those who signed up to put
their lives on the line for others, and it shows contemptuous
disrespect for the VA motto taken from Lincoln's second
inaugural address, and I am going to paraphrase, to care for he
and now she who had borne the burden.
Terrible, illegal, and unethical things have happened and
still happen at the Jackson VA Medical Center, matters of life
and death. This is an American tragedy. As playwright Arthur
Miller wrote in Death of a Salesman about another time of
heartache in this company, ``Attention must be paid,'' and
consequence for those responsible must ensue. For too long, the
leadership responsible for the G.V. Sonny Montgomery VA Medical
Center has eluded all consequences and accountability.
Yes, attention must be paid, and this time heads must roll,
or nothing will ever change.
I became a whistleblower with the Office of Special
Counsel, United States Department of Justice, for the same
reason I wrote a book called, ``Sacred Trust--The Ten Rules of
Life, Death, and Medicine.'' The practice of medicine is a
sacred trust between two human beings, doctor and patient.
Medicine is a service profession. As a medical school professor
told me, we work for the patient, and I, and the multitude of
dedicated, committed, and excellent members of patient care
teams at the Jackson VA Medical Center signed up to work for
the veteran. It is a humbling honor to be asked for help from
another human being and to have he or she put their life in
your hands.
But the leadership at the Jackson VA Medical Center caused
the primary care service to disintegrate because they did not
truly care about the mission.
My expensive written testimony details the specific and
serious violations of Federal and individual state laws and VA
regulations and rules occurring in primary care at the Jackson
VA. OSC charged the VA with investigation of my whistleblower
complaint, and I know that the team substantiated my concerns.
The findings include not enough physicians in primary care.
A ratio of three nurse practitioners to one doctor, the inverse
of comparable institutions. Nurse practitioners improperly
credentialed as independent practitioners, when their state
licensing guidelines require collaborative agreements signed by
physicians. Collaborative agreements signed but legal licensing
requirements violated. Still no policy in place for any
oversight of nurse practitioners and their clinical care.
Multiple-patient scheduling problems, multiple, ``problematic
behaviors,'' indicating a high likelihood of quality of care
and patient safety issues. Illegal signing of Medicare home
health certifications and illegal prescribing of narcotics by
unsupervised nurse practitioners.
Essentially, everything that happens in primary care at the
Jackson VA, can be included under the umbrella of being
unethical, illegal, heartbreaking, and life threatening for the
veterans, and everything in the care of the veteran starts in
primary care.
A casual and careless disregard for the law and the
veterans and dedicated employees is the management mode of
leadership at the Jackson VA. The names of the regional and
local administrative and medical leadership are included in my
written testimony. I will name them now as others have
certainly named specific people at their institutions.
Rica Lewis-Payton, Joe Battle, Dot Taylor, and Drs. Kent
Kirchner, James Lockyer, Jessie Spencer, and Greg Parker. I
have included the details of their illegal and unethical acts
and attitudes and specifics on nurse practitioners.
I promised my Iraq War Army veteran son I would let the
Committee know veterans have lost faith in the VA System and
thus government, and so I charge you not to fail the veterans
this time. As a character in Arthur Miller's play, ``All My
Sons,'' cries out when realizes his unethical acts have caused
the deaths of servicemen, they are all my sons, all the
veterans are the sons and daughters of all of us. They deserve
only our best.
Thank you.
[The prepared statement of Phyllis A.M. Hollenbeck appears
in the Appendix]
The Chairman. Thank you, Doctor.
Mr. Nicklas.
STATEMENT OF ROBERT E. NICKLAS
Mr. Nicklas. Thank you. Good morning. My name is Bob
Nicklas. I am the oldest son of William Nicklas, who died on
November 23, 2012, from the Legionella bacteria which he
contracted while a patient at the VA Hospital in Pittsburgh.
Before I would begin, I would like to thank the Committee for
arranging this field hearing in Pittsburgh. Without the support
of the Chairman of the House Veterans' Affair Committee,
Congressman Jeff Miller, our local congressmen Tim Murphy,
Keith Rothfus, and Mike Doyle, and Senator Bob Casey, as well
as the members of the press such as Shawn Hamill of the
Pittsburgh Post-Gazette and Adam Smeltz of the Pittsburgh
Tribune and Review, and all of you who are here today and were
here with us at the Congressional hearing in February, we may
never know the truth.
My father, William Nicklas, was not only a devoted husband,
father, and grandfather, but also a proud, loyal veteran who
served his country in time of war. In 2008 at the age of 83, he
helped my brother construct a memorial to the World War II
veterans in his community, and every day at our home, the
American flag would be seen flying in our front yard as a
symbol of his belief in his country.
On November 1, 2012, my father entered the VA Pittsburgh
Hospital. He and my mother had private health insurance,
however, he opted to go to the VA because he believed that is
where a veteran would get the best care. For the first 16 days
of November, my father was allowed to shower and drink the
hospital water without any warning from the VAPHS that a CDC A-
Team was already on site working on an ongoing problem with the
deadly Legionella bacteria outbreak, and that the CDC had
already linked the cases of two VA patients who contracted
Legionnaires to the hospital.
My father came down with a fever and elevated potassium
levels and was moved to the ICU. Hospital staff advised us that
he had an infection, and we were assured that they were running
the proper tests to determine the cause. You cannot imagine the
shock and anxiety we experienced on Friday, November 16, 2012,
when we learned that the VA had announced a Legionella
outbreak.
The next day during our visit, we noticed that signs had
appeared which read, ``Due to waterline problems, this fountain
is out of order,'' or ``Due to waterline problems, do not
use.'' Still there was no mention of Legionella or
Legionnaires.
Over the next several days, it was heart wrenching to watch
my father's slow, painful decline. He was obsessed with trying
to get the poison off of himself. He was scared and concerned
that they were going to poison us, too. As I sat there the
night of November 23, 2012, holding his hand, he drew blood as
he pinched my skin over and over again, in an attempt to pick
the poison off the back of my hand. We told him that we loved
him and that we would see him the next day. That would never
be. He passed away that night at the VA.
We are left with many questions. Why were we not warned
that the CDC was onsite? Why wasn't something done after the
first person died, the second, the third, the fourth? Why was
the testing not done sooner on my father when they knew there
was a Legionella problem? Why did the VA not accept the help
that they were offered by consultants such as Enrich or
Liquitech? The questions go on and on and on.
More than nine months ago, we began to ask questions about
this situation, which has devastated our family. Those
questions have led us on a journey. We were raised to respect
our government and its institutions, but with all we have
learned through your investigations and press reports, we are
very disappointed that no one has been held accountable.
While we know that we do not have the power to get the
answers, you do. In February, we attended the Congressional
hearing in Washington, DC. No one from the Pittsburgh VA
Hospital administration attended, and those VA representatives
who did were unable or unwilling to answer specific questions.
Since then, countless reports have appeared in the press and on
local and national television, yet still no accountability.
In April, the U.S. Office of the Inspector General released
a report that detailed many systemic problems that allowed
Legionella bacteria to flourish in the system, and the Director
of the VA responded to this report by saying, ``They validated
what we already knew,'' yet no one has said who is responsible.
Imagine what my family has been through. Do not forget the
veterans who senselessly lost their lives through a long,
painful process full of anxiety and struggle. I am asking
everyone who is present today to reflect on this one question.
What would happen if you had performed your job in the same
manner as the Administration at the VAPHS? Would you still be
employed? Would you still have your benefits? Would you be
receiving bonuses?
We urge Congress and all veterans to join us to demand
answers and accountability. The same tax dollars paid by every
citizen, including family members affected by this travesty,
are the same tax dollars used to pay the salaries, benefits,
bonuses, and budgets of the employees of the VAPHS. We beg you
to please help us get the answers and accountability which the
following veterans deserve. My dad, William Nicklas, John
Ciarolla, Clark Compston, John McChesney, Lloyd Wanstreet.
Thank you for this opportunity to testify, and I would be
happy to answer your questions at this time.
[The prepared statement of Robert E. Nicklas appears in the
Appendix]
The Chairman. Thank you, Mr. Nicklas. Ms. Nicklas, thank
you for being with us as well.
Ms. Ciarolla.
STATEMENT OF MAUREEN A. CIAROLLA
Ms. Ciarolla. Good morning. I want to thank you for the
opportunity for us to testify here today on behalf of my family
regarding the VA Pittsburgh Legionnaires outbreak. My name is
Maureen Ciarolla, and I am the eldest daughter of John J.
Ciarolla, a United States Navy veteran, who died from
Legionella while residing in the Pittsburgh VA Healthcare
System.
Our father entered the VA Healthcare System on January 22,
2011, became a resident of the H.J. Heinz Facility here in
Aspinwall and died six months later on July 18, 2011, and as of
present time, he is the first veteran to die of the
Legionnaires. While our father was in the Pittsburgh VA, we
were actively involved in his life and his medical care. In
fact, there is a notation in his medical records warning of
just that.
First, my testimony today has nothing to do with the people
who worked directly with the veterans. We would like to thank
all of the employees and staff at the Aspinwall Facility who
were very kind and professional while our father was there, and
we would like all of them to know our appreciation.
We are here today as family members who lost a loved one
and to take part in the continuous effort to find out how and
why this Legionella problem got so out of hand here in
Pittsburgh, causing our father and other veterans to die
prematurely, obviously.
There can be no more tolerance for the tactical usage of
stonewalling, and we should reject any evasive responses to
questions and compel a lucid answer by all means necessary, and
we demand clear answers to questions, and that those
responsible are held accountable. All the victims and all the
families who lost loved ones and all veterans are at least owed
that much.
This micro pandemic, if you will, in the Pittsburgh VA was
predictable. In fact, in 2008, top-ranking VA officials, some
who are here today, were informed that this very situation was
going to happen. If for whatever reason they weren't aware
prior to 2008, they should have known what was going to happen
in the future. At one time, the Pittsburgh VA had the leading
Legionnaires' research facility in the world called the Special
Pathogens Laboratory. In 2006, an administrative decision was
made to close this research department and destroy decades of
research in the process. This decision was deemed so bizarre
and irresponsible that Congress had a hearing over that very
matter.
Five years ago to this day on September 9, 2008, a hearing
was held by a Subcommittee on Science and Technology. The
subject was about how a lack of a coherent policy allowed the
Pittsburgh VA administration to destroy an irreplaceable
collection of Legionella samples. This report is public record
and took place three years before our father contracted this
fatal pathogen at the Pittsburgh VA. The information and
discussions in that hearing record is the very reason why we
say this Legionella mess was, indeed, predicable.
Mr. Michael Moreland, I believe, was the incoming Director
of the Pittsburgh VA. The record goes on to say that he and
Associated Chief of Staff for Clinical Services, Dr. Mona
Melhem, oversaw the decision to close down the nationally-
acclaimed laboratory and order the acrimonious destruction of
the Legionella isolates and water samples containing the
Legionella bacteria that had been accumulated by Dr. Janet
Stout and Dr. Victor Yu over the decades of their research of
this disease.
The Subcommittee investigative report points out that after
months of investigation, the Subcommittee have not revealed any
credible reason for the destruction of this collection. What
was also relevant, evident was that administrators at a major
VA hospital had allowed personal animosities and goals to
overcome its own processes.
Mr. Moreland and other witnesses from the VA should
remember that their testimony today is under oath, and it is
simply not credible, that important technical decisions were
made entirely based on conversations with no documentation.
Well, here is an important question if we are all seeking
the truth. If Mr. Moreland's testimony wasn't deemed credible
back then before deaths ensued as a consequence of his
decision, how credible can his testimony be after this
disaster? The record continues. I cannot imagine the
circumstances under which a Federal health agency official
would unilaterally order the destruction of human tissue
collection without receiving the approval of agencies research
office, and the Research Compliance Committee and why that
official would apparently make false statements during the
destruction to keep the Associate Director for the research at
the center in the dark until the destruction was complete.
When Dr. Stout was questioned about the need for ongoing
research because the bacteria kept changing, so as to stay
ahead of it, she states, we have been, for many years, trying
to put the tools in the toolbox to prevent the disease, which
includes treatment of water distribution systems with various
methods to control the presence of the bacteria in the water,
and just like with antibiotics, there is no perfect solution,
so we continuously do research to perfect the techniques. And
she attached a report of the September issue of ``Clinical
Infectious Diseases,'' demonstrating that there is an increase
in the number of cases of Legionnaires that have been noted.
Dr. Yu testified that microbes are evolving and antibiotic
resistance is now a major problem, and two days prior to the
sample destruction they had received a commentary from one of
their colleagues in France regarding just that concern.
And finally, one Subcommittee Member finally commented
that, ``All of us may pay a price for this conduct, veterans
most of all, because the Nation lost one of its leading
research labs on hospital infectious diseases.''
Well, veterans did pay a price. On February 13, 2013, the
CDC Report to the U.S. House Committee on Oversight and
Investigations states, in fact, that 32 cases of Legionnaires
Disease was diagnosed at the Pittsburgh VA between January 1,
2011, and October 21, 2012. Prior to the release of that CDC
report, the VA vehemently had claimed that there was only one
death. Well, after that report they were compelled to come
clean. There were at least five, and now a possible sixth death
is linked.
We don't know, nor do I think we will ever know how many
victims there were in the past or that exist today. They
definitely chose to be careful and quiet about this. In our
case during the week of July 11, 2011, we were adamantly told
by our father's clinical care nurse practitioner and the doctor
who ultimately signed his death certificate and I quote,
``Legionella had nothing to do with your father's condition. We
treated and cleared that with antibiotics before we put on the
ventilator.''
Additionally, there were two different water system
representatives that gave testimony in February of this year.
Mr. Aaron Marshall, Operations Manager for Enrich Products,
which supplies copper-silver ionization systems for the control
of Legionella, testified that in June, 2012, the VA contracted
them to perform a review of their copper-silver ionization
system and its operation at the University Drive facility.
However, the VA withheld critical data from them and requests
to access, to view the Legionella test results were denied.
They were denied that information.
He also stated that he first learned of the Legionella
problem at the VA through the media that some deaths had
already occurred. He stated there, copper-silver ionization is
an effective method of controlling Legionella bacteria.
However, it needs to be properly maintained and regularly
monitored. And if they had been aware of the situation, we
would have recommended implementing the reactive course
immediately.
And Mr. Steve Schira, Chairman and CEO of Liquitech, the
company that manufactured the Pittsburgh system, in his
prepared statement says, it was simply a matter of maintenance
and if Liquitech were notified, we would be able to correct the
problem and eliminate the Legionella bacteria within 24 to 48
hours once action was taken. And he goes on to say that the
outbreak at Oakland Pittsburgh VA could have been prevented
with standard maintenance and open communication.
Think about this for a minute. You eliminate the world's
renowned Legionella experts whose life's work is all about
preventing, eliminating, and treating those that contract the
deadly bacteria, and by all reasonable accounts, they would
have been the first responders the moment before this deadly
bacteria reached this critical stage. Ignored the procedures
and the advice of the product manufacturer that helps to keep
the bacteria in check and withholding critical information from
the water treatment professionals while knowing that the deadly
bacteria, Legionella, was lurking in the water systems at the
Pittsburgh facilities.
If he eliminated the advice and the work of all these
people when the disaster is predictable, who was Mr. Moreland
getting advice and counsel from? And if you read the records of
those 2008 hearings and 2013 hearings and all that was
discussed there, it should be criminal.
Under Mr. Moreland's watch, adequate policies and
procedures were either disregarded or non-existent. Warning
signs and recommendations were either ignored or considered
insignificant, and there was certainly a complete lack of
communication and request for help according to the water
systems experts.
At the February 5 hearing of this year in Washington, DC,
Mr. Moreland had no prepared statement and testified to that
Subcommittee that he didn't know too much about the issue or
that it is complicated. In fact, he testified he first became
aware that there was a concern of Legionella, Legionnaires at
the Pittsburgh VA in the fall of 2011. Apparently, Mr. Moreland
was clueless in 2006 about the Legionella bacteria generally,
attending the 2008 hearings over that decision that led to
those hearings, and he didn't learn a thing, and he is still
clueless about the Legionella issues in his own facilities in
2011, 2012, and now we find out 2013.
Additionally, the Veterans Affairs Office of the Inspector
General issued two reports this year, one in April and one in
July, finding that the Pittsburgh VA had, in fact, inadequate
maintenance at all times of the copper-silver ionization
system, failure to conduct routine flushing, failure to test
patients with hospital-acquired pneumonia for Legionella,
inadequate testing requirements, and utilized loopholes in
reporting Legionella to the CDC, state, and county health
agencies.
Like I said, this situation was predictable, and if,
indeed, predictable, then casualties were imminent. If deaths
were imminent, then that had to be acceptable to those
knowingly responsible. Mr. Moreland and his administration
regime knew that the water system at these facilities had a
Legionella problem, eliminating a diligent water monitoring
scheme, obstruction of investigations, and the misleading of
families and agencies was no less than gross negligence and
gross misconduct or complete incompetency. Either way, a
deliberate gamble, and veterans paid the price and lost their
lives over it, and all while collecting five-figure bonuses.
And there is no other way for us to look at it.
Thank you.
[The prepared statement of Maureen A. Ciarolla appears in
the Appendix]
The Chairman. Thank you to each of the witnesses. Let me
lay out to you what we are going to do. We will rotate back and
forth between the Members on questions. We are going to go into
a five-minute round of questioning, and then when the last
Member asks a question, we will rotate back to the Chair.
We may also have some questions that the Committee may want
to send you after this. We hope that you will be willing to
answer those questions for us to make the record complete
because obviously there may be other testimony that comes up
after yours and we may want to ask you follow-up questions
about that testimony.
So with that, I will recognize myself for five minutes and
go back to you, Ms. Petit.
Thank you for your compelling testimony. I cannot tell you
how angry I was when I got a frantic call from VA telling me
that they basically forgot to tell me about a suicide that had
occurred prior to our visit.
But what I am additionally angry about is that in your
testimony you talked about a friend of your brother's, I think,
saying that your brother had told him that he was feeling
suicidal when he went to the VA----
Ms. Petit. Yes, sir.
The Chairman. --and my question is, please expound on that
a little bit, and how did the VA respond to the fact that they
had a veteran on their campus that they knew had expressed
suicidal tendencies.
Ms. Petit. It seemed like they just basically ignored him.
They turned him away several times. Any time they did--they did
commit him also to try to help some, but they would change his
medication and basically release him again. His medications, he
was on so many different medications that, I mean, you
shouldn't, there is no reason to have that many medications
going into one body. It is just crazy to me.
The Chairman. Do you know if there was any documentation of
the incident in your brother's medical record?
Ms. Petit. I do not know. I have not seen his medical
records. The police report we got when me and my mother went up
there, we requested it, it took quite a bit of time to get a
police report.
The Chairman. This was the VA's police report. Correct?
Ms. Petit. Yes, sir. It took quite a bit of time to get it,
although we had written a statement and requested it when we
picked up his belongings. Somehow it fell through the cracks,
and then one of the VA representatives actually helped us
obtain it. When we got it, there was black. So many places had
been marked out. It was--I don't know if that is standard
procedure, but, I mean, it is my brother. I should be able to
read what actually happened, all of it, not just bits and
pieces of it.
The Chairman. And you have yet to see an unredacted version
of that.
Ms. Petit. Exactly.
The Chairman. To the Nicklas family and Ms. Ciarolla, the
testimony after you from VA, we had an advanced copy so we have
had a chance to read it, it talks about the medical center here
in Pittsburgh conducting information sessions which the
Department is using to relate timely information and updates
about Legionella surveillance and treatment efforts to local
community partners. Are you aware of these, and if so, have you
attended any of them?
Mr. Nicklas. I did not attend any.
Ms. Ciarolla. Not at all.
The Chairman. Is anybody in the room aware of any of these
taking place?
Thank you. Mr. Michaud.
Mr. Michaud. Thank you very much, Mr. Chairman.
Mr. Nicklas, this question is for you, and first of all, I
am sorry for your loss. Aside from the signage indicated not to
use the waterlines, was there any guidance given to the
veterans and their families by staff regarding the Legionella
outbreak?
Mr. Nicklas. No. When we heard the Legionella outbreak on
the news on the 16th of November, I believe, we went in to see
my dad the following day, and that is when we did notice the
signs on the water fountains and on the sinks in every room,
especially do not use due to water pipe problems, do not use,
but there was no other mention on Legionella or Legionnaires
while we were there.
Mr. Michaud. So no staff told you anything about it at the
time.
Mr. Nicklas. No.
Mr. Michaud. Okay. Ms. Petit, this question is for you, and
I am also sorry for your loss as well.
Ms. Petit. Thank you.
Mr. Michaud. As a family member, what do you believe would
have been more helpful to you from the VA as far as
understanding what your brother was going through?
Ms. Petit. I think they need to reach out to other family
members, friends. A death doesn't just affect the next of kin.
They need to reach out to more people and find out what is
going on.
Mr. Michaud. This one here is for Dr. Hollenbeck. In your
testimony, you mentioned that doctors were leaving and you were
one of only three care physicians. What do you think should be
done to improve the recruitment and retention for medical
staff, you know, system-wide?
Dr. Hollenbeck. Well, I will tell you that there have been
a total of eight providers in my prior--I worked four years in
primary care and for the last year, I worked in compensation
and pension. Taking care of my panel of patients, which is
roughly 1,000 people, eight different, seven physicians and one
nurse practitioner who rotated through. They finally got a
fourth physician, and he quit recently after two months. He was
pressured again with an overload, the same kinds of patient
scheduling things I got when I was working. He was also
pressured about prescribing narcotics on patients that he
didn't take care of, and the only way you are going to keep, be
able to recruit and keep physicians which the OSC or the VA
Investigative Committee is very clear we don't have enough of,
is, you can't overload them, you can't ask them to be double-
booked, with no control, then see every walk-in that comes in.
Again, your hairdresser doesn't work like this. Certainly
no decent medical facility does, and you could offer more
money, but you will keep people if you treat them as decent
human professionals taking care of other human beings.
Mr. Michaud. Thank you. This question is also for you. The
testimony from Buffalo, New York, facility points out the
discrepancy between how staff and management are held
accountable. Can you comment how that pertains to Jackson?
Dr. Hollenbeck. Well, I think there is no accountability
for administrative or medical leadership. I have extensive
documentation of emails, the whole series of events, physicians
told by other physicians to break the law, including physicians
in training from the University of Mississippi Medical Center.
To my knowledge, no medical licensing board has been allowed to
discipline any of the physicians or even investigate it. I know
that nurse practitioners who have broken the law have not been
investigated or disciplined, however, I do know that if you are
a regular employee, I would wager that if I did anything even
possibly wrong, people have warned me that they would probably
try to change the documented, the computer system, I believe,
that has been mentioned.
So I think that the average employee, and I know people are
called in for all kinds of things. Any time you speak up as a
regular employee you are called on the carpet, but you can
break Federal, state laws, Federal regulations and rules and
nothing happens. In fact, Dr. James Lockyer, who was our chief
of primary care through most of the events I outlined, he
stepped down as chief of primary care in March when the first
``New York Times'' article came out. He wasn't asked to leave
before that, then all of the sudden he was reassigned, but he
got another job as a chief of primary care at Mountain Home
Health Systems in Tennessee.
Now, somebody, several people had to give him
recommendations to get another job to go do, I would say, the
same problematic behaviors at another VA, and those people have
to be our VA, obviously medical----
Mr. Michaud. Thank you. Thank you, Mr. Chairman.
The Chairman. Mr. Murphy.
Mr. Murphy. Thank you, Mr. Chairman.
Ms. Ciarolla, I just have a question. When you were at the
hospital, was there any mention of Legionella in the water
systems that had been detected there during that time?
Ms. Ciarolla. No, sir. No, sir. We found out when my father
was rushed from--my father was in the hospital for--he was
taken from the Heinz Facility over to the Oakland Facility in
the emergency room.
Mr. Murphy. Was there any signs or warnings that you
shouldn't use any of the water systems within the hospital?
Ms. Ciarolla. No, none at all.
Mr. Murphy. And the VA said you should test your water at
home for Legionella. Am I correct?
Ms. Ciarolla. Yes.
Mr. Murphy. Do they tell you how to do that?
Ms. Ciarolla. They said they would send a sample.
Mr. Murphy. Just send a sample of the water from your
house?
Ms. Ciarolla. They said they would send a sample packet.
Mr. Murphy. Okay, and did you follow that instruction?
Ms. Ciarolla. No, we did not.
Mr. Murphy. Okay. Ms. Nicklas or Nicklas, when you were at
the hospital, did you see or hear of any warnings or signs
regarding use of water or restrictions of water on the hospital
room?
Ms. Nicklas. Just the signs that we had seen when we went
on November 16, is when it was announced in the news. We had
seen it on the news, and we went.
Mr. Murphy. Prior to that no signs at all, no warnings at
all?
Ms. Nicklas. The 17th when we went in they had signs.
Mr. Murphy. The 17th of 2012?
Ms. Nicklas. It didn't say anything about Legionnaires. It
just said waterline problems.
Mr. Murphy. That was in 2012?
Ms. Nicklas. Yes.
Mr. Murphy. And what did--can you recall what those signs
said? Either one of you? Can you tell us?
Ms. Nicklas. One said due to waterline problems, this
fountain is out of order, and then other signs said, due to
waterline problems, do not use.
Mr. Murphy. But no mention at all of an infections?
Ms. Nicklas. No mention about Legionnaires or Legionella.
Mr. Murphy. Just curious. When you were at the hospital,
did you see any other signs that said such things, you should
wash your hands?
Ms. Nicklas. I do not recall.
Mr. Murphy. Do you recall, Ms. Ciarolla? There is usually
signs----
Ms. Ciarolla. No, I don't----
Mr. Murphy. --around the hospital that recommends one
washes their hands. Subsequent to that did anybody at the
hospital, Mr. Nicklas or Ms. Ciarolla, tell you of any other
concerns about using water later on, perhaps after the death?
No one ever mentioned anything about the water systems there?
Ms. Nicklas. When we went in on the 17th, that is when they
had started using the bottled water. In fact, it was out in the
public because it was announced on the news the night before.
Mr. Murphy. Okay.
Ms. Ciarolla. I would like to say that when they called my
home about--my father, we had my father at a facility for two
afternoon visits on the weekend of Father's Day of 2011, so
they called up my home and they wanted to test my water at home
and my sister's water at home. My knowledge of Legionella at
that time was air conditioning units. I mean, that is what it
was, and my first response was, I don't have central air, and
they said that you can catch it anywhere.
Mr. Murphy. When they offered to test your water or other
elements like that, do they ever suggest that it might be
hospital-based water that might be part of this?
Ms. Ciarolla. No. What they said to me was, when I
questioned them that if I had Legionella bacteria in my water,
would not somebody in my home be sick? Would I not feel ill?
And their response to me was, if we had other cases, and I
quote this, ``If we had had other cases here at the hospital,''
if he had contracted it here----
Mr. Murphy. Wait. I think--let me rephrase the sentence.
They were saying if they had other cases, the hospital, were
they--were you----
Ms. Ciarolla. No. They----
Mr. Murphy. Did you conclude from that, they did not have
other cases?
Ms. Ciarolla. Yeah. Let me rephrase that.
Mr. Murphy. You just have a few seconds.
Ms. Ciarolla. They said to me, if he had contracted it here
at the VA, we would have other cases, and that statement made
sense to me.
Mr. Murphy. Because at that time did you know they had
other cases?
Ms. Ciarolla. No.
Mr. Murphy. Mr. Nicklas, when--Ms. Nicklas, when you were
handed bottled water and the news came out that Legionella was
found in the water system, at that time, did anyone brief you
about precautions to use with the water in the system?
Ms. Nicklas. No.
Mr. Murphy. And did they look back with you and ask you in
the past had he been exposed to water in the system, the
showerheads, water fountains, or anything like that?
Ms. Nicklas. Absolutely. He was in the hospital from
November 1 to November 16. He was showering, he was drinking
water, he was eating ice cubes. He had a fever, so, yes,
absolutely he was exposed.
Mr. Murphy. One last question. Ms. Ciarolla, what was your
reaction when you found Mr. Moreland received a bonus, and part
of that bonus was recognition for his infection control efforts
at the VA Pittsburgh?
Ms. Ciarolla. Well, I always--my question from the time--
because we did not know about this, the ongoing----
Mr. Murphy. What was your reaction?
Ms. Ciarolla. My reaction was there is the smoking gun.
Mr. Murphy. Thank you. Thank you, Mr. Chairman.
The Chairman. Mr. Doyle.
Mr. Doyle. Thank you, Mr. Chairman. I really don't have
questions for this panel. My questions are for the VA, and the
questions I am going to ask are the questions that you have
asked in your testimony. I think Mr. Murphy has clarified the
situation. I was going to ask whether they were actually told
there was Legionella outbreak when those signs were put up, but
I think you have answered that question.
So I will reserve my time for the VA panel.
The Chairman. Thank you. Mr. Rothfus.
Mr. Rothfus. Yes. I would like to ask several questions
here.
I would like to go down the line with the family members
and hear from each of you on this question. Do you know of
anyone at the VA who has been held accountable in any form for
the failures that you have identified this morning? For
example, have there been any suspensions, sanctions, or
terminations?
Ms. Ciarolla, we will start with you and go down.
Ms. Ciarolla. No, none at all.
Mr. Rothfus. Mr. and Mrs. Nicklas?
Ms. Nicklas. No, none that we know of, but they have gotten
bonuses.
Mr. Rothfus. Dr. Hollenbeck?
Dr. Hollenbeck. No, absolutely not, and like I said,
someone else got another job to do the same thing at another
thing at another VA.
Mr. Rothfus. Ms. Schoellman?
Ms. Schoellman. No.
Mr. Rothfus. Mr. Rakiecki?
Mr. Rakiecki. No.
Mr. Rothfus. Ms. Petit?
Ms. Petit. No.
Mr. Rothfus. You know, we have another anniversary coming
up in our country, a very sad one and one of the most tragic
ones, November 22. I was only one year old at the time, but
everything I hear was about President Kennedy's call to public
service. ``Let the public service be a proud and lively
career,'' he said, ``and let every man and woman who works in
any area of our national government in any branch, at any
level, be able to say with pride and with honor in future
years, I served the U.S. government in that hour of need.''
I would like to ask a question of our whistleblowers here.
Do you think there is a, you know, you look at President
Kennedy's call to public service. I am hearing from your
testimony, do you think there is a double standard at play here
with folks at the rank and file and the senior executives?
Mr. Rakiecki. Yes, sir.
Mr. Rothfus. Dr. Hollenbeck?
Dr. Hollenbeck. There is an absolute double standard. It is
obscene. As I said, I have been warned as a whistleblower. I am
glad you said protecting witness, Chairman Miller, when you
introduced me. I have been warned they might go into the
system, say I was AWOL, things like that, try to say I, you
know, didn't do my job, there have been complaints about me,
that all the sudden they found things like that, so I think
they definitely punish anyone who speaks out, but even when
there is a huge amount of evidence as I think we all have, the
egregious misconduct and callous disrespect, callous disregard
for the rules and the veterans, in particular the veterans,
always first, the veterans, there is no consequences, and in
fact, there are rewards, financial and promotions.
Mr. Rothfus. I know one of the ongoing complaints of the
families that were affected by the Legionella outbreak here in
Pittsburgh is the VA's failure to communicate and provide
information and answers. I share that frustration, particularly
with respect to the VA's blatant disregard of requests made by
this Committee dating back to January to turn over key
documents and emails related to Legionella outbreak. For all
these reasons, I joined my colleague, Congressman Murphy in
calling for Secretary Shinseki to come to Pittsburgh to meet
with the impacted families as soon as possible to provide
answers. He has yet to do this.
I am interested in your experiences. Has the VA been
forthcoming and responsive in disclosing information pertaining
to the events that have affected your family, Ms. Ciarolla?
Ms. Ciarolla. No, and the medical records that were
received are an absolute mess.
Mr. Rothfus. Have they been accessible and responsive to
your questions?
Ms. Ciarolla. No.
Mr. Rothfus. Mr. and Mrs. Nicklas, have they been
responsive in disclosing information to you?
Ms. Nicklas. No, they have not.
Mr. Rothfus. Have they been accessible and responsive to
your questions?
Ms. Nicklas. No, they have not.
Mr. Rothfus. I thank the Chairman and yield back.
The Chairman. Thank you very much.
Dr. Hollenbeck, let's continue with some questions about
Jackson. In VA's written testimony it states this, ``The
Jackson VA Medical Center Director and other facility leaders
maintain an open-door policy for veterans to speak with them
about their concerns, and the Director has personally addressed
the comments provided by them on comment cards at the town hall
meeting.''
Could you respond to that and explain what you think that
means?
Dr. Hollenbeck. Well, what it means in real life is that
you can respond to something, you can answer a question, you
can come to a town hall meeting and stay and let someone talk
and say, I am very concerned. I will get back to you, or I will
look into it, and that is the end of that. To me that means
they think it is a joke. I know that I have veterans who are
patients of mine and say they have waited and waited hours
outside Mr. Battle's office, and they have been told they won't
get to see him that day. Then they have been told they will get
a call. An 88-year-old veteran said he waited by his phone all
day because he don't have a cell phone, so he didn't leave his
assisted living apartment, waiting for the call.
I also know the veterans didn't say this. They are afraid
to speak up, so they don't ask the tough questions. They don't
go with the terrible sad stories, because they are afraid they
will be retaliated against, and their care will be affected,
and that to me is beyond sadder than I can put into words.
The Chairman. Mr. Rakiecki.
Mr. Rakiecki. Yes, sir.
The Chairman. Would you elaborate on the reference that you
made in your testimony to the Department having two different
codes of conduct and means of accountability; one for what you
call the average employee and one for high-level management
members and senior executive service?
Mr. Rakiecki. Well, I am in kind of a unique situation as a
police officer. I probably wouldn't be privileged to this, but
in, because, you know, acting as a steward and a chief union
steward you kind of see what goes on behind the scenes, and
what I have become aware of, especially if you look at the
example which I cited with the records, since I have been
involved with the union as a steward in 2007, I have been
involved in many disciplinaries, and I have had the unfortunate
dealings with, again, Associate Director, Mr. Petti. I have
known of prohibitive personnel practices where managers in the
Buffalo VA asked for a discipline. They may counsel an employee
on a wrongdoing, a misuse of a computer issue, and he has come
in and insisted upon more punishment, 14-days suspensions, 15-
day suspensions.
So I have actually battled with him on it. I have gotten
statements from the managers and said, wait a minute. If you go
after this employee twice, I am going to file an unfair labor
practice charge against the Agency. So it happens all the time.
They do as they please, and who do they answer to?
In reference to this issue with the records, upon the
Agency completing its investigation and OSC determining its
outcome into a report that went to the President, those two
individuals who I mentioned, Liz Kane and Jason Petti, are
still employed, and up until now, I believe the Agency or the
Director was getting his information about whether or not these
records were straightened out. Now, a plan was supposed to be
put into place to fix this problem. It is to my understanding,
by speaking recently with Mr. Leon Davis, that the Director,
approximately 11 days ago, was made aware that he was being
misinformed by Mr. Petti and Liz Kane.
So these people collected a year's worth of salaries and
continued with doing harm. Our records are still in a mess, and
I believe now the Director is aware, and he is doing something
about it, but for a year, we listened to these people? A year
after they have done harm and proven themselves to be non-
trustworthy we are listening to these people? An employee would
be put immediately on administrative leave pending serious
disciplinary action, but yet he is still in that office making
decisions. And I don't understand it.
The Chairman. To the Nicklas family, real quickly because I
am running out of time, you received contradictory reports per
your testimony from the ICU nurses and the physicians when you
would phone in to check on your dad's condition. Could you talk
about the confidence that you had when you started receiving
those contradictory reports, and how did you proceed at that
point with getting further information?
Ms. Nicklas. That happened over a course of a couple days.
When my mother-in-law would call, she would get one report, and
I would call every morning. I would get another report. My
husband would call around lunchtime. He would get something
different, so that is why we asked to have the meeting with the
doctor so that we could all be on the same page and hear the
same thing from her. And that was the day, that was the 21st of
November, I believe. It was that Tuesday, Wednesday that we had
asked for the meeting. It was Wednesday before Thanksgiving,
and shortly before we left our home to go to the hospital, I
just called to see if my father-in-law had gotten any rest that
day, and that is when they had told me that the test had just
come back, and he had tested positive for Legionella. I asked
them if that meant that he had Legionnaires, and they said they
couldn't tell me that right now.
So that evening, we had the meeting with the doctor. My
brother-in-law was on via a conference call, and they had told
us that he had acquired the Legionnaires, and she also had told
us that prior to that, she was sure that he would have been
home and made a full recovery.
The Chairman. Mr. Michaud.
Mr. Michaud. Thank you, Mr. Chairman.
Ms. Schoellman, while your father was in the facility for
six months, did family bring the care that he was getting or
the lack of care to the management at the facility, and if so,
what was their response?
Ms. Schoellman. We, you know, prior to him being put into
their facility, the only response we got was because they had
an Acting Director, Mr. Milligan wasn't there yet, and they
were actually having a meeting, and I went into the hospital
meeting, interrupted, and told him he had to come speak to me.
I finally told him all the story. He was being abused at the
nursing facility that we had put him in, and they made room for
him at the rehab facility.
I had almost weekly meetings with most of the
administration and addressed some of the, you know, the
different concerns and things, and we were promised all the
time that they were going to move him closer to the nurse's
station because he was completely paralyzed. That never
happened.
And I addressed every, there was always someone from our
family up there with him, and I addressed every time that we
came to visit, there was fecal matter around his mouth and
under his fingernails, and he could not process the mucus in
body any longer. I guess because he wasn't walking around or,
you know, different reasons, but there was always a coating of
thick mucus in the back of his throat to where he couldn't
really breathe. And after repeated, you know, addressing this
issue and being called to the ER and different things, I mean,
it never got any better.
Mr. Michaud. Thank you. My second question for you is you
expressed some key issues that you felt needed to be addressed
such as accountability, customer service, and risk management
and family services. Could you elaborate a little bit more what
you mean by risk management and family services?
Ms. Schoellman. In the public health system that I worked
in, we obviously had a risk management department, and if there
is a risk management department within the Dallas VA or maybe
an EVA giving their testimony, you are not aware of it. It is
appalling to me that something of this magnitude can happen to
someone, and no one ever comes to address you. The
administration didn't even know what had happened in their own
hospital until I walked in their office and demanded that they
meet with me. That is appalling.
I think it is the VA's, like she said, you know, when the
veteran is being treated, their family is being treated, and
when there is an issue that occurs or they are injured or
something happens, it is all hands on deck, and luckily our
family is very resourceful and somewhat pushy. So we were
successful in, you know, addressing some of the issues.
However, not everyone has that, and there needs to be something
in place that brings the administration or you know, the risk
management department over to address these issues.
And as far as the accountability goes, it is a shame to me
that an attending surgeon can work in a government facility
such as the VA and represent themselves as an employee and be
referred to as staff in every medical record, but once you call
them on the carpet for it, the VA's response is, he is not our
employee. That is appalling to me. That is ridiculous, and with
the customer service that you asked about, I feel like the
customer service and the accountability go hand in hand. The
patients at the VA System are a captive audience. Some of them
don't have private health insurance.
I feel like the best way to fix that would be to bring in
an outside surveying agency like private hospitals use,
Prescani, you know, Stuper Group, any of them, and actually
survey the veterans and ask how their care is going because
that is one way that they can address issues without fear of
retaliation. We shouldn't have people attending, you know,
going to hospitals as a captive patient, and you know, feeling
like they can't discuss their concerns.
Mr. Michaud. Thank you. Thank you, Mr. Chairman.
The Chairman. Mr. Murphy.
Mr. Murphy. I just wanted to finish asking my last question
of reactions to bonuses since that is part of the title of this
hearing.
Ms. Petit, do you know if anybody at the VA where your
brother was treated received a bonus?
Ms. Petit. I am pretty sure they did.
Mr. Murphy. Okay. Do you know how much or----
Ms. Petit. No, but they didn't deserve it if they did.
Mr. Murphy. Okay. Mr. Rakiecki, at the Buffalo VA was there
any bonuses?
Mr. Rakiecki. I heard the number through Mr. Carney also
sitting in the office, something around $64,000 for the
Division Director and possibly $28,000 for the Facility
Director, but I don't have that information in front of me.
There were bonuses paid, I believe.
Mr. Murphy. Thank you. Ms. Schoellman?
Ms. Schoellman. I am not aware as I said. Mr. Milligan was
not in place at the time of the surgery. He came in at the
latter part, but I would, you know, read in the news reports,
yes, they received bonuses, and there hasn't been, you know, an
established improvement in care.
Mr. Murphy. Dr. Hollenbeck.
Dr. Hollenbeck. I don't have specific information. I will
just say that all the physicians, certain other whistleblowers
feel that administrative people do receive bonuses, both
medical leaders and administrative leaders based on metrics
that are not related to the quality of patient care and such as
how many patients are going through primary care even if the
frontline reality is that the walk-ins are waiting eight hours
to get seen, that people are double-booked, or what is
happening with the turnover in my, you know, the people taking
care of my old patients, you have eight different people
rotating through. There is no continuity even though it looks
like they have not been seen.
Mr. Murphy. Thank you. Mr. Nicklas, what was your reaction
when you heard that administrators at Pittsburgh received
bonuses? Both of you, please.
Ms. Nicklas. Mine was--I can't even put into words my
reaction. I was stunned, I was outraged. It was on top of
everything else that we had found out, it was a huge slap in
the face to all of us, to every family member, and to every
veteran.
Mr. Murphy. Mr. Nicklas, could you pull the mic close to
you and give your reaction to it?
Mr. Nicklas. Yes. I was very horrified. When we heard the
news on that, again, I was just shocked they would even
announce something like that with this ongoing investigation.
Mr. Murphy. And did Mr. Moreland, the Division Director at
Pittsburgh, or Ms. Wolf who runs the VA ever call you and offer
you sympathy, apologies, anything?
Ms. Nicklas. No. They have never called. When we had our
meeting with them afterwards----
Mr. Murphy. I apologize. Could you pull the mic just----
The Chairman. You have to point the microphone towards you.
Ms. Nicklas. I am sorry. When we had our meeting several
months later with them, they apologized. They said they were
sorry. Still no responsibility, no accountability. We never,
ever received a call ever, but Ms. Wolf got a $13,000 bonus and
a glowing review, and Mr. Moreland got a $15,000 bonus and
several days later it was announced that he got the $63,000
bonus on top of the Presidential Distinguished Rank Award,
which I think only 1, less than 1 percent of veteran executives
get a year. Something like 54 people got it this year. He was
one of them.
Mr. Murphy. And what was your reaction when you heard that?
Ms. Nicklas. I was outraged, outraged. And I think Mr.
Rothfus alluded to this before, that we had asked for Shinseki
to come in and meet with the families. He has not said one word
to the families. Not one. And the only thing that he has come
out so far and said is that he defended the bonus given to Mr.
Moreland.
Mr. Murphy. Ms. Ciarolla, have you heard from Secretary
Shinseki?
Ms. Ciarolla. No, not at all.
Mr. Murphy. Thank you very much. I yield back.
The Chairman. Thank you.
Mr. Doyle passes.
Mr. Rothfus, do you have any questions?
Mr. Rothfus. Mr. Murphy has taken care of my questions.
Thank you.
The Chairman. Okay. I have no further questions.
Mr. Michaud?
Mr. Michaud. No further questions.
The Chairman. Mr. Murphy.
Mr. Murphy. We want to, again, thank the witnesses very
much, and remember, we may be asking for further clarification
or asking other questions, but we do appreciate your testimony,
and we hope that you will hang around the next battle. Thank
you.
[Applause.]
The Chairman. I would like to call the second panel of
witnesses to the table, please. All right, ladies and
gentlemen. I would like to ask if everybody could please take
their seats. We are not going to take a break. We are going to
continue right on with the testimony and questioning this
morning. We appreciate it.
We would, again, ask all witnesses if they could get into
the microphone as closely as they possibly can.
Our next panel is Dr. Robert Petzel, the Under Secretary
for Health at the U.S. Department of Veterans Affairs. We
appreciate you, each of you being here today. Dr. Petzel, you
are recognized for your opening statement.
STATEMENT OF ROBERT A. PETZEL, UNDER SECRETARY FOR HEALTH, U.S.
DEPARTMENT OF VETERANS AFFAIRS, ACCOMPANIED BY THOMAS LYNCH,
M.D., ASSISTANT DEPUTY UNDER SECRETARY FOR HEALTH FOR CLINICAL
OPERATIONS AND MANAGEMENT, VETERANS HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF VETERANS AFFAIRS; MICHAEL E. MORELAND, FACHE,
NETWORK DIRECTOR, VA HEALTHCARE (VISN 4) VETERANS HEALTH
ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS; LESLIE B.
WIGGINS, MEDICAL CENTER DIRECTOR, ATLANTA VA MEDICAL CENTER,
VETERANS HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS
AFFAIRS; BRIAN G. STILLER, MEDICAL CENTER DIRECTOR, VA WESTERN
NEW YORK HEALTHCARE SYSTEM, VETERANS HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF VETERANS AFFAIRS; JEFFERY L. MILLIGAN,
MEDICAL CENTER DIRECTOR, VA NORTH TEXAS HEALTHCARE SYSTEM,
VETERANS HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS
AFFAIRS; JOE D. BATTLE, MEDICAL CENTER DIRECTOR, G.V. (SONNY)
MONTGOMERY VA MEDICAL CENTER, VETERANS HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF VETERANS AFFAIRS.
STATEMENT OF ROBERT A. PETZEL
Dr. Petzel. Chairman Miller, Ranking Member Michaud,
Members of the Committee, other Members of Congress in
attendance today, ladies and gentlemen. I want to thank you for
the opportunity to appear before you and submit my written
testimony for the record.
I am accompanied today by Dr. Thomas Lynch, Assistant
Deputy Under Secretary for Clinical Operations, Mr. Michael
Moreland, Network Director, Pittsburgh, Mr. Brian Stiller,
Medical Center Director, Buffalo, Ms. Leslie Wiggins, Medical
Center Director, Atlanta, Mr. Joe Battle, Medical Center
Director at Jackson, and Mr. Jeffery Milligan, Medical Center
Director at Dallas.
First, I want to say the testimonies given by this first
panel were deeply compelling and very upsetting. I am saddened
by these stories of loss, I am saddened by the incredible
journey that these people have had to go through as a result of
what had happened in several of our medical centers, and I
offer my absolutely sincerest condolences and sympathy and
empathy with all of you.
My written testimony discussed in detail what we know and
our response to the events in Atlanta, Buffalo, Dallas,
Jackson, Pittsburgh.
Briefly, in Jackson, the facility is responding to all of
the findings that have been set forth in the VA's report to the
Office of Special Counsel. We have new management at that
facility, and they are making significant improvements.
In Buffalo, our own staff discovered an inappropriate use
of insulin pens. The practice was stopped immediately and has
been investigated in a systematic way. The findings associated
with that have triggered a national change in how our system
manages the use of insulin pens, ultimately positively
impacting the care at over 1,800 sites.
In Atlanta, we have responded to all the recommendations
made by VA's Inspector General and are extensively monitoring
the contracts, the contractors, and the delivery of care on our
mental health service. The new director has taken this
challenge head on and is committed to restoring the trust of
veterans in the Atlanta area.
For Dallas, I have not yet received the taskforce report
that we commissioned as a result of Congresswoman Johnson's
concerns, and, therefore, I will reserve direct comment until
that report has been reviewed.
But the lessons learned from Pittsburgh, and they are
extensive, are now being used to ensure water safety at all of
our VA Medical Centers throughout the Nation, and we continue
to work with Federal, state, and local officials and partners
to keep all informed about the situation.
Mr. Chairman, the VA is committed to providing the highest
quality of care. Our veterans deserve no less. The patient care
issues the Committee has raised are serious, but they are not
systemic. VA has a long established record of providing safe
health care. While no health care system can be made entirely
free from inherent risks, when adverse incidents do occur, VA
studies them to fully understand what has happened, how it
happened, and how the system allowed it to happen, and how the
system can be changed to prevent it happening again.
In this way, we design patient safety systems that reduce
the likelihood of errors and lessen the potential harm to
patients. The VA has an international reputation for its
ability to look at safety issues and problems and change the
way it delivers care as a result.
Transparency and honesty are keys to engaging the trust of
our veterans. Being public about such events informs the
greater health care community about intended risks and failures
and helps prevent future harm.
The key to achieving this is an internal, confidential, and
non-punitive reporting system to make sure all VA employees
feel protected reporting events and near misses. We ask
employees, veterans, families, and visitors at our facility not
only to report incidents resulting in harm, but also close
calls and solutions to be developed, implemented, and harm
eventually avoided.
This systems approach is the same used in high-risk
industries like aviation and the nuclear industry. Acts deemed
blameworthy have clear accountability and consequences. These
include criminal acts, purposely unsafe acts, malfeasants,
willful neglect, patient abuse, and events resulting from
alcohol and substance abuse. I will assure you that VA works
diligently to identify and hold those people that are
responsible accountable.
The Veterans Health Administration is a system
characterized by quality and safety programs above the industry
standard with an outstanding reputation within the VA health
care community as an integrated health care delivery system
that measures quality, measures outcomes, and responds to what
we learn.
What we can and we must do better, this is not a perfect
system, and there are many things that need to be improved in
the way we do our business. We owe that to each veteran under
our care, we owe it to the people that testified here today,
this morning, and we owe it to the American people who have
entrusted us with this sacred mission to care for those who
have borne the burden.
Regarding VA senior executive awards, as authorized by law,
these are based on a stringent and standardized process in
which these accomplishments are measured against a pre-
established performance contract, their ability to lead,
change, and their impact on the overall organizational
performance.
Mr. Chairman, the responsibilities of a network director or
a medical center director are vast. Peter Drucker has described
it as the most complex management task in this country. No
matter how well they do their jobs, there will, at some point,
most certainly be adverse events in their areas of
responsibility. When adverse events do occur, there are many
ways to hold people accountable when it is appropriate to do
so.
Because this is in an opening hearing, by law, I am not at
liberty to provide specific details about what has been done in
the individual cases spoken about this morning. However, as
requested, we have provided the Chairman with the disciplinary
actions that have already been initiated, and they are
substantial.
At this time, Mr. Chairman, my colleagues and I are
prepared to answer your questions.
[The prepared statement of Hon. Robert A. Petzel appears in
the Appendix]
The Chairman. Thank you. I think for the record, so that
everybody is well aware that the Chair did receive the
information that Dr. Petzel referred to. We received it
yesterday afternoon. So we are still trying to go through that
information to try to see exactly what type of disciplinary
actions were taken.
Dr. Petzel, it seems to me that your testimony focuses, as
a lot of VA testimony does, on discussions of systems, systems
failures and systems that reduce the likelihood of preventable
error and a systems approach and a system-wide improvement. But
what it doesn't discuss is people.
And so my question is or my statement would be that systems
are only as good as the people that administer them, and I
think what you heard today from many of the folks that were
testifying is, in fact, that the systems have failed and those
that ran the systems have not been held accountable.
So I think, what the Committee needs to know is, what is
the Department doing to ensure that the systems are, in fact,
being improved?
Dr. Petzel. Mr. Chairman, there are multiple ways that we
can hold people accountable. Let's just go back and review this
for a moment. We do hold each individual employee and each
senior leader in this organization responsible for the things
that they have been told they must do and are responsible for.
They are responsible for seeing that the programs are in place,
that they are operating effectively, and they are responsible
for the outcomes.
As an example, in Atlanta there were issues with
contracting and there were issues with delivery of care on the
mental health unit. The individuals that were responsible for
those systems have, indeed, been dealt with effectively and
have, indeed, been held accountable for their actions and for
what happened in Atlanta.
The Chairman. Well, and Doctor, I have been asked to hold
that information very close. I cannot comment, but I don't
believe that the information that was provided to me does, in
fact, hold individuals accountable. There may have been action
taken, but I don't know necessarily that it holds them
accountable.
Let me do this. I have asked, and you are aware of this,
for the Secretary to provide a top to bottom review of the
bonus system. Do you agree that, yes or no, does it need to be
reviewed?
Dr. Petzel. I would agree that reviewing the performance
awards is appropriate.
The Chairman. Do you think that there is a problem with the
system when preventable patient deaths due to mismanagement are
apparently not factored in at the highest levels of leadership
at the hospital and VISN or networks within that leadership?
Dr. Petzel. I would disagree that the prevention of, that
the incidents of preventable illness is not factored into
someone's performance contract.
The Chairman. How about death?
Dr. Petzel. Avoidable death?
The Chairman. Yes, sir.
Dr. Petzel. It is. It would be factored into----
The Chairman. How much, what percentage is--I am sure they
are all weighted, but is a preventable death more important to
the VA, preventing that, than it would be meeting the matrix
that the VA has established, which it is apparent that that is
the way most of the bonuses are awarded.
Dr. Petzel. Mr. Chairman, they would both be very
important.
The Chairman. Which is the most important?
Dr. Petzel. I am not going to make a judgment, sir, as to
which is most important.
The Chairman. I can make it for you. The death is. The
death is. It is absolutely unconscionable that we would award
bonuses to anybody who had a preventable death occur on their
watch, and I think that is what the frustration that you are
hearing this morning is, and that you will hear from the other
Members that are here on the dais are hearing. It is just
unbelievable what has occurred here in Pittsburgh, and the fact
that bonuses were awarded, when the people that got the bonuses
knew what was going on. I was told, well, we didn't know it,
when the bonus was awarded. Has anybody asked for it to come
back?
Dr. Petzel. I beg your pardon, sir?
The Chairman. Has anybody asked for the bonuses that were
awarded here at Pittsburgh to be returned?
Dr. Petzel. Not that I am aware of. No.
The Chairman. Did you?
Dr. Petzel. I did not.
The Chairman. Why not?
Dr. Petzel. Because the bonuses were awarded for the
performance as we knew it when it was occurring then, and as I
understand it, we cannot retract or take back those bonuses.
The Chairman. Well, and that may be a legal response, but
what about the moral, ethical response? I would think a letter
to the person that got the bonus that, says hey, why don't you
give the bonus back because you weren't truthful to us. I would
be furious if I was you, that I was left hanging out like you
are today by individuals that join you at the table.
Dr. Petzel. We have not asked, I have not personally asked
for those bonuses----
The Chairman. Has the Secretary asked?
Dr. Petzel. I am not aware whether he has or has not.
The Chairman. Okay. Mr. Michaud.
Mr. Michaud. Thank you, Mr. Chairman.
The VA OIG reports have repeatedly found noncompliance with
published policy and procedures. How is VA addressing the
accountability and enforcement of these policies and
procedures, because it seems to be constantly that they are not
following policy and procedures?
Dr. Petzel. Well, thank you, Congressman Michaud. I will
use the example of Pittsburgh. There were things that were not
being done according to the IG report relative to Pittsburgh
that caused us to look not only at Pittsburgh, but across the
entire system at the way we were preventing, detecting, and
managing positive cultures in all of our systems, and there has
been a dramatic change in the processes that we use to look for
the presence of Legionella in the water supply systems,
mitigate that when we do find it, and how we screen our
patients clinically for potential Legionella infection. This
has changed across the country as a result of what we have seen
in Pittsburgh.
Mr. Michaud. A follow up on the Chairman's question about
bonuses. What restriction or is the Administration, I am not
talking about the Department of Veterans Administration because
I know you have the Office of Policy and Management that
actually sets criteria as well as far as bonuses, is the
Administration looking at the overall OPM policies as it
relates to bonuses systemwide or government wide?
Dr. Petzel. I can't speak for the Office of Personnel
Management. I don't know. I do know that internally within the
VA, we are continuously and right now intensively reviewing our
practices in terms of bonuses, how the contracts are set up,
how they are evaluated, and our review process.
Mr. Michaud. But in that when you are reviewing the VA's
issue as it relates to bonuses, are you running into problems
as it relates to the Office of Personnel Management guidelines?
Dr. Petzel. No, we are not. We feel that we have the
freedom to administer that programming the way we need to.
Mr. Michaud. Okay, because it is my understanding that OPM
says that in order to give bonuses, it has to be a bare minimum
of 5 percent of whatever that salary is. So you are saying that
that 5 percent minimum, you can go below if you----
Dr. Petzel. We have. Yes, sir.
Mr. Michaud. Okay. Great. Thank you, Mr. Chairman.
The Chairman. Mr. Murphy.
Mr. Murphy. Thank you, Mr. Chairman.
You heard some testimony from the families here, and since
it seems no one from the VA has answered their questions, I am
going to try and relate some of those.
So in June of 2011, samples were taken at nine sites and
found that copper-silver ionization levels were outside
accepted levels. On August 31 of 2011, five sites showed
copper-silver levels outside of recommended levels. In October
of 2011, all four sample levels outside of recommended levels.
You also heard that the pathogens lab had been closed in '06,
under Mr. Moreland's watch. We also know that when samples were
taken from patients to analyze, if they had Legionella,
Legionnaires Disease, the VA couldn't do it, they then
contacted UPMC Pittsburgh, who said we can't do it. Why don't
you take them to Dr. Janet Stout. She is an expert in this. The
reaction of staff was, ``someone would go ballistic,'' after
they went to her because of the issues of which she left the
VA.
Now, the CDC has guidelines that says when you have two
cases of Legionnaires Disease that appear within six months,
you are supposed to report it. I understand the VA didn't
report that, but we know this occurred in 2011. All right. Now,
we also know that when Mr. Moreland came and Ms. Wolf came to
me with a few Members of Congress to talk about some things
after the IG's report was happening, what struck us later on,
when we found out, that a day or so later, Mr. Moreland was
going to get this award, the Presidential Distinguished Rank
Award, and I believe the VA nominated this award. Am I correct?
Dr. Petzel. That is correct.
Mr. Murphy. All right. Now, you only have the information
to go on at the time as you testified here today, but you also
said that there are lessons learned, quite a few lessons,
particularly Pittsburgh, and my question here then relates to
this, that we also know that as part of your nomination
process, you are supposed to see if there is any active
Inspector General's investigation taking place. There was none
at that time in 2011. Am I correct?
Dr. Petzel. There was not.
Mr. Murphy. Now, based upon what you have heard today and
based upon what has come out of the Inspector General's report,
lack of a documentation of system monitoring for substantial
periods of time, inconsistent communication and coordination of
the infection action team, that VA Pittsburgh did not conduct
routine flushing of hot water faucets and showers, especially
in areas that are frequently used as recommended with the
systems.
The VA conducted an environmental surveillance in
accordance with VHA directives, however, the VA responded to
positive cultures in February, 2011, by flushing distal outlets
with hot water at normal operating temperatures, a corrective
action not consistent with the VA guidelines and CDC
guidelines.
And the VA Pittsburgh did not test all health care-
associated pneumonia patients for Legionella as expected
according to VA guidelines.
Knowing that none of--the Inspector General has reported
that in 2011, and 2012, all these problems occurred under Mr.
Moreland's watch. Knowing what you know now, would you still
recommend that he receive this award?
Dr. Petzel. Mr. Moreland's Presidential Rank Award----
Mr. Murphy. It is based on the VA recommendation, and where
there is an active Inspector General's investigation taking
place, you are supposed to report that. If you knew then what
you know now about how these things were not followed, the
guidelines of the VA were not followed, I am asking where the
buck stops. It either stops at him, or it stops at you. But he
was recommended for this award.
Now, on behalf of these families, I am trying to get to the
heart and soul of this matter. If you knew then what you know
now, would you recommend him for this award?
Dr. Petzel. I would.
Mr. Murphy. Even though people died?
Dr. Petzel. I would.
Mr. Murphy. Even though he did not follow VA guidelines,
even though he did not follow CDC guidelines?
Dr. Petzel. Mr. Moreland's Presidential Rank Award is based
upon a lifetime of service----
Mr. Murphy. And part of----
Dr. Petzel. --to America's veterans, Congressman.
Mr. Murphy. I understand, and he has been recognized in the
past, and I have been to the hospital to congratulate him as
well for the work that that hospital has done, and he has told
me the doctors have done this work, for reducing MRSA in the
hospital. We see VAs all over the country have done it. I
understand that, but I am saying in this case, in this case,
because of the multiple deaths, because of the multiple cases
of Legionella, in this case, don't you think that if you knew
then what you know now, that it would not be appropriate to
give this award?
Now, let me put it in other terms. You know, Lance
Armstrong won all of these Tour de Frances. When they found out
later he had broken the rules, they said even though you have
had these great achievements, you shouldn't get the medals. And
there has been multiple people who could have been in the Hall
of Fame, maybe were in the Hall of Fame, they found out later
they broke the rules of baseball or football or something else,
they don't get it.
So it sounds to me from what you are saying that of all
things professional sports has a higher standard than the VA.
They have lifetimes of achievements in those sports, but still,
when it was found out that something was wrong, they had
stricter rules.
I ask you again to answer for the sake of these families,
knowing now all this information, if you knew then what you
know now, would you still recommend he keep his bonus?
Dr. Petzel. Very difficult question to respond to. I am not
in that circumstance. I am not there now.
Mr. Murphy. I am asking you----
Dr. Petzel. I can tell you, Congressman, that fact of what
happened at Pittsburgh would be taken into account in terms a
nomination coming out of----
Mr. Murphy. Doctor, Doctor, Doctor.
Dr. Petzel. --the Department, but you are asking me would I
not do it. I cannot tell you that.
Mr. Murphy. I am asking you now, you are a doctor,
Hippocratic oath. Based upon the question of the Chairman, it
is easy enough for you to turn to your left and look Mr.
Moreland in the eye or look at the families here who have lost
someone, look them in the eye. It is easy enough to say, you
know, I can't make you do this, there is no law that says I
can, but somewhere along the line isn't it just the right thing
to do, to give this back. What would you do?
Dr. Petzel. What would I do?
Mr. Murphy. Yes.
Dr. Petzel. I cannot ask, I will not ask Mr. Moreland to
give this back.
Mr. Murphy. Well, then who will do this on behalf of the
families?
Thank you, Mr. Chairman.
The Chairman. Mr. Doyle.
Mr. Doyle. Thank you, Mr. Chairman.
Could you tell me and the families and the people here
today why was the special pathogens lab closed?
Dr. Petzel. I would have to turn to Mr. Moreland. I was not
aware of that at the time in 2006.
Mr. Doyle. Mr. Moreland, why was the lab closed?
Mr. Moreland. The lab was closed because the director of
the lab decided he would no longer stay in the employment of
the government because he had been asked to stop taking samples
from across the country, from restaurants and gas stations and
being paid to do those samples for those organizations and
using that money to supplement the income of the employees of
that lab. When he was asked to stop doing that, to continue
doing his work at the VA and the special pathogens for VA, he
refused to do that, and because he refused to stop that and was
insubordinate in following direction, he was no longer required
to be an employee of the VA.
Mr. Doyle. So you say he was taking samples, and he was
receiving payment. Where was the payment going to?
Mr. Moreland. The payment was going into a research
foundation and then being paid back out to his staff.
Mr. Doyle. So it was staying within VA. It wasn't going to
him personally.
Mr. Moreland. Some of it went to him personally through the
research foundation.
Mr. Doyle. Why were these samples, why were these specimens
destroyed?
Mr. Moreland. I have explained this a few times.
The Chairman. Could you bring the mic a little bit closer,
sir?
Mr. Moreland. I have explained this a few times, and it is
difficult sometimes to understand, but a set of samples is
required to have a catalog and to have them organized as a set
of samples. That was not present in what was left in the
special pathogens lab after other researchers had provided
their catalog of samples and arranged their samples according
to that catalog. Those samples were moved in total to the
clinical laboratory where they still continue to exist today
and are continued to use by researchers today.
In terms of Dr. Yu's samples----
Mr. Doyle. Are you saying the specimens weren't destroyed?
Mr. Moreland. I am saying that, what was left in the lab
was a collection of biomaterial that was not labeled, and there
was no catalog for, and despite frequent requests of Dr. Yu and
Dr. Stout, to provide a catalog that would make those samples
understandable and safe, they refused to do that. As a
consequence, there were unlabeled specimens in the laboratory
that posed a biological risk, and they were then destroyed.
Mr. Doyle. So you are saying that these samples would have
no practical use because they weren't labeled properly, or I am
trying to----
Mr. Moreland. You couldn't tell what the samples were
because they were not labeled, there was no catalog to explain
what they were, and so they were basically just a collection of
biological specimens that did not have a catalog to explain
what they were and what use they were for. Despite repeated
requests to have that catalog provided, it was not provided,
posing a risk because of those unlabeled samples in the
building.
Mr. Doyle. The IG's report made it quite clear to all of us
that the routine maintenance and inspection of the copper-
silver ionization system was not taking place. Who was
responsible for seeing that that was monitored on a daily,
weekly, or however often it needed to be done, who was
responsible to make sure that was taking place?
Mr. Moreland. Yeah. The water system engineers and the
plumbers were responsible to do daily checks, adjust the
calibration of the system and how it worked, and they were
responsible to do that.
Mr. Doyle. And that obviously didn't occur.
Mr. Moreland. In looking back over the records, there were
clearly times when that was not done as rigorously as it should
have been done.
Mr. Doyle. Who supervises those people?
Mr. Moreland. There is a supervisor over the water
engineers and the water pipe system and then a chief of
engineering above that, an associate director above her, and
then the hospital director.
Mr. Doyle. So when this maintenance that should have been
taking place wasn't taking place, what action did that
supervisor take for those people or the people above him?
Mr. Moreland. Well, the supervisor, in looking at the
individual people responsible to manage, we have been unable to
issue any kind of actions at date, because during the hearing
last October or November, during the last hearing, one of the
vendors indicated that he had evidence that some of the staff
had falsified records.
Mr. Doyle. So----
Mr. Moreland. When we found out about that, we requested
the Criminal IG to come and look. When the Criminal IG starts
an investigation, you must step back and allow them to do their
investigation and hold further actions until that is complete.
Mr. Doyle. So what you are saying to these families is that
the reason no one has been held accountable up the chain is
because there is a pending criminal investigation?
Mr. Moreland. There is a pending criminal investigation
that we have to wait until it is finished and completed and
provided. After that is done, other administrative actions that
are more administrative can be considered, as well as response
to any findings from the Criminal IG.
Mr. Doyle. What is the status of that criminal
investigation, and when do we expect to hear from that?
Dr. Petzel. I don't know what the status is. We
periodically ask them, and all we are told is that the
investigation is continuing, and we are as anxious, Congressman
Doyle, as you are to see the results of that so we can progress
with what we are going to be doing about Pittsburgh.
Mr. Doyle. Mr. Chairman, I see my time is up, but I hope we
have another round of questions.
The Chairman. Yes, Mr. Doyle, we will.
Mr. Rothfus.
Mr. Rothfus. Thank you, Mr. Chairman.
Mr. Moreland, you just testified that the specimens that
were destroyed were not labeled. Is it your testimony today
that not one of the specimens that were destroyed had a label
on it?
Mr. Moreland. What I said was that they were not labeled
and cataloged. They may have had labels that meant nothing to
anyone without a catalog, but one must have both a catalog that
explains the labeling system, and the specimens must be labeled
so that you can be safely understood there is a sample. Without
that, they truly represent a hazard to the organization.
Mr. Rothfus. So there were specimens that were labeled, but
you are saying there was no catalog.
Mr. Moreland. I am saying that there were specimens, some
of them had labels, but there was no catalog to explain what
the labels meant.
Mr. Rothfus. And did you ask for a catalog? Was there a
catalog available?
Mr. Moreland. There were multiple requests for the catalog.
That catalog was not provided.
Mr. Rothfus. Dr. Petzel, you began your testimony this
morning by stating that the Department of Veterans Affairs is
committed to consistently providing the high-quality care to
our veterans that they have earned and deserved.
Having heard the testimony this morning from our first
panel of witnesses, I don't know anyone who could conclude that
the VA in these instances met that commitment.
In your testimony, you state that when misconduct occurs,
employees are held accountable through a range of actions and
consequences that appropriately address the circumstances, and
acts that are deemed blameworthy have clear consequences and
accountability.
You also state that you can ensure the Committee, that you
are holding the appropriate people accountable as a result of
management and oversight issues at the facilities that are the
subject of this hearing. It has been known for a long time that
there has been a Legionella problem at the Pittsburgh VA. In
2007, we know that 17 out of 19 specimens taken from the ICU
proved positive for Legionella. At the Pittsburgh VA, there has
been a massive outbreak of Legionella that killed at least five
veterans and sickened many more. The Inspector General
identified systematic failures that led to this outcome. These
were preventable deaths, and I think that we would all agree
that someone needs to be held accountable.
Let me walk you through the facts of one of the deaths. On
October 29, 2012, the CDC had conclusive and definitive proof
that Legionella bacteria discovered at the VA had, indeed,
infected at least two veterans. This was on the University
Drive, the VA Hospital. This resulted in the CDC coming to
Pittsburgh with a team that arrived on November 6. So hospital
officials absolutely knew what was going on.
On November 1, World War II veteran Bill Nicklas was
admitted at the VA Pittsburgh Hospital. On November 11, he was
moved to the ICU, and on November 12, he had a fever and an
infection, yet no one tested him for Legionella at the time.
The CDC told the hospital officials that they should test their
hospitals for Legionnaires Disease when they left on November
15 and the 16th. And on the 17th, signs went up around the
hospital saying don't drink the water, don't use the water.
Mr. Nicklas was finally tested two days later on November
19 for Legionella, but the hospital lost the sample. So they
had to retest him again on November 21, and he died on November
24.
Getting to accountability, it appears that even though the
VA Pittsburgh officials had actual, clear knowledge no later
than November 6, that they did not notify the medical staff,
who would be responsible for that? The CDC is there. Who bears
responsibility? Is it the Chief of Staff? Is it the Chief of
Infectious Diseases?
Dr. Petzel. I would say that it is the Hospital Director,
the Chief of Staff, and perhaps the Chief of Infectious Disease
have the responsibility.
Mr. Rothfus. Is the VISN Director responsible in any way?
Dr. Petzel. Not directly, no. He has oversight of that, but
the responsibility for those notifications----
Mr. Rothfus. Should the----
Dr. Petzel. --lie with the medical center.
Mr. Rothfus. Should the VISN Director know that the CDC is
onsite on November 2?
Dr. Petzel. Yes, he should.
Mr. Rothfus. When will we see somebody held accountable for
this dereliction, because all I have seen, frankly, is bonuses,
Presidential awards, and glowing performance reviews, and I
think that is an outrage and an insult to the victims here.
When are we going to see some accountability?
Dr. Petzel. We will see accountability when we get the
Criminal IG's report, and then, we will be allowed to proceed
with whatever actions we are going to take.
Mr. Rothfus. Mr. Chairman, I do have another question, but
I know I am going to go over time, so if we are going to have a
second round, I would like to----
The Chairman. Yes. We will have a second round.
This is public information that I am asking for, but I
think there are at least 12 executives from VA that are here
with us today. I would like to ask a show of hands from the 12
that are here, how many of you received a bonus last year.
Raise your hand, please.
Who got one in 2011?
Dr. Petzel, did you get one?
Dr. Petzel. No, sir. I do not receive bonuses.
The Chairman. Okay. You have agreed to talk to the press
after this hearing, I believe.
Dr. Petzel. I understand that there is going to be a
press--a brief press avail after this.
The Chairman. Is there anything that would prevent any of
the other individuals that are here with you today from talking
with the press?
Dr. Petzel. No.
The Chairman. Okay. Would you all agree if asked to talk to
the media?
Mr. Moreland, would you agree to talk to the media?
Mr. Moreland. Yes.
The Chairman. Okay. Dr. Petzel, could you expound, there
was a lot of testimony in regard to doctors being credentialed
and being called staff but they were actually contracted and
individuals said there is no recourse for the VA. How does that
work? If a physician is a contract doctor within a facility,
how does VA not have any responsibility for whether or not that
physician performs their job appropriately or not?
Dr. Petzel. Mr. Chairman, I was as surprised as you were to
hear that testimony. We have contract physicians in a number of
different circumstances. We have physicians that are part-time
university, part-time VA. My understanding is that they are as
accountable as any other VA physician, and I intend to talk
with the people at Dallas after we finish to find out what
those circumstances are, because that does not make sense to
me.
The Chairman. It doesn't to me either, and I appreciate
that response.
If you could, in general terms without providing any
personally-identifiable information, provide for the Committee
any type of disciplinary action that has taken place in the
last year where an act occurred in a VA medical center that was
deemed blameworthy, which is a word you used in your testimony,
and personnel action was taken.
Dr. Petzel. Well, let's use the example of Atlanta, where
we had issues with the contract for mental health care outside
the facility, and several people died. The contract was
mismanaged. Whether one can draw a connection to those deaths
between that mismanagement is difficult to know, but they did,
and the Mental Health Inpatient Service, where, again, there
were two deaths associated with people in that circumstance,
and we have taken disciplinary action in seven different
arenas. The Chief of Mental Health Service before we could do
anything resigned. The Chief of Staff has resigned from that
facility. We have issued three specific actions, and as the
document that we have sent to you shows, there are at least
four, and I believe five, pending actions that will be taken, a
clear, I think, trail of accountability in the cases at
Atlanta.
The Chairman. Can you tell us what happened to the former
Medical Center Director?
Dr. Petzel. He retired.
The Chairman. Is that a disciplinary action?
Dr. Petzel. No, it is not, but it does obviate the
possibility of us doing any disciplinary action.
The Chairman. It does?
Dr. Petzel. Yes.
The Chairman. So you have no recourse now to find any
disciplinary action?
Dr. Petzel. We do not.
The Chairman. So if a physician causes somebody's death and
then they leave, and I am not saying it was a physician, and
leaves your employ, you have no way to go back, no recourse.
Dr. Petzel. We do not have a recourse, however, in the case
of a clinical person such as a physician, we would report that
to the State Licensing Boards, and there would be recourse
through the State Licensing Board, but in terms of our
discipline, an employee who has left our employ, it is not
doable.
The Chairman. Even if they caused a death.
Dr. Petzel. It is not doable, sir.
The Chairman. I think we can probably do something to fix
that but--Mr. Michaud.
Mr. Michaud. Thank you very much, Mr. Chairman.
Getting back to the lab, you mentioned you closed it down
because of, you know, what the Director had done. Why didn't
you replace the Director in that lab to keep it running?
Mr. Moreland. We actually moved the responsibility for the
clinical sampling and such to the clinical laboratory at the
medical center, and that worked really well, and then in terms
of the Legionella samples, the CDC is where we go, and they are
a definitive source for CDC lab samples.
Mr. Michaud. We heard in the first panel from Brandie Petit
about so many medications, you know, for a family member, and
it is not the first time I have heard it from, actually, I
heard it from the general from Maine, when you look at how the
Department of Defense and now the VA, the response seems to be
give more meds, that will solve the problem versus trying to
find other ways to do it without using medications.
I guess, Dr. Petzel, what is the VA doing as far as trying
to hold down what they give for meds, or are they just giving
meds because it is an easy solution?
Dr. Petzel. Yes. Thank you, Congressman Michaud. Before I
answer the question directly, I did, again, want to express my
profound regret to Ms. Petit over the way her brother was
treated. This is not the way we want to do our business. This
is not the way we want patients to be treated, and I find it as
appalling, I believe, as this Committee does.
In terms of medication, it is a problem across the country
that people are overmedicated, particularly people that are
involved in mental health issues. There is a variety of drugs
that can be used, and we need to be very careful, very vigilant
that they are being used appropriately. VA has started a
program where we first are able to provide data about how many
drugs and what doses a patient is receiving, how many drugs and
what doses a physician is prescribing or another provider, and
that material then is used as someone from pharmacy visits
those physicians and discusses their prescribing practices with
the attempt to reduce the number of medications and reduce the
doses of some medications. It has been piloted in two networks.
It has worked very effectively, 35, 40 percent decreases in the
number of medications being distributed and in the doses, and
we have now begun the process of spreading that out to the
entire country.
The same thing is being done in a different way with pain
medication, which is another serious national problem, and in
that case, we have developed a same sort of database, and then
we classify providers and patients as outliers, getting
unusually large amounts. Those people are contacted by a
liaison at each one of the medical centers and specifically
counseled about the way that patient's pain medication is being
managed.
The goal is to use these drugs only in the doses that are
effective, that are recommended, and only in the combinations
that are useful, and the idea of piling on one drug after
another when one doesn't work is just not the practice that is
acceptable any longer.
Mr. Michaud. When you look at actually the first panel, a
couple talked about when you look at what happened here in
Pittsburgh, they were told not to use, you know, drink the
water and without any explanation of what was going on.
Is that a common practice or----
Dr. Petzel. It should not be, Congressman, a common
practice. One would like a general alert to the patients, the
facility, the staff that this is an issue, this is a problem,
and here is what we are doing to ameliorate it. No, it should
not be a common practice.
Mr. Michaud. I see my time is almost run out. I would
encourage you to keep doing what you can to make sure employees
are trained appropriately, because we have heard some of the
problems of the first panel, and I know it is not systemwide,
but there are some employees out there that probably should not
be employees of the VA because they do not provide that
customer service that they should be providing. I know with a
vast organization, Doctor, that is very hard for you to do it
personally, but hopefully, you do provide the adequate training
that needs to be done and keeping an eye on that as well.
Thank you very much, Mr. Chairman.
The Chairman. Dr. Murphy.
Mr. Murphy. Thank you. Doctor, the Inspector General's
criminal investigation, my understanding is, that came out of
testimony we heard at a VA Committee hearing, whereby there was
a claim made that someone involved with some of the copper-
silver ionization equipment had said that he had heard from
someone that information was falsified on the record. Are you
aware that that testimony took place?
Dr. Petzel. I am. I am aware of the fact that a vendor of
the copper-sulfate made the accusation that there had been
falsification of data, and that is what engendered the--I don't
remember who asked, whether we asked or Congress or asked----
Mr. Murphy. Right. Right.
Dr. Petzel. --that there be a criminal investigation.
Mr. Murphy. Because that would be something worth a
criminal investigation.
Dr. Petzel. Right.
Mr. Murphy. But that criminal investigation by the IG does
not include looking to see if reporting followed CDC
guidelines, does not look to see if doctors were properly
notified, does not look to see what the impact was of closing
the pathogens lab, does not look at the delays. Those aren't
necessarily criminal in the sense of what the Inspector General
would be looking at. Am I correct?
Dr. Petzel. That is correct.
Mr. Murphy. So how does that keep you from doing any
discipline? You had said you were waiting for the Inspector
General's criminal investigation, but those aren't criminal
issues we are talking about.
Dr. Petzel. Those aren't criminal issues, but they are a
part of the whole look at what is going on in Pittsburgh, and
we feel constrained to do anything in terms of----
Mr. Murphy. Anything?
Dr. Petzel. --administrative action----
Mr. Murphy. Anything?
Dr. Petzel. --until we see all of that material.
Mr. Murphy. So by anything, you mean, you are not taking
any administrative action until that is coming out?
Dr. Petzel. We are not.
Mr. Murphy. Okay. Mr. Moreland, you have heard the
testimony. I have complimented you in the past for work you
have done and some things you have done with MRSA, and the VA
has done great work with that.
But as the doctor has pointed out, this is a lifetime award
you received, and even a lifetime of good work can sometimes be
marred by other issues. You have heard the families say what
their reactions are to having a bonus going with this award. Do
you have any message for them with regard to that?
Mr. Moreland. I want to echo Dr. Petzel that I have
significant sympathy and empathy for the families. I came to
the VA with a mission to help take care of America's veterans
about 30 years ago, and every time something bad has happened
or a family has suffered, I have felt personally bad about
that. So I can't express more sincerely my apology and
appreciation for the suffering that the family faces.
The Presidential Rank Award was provided to me for a career
of that service. The timing of it was very bad, and I
understand the families that would look at that and make the
connection and be upset about that. I received the award. I am
proud to have received it. I am focusing my efforts every day
to looking for, understanding what happened, how it happened,
analyzing information to make changes, and putting those
changes in place to reduce the risk of anyone else suffering.
Mr. Murphy. Let me ask about another issue then. On May 2
during--while Greg Bethany was receiving a liver transplant,
apparently some construction workers cut a power line, so the
O.R. was out of power. Now, my understanding there was a two-
hour time period in the middle of this delicate surgery the
power is lost. Does that sound correct?
Mr. Moreland. Yes.
Mr. Murphy. And my understanding also the liver may have
been damaged with freezer burn during this incident. Are you
aware of that?
Mr. Moreland. Well, I really don't want to talk about an
individual case, because I really should not be talking about
an individual case. What I would say is that during events when
power is lost, we work very carefully with alternate sources of
power to make sure that we are able to complete the work that
is done. It was a challenging issue.
Mr. Murphy. So is that something you prepare for in case
something like that happens? The OR has a battery back-up
system?
Mr. Moreland. There are multiple lines into the hospital to
provide multiple sources of power. The challenge is when a
vendor cuts, you know, the main line right into the O.R., but
we were able to complete and finish the surgery.
Mr. Murphy. I understand that, but it is also, my
understanding is that unsterile portable air units and also
maintenance personnel who had not scrubbed or changed clothes
also came to the O.R. at that time and that Mr. Greg's
condition deteriorated. He has since passed away from organ
failure and infection and was in incredible pain.
So it is another one of those cases of, even though you
said that it was back-up systems there, it doesn't sound like
it was that good, and I hope that is something, Doctor, you can
also take a look at as well. But my understanding also is there
was no back-up power. This is all by battery systems, and it
unfortunately, led to another life, but I am particularly
concerned about the infection issues that occurred at that
time.
Thank you, Mr. Chairman.
The Chairman. If I could follow on with that line of
questioning, and, again, it has been open, so I would just like
to know since it was an organ donation or transplant, was the
death of the veteran who received that transplant reported to
UNOS?
Mr. Moreland. Yes. It is my understanding that it was
reported and that the events in the operating room were not
part of the cause of the death.
The Chairman. Okay. Do you know who reported it and when
they reported it? Because I don't have direct knowledge, but
what happens is, we have an organ transplant coordinator who
works with the surgical team, and it is his or her
responsibility to collect and report that information to UNOS.
Dr. Petzel. Well, Mr. Chairman, we will find out and get
back to you or your staff quickly.
The Chairman. Okay. Ms. Wolf is here. Could she answer the
question?
Ms. Wolf. Mr. Chairman----
The Chairman. And could you identify yourself for the
record?
Ms. Wolf. Yes.
The Chairman. And get a little closer to the mic. I
apologize. Maybe Mr. Stiller can stand up so you can sit down.
Ms. Wolf. Mr. Chairman, I am Terry Wolf, and I am the
Director at VA Pittsburgh.
The Chairman. Could you answer the question?
Ms. Wolf. I am sorry.
The Chairman. Was it reported to UNOS?
Ms. Wolf. I don't know that definitively.
The Chairman. What is your position?
Ms. Wolf. I don't have that information with me right now,
but I would be happy to----
The Chairman. How many patients die in your facility from
this type of a surgery that you wouldn't know the answer?
Ms. Wolf. You asked me if UNOS was notified, and I assume
that----
The Chairman. You assume it.
Ms. Wolf. Yes. That is standard operating procedure.
The Chairman. Okay, but you don't know that.
Ms. Wolf. I am not going to say something that I don't
know----
The Chairman. How long have you prepared for this hearing?
Ms. Wolf. About one month.
The Chairman. A month? How many trips to Washington did you
take to prepare for it?
Ms. Wolf. One.
The Chairman. And in that trip this didn't come up at all
in your preparation?
Ms. Wolf. No, it did not.
The Chairman. And so you don't know the answer. Can you
tell us if it wasn't the loss of power or temporary
interruption, what caused the death?
Ms. Wolf. I am not at liberty to discuss that with patient
privacy reasons.
The Chairman. Okay. So when I subpoena that information,
you will provide it.
Ms. Wolf. Of course.
The Chairman. Okay. Dr. Murphy, have you got any questions
you want to ask while she is at the table?
Mr. Michaud. Thank you, Mr. Chairman. I want to continue to
follow up on my first line of questioning and ask some more
questions that the families have asked.
At the February 5 hearing Aaron Marshall, who was the
Operations Manager for Enrich, was called at the request of
Pittsburgh VA to perform a review of the system, but he was
denied access to view the Legionella test results. He said had
they been aware of those presence of Legionella, that they
would have recommended implementing the reactive course
immediately.
Steve Schira, Chairman of Liquitech, also whose company
manufactured the Pittsburgh VA's Legionella prevention
equipment, in his statement said that the system requires
regular maintenance, monitoring, and validation. It is not plug
and play.
Who was responsible for denying the Enrich to view the
Legionella test results, and why was that denied?
Mr. Moreland. It is my understanding that there are two
different companies running two different copper-silver systems
that were in place at that time and that the engineering staff
had asked one of the other vendors, Enrich, to look at the
other system, Liquitech and explain----
Mr. Michaud. So they had asked Enrich to look at
Liquitech's system?
Mr. Moreland. Right.
Mr. Michaud. Why wouldn't you just call Liquitech?
Mr. Moreland. Well, they had been talking to Liquitech,
too----
Mr. Michaud. Okay.
Mr. Moreland. --and then they thought they would get
another opinion and get a feel for that, and some of the
recommendations they got really were not consistent with the
manufacturer's guidelines for the other system. So it appeared
in looking at it, that the engineers were just looking for a
consultation and advice from multiple people to take a look at
the system.
Mr. Michaud. And what about Mr. Schira's statement, that
the system requires maintenance, monitoring, and validation,
which the IG's report says apparently wasn't being done?
Mr. Moreland. Yeah. I say that his statement was correct.
It required lots of daily look and see, and while the VA
Pittsburgh staff did do a lot of maintenance, talked to each of
the vendors multiple times, and the copper-silver ionization
levels were appropriate much of the time but not all the time.
Sometimes they were too high, and sometimes they were too low,
and it was most troubling to us when the CDC found copper-
silver levels at manufacturer's recommendations and still
positive living Legionella in the water.
Mr. Michaud. Is that because those were false readings, or
they actually were reading at those levels, and there was
Legionella?
Mr. Moreland. They were reading at the correct level, and
there was still Legionella. It is a complicated system. The PH
of the water is involved and other things as well. That is why
we have moved to a new system now, and we are using a chlorine-
based system and managing that. We found it easier to manage
and more compliant with what we need to do.
Mr. Michaud. But isn't it true that during the time that
Dr. Yu and the lab was open and they were using the system,
that there wasn't outbreaks of Legionella? I mean, the system
seemed to be working fine when it was operated the way it was
meant to be operated. It just seems to me, and many others,
that after they left, somebody dropped the ball here with
regards to seeing that the maintenance was being done, and you
can't put this just on a couple plumbers. So my----
Mr. Moreland. This----
Mr. Michaud. --question is who is responsible for making
sure that the plumbers were doing what they were supposed to be
doing, and you know, at what point in the chain of command is
somebody responsible for this?
Mr. Moreland. That is one of the myths about the presence
of the special pathogens lab, that there were no hospital-
acquired cases during their oversight and that there were no
positive water samples of Legionella. That is a myth. In fact,
there is a 2003, paper published by the Special Pathogens
Director that from '96, to 2003, there were seven hospital-
acquired cases during their oversight, and so the article
states that we have achieved a level of one hospital-acquired
Legionella case per year on average.
So it is not possible to guarantee that there will never be
a hospital-acquired Legionella. What you have to do is work
very rigorously to reduce the level of Legionella in the water,
which reduces the risk, and that is what happened in the early
Fall of 2012. After rigorous review to figure out why are we
getting Legionella cases that look like they are community
acquired because our water samples are looking positive where
those patients were.
Mr. Michaud. Let me ask you, too, because I don't want to
forget. Mr. Murphy had asked about and it was mentioned that
there were signs up in the hospital not to use the water
fountains or the water because there was a trouble with the
line. Whose decision was it not to be more transparent and
disclose to visitors and patients and others that there was a
Legionella outbreak, not that there was some problem with the
waterline?
Mr. Moreland. Yeah. Contrary to the perception that there
was not transparency and that there was a cover-up, I will tell
you that the news media was provided a news release, and so
when the family talked about seeing something in the newspaper,
that was based on the news release that the VA Pittsburgh did.
They posted it on their Web site the concern about Legionella
and held town hall meetings with employees.
I apologize and it is troubling to me that if individual
families were not talked to, that is challenging, but I am glad
to hear that they heard about it on the media because that was
one of our strategies, to get the word out, was to release the
information to the media.
Mr. Michaud. Mr. Chairman, I see the red light has been on
for quite some time, and I appreciate your indulgence, and if
there is a third round, I am interested.
The Chairman. There will be a third round.
Mr. Rothfus.
Mr. Rothfus. Dr. Petzel, in response to the Legionella
outbreak at the Pittsburgh VA, there has been legislation that
has been introduced in the House of Representatives, which I
cosponsored, that requires the VA facilities to follow the same
state guidelines for infectious diseases reporting as all other
hospitals. I think this is a good, commonsense approach that
will serve to better protect the health and wellbeing of our
veterans.
But VA officials oppose this legislation, in part because
it would subject them to potential fines for violation of the
law, and the VA would rather keep those funds for patient care.
Can't the same be said for the bonuses that you paid to the
senior staff? Wouldn't the tens of thousands of dollars that
you paid to individuals like Mr. Moreland and Ms. Wolf have
been better spent on patient care?
Dr. Petzel. Yeah. First of all, Congressman, I am familiar
with the legislation. I am not familiar with the opposition
that you just described. We, in fact, have already implemented
a policy within the VA that all facilities will report
infectious diseases as their states require. That is already
being done, and I will go back and see. I was not aware that
there was some official opposition to the legislation, but we
are already doing this. We think it is a good idea and are
doing it already.
Mr. Rothfus. I would encourage you to do that because the
VA has said if the proposed bill is adopted, the VA wants an
exemption from potential fines for----
Dr. Petzel. The fines. All right.
Mr. Rothfus. Said Jane Clara Joyner, Assistant General
Counsel for the Department. So I would appreciate you going
back and----
Dr. Petzel. I will find--we certainly don't oppose the idea
of reporting. That is fundamentally important, and we are
already, in fact, doing it. I will find out about the fines.
Mr. Rothfus. Now, your testimony also states that people
are not punished for inadvertent errors. Do you have an opinion
as to whether what happened at the Pittsburgh VA was simply an
accumulation of inadvertent errors?
Dr. Petzel. I do not believe that what happened at the
Pittsburgh VA is an accumulation of inadvertent errors.
Mr. Rothfus. I want to go back to what I talked about with
the first panel about President Kennedy and his call to public
service and that quote, ``Let the public service be a proud and
lively career, and let every man and woman who works in any
area of our national government in any branch, at any level be
able to say with pride and with honor in future years that I
served the U.S. government in that hour of need.'' And, of
course, when President Kennedy said, ``Ask not what your
country can do for you but what you can do for your country.''
What about you, Dr. Petzel? Say it was you. You have run a
VISN before, and let's say that an Inspector General report
comes out several days before you are going to get a
distinguished award that says there was systemic failures that
resulted in the deaths of veterans. Would you have accepted
that award?
Dr. Petzel. Let me first tell you a little Kennedy story. I
was in college as opposed to being one year old when John
Kennedy was assassinated, and I have served for 43 years in two
Department of Veterans Affairs. I am in public service in part
because of those words. I consider it to be an incredibly
honorable and incredibly fulfilling thing to be doing. And I
will be very candid and honest with you. It is incredibly
difficult for me to put myself into the circumstances that you
just described, but certainly if, I would not expect to be
nominated for an award, if those sorts of things were in the
process. In fact, the IG at the behest of the VA reviews
everybody that is going to get an award, and if there is an IG
investigation, it is almost automatically you are not a part of
that.
Whether or not I would, first of all, I am not eligible for
a President Rank Award, so it is very hard. As a politician, it
is very difficult to imagine it. But I would certainly hope
that I wouldn't even be in the running if that happened.
Mr. Rothfus. Do you think you might say, you know, given
what we have seen behind the scenes, given what we have seen,
this is not the best time for this. Maybe give me some time to
clean this up, make sure that it is all taken care of and then
recognize my work.
Dr. Petzel. I think that at that moment in time, Mr.
Moreland didn't have that choice. This was already a done deal,
already processed through OPM and wherever else it goes, and it
had already been awarded. You were just hearing, we were just
hearing about the announcement, but the decision about giving
that, about doing that had been made long before that. I would
think that if the opportunity were there prior to what
happened, that Mike or I, or anybody else, would step up and
say, let's wait and see what happens.
Mr. Rothfus. Mr. Chairman, I will have some more follow
ups. Thank you.
The Chairman. Dr. Petzel, you said you weren't eligible for
a President Rank Award, but are you eligible for any bonus?
Dr. Petzel. At the present time as a Presidential
appointee, no.
The Chairman. Okay.
Dr. Petzel. That is my understanding that I am not.
The Chairman. Okay, and you said that you currently are
reporting any incidents similar to, we are talking about the
Legionella outbreak, so did we report that? Did VA report that?
Dr. Petzel. Yes.
The Chairman. To who?
Dr. Petzel. To the C--to the state as I understand it. The
way this works is that the CDC----
The Chairman. No, no. I just----
Dr. Petzel. Let me just quickly.
The Chairman. Let Mr. Moreland since he shook his head, and
I have limited time. No.
Dr. Petzel. All right.
The Chairman. Mr. Moreland. Who was it reported to?
Mr. Moreland. The State Health Department.
The Chairman. Who in the state?
Mr. Moreland. The State Health Department.
The Chairman. Okay, and is that public record when you
report it to the state?
Mr. Moreland. I really don't know if it is public record,
but we reported each case. I think the challenge was, is that--
--
The Chairman. No, no, no, no, no. Not each case. When you
know you had a situation in your water system, was that
reported to the state?
Mr. Moreland. Oh, the water samples were not reported
because that is not required.
The Chairman. Okay. That is what we are talking about. When
you know you have got a problem, that is what the bill is
intended to do and that is to seek a reporting from the VA to
the local or state reporting authority so that they know that
there is an issue. The local hospital doesn't have to do it?
Dr. Petzel. No. They report cases of Legionella.
The Chairman. Okay.
Dr. Petzel. They do not report positive water samples.
Mr. Moreland. They all don't even take samples.
Dr. Petzel. Most of them don't take samples.
The Chairman. The local hospital doesn't take samples?
Mr. Moreland. I don't know what the local hospital does,
but I know----
The Chairman. You just said the local hospital doesn't take
samples.
Mr. Moreland. I know from meetings where I----
The Chairman. You just told me that they don't take
samples.
Mr. Moreland. I said not every community hospital takes
samples.
The Chairman. No. You said the local hospitals doesn't take
samples. Do they or don't they?
Mr. Moreland. I don't know.
The Chairman. Okay. Well, you just said they did.
Mr. Moreland. Based on my understanding of local community
hospitals, many don't.
The Chairman. All right. Dr. Petzel, and this is from
something Mr. Moreland just said because you brought in, there
are two systems, I guess, and you brought one company in to
check out the other system because you weren't quite sure
whether that system was doing what it was supposed to do. It
kind of fits this question because you conduct a root cause
analysis when there is a serious injury or a death that has
occurred at a facility, and that analysis is an impartial
process according to your testimony.
And my question is, how can it be impartial when it is
staffed by a team of experts from throughout the hospital? How
is that? Impartial would be to bring in somebody from the
outside to look at it, not somebody from the inside, in
particular, with the Medical Director being in charge of
overseeing that.
Dr. Petzel. Mr. Chairman, I don't know where the term
impartial got into this discussion. We do root cause analyses
locally on every kind of an adverse event that has occurred.
When we are looking for something that is impartial, we either
do it at the network level, or we bring in a central office
team. I wouldn't want to----
The Chairman. So the root cause analysis is not an
impartial process?
Dr. Petzel. It is impartial in that the people involved in
it are not, but if you are implying that the whole medical
center is contaminated by the fact that they all work there,
then----
The Chairman. No, I didn't imply.
Dr. Petzel. Well, I would view it as an impartial, sir, if
it is coming from people other than those involved in the
discussion or in the incident.
The Chairman. Okay. Your testimony on page 3, ``When a root
cause analysis is needed, a team of experts from throughout the
hospital and elsewhere work with those who are familiar with
the situation in an impartial process to identify prevention
strategies.'' So it came from you.
Dr. Petzel. It came from me.
The Chairman. Yes.
Dr. Petzel. Yes and----
The Chairman. You said you didn't know where it came from.
Dr. Petzel. --we would view that as impartial. People not
involved in the incident and review it from outside the
incident.
The Chairman. Who has the final say within that facility on
that root cause analysis?
Dr. Petzel. The Director would.
The Chairman. Okay, and would it not make sense that the
Director wouldn't necessarily want bad news to get out to
somebody?
Dr. Petzel. I would certainly hope that that is not the
case.
The Chairman. I would hope not.
Dr. Petzel. --way this is being thought of.
The Chairman. I would hope not, too.
Mr. Michaud.
Mr. Michaud. Thank you very much, Mr. Chairman.
I see Mr. Battle, Mr. Milligan, and Mr. Stiller. We are
concerned about your facilities as well. I know the focus,
since we are in Pittsburgh is with Mr. Moreland. I just want
to, Mr. Chairman, first of all, thank the first panel for their
story, and our sympathies go out to you, the family, and we
will do whatever we can to make sure that we continue having
these oversight hearings and to hold the VA accountable
systemwide to make sure that we have policies and procedures in
place, but also that staff in those facilities are implementing
those procedures that are placed. That seems to be where
problems have been, is within these certain facilities, and I
also want to thank this panel as well for coming out.
Mr. Chairman, I have no further questions. I know that Mr.
Doyle has a lot of questions, so I would yield the remainder of
my time to Mr. Doyle.
Mr. Doyle. I want to thank the Ranking Member.
Mr. Moreland, we had met with you shortly after the
Inspector General issued reports in April and July in which
they found the Pittsburgh VA had inadequate maintenance at all
times at the copper-silver ionization system, failure to
conduct routine flushing, failure to test patients with
hospital-acquire pneumonia for Legionella, inadequate testing
requirements, and at that time, you told us that you had
accepted the findings of the IG's report. Is that correct?
Mr. Moreland. That is correct.
Mr. Doyle. Who do you hold responsible for that?
Mr. Moreland. Well, first the Hospital Director and then
the leadership team below the Hospital Director, including the
Chief of Staff, the Associate Director, the Chief Engineer,
infection control physicians.
Mr. Doyle. Uh-huh, and so what action as the VISN 4
Director did you take in light of that?
Mr. Moreland. Well, first off, as mentioned earlier, I
really have to wait until the OIG criminal is finished, because
they don't want us contaminating their investigation with other
actions and findings until they are finished, and we will do
that at that time.
Mr. Doyle. Dr. Petzel, you said that you do not believe
what happened in Pittsburgh is the result of a bunch of
inadvertent errors. Is that correct?
Dr. Petzel. Yes, I did say that, sir.
Mr. Doyle. And we understand that there is a criminal
investigation pending which we are waiting the outcome for. Is
that correct?
Dr. Petzel. That is correct.
Mr. Doyle. And are you here to tell this panel today and
the family members sitting in this audience, when that report
is issued, that there will be some accountability for what
happened in Pittsburgh?
Dr. Petzel. Yes, sir.
Mr. Doyle. I want to assure the family members this isn't
over and that we will continue to monitor this until the very,
very end.
Mr. Chairman, I want to thank you for holding this field
hearing. I appreciate it. I know the people in Pittsburgh
appreciate it. We have a long history of serving our country.
Men and women in Western Pennsylvania are among the first to
step up when the country calls. When we ask these men and women
to go to battle for us, the very least we can do is make sure
when they come home that they are treated with compassion.
I also want to say that I believe the vast majority of
employees at VA Pittsburgh who I have had association with for
many, many, many years, my father was 100 percent service-
connected disabled vet who died when he was 61 years old as a
result of his service to this country. I spent six years on
this Committee with Sonny Montgomery when he was the Chair of
this Committee. I want the people to know the vast majority of
the people who serve our veterans in Western Pennsylvania care
deeply about our veterans and try to provide the best level of
service they can. And the volunteers who come to our VA
hospitals in Pittsburgh come because they care and love these
veterans, too. And when something like this happens, it breaks
our heart, and it makes our blood boil, and we will get to the
bottom of this, and we will get answers for these family
members who have lost loved ones.
Mr. Chairman, thank you very much.
The Chairman. Thank you very much.
Dr. Murphy.
Mr. Murphy. Thank you, Mr. Chairman.
I want to follow up on your statement, Doctor, about the
Pittsburgh VA is not an accumulation of inadvertent errors. How
would you describe it then?
Dr. Petzel. I would describe it as, I think the IG did in
that there were things that were not being done consistently,
that we would want to have done, the refreshing of the copper-
silver system, the testing being done maybe in a regular
fashion sometimes, the fact that water temperatures varied
tremendously across. They weren't at the level, such things as
that. An accumulation of things that weren't being done
perfectly that led to this storm.
Mr. Murphy. And my understanding is, before personnel were
let go and the pathogens lab was closed, there was people
working at the Pittsburgh VA who had extensive expertise on
Legionella, although it is not part of the subject of the
Inspector General's criminal investigation. I hope that part of
it is, any role that may have played which was a loss of
expertise and was that expertise replaced.
Clearly a disease that is named after veterans, Legionella,
would be something we want to pay particular attention to,
particularly because it occurred, and it particularly concerned
in areas that have transplants as you know with the medication
people take.
Another area here is that, have you met with the families
that are here today?
Dr. Petzel. I met the family members today at this hearing.
I have not met with them before.
Mr. Murphy. Would you be willing to speak with more alone,
in private, at some time----
Dr. Petzel. At some point in time, certainly.
Mr. Murphy. You will commit to that?
Dr. Petzel. If it can be arranged, I will.
Mr. Murphy. I think you are in charge of your own schedule,
so can you make that commitment? You will make sure that if
they want to meet with you, you will meet with them?
Dr. Petzel. I can.
Mr. Murphy. Thank you very much. I appreciate that.
The other aspects of lessons learned here go into also with
regard to the documenting procedures. Now, you have read the
whole Inspector General's report?
Dr. Petzel. I have.
Mr. Murphy. And have you read also the GAO report regarding
actions needed to improve the administration of the Provider
Performance Pay and Award Systems?
Dr. Petzel. I have.
Mr. Murphy. You have read that, too? And from that, are
there also actions that you are putting into place or the VA is
putting into place to change how those awards are given?
Dr. Petzel. Yes, sir. In fact, before the GAO report, I was
not happy with the way the Provider Performance Pay System was
being administered, and we chartered a group to review that
system, make recommendations about how we can tighten the
requirements, tighten the oversight, and make this into a much
more standardized procedure. So, yes, I agree with what the GAO
said, and in fact, we had started before the GAO report in
trying to reform that system.
Mr. Murphy. What happens in that system then, if you find
out that someone will be getting or has received an award, only
to find that perhaps months or years later, that some tragic
circumstance occurred under that person's watch which was
preventable?
Dr. Petzel. Well, first of all, they are not awards. This
is part of their pay. This is a portion of the physician pay or
dental pay that is put at risk for, depending on how well they
performed. It is not an award, and I don't know whether there
is a claw-back possibility associated with salary that someone
has received or not. I can't answer that question.
Mr. Murphy. Is that something that the VA is considering
for any rule changes?
Dr. Petzel. Not that I am aware of. No.
Mr. Murphy. And what about if someone has left the VA? You
had mentioned before a former employee. Is there any
provisions, for example, looking at a person's pension?
Dr. Petzel. I am not aware that except for a criminal
conduct, I don't think that we are able to affect people's
pensions after they have retired, but I quite frankly don't
know.
Mr. Murphy. That is my understanding if it relates to
criminal activity, too. I hope that is something that you will
review some way in the future, too, because sometimes things
emerge later on.
Thank you very much. Mr. Chairman, I yield back.
The Chairman. Mr. Rothfus.
Mr. Rothfus. Thank you, Mr. Chairman.
Dr. Petzel, you state in your testimony that you operate
with unmatched transparency in public and private sector health
care, fostering a culture that reports and evaluates errors in
order to avoid repeating them in the future.
There has been some very good reporting done here in
Pittsburgh regarding the Legionella outbreak that has been done
by the local news outlets based on documents they have been
able to acquire through the Freedom of Information Act, but
this leads me to wonder why does it take a FOIA request for the
VA to turn over relevant information, particularly when this
Committee requested that same information back in January?
The Committee requested it on January 18 for documents. I
sent a letter, along with the Chairman and Subcommittee
Chairman Coffman, requesting all emails regarding Legionella
from the Pittsburgh VA. We have yet to see them.
Can you tell us what the status of that is and when we are
going to see those emails?
Dr. Petzel. First of all, I regret the fact that you have
not received those yet. I have told the Chairman previously
when we have talked about delay of documents, it is my goal
that you people receive as quickly as possible all the
information you ask for. That is part of your responsibilities
when you are acting as an oversight Committee for the VA. I
understand that we are very close to being able to send those
out, and I can't tell you what exactly the reason for them not
getting to you as quickly as we would have expected them to,
but I understand we are very close.
Mr. Rothfus. Thank you. Also based on some very good
reporting that was done, again, by our local news outlets here
in Pittsburgh, and documents that they did obtain through the
Freedom of Information Act, we know that the VA in Pittsburgh
found Legionella in its water system as far back as 2007, five
years before they finally disclosed it to the public.
In fact, things got so bad that in September of 2007, 17 of
19 cultures taken in the intensive care unit tested positive
for Legionella. What we don't know is how many cases of
hospital-acquired Legionella have occurred since 2007, since
those figures have not been released by the VA.
To clear up the record on this, has VA investigated the
presence of Legionella at the VA Pittsburgh Health System
dating back to 2007?
Dr. Petzel. I have not seen the data going back to 2007. I
have seen 2010, 2011, and 2012, and I can't answer that
question, but we will find out, and I will get back to you.
Let me just make a statement, though, about Legionella. Up
until now, recently, the standard in the community, as well as
in the VA, was that if less than 30 percent of the cultures
were positive, you did not have to do any reading. This was the
standard practice, and our experience here in Pittsburgh has
taught us and the Nation that that is not adequate, that we
need to have more rigorous eradication when we find any
positive cultures.
So the fact that there were positive cultures probably
wouldn't have triggered anything in particular regarding
Legionella in the VA or any other hospital in Pittsburgh or the
country for that matter. So this experience here has really
substantially, I would even say dramatically changed the way
we, as an organization, and I, think the way the Nation is
approaching Legionella and its eradication.
Mr. Rothfus. I would ask that you take a look at the VA and
see what is being done with respect to the 2007 time period and
let us know.
Dr. Petzel. Yes, Congressman, we will.
Mr. Rothfus. Thank you. Thank you, Mr. Chairman.
Mr. Murphy. Mr. Chairman.
The Chairman. Dr. Murphy.
Mr. Murphy. Thank you. I just, my thanks to you for coming
to Pittsburgh to you and the Ranking Member. This has been
extremely important. It has given us a lot of insight. I just
want to thank you for the honor. Seeing that I was on the
Veterans' Committee once before, and it is like Mr. Doyle said,
an honor to be back with you, and I also want to thank you for
your ongoing tenacity in pursuing this. Our veterans deserve
this and all those who engage so much in this country. So,
again, my compliments to you.
The Chairman. Well, I thank the Members for their
attendance. We will be leaving shortly to go back to Washington
where there is continued questions that we will each be asked
to deal with.
I would just ask the panel to put yourself in the shoes of
the family members that are here today who have lost loved
ones, and I am not going to ask you to comment, but just ask
you deep down inside how would you feel, how would you feel if
your loved one had died and then you found out the very person
who was supposed to be preventing death like that to occur
received a bonus. Any bonus. It doesn't matter if it is a
Presidential Award or any other type of bonus.
You understand the gut-wrenching testimony this morning,
you understand the concern from Members here, and I can tell
you there were a number of Members of the Committee that wanted
to make the trip, but unfortunately needed to be in Washington
for briefings on Syria. We will continue to work with VA, with
the Administrations, with the families, to make sure that
preventable injuries and deaths don't occur. Nobody is perfect.
We understand that. We understand that, and we want to help,
but what we have seen and what we have heard so far doesn't
give us a whole lot of faith. I know there has been a lot of
preparation for this hearing, and I would expect nothing less,
but a simple, truthful, transparent answer that required no
preparation would have sufficed at this hearing today.
And with that, all Members will have five legislative days
with which to revise and extend their remarks or add any
extraneous material for the record, and with that, this hearing
is adjourned.
[Whereupon, at 12:15 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Jeff Miller, Chairman
Good morning, and welcome to today's Full Committee hearing ``A
Matter of Life and Death: Examining Preventable Deaths, Patient Safety
Issues and Bonuses for VA Execs Who Oversaw Them.''
I would like to thank the good people of Allegheny County for
hosting us today.
As most of you are aware, the Department of Veterans Affairs'
Veterans Health Administration provides health care services for
millions of American veterans, but a rash of preventable veteran
deaths, suicides and infectious disease outbreaks at several VHA
facilities throughout the country has put the organization under
intense scrutiny.
Despite the fact that multiple VA Inspector General reports have
linked a number of these incidents to widespread mismanagement at VHA
facilities, the department has consistently given executives who
presided over these events glowing performance reviews and cash bonuses
of up to sixty-three thousand dollars.
Many Americans have watched in disbelief as these events have
unfolded on their television screens and in the pages of their local
newspapers.
For some, however, these tragic incidents hit much closer to home.
So I would like to take a moment to recognize all of the family
members of those who have suffered preventable deaths at VA medical
facilities as well as any veterans who have endured VA patient-safety
incidents here in attendance today.
Additionally, I would like to recognize former American Legion
National Commander Ray Conley, for whom the Pittsburgh Legionnaires'
Disease outbreak is very personal because he was at the 1976 American
Legion convention and in the hotel during the original Legionnaires'
Disease outbreak in Philadelphia.
To the families of the fallen, I know I speak for every Member of
Congress here today and every Member of our Committee when I say that
we are deeply sorry for your loss and we simply will not tolerate
substandard care for our veterans under any circumstances.
When we hear about it, we will investigate it, and keep the
pressure on VA until the problems are solved, and those responsible for
letting patients fall through the cracks are held accountable.
That is precisely why we're here today.
The purpose of this hearing is to examine whether VA has the proper
management and accountability structures in place to stop the emerging
pattern of preventable veteran deaths and serious patient-safety issues
at VA medical centers across the country.
In doing so, we will specifically look at VA's handling of recent
events in Pittsburgh, Atlanta, Buffalo, New York, Dallas, and Jackson,
Mississippi.
For the folks we just recognized, the good people of Pittsburgh,
and all those watching this hearing over the Internet, what you're
about to hear may be painful.
But just so everyone understands the significance of the five
locations I just named, I want to offer a brief rundown of why these
incidents are so troubling to the Members of our Committee.
In Pittsburgh, VA officials knew they had a Legionnaires' Disease
outbreak on their hands, but they kept it secret for more than a year.
Five veterans are now dead.
Despite all of that, VA Pittsburgh director Terry Gerigk Wolf
received a perfect performance review during a period that covered the
bulk of the outbreak and regional director Michael Moreland, who
oversees VA Pittsburgh, accepted a sixty-three thousand dollar bonus
just three days after VA's inspector general reported VA Pittsburgh's
response to the outbreak was plagued by persistent mismanagement.
In Atlanta, two VA inspector-general reports identified serious
instances of mismanagement that led to the drug-overdose death of one
patient and the suicides of two others.
True to form, VA doled out nearly sixty-five thousand dollars in
performance bonuses to the medical-center director who presided over
the negligence.
During a visit to the hospital in early May, hospital officials
told me that although they had identified specific employees whose
actions had contributed to patient deaths, no one had been fired.
When I asked a roomful of Atlanta VAMC leaders if there were any
other serious patient-care incidents Congress needed to know about,
they said no, failing to reveal a previously unreported suicide the
media would expose just four days later.
At the Buffalo, New York, VAMC, hundreds of veterans were
potentially exposed to Hepatitis and HIV after facility staff had been
reusing multi-use, disposable insulin pens.
At least eighteen veteran patients have tested positive for
Hepatitis so far.
Additionally, officials at hospitals in Buffalo and Batavia failed
to properly maintain medical records, leading to the damage of
thousands of patient files.
Despite all of this, David West, the man tasked with overseeing the
Buffalo facility, pocketed nearly twenty-six thousand dollars in
bonuses.
The Dallas VA Medical Center has been the subject of a series of
allegations from VA workers, patients and family members regarding poor
care at the facility as well as more than thirty certification agency
complaints in the last three years.
The fact that there have been so many allegations of poor care at
this facility is troubling enough.
What's also troubling is that Congresswoman Eddie Bernice Johnson,
of Dallas, worked for more than a year behind the scenes to get VA
officials in Washington to seriously investigate the matter.
Amidst these accusations, two top VA health administrators in Texas
have collected a combined fifty thousand dollars in bonuses since 2011.
The situation in Dallas mirrors another instance of VA's apparent
failure to take multiple allegations of poor patient care seriously -
this time in Jackson, Mississippi.
At the VA medical center there, a series of whistleblower
complaints from medical center employees to an independent Federal
watchdog called the Office of Special Counsel, or OSC, raised concerns
about poor sterilization procedures, understaffing and misdiagnoses.
Based on OSC's recommendations, VA was required to investigate the
complaints, but VA Undersecretary for Health Dr. Robert Petzel
downplayed the problems by referring to them as ``kerfuffles.''
So is it any wonder that the OSC wrote to President Obama in March
of this year to voice serious concerns with the outcome of VA's
investigation and the manner in which it was conducted?
In her letter to the president, U.S. Special Counsel Carolyn Lerner
said ``it does not appear that the agency has taken significant steps
in improving the quality of management, staff training, or work
product'' and that the whistleblower complaints ``raise serious
questions about the ability of this facility to care for the veterans
it serves.''
To me, that's about as far away from a kerfuffle as it gets.
There are two sides to every story, of course.
Later, you will hear from VA officials, who will likely tell you
that these problems are all in the past.
But just last Friday, VA's inspector general released another
report that will challenge that assertion.
After an investigation into the VAMC in Columbia, South Carolina,
the I-G found that mismanagement at the facility helped create a
backlog of thousands of gastro-intestinal consultations, leading to
nineteen instances of serious injury or death for veteran patients.
We have a photo on display here that I, myself, took during a
recent visit to a VAMC facility in Albuquerque, New Mexico.
It depicts a quote from Dr. Petzel that was emblazoned on the wall
of the facility.
It reads ``Improving our work, is our work.''
Well, it appears the work is not improving and the question VA
officials must now answer is `where is the accountability?'
We are not here as part of a witch-hunt, to make VA look bad or to
score political points.
We simply want to ensure that veterans across the country are
receiving the care and benefits they have earned.
No one is questioning whether VA officials are sorry for these
incidents or if VA officials are committed to providing the best care
possible.
We know that they are.
We also know that the vast majority of the department's more than
three hundred thousand employees are dedicated and hard-working, and
many veterans are satisfied with the medical care they receive from VA.
What we are questioning is whether VA has the proper organizational
culture, accountability and management structures to minimize the
future occurrence of heartbreaking situations like the ones I just
described.
Considering that the VA executives who presided over the incidents
I just described are more likely to have received a bonus or glowing
performance review than any sort of punishment, the question we are
asking here today is entirely valid.
By now it's abundantly clear to most people that a culture change
at VA is in order.
Today, we will find out if VA leaders agree.
Prepared Statement of Brandie Petit
I am Brandie Petit, sister of Joseph Petit. I want to thank you for
the opportunity to submit my statement about my brother. Joseph didn't
have a lot as a child, but he wanted more. He wanted to be somebody. He
wanted to make a difference. I remember Joseph sitting with me in his
room, showing me the information he had about the Army. He told me ``I
want to be the best of the best'' and therefore he wanted to be an
Airborne Ranger. He believed he could make a difference. While growing
up, Joseph was always very active and concerned about eating healthy
and working out. At one time he had a 40-inch chest and looked a lot
like Sylvester Stallone. He ran, weight lifted, drank raw eggs and
protein shakes, and seemed to eat everything in sight. I can't ever
recall Joseph taking any medications, even over the counter meds for
something as minor as a headache. He worked very hard at everything he
did. Once he put his mind to something, it would be done.
Joseph was determined to be an Airborne Ranger! But, he injured his
knees while training to be the Airborne Ranger he desired to be. After
seeking help for over 20 years from other options, it was a big step
for Joseph to give up and finally go to the VAMC. My brother was able
to care for himself and help others prior to going to the VA. He sought
help for the pain in his knees. They treated his knees some, but the
doctors said his pain was really just his brain making him believe
there was pain and that there really wasn't any true pain or injury.
On Feb 27th of 2012, I took him to an appointment that the VA set
up at QTC Medical Group in Atlanta GA. There he had to do several
movements with his knees. I heard one of his knees pop, it sounded like
a chicken bone snapping. The other one sounded like bone on bone
grinding. Those noises gave me chills. If the pain in my brother's
knees was imaginary, then please explain how I heard those noises. Why
did my brother break his teeth gritting from the pain of trying to
walk?
I am not sure of the exact date, but there was a day that Joseph
spoke of, about him going to the VA and them not helping him. They told
Joseph he needed to leave because he didn't have an appointment. The VA
Police physically removed Joseph and put a standing order into place to
arrest him if he showed up again without an appointment. This is NOT
the way I feel anyone on earth should be removed or treated.
I am outraged at his treatment that day! I am very upset with the
way Joseph and so many others are treated. My brother deserved more
respect, if nothing else. If your job involves people, it doesn't
matter how many credentials you have, without compassion, credentials
mean absolutely nothing! The Bible states in the book of Luke 6:27-36,
love your enemies and treat others as you would have them treat you. My
brother treated everyone with respect!
Joseph was always more than willing to help family, friends, and
even strangers in time of need. He truly cared about people and their
comfort.
My mom and I were shown that same lack of respect when dealing with
the VA after they found him dead. We didn't know where to go to pick up
his belongings. I was driving and my mother was on the phone asking the
VA Police where to go. Their reply was, ``How did he die, was it
suicide?'' Now you tell me why they needed to ask my mother that? Just
to rub it in her face that her only son had taken his own life? How
rude! That's an example of how compassion should be more important that
credentials! I do completely understand that credentials are essential,
but we need to make sure that compassion is not forgotten when dealing
with a person, a brother, a son, uncle, cousin, grandson, nephew, a
friend, a soldier!
Joseph told me that if he did what they (the VA) said, they would
fix his knees. He seemed to think if he played by their rules for a
while, they would finally help! We have documents of every time he
attempted to reach out for help and those documents prior to being
treated by the VA will show that my brother was of sound mind!
Some questions I still have are: How many medications should
someone take? Why in the world would one person have to take more than
20 pills a day? That's simply a ridiculous amount of medication going
into one body. Many of his medications caused hallucinations! What did
he go to the VA saying the day before they found him dead and cold in a
bathroom on the 8th floor? He said he was hearing voices.
Hallucinating!!! Maybe those people should be prescribed the same
medications that Joseph was. Would any of you be willing to take even
one of those medications? I sure wouldn't!!
Due to the side effects, Joseph chained himself to the beam in the
ceiling to make sure that he didn't sleep walk! He literally chained
himself with a master lock and chain around his ankle so that he would
not wake up hallucinating and harm someone. He had my mom keep the key
to the lock and asked her to do a mental evaluation of him before she
was allowed to unlock him.
My brother was a prisoner in his own body. Joseph couldn't shower
regularly because the pain of his knees trying to step into the tub was
too much to bear. He couldn't stand up without falling over or holding
on to something for support. Not long before he died, my son who had
just turned 12 watched his Uncle Joseph fall down the stairs of the
porch.
My brother, who was so selfless and compassionate to others, was
dying in front of me and I kept trying to get him to stop taking those
meds!
He was not my brother any more; my brother was hiding in there
somewhere trying to get help!He told me his doctors were concerned
about the guns in the house, the guns weren't the danger though. Joseph
was taught to fight as an Army Ranger. He didn't need a gun to harm
someone. He was taught to protect and serve his country and to take out
the enemy with any force needed. He did not commit suicide because he
felt sorry for himself; he committed suicide to protect others from the
voices in his head and hallucinations telling him to hurt others.
I was told that Joseph had been given information about homeless
shelters. I can assure you that MY brother would have never been
homeless!!! Shame on the American people who allow Veterans to become
homeless. The words ``Homeless'' and ``Veteran'' should not be used
together! How can we as Americans sit back and look down our noses at
men and women who fight for our freedom of religion, freedom of speech,
and all our many other freedoms? I do believe that OUR Veterans should
be treated with more respect than I have seen. Go to a VA without your
suit on and take a look around. I dare you! You will see a lot of men
and women who served the same country that you and I serve in our own
ways. They fought in one way or another for our freedoms. They are
being neglected, forgotten, and shamed by the actions of our American
people.
I don't believe my brother was perfect, nor do I believe any other
person on this planet is. I do believe when someone says they have pain
and they have the sounds of his knees, they should be taken more
seriously. I don't know everything that happened with Joseph at the VA
because I am not him. I can only go on the information he provided and
that I witnessed first hand.
Nothing I say or do can bring Joseph back and I wouldn't dare bring
him back to be mistreated again. I know he is with God! I know he is
redeemed!
The following is a letter that I retyped word for word that Joseph
wrote May 15, 1992 to Congressman Newt Gingrich. I think Joseph said it
best himself. Please read below.
P.F.C. Petit
(Residence Georgia 30253)
13906 Ft. Campbell Blvd, Apt 2
Oak Grove, KY 42262
Congressman Newt Gingrich
P.O. Box 848
Griffin, GA 30224
Dear Congressman Gingrich:
I am Private First Class Joseph C. Petit, 253-98-3134. I enlisted
in the Active Duty Army November 26, 1990, as an Infantryman and was
scheduled to attend Airborne Training and Ranger Indoctrination
Training before being assigned to a Ranger Battalion. I enlisted for
four years and sixteen weeks.
I have documentation proving that I passed all of my physical
flawlessly at the Atlanta Military Enlistment Processing Station.
In March of 1991, I was attending Airborne Training when I injured
both my knees performing parachute landing falls. The orthopedic
surgeon presently overseeing my case is Dr. Greer Busbee. Dr. Busbee
did not examine me until more than six months after my injury. Dr.
Busbee has formed the incorrect opinion that this may have existed
prior to service. Dr. Busbee believes this is a temporary condition
even after 14 months without any improvement. Dr. Busbee will not allow
me a second opinion, corrective surgery, arthroscopy, arthrograms, or
magnetic resonance imaging.
Presently a Formal Physical Evaluation Board has found me
physically unfit for military duties and recommends a combined rating
of 10% and that my disposition be: ``Separation with severance pay if
otherwise qualified.'' The Physical Evaluation Board says this
condition is permanent. My legal representative told me that entitled
me to approximately 4 months pay and Veterans Administration benefits.
My written rebuttal must be received by the Physical Evaluation Board
no later than 8:00 a.m., May 25, 1992, Central Time Zone.
The Physical Evaluation Board decision was based primarily on the
statements of Dr. Greer Busbee. I believe Dr. Busbee's assessment of my
injuries are incomplete at best.
I fully realize the risk of surgery. I want my knees repaired if
possible or replaced with artificial knees. If possible, I would like
to continue service in the Army. I still aspire to be an Airborne
Ranger. If I am discharged without repair, I request financial
compensation until they can be repaired because walking even slowly
causes severe pain, popping, grinding and a feeling of joint
separating.
Presently, I cannot perform any of the jobs that I have experience
in. Any help would be greatly appreciated by my wife and I.
Sincerely,
Private First Class
Joseph C. Petit
P>F>C> Petit: Home:(502) 439-3675
Work: (502) 798-2753
P.E.B. (512) 221-1524
Dr. Busbee
Orthopedic Clinic (502) 798-8426
Hospital Information (502) 789-8400
Please read the below text messages between Joseph Petit and his
sister Brandie Petit. Please understand the misspelled words were not
normal for Joseph. He used very good grammar, spelling, and punctuation
regularly.
Sept 19, 2012 @ 6:15 PM
Joseph sent Brandie a text stating ``Home safely ; medication
increased because of sounds heard lately.''
Brandie's response ``Thank you for letting me know. I love you.''
Sept 27, 2012 @ 6:33 PM
Joseph sent Brandie a text stating ``Hello, I made it home alive
today. Anyway, I may have hallucinated last night ; or now ? Or have
these occurences not happened yet ; is one of us hallucinating the
other ? Is now really now? Does reality exist? Can exist possibly exist
without reality? My meds . . . . Why yes they did change something..
Why do you ask???''
Brandie's response ``I really wish you would get off all
medications, you were much more normal before them. I love you!!!!''
Oct 12, 2012 @ 9:00 AM
Joseph sent Brandie a text stating ``I am at the VA for the fourth
day this week. Monday was a federal holiday. I did not understand until
maybe Wednesday ; I am exhausted. Outpatient. All patients are limited
in treatment until outpatient stabilized status. I am still physically
reacting to hallucinations. Dr. Will and I have an appointment today.
She is one of my favorite doctors. She is my psychiatrist. I continue
to chain myself to the ceiling; somehow that seems to limit sleep
walking. If I understand correctly my psychologist student has the
credentials to diagnose and correct my files ; under the supervision of
another doctor. Next appointment with him is Tuesday. GOD Bless You and
Yours.
Brandie's response ``God Bless You!!!''
Oct 22, 2012 @ 6:00 PM
Joseph sent Brandie texts stating ``I have properly attended all
four appointments at the Stockbridge VA Clinic begining June 2011.
Today is the first time that I remained an outpatient. My new doctor
set the referals I requested in writing. A few hours later, she called
to say that my case is too complicated for the clinic. I am being
transferred to VAMC Decatur. There is less chance of falling through
the cracks in the system at this point. Perhaps Wednesday or Thursday I
will know more.''
Brandie's response ``Ok''
Oct 23, 2012 @ 8:51 PM
Brandie sent Joseph a text stating, ``I love you''
Joseph did not respond
Oct 24, 2012 @ 4:18 PM
Joseph sent Brandie texts that were very scrambled to say the
least.
Joseph texted ``I am home again.''
Brandie's response ``Good!!!!''
Joseph texted ``Anxioty meds could be stronger.''
Brandie's response ``Give it to God!!! He helps me with anxiety all
the time when people piss me off''
Joseph texted ``This time when I heard the phone I did not jump.''
Brandie's response ``Good''
Joseph texted ``I jumped again. i jump about half the time that
this phone makes sounds. Even when I am expecting it. Probably looks
hilarious.''
My response was ``Lol. Mine is broken so it doesn't make any noise
at all''
Later this same day @ 9:05 PM Joseph texted ``Trying to think ; not
productive at this point.''
Brandie's response ``I'm sorry. Maybe you should not try to be as
intelligent while on your meds. We all know you are VERY smart, no need
to try to prove it all the time. We all love you just the way you
are.''
Joseph's response ``Being mentally disabled slows progress,
hallucinations keep life interesting. They gather groups of us together
; when someone pushes button 5 on the elevator, people seem to back
away slowly ? There is talk of a sleep study for me, and neurology.
Maybe progress will produce complete diagnosis.''
Brandie did not respond
Nov 1, 2012 @ 7:03 PM
Joseph sent Brandie texts stating ``I made it home safely.''
Brandie's response ``Good!!!! I'm having a rough week''
Nov 9, 2012 @ 1:03 PM
Brandie sent Joseph a text stating ``I love you!!!!! I'm sorry I
have been busy trying to adjust back to work and all the chores that
come along with your new niece Lani Belle.''
Joseph never responded. My mom called me within minutes and told me
they had found Joseph. Thank God I know my brother was saved and I will
see him again one day!
The following letter is from Joseph's longest and best friend of 34
years (Joseph was only 42 and made friends for life). My mom, Sandra
Petit, requested his friend Mike to write his own recollection of the
events that led up to Joseph's death.
When Joseph got out of the army he was always complaining about his
knees hurting & said that the army wouldn't help him or fix them for
him, it was hurting him all of the time but he would do whatever he
wanted to do despite the pain, he was able to do his everyday
activities so he had a sour taste in his mouth towards the government
for not helping one of their own that was injured! He spent countless
hours & many years trying to get help with `` no results'' but he kept
trying. He told me of a time he went to the V.A. in Atlanta Ga. looking
for some help & told them he was in terrible pain & that he needed help
& the V.A. forcefully removed him from the premises when all he was
doing was looking for help! He kept trying to get help & persistence
paid off the V.A. finally agreed to help him, this meant a great deal
to Joseph as he had been trying to get help for almost two decades. He
was very happy to have the V.A look @ his knees after all this time. At
this time in his life he could function just as well as anybody could
it was just with a great deal of pain BUT HE COULD FUNCTION!! which
means driving ,walking, limited running, exercise etc. the V.A. set him
an appointment & sent him home with some medications for his head &
said nothing is wrong with his knees to the point @ which he described
& told him that it was Post Traumatic Stress Disorder & that the pain
was all in his head & if he took these medications & do specific
exercises that his knees would quit hurting & he said that he's willing
to try anything to see if it would ease up the pain but it never helped
him. They made several appointments for him & they noticed (The V.A.)
that he was not functioning like he usually did & lock him up in the
cereal ward as he called it with all the nuts, fruits, & flakes & told
me they were going to give him medicine for psychotic people that their
attention is no longer on his knees but on his head & the V.A. got him
in touch with a doctor that specializes in this field he said the gave
him some papers saying in his words ``that he was a nut'' but he told
me he would have to go along with them or they would not try to help
him so he did what he was asked to do. He took the medicine as
prescribed and just about every time he went to a appointment they
would lock him up for being unstable or suicidal & give him more drugs
& sent him home, drugs for his head & not his knees, I think he told me
that the V.A. has prescribed him 27 different medications he had so
much medication that he was unable to do any of the things that he
could do prior to going to the V.A. such as driving, walking without
assistance, it got hard for him to hold a conversation at times, he
told the V.A. that he was scared that he was going to hurt someone or
himself that he needed to be locked up till they fixed this medication
problem that they created; they changed his meds & sent him home. He
told me that he told them he had thought about killing himself but they
ignored him so he went to bathroom & put a zip tie around his neck &
someone walked in & found him in the floor & he was unconscious. The
V.A. changed some meds & sent him home after a week or so. His next few
appointments he told them that it wasn't helping him they needed to
lock him up before he hurts someone or himself they still didn't listen
to him and just kept telling him to go home its all in your head; he
told them it was to the point where he would literally chain himself in
his room & give his mom the keys to unlock him the next morning; that
he needed to be locked away till they could get him on some medication
that wouldn't give him these thoughts, they just ignored what he was
saying after practically begging them to do something about this;
``that his thinking wasn't clear, please lock him up he didn't want to
hurt anyone'', but they just turned him away & said its all in your
head go home. This happened several times, he had several appointments
after that for his mental state of mind. They all ended the same way,
go home it's in your head. The next appointment Joseph didn't come
home; they found him several, several hours later in the bathroom where
he committed suicide! This could have been avoided! He was a good
soldier
A good man
A good son
& A good friend!!
Mike
Joseph's favorite song at the time of his death was ``Redeemed'' by
Big Daddy Weave, probably because it referenced the chains and how they
were gone. I have attached the words for your reference.
``Redeemed''
Seems like all I could see was the struggle
Haunted by ghosts that lived in my past
Bound up in shackles of all my failures
Wondering how long is this gonna last
Then You look at this prisoner and say to me ``son
Stop fighting a fight it's already been won''
I am redeemed, You set me free
So I'll shake off these heavy chains
Wipe away every stain, now I'm not who I used to be
I am redeemed, I'm redeemed
All my life I have been called unworthy
Named by the voice of my shame and regret
But when I hear You whisper, ``Child lift up your head''
I remember, oh God, You're not done with me yet
I am redeemed, You set me free
So I'll shake off these heavy chains
Wipe away every stain, now I'm not who I used to be
Because I don't have to be the old man inside of me
'Cause his day is long dead and gone
Because I've got a new name, a new life, I'm not the same
And a hope that will carry me home
I am redeemed, You set me free
So I'll shake off these heavy chains
Wipe away every stain, 'cause I'm not who I used to be
I am redeemed, You set me free
So I'll shake off these heavy chains
Wipe away every stain, yeah, I'm not who I used to be
Oh, God, I'm not who I used to be
Jesus, I'm not who I used to be
'Cause I am redeemed
Thank God, redeemed
Prepared Statement of Gerald J. Rakiecki
I, Gerald J. Rakiecki have been invited by Congress to testify in
regards to all the knowledge I have about Veterans health care at the
Buffalo VA. This written document contains information about events
which occurred from December 2011 through the present period of time.
Some of the information was directly relayed to me by VA Buffalo HIMS
Employee Mr. Leon Davis, VA Buffalo LPN Employee Patricia Morrison, VA
Buffalo EMS Employee James E. Carney. The following is my statement and
affidavit on this matter.
I served over two years consecutive active duty with the United
States Air Force. I am a service connected (disabled) Veteran and I was
honorably discharged from my military service. I am employed by the
facility as a Police Officer. I have also served as a Steward and a
Chief Union Steward with the Service Employees International Union,
Local 200United which is the exclusive representative of the VA
employees within the particular bargaining unit.
In the course of my collateral duties as Chief Steward, I
represented Mr. Tracy Harrison, a VA Health Information Management
Systems [HIMS] employee, who was in fact a whistleblower concerning the
mismanagement of Veterans medical records. Mr. Harrison made a
protected disclosure of damaged and mishandled records and was
subsequently threatened by Associate Director [AD] Mr. Jason Petti.
In December of 2011, I became aware of these allegations of
mismanaged records by Mr. James E. Carney, who was also a Union Steward
under my charge. Mr. Carney explained to me the four HIMS employee's
allegations. Over the next month and half, I had several conversations
with Mr. Carney about these allegations and at first it was hard for me
to digest the magnitude of what I was being informed of. According to
Mr. Carney, approximately two-hundred and forty (240) boxes containing
hundreds of patient records were wet, moldy, stuck together, out of
sequence, out of order, inaccessible and unattainable.
Eventually, I informed Ms. Patricia Morrison who is also the
current SEIU Divisional Chairperson, for the Buffalo Division. I
relayed this information directly to her in January of 2012. In turn
Ms. Morrison warned me to keep out of it. Ms. Morrison explained that
AD Jason Petti confided in her (Morrison) with his plans take
administrative action against the reporting HIMS employees in the form
of reclassification, downgrading and possible removal from government
service. It became clear to me; Ms. Morrison was placing her support as
the SEIU Divisional Chairperson behind Jason Petti and the HIMS Manager
Liz Kane, instead of the membership she was elected to represent.
I was aware of a subsequent meeting held between Labor and
Management on this matter which took place on February 08, 2012 which
proved ineffective. In fact AD Jason Petti made a CLEAR written THREAT
against the four HIMS employees Mr. Leon Davis, Cathleen Manna, Pamela
Hess-Wellspeak and Tracy Harrison. AD Jason Petti sent a Microsoft
Outlook email in which he singled out the whistleblowers by writing
``you four.'' AD Jason Petti also wrote that he expected the four to
correct the problem during their work hours in addition to their
regular duties (punishment for bringing it to light). AD Jason Petti
attached the Union Chairperson Ms. Patricia Morrison to this email.
This information is documented in the Agency Investigation/ OSC
findings.
The four HIMS employees followed up by making a formal disclosure
to the Office of Special Counsel [OSC]. In turn their disclosure
resulted in an Agency Investigation. As a result of that investigation,
a majority of the charges were sustained in September of 2012. An OSC
report of the Agency Investigation was released to the public in the
spring of 2013.
I represented Mr. Tracy Harrison in January 2013 through March 06,
2013 on a proposed discipline. Mr. Harrison was charged with being AWOL
(absent without leave) and a Reprimand. Two forms of discipline for one
incident. The fact is, Mr. Harrison requested annual leave in the VA's
computer leave system. Mr. Harrison's leave was in fact approved and he
took his approved leave. Ms. Liz Kane however, performed a corrected
time card; reversing Mr. Harrison's approved leave so that she could
impose discipline (AWOL and a Reprimand).
The evidence proved the discipline Mr. Harrison experienced, was a
direct result of retaliation from HIMS Manager, Ms. Liz Kane. I
successfully represented Mr. Harrison by proving to Assistant Director;
Mr. Royce Calhoun the discipline was completely unwarranted, based on
the facts in my investigation. I disclosed my proof of retaliation
against Mr. Harrison in writing to Assistant Director, Mr. Royce
Calhoun. Mr. Calhoun had assumed Ms. Kane's managerial duties for the
VA Release of Information [ROI] HIMS on or about February 25, 2013.
What I have learned throughout this entire ordeal is that there are
two (2) completely different standards of Employee conduct at my
facility. The average Employees is held completely accountable for his
or her behavior and or misconduct. However, this standard does not
apply to high level Management Employees and Senior Executive Service
(SES). Evidence of this exists in the Agency's Investigation of
mismanaged records and the subsequent report filed by the OSC.
The Agency's Investigation and OSC findings clearly proved AD Jason
Petti was found to have made four (4) separate threats against four
whistleblowers that did their job by reporting wrongdoing. The
investigation also proved that AD Jason Petti's investigation of the
``moldy records'' was not accurate. I believe it is plain to see that
AD Jason Petti's investigation was in fact false.
However, AD Jason Petti was not disciplined. AD Jason Petti was
recognized for acting quickly. AD Jason Petti was in fact commended for
doing the exact opposite of what he should have done and what he is
compensated with GS15 pay ($116,545 through 151,509) to do. Liz Kane
received only counseling for her part. A verbal or written counseling
is not even considered discipline.
VA Employees in the Senior Executive Service (SES) and high level
Management Employees are supposed to be the pillars of integrity,
morals and ethics. This entire ordeal has shown me that they are in
fact, just the opposite. If an average employee were to be suspected of
displaying a lack of candor. That Employee would be harshly disciplined
based on a preponderance of the evidence. Which means the Employee
would be suspended and or removed if Management ``JUST BELIEVED'' that
they were not being ``COMPLETELY TRUTHFUL.''
Our system of accountability to our Veterans cannot work unless
``EVERY'' employee is held equally accountable. The fact that Veterans
medical records were sent out to the retirement center wet, moldy,
damaged, inaccessible and unattainable shows a clear DISREGARD FOR DUTY
and serious ethical violations on the part of the Managers who were in
fact ``WELL AWARE.''
The Managers involved displayed a total disregard for Veterans
health. These Veterans depend on the VA to maintain and keep safe their
records. Management failed to do so. Management attempted to cover it
up, and Management congratulated itself for a job well done.
DESPICABLE! Is the word I see fit to describe Management's conduct and
how it affected our Veterans.
Veterans gave their lives in every war we fought. Veterans place
their lives on the line for this county every day. We the VA are
supposed to help them, treat them and keep them safe. Our Veterans
should not have to put their lives on the line TWICE for their country,
by seeking assistance or care from a VA Medical Center. Veterans should
feel safe and most important BE SAFE, while being serviced and cared
for at their local VA Medical Centers.
In closing, I will answers the questions put forth to me by this
committee. I will state for the record that due to the aforementioned
medical records, and the recent report of misuse of insulin pens. No, I
will not seek treatment at the VA in Buffalo. I will not reconsider
seeking treatment at the Buffalo VA, until this Agency takes
appropriate action concerning the responsible Management officials
[RMO].
No, I do not trust the VA system. It is a system in which Managers
commit wrongdoing, cover it up and get rewarded for doing so. The end
result is an inability for this Agency to identify serious issues and
correct them quickly in order to properly serve our Veteran Heroes.
Please feel free to ask me any questions and I will do my best to
answer. Thank you.
Gerald J. Rakiecki
Prepared Statement of Sydney W. Schoellman
Good morning. I would first like to thank you all for inviting me
here today. I feel honored and greatly appreciate the opportunity to
testify on behalf of Veterans and their families. Before I begin I want
to introduce myself and the gentleman sitting next to me.
My name is Sydney Willingham Schoellman. I live in Allen Texas with
my husband and two children near both my Mother and one of my Sisters
who is in attendance today, Sarah Bell. The gentleman sitting next to
me is a great friend of the Willingham family named Larry Taylor. Larry
is an attorney for the Cochran Firm in Dallas and previously served as
both a District Attorney for Dallas County and on another occasion
served as the Director of Outreach for Congresswoman Eddie Bernice
Johnson. Larry and the Willingham family became dear friends due to our
matching principles concerning faith, and our United States Veterans.
I come to you all today on behalf of not only my Dad, deceased
Korean War Veteran Gary Willingham but also on behalf of all Veterans
and their families. My Dad, Gary Willingham was a vibrant, God fearing
patriot who at the age of 80 functioned in life as that of a 65 year
old. He lived in his own apartment, drove himself around and even grew
and harvested his own vegetables. He was a great man of faith who lived
his life based on strong principles. My Dad loved the United States and
when not busying himself with different events, you would find him
combing news networks so that he could stay up to date with what was
going on in our great Nation. He never passed on exercising his right
to vote and never missed a birthday party for one of his very young
grandchildren. He was the model of what a Dad, Grandfather and citizen
should be. He was not a man that took handouts, not even when he
struggled to raise 3 daughters on his own. Because he believed in
earning everything he got he felt it was only appropriate to rely on
the VA Health System for his healthcare needs, he did after all earn
it. It was his pride and this belief that made him continue to use the
Dallas VA for his healthcare for many years, never complaining. He
believed, as my two children would say, ``you get what you get and you
don't throw a fit''.
In 2009 he noticed a lump forming in his neck so he went to the
Dallas VA to have it examined. A biopsy was done and he was told that
it would take surgery to remove it but not to worry, it was benign. I
took him to the Dallas VA in 2009 to have that lump removed. At that
time we were told that they hadn't excised the entire tumor but they
had no fear that it would cause him problems in the future. Over the
next year in check-up after check-up he was told that they believed he
had cancer somewhere in his body but that the origin of the cancer
could not be located. Over the next year he would be subjected to
multiple PET scans and at one point, a tonsillectomy. The guess made by
the doctors at the Dallas VA was that the cancer could stem from his
tonsils. After an unnecessary tonsillectomy they discovered that they
had guessed wrong. By 2010 the lump had returned and the surgeons at
the VA again recommended to my Dad that they should operate to remove
it. In the morning of November 18, 2010 my sister Sarah, my Dad and I
arrived at the Dallas VA at approximately 5:45 in the morning. We
checked in to Day Surgery and were sent to wait in the waiting room for
approximately thirty minutes or so. After those thirty minutes my Dad
was called back to the surgery holding area. Once he had his gown on
and was settled my sister and I were allowed to go back and sit with
him. After continuous hours of waiting Sarah and I ran down to the
canteen to grab a bite to eat. When we returned we were informed that
they had taken Dad back to be prepared for surgery.
After a lot of pleading and being pushy we were escorted to the
surgery prep waiting room. We spent another few hours there before they
finally took my Dad, who had not eaten since the night before back into
the OR. We arrived at the Dallas VA at approximately 5:45am and he was
not taken back to begin the surgery until 2:25pm. After waiting for
over six hours, two surgeons emerged and began telling us about the
surgery. During their explanation we were told that multiple tears had
been made into his jugular vein which caused a massive blood loss. To
stop the blood loss they began clamping everything. The next statement
is a direct quote from the surgeon, ``we realized six minutes later
that we had clamped his carotid artery''. To sum our story up, because
of the clamping of his carotid artery my Dad suffered a massive stroke.
Due to improper tying off of the veins in his neck he would undergo 3
more surgeries to stop the internal hemorrhages that kept forming. His
fifth surgery to place a feeding tube would occur a mere three days
after the first surgery. My Dad would spend approximately three weeks
in ICU and would later spend a week on a patient floor. After the week
on the patient floor we were told that he needed to be discharged
because per his physician, ``had he not suffered a stroke he would have
already been discharged''. At that time we were also told that due to
the tracheotomy in his neck, he could not continue his care at the VA's
rehab facility because they were not equipped to handle patients with
tracheotomies. We were urged by an employee at the Dallas VA to get our
Dad out of that hospital because it was not safe for him. We were also
told to obtain his records as quickly as possible before they
disappeared. Upon obtaining my Dad's records we found a fact that
explained why the employee urged us so strongly to get them. By reading
his records we discovered that his carotid artery hadn't been clamped
for only 6 minutes. His brain was starved of blood and oxygen for
fifteen minutes. Had we been aware of the actual amount of time his
carotid artery was clamped, our decisions would have been far
different. We used private insurance to place him at a Long Term Acute
Care Hospital where he nearly passed away twice. He was then moved to
another facility that due to a failed acquisition closed its doors a
week after his arrival. He was subsequently moved to a facility where
we later determined, using a hidden camera, that he was being abused.
All of this, for a Man who stood up for his country? After an impromptu
meeting with the Dallas VA Administration room was made available for
him in their rehab unit. He spent the next six months or so completely
immobile there at the opposite end of a hallway from the nurses'
station. Every day his dignity was stripped away as he defecated in a
diaper then dug his own feces out because he wasn't being tended to
properly. We made several requests that he be moved closer to the
nurses' station because of this issue and because of his severe
paralysis. Those requests went unanswered though many promises were
made. My Dad died on December 24, 2011 due to bacterial sepsis and
aspiration pneumonia. E coli, like that found in feces was found in his
body and around his heart. He drowned in the tube feedings that were
improperly administered. Since his death we have filed a Federal Tort
Claim against the VA. In response to our claim we were offered a very
small monetary amount and were told, ``well, he was 81 and had thyroid
cancer''. Among the doctors named in our claim was the attending
surgeon. We were shocked to find out that he could not be held liable
because, contrary to the surgical notes, he was not a Dallas VA
employee. As a result the VA is refusing to claim full responsibility
for an act committed in their facility.
I am here relaying our graphic, horrific experience so that no
other Veteran or their family will experience what we did. In my time
working for a large health system in Texas I learned quite a bit. I
have been able to take what I learned and apply it to the experience we
had and can tell you without any doubt that this system is severely
broken.
I feel the key issues that need to be addressed are the following:
1. Accountability
2. Customer Service
3. Risk Management/Family Services
4. Secretary Shinseki
Accountability - There seems to be no accountability at the Dallas
VA. It has become apparent to me that surgeons are allowed to operate
on our Veterans under the supervision of people who aren't even
employees of the VA. This isn't a fact that is communicated to our
Veterans before they agree to surgery. You aren't told that the person
supervising your surgery is not an employee of the health system and
cannot be held accountable through the VA in any claim or complaint.
Why are we allowing people not accountable by the health system to
supervise or perform operations on our Veterans? Is this a cost saving
measure? If so, I can testify that it ends in the Veterans, or families
of our Veterans having no ground for retribution. This is a clever,
intentionally crafted way for the VA to claim no liability for what is
done in their own facilities. In our case the accountability was
skirted with a simple statement made by the surgeon herself,
``everything I did was done under the supervision of the attending''.
That statement was all it took for the VA to wash their hands of the
situation. This ``washing of hands'' seems to be a common theme
throughout this healthcare system. If you were to step outside of the
VA Healthcare System you would see that administrations, physicians and
employees are held very accountable. There is no explanation for why a
Veterans hospital can have multiple complaints and life threatening or
life ending mistakes and still have the same members in administration
year after year.
Customer Service - Customer Service and Accountability go hand in
hand. At a public health system patients pick and choose what surgeon
or doctor to use. That is not the case for our Veterans. The Veterans
that enter the VA Health System are what you could call a ``captive
audience''. Their earned healthcare is conducted in a place where
customer service is not demanded. For some Veterans, the VA hospital is
the only care available to them. Because they must get their care
there, they do. These patients are captive within this health system
and the employees and administration are well aware of that. Because
the VA, unlike public or civilian hospitals, does not have to compete
for its business there is no need to institute high expectations where
customer service is concerned. These patients are real people, not
numbers. Has the human factor been lost amidst the sea of paperwork and
financials?
Secretary Shinseki - My last point has to do with Mr. Shinseki and
his leadership. In article after article you can read of his inability
to properly manage things for our Veterans. From claim back logs, lack
of discipline toward his administrators and his propensity to wash his
hands of an issue rather than dealing with it, Mr. Shinseki has proven
that he does not deserve the responsibility he has been given.
I have seen and read about leaders within our government who,
regardless of party affiliation, cannot get Mr. Shinseki to act upon or
follow through on issues. Mr. Shinseki is the preverbal brick wall in
most of the issues facing our Veterans. Where is his accountability?
Why is it, no matter how well publicized an issue is, or how hard a
battle is being fought for our Veterans, once it hits his desk it is
dead in the water? What steps are being taken to fix this?
I feel fixing these issues is actually pretty simple. I propose
that we use an outside agency to conduct Patient Satisfaction surveys
with our Veterans. Most public hospitals employ agencies like these and
use the results to set minimum performance standards for their
hospitals. By implementing these surveys and requiring this
accountability you will create an improved environment for our
Veterans. It has been well documented that the administrators of the VA
have been awarded bonuses with no regard to poor performance. With
these surveys in place you are able to tie bonus eligibility and
amounts to how the patient, our Veterans feel about the service they
are receiving. I feel these surveys would also employ a degree of
transparency that this organization hasn't had before. In addition to
Patient Satisfaction surveys there needs to be a survey put into play
that measures employee engagement as well. If we can improve the
environment for the employees, they will provide a better quality of
care.
It seems to me and I've concluded, after having many conversations
with Veterans, current and past employees that one of the best ways to
fix this broken system would be to approach the entire health system
the same way a private health system approaches problems. I do not feel
this can be done correctly using the internal resources now available
to the VA. I implore you, please bring in an outside, objective party
to examine these hospitals. Employ the service of a consultant who can
create programs that will benefit our Veterans. The best way to fix
these problems is to stop doing what has been done and look for other
solutions to this ever growing problem.
I want to thank you all for asking me to testify today. I would
like to leave you with one last statement and a video clip. On my Dad's
deathbed, when he couldn't speak he wrote a note to me that said, ``VA
murderers . . . get them Syd''. While I'm not ``getting'' anyone I will
spend the rest of my life fighting for these national treasures and
their families with the hope that no one will go through or lose what
we did.
Prepared Statement of Phyllis A.M. Hollenbeck
August 22, 2013
The Honorable Carolyn N. Lerner
Special Counsel
U.S. Office of Special Counsel
1730 M Street NW
Suite 300
Washington, DC 20036
Re: OSC File No. DI-12-3816
Dear Ms. Lerner:
Below are my comments on the Department of Veterans Affairs
Investigative Committee Report of my July 2012 Whistleblower Complaints
about the G.V. (Sonny) Montgomery VA Medical Center in Jackson,
Mississippi. As I stated in my testimony to the investigative
committee, the committed and excellent employees in the Primary Care
Service of G.V. (Sonny) Montgomery VA Medical Center, and the Veterans
they serve, looked to the committee to conduct their investigation with
integrity. I believe the committee understood they held in their hands
the chance to finally transform the Primary Care Service at the Jackson
VAMC into a proper and true ``medical home'' for the Veterans. This
means giving the Veterans the best medical care in the world, in a
place worthy of taking care of the lives of Veterans--men and women who
signed up to put his or her life on the line for people all over the
world. There are no other humans on the planet like those in the United
States Military.
I believe the investigative report highlights the global lack of
respect for both federal and state laws and regulations, as well as VA
policies, which constitutes the defining culture of ``leadership'' at
the Jackson VAMC. This milieu led to the kinds of actions--and lack of
actions--that caused the problems substantiated by the investigative
team. These issues define Primary Care (PC) at the Jackson VAMC; they
make up the longstanding model of Primary Care at the Medical Center,
and they continue. And the cruel effects on the Veterans, and the
committed Primary Care staff, are still without end.
My comments give an expanded history of the issues at the Medical
Center, as well as an up-to-date summary of ongoing problems and
attempted approach to any remedy or improvement at our VAMC. Those of
us who work in Jackson are still aghast at daily events--yet we then
remind ourselves that the decisions made and policies instituted by
management are all cut from the same damaged cloth. And as the
investigative report states on its first page, ``Federal laws and
regulations, as well as state laws'', and ``both VA and Veterans Health
Administration (VHA) policy'' have not been followed ``due to
mismanagement''. Although the report equivocates at one point when it
states ``may have been violated'' or ``may not have been followed'',
later in the same paragraph it is noted that ``the fact-finding team
made a number of recommendations for the Jackson VAMC to adhere to or
enforce current rules, regulations, or practices, and policies . . . to
ensure the service line complies with all applicable laws and VHA
policies to maintain a high quality, safe health environment for
patient care.'' Isn't all of Primary Care under this umbrella--
everything that happens in Primary Care--and how much more serious can
it be than breaking and ignoring the litany of mandates above?
It is discouraging to see the apparent gentleness with which the
facility and its leadership are sometimes referred to by the
investigative team: those in administration ``may not have followed''
laws and regulations; or ``there is a lack of understanding among
Medical Center leadership'' regarding rules and policies. But there
cannot be any plausible deniability in the leadership of the Jackson
VAMC. I personally wrote emails about the issues above over several
years, and both past and current leadership at multiple levels are
longtime VA employees. In addition, it is the clear and inescapable
responsibility of anyone in management to acquaint his or herself with,
and follow, all applicable standards of operation and conduct--
especially in a facility whose ``service line'' is taking care of
fellow human beings. The rules are there for a reason, and they apply
to all of us. Finally, Center Director Mr. Joseph Battle, in
particular, cannot be allowed to continue to use the phrase ``these
things happened before I came'' as a verbal shield. The same kinds of
things are still happening; and once you take over command--of a
business, medical center, ship, or family, or any other communal
entity--everything is immediately and completely on your watch.
How did the G.V. (Sonny) Montgomery VA Medical Center end up in
this way? Just as I tell a patient--when after years of talking about
the unhealthy road he or she is on, and warning about consequences,
that man or woman finally steps over the laboratory line into
diabetes--this ``didn't fall from the sky''. One of the ``vital signs''
of a medical practice is that the people entrusted with others' lives
do care. It is not enough to just ``do'' care, to set up a place called
Primary Care on paper and in waiting and exam rooms, with staff and
patients coming and going, and then measure metrics on spread sheets.
Where care is delivered can't just look like a clinic; there has to be
an honorable system surrounding the patient, with consistent and
continuous care. And that means leadership in a medical center, the
people with the power to provide the resources to do the job of
committed employees, must also truly care. At the Jackson VAMC it is
especially hard to read the auto-slogan at the bottom of official
emails: ICARE--INTEGRITY, COMMITMENT, ADVOCACY, RESPECT, and
EXCELLENCE. A clever acronym, but not one lived each day by the Medical
Center leadership, especially with regards to respect for the Veterans
and loyal staff.
I remember being astonished when I first came to the Medical Center
in September 2008 and a physician introduced herself and immediately
said, ``I hope you don't quit like all the others.'' I soon understood
why doctors left, and why I ended up two years later as one of only
three primary care physicians--and the investigative team's report
identifies many of the startling issues.
The strong undercurrent that allowed and even nourished the
``unhealthy'' and illegal conditions in the design of Primary Care at
the Medical Center was the antagonism set up between nurse
practitioners and physicians. Dorothy White-Taylor, PhD ascended over
decades to the position of Associate Director of Patient Care services,
which essentially meant she had the power to affect everything that a
medical center does--and to intersect with everyone in that facility.
For almost two decades Dr. Kent Kirchner worked side-by-side with her
in his capacity as Chief of Staff, and acquiesced to many of Ms.
Taylor's decisions and set-up of services. When I first came to Primary
Care, I was told that ``Dot Taylor controls the real estate'' when I
wanted to move my exam room closer to where the medical assistant
assigned to me sat, so we could coordinate our work with the Veterans.
And most significantly, Dorothy White-Taylor was in charge of all
nursing personnel, including nurse practitioners. Thus the NPs did not
``answer'' to any physician--and the Chief of Staff did not challenge
this situation.
In addition, just before I arrived in September of 2008 Dot Taylor
and Dr. Kent Kirchner proposed a plan to put an NP in charge of Primary
Care instead of a doctor; I was told that several physicians rebelled,
and worked with their union to make sure the idea was dropped. But even
to a casual observer the idea that a department of Primary Care--in a
medical Center--could ever be supervised and run by a nurse
practitioner instead of a physician seems preposterous. But I soon also
learned that the NPs constituted seventy-five to eighty-five percent of
the clinicians ``providing'' care to the Veterans seen in PC at the
Jackson VAMC; and that many times neither clerks nor other nursing
staff nor the NPs themselves corrected the Veterans when they referred
to an NP as their ``doctor''. This is an improper practice, as the
investigative team report points out; and many states (including the
State of Mississippi) have passed laws requiring that all people
working in a healthcare facility have photo identification tags that
not only prominently display the name of the employee but just as
visibly show the employee's professional designation for clinical work,
and level of experience. Interestingly, the fact that Dot Taylor was
always referred to as ``Dr. Taylor'' in a hospital setting (although
her work at the Medical Center was entirely administrative, and her
field of doctorate study was also not as a medical clinician) set the
tone for this, at the very least, lack of clarity for the Veterans.
Commenting on a new 2013 law in Texas, a woman (Helen Haskell) behind a
South Carolina law on requirements for hospital ID badges calls this
``the most basic level of transparency'', and notes that ``It's very
important to know who's providing your care because people have
different areas of expertise, different levels of training.'' She
speaks from a personal tragedy experience. As the investigative team
report points out (page 26), the NPs at the Jackson VAMC wear the
Federal Employee ``PIV'' badges--which ``do not identify the
individual's position or title''. I know, and saw daily, that the NPs
in Primary Care did not also wear the red tags given to them that said
``NP'' in bold letters.
And nurse practitioners are not the same as physicians. This is not
about what is commonly called ``protecting turf''--with the American
public getting sicker and sicker, younger and younger, sadly there is
more than enough healthcare work for well-trained and experienced
doctors. I have been a physician for thirty-six years, and know that
like the rest of the country Veterans are on what is known as
``polypharmacy''--by most definitions, the use of six or more
concurrent medications. Patients are all individual walking-chemistry-
experiments. And so primary care is the hardest job to do well
consistently in modern medicine. It requires all the brainpower and
willpower and training (and blessing) a physician can muster to take
full responsibility for the whole life of the patient during their
entire life.
The total hours of coursework and training for a nurse practitioner
ranges from 3,500 to 6,600 hours; for a fully-trained primary care
physician the number is 21,000 hours. Physicians across the country
study the same undergraduate premedical courses, and then the same
medical school curriculum; must pass board examinations overseen by one
certification body; and have standard state medical licensing
requirements. Nurse practitioners do not have a standard degree
curriculum nationwide; have three different certification groups who
all have different criteria; and licensing requirements vary from state
to state. Physicians are taught primarily by other physicians, and for
primary care must finish a three-year residency training program; nurse
practitioners are taught principally by other nurses and nurse
practitioners, and do not do an additional educational/clinical
training program such as a residency. Family physicians must pass board
recertification exams every seven years, but no such monitoring exists
for nurse practitioners; and physicians must complete 150 hours of
continuing medical education every three years for licensure and board
certification, whereas nurse practitioners only need to complete 75
continuing education hours or take an appropriate recertification exam,
with no specific requirement for ``pharmacy content hours''.
As Dr. Reid Blackwelder, President-Elect of the American Academy of
Family Physicians has eloquently written in a 2013 Wall Street Journal
essay ``the work of many nurse practitioners begins only after a
physician has already made a diagnosis''. He notes that studies showing
``similar outcomes'' with physician and nurse practitioner care result
from collaborative practice with physicians. He highlights that ``the
extensive and diverse medical education and clinical experience'' that
doctors receive ``strengthens a physician's diagnostic skills''; and
that a primary care physician must help a nurse practitioner on the
healthcare team ``when chronic medical conditions become unstable--a
change that is inevitable''. I would add that the moment(s) of change
are not always simple and straightforward.
Dr. Blackwelder states that ``requiring patients to accept less''
than the medical care expertise of primary-care physicians as head of
the medical home team is ``unacceptable''. Yet that is how Primary Care
at the Jackson VAMC operated--in a department set up by Dorothy Taylor
and endorsed by Dr. Kent Kirchner. Dot Taylor helped several nurses
obtain more education and then become ``grandfathered in'' as nurse
practitioners at the Medical Center--even though one of these NPs never
obtained a nurse practitioner license until 4/10/2013, and ran (and
still runs) the ``Women's Health Clinic'' alone and unsupervised since
1994. And as the investigative report reveals, the Jackson VAMC ratio
of NPs to MDs is 3:1 (75% NPs and 25% MDs)--and the VHA national
average for comparable healthcare facilities is the ``inverse
situation, that is, 3 MDs to 1 NP.''
Under the plan put in place by Dot Taylor, more and more nurse
practitioners were hired, and the work environment for the few
physicians left in Primary Care became harder and harder. The first
year I worked at the Jackson VAMC one of Dot Taylor's assistants told
me she ``forgot'' to block out my requested leave for the entire year--
and I could just have the already-scheduled Veterans rescheduled as
double-bookings for weeks, or I could just not take any annual leave.
When I asked why I was overbooked most days anyway, she (not a clinical
staffer) told me I saw my patients ``too often''--and got Dr. Kirchner
to write me an email to that effect. When a Veteran newly transferred
to me walked into the clinic three days in a row, and threatened me he
wouldn't leave the clinic until I ``did what he wanted'', becoming
delusional about surgery he'd had, I had the male head nurse in the
clinic help me call the police and have the man removed from my patient
panel and clinic. All of this was documented in the medical record,
including a note from a psychiatrist regarding the patient--but several
weeks later I saw the same patient back on my schedule and a note in
the chart from the same assistant of Dot Taylor. It stated that ``per
Dr. Taylor'' the Veteran had asked to be reassigned from the provider
he was given after he threatened me--and that ``per Dr. Taylor'' the
Veteran was being assigned again to me. Dot Taylor controlled nurse
staffing and assignment in the clinics, and I was the last provider
(including all NPs and the other two MDs) to have an RN assigned to my
PACT (medical home model of care) team--one year after everyone else in
all of the other Primary Care clinics had fully-formed teams on board,
and one year after all other providers had the added vital help an RN
can provide for the patient and their ongoing care, ``off-loading''
some of the workload of an NP or MD and making the care of the Veteran
less likely to be delayed. Finally, one of the subspecialty physicians
gave me copies of the reports on Primary Care provider panel sizes--and
I saw that my panel was the largest of anyone in the department, with
the two other physicians ``capped'' much lower than my total number of
patients. The more patients in my panel the more Veterans needing
appointments, and prescriptions, and ER and inpatient admission follow-
ups, and tests and consultations and walk-ins and phone calls and
letters and message ``alerts''--all of which meant a lot more work and
worry and responsibility for me. And I wrote emails about the dangers
to the Veterans, and the ethics and consequences of overloading a
primary care clinician, and got no response from leadership--including
none from Dr. Kirchner. I soon saw that speaking up meant I was a
charter member of what I politely call ``the feces roster'', but I kept
writing and I kept records.
Because this was all still about people's lives. One either gives
up or stands up. And I didn't look for this battle; it came to me.
The PC service then limped along with an acting physician chief,
Dr. Cornelius (Sean) O'Neill, who was still overloaded with direct
patient care duties (and thus weakened), as the number of MDs dwindled
down and the number of NPs increased--and the dual chains of command
remained in place. There was no cross-over or collaboration between the
camps. The PC service ran as approximately 20-24 solo private
practices, with office space grouped into 4-5 clinics; the number of
NPs and MDs was always in flux, and then the number of clinics changed.
And this kind of organizational chart ensured that although the few
physicians in Primary Care, like all physicians on a medical staff, had
a certain percentage of their charts reviewed (called Peer Review,
mandated by medical staff bylaws), none of the NPs ever had any of
their clinical work checked. The investigative team report
substantiated this--and emphasizes the fact that all along the Medical
Center leadership never put into effect any appropriate monitoring of
NP clinical practice (meaning no chart review of any care given to
Veterans by any and all NPs) even though leadership knew that the NPs
at the Medical Center had licenses from states that required
collaborative agreements with physicians. To date, there is still no
program in place to comply with the law and regulations. And Medical
Center leadership knew that each state licensing board specifically
spelled out the rules and requirements for these collaborative
agreements.
What is abundantly clear from the report is that no one in
leadership (from the VISN to the Primary Care service) ever cared about
the letter of the law or the implications of a proper collaboration
program--what they did care about was making the physicians do what
they were told so the dysfunctional and illegal practices could go on
as always. To hell with the Veteran. To hell with the physician's
license. To hell with any nurse practitioner licensing laws. Yet the
NPs continued to provide up to 85% (at the peak of NP vs. MD numbers in
PC) of the care for the Veterans. And everything that happens to the
Veteran starts--or stops--in Primary Care.
I went to my 35th medical school reunion at Brown University on
Memorial Day weekend in May 2012, and received a call from one of my
nurses telling me that the DEA had arrested Dot Taylor on narcotic
fraud. I remember saying ``You're making this up'' to my teammate,
although Dot Taylor's prior history of being in a drug rehabilitation
program in the past, and more recent concerns regarding abnormal
behavior consistent with what is called an ``impaired employee'',
especially due to possible substance abuse, were well known. It is
still unclear why all charges against Dot Taylor were finally dropped,
in three different counties; the investigative team report refers to
certain Justice Department actions on oversight and regional
jurisdictions. Inquiries regarding whether random drug testing is done
in the Jackson VAMC (or other VAMCs) have not yielded a definite
answer.
When I returned from leave in early June, the first thing I learned
was that DEA agents had come into the Medical Center, reviewed narcotic
prescribing procedures in the facility, and announced that nurse
practitioners using a single ``institutional'' DEA number was not a
valid avenue to prescriptive authority for controlled substances. An NP
in my primary care clinic came up to me my first day back and said he
was supposed to ask me to review a chart on a Veteran he'd seen earlier
that day, and ``after discussion'' with that NP order and sign for the
Veteran's narcotic prescription. I told the NP that just reviewing a
chart for narcotic ordering on a patient was illegal and a violation of
Federal law/DEA regulations--and that NP (William Hubbard), who knew me
and my ethics, smiled and said he knew I would not agree to such a
process but he ``had to ask'' per Drs. Lockyer and Kirchner because
otherwise at least 75% of the Veterans wouldn't be able to get their
narcotics renewed. But who was responsible for this crisis? Clearly, it
was the Medical Center leadership who set in place and kept in place
the design of Primary Care at the Jackson VAMC--and now had another
improper scheme to ``take care of'' the Veterans. Laws and regulations
be damned once again.
An email soon arrived that began ``per COS''--meaning Chief of
Staff, Dr. Kirchner, and signed by Dr. Lockyer, head of Primary Care--
and spelled out this same process for the three remaining physicians in
Primary Care to ``help'' their ``NP colleagues'' and ensure that the
Veterans got their narcotics. The memo stopped just short of ordering
the doctors to sign the prescriptions, but its intent was abundantly
clear; any doctor who didn't go along wasn't a team player and was
going to hurt the Veterans. At that point I felt Medical Center
leadership had definitely gone too far and I called Angela Lee at the
local DEA office. She told me unequivocally that such a procedure is
illegal and not to participate under any circumstances. She also gave
me contact information for Jeff Jackson, the lead DEA agent on the
Jackson VAMC/Dot Taylor case.
Another email came, stating that everyone hoped for a swift
conclusion to the narcotic dilemma, and leadership was working with the
DEA, but still asking the three Primary Care physicians to do the same
illegal act. We then had the monthly Primary Care staff meeting (which
includes clerical, nursing, NP, and MD employees) at which Dr. Lockyer
reviewed minor issues only, never mentioning the recent DEA events and
problems, and then proposed to end the meeting early. I asked for the
microphone and stated it was extremely upsetting to me that we had a
narcotic prescription crisis--and that he was not opening the meeting
with it. Dr. Lockyer said it was not a crisis; I told him I had spoken
to the DEA and the leadership proposal for even a temporary solution
was illegal. He stated he hadn't told the physicians they had to sign
the prescriptions--and I replied ``Oh yes, your emails were very
clever'' but that the intent was clear. I reminded him that I had
already sent an email to both physician and administrative leadership
(including Drs. Lockyer and Kirchner, and Mr. Battle) proposing a legal
interim process. My email suggested bringing in locum tenens doctors
(temporary physicians) who could see each of the NPs' patients who
needed narcotics, and also having the Pain Clinic physicians who
already saw some of those Veterans take over writing their narcotic
prescriptions instead of giving everything back to Primary Care.
What ensued were more illegal schemes to get the narcotics to the
Veterans; from one email from the Red Clinic, it appears a locums
physician did sign some narcotic prescriptions on NPs' patients.
Another email said that written paper requests were to be given to the
Primary Care office (called the ``Red Clinic'') at the end of each day,
in a ``warm hand-off'' from a nurse from each clinic, and would be
``reviewed'' by Dr. Lockyer. One email said that an administrative aide
was bringing narcotic requests late that afternoon, and pleaded with
the Primary Care staff not to ``give Mr. Funchess any grief'' because
it wasn't his fault. ``Grief'' apparently meant not being happy to be
asked to break the law. Interestingly, as I had made it clear in
several emails that I would not break the law, I was not asked to look
at prescription requests.
The next ``protocol'' was that the written warm hand-off requests
were now to be taken to the Medicine department office (this email came
from Dr. Jessie Spencer and her administrative aide Kristi Richardson)
at 1600 hours each afternoon, and physicians would be ``assigned'' to
review the requests overnight. Decisions on narcotic prescriptions
would be available the next morning. However, in an outrageously
unethical and illegal scheme, the ``assigned physicians'' turned out to
be medical residents (physicians in training) from the University of
Mississippi Medical Center--young doctors whose evaluations were done
by Dr. Spencer and overseen by Dr. Kirchner. These young doctors'
careers were in their hands--and leadership was telling them to break
the law.
The investigative team report (especially on pages 41 and 42) is
once again much too kind to Medical Center leadership regarding this
chain of events. It appears they took the word of Drs. Kirchner,
Spencer, and Lockyer, and Mr. Battle, but the report does note that Dr.
Kirchner ``reviewed the DEA website'' as well as requesting ``review
and advisement'' from Regional Office, DEA and VA Central Office, VISN
and the Mississippi Board of Nursing. However, as DEA agent Jeff
Jackson discussed with me, a graduate physician in training (resident)
is expected to know that a face-to-face visit with a patient is
required in order to prescribe controlled substances--and there is no
excuse for senior physicians such as Drs. Kirchner, Lockyer, and
Spencer somehow not knowing that what they were asking other physicians
to do was illegal. It is clear that Medical Center leadership were
scrambling to come up with a way to get the narcotics to Veterans, a
laudable goal, but this was a crisis of their own making due to years
of unsupervised, not legally licensed (individual state, and Federal
DEA regulations) NPs who far outnumbered physicians in Primary Care.
Jeff Jackson told me that when leadership complained that the DEA was
hurting the care of 43,000 Veterans connected to the Jackson VAMC, he
told them he was not responsible for improper care/narcotic polices--
they were.
Page 41 also states that in July 2012 Dr. Kirchner et al asked
Primary Care physicians to sign narcotics prescriptions without a face-
to-face encounter with the patient, after the above DEA and
administrative reviews. However--I had already sent emails in early
June 2012 telling leadership, including Mr. Battle, that such a
practice was illegal per the DEA. It also defies logic to think that
since the DEA arrested Dot Taylor at the end of May 2012, and in early
June 2012 prohibited the prescribing of narcotics by NPs at the Jackson
VAMC, and were asked for advisement then by leadership (per the
report), that somehow DEA agents forgot to review with, and/or advise,
the three physician chiefs and VAMC leadership, and VISN administrative
(Ms. Rica Lewis-Payton) and VISN medical leadership (Dr. Greg Parker)
about basic Federally-mandated controlled substance regulations. Jeff
Jackson told me in person that he had personally reviewed such issues
with leadership--and knowing and enforcing such regulations is what the
DEA does.
It is not until August 2012 that a ``Controlled Substances (CS)
Clinic'' was ``developed''--although I know I suggested this legal
interim solution in an email in early June 2012. Primary Care staff
know that several locums physicians refused to do more work than
clinically appropriate, meaning they would only write prescriptions on
the Veterans scheduled to see them, and who they had time to examine
and review charts on, and not on all the walk-in patients for
narcotics, or patients seen that day by their NP who also wanted
narcotics--and that the ``overflow'' volume of narcotic requests were
then taken to the Red Clinic to be addressed by either Dr. Lockyer or
Dr. Kirchner.
I know from direct conversations (the physician and DEA agent Jeff
Jackson) that one locums physician was horrified at the amounts,
reasons for, lack of urine drug screening, trial of other non-narcotic
modalities, and/or pertinent physical examinations that she found in
the CS clinic--all patients of NPs. She contacted the DEA on her own
regarding this issue.
The investigative team report states that on November 30, 2012 the
CS clinic was closed, and that all NP-patient prescriptions were then
written by NPs who had ``obtained individual Federal DEA
certifications, as allowed by Mississippi and other states.'' But the
email notifying PC staff that the CS clinic was being closed went out
on a late Friday afternoon--and the email response then of one NP
(``Does this mean that NPs will write narcotic prescriptions on Monday
morning?'') was never answered. There was no smooth transition from the
end of the CS to all Veterans seen by NPs getting their narcotic
prescriptions as ``usual''; the clinic ended because locums physicians
had raised continual concerns, and were speaking up, and perhaps for
economic reasons (locums are expensive). But there is an inherent
contradiction in the investigative team's report. Since none of the
Collaborative Agreements (CAs) were being legally followed no NP was
legally licensed--and thus could not legally obtain an individual DEA
number. Legally following the signed CAs means abiding by the strict
requirements--both of the physician's professional board of licensing
as well as the NP's board. But no monthly chart reviews and no
quarterly face-to-face meetings with the physician collaborator were
ever done; and physicians had more than four CAs, or were out-of-state,
temporary, or no longer at Jackson VAMC physicians--all violations. And
the report is in error in stating that of the five physician
collaborators for Primary Care NPs only three of them work in Primary
Care--two work in Primary Care, and three doctors do not. This means
those three physicians are in violation of the law, as it states the
collaborator must be in the clinical discipline the NP practices. An
ophthalmologist is the collaborator for two Primary Care NPs; a
nephrologist is one; and one is an otolaryngologist. And one physician
has 14 collaborative agreements: Dr. Jessie (Moorefield) Spencer--also,
for unclear reasons, referred to as Dr. Jessie Crawford Moorefield in
Attachment B of the report. The nephrologist is Dr. Kent Kirchner, who
until September of 2012 served as Chief of Staff, and for years has
only had very limited direct patient care. (It should be noted that
although the investigative team report states I alleged that Dr.
Kirchner had 160 CAs, my documented testimony to the committee states
that another physician, an executive with the Mississippi Board of
Medical Licensing, told me that our Chief of Staff had ``163''
agreements; this is Dr. Vann Craig. I referred the committee to him for
specifics, and encourage this to be pursued. I can only guess that it
refers to a total number of CAs over years, and that Dr. Kirchner
signed off on all NP credentialing. As noted later, this NP
credentialing was also not done correctly.)
And of further interest, Dr. Spencer has been Chief of Medicine for
several years, with very limited direct patient interaction; and in the
past year has also served as Interim Chief of Staff for several months
(and will be again as of the week of 8/26/13)--and as of Friday, August
23, 2013is suddenly also the Medical Director of the new Women's Health
Clinic at the Jackson VAMC, ribbon-cutting August 26, 2013. BUT--Dr.
Spencer is an internist, not an obstetrician-gynecologist, and does not
have a clear process of coordinated care at present with the
unsupervised NP (Penny Hardwick) who is the only other clinician in the
Women's Health Clinic.
In October 2012, the Medical Center leadership found itself with
yet another crisis in its lap; a crisis of its own doing. A quarterly
medical staff meeting was held in early December--for which, for some
mysterious reason, there are still no meeting minutes. (They have been
requested several times.) Nurse Practitioners have been allowed to
attend as nonvoting members of the staff; although as the investigative
report points out, since the NPs were not LIPs (licensed independent
practitioners), until many obtained Iowa licenses in 2013, these NPs
should not have been granted clinical staff privileges but rather
credentialed under a written ``scope of practice''. A scope of practice
agreement would mean they were not independent ``staff members'' under
Medical Staff Bylaws (standard bylaws per VHA and JCAHO). And this
issue has been brought up by physicians over the years I have been at
the Medical Center, but due to the fact that the NPs far outnumber MDs
at the Medical Center, as well as the power of Dr. Taylor and fear of
retaliation, doctors remained circumspect.
Present at this medical staff meeting were the interim Chief of
Staff (Dr. Garcia-Maldonado, from a VAMC in Texas), Mr. Battle, and Dr.
Greg Parker who is Medical Director for the VISN; Dr. Parker is also a
Veteran and receives part of his medical care at the Jackson VAMC, as
he publicly stated, and is well-acquainted with how it runs. Mr. Battle
and Dr. Parker ran the meeting. The key issue was that since all NPs
licensed in Mississippi renew their licenses from October 1st to
December 31st, and most of the NPs at the Medical Center had
Mississippi licenses (which require a Mississippi-licensed physician
collaborator), leadership needed the physicians to ``do the right thing
and help the Veterans'' by just signing the collaborative agreements.
Otherwise, most of the Veterans wouldn't have anyone to see them--which
would never have been a problem if enough physicians were in Primary
Care. Mr. Battle and Dr. Parker told the physicians that the agreements
were ``just a formality'', and didn't mean anything because the NPs
(especially per several who spoke up at the meeting) ``don't need
supervision''. But several physicians spoke up, stating they had spoken
with the Mississippi Board of Medical Licensing (including Drs. Vann
Craig and Randy Easterling), as well as reviewed the Mississippi Board
of Nursing guidelines, and all physicians understood that signing a
collaborative agreement meant the physician was responsible for
everything the nurse practitioner did. When questioned about the
ramifications for a physician's license and career if the NP did
something that led to a medical malpractice lawsuit, Mr. Battle stated
that ``you can't get sued in the VA''; when reminded you can, just via
another legal route, he stated ``Well, they don't put your name on
it.'' When physicians replied that yes, they do, it doesn't just say
``VAMC Jackson'' on the court papers, and it will be reported
permanently, as a major issue to the National Practitioner Data Bank,
Mr. Battle (astoundingly, and with no interruption by Dr. Parker) told
us that ``Well, you can just write them a letter saying you never
really supervised that nurse practitioner.''
The physicians were stunned. The complete lack of decent human
regard for what it means to have a medical license, and ethical care of
the Veterans, and licensing laws and regulations. The flagrant
disregard of the fact that the rules of licensing are there for a
reason--the reason is that the work of medicine is the care of human
lives. Nothing about that work is ``just a formality''.
Mr. Battle and Dr. Parker then went on to tell us how they planned
to make sure the NP collaborative agreements were signed: fifty-percent
of whatever ``performance pay'' a physician was eligible for each year
was automatically off the table unless a physician signed a
collaborative agreement, and any physician licensed in another state
had to also get a Mississippi medical license so they could be
``available'' to sign a collaborative agreement. It was clear that the
physicians were expected to bail out mismanagement. And one might call
the plan a type of extortion.
Several physicians once again asked that Mr. Battle and Dr. Parker
get written, official opinions from all state and Federal regulatory
authorities so that if physicians signed CAs on NPs they didn't
interview or hire, and had no control over, that it didn't put the
doctors' licenses at risk. Dr. Sean O'Neill gave a focused but
impassioned summary that relying on verbal promises from management in
the past (e.g. with regards to narcotic prescribing, as well as
Medicare Home Health certifications) turned out to be dangerous for
physicians and nurse practitioners. Promises were made to check into
this, but no definite deadline for completion given by management;
leadership reiterated that the CAs were just a piece of paper to keep
the licensing boards satisfied. Finally one longtime Jackson VAMC
physician choked up as she repeated to the men at the front of the room
``You just don't get it. We can't trust you.''
A 7/24/13 General Accountability Office (GAO) report states that
the ``performance pay policy gives VA's 152 medical centers and 21
networks discretion in setting the goals providers must achieve to
receive this pay, but does not specify an overarching purpose the goals
are to support. VA officials responsible for writing the policy told us
that the purpose of performance pay is to improve health care outcomes
and quality, but this is not specified in the policy. Moreover, the
Veterans Health Administration (VHA) has not reviewed the goals set by
medical centers and networks and therefore does not have reasonable
assurance that the goals make a clear link between performance pay and
providers' performance. Among the four medical centers GAO visited,
performance pay goals covered a range of areas, including clinical,
research, teaching, patient satisfaction, and administration. At these
medical centers, all providers GAO reviewed who were eligible for
performance pay received it, including all five providers who had an
action taken against them related to clinical performance in the same
year the pay was given. The related provider performance issues
included failing to read mammograms and other complex images
competently, practicing without a current license, and leaving
residents unsupervised during surgery. Moreover, VA's policy is unclear
about how to document certain decisions related to performance pay.''
This makes it clear that the Jackson VAMC currently has the right to do
whatever it wants with regards to performance pay for physicians--but
it also seems to make it clear that being an excellent clinician, and
improving healthcare outcomes and quality, is not the main, unqualified
evaluation concern of this or other VA Medical Centers.
No written, final legal opinions or decisions were ever presented
to the physicians at the Jackson VAMC. The extensive Attachment B
listings show how the CA issues were addressed, often in improper
fashion. But it all looked good at the time. In addition, Medical
Center and VISN leadership counted on what had always been true: no one
looking too closely.
The investigative team report also outlines the dangers to
Veterans' care when clinicians are overbooked and overloaded, and not
able to keep up with an impossible workload. It is possible to give a
human being more work than it is possible to complete in each cycle of
twenty-four hours--indeed, one of the emails from Kristi Richardson/Dr.
Spencer noted that there was a large volume of narcotic requests to
review, and ``there are limitations to what we can accomplish in one
business day''.
I was warned by other physicians not to speak up until I was past
the two year probationary period for all employees, as leadership could
fire me without reason during that time. Once I was able to do so, in
October of 2010, I began to write emails (notifying the union of each
concern) to both medical and administrative leadership documenting the
way the policies of the Medical Center affected patient care--what it
meant to work with overloaded/double-booked schedules, and no right to
change that; the impossibility of even being able to read all the
``alerts'' (messages, results etc.) coming in twenty-four hours a day
(average at least 100 per day) to a physician or nurse practitioner,
never mind act on each one; and that forcing a physician to take on
more work than is humanly possible to do conscientiously puts that
physician in an ethical dilemma. I reiterated that state medical
licensing boards require a physician to not overload themselves--and
that according to the rules of our current universe one can only see
one patient at a time. When I told Dr. Lockyer that one can only read
one alert at a time, he asked me if I needed help reading; when I said
no, but no one could keep up with the volume of work, he asked me if I
was saying I couldn't do my job. I said no, that was not what I was
saying. And I repeated what I had told him many times, and a concept
that guided me as I tried to do my best for each Veteran in the midst
of the ugly chaos of Primary Care--a doctor can only go as fast as is
safe. And the report reiterates the unsafe conditions of the set-up of
Primary Care at the Medical Center.
Knowing and working in the reality of Primary Care at the Jackson
VAMC means working with your heart in your mouth every day, because you
know you cannot get to all the messages and results. You pray that the
most important ones will rise to the top somehow and be brought to your
attention by your nurse or someone else on your team or another contact
by the Veteran, for the alerts are not prioritized in the computerized
medical records system (called CPRS). In the year since I transferred
(for serious health reasons) from Primary Care to Compensation and
Pension, six physicians and one nurse practitioner have sat in my old
seat and been responsible for my panel of patients. Every one of these
clinicians has stated it is not possible to do the job as one human
being--and indeed, as of late August 2013, the plan is to bring in two
locum physicians to split the work.
And why locums again? Because the fourth ``permanent'' Primary Care
physician, who only came onboard in June 2013, just gave his notice. He
is an experienced doctor, who moved from another state to come to
Jackson and told me he wanted to work with the Veterans and make being
in the VA healthcare system a career. The Veterans and staff loved him,
and everyone was finally relieved to think there would be some
continuity again after a year of distress. But the same kind of
scheduling was done to him--double-booked at 0800 hours on his first
day, when he didn't even know, or have access to, the computer system--
and when he spoke up promises to lower his daily workload were made but
then broken.
Then an even more worrisome event occurred. (Nursing staff and the
new physician informed me in real-time of these events, as what was
happening was of grave concern to the care team and the new physician
asked to speak to me.) After four other physicians, starting in the
Emergency Room, had appropriately refused to write narcotics for a
Veteran due to the clinical situation, this new Primary Care physician
was asked repeatedly by the acting Chief of Primary Care (Dr. Alan
Hirshberg, from the Lebanon, PA VAMC) to order the controlled
substance. The Veteran had gone to the Primary Care administrative
office and complained he wasn't getting what he wanted; of note, Dr.
Hirshberg himself did not want to write the prescription. The Veteran
was also not a patient assigned to the new physician, and he had never
met the man. The new physician refused, putting a short note in the
record that he had been asked by Dr. Hirshberg to order narcotics for
the patient, and did not feel comfortable ethically or morally doing
so; he also stated he had then asked the acting Chief of Staff (Dr.
Fashina, here for ten weeks and now just gone back to a Texas VAMC) to
talk to Dr. Hirshberg about the plan for the Veteran.
The next day (a Saturday) Dr. Hirshberg came in and told the new
physician he needed to delete that note from the medical record--and
altering a medical record is illegal. The new physician refused,
appropriately, but the next Monday the same demand was made of him. He
did not agree; it is not clear if Dr. Hirshberg himself had the note
deleted.
It seems clear that Dr. Hirshberg was more concerned with keeping a
complaint from a Veteran from escalating (perhaps his bonus is tied to
the number/type of complaints or ``Congressionals''? ) than with the
best clinical care for the Veteran. When ``caught'' on the record
making an illegal request of a fellow physician he wanted the
``evidence'' deleted--``as if it never happened'', to quote a clean-up
company's commercial slogan. This was the same scenario that I
experienced in 2009, when a Veteran threatened me (and blocked the door
with his chair) when I refused (on clearly evident clinical grounds) to
``double his pain medicine''--the Veteran complained, and I was called
to see Dr. Kirchner in the Chief of Staff's office. Dr. Kirchner told
me the Veteran's wife worked at the Regional Office for the VA, and
wanted me to delete my note from the medical record. I refused, and he
eventually stopped asking me. However, Dr. Kirchner then lectured me on
how the Veterans are in pain, and we need to be sensitive to that, and
we have the Pain Clinic to help us. I told him that I had already
consulted the Pain Clinic on patients, and they would write in the
chart that it was not ethical to give a certain patient narcotics so
``Primary Care to address pain issues''. I asked Dr. Kirchner if the
Pain Clinic doctor felt a controlled substance was unethical to
prescribe in a certain clinical situation, why was it ethical for me to
order it as a primary care physician?
Which brings us back to the investigative team's report
substantiating that NPs illegally prescribed narcotics, and that
unsupervised NPs took care of at least seventy-five percent of the
Veterans. And these Veterans get a lot of narcotics--whether it is
entirely appropriate, or not. The report notes that there is a high
likelihood that the lack of proper monitoring of NPs is a serious
medical care concern: ``It is the professional expert opinion of the
review team that there are enough problematic indicators present to
suggest there may be quality of care issues that require further
review'' (page 3), as NPs were ``practicing outside the scope of their
licensure.'' The investigative team had the good sense to admit that
when you have all this unsupervised work done by people who were
supposed to be supervised, you have no way of knowing how many things
were done wrong; many issues can go under the radar until something
awful surfaces. In medicine, this ``something awful'' affects a
person's life, and can cause death. All these years no one has checked
the work of the NPs; unless someone digs deep, the fact that tragic
events could have been avoided can be buried in the medical records as
hidden malpractice. Patient confidentiality also precluded specific
cases being brought to the attention of the investigative team.
The investigative team substantiated that the Jackson VA Medical
Center does not have a sufficient number of physicians; the Medical
Center, in fact, has the inverse ratio of physicians to nurse
practitioners compared to other VA medical centers. A further safety
issue related to this fact is that we have an epidemic of prescription
drug abuse in this country now; and a physician has to think as
carefully about prescribing narcotics as a policeman has to think about
using a gun. Narcotics can be deadly force. Having nurse practitioners
as the bulk of the people with this ``unscripted'' prescriptive
authority is a decision that the VHA must review carefully. Many
Veterans not only have chronic pain from multiple physical injuries,
they have the global experience of pain from the combination of
traumatic brain damage and psychological trauma; some can't think
straight under stress even with all their willpower. They are given
anxiety and depression prescriptions, and drugs to help them sleep, and
they can use alcohol and other street substances, and sometimes share
each other's medicines. The last thing our Veterans need is to be given
too many narcotics, and started on the road to addiction as young men
and women. The combination of all these drugs become ``brain IEDs'',
internal chemical weapons, and can prove fatal in some Veterans. The VA
has many documents and policies on Pain Management, and so-called
multidisciplinary approaches to pan issues, but the reality at the day-
to-day level of care is how easy it is for someone to point and click
and order a narcotic in the computer.
The disconnection between the ``ICARE'' slogan and the VA Motto
(taken from Lincoln's Second Inaugural Address--``to take care of he
(and now she) who has borne the battle'' -is heartbreaking. Every
decision on how Primary Care delivers that care should be based on
whether it helps accomplish the mission for the Veteran. These men and
women have ``heart-earned'' the right to the best medical care humanly
available. Anything that gets in the way, or makes the work impossible
or even dangerous, must be stopped. I even wrote to leadership that
they would not go to a medical office that ran the way they made us
operate Primary Care, so why did they think that kind of clinic was
okay for the Veterans? Yet even that did not merit an email reply.
Overloaded schedules mean Veterans can't be seen when they need to
be seen; they are put out for months, or have to walk-in and wait
hours. The investigative team report also noted that Veteran complaints
substantiated these problems. Additionally, the report stated (page 30)
that when a Veteran came in for an appointment and their (expected)
provider was not present, the Veteran was then double-booked onto
another provider's schedule, and seen. Two points need to be made. The
first is although that patient might be given an appointment time he or
she cannot always wait to be seen as an overbooked patient, and it is
very upsetting to a Veteran to wait for months for a scheduled
appointment and then find out at the clinic that no such provider is
available. One's hairdresser does not operate this way. The second
point relates to what happened after I was diagnosed with a serious
medical issue in July 2011, and treatment then dictated I take extended
medical leave for four weeks at the end of the year. In early November
2011my primary care team (my RN, LPN, and clerk) and I met with Dr.
Lockyer to review with him the plan for coverage of my fully-booked
clinics in December. He stated unequivocally that he and Dr. Kirchner
had clinician coverage lined up--but when December came only on
sporadic days was anyone assigned to see my patients. The Veterans
scheduled for me came in, had the previously ordered follow-up labs
done in the basement, and then were checked in by my clerk who had to
tell them no doctor was available. The nurses then had to scramble to
try to get one of the nurse practitioners in the Blue Clinic to see my
patient--and weren't always successful; it was also a terrible position
to be put in for both the Veteran and the staff. And the tests ordered
were not followed up on, or Veterans notified. I came back from medical
leave in January 2012 to an array of serious unattended problems.
The investigative team also noted that ``the team cannot rule out
the allegation'' that Medicare Home Health Certifications forms are
illegally completed, as ``data pulling'' is not easily available.
However, the interviews the team conducted, and (once again), the lack
of collaborative agreements and supervision of NPs, documented the high
likelihood of such a situation. I also gave the investigative team an
email memo from the Home Health Care coordinator at the Jackson VAMC in
which she told the NPS to ``have the doctors in your clinic sign those
Medicare forms''. Asking a doctor to sign such a form on a patient seen
only by an NP is explicitly illegal, as it requests the doctor commit
Medicare fraud--the form states at the bottom right corner that the
physician who signs it ``certifies that this patient is under my
continuing care''. Yet Dr. Lockyer signed some of these forms despite
never seeing any patients.
I feel so strongly about what it means to be a physician that I
wrote a small book on it-- ``Sacred Trust: The Ten Rules of Life,
Death, and Medicine''. The practice of medicine is truly a sacred
trust, and the honor of working for the Veterans is humbling. In one of
Mr. Battle's emails to the Medical Center staff he used the ``sacred
trust'' phrase, but nothing changed in the building. Yet the work of
medicine is of paramount importance. It is about peoples' lives--as
simple and as serious as that.
It is clear from the investigative team's findings that leadership
chose not to pay attention at multiple points. (The detailed spread
sheet of Attachment B of the report is particularly striking.) This
means they simply did not care about the Care of the Veterans.
Deliberate moves were made by men and women with power. And this report
shows just how cavalierly the Medical Center leadership operates--and
still does.
After Dot Taylor was arrested, I told Mr. Battle in person (at a
meeting to which I brought a union representative, Mr. Harold Miller)
that the nurse practitioners were operating illegally and in violation
of both VA regulations and our medical staff bylaws. He reiterated that
``in the VA nurse practitioners are LIPs'', even when I repeated that
they were not; Mr. Battle chose to believe Drs. Kirchner and Lockyer,
both of whom went on to breach ethics themselves. Mr. Battle only
removed Dr. Kirchner as Chief of Staff under pressure from the DEA
investigators and Veterans Liaisons from US Congressmen's offices. Dr.
Lockyer was only removed as Associate Chief of Staff for Primary Care
when the New York Times article (about the number and type of
whistleblower complaints from the Medical Center, and a special letter
sent to the President by the Office of Special Counsel) was published
in mid-March 2013.
How did it come to this at the G.V. (Sonny) Montgomery VAMC? How
could those in charge of healthcare for Veterans--those charged with
carrying out the mission stated so simply and clearly in Lincoln's
Second Inaugural Address--decide to violate, in the words of the
report, ``certain Federal laws and regulations, as well as state
laws'', as well as ``due to mismanagement, both VA and Veterans Health
Administration (VHA) policy''? These are not small things. And they
don't happen overnight. How could a culture of leadership become so
sick at a healthcare facility? The only words that come to mind are
hubris, and disdain.
Conscious choices have been made over years, and continue. As
honest and fact-based as the investigative report is one of its
troubling aspects is the tendency to soft-peddle the mindset of the
``Medical Center leadership''. Calling the deliberate decisions by this
leadership to use unsupervised and not duly licensed nurse
practitioners a ``lack of understanding'' of requirements does not do
justice to the intelligence of these leaders. The investigative report
states that the Medical Center leadership ``erroneously'' declared NPs
to be licensed independent practitioners (LIPs), thus granting these
NPs medical staff privileges, but then also stipulated that these
``independent'' practitioners must have collaborative agreements per
individual state licensing boards. But this is not just something that
happens to be a ``misunderstanding''--this kind of approach shows an
obvious and clear inherent contradiction. And the Medical Center
leadership is certainly blessed with the brains needed to have
understood all this. And it is not just ``confounded'' by the fact that
no one in leadership made sure that ALL collaborative agreements were
followed according to the law. Again--the fact that individual state
nurse practitioner licensing boards (in particular, the state of
Mississippi) had strict and precise requirements for supervision of
nurse practitioners was not secret knowledge. The regulations were
clear on the Board of Nursing (BON) website, and on the collaborative
agreements that many physicians in leadership signed. And there is
still no process in place for review of any work done by nurse
practitioners. Contempt for the law, and for the welfare of the
Veterans, still reigns.
This Medical Center leadership consists of the following: Rica
Lewis-Payton, Greg Parker MD, Joe Battle, (previously, and for many
years) Dot Taylor, Kent Kirchner MD, Jessie Spencer MD, and James
Lockyer MD. All of these people kept ranks, and thought alike. Dr. Alan
Hirschberg, acting Chief of Primary Care, appears to be trained at the
same trough. And when Dr. Lockyer was finally made to step down as
Chief of Primary Care, he subsequently went on to another job at a VAMC
(in Tennessee) in charge of Primary Care. The position of Chief of
Primary Care was held for this man by Medical Center leadership for a
year until he came in June 2011. A simple Google search shows that in
2004 he lost (in summary judgment) a court case he brought against a
private medical group; and this public document shows he had his salary
dropped each year for four years due to inability to see enough
patients, keep up with paperwork, and the number of patient complaints.
(He never saw patients in clinic the entire time he was at the Medical
Center.) Who at the Jackson VAMC gave him recommendations so he could
do the same abysmally inadequate job as he did at the Jackson VAMC?
And things are not getting better. A newly trained physician (who
recently finished residency) just came on staff, but the net gain now
from the time of my whistleblower complaint in July of 2012 is only one
doctor in Primary Care (total of four at present). Both the physician
who quite after less than three months, and the new one right out of
training were immediately overloaded in their daily schedules, double-
booked each day even before walk-ins started to be added to the total
seen by the end of clinic; and both of these physicians were just
learning our computerized medical record system (CPRS). The clinic days
stay in ugly chaos. There is no end to the constant stress on the
Veterans who can't get appointments, can't get routine medicines
refilled (I still get automatic renewal orders come up on Veterans I
took care of for four years, and prescribed medicines for, as the
``loose ends'' are enormous in number.) Now the new physician is
needing to have her daily schedule lighter, and as the schedule for my
old clinic is (as usual overbooked ) for months out, each day the clerk
and nursing staff on my old team are having to decide who can be
cancelled and rescheduled (yet again, some patients for multiple times)
farther out. As the report states, this is not what VHA policy dictates
(page 29), but what else can they do? And the committed and excellent
staff of the Primary Care clinics does not see any hope in sight. Mr.
Battle and Ms. Lewis-Payton brought in a team from the VHA National
Center for Organization Development (NCOD). This group's ``goal is to
strengthen VA workforce engagement, satisfaction, and development in
order to improve Veterans' services''. However, the NCOD team findings
confirm all of the same Primary Care management and patient care
issues--and staff especially hammered in the lack of the simple
courtesy of communication from management.
There is no way that this egregious discontinuity of care is safe,
or acceptable; whenever there is a change of physician or a nurse
practitioner for a patient in any healthcare setting the likelihood of
issues being overlooked or lost to follow-up multiplies. But the most
direct way to think about the situation in Primary Care at the Jackson
VAMC is what some of my former patients ask when they come up to C & P
to say hello: ``Who is going to take care of me?''
Official emails have come out recently about identifying and
``owning'' a problem, and that if an employee identifies an issue he or
she should be able to ``shut down the service line'' until the issue is
fixed. This is akin to what the military calls a ``safety stand-down''
and it is something that is called for in Primary Care. But I do not
believe that Medical Center leadership will follow its own preaching.
Mr. Battle has made much of the opening of the new Women's Health
Clinic--but there is no physician hired for that clinic. The brochure
states the services offered include ``Maternity Care--7 days post-
delivery only (including circumcision for newborn)--who is going to be
doing that? (Circumcisions are also not routinely now done as part of
best practices in pediatrics.) An unsupervised NP and her LPN (no RN is
hired) and a clerk are the only staff for the Women's Clinic at
present; this is supremely disrespectful to the Women Veterans, and
also a fraudulent way to open such a clinic. No professional group I
know of in any city, including the other medical groups in Jackson,
would open a Women's Health Clinic without an Ob-Gyn physician on
staff.
As I have written in the past to both administrative and medical
management over several years, I do not believe that any of the people
in leadership would tolerate going to a medical practice that ran like
this--so once again, why do they think it is acceptable for the
Veterans?
I have written documentation regarding all of the issues above, and
this documentation spans my four years in Primary Care, as well as
several emails from prior Primary Care physicians who shared with me an
outline of the long history of chronic, basic problems in the
department. Correction to report on witnesses interviewed: it is Dr. Jo
(not Joe) Harbour, a woman physician.
The investigative team report does not state what disciplinary
actions will be taken against those who broke the laws and regulations,
but hopefully some consequences will ensue for these people. This
should include the top leadership (medical and administrative), as well
as nurse practitioners who knowingly did not follow their state
licensing guidelines. One hears at the Medical Center about ``Federal
Supremacy'', but the concept has been abused. It should not mean that
the VAMC can operate as if it is ``another country'', or that state
medical and nursing licensing boards cannot have access to what
physicians or nurse practitioners do in the VA system. How else can
true quality of care be assured and monitored--and why else do we have
strict licensing requirements for medical professionals? In any other
medical group, if a physician in leadership breached ethics and the
law, and also asked other physicians to break the law (and especially
did that to physicians in training), that physician would lose his or
her job and have their medical license under investigation. Working in
the VA system should not mean you can escape this reality.
All year long the Jackson VAMC has ``operated'' with an average of
fifteen ``Acting Chiefs'' of departments (services)--and as of the week
of August 26th, seventeen acting chiefs. Can this really be considered
to be a fully operational medical center? The overwhelming entirety of
the substantiated findings in this report is sickening, and concrete.
One comes back again to how could this kind of constellation of
``symptoms'' and mismanagement ``disease'' come to pass? Whoever
thought that the type of ``leadership'' seen at the Jackson VAMC (and
apparently at other VAMCs to greater or lesser degrees) could ever be
deemed appropriate? Many times in the morning my primary care team and
I--after voicing prayers and hope for the day for our Veterans and our
staff--looked at each other and repeated ``Laugh or go crazy.'' In a
truly very sad/funny way, the situation at the Jackson VAMC reminds one
of the famous quote from Casey Stengel about the 1962 Mets--``You look
up and down the bench and you have to say to yourself, `Can't anybody
here play this game?''' But the truth is, yes, a lot of people at the
Jackson VAMC, and seemingly at other VAMCs, know how to ``play the
game''--the wrong one, where you gamble with the lives of Veterans who
put their lives in your hands.
And so how does one finally make an impression on those who have
the power to make the medical care given to the Veterans the best
healthcare possible? To aim to make it the best in the world? To take
all of the work that goes on at a VAMC dead seriously? I will end with
the words of one of America's vital playwrights, Arthur Miller.
In ``Death of A Salesman'', Miller has a character say this: ``But
he's a human being, and a terrible thing is happening to him. So
attention must be paid. He's not to be allowed to fall in his grave
like an old dog. Attention, attention must finally be paid to such a
person.'' So many, many Veterans and the fine, committed staff at
VAMCs, feel that no attention is being paid. This cannot be allowed to
stand as it is. And one simple change to make is to not have VA Medical
Centers directed by non-medical people; they simply do not understand
what happens on the front lines, any more than someone who has not been
a soldier can know what truly happens in the trench.
Arthur Miller also wrote a play called ``All My Sons'', in which
the son of a manufacturer of defective airplane parts in World War II
goes to war, and when he finds out the role his father played in the
death of fellow soldiers, crashes his own plane and kills himself in
response to the family responsibility and shame. The father learns the
truth and says ``Then what is this if it isn't telling me? Sure,
[Larry] was my son. But I think to him [the pilots killed] were all my
sons. And I guess they were, I guess they were.''
Just so. I look at a Veteran, and I can see one of my sons who
fought in the Army in Iraq. But that Veteran reminds me of so many
more. For they are All Our Sons, All Our Daughters--and they deserve
the very best the United States can give them. Nothing less.
We cannot fail them.
Prepared Statement of Robert E. Nicklas
Before I begin, I would like to take this opportunity to thank the
committee for arranging this field hearing in Pittsburgh. Our family is
very grateful to so many of the congressmen for your support in
pursuing the answers our family, and those families of the other
victims of the Legionella outbreak in Pittsburgh, deserve. Without the
support of the Chairman of the House Veterans Affair Committee, Jeff
Miller, Congressmen Tim Murphy, Keith Rothfus and Mike Doyle, Senator
Bob Casey, and all of those who are here today and were with us at the
Congressional hearing in February, we may never know the truth. With
your support, however, we hope that we will have answers and
accountability, not only for our loved ones but for all veterans who
deserve better.
Thank you for the opportunity to share information about our
father, William Nicklas, and our experiences with VA Pittsburgh
Hospital System. Our father was not only, a devoted husband, father and
grandfather but was a proud, loyal veteran who often spoke of the
service he gave to his country. As a young man, he worked hard to gain
the weight necessary for him to enter the military, and once accepted
in the Navy, he worked just as hard, not only fulfilling his duties,
but also providing the best service he could to his country, the Navy
and his fellow servicemen. Upon leaving the service, my father met and
married our mother and, subsequently, had three boys. While raising his
family, he began his own auto body business where he worked until he
retired. Being an extremely active man, he continued to keep himself
busy by helping two of his sons begin their own business as
contractors. In 2008, at the age of 84, he helped my brother construct
a memorial to the WW II veterans in his community. He was known for his
practical jokes, his love of sports, his ability to be the first and
the last on the dance floor, and his undeniable dedication to family.
He was, no doubt, the patriarch of our family who was there whenever he
was needed. There was one other issue my father felt a deep sense of
passion for...our country and its military personnel. Everyday, at our
home, my father flew the American flag in his front yard as a symbol of
his belief in this country. It was not often when we would see our
father shed a tear, but each year on Thanksgiving Day as we sat around
the table at my house, individually thanking God for the greatest
things in our lives, it was always dad who, fighting back tears, would
mention the soldiers who were away from home, fighting the war for this
great country. He believed that those men and women deserved the utmost
respect and to never be forgotten.
On November 1, my father entered the VAPHS due to nausea, which he
believed stemmed from a new medication. This was the very day after the
CDC advised Dr. Muder, Chief of Infectious Disease at VAPHS, that
genetic testing confirmed two VAPHS patients contracted Legionnaires
from the hospital. When my brother and father arrived at VAPHS, my
father told my brother, ``Go ahead. I'll be fine. They will probably
just run some tests and release me.'' Again, my father's dedication to
and belief in the VA led him to VAPHS. While he and my mother had
private health insurance and could have accessed any hospital in the
Pittsburgh area, he opted to go VAPHS because he believed that was
where a veteran would get the best care. Or so we would have thought.
Ironically, the very day my father entered the hospital, the CDC was
already on site working on an ongoing problem with a deadly Legionella
bacteria outbreak. Another significant event took place on the day that
my father was admitted to the fifth floor of VAPHS - Dr. Muder, VAPHS
Chief of Infectious Disease, reached out to several experts trying to
locate someone who could do genetic testing and environmental
Legionella sampling. Unable to find anyone, UPMC's Director of Clinical
Microbiology Labs, William Pasculle suggested that VAPHS contact Janet
Stout, former VA employee. Dr. Muder responded to that suggestion by
saying ``I would love to have Janet do it but that's not possible due
to her association with a certain person, the administration would go
ballistic when they saw the invoice.'' This disappointing political
decision was the first of many unconscionable, devastating decisions
resulting in my father contracting the disease, which ultimately caused
his death.
From November 1 through November 10, my father was allowed to
shower and drink the hospital water. Never was anyone in our family
ever advised that there was an ongoing CDC investigation and an Epi Aid
investigation due to a Legionella outbreak being conducted at the very
same hospital at the very same time. On Sunday, November 11, we
received a call in the morning alerting us that they had moved my
father to the 4th floor ICU due to elevated potassium levels. We were
advised that he was fine, alert and otherwise OK and that there was no
need to rush in. On November 12 or 13, we were advised that my father
had an infection and a low-grade fever. When questioned about the
source, the ICU staff was not certain but assured us that they were
running the proper tests to determine the cause. As the next few days
unfolded, we were told by the ICU staff that they believed the source
of the low grade fever was a urinary tract infection which was also
causing issues with my father's kidneys. Several days went by without
any definitive cause of infection. You cannot imagine the shock and
anxiety we experienced when, on Friday, November 16, as my wife and I
listened to the local news on TV, we learned that the VAPHS announced a
Legionella outbreak. Our disappointment mounted knowing that my father
had already been in the hospital for 16 days.
On November 17, when we visited dad, we noticed that there were
signs in the lobby water fountains, which read, DUE TO WATER LINE
PROBLEMS, THIS FOUNTAIN IS OUT OF ORDER. As we entered his room in ICU,
we saw a sign in the sink, which read, DUE TO WATER LINE PROBLEMS, DO
NOT USE. There was no mention of Legionella or Legionnaires. We also
noticed during our visit that dad was telling stories that did not make
sense. When my wife mentioned it to the ICU nursing staff, she was told
that it was a condition known as ``ICU psychosis'', a term used when
patients show signs of delirium due to a prolonged stay in one room. We
were assured that this would ``clear up''. At the same time, we were
told that my father's kidney and liver were stressed but despite it
all, the doctors assured us that he would be home by Thanksgiving.
Over the next few days, dad's condition deteriorated and his doctor
began oral antibiotics, even though dad was suffering from bouts of
diarrhea. On November 19, his doctor ordered the first culture for
Legionella bacteria via a urine antigen test . . . nineteen days after
dad entered the hospital, weeks after symptoms attributable to
Legionnaires appeared, and with knowledge that they had an outbreak of
Legionella. VAPHS further delayed the testing of this sample when the
lab ``lost'' or ``misplaced'' my father's first sample. Once again,
another sample had to be taken and on November 21, our family requested
a meeting with dad's doctor due to the contradictory reports we were
receiving from the ICU nurses and doctors when we phoned in to check on
dad's condition. Our meeting was scheduled for 6:30 on Wednesday
evening, November 21. Shortly before leaving our home to attend this
meeting, my wife called ICU to check on dad and was told by the
attending physician that they had just received confirmation that he
tested positive for Legionella bacteria. When asked if this meant that
he had Legionnaires, my wife was told by the attending physician, ``we
cannot say that right now''. Stunned and disappointed, we arrived at
the hospital for our meeting. We were told that they were treating dad
with antibiotics and we subsequently learned that they had switched him
from oral antibiotics to IV antibiotics. At this meeting, we were told
numerous times by his doctor that she had expected him to make a full
recovery prior to the diagnosis of Legionnaires. The doctor told us
that even if the disease would clear, the repercussions of the
Legionnaires were long lasting. The doctor suggested that we tell dad
and once she did, his response was ``just what I need''.
That night began the slow, painful decline of my father. A man, who
still, despite all that he was going through, wanted to reach out and
protect his family, most importantly, his wife. He told us stories of
people coming to get him...that they were trying to poison him and that
we had to get out of there before they poisoned us, too. Over the
course of the next 2 days, we watched my dad's mental state deteriorate
further and further. He was obsessed with picking at his blanket. When
we asked why, he told us ``I have to get the poison off of me''. My mom
was called to the hospital on Friday, November 23, 2012, to try to help
settle my dad who seemed extremely agitated. He was scared, he was
worried, he was anxious, unsettled, still concerned that they were
going to poison us.
In fact, as I sat there that night, holding his hand, he tried to
``pick the poison'' off of the back of my hand. He drew blood as he
pinched my skin over and over and over again. We said our good nights,
told him that we loved him and that we would see him the next day. That
would never be. We drove my mom home and were planning to leave for the
airport to pick up my brother, Ken. As we entered the house, the phone
was ringing. My son answered the phone - it was the doctor advising us
that dad had passed. My brother did not get here in time to see my
father. Having to deliver that news to him as we stood outside of the
airport was the toughest thing I have ever had to do. And why - why did
this happen? Why were we not warned that the CDC was on site? Why
wasn't something done after the 1st person died? the 2nd? the 3rd? the
4th? Why was the antigen testing not done sooner on my father,
especially since they knew there was a problem? Who lost or misplaced
my father's first sample? Why did the VAPHS not accept the help that
they were offered by consultants such as Enrich or Liquitech? The
questions go on and on and on.
Over nine months ago, we began to ask questions about this
unfathomable situation, which has devastated our family. Those
questions have led us on a journey, full of more questions with no
answers. We realize that the power, which Congress has, could make all
the difference in giving the families the closure they deserve by
providing us with answers and accountability. We are here today to urge
Congress to help us to get answers and to, ultimately, hold those
accountable for the decisions that were made that led to this travesty.
In February of 2013, we attended the Congressional hearing in
Washington DC where several panels presented information on the history
of the water system at VAPHS, the closing of the world renowned lab at
VAPHS in 2006 and the subsequent senseless destruction of thousands of
Legionella samples, the years of support offered by consultants to help
manage the copper silver ionization system after the closing of the
VAPHS lab, and the lack of training provided to those employees now
responsible for monitoring that same system. At that hearing, no one
from the Pittsburgh VA Hospital administration attended and those VA
representatives who did, were unable to answer specific questions.
While several startling pieces of information were revealed during that
hearing, no specific answers were provided.
Since the hearing in February, many stories have appeared in the
local newspapers, on local television, on national news broadcast such
as CNN and CBS national news, yet still no answers and no
accountability. In April of 2013, the findings of a four month long
federal investigation by the U.S. Office of the Inspector General were
released.
What we learned were that the copper-silver ionization system was
not managed thus allowing Legionella to flourish in the system; there
was little documentation of the system being monitored; communication
between the infectious disease team and facilities management staff was
``poor''; those in charge of the system did not routinely flush faucets
and showers with hot water as advised by the manufacturer of the
system; when personnel did flush the system, they did not raise the
temperature of the hot water enough thus violating the VA's own
guidelines; and staff did not test all health care-associated pneumonia
patients for Legionella as, again, VHA guidelines recommend. The
Director of the VA responded to this report by saying, ``they validated
what we already knew'' and that she and other officials were in ``total
agreement'' with the findings. All of this they knew. What else did
they know? Management also knew that the first person contracted the
Legionnaires in February 2011, that the first death from the outbreak
occurred in July 2011 and they knew that there were 6 more people who
were infected in the fall of 2011. One would ask ... Why, then, were
people still being infected and still dying in November of 2012? What
do we know? We know that after several of those deaths, VAPHS advised
the families of most of those infected that the bacteria must have been
acquired outside of the hospital even though they knew they had ongoing
issues with Legionella.
Our family's disappointment and outrage did not stop there. In late
April of 2012, we learned that the Director of VAPHS, Terry Wolf, and
the Regional Director, Michael Moreland, each received a performance
bonus in the approximate amount of $13,000 and $16,000, respectively.
Yet, again, on May 2, 2013, it was announced that Michael Moreland was
awarded the Presidential Distinguished Rank Award, which was approved
by VA Secretary, Eric Shinseki and the White House. This award is given
to less than 1% of the federal government's senior executives...54
employees this year! The award includes a bonus equal to 35% of the
employee's annual salary. For Michael Moreland that salary was $179,700
making the bonus approximately $63,000.
I ask all of you present today, to imagine what my family has been
through. Now, remember these veterans who senselessly lost their lives
through a long, painful process full of anxiety and struggle. I also
ask everyone who is present today to reflect on this one
question...What would have happened if you had performed your job in
the same manner as the VAPHS administration? Would you still be
employed? Would you still have your benefits? Would you be receiving
bonuses?
My father, William E. Nicklas, was a man who served his country
honorably and responsibly; a man who put himself in danger to protect
his country and his comrades; a man who raised a family and instilled
in that family that same sense of responsibility to themselves, their
family, the community, and this country. He was also a man who held
himself and his family accountable for their actions. We ask for
nothing less for him and all of the other victims of this outbreak.
Again, we urge Congress and all veterans to join with us to demand
answers and accountability. The same tax dollars paid by every citizen,
including family members affected by this travesty, are the same tax
dollars used to pay the salaries, the benefits, the bonuses and the
budgets of the employees of VAPHS. We beg you to please help us to get
the answers that these and possible other victims deserve!
William E. Nicklas
John Ciarolla
Clark Compston
John McChesney
Lloyd Wanstreet
Thank you for this opportunity to testify and I will be happy to
answer your questions at this time.
Prepared Statement of Maureen A. Ciarolla
Good morning. Chairman Miller and distinguished members of the
Subcommittee, I want to thank you for the opportunity to testify here
today on behalf of my family regarding the VA Pittsburgh Legionnaires'
outbreak. My name is Maureen Ciarolla. I am the eldest daughter of John
J. Ciarolla, a United States Navy veteran who died from Legionella
while residing in the VA Pittsburgh Healthcare System (Pittsburgh VA).
I would like to note that our father is listed as one of the ``probable
hospital acquired'' cases, due to having two family afternoon visits
during the ``2-14 day'' incubation period. At our meeting with the
Pittsburgh VA on March 12, 2013, we were told as such in that because
of that fact we couldn't scientifically prove he acquired it at their
facilities.
First, we would like to thank all the employees and staff at the
Aspinwall facility who were very kind and professional while our father
was there. We would give special thanks to Ms. Connie Coble-Roe, CRNP,
(Certified Registered Nurse Practitioner), who we spoke to often about
our father's on-going care and well-being, and also Ms. Heather F.
Korpa, LSW Social Worker, who our father spoke about with great regard,
in fact our brother remembers our father describing her as, ``a Good
Egg.'' We would like all of them to know our appreciation.
Our father entered the VA Pittsburgh Healthcare System on January
22, 2011, became a resident at the H.J. Heinz facility here in
Aspinwall and died six months later. I want to make one thing very
clear - while our father was in the Pittsburgh VA we were actively
involved in his life and his medical care. As a matter of fact, there
is a notation in his medical records, in fact ``warning'' that the
``family is very involved with medical care.''
Why we are here today has nothing to do with the people who work
directly with the veterans like those I spoke of. We are here today as
family members who lost a loved one, to take part in the continuous
effort to find how and why this Legionella problem got so out of hand
here in Pittsburgh causing our father and other veterans to die
prematurely, obviously. There can be no more tolerance for the tactical
usage of stonewalling, red herrings and we should reject any evasive
responses to questions and compel a lucid answer by all means
necessary. My testimony today is meant to ask for your help in
demanding clear answers to questions and that those responsible are
held accountable, for real. The families of the victims, the families
who lost their loved ones and all veterans are at least owed that much.
This micro pandemic, if you will, in the VA Pittsburgh Healthcare
System was predictable. In fact, in 2008, top ranking VA officials,
some who are here today, were informed that this very situation was
going to happen. If for whatever reason they weren't aware prior to
2008, they should have known this was going to happen in the near
future. At one time, the VA Pittsburgh Healthcare System had the
leading Legionnaires' research facility in the world called the Special
Pathogens Laboratory. In 2006 an administrative decision was made to
close this research department and destroying decades of research in
the process. This decision was deemed so bizarre and irresponsible that
Congress had a hearing over this very matter.
Five years ago, to the date, on September 9, 2008 a hearing was
held by a Subcommittee on Science and Technology. The subject was about
how the lack of a coherent policy allowed the Veterans Administration
to destroy an irreplaceable collection of Legionella samples. This
report is public record and took place three years before our father
contracted this fatal pathogen at the Pittsburgh VA. The information
and discussions in that hearing record is the very reasons why we say
this Legionella mess was indeed predictable. Here is what the report
states:
``The collection of materials destroyed in Pittsburgh was the work
of Dr. Victor Yu and Dr. Janet Stout, who have, during the last three
decades, become world-recognized experts in identifying legionnaire's
disease. Dr. Stout is widely recognized for her work in developing
methods to keep Legionella out of water supplies at hospitals and
nursing homes. Dr. Yu has an international reputation for his work on
infectious diseases in hospitals.''
Think about that, they had the most knowledgable people in the
world on Legionella and basically showed them the door.
Michael Moreland, I believe, was the incoming Director of the VA
Pittsburgh Healthcare System at that time. The record goes on to say
that he and Associate Chief of Staff for Clinical Services, Dr. Mona
Melhem oversaw the decision to close down the nationally acclaimed
Special Pathogens Laboratory and ordered the acrimonious destruction of
Legionella and other disease isolates and also water samples containing
the Legionella bacteria that had been accumulated by Drs. Stout and Yu
over the decades of their research on this disease.
Let's think about that for a moment. Decades of research
accumulated by the world's most renowned specialists just tossed out
the door. Your decision as the incoming director to close down a
research laboratory of that caliber in his own hospital has to be the
most incompetent decision any incoming person could make. These were
the top people in that field. By all reasonable accounts they would
have been the first responders the moment before this deadly bacteria
reached this critical stage.
The Subcommittee's investigative report points out further, that:
1. After ``months of investigation . . . the Subcommittee have not
revealed any credible reason for the destruction of the collection.''
2. What was also evident was ``that administrators at a major VA
hospital had allowed personal animosities and goals to overcome its own
processes.''
Was there really animosity and goals involved there like the
committee suggests?
3. Mr. Moreland and other witnesses from the VA should remember
that their testimony today is under oath and it is simply not credible
that important technical decisions were made entirely based upon
conversations with no documentation.
If Mr. Moreland's testimony wasn't deemed credible back then,
before deaths ensued as a consequence of his decision, how credible can
his testimony be after this disaster?
4. The record continues, ``I cannot imagine the circumstances under
which a federal health agency official would unilaterally order the
destruction of human tissue collection without receiving the approval
of the agencies research office and the Research Compliance Committee.
I cannot imagine why that official would apparently make false
statements during the destruction to keep the Associate Director for
Research at the center, in the dark until the destruction was
complete.''
5. When Dr. Stout was questioned about the need for ongoing
research - because, these bacteria keep changing, so as to stay ahead
of it, she states: ``And if I may just add, in addition to therapy and
treatment, we are also and have been for many years trying to put the
tools in the toolbox to prevent the disease, which includes treatment
of water distribution systems with various methods to control the
presence of the bacteria in the water, and just like with antibiotics,
there is no perfect solution so we continuously do research to perfect
those techniques.'' She goes on to say ``In the September issue of
Clinical Infectious Diseases, there is a report demonstrating that
there is an increase in the incidence, or the number of cases of
legionnaires' diseases that have been noted'' and she attached the
report to her testimony.
Dr. Yu testified that ``microbes are evolving and antibiotic
resistant is now a major problem'' and two days prior to the sample
destruction they received commentary from one of their colleagues in
France. ``They believe that Legionella has the capability to evolve
resistance to Levofloacin, and they wanted us to test their hypothesis
with the organisms that we had in our collection.''
6. And finally, one subcommittee member commented that ``all of us
may pay a price for this conduct, veterans most of all, because the
Nation lost one of its leading research labs on hospital infectious
diseases.''
Well veterans did pay a price. The Center of Disease Control and
Prevention's report to the U.S House Subcommittee on Oversight &
Investigations at its hearing held in Washington DC on February 5,
2013, states in fact that 32 cases of Legionnaires disease were
diagnosed at the Pittsburgh VA between January 1, 2011 and October 21,
2012. It verifies the Pittsburgh VA's claim - that only five patients
definitely caught Legionnaires' disease while hospitalized at the
Pittsburgh VA. But it also suggested that sixteen additional patients
``probably'' caught the disease at the Pittsburgh VA.
Prior to the release of the CDC report the VA was claiming that
there was only one death. Only after this report were they compelled to
come clean. There were at least five.
We don't know nor do I think we will ever know how many victims
there were in the past or that exist today. They definitely chose to
remain careful and quiet about this. In our case, on July 15, 2011, we
were adamantly told by Tiffany Pellathy, our father's Critical Care
Nurse Practitioner and Dr. Gilles Clermont, and I quote ``Legionella
had nothing to do with our father's condition; we treated and cleared
that up with antibiotics, before he was put on the ventilator''.
Additionally, I would like to point out the testimony from the
February 5, 2013 hearing:
Mr. Aaron Marshall, Operations Manager for Enrich
Products, Inc., which supplies copper-silver ionization systems for the
control of Legionella, testified that in June 2012, he was called in at
the request of the Pittsburgh VA, to perform a review of the copper-
silver ionization system and its operation at the University Drive
facility, but that critical data was withheld from them. He testified
``I requested but was denied access to view the Legionella test
results.'' He also states ``Had Enrich Products been aware of the
presence of Legionella or Legionellosis cases at the VA University
Drive Campus, we would have recommended implementing the reactive
course immediately.'' He also said that they learned through the media
that there were reported cases of Legionnaires Disease at the
Pittsburgh VA and that there were deaths as a result, and there were
quotes that offered doubt on the efficacy of copper-silver ionization.
He stated ``Copper silver ionization is an effective method of
controlling Legionella bacteria. However, in order to maintain its
efficacy, the installed system needs to be properly maintained and
regularly monitored. And through today, (February 5, 2013) the VA has
not shared its Legionella testing data or results.''
Mr. Steve Schira, chairman and CEO of Liquitech, Inc.,
the company that manufactured the Pittsburgh VA's Legionella prevention
equipment, in his prepared statement he says: ``While we continue to
improve the technology, it is not plug and play. It requires regular
maintenance, monitoring and validation. We have had some customers who
experienced a re-occurrence of Legionella months or years after the
installation of copper silver ionization, it was simply a matter of
maintenance and, if LiquiTech was notified, we were able to correct the
problem and eliminate the Legionella bacteria within 24-48 hours once
action was taken.''
He goes on to say that the ``outbreak at the Oakland Pittsburgh VA
could have been prevented with standard maintenance and open
communications.'' There is no question the VA should have taken more
assertive action. This outbreak would have been avoided with proper
maintenance of the copper silver ionization disinfection systems.
Think about this: you eliminate the world renowned Legionella
experts, whose life's work is all about preventing, eliminating and
treating those that contract the deadly bacteria. When you ignore the
procedures and the advice of the product's manufacturer that helps keep
the bacteria in check. If he eliminated the advice and work of these
people then the disaster is also predictable. Who was Mr. Moreland
getting advice and counsel from?
Under Mr. Moreland's watch, adequate policies and procedures were
either disregarded or non-existent, warning signs and recommendations
were either ignored or considered insignificant and there was certainly
a complete lack of communication and/or requests for help according to
the water systems' experts. To ouster the best minds on Legionella out
of your company and disregarding the advice from the water system
manufacturer while knowing that the deadly bacteria, Legionella, was
lurking in the water systems at the Pittsburgh facilities has got to be
one of the most incompetent decisions ever made. If you read the record
of that 2008 hearing and all that was discussed there, it should be
criminal.
We attended the hearings in Washington DC over this matter. There
Mr. Moreland had no prepared statement and testified to that Sub-
Committee that he didn't know too much about the issue or ``that it's
complicated,'' all to evade the questions that were posed. In fact he
testified that ``he first became aware there was a concern with
Legionnaires at the Pittsburgh VA in fall of 2011.'' Apparently Mr.
Moreland was clueless in 2006 about the Legionella bacteria generally,
attending the 2008 hearings over that decision that led to the hearing
and didn't learn a thing, and he was still clueless about the
Legionella issues in his own facilities in 2011.
As an example, the Veterans Affairs Office of the Inspector General
issued two reports: one in April and one in July, 2013, finding that
the Pittsburgh VA had:
Inadequate maintenance at all times of the copper-silver
ionization system
Failure to conduct routine flushing
Failure to test all patients with hospital-acquired
pneumonia for Legionella
Inadequate testing requirements
Utilizing loopholes in reporting Legionnaires to the CDC,
state and county health agencies
Like I said, this situation was predictable. If it was indeed
predictable, then casualties were imminent. If deaths were imminent,
then that had to be acceptable to those responsible, knowingly. Mr.
Moreland and his administration regime knew that the water system at
these facilities had a Legionella problem, eliminating a diligent water
monitoring scheme, obstruction of investigations and the misleading of
families and agencies was no less than gross negligence and gross
misconduct or absolute incompetence, either way a deliberate gamble -
and veterans paid the price and lost their lives over it. There is no
other way to look at it.
Dated: September 2, 2013
Prepared Statement of Robert A. Petzel, M.D.
Chairman Miller, Ranking Member Michaud, Members of the Committee,
other Members in attendance today, ladies and gentlemen. Thank you for
the opportunity to participate in this oversight field hearing.
The Department of Veterans Affairs (VA) is committed to
consistently providing the high quality care our Veterans have earned
and deserve. VA operates the largest integrated health care delivery
system in the country, with over 1,800 sites of care. Each year, over
200,000 Veterans Health Administration (VHA) leaders and health care
employees provide exceptional care to approximately 6.3 million
Veterans and other beneficiaries. The VA health care system is
consistently recognized by The Joint Commission and numerous other
external reviews as a top performer on key health care quality
measures. We operate with unmatched transparency in public and private
sector healthcare, fostering a culture that reports and evaluates
errors in order to avoid repeating them in the future.
In delivering the best possible care to our patients, one of VA's
most important priorities is to keep our patients free from injury
during their time at our facilities. In some cases, we have not done
so, and I am saddened by any adverse consequence that a Veteran might
experience while in or as a result of care at one of our medical
centers. We send our sincerest condolences to those Veterans and their
families.
When patient safety incidents occur at VHA, we are committed to
identifying, mitigating, and preventing additional patient safety risks
within the VA health care system. Where challenges occur, VA takes
direct action to review each incident, and puts in place corrections to
improve the quality of care provided and hold employees accountable for
any misconduct. We work hard to incorporate lessons learned so that
future incidents can be avoided or mitigated throughout the entire
health care network.
In 1999, the Institute of Medicine (IOM) issued a landmark report
on patient safety. Entitled ``To Err is Human: Building a Safer Health
System,'' \1\ the report estimated that 44,000 to 98,000 people die
each year in hospitals across the country as a result of medical
errors, making those errors the eighth leading cause of death in the
United States. This report started a movement toward patient safety in
medical facilities that has continued to grow to the present day. VA's
response to the report was swift, and has been cited \2\ as a model for
other health care organizations.
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\1\ Institute Of Medicine, Shaping the Future for Health, ``To Err
Is Human: Building a Safer Health System,'' November 1999.
\2\ Professionals from 285 U.S. organizations and agencies
including the Department of Defense and American College of Surgeons,
for example, have attended VHA patient safety training programs.
Internationally, 12 foreign nations have participated in patient safety
training including Denmark and Australia, which implemented national
programs based on the VA model. The VA National Centers for Patient
Safety partnered with Agency for Healthcare Research and Quality for
several years in the development and delivery of the national Patient
Safety Improvement Corps initiative, which trained state-based teams
from around the country.
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In the same year the IOM report was issued, the Department
established a National Center for Patient Safety (NCPS) to lead our
efforts in this area and to develop and nurture a culture of safety
throughout VHA. Every VA medical center now has at least one patient
safety manager. These managers work to reduce or eliminate preventable
harm to patients. They do this, in part, by investigating system-level
vulnerabilities. There is strong evidence that system errors occur
because of system failures rather than intentional efforts of
individuals.
No hospital system can eliminate all individual errors, but our
Department is designing systems that reduce the likelihood of
preventable errors and lessen the potential harm to patients from
errors that do occur.
VA relies on a tool called Root Cause Analysis (RCA) to determine
the basic and contributing system causes of errors. RCAs study adverse
events and close calls with the goal of finding out what happened; how
it happened; why the systems allowed it to happen; and how to prevent
what happened from happening again. \3\
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\3\ http://www.patientsafety.va.gov/CTT/index.html.
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When an RCA is needed, a team of experts from throughout the
hospital and elsewhere work with those who are familiar with the
situation in an impartial process to identify prevention strategies.
They look at human and other factors, policies, underlying causes and
effects, related processes and systems, and risks that are inherent in
health care to find potential improvements in the way our facilities
care for Veterans.
In order for VA's system to work properly, we have created an
internal, confidential, and non-punitive reporting system, called the
Patient Safety Information System, to make sure all VA employees feel
protected reporting events and near misses so that we can learn, as an
organization, from the concerns that have been raised.
We ask employees, Veterans, families, and visitors to our
facilities to report not only incidents resulting in harm, but also
close calls. We believe that a systems approach to problem solving
requires a willingness to report problems or potential problems so that
solutions can be developed and implemented--because we cannot improve
what we do not know about. Because of our willingness to receive and
review all reported incidents, more than a million reports (which
include safety reports, aggregate logs and reviews, and RCA reports)
have been generated and entered into our reporting system since it was
established 13 years ago.
These reports are analyzed to address vulnerabilities that affect
the system and spur system-wide improvements. The analysis of these
reports is shared throughout VA, followed by notifications of lessons
learned and the distribution of tools. For example, we have learned
that errors in the operating room are often a result of poor
communication. To address this issue, VA has established a program
called medical team training to enhance communication among clinicians.
Because we are an integrated system, lessons identified at one facility
are communicated quickly across the entire VA health care system when
necessary to reduce error risk. This results in an informed health care
system that learns from past incidents in order to mitigate future
adverse events.
When misconduct occurs, employees are held accountable through a
range of actions and consequences that appropriately address the
circumstances. For instance, actions may include counseling and
training or severe discipline such as demotion and removal. Acts that
are deemed blameworthy have clear consequences and accountability. Such
acts include criminal acts, purposefully unsafe acts, professional
misconduct such as patient abuse, professional incompetence,
substandard care, and acts resulting from alcohol and substance abuse.
While these instances are rare across the VHA system, there are
processes in place for accountability when they occur.
In addition, there are multiple layers of oversight within VA and
VHA. VHA's Office of the Medical Inspector (OMI) is responsible for
investigating the quality of medical care provided by VHA. VA's Office
of the Inspector General (IG) conducts investigations, audits, and
health care inspections to promote economy, efficiency, and
effectiveness in VA activities, and to detect and deter criminal
activity, waste, abuse, and mismanagement. The IG and the OMI have both
been involved in several of the situations the Committee is reviewing
in this hearing, and their recommendations have helped guide our
responses to those situations.
At the same time, we are committed to ensuring a ``Just Culture'',
in which accountability principles are clearly stated but people are
not punished for making inadvertent errors. Calling for punishment and
termination of employees is not supported by the literature describing
Just Culture as a model for management of mistakes and errors. Ignoring
what the science of safety tells us about the causes of human error
encourages staff to cover up or not report such errors. Recognizing
that open reporting can lead to improved systems and behaviors within
complex environments this concept has been promoted by the VA National
Center for Patient Safety and external entities such as the American
Nurses Association. \4\ The Joint Commission standards specifically
require that leaders create a ``culture of safety by creating an
atmosphere of trust and fairness that encourages reporting of risks and
adverse events''. Professor Lucian Leape of the Harvard School of
Public Health has testified before Congress that the single greatest
impediment to error prevention in the medical industry is that we
punish people for making mistakes. \5\
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\4\ January 2010 Position Statement - http://nursingworld.org/
psjustculture; http://www.nursingworld.org/MainMenuCategories/Policy-
Advocacy/Positions-and-Resolutions/ANAPositionStatements/Position-
Statements-Alphabetically/Just-Culture.html
\5\ ??
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Our patient safety programs, and other actions we have taken to
reduce harm at our hospitals, have resulted in a number of important
recent accomplishments. In the past decade, VA has:
Significantly reduced the rate of inpatient suicides in
our hospitals nationwide, from 2.64 per 100,000 admissions to 0.87 per
100,000 admissions; \6\
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\6\ Watts B. Archives of General Psychiatry 2012; 69:588-92.
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Developed a program to reduce the number of patient falls
in our hospitals by engaging our facilities in best practices
resulting, in the overall major injury rate from falls dropping by 62
percent; \7\,
---------------------------------------------------------------------------
\7\ Mills, P. et. al. ``Reducing falls and fall-related injuries in
the VA System'', Journal of Healthcare Safety, Volume 1, Number 1,
Winter 2003.
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Developed a new patient-centric prescription label that
enhances Veterans' ability to follow medication instructions provided
on the label;
Significantly reduced surgical morbidity and mortality in
response to the feedback and information provided to facilities and
their surgical programs \8\ using the Surgical Lessons Learned program,
which is now being expanded to other specialty areas; \9\ and
---------------------------------------------------------------------------
\8\ Neily, J., et. al., (2010)
\9\ Neily J. et. al., JAMA 2010; 304:1693-1700.
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Developed an operative complexity model to assure
adequate clinical infrastructure to support the complexity of surgery
at VHA facilities. This model has now been implemented at all VA
medical centers, and has been viewed favorably by other health care
providers.
Because VA is committed to transparency of its quality goals and
measured performance of VA health care we have established the VA
Hospital Compare website for Veterans, family members and their
caregivers to compare the performance of their VA hospital to other VA
hospitals. \10\ The VA transparency program, ASPIRE, ensures public
accountability and encourages continual improvements in health care
delivery. ASPIRE is a dashboard that documents quality and safety goals
for all VA hospitals. The data shows strengths and opportunities for
improvement at the national, regional, and local facilities.
Additionally, VA's Office of Quality, Safety, and Value publishes an
extensive annual Quality and Safety Report that details all aspects of
our health care quality and safety by facility. The success of the VA
transparency approach is reflected in VA's receipt of the Annual
Leadership Award from the American College of Medical Quality in 2010.
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\10\ http://www.hospitalcompareva.gov/index.asp
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Mr. Chairman, VHA is the same system of care that an investigative
reporter described, a few years ago, as providing ``the best care
anywhere''. \11\ In 2012, 19 of our hospitals were recognized as top
performing by The Joint Commission on key health care quality measures.
We pioneered the use of electronic health records. We've created a
mental health care delivery system especially designed to meet the
needs of our returning Veterans. VHA operates one of the highest
quality care systems for mental health services in the country. VHA
recently hired an additional 1,669 new mental health providers under
the President's Executive Order and established 24 pilot programs with
community providers across nine states and seven Veterans Integrated
Service Networks to improve access to mental health care. In addition,
VA has been a pioneer in the use of telemental health, providing mental
health services within primary care, and has developed and implemented
services such as the Veterans Crisis Line, which provides 24/7 crisis
counseling services by trained mental health providers. We have an
outstanding reputation within the health care profession for providing
high quality, patient centered care--and for keeping our patients safe.
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\11\ Best Care Anywhere, 3rd Edition: Why VA Health Care Would Work
Better For Everyone by Phillip Longman
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But, as Secretary Shinseki has said, we can do better, and we must
do better. Our internal reviews have identified, and we have informed
the Committee about a number of instances in which, for one reason or
another, we have not kept Veterans safe in our hospitals. In every case
the Committee has identified, we--and I personally--have spent
considerable time learning what happened and why it happened, and
developing plans and procedures to keep the issue from happening again.
Let me briefly discuss what we now know about the events in Atlanta,
Buffalo, Dallas, Jackson, and Pittsburgh--and what we are doing, and
will do, to prevent reoccurrences.
Pittsburgh
Since we are in Pittsburgh today, let me begin by discussing the
events that have occurred at our medical center here relating to
Legionella bacteria. I want to begin by expressing my deepest regret
and sympathy to the families of those patients with Legionellosis who
died.
The Pittsburgh Healthcare System (VAPHS) is located in Allegheny
County, PA, a region with one of the highest rates of Legionellosis in
the country. Because of this challenge, VHA and VAPHS have worked for
many years to develop guidance and implement mitigation efforts to
prevent infection.
In late summer and early fall 2012, VA Pittsburgh noticed an
unusual pattern of Legionella pneumonia cases. This observation led the
facility to investigate a possible environmental link between its
patient cases and water system. In mid-October 2012, VA Pittsburgh
worked through the Pennsylvania State Health Department to submit three
patient specimens to the Centers for Disease Control and Prevention
(CDC) for genetic testing. On October 30, the CDC stated they had found
genetic similarities between two of the patient samples and the
environmental sample from VA Pittsburgh. This finding indicated that
the patients may have acquired their infection while hospitalized at VA
Pittsburgh.
On November 2, 2012, VA Pittsburgh invited the Allegheny County
Health Department and CDC to participate in a formal collaborative
review of recent Legionellosis cases at the facility and to assist with
identifying a route of transmission. Upon determining that
Legionellosis was present in the hospital water system, the CDC and
Allegheny County Health Department recommended immediate remediation of
VA Pittsburgh's potable water system. VA Pittsburgh promptly
implemented an aggressive multiphase heat and flush and hyper-
chlorination effort. The health care system then instituted, and has
continued, water testing every two weeks to monitor bacteria presence.
VA has one of the most comprehensive Legionellosis prevention and
assessment programs in the nation. VA policy requires every Medical
Center to evaluate its risk for Legionella once a year and also
requires that any transplant facility also test its water system twice
annually by collecting samples by water or swab.
Historically, VA Pittsburgh Healthcare System's environmental
surveillance strategy for Legionella exceeded this twice a year
requirement. In the April 23, 2013 OIG report pertaining to
Legionnaires Disease at VAPHS, OIG recognized that VAPHS has a long
history of comprehensive mitigation efforts for Legionnaires Disease.
However, the report identified several areas for improvement and the
Joint Commission found insufficient compliance in some areas. In
addition to environmental testing, Pittsburgh conducts specific
clinical testing of patients that is necessary to detect Legionnaires'
disease because patients with Legionella pneumonia cannot be reliably
distinguished from patients with other bacterial or viral pneumonias.
Pittsburgh has tested at a very high frequency rate, indeed the highest
in the VA system.
Prior to the outbreak, VA Pittsburgh testing procedures involved
the use of swabs and smaller water samples. These procedures were in
accordance with accepted standards, yet we now recognize that the pre-
outbreak testing procedures are less effective at detecting water-borne
Legionella than the one liter collection methods recommended by CDC and
currently in use at VA Pittsburgh. Despite VA Pittsburgh's historical
track record of testing for Legionella more frequently than required by
VA policy, health care-acquired Legionella pneumonia contributed to the
deaths of five patients between July 2011 and November 2012. Every one
of these deaths is a tragedy.
In July 2013, VHA reexamined the Pittsburgh facility for evidence
of compliance with the IG's recommendations. Of the 60 areas reviewed,
just four required additional work or documentation. These four areas
did not involve water testing. Rather, they focused on using higher
chlorine ranges; automating the plumbing system; improving construction
projects and risk assessments; and documenting routine flushing of hot
water fixtures.
There are still two investigations pending related to Pittsburgh.
Once these investigations are complete, VA will determine whether
additional actions will be necessary.
According to the CDC and the U.S. Environmental Protection Agency,
there is no one dominant, evidence-based primary prevention strategy
for controlling Legionellosis in health care settings. However, by
following the recent recommendations of external and internal review
teams, including VHA experts, The Joint Commission, and the IG, VA
Pittsburgh has been able to aggressively monitor and successfully
control the presence of Legionella bacteria in its water supply.
The facility posts pertinent updates and information on its
website, and has established a hotline for Veterans and their families
who have questions related to Legionellosis. In addition, VA Pittsburgh
is conducting informational sessions with Veteran stakeholders,
employees, congressional stakeholders and the media. VAPHS uses these
sessions to relay timely information and updates about their Legionella
surveillance and treatment efforts to local community partners.
Throughout VA, we have renewed our commitment to preventing health
care-acquired Legionnaires' disease and are continually looking to
update best practices for prevention. In addition, in Spring 2013, VHA
formed the Legionella Expert Work Group to review existing policies,
develop options and standards as necessary, and draft a new
consolidated policy relating to Legionella. The Work Group has
developed a new draft Directive. Due to the comprehensive nature and
industry leading standards and processes contained in the draft, the
Directive is undergoing expanded reviews. Existing Directives
established guidelines for the use of basic engineering controls as a
primary means for Legionella suppression. The draft Directive enhances
and expands on engineering controls, establishes mandatory standards,
and identifies required processes at a wider range of facility types.
The breadth and scope of these elements reflect the CDC statement \12\
that ``there is no safe level of Legionella in a water system.'' On
August 21, 2013, a memorandum was sent to all VA Medical Centers that
provided a summary of anticipated core elements of the draft Directive
to aid implementation planning. Specifically, the memorandum identifies
the engineering and infrastructure resources needed for compliance with
new policy.
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\12\ CDC Testimony, February 5, 2013, before the House Committee on
Veterans' Affairs Subcommittee on Oversight and Investigations, U.S.
House of Representatives.
---------------------------------------------------------------------------
Atlanta
I would like to convey my sorrow and apologies to the families of
the three Veterans who received mental health services at our Atlanta
facility last year and died. These are tragic events that VA takes very
seriously.
In May 2012, VA's IG received a hotline complaint alleging
mismanagement and lack of oversight of care provided by the DeKalb
Community Service Boards (CSB), which offer mental health care to
Veterans referred to them by the Atlanta VA Medical Center under a
contract managed by the facility. Later, the IG received an additional
complaint that mismanagement may have contributed to the death of a
patient on the facility's inpatient mental health unit. In April 2013,
the IG issued two reports based on their investigation of those
complaints, finding that VA facility managers did not provide adequate
staff, training, resources, support, and guidance for effective
oversight of the facility's contracted and inpatient mental health
programs. We take these findings seriously.
Three patient deaths, including two suicides and an accidental
overdose, were linked to the problems identified in the reports. The
two suicides were related to inadequate oversight of contracted care;
and the accidental overdose was linked to inadequate supervision of
inpatients. A fourth death, also a suicide, of a Veteran who had
recently been treated at the Atlanta VAMC facility as an outpatient,
was not related to the matters that were the subjects of the IG's
investigations.
In response to these reports, VISN 7 and the Atlanta Medical Center
have taken aggressive corrective actions to address all of the
identified deficiencies. They have implemented system improvements to
ensure patient safety both within the Medical Center and at its
contract care facilities. The inpatient program improvements include
new procedures for supervised urine drug screens, visitor and hazardous
item management, and escorts for patients who are required to be off
the locked inpatient unit. VA is also in the process of completing
nationwide guidance on these same areas.
The Atlanta VA has significantly improved its monitoring and
management of their contract mental health program. The facility has
reduced the number of contracts it has with mental health organizations
from 26 to five, and strengthened the contract's quality assurance
monitors. VA licensed clinical social workers are embedded in the CSB
sites to coordinate care for Veterans, and the facility has created a
database to track clinical and financial data for every referral.
At present, 90 percent of Veterans served by the Atlanta VA receive
new non-urgent mental health care appointments within 14 days, and the
average wait time for a new appointment is 7 days. The Medical Center
has a new long-term plan and new initiatives in place to expand mental
health services and enhance access for Veterans. Among these are the
expanded outpatient mental health services at the new health care
facility at Fort McPherson, and a domiciliary that will open there in
late Fall. These corrective measures and new initiatives have already
improved the safety and quality of services at Atlanta and will
continue to do so.
The Medical Center provides same day access for Veterans with
urgent mental health needs, through the facility's Mental Health
Assessment Team and its Evaluation, Stabilization, and Placement Clinic
for Substance Abuse Disorders. The Mental Health Evaluation Team fully
evaluates all Veterans referred for contract care before a referral is
made. Atlanta also has an emergency department annex for mental health
needs--this annex is open 24 hours a day, 7 days a week.
Jackson
On March 18, 2013, the Office of Special Counsel (OSC) sent a
letter stating that OSC had found a pattern of issues at the Jackson VA
Medical Center that are indicative of poor management and failed
oversight. The letter cited five separate complaints received from
facility employees since 2009.
Three of the complaints concerned allegations relating to the
Sterile Processing Department. The letter alleged that poor
sterilization procedures existed; that VA made public statements
mischaracterizing previous investigative findings about the facility's
sterilization procedures; and that VA had failed to properly oversee
corrective measures within the Sterile Processing Department. The
letter also cited complaints alleging chronic understaffing of
physicians in primary care clinics; lack of proper certification for
nurse practitioners; improper nurse practitioner prescribing practices
for narcotics; and missed diagnoses and poor management by the
Radiology Department. All of these complaints were referred to VA for
investigation pursuant to 5 U.S.C. Sec. 1213. \13\
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\13\ Pursuant to 5 U.S.C. Sec. 1213, when the Special Counsel
determines that there is a substantial likelihood that the information
from a whistleblower discloses a violation of any law, rule, or
regulation, or gross mismanagement, gross waste of funds, abuse of
authority, or substantial and specific danger to public health and
safety, the Special Counsel transmits the relevant information to the
appropriate agency head and requires that the agency head conduct an
investigation with respect to the information and any related matters
transmitted by the Special Counsel to the agency head, and submit to
OSC a written report setting forth the findings of the agency head.
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At the time the March 18 letter was received, VA had already
investigated the three whistleblower allegations relating to the
Sterile Processing Department, responded to OSC, and taken actions in
response to these allegations. Jackson has implemented stringent
oversight processes to ensure reusable medical equipment is cleaned and
sterilized according to manufacturers' instructions before every use.
The hospital has also invested more than a million dollars into state-
of-the-art reprocessing equipment to ensure proper cleaning and
sterilization, and has transitioned to the use of more disposable
devices when those are available. After receiving the March 18th
letter, VA initiated a quality of care review of the sterile processing
services at the facility. The review found that the VAMC now utilizes
effective systemic processes to safely perform the re-processing of all
critical and semi-critical reusable medical equipment in the facility.
The other two complaints discussed in the March 18 OSC letter had
been referred to VA on February 29 and March 5. The February 2013
complaint involved the Primary Care Unit at the Jackson VAMC, and the
March 2013 complaint contained allegations concerning the accuracy of
certain interpretations by a VA radiologist who is no longer a VA
employee. In response to these OSC referrals, we appointed a review
team from outside the VISN to conduct a full investigation of the two
new cases.
VA's reports on these two investigations were delivered to OSC on
July 16 and July 29 and are currently under review by the Special
Counsel. The findings and recommendations from these reports have been
shared with the facility and the VISN, and efforts are underway to
implement all of the recommendations in the reports.
On May 24 and June 12, OSC referred two additional complaints to VA
for investigation. These referrals concerned pharmacy operations and
the credentialing and privileging processes at the Jackson VAMC. VA's
report on the credentialing and privileging matter was delivered to OSC
on August 15. The VAMC is revising its process to ensure it is
consistent with VHA policy. The Medical Center will ensure all members
of its Executive Committee of the Medical Staff have equal access to
review all credentialing and privileging folders prior to submitting
its recommendations to the Director for approval. The report concerning
pharmacy operations was delivered to OSC on August 27.
On April 3, 2013, VHA hosted a town hall meeting in downtown
Jackson. The Under Secretary for Health was among the speakers at the
meeting, which was attended by nearly 300 Veterans, facility staff
members, and other community partners. During the town hall meeting the
participants discussed many of the issues covered in the OSC letters
and other issues of concern to Veterans. The Medical Center Director
and other facility leaders maintain an open door policy for Veterans to
speak with them about their concerns, and the Director has personally
addressed the comments provided by them on comment cards at the town
hall meeting.
Since October 2011, Jackson has undergone 108 consultative program
reviews, site visits, and external surveys, including recent
unannounced visits from The Joint Commission, the IG, the OMI, and the
Occupational Safety and Health Administration. Recent recommendations
have been minor, and Jackson is accredited by all appropriate agencies,
including The Joint Commission.
Buffalo
On November 1, 2012, the Chief of Pharmacy at the VA Western New
York Health Care System's Buffalo VA Campus discovered a collection of
single-patient insulin pen injectors in the supply drawer of a
medication cart without patient labels affixed to them. This type of
insulin device was intended for individual patient use but was found to
have been used on multiple patients by some nurses. Once the insulin
pen misuse was detected, the facility removed all pens from usage on
inpatient units. The Medical Center leadership immediately began the
process to identify those Veterans admitted between October 19, 2010,
when insulin pens were put into use, and November 1, 2012. In addition
to this internal review, the facility convened a Root Cause Analysis to
thoroughly investigate this medication administration practice.
The practice at Buffalo had been for the pharmacy to issue these
pens to inpatient units at the facility, however, the pharmacy did not
label the pens with instructions to be used ``for individual patients
only'' prior to their distribution to the units. Nursing practice on
the units was to print and place individual patient labels on pens when
they were removed from the cart. According to an IG report on this
event, some nurses did not follow the intended practice and assumed
that the insulin pens operated the same as a multi-dose insulin vial,
changing needles between patients while using the same insulin pen.
This variation in usage was also identified by the facility's
leadership finding that deficiencies related to nursing education and
medication administration surveillance were specific to the usage of
the pen.
Inappropriately using single-patient use pens on multiple patients
carries the potential of blood borne pathogen exposure. VA's National
Center for Patient Safety (NCPS) reviewed the extent of the problem VA-
wide. This review noted the possibility that other VA medical centers
could have potential patients at risk from insulin pen injectors. A
review of system-wide data from fiscal year (FY) 2012 revealed that 90
percent of inpatient use of insulin pens across VA was concentrated in
5 VA medical centers, including VAWNYHS. Given the vulnerabilities
identified in the use of these devices, each of these VA medical
centers specifically reviewed their use of the insulin pens.
Eighty-two VA medical centers, accounting for the remaining 10
percent of inpatient use of insulin pens, had very low use in FY 2012
(average of 9 inpatients per VA Medical Center). A VA request for data
on January 9, 2013, reported no insulin pen events in these low use
facilities. In January 2013, the Buffalo facility identified at-risk
patients and began to notify 544 at-risk patients, consisting of those
who had inpatient stays and orders for subcutaneous insulin during the
two-year period the pens were in use. As of August 9, 2013, all
patients have been contacted with the exception of two who have not
responded to phone calls or mail. Veterans were informed of potential
misuse of the pens, and offered testing for blood borne pathogens, and
related care as needed. VA's Office of Public Health is conducting an
epidemiological study using advanced genetic testing to draw any
inferences about cause and effect.
As a result of the findings at the Buffalo VAMC, VA's NCPS
published a Patient Safety Alert on January 17, 2013, prohibiting the
use of multi-dose pen injectors, including insulin pens, on all VA
patient care units with a few specific exceptions. The Alert also
requires all facilities to update local policies regarding storage,
labeling, and education of staff for safe use, which Buffalo has done.
NCPS has communicated with the Food and Drug Administration to
investigate potential safety improvements in the design and labeling of
insulin pen injectors to ensure their safe use at all hospitals
throughout the United States.
The IG report related to insulin pen usage at Buffalo states that
the use of insulin pens on multiple patients was not a practice limited
to VA. The report states that in January 2013, a private sector New
York State hospital conducted an internal review in response to news
media coverage of the Buffalo VAMC incident and determined that they
may also have reused insulin pens. The private sector hospital
identified more than 1,900 patients who required notification regarding
potential exposure to blood borne pathogens.
Other patient safety organizations have since followed VA's lead.
After NCPS worked with officials from the Institute for Safe Medication
Practices \14\, on February 7, 2013, the Institute issued a
recommendation that all hospitals, public and private, discontinue the
usage of multi-dose insulin pens within inpatient settings.
Additionally, on March 25, the New York State Department of Health
released guidelines related to the safe usage of insulin pens to all
hospitals within the state.
---------------------------------------------------------------------------
\14\ The Institute for Safe Medication Practices is the nation's
only 501c (3) nonprofit organization devoted entirely to medication
error prevention and safe medication use. ISMP is certified as a
Patient Safety Organization by the Agency for Healthcare Research and
Quality.
---------------------------------------------------------------------------
Buffalo itself identified the issue, ensured that the inappropriate
practice was stopped immediately, performed its own investigation, and
took proactive steps to notify patients. All corrective steps based
upon the facility's own recommendation, and the IG's recommendations,
have been implemented. The Joint Commission conducted an out-of-cycle
quality management review in June, which confirmed that all corrective
actions related to insulin pen usage were taken and are in place.
Dallas
In response to congressional concerns regarding the operations and
management of the VA North Texas Health Care System (VANTHCS) in
Dallas, VA formed a review team comprised of senior leaders from
throughout the VA system to review the concerns.
The team conducted a site visit to the facility during the week of
July 15, 2013. They performed a review of the following areas:
organizational behavior, leadership, and communication at the facility;
the facility's quality management and patient safety programs; the
employee and staff work culture environment; and the facility's
clinical operations and patient outcome data. VHA will take any
appropriate actions based on the recommendations of the review team.
Before I close, Mr. Chairman, let me address the issues of
accountability and performance awards without going into any specific
cases. The responsibilities of Network Directors and Medical Center
Directors are vast and complex. No matter how well they do their jobs,
they are certain to face adverse events in their areas of
responsibility.
The performance of VA Senior Executives, including my own, is
measured against a stringent and standardized performance measurement
process. Both Network Directors and Medical Center Directors are
evaluated using predetermined criteria in an annual performance plan
contract. Performance awards are provided to senior leaders in response
to their accomplishments as measured against their established
performance contracts; their ability to lead change; and their impact
on the organization's overall performance.
Individuals at all levels of our system, to include leaders, are
empowered to take aggressive corrective actions that are necessary at
each facility. When adverse events occur, there are many ways to hold
people accountable, including removing the person from the position in
which they serve. I can ensure you we are holding the appropriate
people accountable as a result of management and oversight issues at
the facilities that are the subject of this hearing. Because this is an
open hearing, with members of the public present, by law I am not at
liberty to provide specifics about what has been done in individual
cases.
In fiscal year (FY) 2012, VHA treated 6.3 million unique patients
at our 152 hospitals, 821 community based clinics, and 300 Vet centers.
VHA had more than 700,000 Veterans admitted to our facilities as
inpatients in FY 2012 and 83.6 million outpatient visits occurred at
our hospitals and clinics.
The overwhelming majority of those visits were successfully
completed, and we know Veterans and their families were satisfied with
the outcomes as evidenced on our patient satisfaction surveys, which
consistently show that our patients experience a level of satisfaction
comparable to the private sector. The preponderance of evidence affirms
that at the system level, Veterans are being well-served through a
highly-effective integrated health care system that is administered by
a caring and effective workforce.
What I can commit to you today is that VHA will never be satisfied
when something--anything--goes wrong at one of our facilities, and the
issue is in any way remotely our fault. I am always deeply concerned,
as is my staff, whenever I learn of adverse events Veterans have
experienced as a result of medical or system errors.
We will continue to train all VHA employees in proper patient
safety techniques, and we will continue to investigate and make full
disclosures following any injury to a patient.
We will continue to build a health care environment in which staff
understands what constitutes an adverse event, and in which senior
leaders endorse a culture of safety; one in which staff feel safe to
report patient safety risks, and are empowered to make changes that
will prevent those events in the future. Such an environment is
characterized by increasing reporting and monitoring.
Finally, we will continue to identify, mitigate, and prevent
vulnerabilities within our health care system, wherever we find them.
And when adverse events do occur, we will identify them, learn from
them, and improve our systems to prevent these incidents from happening
again. This is commitment that requires constant vigilance, self-
reporting, openness, and accountability.
Mr. Chairman, this concludes my testimony. VA will continue to
ensure accountability and seek continuous improvement as it delivers
high quality health care to our Nation's Veterans. I appreciate the
Committee's continued interest in the health and welfare of America's
Veterans. At this time, my colleagues and I are prepared to answer your
questions.
Questions For The Record
Questions for the Record from the Honorable Jeff Miller, Chairman
1) During the field hearing, VA Under Secretary for Health Robert
Petzel testified that, ``I would agree that reviewing performance
awards is appropriate'' in response to a question I asked about the
need for a ``top to bottom'' review of VA's bonus system. When will
this ``top to bottom'' review begin? Who will be in charge of it? When
do you expect the review to be completed? Please provide the results of
the review to the Committee upon completion.
2) For months, VA has been telling the press and the public that
VISN 4 Director Michael Moreland's $63,000 bonus as part of the
Presidential Rank Award he accepted in April 2013 was under review.
When do you expect this review to be completed? Who has been in charge
of it? Please provide the results of the review to the Committee upon
completion.
3) For months, VA has been telling the press and the public that
fiscal 2012 performance awards for some senior executives in the
Pennsylvania and Southeast medical networks have been deferred pending
further review ``and are not being paid at this time.'' When do you
expect this review to be completed? Who has been in charge of it?
Please provide the results of the review to the Committee upon
completion.
Responses From: U.S. Department of Veterans Affairs, To: Chairman
Miller
1. During the field hearing, VA Under Secretary for Health Robert
Petzel testified that, ``I would agree that reviewing performance
awards is appropriate'' in response to a question I asked about the
need for a ``top to bottom'' review of VA's bonus system. When will
this ``top to bottom'' review begin? Who will be in charge of it? When
do you expect the review to be completed? Please provide the results of
the review to the Committee upon completion.
VA Response: The Department of Veterans Affairs (VA) acknowledges
the importance and significance of a comprehensive review of its
performance awards.
In April 2013, VA's Corporate Senior Executive Management Office
(CSEMO) completed an agency-wide review of VA's Senior Executive
Service (SES) performance management system as part of VA's request to
the Office of Personnel Management (OPM) for recertification. OPM's
certification criteria for SES performance management system includes a
review of all aspects of the system, including executive training,
alignment of expectations with the strategic plan, individual and
organizational performance measures, oversight, rating distinctions,
award differentiation, and transparency throughout the process. OPM,
with the concurrence of the Office of Management and Budget (OMB),
determined that VA's SES performance management system warranted full
certification, which was granted on May 6, 2013, and continues through
May 6, 2015.
VA is required to report annually to OPM about the application of
VA's SES performance management system. OPM annually reviews VA's
distribution of ratings and awards in an effort to ensure that VA is
making meaningful distinctions in ratings and providing awards that
reflect performance. The attached letter from Ms. Elaine Kaplan, Acting
OPM Director, transmits OPM's formal certification of VA's SES
performance management system.
2. For months, VA has been telling the press and the public that
VISN 4 Director Michael Moreland's $63,000 bonus as part of the
Presidential Rank Award he accepted in April 2013 was under review.
When do you expect this review to be completed? Who has been in charge
of it? Please provide the results of the review to the Committee upon
completion.
VA Response: VA has reviewed the process by which Mr. Michael
Moreland was nominated for the Presidential Rank Award. Prior to
submission, Mr. Moreland's nomination for the Presidential Rank Award
was reviewed by the VA Presidential Rank Award Review Committee and
then submitted by the Secretary of VA to OPM. At OPM,
Mr. Moreland's nomination was evaluated by a group of private
citizens prior to its recommendation to the White House. Mr. Moreland's
award was given prior to any awareness of the potential of preventable
legionella deaths in one of the hospitals Mr. Moreland oversaw as its
Veterans Integrated Service Network (VISN) Director.
3. For months, VA has been telling the press and the public that
fiscal 2012 performance awards for some senior executives in the
Pennsylvania and Southeast medical networks have been deferred pending
further review ``and are not being paid at this time.'' When do you
expect this review to be completed? Who has been in charge of it?
Please provide the results of the review to the Committee upon
completion.
VA Response: Reviews of deferred performance ratings for certain
VHA senior executives remain in process. Each affected SES employee is
entitled to due process including a full and transparent review of all
facts and circumstances regarding their performance. Furthermore,
because the reasons for each deferral are different, the length of the
review process can vary. VA will provide the Committee with additional
information after completion of this process.
Statement For The Record
Congressman Brian Higgins, NY-26
I want to thank you for holding this very important hearing, and I
commend the committee's commitment to making the health and safety for
our veterans a top priority.
The Veterans Health Administration is America's largest integrated
health care system with over 1,700 sites of care, serving 8.3 million
Veterans each year. Given the recent revelations of deaths and
infection disease outbreaks, it is incumbent on this committee and the
Congress en masse, to ensure that the VA has proper management and
accountability structures in place to stop the emerging pattern of
preventable patient-safety issues at VA medical centers across the
country.
As the committee is aware, at the VA facilities serving my
community - the VA Western New York Healthcare System - a series of
health safety issues have compounded to form a troubling pattern
incompetence and preventable bureaucratic inefficiency. From issues
surrounding the improper use of insulin pens, to the mismanagement of
Medical Records, to the improper staffing of the emergency department,
our veterans have been let down and their safety compromised. I
encourage the committee to continue to look into these events to ensure
they are never repeated.
Insulin Pen Misuse
On November 1, 2012 staff at WNYHCS discovered that insulin pens
intended for individual patient use were being incorrectly used for
multiple patients. In January 2013, the VA disclosed that between
October 19, 2010 and November 1, 2012, 716 patients at the Buffalo VA
Medical Center may have been exposed to HIV, hepatitis B or hepatitis C
because nurses and medical personnel improperly reused insulin pens on
multiple patients.
The insulin pen issue was investigated by the VISN 2 Network
Office, WHYHCS, and VA's Office of Inspector General. They found
multiple factors leading to the misuse of the pens including: lack of
stable nursing leadership during the time of implementation, lack of
training and education, length of time between training and actual
implementation, and absence of a warning placed on the insulin pens
themselves.
The VA Office of Inspector General Report (OIG) issued in May 2013
disclosed that twenty veterans treated at the Buffalo VA tested
positive for hepatitis, fourteen of which tested positive for hepatitis
B and six for hepatitis C.
Mismanagement of Records
Earlier this year, the Office of Special Counsel (OSC) investigated
whistleblower information about poor record keeping and serious
mishandling of medical records at both the Buffalo and Batavia VA
sites. In May 2013, the OSC issued a report finding that for at least
eight years, 20,000 to 30,000 medical files were randomly thrown in
boxes and not maintained in accordance with requirements for records
management, Social Security numbers were sometimes not properly
attributed to the correct veteran name or mislabeled entirely, mold
infested files were not handled properly to prevent further
contamination and to ensure their restoration, and on several instances
when veteran records were requested, rather than searching for
information, staff deemed the documents to be ``unavailable.''
Timeline:
January 17, 2012
The employees initially report to the Director of VA Health Care
Upstate New York that During a record retirement project they found
five boxes contaminated with mold and were ordered the workers to put
the moldy files in new boxes and ship them to a storage facility in
Missouri - a violation of agency rules.
January 27, 2012
The Director instructed the facility's Associate Medical Director
to review the claims and he reports back that his review ``did not
substantiate any of the concerns''
February 8, 2012
The employees turned whistleblowers met with the Associate Medical
Director to reiterate their complaint about the records at Batavia
May 1, 2012
the whistleblowers file a complaint with the Office of Special
Counsel and they notify Secretary Shinseki
September 6, 2012
The VA releases the findings from their investigation confirming
the majority of the employees' concerns
February 4, 2013
the VA asserts that corrective actions related to the
recommendations were completed
Investigation:
The internal VA investigation unveiled systemic problems with
record-keeping in Buffalo and Batavia that would have affected not only
the records of hospital patients, but also veterans who visited VA
facilities for outpatient services. The VA's response showcased a
complete lack of accountability. The OSC contacted the VA to determine
whether any disciplinary action was taken as result of the
investigation and the VA General Counsel responded that individuals
received ``written counseling'' to ensure they understood the severity
of the findings of the report, and were provided a point of contact for
future guidance. The Associate Medical Director who did the initial
check after the whistleblowers complained to him and concluded in his
review that it ``did not substantiate any of their concerns'' was not
disciplined but credited for his role with responding quickly,
providing appropriate oversight and fully cooperating.
Improper Staffing in Emergency Department
On April 26, 2011, the OIG's Hotline Division received an anonymous
complaint regarding quality of care and physician staffing in the
Emergency Department (ED). Specifically, a complainant alleged that the
facility appointed an ED physician who was considered ``unsafe,'' and,
following the physician's first ED shift, three patients treated by
this physician required return visits to the ED. Further, the number of
physicians has been insufficient to staff the ED since November 2010,
resulting in ``long shifts'' and impacting patient care.
A Feb 2012 VA OIG report found that the Emergency Department at the
Buffalo VA has been understaffed since at least November 2010,
resulting in questionable appointment decisions by facility managers,
as well as quality of care concerns. The OIG also found that facility
managers had previously identified quality of care concerns with the
physician, yet they had not taken appropriate corrective actions in
response to these concerns, as required by VHA policy.
VA Responses
In response to the respective issues the Department of Veterans
Affairs initiated reviews of the practices at the Buffalo VA Medical
Center. These reviews and subsequent reports revealed several layers of
systemic inefficiencies and proposed numerous recommendations to
address them. The VA concurred with the recommendations and committed
to conduct further reviews of policies and procedures to ensure
inappropriate actions are prevented in the future. With the insulin pen
issue the VA responded that all recommendations by OIG have been
complied with as of May 31, 2013. With the medical records the VA
responded that as of February 4, 2013 all required actions for WNYHCS
Buffalo have been completed and additional records management training
for all file room and medical center leadership have been completed.
With regard to the understaffing of the emergency division, The VISN
and Interim Facility Directors concurred with the findings and
recommendations and provided an acceptable action plan.
In dealing with these issues I have had several discussions with
the leadership at the Department of Veterans Affairs, and recently
Undersecretary for Health Robert A. Petzel, walked me through the
reforms implemented at the VA Western New York Health System in
response to these incidents. Though most of these reforms have been
implemented or are being implemented, one of Congress' most important
roles is to conduct oversight. It behooves us to aggressively conduct
this role to ensure that reforms are implemented on time and system
wide, assuring the public that these incidents will never occur again.
I want to thank the committee again for holding this important
hearing and I appreciate the opportunity to testify on this important
issue.
Submission For The Record
THE VETERANS HEALTH ADMINISTRATION (VHA)
Report to the Office of Special Counsel (OSC)
OSC File Number Dl-12-3816
G.V. (Sonny) Montgomery Department of Veterans Affairs (VA) Medical
Center
Jackson, MS
Report Date: June 21 , 2013
Any information in this report that is the subject of the Privacy
Act of 1974 and/or the Health Insurance Portability and Accountability
Act of 1996 may only be disclosed as authorized by those statutes. Any
unauthorized disclosure of confidential information is subject to the
criminal penalty provisions of those statutes.
Executive Summary
Summary of Allegations
At the direction of the Secretary, the Under Secretary for Health
requested that the Office of the Deputy Under Secretary for Health for
Operations and Management send a team of subject matter experts to
investigate a complaint filed with the Office of Special Counsel (OSC)
by Dr. Phyllis Hollenbeck, a primary care physician and Whistleblower,
at the G.V. (Sonny) Montgomery Department of Veterans Affairs (VA)
Medical Center in Jackson, Mississippi (hereafter, the Medical Center).
Dr. Hollenbeck asserts that employees are, or have, engaged in
misconduct that may constitute a violation of law, rule, or regulation,
gross mismanagement, and abuse of authority that may create a
substantial and specific danger to public health and safety at the
Medical Center. The Whistleblower alleged, in brief, that:
The Medical Center did not have a sufficient number of.
physicians in the Primary Care Unit (PCU), resulting in failure to
provide adequate care for patients and proper supervision of Nurse
Practitioners (NP), who provide the majority of patient care services
(Allegation #1 );
Inadequate physician staffing levels resulted in failure
to properly supervise NPs, which violates state licensure agreements,
resulting in NPs practicing without proper certification (Allegation
#2);
Inadequate physician staffing levels resulted in numerous
fraudulently completed Centers for Medicare and Medicaid Services (CMS)
home health certifications/forms for patients (Allegation #3); and
Narcotics were improperly prescribed, e.g., physicians
prescribe narcotics for patients they had not treated (Allegation #4 ).
The investigative review team conducted a site visit at the Medical
Center from April 15, 2013, through April19, 2013, and reviewed
submitted documents; a second site visit was conducted by select team
members on May 7 and May 8, 2013 to obtain and review additional
staffing-related documents.
Conclusions for Allegations #1 and #2
Due to the complexities and interconnectedness of allegations #1
and #2, the team elected to investigate and dissect the two allegations
concomitantly, including the findings and recommendations for both.
The review team substantiates that the Medical Center
does not have a sufficient number of physicians in the PCU and NPs have
not had appropriate supervision/collaboration with Physician
Collaborators.
The review team did not substantiate that inadequate care was
provided (even with the noted scheduling problems). It is the
professional expert opinion of the review team that there are enough
problematic indicators present to suggest there may be quality of care
issues that require further review. Although the review team found that
all NPs have requisite certifications and licenses, NPs in the PCU were
erroneously declared as Licensed Independent Practitioners (LIP), and
the required monitoring of their practice did not consistently occur
resulting in NPs practicing outside the scope of their licensure.
The Medical Center's policy permitting NPs to practice as
LIPs when that practice is not authorized by their individual state
Practice Acts violates VHA policy. Only the two NPs licensed in Iowa
are allowed to practice as LIPs.
Granting NPs clinical privileges when they are not LIPs
violates VHA policy. Only the two Primary Care NPs licensed in Iowa are
allowed to be granted clinical privileges; all others must have a scope
of practice.
There is a lack of understanding among Medical Center
leadership regarding NP practice and licensure requirements. This is
evident by the fact that leadership erroneously declared NPs as LIPs
and granted clinical privileges, yet they have also stipulated that NPs
must have collaborative agreements per individual state licensing board
requirements. This is further confounded by the fact that, despite
requiring collaborative agreements (which is the correct approach),
leadership has not implemented a process for ensuring all required
collaborative agreements are in place, and the appropriate monitoring
of NP practice by Physician Collaborators occurs.
Ten of the 13 NPs currently practicing at the Medical
Center and whose licenses require collaborative agreements have an
approved collaborative agreement in place.
Many, if not most, of the Primary Care NPs have not
complied with state licensing board requirements for ensuring their
practice is appropriately monitored by their Physician Collaborators,
such as chart reviews and face-to-face meetings with the Physician
Collaborator. In addition, the Medical Center has no process in place
to ensure monitoring requirements are met.
State requirements vary as to the appropriate ratio
between NPs and a Physician Collaborator. Some states set no MD-to-NP
ratio requirement. Others establish a ratio of 1 :3, 1 :4, or more.
There should be a reasonable limit to the number of NPs per Physician
Collaborator to ensure appropriate medical direction and supervision by
the Physician Collaborator is provided, consistent with the terms of
the collaborative agreements. We are aware that in March 2013, the
Mississippi Board of Medical Licensure amended Rule 1.3 of Chapter 1 of
Part 2630 of the Mississippi Administrative Code to state, in relevant
part: ``Any one Physician should have no more than four collaborative
agreements.'' [See Mississippi Administrative Code, Part 2630, Chapter
1, Rule 1.3], Requirements for collaborating physicians, which states:
``Physicians are prohibited from entering into primary collaborative
agreements with more than four Advanced Practice Registered Nurses at
any one time unless a waiver is expressly granted by the Board for that
particular collaborative agreement.'' According to a notice on the
Board of Medical Licensure's Web site, implementation of the amendment
is suspended until July 31 , 2013. The consensus among team members is
that the ratio should be limited to four or five NPs to one Physician
Collaborator. Clearly, the one Medical Center Physician Collaborator,
who has 14 current collaborative agreements, is in violation of this
state requirement.
All Medical Center PCU NPs currently have the required
state NP licenses and national NP certifications.
There was no evidence to indicate that the former Chief
of Staff, Dr. Kent Kirchner, had 160 collaborative agreements, as
alleged by the Whistleblower. The review team found evidence that Dr.
Kirchner had only four collaborative agreements with Primary Care NPs
during the review period of 2010 to present.
The Medical Center PCU has an insufficient number of
physicians.
The NPs in the PCU have panel sizes that generally exceed
VHA guidelines.
Clinical quality data, available Ongoing Professional
Practice Evaluation data, and the fact that only one provider has been
reported to the National Practitioner Data Bank since October 1, 2010,
for either a tort claim settlement or an adverse action against
clinical privileges relating to the quality of care, are indicators
that the Medical Center PCU staff is providing quality care. However,
the following additional problematic indicators led the review team to
conclude further review of the following needs to be conducted in order
to explicitly declare that appropriate and adequate high quality care
has been provided in the Medical Center PCU:
I Insufficient physician staffing;
I Sporadic tenure of Locum Tenens physicians;
I NPs functioning as LIPs, when in fact they are not;
I Failure to appropriately monitor the clinical practice of NPs;
I Lack of timely response by providers to Computerized Patient
Record System View Alerts;
I Multiple patient appointment scheduling problems (e.g., double
books, Vesting Clinic/Ghost Clinic); and
I Large volume of patient complaints regarding access to, and
timeliness of, care
The Medical Center NPs appear to be appropriately
identifying themselves as NPs to their patients.
In summary, the team substantiates the Medical Center does not have
a sufficient number of physicians, and NPs have not had appropriate
supervision and collaboration with Physician Collaborators. The team
did not substantiate that inadequate care was provided even with the
noted scheduling problems. However, there are enough problematic
indicators present to suggest there may be quality of care issues that
require further review. Although the team found that all NPs currently
have requisite NP certifications and licenses, NPs in the PCU have been
erroneously declared as LIPs, and the required monitoring of their
practice has not consistently occurred. NPs were potentially practicing
outside the scope of their licensure and not appropriately monitored by
Physician Collaborators.
Recommendations for Allegations #1 and #2
The Medical Center leadership must immediately correct
the erroneous declaration that all NPs will practice as LIPs.
Medical staff bylaws must be amended to indicate that NPs
are considered LIPs only when their state licensure permits or VA
policy changes occur.
The Medical Center leadership must immediately implement
scopes of practice versus clinical privileges for NPs, who are not
permitted to practice as LIPs.
The Medical Center leadership must immediately ensure
that all NPs who require collaborative agreements, in fact have them,
and that they are approved by the NP's respective state licensing
board.
The Medical Center leadership should ensure the equitable
distribution of collaborative agreements among physicians, and a
reasonable limitation should be placed on the number of collaborative
agreements for any one physician. If a state's Nursing Practice Act
establishes a limitation on the number of collaborative agreements that
a collaborating supervising physician may have with an NP at any one
time, then the Medical Center needs to comply with such requirements.
The Medical Center leadership should eliminate use of
Locum Tenens physicians in the PCU to the extent possible.
Locum Tenens physicians should not be allowed to be
Physician Collaborators because of their short tenure.
The Medical Center leadership must immediately implement
a process to ensure that appropriate monitoring of NP practice by
Physician Collaborators occurs and is documented in accordance with
state licensure requirements.
The Medical Center leadership must continue to
aggressively work to hire permanent full-time physicians for the PCU to
obtain an NP:MD ratio of 1:1. Once an adequate number of physicians is
hired, the facility should reduce panel sizes for NPs to meet Veterans
Health Administration (VHA) guidelines.
The Medical Center leadership should consult the Office
of Workforce Management and Consulting in VA Central Office to ensure
they are utilizing all available resources to recruit primary care
physicians.
The Medical Center leadership should eliminate the use of
Ghost Clinics. All clinics must have an assigned provider.
The Medical Center leadership should eliminate the use of
overbooked and double-booked appointments to the extent possible. The
Medical Center leadership needs to implement the principles of open
access scheduling, which means patients receive care when and where
they want or need, including on the same day if so requested.
The Medical Center must convert six-part credentialing
and privileging folders to the electronic VetPro system, as required by
VHA leadership.
Veterans Integrated Service Network (VISN) 16 leadership
should arrange for an external clinical quality review of all primary
care at the Medical Center, particularly in light of the evidence that
electronic View Alerts were often not being reviewed by physicians in a
timely fashion, and NPs were practicing outside the scope of their
licensure. The Medical Center should conduct a clinical care review of
a representative sample of the patient care records for all 42 NPs, as
well as all physicians, who worked in the PCU from January 1, 201 0, to
present. The VISN should work with facility leadership to determine the
sample size needed to ensure that the quality of care delivered by all
of these providers was appropriate. If any clinical care issues are
identified, the facility should consider expanding the sample. Specific
cases involving unresolved questions as to quality of care should be
referred to the Office of the Medical Inspector for further
investigation.
VISN 16 leadership should actively assist the Medical
Center to implement these recommendations (and any others it deems
necessary to ensure quality care is consistently rendered and available
to PCU patients) through an approved action plan; and be responsible
for submitting the action plan to the Under Secretary for Health along
with periodic status reports (through to completion of all items).
VHA should consider issuing an Information Letter (IL) to
reinforce across the system the need for compliance with both NP state
licensure requirements and with national policies on NP credentialing,
privileging, and scopes of practice. Such guidance should identify
Regional Counsel as an important resource for the facilities as they
review program compliance requirements.
Allegation #3: Inadequate Staffing Results in the Improper Completion
of Medicare Home Health Certificates/Forms
Conclusion for Allegation #3
The team cannot substantiate the allegation that CMS home health
certificates/forms are/were completed inappropriately and in violation
of Federal law because the Medical Center's PCU staff has not followed
statutory and regulatory requirements of the Medicare home health
program. However, the team cannot rule out that the allegation may have
some merit given the noted statements of interviewees and the team's
substantiation of allegations related to the lack of supervision of NPs
and the lack of necessary collaborative agreements between
collaborating physicians and the NPs.
Recommendation for Allegation #3
To determine whether Medicare home health certification forms are/
were being appropriately completed by the PCU providers, VHA should
task the appropriate VHA offices, e.g., the VHA Office of Compliance
and Business Integrity and the Office of Patient Care Services, Home
Health Program, to work together to conduct a random check of Medical
Center PCU patient charts to determine if any Medicare forms are
present, and if so, whether they were completed appropriately. Such
findings need to be reported to the VHA Under Secretary for Health, who
will then need to consider if any follow-up action is necessitated.
Additionally, facility leadership should consider development of a
training and educational module for completion of these forms to ensure
PCU and other staff are aware of Medicare compliance requirements.
Allegation #4: Facility Uses Improper Procedures for Issuing Narcotics
Prescriptions
The team fully substantiates the allegation that past Medical
Center management advised its NPs, most of whom are licensed in
Mississippi, that they did not need to obtain individual (Drug
Enforcement Administration (DEA) registration or file it with the
Mississippi Board of Nursing (BON), since they could rely on the
institutional registration with a suffix. Further. the team found that
the allegation that NPs in the PCU, including ``grandfathered'' NPs,
were allowed to write narcotics prescriptions under the facility's
institutional DEA registration number, which is in violation of Federal
and State law.
Conclusions for Allegation #4
Medical Center leadership was under the impression that
all providers were allowed to use the institution's generic DEA number,
as long as the provider was working within the scope of a VA provider.
In fact, as explained above, as a matter of Federal law and VA policy,
where a practitioner's state of licensure requires individual DEA
certification in order to be authorized to prescribe controlled
substances, the practitioner may not be granted prescriptive authority
for controlled substances without such individual DEA certification.
Thus, with respect to NPs whose state of licensure required individual
DEA certification to prescribe controlled substances, we substantiated
the Whistleblower's allegations that the Medical Center's practice
violated Federal law and VA policy.
As of the writing of this report, all NPs are licensed as
an NP in a state and are certified nationally as an adult or family
practice NP, including the two NPs still at the Medical Center, who
were originally grandfathered in from the NP licensure requirement.
Grandfathered in NPs are not exempt from meeting any additional
requirements by their state of licensure for obtaining prescriptive
authority for controlled substances.
When management was made aware that not all NPs were
authorized by their license to write prescriptions for controlled
substances, they took immediate action to stop the practice and
attempted to put the prescribing back in the hands of staff physicians.
The team confirmed that some, but not all, staff physicians agreed to
renew prescriptions based on a records review alone; thus, we
substantiated the whistleblower's allegations.
When management learned that this practice was also
improper because a face-to-face physician/patient encounter was
required, they created the Locum Tenens clinic as a stop gap measure.
Patients were physically seen by these physicians, and prescriptions
written appropriately. These clinics continued until the NPs obtained
their own DEA certificates. Current prescribing practices comply with
Federal law and VHA policy.
Recommendations for Allegation #4
The three NPs who have not yet received their individual
DEA certificates should be encouraged to obtain them as soon as
possible. Until that time, the NPs should not write prescriptions for
controlled substances, and should rely on the collaborating physicians
to write these prescriptions, as necessary.
The NP functional statement, qualification standards, and
dimensions of practice of the facility must be revised to be consistent
with national policy per VA Handbook 5005, Appendix G6.
The facility must complete a clinical care review of a
random sample of the patient care records for the NPs who were
prescribing controlled substances, outside of the authority granted by
their license. This review should focus on patients who were actually
prescribed controlled substances. A sample of at least 10 percent
should be completed. If any clinical issues are identified, the review
should be expanded.
Facility policies and bylaws concerning the practice of
NPs should be updated, to reflect VA national policies and the
licensure and DEA requirements for this profession. Functional
statements should be updated to reflect all current regulations.
Summary Conclusion
In conclusion, the team determined that certain Federal laws and
regulations, as well as state laws, may have been violated. These are
outlined in detail in the report. Additionally, the team determined
that due to mismanagement, both VA and VHA policy may not have been
followed , specifically credentialing and privileging and VHA
outpatient scheduling processes and procedures. While no changes in
agency rules, regulations, or practices should be taken as a result of
this investigation, the fact-finding team made a number of
recommendations for the Medical Center to adhere to/or enforce current
rules, regulations, practices, and policies, as noted in the report and
summarized in this Executive Summary. There was no evidence of abuse of
authority; however, the team found potential liability from failure to
follow VHA policies and procedures, specifically related to the PCU and
physician oversight. Recommendations are made to ensure clinical
reviews are conducted by VISN 16, which oversees the Medical Center to
ensure the PCU complies with all applicable laws and VHA policies to
maintain a high quality, safe health care environment for patient care.
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Attachment C
Memorandum
Subject
Revised Policy Regarding the Federal Government
Practitioners Program (FED DOC)
(DFN: 601-04)
Date
JUL 31, 2012
To
Special Agents in Charge
Assistant Special Agents in Charge
Diversion Program Managers
Diversion Group Supervisors
From
Joseph T. Rannazzisi
Deputy Assistant Administrator
Office of Diversion Control
The purpose of this memorandum is to clarify the Office of
Diversion Control's (OD) policy regarding the Drug Enforcement
Administration (DEA) Federal Government Practitioners Program (FED
DOC). FED DOC practitioners are individuals who are direct hire
employees of a Federal government agency (not contract practitioners)
and are eligible for a fee exemption as set forth in 21 Code of Federal
Regulations (C.F.R.) 1301.21 (a)(2). DEA has a longstanding
policy regarding FED DOC practitioners that permits a DEA registration
be issued to the practitioner in one state as long as that person
maintains a valid professional license in any state. This memorandum
reaffirms the FED DOC policy providing the following criteria are met:
The FEDDOC practitioner's registered business address
must be the official place of business.
A FEDDOC registration can only be used for official
duties on behalf of the Federal agency.
Whenever a FED DOC practitioner changes his or her
official place of business, he or she must request a modification of
registration pursuant to 21 C.F.R. 1301.51, to reflect the
location at which he or she is currently practicing.
A FEDDOC practitioner must maintain a valid and current
professional license. If the practitioner holds a professional license
in a state that requires two licenses, then the practitioner must keep
both licenses active and current only if the registered address is in
the same state as the licenses, in order to be in compliance with that
state.
The following Federal agencies are current participants in DEA 's
FED DOC Program:
BOP - Bureau of Prisons
CDC - Centers for Disease Control and Prevention
DHS - Department of Homeland Security
DOJ - Department of Justice
FAA - Federal Aviation Administration
FDA - Food and Drug Administration
HHS - Health and Human Services
IHS - Indian Health Services
NASA - National Aeronautics and Space Administration
NCI - National Cancer Institute
NIH - National Institutes of Health
NIMH - National Institute of Mental Health
NOAA - National Oceanic and Atmospheric Administration
PHS - Public Health Services
USDA - United States Department of Agriculture
USPS - Unites States Postal Service
VA - Department of Veterans Affairs
U.S. Capitol Physician's Office
White House
If a FED DOC practitioner wants to maintain a separate DEA
registration for a private practice, which would include prescribing
for private patients, he or she must be fully licensed to handle
controlled substances by the state in which he or she is located
pursuant to 21 C.F.R. J 306.03(a). Under these circumstances,
a FED DOC practitioner is not eligible for the fee exemption under 21
C.F.R. 1301.2J(a)(2), to conduct his or her private practice
and must pay DEA's registration fee.
Any questions regarding the FED DOC Program may be addressed to the
Registration and Program Support Section at (202) 307-7994.
The NP functional statement, qualification standards, and
dimensions of practice of the facility must be revised to be consistent
with national policy per VA Handbook 5005 appendix G6.
The Medical Center must complete a clinical care review
of a random sample of patient care records for the NPs, who were
prescribing controlled substances outside of the authority granted by
their license. This review should focus on patients who were actually
prescribed controlled substances. If any clinical issues are
identified, the review should be expanded.
Facility policies and bylaws concerning the practice of NPs should
be updated, to reflect VA national policies and the licensure and DEA
requirements for this profession. Functional statements should be
updated to reflect all current regulations.
VI. A listing of any violation or apparent violation of any law, rule,
or regulation
The team substantiated that former Medical Center leadership
directed NPs to practice under clinical privileges as LIPs, without
regard to VHA policy or whether they were licensed as independent
practitioners; did not ensure that the clinical practice of NPs was
appropriately monitored by either their Physician Collaborators or
through credentialing and privileging processes; and directed NPs to
prescribe controlled substances using the institutional DEA
registration with suffix, without regard to whether they were granted
such prescriptive authority by their licenses or were required by their
licensing board to prescribe under individual Federal DEA registration.
The team also substantiated that Medical Center leadership requested
PCP physicians to write controlled substances prescriptions for
patients of the NPs based on a records review alone, without first
conducting a face-to-face patient examination, under the belief that
they were ``covering physicians,'' and that some PCP physicians did so.
These facility policies and practices violated the following Federal
laws, rules, regulations and VA policies, as well as state licensing
rules and regulations for collaborative agreements and controlled
substances prescribing:
The Controlled Substances Act, 21 U.S. C.
823(f) (DEA registration requirements);
DEA regulations, 21 CFR 1306.03(a)(1)-(2)
(Persons entitled to issue prescriptions);
VA Handbook 5005, Part II, Appendix G6/27 (March 17,
2009), Nurse Qualification Standard VHA Handbook 1100.19, Credentialing
and Privileging;
VHA Directive 2008-049, Establishing Medication
Prescribing Authority for Advanced Practice Nurses (August 22, 2008);
VHA Directive 2012-030, Credentialing of Health Care
Professionals;
VHA Directive 2010-027, VHA Outpatient Scheduling
Processes and Procedures (2010);
VHA Updated Bylaws Template; and
State licensing laws relating to collaborative agreements
and controlled substances prescribing authority.
VII. Description of Any Actions to be Taken as a Result of the
Investigation
No changes in national agency rules, regulations, or practices will
be taken as a result of this investigation. Substantiation of the
Whistleblower's allegations uniformly stem from the Medical Center's
institutional failure to adhere to/or enforce current Federal laws and
VA rules, regulations, and policies, as noted throughout the report.
However, the team found that the facility's new leadership had taken
some corrective measures to remedy past practices and prevent them from
recurring. Leadership, under whom the noted non-compliant practices
occurred, had already left the facility, and in some cases, the
Department. VHA will be responsible for ensuring the facility completes
the following recommended actions:
Medical Center leadership must immediately correct the
erroneous declaration that all NPs will practice as LIPs.
Medical staff bylaws must be amended to indicate that NPs
are considered LIPs only when their state licensure permits.
Medical Center leadership must immediately implement
scopes of practice versus clinical privileges for NPs, who are not
permitted to practice as LIPs.
Medical Center leadership must immediately ensure that
all NPs, who require collaborative agreements, in fact have them, and
that they are approved by the NP's respective state licensing board.
Medical Center leadership should ensure the equitable
distribution of collaborative agreements among physicians, and a
reasonable limitation should be placed on the number of collaborative
agreements for any one physician. If a state's Nursing Practice Act
establishes a limitation on the number of collaborative agreements that
a collaborating supervising physician may have with an NP at any one
time, then the Medical Center needs to comply with such requirements.
Medical Center leadership should eliminate use of Locum
Tenens physicians in the PCU to the extent possible.
Locum Tenens physicians should not be Physician
Collaborators because of their short tenure.
Medical Center leadership must immediately implement a
process to ensure that appropriate monitoring of NP practice by
Physician Collaborators occurs and is documented in accordance with
state licensure requirements.
Medical Center leadership must continue to aggressively
work to hire permanent full-time physicians for the PCU, to obtain an
NP:MD ratio of 1:1. Once an adequate number of physicians are hired,
the Medical Center should reduce panel sizes for NPs to meet VHA
guidelines.
Medical Center leadership should consult the Office of
Workforce Management and Consulting in VA Central Office to ensure they
are utilizing all available resources to recruit primary care
physicians.
Medical Center leadership should eliminate the use of
Ghost Clinics. All clinics must have an assigned provider.
Medical Center leadership should eliminate the use of
overbooked and double booked appointments to the extent possible. The
Medical Center needs to implement the principles of open access
scheduling, which means patients receive care when and where they want
or need it, including on the same day, if requested.
The Medical Center must convert six-part credentialing
and privileging folders to the electronic VetPro system, as required by
VHA leadership.
VISN 16 leadership should arrange for an external
clinical quality review of all primary care delivered at the Medical
Center, particularly in light of the evidence that electronic View
Alerts are often not being reviewed by physicians in a timely fashion
and NPs were practicing outside the scope of their licensure. The
Medical Center should conduct a clinical care review of a
representative sample of the patient care records for all 42 NPs, as
well as all physicians, who worked in the PCU from January 1, 2010, to
present. The VISN should work with Medical Center leadership to
determine the sample size needed to ensure that the quality of care
delivered by all these providers was appropriate. If any clinical care
issues are identified, the facility should consider expanding the
sample. Specific cases involving unresolved questions as to quality of
care should be referred to the Office of the Medical Inspector for
further investigation.
VISN 16 leadership should actively assist the Medical
Center to implement these recommendations (and any others it deems
necessary to ensure quality care is consistently rendered and available
to PCU patients) through an approved action plan; and be responsible
for submitting the action plan to the Under Secretary for Health along
with periodic status reports (through to completion of all items).
VHA should consider issuing an IL to reinforce across the
system the need for compliance with both NP state licensure
requirements and with national policies on NP credentialing,
privileging, and scopes of practice. Such guidance should identify
Regional Counsels as an important resource for the facilities as they
review program compliance requirements.
To determine whether Medicare home health certification/
forms are/were being appropriately completed by the PCU providers, VHA
should task the appropriate VHA offices, e.g., the VHA Office of
Business Compliance and Integrity and the Office of Patient Care
Services, Home Health Program, to work together to conduct a random
check of PCU patient charts to determine if any Medicare forms are
present. and if so, whether they were completed appropriately. Such
findings need to be reported to the Under Secretary for Health, who
will then need to consider if any follow-up action is necessitated.
Additionally, facility leadership should consider development of a
training and educational module for completion of these forms to ensure
PCU and other staff are aware of CMS compliance requirements.
The three NPs who have not yet received their individual
DEA certificates should be encouraged to obtain these as soon as
possible. Until that time, they are not writing for controlled
substances. and are relying on the collaborating physicians to write
for prescriptions as necessary.
The NP functional statement, qualification standards and
dimensions of practice of the facility must be revised to be consistent
with national policy per VA Handbook 5005 appendix G6.
The facility must complete a clinical care review of a
random sample of the patient care records for the NPs who were
prescribing controlled substances, outside of the authority granted by
their license. This review should focus on patients who actually were
prescribed controlled substances. If any clinical issues are identified
the review should be expanded.
Facility policies and bylaws concerning the practice of
NPs should be updated, to reflect VA national policies and the
licensure and DEA requirements for this profession. Functional
Statements should be updated to reflect all current regulations.