What Does Shulkin’s Firing Mean for the VA?

David Shulkin MD, Secretary for Veterans Affairs (VA), was finally fired by President Donald Trump ending long speculation (1). Trump nominated his personal physician, Ronny Jackson MD, to fill Shulkin’s post. The day after his firing, Shulkin criticized his firing in a NY Times op-ed claiming pro-privatization factions within the Trump administration led to his ouster (2). “They saw me as an obstacle to privatization who had to be removed,” Dr. Shulkin wrote. “That is because I am convinced that privatization is a political issue aimed at rewarding select people and companies with profits, even if it undermines care for veterans.”

Former Secretary Shulkin’s tenure at the VA has had several controversies. First, as undersecretary of Veterans Healthcare and later as secretary money appropriated to the VA to obtain private care under the Veterans Access, Choice, and Accountability Acts of 2014 and the VA Choice and Quality Employment Act of 2017 appears to have been largely squandered on administrative salaries and expenses rather than hiring healthcare providers to shorten VA wait times (3). Second, Shulkin took a trip with his wife to Europe eventually ending up at Wimbledon to watch tennis (4). The purpose of his trip was ostensibly to attend a London Summit with senior officials from the United States, the United Kingdom, Canada, Australia, and New Zealand to discuss topical issues related to veterans. Although the summit occurred over 2 1/2 days, Shulkin and his wife traveled for 11 days at the taxpayer expense including a side trip to Denmark.

“The private sector, already struggling to provide adequate access to care in many communities, is ill-prepared to handle the number and complexity of patients that would come from closing or downsizing V.A. hospitals and clinics, particularly when it involves the mental health needs of people scarred by the horrors of war,” Dr. Shulkin wrote (2). “Working with community providers to adequately ensure that veterans’ needs are met is a good practice. But privatization leading to the dismantling of the department’s extensive health care system is a terrible idea.” Going on Shulkin states that, “Unfortunately, the department [VA] has become entangled in a brutal power struggle, with some political appointees choosing to promote their agendas instead of what’s best for veterans … These individuals, who seek to privatize veteran health care as an alternative to government-run VA care, unfortunately fail to engage in realistic plans regarding who will care for the more than 9 million veterans who rely on the department for life-sustaining care.”

However, the VA for many years has engaged in a relentless expansion of administration at the expense of healthcare. In the absence of sufficient oversight, Shulkin and VA Central Office did little to curb this trend (3).

Assuming he is confirmed, what will Ronny Jackson, Shulkin’s replacement, do? It seems likely that he will do exactly what Shulkin alleges and Trump apparently wants, i.e., privatize VA healthcare. Whether Jackson will be able to bend the large VA bureaucracy towards privatization is another matter given his lack of healthcare administrative experience. Shulkin may also be right that privatization may only reward select people and companies with profits rather than improving veterans’ care. Regardless, healthcare is more expensive than not delivering healthcare, so the price will probably rise. Time will tell, but something needs to be done. To paraphrase former VA undersecretary Ken Kizer, it is time for another “Prescription for Change” at the VA. 

Richard A. Robbins, MD*

Editor, SWJPCC

References

1. Rein L, Rucker P, Wax-Thibodeaux E, Dawsey J.  Trump taps his doctor to replace Shulkin at VA, choosing personal chemistry over traditional qualifications. Washington Post. March 29, 2018. Available at: https://www.washingtonpost.com/world/national-security/trump-ousts-veterans-affairs-chief-david-shulkin-in-administrations-latest-shake-up/2018/03/28/3c1da57e-2794-11e8-b79d-f3d931db7f68_story.html?utm_term=.7bcfe44b4ff6 (accessed 3-30-18).
2. Shulkin DA. Privatizing the V.A. will hurt veterans. NY Times. March 28, 2018. https://www.nytimes.com/2018/03/28/opinion/shulkin-veterans-affairs-privatization.html (accessed 3-30-18).
3. US Government Accountability Office. Better data and evaluation could help improve physician staffing, recruitment, and retention strategies. GAO-18-124. October 19, 2017. https://www.gao.gov/products/GAO-18-124 (accessed 3-30-18).
4. VA Office of Inspector General. Administrative investigation: VA secretary and delegation travel to Europe. Report No. 17-05909-106. February 14, 2018. Available at: https://www.va.gov/oig/pubs/VAOIG-17-05909-106.pdf (accessed 3-30-18).

*Dr. Robbins has received compensation for providing healthcare to veterans under the VA Choice Act.

Cite as: Robbins RA. What does Shulkin's firing mean for the VA? Southwest J Pulm Crit Care. 2018;16(3):172-3. doi: https://doi.org/10.13175/swjpcc052-18 PDF 

State of the VA

Earlier this week, President Obama gave his last State of the Union Address. Although this usually is a speech giving the President the opportunity of flaunt his accomplishments, no mention was made of the VA (1). Given the troubles at the VA, there seems little to tout.

Over 70% of the VA medical centers were discovered to have falsified wait times (2). Because of the wait scandal, VA Secretary Eric Shinseki resigned and VA undersecretary, Robert Petzel MD, retired under pressure. Ironically, Shinseki, a retired Army general and member of the Joint Chiefs of Staff, was viewed in a favorable light by the current administration because of a spat with the Bush administration's Secretary of Defense, Donald Rumsfeld, over the number of troops needed to secure Iran and Afghanistan (3). However, during Shinseki's tenure the number of VA "medical troops", doctors and nurses, was insufficient to care for the number of veterans. It is unclear if the new secretary, Bob McDonald, has done much to correct the problem.

Locally, the director of the Phoenix VA regional office, Susan Bowers, retired under pressure and former Phoenix VA Director Sharon Helman was fired (4). However, Helman was allowed to keep her bonus for the falsely reported shorter wait times and is appealing her firing. Her deputies, Lance Robinson and Brad Curry, were placed on administrative leave, but after over a year and a half have recently returned to work in the Phoenix VA regional office. Darren Deering DO, the Phoenix chief of staff, underwent a VA internal investigation because of retaliating against one of the Phoenix VA whistleblowers, Katherine Mitchell MD. Disciplinary action was recommended but no action was taken. In October 2015, the IG released a new report citing critical staffing shortages at the Phoenix VA.

Earlier this week the Senate Veterans Affairs Committee approved the nomination of Washington lawyer Michael Missal as the new permanent Department of Veterans Affairs inspector general (VAIG) (5). Lawmakers from both parties have sought a permanent VAIG for over 2 years. The chairman of the Senate veterans panel, Republican Sen. Johnny Isakson of Georgia, says the top priority of the inspector general must be to "hold bad actors at the VA accountable" for chronic delays for veterans seeking medical care and other problems at the agency.

If confirmed by the full Senate which is expected, Missal might be busy. Whether Isakson is serious or this is more political posturing is unclear. Rather than a few “bad actors” the wait scandal suggests that fraud, waste and abuse are common, perhaps even rampant, within the VA. Rather than being held “accountable”, the bad actors are more often protected and even rewarded by VA Central Office. Although Veterans and the public might be optimistic, it is likely that they will be disappointed by Missal, as they have by VAIGs and others charged with VA oversight in the past.

Richard A. Robbins, MD*

Editor, SWJPCC

References

1. Graf N. Veterans' affairs left out of State of the Union; Phoenix VA whistleblower disappointed in speech. ABC15 Arizona. January 13, 2016. Available at: http://www.abc15.com/news/region-phoenix-metro/central-phoenix/veterans-affairs-left-out-of-state-of-the-union-phoenix-va-whistleblower-disappointed-in-speech (accessed 1/15/16).
2. Klimas J. Huge backlog: 70 percent of VA facilities used alternative waitlists. Washington Times. June 9, 2014. Available at: http://www.washingtontimes.com/news/2014/jun/9/audit-more-57000-await-initial-va-visits/?page=all (accessed 1/15/16).
3. DeFrank T. How Donald Rumsfeld complicated Eric Shinseki’s last administration exit. National Journal. May 31, 2014. Available at: http://www.nationaljournal.com/white-house/2014/05/31/how-donald-rumsfeld-complicated-eric-shinsekis-last-administration-exit (accessed 1/15/16).
4. Arizona Republic. VA in crisis: the Republic investigation. Available at: http://www.azcentral.com/investigations/vahealthsystem/ (accessed 1/15/16).
5. Daly M. Senate panel backs lawyer Missal as VA watchdog. Washington Post. January 12, 2016. Available at: https://www.washingtonpost.com/politics/whitehouse/senate-panel-backs-lawyer-missal-as-va-watchdog/2016/01/12/d13db550-b96d-11e5-85cd-5ad59bc19432_story.html (accessed 1/15/16).

*The opinions expressed are those of the author and not necessarily the opinions of the Arizona, New Mexico, Colorado or California Thoracic Socities or the Mayo Clinic.

Cite as: Robbins RA. State of the VA. Southwest J Pulm Crit Care. 2016;12(1):28-9. doi: http://dx.doi.org/10.13175/swjpcc008-16 PDF

HIPAA-Protecting Patient Confidentiality or Covering Something Else?

A case of a physician fired from the Veterans Administration (VA) for violation of the Health Care Portability and Accountability Act of 1996 (HIPAA) illustrates a problem with both the law and the VA. Anil Parikh, a VA physician at the Jesse Brown VA in Chicago, was dismissed on a charge of making unauthorized disclosures of confidential patient information on October 19, 2007.  On January 3, 2011 the Merit Systems Protection Board (MSPB) reversed Dr. Parikh’s removal.

Dr. Parikh's initially made disclosures to the VA Office of Inspector General and to Senator Barack Obama and Congressman Luis Gutierrez, in whose district the Jesse Brown VA lies.  Dr. Parikh alleged that there were systematic problems within the Jesse Brown VA that resulted in untimely and inadequate patient care. The confidential patient information Parikh disclosed included examples of the misdiagnoses and misdirection of patients within the hospital. Specifically, Dr. Parikh alleged that a physician failed to diagnose a patient’s rectal abscess and sent him home rather than refer him for proper surgical treatment. Two patients who should have been accepted in the emergency room were improperly directed to the urgent care area. One of these patients who should have been admitted to the intensive care unit was improperly placed on the general medical floor, resulting in the eventual deterioration of his condition to the point where he required intubation. Parikh later testified that he made these disclosures out of concern for patient health and safety.

The IG referred the matter to Mr. James Jones, director of the Jesse Brown VA for investigation. Mr. Jones assigned Dr. Jeffrey Ryan, Associate Chief of Staff, to investigate the allegations. Dr. Ryan concluded that there was no evidence of mismanagement or misdiagnosis and the IG closed their case. Dr. Parikh then disclosed the information to Denise Mercherson, his own attorney; Dr. Fred Zar, the director of the internal medicine residency program at Loyola, the American College of Graduate and Medical Education (ACGME) and other members of Congress serving on Congressional VA oversight committees. After these disclosures, Parikh was fired by Mr. Jones.

After exhausting his appeals to be reinstated with the VA Office of Special Counsel, Parikh filed an individual right of action (IRA) with the MSPB contending that his disclosures were protected under the Whistleblower Protection Act (WPA), and that the VA removed him based on those protected disclosures. The administrative judge hearing the case found that Parikh failed to establish MSPB jurisdiction over his appeal because “he failed to make a nonfrivolous allegation that any of his disclosures were protected under the WPA”.  Parikh then filed a petition for review by the full board, and the MSPB reversed the initial decision.  The issue for MSPB was whether Parikh's disclosures were protected under the WPA. Although the administrative judge initially hearing the case found that Parikh failed to establish that he reasonably believed these disclosures were evidence of a substantial and specific danger to public health or safety, the full MSPB disagreed. They found that the nature of the harm that could result from patient care and management issues that Parikh disclosed was "severe” that could result in patient death.

The VA argued that Parikh's disclosures were prohibited under HIPPA. According to Lisa Yee and Timothy Morgan, lawyers for the Chicago VA General Counsel, Parikh's disclosures were not covered by the WPA because the WPA and the Privacy Act of 1974 excludes disclosures prohibited by law. The VA also argued that Dr. Parikh's disclosures were prohibited by HIPAA. The MSPB had little trouble rejecting both these arguments, finding that one of the exceptions is a disclosure to a Congressional committee. The VA lastly argued that Dr. Parikh's disclosures were prohibited by VA policy since the VA had not approved disclosure of the information. However, the MSPB found that the VA's policy in question was not a "substantive" rule, but merely a reference to the HIPPA and the Privacy Act. The MSPB found that the disclosures were a factor to his removal and ordered him reinstated with back pay.

Physicians considering a career with the VA should carefully examine this case. The MSPB concluded that the VA retaliated against Dr. Parikh, not for disclosing confidential patient information, but whistleblowing. After over 3 years, Dr. Parikh has his job back but his work situation is probably not “friendly”. And what has become of the VA administrators and their lawyers who violated WPA by retaliating against Dr. Parikh-to my knowledge, nothing.

The adversarial relationship between the VA administrators and physicians appears to be a one-way street. A physician can have their career destroyed by the VA, but if the accusations are unjustified, there are no consequences to the accusers. On the other hand, physicians that voice concerns for patient care and safety can have their professional reputation ruined by the VA. Particularly concerning is the misuse of HIPAA by VA attorneys as a weapon against physicians.

Dr. Parikh’s case would not appear to be an isolated event. A quick review of the news reveals a VA nurse in Albuquerque was charged with sedition for criticism of the Bush administration’s handling of hurricane Katrina and Iraq (2).  In Phoenix a VA physician was fired after forwarding an e-mail from a Senator John McCain staffer suggesting physicians go to a McCain political rally and lobby for a new VA research building (3). The Phoenix VA chief of hematology/oncology resigned after his name was placed in the National Practioner Databank; an action he felt was unjustified (4). Most recently the Phoenix VA public relations director was demoted after giving unfavorable testimony about VA administrators (5). If the VA is having trouble recruiting as their recent TV advertising suggests, they might consider a different approach. A good start would be the use of HIPAA to protect patient confidentiality rather than cover something else.

Richard A. Robbins, MD

Editor

References

1. US Merit System Protection Board. 2011 MSPB 1. Docket No. CH-1221-08-0352-B-2. Available at: http://www.mspb.gov/. Accessed 9/10/13. 
2. Dees DE. VA nurse in New Mexico accused of sedition. Mother Jones. 2006. Available at: http://www.motherjones.com/mojo/2006/02/va-nurse-new-mexico-accused-sedition. Accessed 9/10/13. 
3. Franklin RE. VA doc fired for political email. Arizona Star. 2011. Available at: http://azstarnet.com/news/local/va-doc-fired-for-political-email/article_3e353bbf-b04a-52ff-8a9c-6cb49e78a47a.html. Accessed  9/10/13.
4. Robbins RA. Profiles in medical courage: Thomas Kummet and the courage to fight burearcracy. Southwest J Pulm Crit Care. 2013;6(1):29-35.
5. Wagner D. VA official in Arizona demoted after her testimony. Arizona Republic. Available at http://www.azcentral.com/news/arizona/articles/20130314va-official-arizona-pedene-demoted-after-testimony.html  accessed 9/10/13.

Reference as: Robbins RA. HIPAA-protecting patient confidentiality or covering something else? Southwest J Pulm Crit Care. 2013;7(4):236-8. doi: http://dx.doi.org/10.13175/swjpcc128-13 PDF