This article, featuring our legal director Tom Devine, was originally published here.
Dangerous San Diego Research Prompts Congress To Hold Hearing On VA
Congress will conduct a hearing to investigate a powerful healthcare office in the Department of Veterans Affairs following inewsource stories that exposed the office’s shoddy review of a dangerous San Diego liver study. A new inewsource analysis shows the agency under scrutiny — the VA’s Office of the Medical Inspector — has a long history of performing poor investigations into veterans’ medical care.
The House Committee on Veterans’ Affairs will lead the inquiry into the Office of the Medical Inspector, which investigates concerns raised about the VA healthcare system, the largest integrated healthcare system in the United States. In essence, the OMI’s role is to improve the quality of medical care and ensure patient safety at every VA medical center across the country.
The hearing could lead to major consequences for the 9 million veterans who receive healthcare at 1,255 VA medical facilities. The committee could decide to refer its findings to the FBI or other law enforcement agencies, or it could recommend new bills in Congress to improve how the medical inspector’s office operates.
The OMI visited the San Diego VA in 2017 to investigate claims brought by two whistleblowers who worked at the medical center. They alleged a VA researcher was collecting unnecessary liver biopsy samples from sick veterans without their consent, putting the patients at risk of severe bleeding and even death. The OMI didn’t substantiate most of the whistleblowers’ accusations, but its report failed to address many of the claims they had raised.
The Office of Special Counsel, which reports directly to the president about wrongdoing in federal agencies, said in November the medical inspector’s investigation into the liver study was “unreasonable.” It called on the OMI to take a “truly critical look” at the allegations and urged the OMI to issue its third report in two years on the topic. That report has not yet been made public.
An inewsource investigation found what happened at the San Diego VA is the most recent example of a troubling trend.
A review of hundreds of pages of whistleblower reports over the past decade reveals the medical inspector’s office has a pattern of conducting poor investigations into the VA healthcare system. inewsource found that the medical inspector’s investigations have been deemed “unreasonable” in about 16% of the reports it sends to the special counsel’s office.
That’s a higher rate of “unreasonable” investigations than the special counsel’s office finds in other federal agencies. On average, only about 11% of all the cases the special counsel reviews — which includes hundreds of cases from agencies across the executive branch of government — are “unreasonable,” inewsource’s analysis shows.
“The failure rate is extra impressive,” said Tom Devine, legal director of the Government Accountability Project, after reviewing inewsource’s analysis. The nonprofit represents government whistleblowers around the world, including high-profile clients such as Edward Snowden and Aicha Elbasri.
Devine said the special counsel has a “very low bar” for considering a whistleblower investigation reasonable.
“When the Office of Special Counsel does flunk a report, it generally requires that the work is an insult to the intelligence,” Devine said. “And OMI is at the head of that class.”
The special counsel’s office does not dispute inewsource’s findings, spokesman Zachary Kurz said. He said the office plans to independently verify the statistics.
“OSC takes seriously all whistleblower disclosures by Department of Veterans Affairs employees, especially when they reveal insufficient care for our nation’s veterans,” Kurz said in a statement. “OSC will continue to work with the VA to improve care and ensure proposed corrective actions sufficiently address the underlying problem.”
VA spokeswoman Christina Mandreucci initially said inewsource’s analysis is “misleading and ignores key information,” but after she was sent a detailed methodology behind the numbers on Sept. 18, she did not respond to questions or explain her statement.
An ongoing pattern
At least 16 OMI investigations have been labeled “unreasonable” in the past decade, inewsource found, meaning the special counsel’s office thought the investigation didn’t fully address the problems or wasn’t thorough enough to meet legal standards.
The Office of Special Counsel started to notice this pattern years ago. In 2014, it sent a letter to President Barack Obama, admonishing the OMI for its repeated failure to address problems in the VA healthcare system. The letter recounted OMI investigations that wrongly concluded no threat to patient health or safety had occurred.
It focused primarily on a case in Jackson, Mississippi, where seven whistleblowers alleged the local VA unlawfully prescribed narcotics, didn’t sterilize its medical equipment and didn’t review radiology images appropriately. They also claimed the medical center tried to hide chronic staffing shortages by creating “ghost clinics” with no doctors, which led to excessive wait times.
The OMI confirmed each of the allegations but concluded these issues did not threaten patient safety.
The medical inspector’s office “has consistently failed to take responsibility for identified problems,” the special counsel’s letter said. “Even in cases of substantiated misconduct, including acknowledged violations of state and federal law, the VA routinely suggests that the problems do not affect patient care.”
The letter prompted the OMI to appoint a new acting director who was supposed to improve oversight of VA healthcare.
“It’s a bit unfortunate that it took this national scandal in 2014 for this office to really finally draw scrutiny,” said Nick Schwellenbach, the communications director for the special counsel’s office at the time. Schwellenbach is now the director of investigations for the Project on Government Oversight, a government accountability nonprofit.
But public records show OMI’s investigations still aren’t meeting the special counsel’s standards.
In 2016, the OMI confirmed that an employee in Nutrition and Food Services at the Philadelphia VA Medical Center left her child unattended on federal property, but because the worker had been reprimanded, it concluded the whistleblower’s allegation was unfounded.
The next year, the special counsel’s office found an OMI investigation unreasonable because it had presented “conflicting evidence, unresolved discrepancies, and changing rationales” for why two psychiatric patients at an Albany, New York, facility were restrained for excessive periods of time — one for 49 hours.
“Significantly, the central issues in this case involved patient care, specifically whether treating psychiatrists had complied with VA regulations and rules governing patient restraint,” the special counsel’s report said. “However, the investigation instead focused largely on the actions of the whistleblower.”
Of the nine OMI cases the special counsel’s office finished reviewing in 2018, inewsource found four were labeled “unreasonable.”
It’s still a continuing cause for concern,” Schwellenbach said. “The numbers you just gave me don’t inspire any confidence that things are getting better.”
The special counsel also blasted the Office of the Medical Inspector last year for failing to take action in Manchester, New Hampshire, until the Boston Globe published a story chronicling the whistleblowers’ complaints. Four doctors at the VA facility said patients had developed serious spinal cord disease as a result of neglect, but OMI didn’t substantiate the claims.
The medical inspector’s office did not thoroughly review patient charts, the special counsel said, and it didn’t interview outside experts on spinal cord injuries even though it had said doing so would be a “necessary” part of the investigation.
They’ve completely taken a dive on the important issues that they should be looking at based on the whistleblowers’ disclosures,” John Whitty, an attorney at the Government Accountability Project who specializes in VA cases, told inewsource. “They’ve instead chosen to go down smaller rabbit holes where they can easily just whitewash the complaint.”
Whitty added that Congress’ decision to hold a hearing on the VA is “very good news.”
“That’s part of the pressure that we want to bring to bear to hold the agency to account,” he said.
The special counsel’s office reviews allegations of wrongdoing from current and former employees working across the executive branch. But the Department of Veterans Affairs has comprised 41% of the special counsel’s cases since 2009, inewsource’s analysis shows.
About a quarter of those VA cases were sent to the Office of the Medical Inspector for investigation, indicating the whistleblower claims concerned the VA’s healthcare system.
Devine, from the Government Accountability Project, said VA employees fear raising concerns internally, leading them to turn to independent agencies like the special counsel’s office for help.
“The VA employees are savvy enough to know that the internal channels, as a rule, are traps,” Devine said. “It is the rare exception that they’re a viable option to safely make a difference.”
Three experts interviewed for this story described the VA as a feudal system in which offices around the country are largely independent, forcing whistleblowers to go through many layers of supervisors if they want their concerns heard.
“The national management has very little control over local operations,” Devine said. “And so it’s an agency which is largely run by a local bureaucratic barons who are untouchable from the national leadership. And so even when you get a VA administrator who comes in with good intentions, they’ve been frustrated.”
“The corruption is almost unrestrained,” he added.
In 2017, the federal government created the Office of Accountability and Whistleblower Protection within the VA to protect employees who speak up about wrongdoing in the department. But whistleblowers testified to Congress in June that retaliation has only gotten worse since then. The new VA office itself is now under investigation for allegedly retaliating against whistleblowers.
Martina Buck and Mario Chojkier, who for years have alleged research misconduct at the San Diego VA, say they have faced serious consequences. Buck lost her research positions at the San Diego VA and UC San Diego since coming forward, and she said the special counsel’s office is currently investigating her claims of retaliation.
Chojkier, who is married to Buck and continues to work at the VA, said the medical inspector’s office has “shamelessly abused and denigrated” them “in a clear attempt to minimize the number and the severity of the human research and patient care violations that obviously occurred” in San Diego.
Buck said the congressional hearing is “an interesting idea in theory,” but she doubts it will lead to change.
“I’m not really sure how they are going to go about investigating the OMI,” she said. “Can they not already see what everybody’s been talking about? A lot of people have come out and publicly said the OMI doesn’t find things because it doesn’t want to. You can’t hear anything if you don’t want to listen.”
Congressional inquiry expands
Democratic Rep. Scott Peters, whose district includes the VA Medical Center in La Jolla, asked Congress to hold a hearing on the San Diego VA 10 months ago after inewsource first reported on the dangerous liver research done there.
In February, after Peters had left the House Committee on Veterans’ Affairs, he was told a hearing would be held as early as this past spring, but that didn’t happen.
While committee staff were investigating the liver study, they developed “additional concerns” about how the Office of the Medical Inspector operates, said Miguel Salazar, a committee spokesman. Staff will continue to look into the liver study behind the scenes, but the hearing will now focus more broadly on the OMI.
Congressman Peters is correct to be concerned about questionable research practices at the San Diego VA, and this Committee has taken these concerns seriously,” Salazar said in a statement.
Salazar wouldn’t elaborate on what the committee’s concerns were or what subcommittee would hold the hearing, and he didn’t have a timeline for when the hearing would take place. He said the hearing was delayed because of other pressing issues the committee has taken on, including a string of suicides at VA facilities around the country and growing concerns about the VA’s retaliation against whistleblowers.
In September, Peters stood on the committee floor to express his frustration with how the medical inspector’s office handled the San Diego liver case. He suggested the committee examine whether OMI’s investigators felt they could make recommendations without deferring to what the VA’s leaders wanted.
“We know this is not the first time OMI has investigated wrongdoing and has come up short on answers, according to the Special Counsel,” Peters said.
“We need to strengthen investigatory bodies to ensure improper allegations such as these are thoroughly vetted,” he added.
If the committee sticks to its current plan, Democrats and Republicans will work together to decide on the scope of the hearing. Then they’ll invite witnesses to offer testimony on the medical inspector’s office and collect official statements from those unable to attend. Each committee member will have five minutes to ask questions.
“The VA Office of the Medical Inspector has a responsibility to conduct thorough investigations and fulfill our promise to deliver the highest quality health care for our veterans,” said Rep. Mike Levin, a Democrat on the committee whose district includes the Camp Pendleton Marine base.
“I will continue to hold the Department of Veterans Affairs to that standard,” Levin said.
Seven years of whistleblowing
After learning the latest on the congressional hearing, Buck told her story for what seemed like the hundredth time.
She was a liver researcher at the San Diego VA in 2013 — and a member of the VA’s research safety review board — when Dr. Samuel Ho proposed a study on veterans with alcoholic liver disease that would examine leftover biopsy tissue from the ill patients.
As Buck read the research proposal, she grew concerned that Ho planned to perform medically unnecessary liver biopsies for the sake of research, putting the patients at risk of internal bleeding and other complications.
Buck contacted her supervisors, warning them not to approve the study. It was approved anyway.
“I was hopeful for like, I guess 15 minutes,” Buck said. “But when I started talking to the people that could have stopped this, they just kept patting me on the head pretty much and telling me, ‘It’s okay. You convinced us. We’re not going to do it that way now. But now we’re going to do it this way.’”
Over the next five years, she and Chojkier reported their allegations to at least three federal agencies, were interviewed twice by the Office of the Medical Inspector and sent complaints to other research institutions involved in the study.
Months after the medical inspector’s office issued a report on her allegations in early 2018, Ho retired from the VA and took a job at a university in Dubai. He and the VA researcher who took over the project, Dr. Bernd Schnabl, would not comment for this story, nor would a San Diego VA spokeswoman.
The OMI’s investigation concluded that “no substantial danger to public health” occurred at the San Diego VA. But when the special counsel’s office reviewed that investigation, it said the OMI hadn’t fully addressed the whistleblowers’ allegations.
The OMI had already issued two reports, but the special counsel’s office told the OMI to reinvestigate and produce a third report, which is not publicly available yet.
“These reports focus in so narrowly on small questions and miss the big questions, and it’s seriously concerning,” said C.K. Gunsalus, director of the National Center for Professional & Research Ethics, after reviewing the OMI’s investigation into the liver study. “They all have most of the hallmarks of really bad investigative reports that miss the mark.”
An internal report from the San Diego VA obtained by inewsource in February verified Buck and Chojkier’s main complaint: medically unnecessary liver samples were taken from sick veterans without their permission. The report said “serious noncompliance occurred” during the research, which put patients at risk — contrary to what the medical inspector’s report had said.
“It wasn’t professional,” Buck said about the OMI’s investigation. “It wasn’t what the veterans deserve. It wasn’t what the whistleblowers deserve. It wasn’t what the country deserves. I can’t imagine what they were thinking.”