Retaliation is the order of the day

When hearing about some unfair treatment of a veteran, people often shake their head and mutter something negative about the Department of Veterans Affairs. In fact, employees within the VA try to force improvements in the agency, only to face retaliation as a result.

The VA is one of the largest federal agencies, with around 400,000 federal employees across hundreds of medical facilities, clinics and offices. On May 3, 2023, the U.S. Government Accountability Office, GAO, reported to members of the House of Representatives about whistleblowers and retaliation claims. The report states that cases alleging whistleblower retaliation comprised a majority of the prohibited personnel practices cases involving VA employees. From 2018 through 2022, 69% of personnel cases involving VA employees included allegations of whistleblower retaliation. During the same time period, cases involving retaliation in other federal agencies decreased.

This article will discuss what Congress has been doing to try to stop retaliation against VA employees who report unsafe medical care, inefficiencies, wrongdoing and mismanagement

The Civil Service Reform Act of 1978

After passage of the Civil Service Act of 1978 Act, a newly created board, the Merit Systems Protection Board, was responsible for reviewing disciplinary actions. The burden of proof was on the VA. The United States Court of Appeals for the Federal Circuit was given exclusive jurisdiction to hear appeals of decisions of the Merit Systems Protection Board.

The 1978 Act also created the Office of Special Counsel, now an independent federal investigative and prosecutorial agency. The OSC is tasked with protecting federal employees and applicants from prohibited personnel practices, including reprisal for whistleblowing.

2014 and 2019 Congressional hearings

On July 8, 2014, the Chair of the House Committee on Veterans' Affairs Jeff Miller [R-FL] said in his opening statement: "Tonight we'll hear from a representative sample of the hundreds of whistleblowers that have contacted our committee, seeking to change the VA to improve patient safety and better serve veterans who have served our great Nation."

Carolyn Lerner from OSC said in 2014: "We have found that, rather than using the valuable information provided by whistleblowers as an early warning system, the VA often ignores or minimizes problems. This approach has allowed serious issues to fester and grow." She further said she presently had complaints alleging retaliation from 45 separate VA facilities in 28 states, "and the number increases daily." Lerner explained that OSC has jurisdiction over 2,000,000 federal employees, but it has reallocated staff and resources to institute a priority intake process for VA cases because of retaliation by the VA against whistleblowers.

Dr. James Tuchschmidt from the Department of Veterans Affairs told congressional members in 2014: "I apologize to every one of our employees who feels that their voice has been silenced, that their passion has been stifled, because that's just not acceptable, and it's certainly not what I stand for."

At the June 25, 2019 hearing, Chair of the House Committee on Veterans' Affairs Chris Pappas of [D-NH] stated that whistleblowers play an essential role in safeguarding the federal government against waste, fraud, abuse, and mismanagement and that too often the messenger is the one who is punished. He announced: "Make no mistake, the committee believes in people who are brave enough to stand up and blow the whistle on missteps and misdeeds within the Department of Veterans Affairs."

At the 2019 hearing, Tom Devine of the Government Accountability Project testified: "This hearing is timely and necessary because the VA remains a free speech Death Valley for government whistle blowers."

VA employees who testified before Congress

Dr. Jose Mathews

At the 2014 hearing, Dr. Jose Mathews, Chief of Psychiatry at the VA medical center in St. Louis, Missouri, testified about the long wait times for veterans at outpatient clinics and difficulty in making appointments. He said that 60% of veterans who were supposed to come back for follow-up mental health care did not do so because the wait time was so long.

Dr. Mathews said that shortly after he made disclosures about two avoidable deaths and an outpatient suicide attempt at the St. Louis hospital, he was told he was being investigated. He was removed as head of department and assigned to doing compensation and pension evaluations.

Dr. Katherine Mitchell

At the 2014 hearing, Dr. Katherine Mitchell, a board certified internist who worked at the VA hospital in Phoenix for many years, gave her testimony. She explained how the VA manipulates statistics, ignores legitimate requests for resources, and provides misleading information to outside official inquiries. She added: "Most pointedly, certain employees systematically intimidate any fellow employee who dares advocate for veterans."

Dr. Mitchell explained how patients who had survived campaigns like D-Day, Iwo Jima, Heartbreak Ridge, Pork Chop Hill, Chosin Reservoir, Inchon Landing, multiple Tet Offensives and Counter-Offensives, Desert Storm, Kosovo, Croatia, Ethiopia, the Battle of Fallujah, and dismal years in Helmand Province could not be guaranteed high quality care at the Phoenix VA hospital.

Dr. Mitchell again testified before the same committee in June 2019, this time about retaliation since her 2014 testimony. Dr. Mitchell related that she previously testified before the same committee in 2014 and then three more times in front of other congressional committees regarding her analysis of VA patient care deaths.

Beginning in 2014, Dr. Mitchell was prohibited from performing risk management duties. In December 2014, she discovered gross errors in the Phoenix facility's responses to inquiries of the Office of Inspector General, and after that, leadership never allowed staff to share OIG inquiries or the facility's responses with Dr. Mitchell again. In 2015, the VA prohibited her from performing other primary duties. From 2014 through 2018, leadership at the VA discouraged staff from associating with Dr. Mitchell. When Dr. Mitchell submitted a request for a project examining patient care, she received no response for months. When others made similar requests, they received a response within days. When Dr. Mitchell's project was rejected, it took intervention by the OSC.

The day before her 2019 testimony, the VA terminated Dr. Mitchell.

Dr. Christian Head

At the July 2014 hearing, Dr. Christian Head, chief of staff at the West Los Angeles VA hospital, also testified. Dr. Head told Congress that a number of years earlier, he, along with 30 others, was subpoenaed by the Inspector General to testify about time-card fraud involving two surgeons. Despite the fact that he feared retaliation, Dr. Head reported to Congress that he gave "honest and true" testimony to the OIG. At a holiday party shortly thereafter, a supervisor labeled Dr. Head "a rat." After that, his paycheck was withheld for a period of time and his house went into foreclosure. He said about the retaliation culture at the VA, "that's really the cancer of the VA system." He asked rhetorically: "Who are these people who alter data, hide the truth and prevent patient care?"

Jeff Dettbarn

Jeff Dettbarn, a radiology technician, worked at the Iowa City VA medical center for 14 years when he testified before Congress in June 2019. He said he became a whistleblower out of concern that veterans were being placed at risk by not receiving the care and follow-up care they desperately needed, revealing that the VA was canceling exams without a doctor's order. He said that since he came forward "the VA has banished me from the hospital for two years, away from the greatest job ever - taking care of veterans, cut my pay by a third, targeted me with an Administrative Investigation Board, proposed my removal, and subjected me to unbelievable physical and emotional stress."

Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017

The Office of Accountability and Whistleblower Protection was created by Executive Order 13793 in April 2017. The next month, OAWP was codified in 38 U.S. Code § 323. OAWP's functions include investigating allegations of misconduct against senior agency officials and receiving and referring whistleblower disclosures.

2022 and 2023 bills

On Sept. 21, 2022, Congressman Pappas led the House of Representatives in trying to enact his bipartisan legislation, the Strengthening Whistleblower Protections at the Department of Veterans Affairs Act. However, that legislation, H.R. 8510, did not move through the Senate.

Subsequent legislation relating to this issue was introduced in late April, 2023 but has not passed into law. The latest attempt - H.R. 2733 - is titled Department of Veterans Affairs Office of Inspector General Training Act of 2023. It was introduced by Representative Lauren Underwood [D-IL], and sponsored by Representative Norma Torres [D-CA] on April 20, 2023.

If it is enacted into law, H.R. 2733 will require the Secretary of Veterans Affairs to make sure that, within a year after employment begins, all new VA employees receive training "that the Inspector General of the Department shall develop on the reporting of wrongdoing to, responding to requests from, and cooperating with the Office of Inspector General."

Conclusion

When whistleblowers at the VA help to protect veterans and safeguard the government from fraud, waste, and abuse, they risk reprisals from their agency for their disclosures, including demotion, reassignment or termination.

Congress has attempted to rein in the VA by creating agencies, launching investigations and enacting legislation. But the VA has persisted in retaliating against VA employees who want our veterans treated in a more humane and timely way. Nothing has worked yet, but to its credit, Congress keeps trying. If the latest bill passes, all VA employees will be trained on how to safely report wrongdoings.