A Tale of Two News Reports

On Wednesday, February 25, 2015 two new stories aired, one on National Public Radio (NPR) that I heard riding home that afternoon and the other later in the evening on the CBS Evening News with Scott Pelley. Both stories were on the Department of Veterans Affairs (VA) but I was struck by the contrasting style of the two reports.

The first story was an NPR report on back injuries in nurses (1). According to the report nurses suffer more back injuries than almost any other occupation — and they get those injuries mainly from doing the everyday tasks of lifting and moving patients. The report stated that the VA has invested over $200 million in protecting nurses predominately by providing lifts and other devices for moving patients. VA hospitals across the country have reduced nursing injuries from moving patients by an average of 40 percent since the program started. The reduction at the Loma Linda hospital where the report was focused was closer to 30 percent — but the injuries that employees suffered were less serious than they used to be. Loma Linda spent almost $1 million during a recent four-year period just to hire replacements for employees who got hurt so badly they had to go home. However, this past year they spent nothing because according to the report nobody got hurt badly enough to miss work.

The VA's reputation for accurate information has been called into question. The Phoenix VA was the ground zero of an investigation which eventually discovered that about 70% of VA hospitals were falsifying patient waiting reports (2). Perhaps everything in this NPR report is true, however, the NPR report reminded me of so many I heard over the past two decades where any medical report was accepted by the media at face value. Many of the reports I knew were not true because I worked at the VA. There are several reasons to be skeptical. First, it is from the VA. Second, the director of the Loma Linda VA was Donald F. Moore until late 2012. Prior to that position Moore had been the director of the Phoenix VA. Third, the reported drop in injuries borders on the unbelievable. Nursing supervisors likely need to get approval to replace injured nurses.  Perhaps a directive either not to report any back injuries or that approval of replacement nurses would not be granted was issued. There are many ways to falsify the data, but NPR was nonquestioning in their report.

Later that evening CBS Evening News correspondent Wyatt Andrews reported that he found widespread mismanagement of VA claims. The mismanagement resulted in veterans being denied the benefits they earned, and many even dying before they get an answer from the VA (3). Five whistleblowers at the Oakland, California, Veterans Benefits office told CBS News that more than 13,000 claims filed between 1996 and 2009 ended up stashed in a file cabinet and ignored until 2012. VA supervisors in Oakland ordered marking the claims "no action necessary" and to toss them aside. Whistleblowers said that was illegal. Last week, the VA inspector general confirmed that because of, "poor record keeping" In Oakland, "veterans did not receive... benefits to which they may have been entitled." How many veterans is not known, because thousands of records were missing when inspectors arrived. In the last year, the inspector general has found serious issues in at least six VA benefits offices, including unprocessed claims in Philadelphia, 9,500 records sitting on employees' desks in Baltimore and computer manipulation in Houston to make claims look completed when they were not. VA Central Office said in a statement, "..electronic claims processing [has] transformed mail management for compensation claims ... greatly minimizing any risk of delays due to lost or misplaced mail...For any deficiencies identified, steps are taken to appropriately process the documents and correct any deficiencies." Much of this sounded very familiar and similar to the patient wait times the VA falsified last year.

The CBS report closed with a statement from the Veterans service organization Veteran Warriors, which advocates for veterans who are having difficulty with their claims. The Veteran Warriors said in a statement: "Too many cases have come to light, wherein the VA leaders have destroyed, deleted, hidden and manipulated veterans claims - their very access to benefits and services - and NOT ONE OF THEM has been criminally charged. It is time for our nations' leaders to stop listening to the endless "lip service" of accountability and demand answers. If they do not get them, it is time for repercussions to be felt by those who obviously believe they are above the law and insulated from prosecution." It was clear that the Veteran Warriors did not believe the VA and also clear that neither did CBS News.

The weak reporting on medical issues has been apparent to me for some time. The CBS report suggests that this may be changing. The VA scandal may point out that medical reports need to questioned just like other news stories. Truthfulness does matter and the VA continually blaming clerks and other lower level employees for administrative inadequacies or attacking the whistleblower has become tedious. Even the present inspector general's report blamed the closing of the Veterans claims on "poor record keeping". In this instance CBS news was doing their job questioning the VA but NPR was not.

Richard A. Robbins, MD

Editor

SWJPCC

References

1. Zwerdling D. At VA hospitals, training and technology reduce nurses' injuries. NPR. February 25, 2015. Available at: http://www.npr.org/2015/02/25/387298633/at-va-hospitals-training-and-technology-reduce-nurses-injuries (accessed 3/7/15).
2. Robbins RA. A veterans day editorial: change at the VA? Southwest J Pulm Crit Care. 2014;9(5):281-3. [CrossRef]
3. CBS News. Whistleblowers: Veterans cheated out of benefits. February 25, 2015. Available at: http://www.cbsnews.com/news/veteran-benefits-administration-mismanagement-uncovered-in-investigation/ (accessed 3/7/15).

Reference as: Robbins RA. A tale of two news reports. Southwest J Pulm Crit Care. 2015;10(3):143-4. doi: http://dx.doi.org/10.13175/swjpcc038-15 PDF

A Veterans Day Editorial: Change at the VA?

"Meet the new boss,

Same as the old boss.

Won't Get Fooled Again!"

            -Peter Townshend

Today we honor our veterans. A year ago VA patients languished on waiting lists waiting for healthcare. VA administrators hid the truth at over 100 VAs and took bonuses for meeting their wait time goals. Money has been poured into the VA, patients in rural areas are seen outside the VA, and it is now supposedly easier to fire other senior VA officials. Dennis Wagner authored an article in the Arizona Republic that claimed the VA has made some changes but more changes are needed (1). I agree with the need for change but would argue that there has been no real change at the VA.

Last week I saw a VA patient in my private practice. He was paying for tiotropium or Spiriva®, a long-acting anticholinergic used in chronic obstructive pulmonary disease, out of his pocket. He was under the impression that the VA did not "carry" tiotropium. I told him that this was not true and that he should go to the VA and ask to be seen in pulmonary clinic if his primary care physician could not prescribe tiotropium. He was sent to the pharmacy where the pharmacist wanted to know why I would prescribe this expensive drug. He was sent back to my office for a response. I xeroxed a copy of my notes and gave them to the patient. I do not know whether he got the tiotropium but my guess is that probably not without some hassle. This is unchanged from prior to the scandal when patient care was undermined by healthcare support staff. No real change there.

Last night, the new Secretary of the VA, Robert McDonald, was on "60 Minutes" (2). He announced that he is "reorganizing" the VA. Although details were not stated, this sounded mostly like a consolidation of websites, not a bad thing, but hardly a "reorganization". He also said how sorry he was for past mistakes and how the new VA was going to do better. I had déjà vu going back to the mid 90's with Ken Kaiser's "Prescription for Change" (3). Eric Shinseki, the VA secretary recently forced to resign, used similar rhetoric and was "mad as hell" at the falsified wait lists (4). No real change there.

McDonald used the term "customers" to refer to VA patients (2). This has occurred off and on since the mid 90's and is a term some healthcare providers find offensive. We do not flip burgers at McDonald's and find it inappropriate and offensive to equate healthcare professionals with businessmen selling Charmin, Luvs, Pampers, Gillette razors, Covergirl makeup, etc. No real change there.

Earlier this week, the VA named a new director at the Phoenix VA, ground zero of the VA scandal (5). He is the former director of the Milwaukee VA and director of the VA's Rocky Mountain regional network, apparently coaxed out of retirement to serve for about a year as director at the troubled medical center. He replaces two directors who served a matter of months. While director at the Rocky Mountain VA region he named Cynthia McCormack, former chief of nursing at the Phoenix VA, as director of the Cheyenne VA (6). Cheyenne was second only to Phoenix in having the widespread falsification of wait times discovered. Sharon Helman, the Phoenix VA director sits at home suspended while collecting a paycheck but McCormack appears to continue to direct the Cheyenne VA. No real change there.

Although a handful of administrators have been fired by the VA, the data falsification was rampant, with most VAs apparently falsifying their records (2). Yet these administrators retain their jobs and continue to rule their healthcare empires. McDonald claimed that names had been turned over to the Department of Justice (DOJ), but the DOJ declined to prosecute, and that administrative law judges were blocking the firing of administrators (2). No real change there.

The VA still functions with a lack of oversight. Congressmen make statements and issue press releases when politically convenient. The VA office of inspector general (VAOIG) still does investigations in response to whistle-blowers. After turning over their findings to VA central office to water down, the VAOIG usually makes some recommendations that are quickly accepted but not acted on by the VA (7). No real change there.

Lastly, there is the popular media. For years we heard about Ken Kizer's "Prescription for Change" and the miracle of the transformation to the VA (3,8). This infuriated many of us who knew it was not true (9). We wondered why the press was so accepting of the claims. They certainly are not on other political issues. However, in this case Dennis Wagner of the Arizona Republic, CNN and several other news sources stayed with the story and ferreted out the truth. Real change there. Hopefully, news media with continue their investigative reporting and question VA officials when they put forth self-serving data that is difficult to believe. This is my hope and may be the only result of the VA scandal that will force change. Hopefully the media "won't get fooled again".

Richard A. Robbins, MD

Editor

Southwest Journal of Pulmonary and Critical Care

References

1. Wagner D. Much change in wake of VA scandal; more needed. Arizona Republic. November 8, 2014. Available at: http://www.azcentral.com/story/news/arizona/investigations/2014/11/08/phoenix-va-scandal-changes/18716281/.
2. 60 Minutes. Robert McDonald: cleaning up the VA. Aired November 9, 2014. Available at: http://www.cbsnews.com/news/robert-mcdonald-cleaning-up-the-veterans-affairs-hospitals/.
3. Kizer KW. Prescription for change. March 22, 1995. Available at: http://www.va.gov/HEALTHPOLICYPLANNING/rxweb.pdf
4. Cohen T, Frates C. Shinseki 'mad as hell' about VA allegations, but won't resign. CNN. May 23, 2014. Available at: http://www.cnn.com/2014/05/15/politics/va-scandal-eric-shinseki-preview/.
5. Wagner D. VA names new director for Phoenix medical center. Arizona Republic. November 4, 2014. Available at: http://www.azcentral.com/story/news/politics/2014/11/04/phoenix-veterans-affairs-medical-center-interim-director-brk/18467665/.
6. Cheyenne VA Medical Center. Leadership team: Cynthia McCormack. Available at: http://www.cheyenne.va.gov/about/leadership.asp.
7. Robbins RA. A failure of oversight at the VA. Southwest J Pulm Crit Care. 2014;9(3):179-82. [CrossRef]
8. Jha AK, Perlin JB, Kizer KW, Dudley RA. Effect of the transformation of the Veterans Affairs Health Care System on the quality of care. N Engl J Med. 2003;348(22):2218-27. [CrossRef] [Pubmed]
9. Robbins RA, Klotz SA. Quality of care in U.S. hospitals. N Engl J Med. 2005;353(17):1860-1. [CrossRef] [PubMed] 

Reference as: Robbins RA. A veterans day editorial: change at the VA? Southwest J Pulm Crit Care. 2014;9(5):281-3. doi: http://dx.doi.org/10.13175/swjpcc150-14 PDF

A Failure of Oversight at the VA

On September 8, 2014 the Washington Examiner reported that the Central Office of the VA was allowed to change language in the VA Office of Inspector General (VAOIG) report on delays in patient care at the Phoenix VA Medical Center (1). Crucial language that the VAOIG could not “conclusively” prove that delays in care caused patient deaths at a Phoenix hospital was added to its final report after a draft version was sent to agency administrators for comment. Rep. Jeff Miller, chairman of the House veterans' committee, said "there are significant differences between the final IG report and the draft version ...". The following day Richard Griffin, the acting VAOIG, vigorously defended the independence of his office and bristled at the allegations that the VA was allowed to alter his office's report. However, his denials and indignance seem disingenuous.

To understand why, we need to go back a few years. First, the Phoenix VA overspent its Fee Basis consult budget in 2010. This is the money budgeted to send patients outside the VA for care. To do this a request was filled out and reviewed. Although the Chief of Staff often reviews these requests, this responsibility was delegated to the associate chief of staff for ambulatory care, Keith Piatt. He nearly always approved these requests. Dr. Piatt had other duties including patient care and limited expertise in several of the areas he was requested to evaluate. Furthermore, poor accounting made if unclear if there was sufficient money to pay for these consults. However, rather than questioning why so many patients were outsourced, the VAOIG blamed the problem on the inadequacy of Dr. Piatt's reviews (2). Given this recent IG investigation, it is not surprising that the Phoenix VA administrators were reluctant to outsource patients.

Second, Sam Foote, the initial whistleblower at the Phoenix VA contacted VAOIG in October, 2013. However, according to Foote the VAOIG did not seem to take his allegations seriously, and did what appears to be a superficial investigation (1). So Foote went to the House Committee on Veterans Affairs this past February. Only after the scandal was made public did the VAOIG acknowledge the inadequate care at the Phoenix VA.

Third, the VA prematurely made press releases prior to the release of the VAOIG's final report attempting to exonerate their responsibility (1,3). The final VAOIG report, apparently altered by the VA, was "unable to conclusively assert that the absence of timely quality care caused the deaths of these veterans.” Although this would hardly seem to be an exoneration, media outlets widely reported that whistle-blower allegations were exaggerated and that veterans were not severely affected by wrongdoing at the Phoenix VA medical center. However, in several instances it would seem likely that delayed care contributed to premature patient deaths and would was questioned in a Senate hearing on September 10, 2014 (3).

Fourth, VAOIG investigators corroborated virtually every major allegation of wrongdoing submitted by the first whistle-blower, Dr. Sam Foote (3). Nevertheless, the report and congressional briefing papers contain passages that appear to criticize Foote and his credibility, emphasizing that "the whistle-blower did not provide us with a list of 40 patient names" referring to VA patients Foote said died while awaiting care in Phoenix. This passage was apparently added by VA Central Office. Foote said the portion of the report about him is "false and misleading" because he and other whistle-blowers provided 24 names to inspectors and explained where to identify16 more. The VA report acknowledged that Foote had supplied at least 17 names and that others could not be traced because documentation had been destroyed by VA employees. Rather than defending their indefensible actions, VA Central Office has apparently resorted to denial, indignance, and blaming the whistleblower.

Fifth, the VA continues to obfuscate and obstruct investigations. According to the VAOIG, managers at 13 VA facilities lied to investigators about scheduling problems and other issues and officials at 42 of the 93 sites engaged in manipulation of scheduling, including 19 sites where appointments were cancelled and then rescheduled for the same day to meet on-time performance goals (4). However, it remains unclear whether officials at the Phoenix and Cheyenne VAs have been fired or even suspended. Citing privacy issues, the VA has refused to comment. However, in 2011, Jack Bagdade, a Phoenix VA physician, was fired for violation of the Hatch Act (5). His firing was widely publicized locally. Bagdade was lobbying Senator John McCain for a new research building at the Phoenix VA. Bagdade forwarded an e-mail from McCain's office entitled "Drink Beer for John McCain". If Bagdade's termination for forwarding an e-mail was appropriate punishment (and I am certainly not saying that it was), then what is appropriate punishment for VA administrators who knowingly manipulated patient appointments for their own personal gain, altered records and then lied to investigators?

Several of the VA administrators involved are also licensed physicians and nurses. However, both the Arizona Board of Medical Examiners and Arizona Board of Nursing have been strangely silent. Altering medical records and then lying about it would seem to be a clear violation of the Arizona statues.

Congress also has to accept some responsibility for their lack of oversight. The problem of inadequate numbers of physicians has been known for years (6). Recently appointed VA Secretary, Robert McDonald, pointed out that the Phoenix VA has now hired 53 additional full-time employees in recent months to help alleviate the appointment backlog (4). He did not mention how many of these employees are physicians nor did he mention how many of the patients were outsourced. However, it seems likely that the hires were merely new administrative personnel to outsource the care of patients. One senior VA official who asked not to be identified said that morale at the VA is poor and doubted that the VA will be able to fill the multiple physician vacancies commenting "Who would want to work here?".

Congress passing a bill to make it easier to fire senior VA administrators suggests they realize there is a problem. However, the legislation still leaves the control of the money up to the very people who misspent it bringing about the present crises. It is also unclear who will do the firing. To date no administrators have been fired despite the law supposedly making this easier. It seems unlikely that any VA administrators are going to fire their colleagues for doing what they are probably also doing or know about. "One of the chief lessons of the VA scandal is that we cannot rely on VA, alone, to effectively identify and correct problems plaguing the department," said Rep. Jeff Miller, chairman of the house veterans' committee. "Oversight and feedback from outside stakeholders is crucial to ensuring VA delivers the benefits and services our veterans have earned." (7). I agree. However, it is doubtful based on their lack of action that either the VAOIG or VA Central Office will take any substantive action to hold those accountable for this scandal and its cover-up.  A reasonable solution is to establish a system for local oversight by physicians, nurses and patients (8). Rep. Miller is right, we cannot rely on the VA to fix this problem and oversight is crucial.

Richard A. Robbins, MD*

Editor

References

1. Taupin M. IG let veterans affairs officials alter report to absolve agency in phoenix deaths. Washington Examiner. September 8, 2014. Available at: http://washingtonexaminer.com/ig-let-veterans-affairs-officials-alter-report-to-absolve-agency-in-deaths/article/2553035 (accessed 9/10/14).
2. VA Office of Inspector General. Review of Alleged Mismanagement of Non-VA Fee Care Funds at the Phoenix VA Health Care System. November 8, 2011. Available at: http://www.va.gov/oig/pubs/VAOIG-11-02280-23.pdf (accessed 9/10/14).
3. Wagner D. Critics: VA influenced Inspector General to change Phoenix report for spin-control. Arizona Republic. September 10, 2014. Available at: http://www.azcentral.com/story/news/politics/investigations/2014/09/10/report-phoenix-va-deaths-raises-questions/15375005/ (accessed 9/10/14).
4. Daly M. Watchdog: VA managers lied to investigators about delays. Associated Press. September 9, 2014. Available at: http://www.azcentral.com/story/news/nation/politics/2014/09/09/watchdog-va-managers-lied-delays/15334159/ (accessed 9/10/14).
5. Kujz S. Valley doctor loses job over invitation to have beer with Arizona senator. ABC News. March 25, 2011. Available at: http://www.abc15.com/news/region-phoenix-metro/central-phoenix/valley-doctor-loses-job-over-invitation-to-have-beer-with-arizona-senator (accessed 9/10/14).
6. Robbins RA. VA administrators gaming the system. Southwest J Pulm Crit Care 2012;4:149-54. Available at: http://www.swjpcc.com/editorial/2012/5/5/va-administrators-gaming-the-system.html (accessed 9/10/14).
7. Jordan B. Congressman takes va oversight on the road. Military.com news. August 12, 2014. Available at: http://www.military.com/daily-news/2014/08/12/congressman-takes-va-oversight-on-the-road.html (accessed 9/10/14).
8. Robbins RA. VA administrators breathe a sigh of relief. Southwest J Pulm Crit Care. 2014;8(6):336-9. [CrossRef] 

*The views expressed are those of the author and do not necessarily represent the views of the Arizona, New Mexico, Colorado or California Thoracic Societies or the Mayo Clinic.

Reference as: Robbins RA. A failure of oversight at the VA. Southwest J Pulm Crit Care. 2014;9(3):179-82. doi: http://dx.doi.org/10.13175/swjpcc119-14 PDF

VA Administrators Breathe a Sigh of Relief

On May 30, Eric Shinseki, the Secretary for Veterans Affairs (VA), resigned under pressure amidst a growing scandal regarding falsification of patient wait times at nearly 40 VA medical centers. Before leaving office Shinseki fired Sharon Helman, the former hospital director at the Phoenix VA, where the story first broke, along with her deputy and another unnamed administrator. In addition, Susan Bowers, director of VA Veterans Integrated Service Network (VISN) 18 and Helman’s boss, resigned. Robert Petzel, undersecretary for the Veterans Health Administration (VHA, head of the VA hospitals and clinics), had resigned earlier. You could hear the sigh of relief from the VA administrators.

With their bosses resigning left and right, the VA leadership in shambles and the reputation of the VA  soiled for many years to come, why are the VA administrators relieved? The simple answer is that nothing has really changed. There for a moment it looked like real reform might happen. Even President Obama in announcing Shinseki's resignation said the "There is a need for a change in culture..." (1). Shinseki’s resignation would indicate that any action to change the culture is unlikely. Sure a few administrators, like Helman, will lose their jobs, perhaps a few patients will get outsourced to private practioners, but nothing is being done or proposed to change the VA culture. A new interim VA secretary was named and his tenure is likely to be lengthy since no confirmation appears to go unchallenged in the US Congress, and who would want the job?

I was at the VA, when then undersecretary for VHA, Kenneth Kizer, made the fundamental change that resulted in the present mess. Kizer had come to the VA with a program he called the “prescription for change” (2). Indeed, Kizer made several changes but the one that really counted was that the chiefs of staff, doctors who ran the medical services in VA hospitals, were replaced by the head of the Medical Administration Service, usually a business person. This made the VA director the monarch over their own little kingdom, and we all know “it’s good to be the king”. Furthermore, we all know that power corrupts and now with absolute power, the VA director was absolutely corrupted. The hospital directors eliminated any sources of potential opposition. Physicians who did not “play ball” could suddenly find themselves as a target of an investigation (3). After being found guilty by a kangaroo court, their names would be turned over to the National Practioner Databank as bad doctors making it difficult to find a job outside the VA. Those cooperative physicians were rewarded, often for limiting the care of patients. In other words, putting the VA administrators’ interests before the patients’ (4). Lastly, the long-standing relationship with the Nation’s medical schools was destroyed (remember VA dean’s hospitals?). It was argued that the medical schools used the VA to serve their needs. Although this had some truth, it is part of the two-way street that makes cooperation possible. No VA administrator wanted a bunch of doctors and academics telling them what to do.

After eliminating any possible oversight from the physicians or the medical schools, an insulating administrative layer had to be placed between the hospitals and VA central office. Therefore, the Veterans Integrated Service Networks or VISNs, were created. Although ostensibly to improve oversight and efficiency (2), only in Washington would they believe that another layer of bureaucracy would do either. As more and more patients were packed into the system, the numbers of physicians and nurses decreased (5). Not surprisingly, wait times became longer and there was no alternative but to hide the truth. The administrators, the VISNs and VA Central office were all complicit in these lies. Their bonuses depended on it and even when it was discovered by the VA Office of Inspector General (VAOIG) nothing was done.

Congress, who supposedly also provides oversight, was swift to propose action that does not change the VA culture and accomplish little. In this election year Congressional cries to throw those VA bums out have been consistent and loud. However, plenty of clues were available to know that the wait time data was false. First, the concept that you can cut the numbers of physicians and nurses and improve wait times defies common sense. Second, the VAOIG had repeatedly reported that wait times were being falsified. Helman had already been accused of this when she was the director at the Spokane VA (6). This week the Senate passed a bill allowing veterans to see private doctors outside the VA system if they experience long wait times or live more than 40 miles from a VA facility; make it easier to fire VA officials; construct 26 new VA medical facilities and use $500 million in unobligated VA funds to hire additional VA doctors and nurses (7). The VA already is able to do the first two, and as the present crisis illustrates, funds can be diverted away from healthcare. It seems likely this is exactly what will happen unless additional oversight is provided.

Kizer and Ashish Jha authored an editorial on this crisis in the New England Journal of Medicine this week (8). They made three recommendations:

1. The VA should refocus on fewer measures that directly address what is most important to veteran patients and clinicians-especially outcome measures.
2. Some of the resources supporting the central and network office bureaucracies could be redirected to bolster the number of caregivers.
3. The VA needs to engage more with health care organizations and the general public.

All these recommendations are reasonable. Outcome measures, not process of care, should be measured (9). Paying bonuses to administrators for clinicians completing these process of care measures should stop. Many of these measures serve mostly to increase administrative bonuses and not improve patient care. By giving administrators supervisory authority over physicians, healthcare providers were forced to complete a seemingly endless checklists rather than serve the patients' interests.

Bureaucracies should be reduced. VA's central-office staff has grown from about 800 in the late 1990s to nearly 11,000 in 2012 (8). VISN offices have reflected this growth with over 4500 employees in 2012 (10). This diversion of funds away from healthcare is the source of the present problem.

The VA needs to re-engage with the medical schools and with its patients. Reestablishment of the Dean's Committee or other similar system that provides oversight of the VA hospital directors and administrators may be one method of achieving this oversight. The association of the medical schools with the VA served the VA well from the Second World War until the 1990s (11).

Poor pay and micromanagement of physicians to perform meaningless metrics makes primary care onerous. Appropriating funds might improve the salary discrepancy between the VA and the private sector but will not fix the micromanagement problem. The VA may find it difficult to recruit the needed physicians and nurses unless a more friendly work environment is created. How do we know that any appropriated money will be spent on healthcare providers and infrastructure unless additional oversight is put in place? Without oversight the VA positions will become VA vacancies and the VA hospitals will become administrative palaces. Local oversight by VA physicians, nurses and patients is one method of ensuring that appropriated monies are actually spent on healthcare.

VA health care is at a crossroads. New leadership can help the VA succeed but only if the administrative structure is fixed changing the VA culture. Until this occurs the same administrative monarchs will continue to rule their realms and nothing will really change.

Richard A. Robbins, MD*

Editor

Southwest Journal of Pulmonary and Critical Care

References

1. Cohen T, Griffin D, Bronstein S, Black N. Shinseki resigns, but will that improve things at VA hospitals? CNN. May 31, 2014. Available at: http://www.cnn.com/2014/05/30/politics/va-hospitals-shinseki/ (accessed 6/7/14).
2. Kizer KW. Prescription for change. March 1996. Available at: http://www.va.gov/HEALTHPOLICYPLANNING/rxweb.pdf (accessed 6/7/14). 
3. Wagner D. The doctor who launched the VA scandal. Arizona Republic. May 31, 2014. Available at: http://www.azcentral.com/longform/news/arizona/investigations/2014/05/31/va-scandal-whistleblower-sam-foote/9830057/ (accessed 6/7/14).
4. Hsieh P. Three factors that corrupted VA health care and threaten the rest of American medicine. Forbes. May 30, 2014. Available at: http://www.forbes.com/sites/paulhsieh/2014/05/30/three-factors-that-corrupted-va-health-care/ (accessed 6/7/14).
5. Robbins RA. VA administrators gaming the system. Southwest J Pulm Crit Care 2012;4:149-54. Available at: http://www.swjpcc.com/editorial/2012/5/5/va-administrators-gaming-the-system.html (accessed 6/7/14).
6. Robbins RA. VA scandal widens. Southwest J Pulm Crit Care. 2014;8(5):288-9. Available at: http://www.swjpcc.com/editorial/2014/5/26/va-scandal-widens.html (accessed 6/7/14). 
7. O'Keefe E. Senators reach bipartisan deal on bill to fix VA. Washington Post. June 5, 2014. Available at: http://www.washingtonpost.com/blogs/post-politics/wp/2014/06/05/senators-reach-bipartisan-deal-on-bill-to-fix-va/ (accessed 6/7/14).
8. Kizer KW, Jha AK. Restoring trust in VA health care. N Engl J Med. 2014 Jun 4. [Epub ahead of print]. Available at: http://www.nejm.org/doi/full/10.1056/NEJMp1406852 (accessed 6/7/14). [CrossRef]
9. Robbins RA, Klotz SA. Quality of care in U.S. hospitals. N Engl J Med. 2005;353(17):1860-1. [CrossRef]
10. VA Office of Inspector General. Audit of management control structures for veterans integrated service network offices. March 27, 2012. Available at: http://www.va.gov/oig/pubs/VAOIG-10-02888-129.pdf (accessed 6/7/14).
11. VA policy memorandum no. 2: policy in association of veterans' hospitals with medical schools. January 30, 1946. Available at: http://www.va.gov/oaa/Archive/PolicyMemo2.pdf (accessed 6/7/14).

*The views expressed are those of the author and do not necessarily reflect the views of the Arizona, New Mexico, Colorado, or California Thoracic Societies or the Mayo Clinic.

Refence as: Robbins RA. VA administrators breathe a sigh of relief. Southwest J Pulm Crit Care. 2014;8(6):336-9. doi: http://dx.doi.org/10.13175/swjpcc077-14 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