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Special Counsel Hits VA for Patient Neglect, Unsanitary Conditions, Contractor Self Dealing

The watchdog referred three cases to Congress and the president.

This story has been updated with comments from VA.

The Veterans Affairs Department last week was hit by three highly critical letters of referral to Congress and the president in whistleblower cases probed by the Office of Special Counsel.

The separate cases documented staff failures at VA medical centers to respond to reports of unfair barriers to patients needing organ transplants, a slow response to unsanitary conditions in spinal cord care, and an unethical procurement of landscaping supplies.

At the Audie L. Murphy Memorial VA Hospital in San Antonio, nurse and program manager Jamie McBride had disclosed problems with procedures for referring meritorious patients to the life-saving Solid Organ Transplant Program.

The program’s structure “causes financial and other hardships to veterans and their families by requiring them to relocate for months to receive treatment,” Special Counsel Henry Kerner said in a statement on his Jan. 26 letter to President Trump. McBride alleged that communication problems between VA medical centers and transplant centers delay care, and that the transplant centers apply inconsistent and overly restrictive eligibility criteria for liver and kidney transplants. He cited a low level of specialty care and an “unwillingness” to promptly perform living donor kidney transplants.

After the special counsel asked VA to investigate what appeared to be a national problem, the department submitted reports in January and May of 2017 that Kerner determined “do not appear reasonable.” Though the reports met the statutory requirements, the VA did not address the full scope of the allegations and “did not address the conflicting information regarding the availability of transplant care in the community and the coverage of organ harvesting and donor care through the Choice Program, which Congress created to allow veterans to seek care outside of the VA system when needed,” the counsel wrote.

He added that VA failed to acknowledge the potential harm to veterans caused by delayed surgery and the hardships of travel.

“Mr. McBride deserves praise for bringing forward the numerous barriers to life-saving organ transplants for veterans,” Kerner said.

But an agency spokesman on Wednesday took issue with the findings: “We feel OSC's assessment is ill informed due to a lack of understanding of the general standards and practices regarding organ transplants throughout the U.S. medical community.” Such standards include a thorough evaluation of all patients to ensure they are appropriate candidates. The difficulties in travel, the spokesman noted, is a national issue, and transplant facilities are not located in every state.

On Jan. 25, Kerner’s office notified Trump about “shortcomings” in the response to whistleblower disclosures at the VA’s Medical Center in Manchester, N.H., that a large number of patients developed serious spinal cord disease “as a result of clinical neglect.”

Responding to four whistleblowers’ complaints from January 2017 (all from physicians), the VA “did not initiate substantive changes to resolve identified issues until over seven months had elapsed, and only did so after widespread public attention focused on these matters,” Kerner wrote. “It is critical that whistleblowers be able to have confidence that the VA will address public health and safety issues immediately, regardless of what news coverage an issue receives.”

Specifically, the whistleblowers alleged that a rise in the incidence of the spinal cord condition known as myelopathy at the hospital—despite a decline in the general population—may have occurred because “transfers to another facility were not performed in a timely manner, against agency policy.” Also mentioned were “substandard surgical procedures, leading to one patient who developed a spinal infection and possibly died from complications and another patient who developed a spinal infection after surgery.” The allegations also include poor patient record-keeping dating back to 2012 as well as “a longstanding fly infestation in an operating room,” Kerner said.

The OSC faulted VA for managers who appear “to have chosen not to review allegations concerning dirty and potentially contaminated surgical instruments because they did not appear in OSC’s original referral letter.” That inaction “demonstrates a myopic approach that could potentially cause harm by ignoring allegations of substantial and specific dangers to public health and safety,” he said.

VA again disagreed with the OSC’s conclusion. “As soon as the allegations highlighted by OSC reached Secretary [David] Shulkin, VA took a number of immediate actions to respond rapidly to the issues raised,” the VA statement said. That included sending investigative teams, a visit to the facility by Shulkin, replacement of the medical center’s top management team, and other improvements.

OSC will continue to monitor the Manchester facility and receive updates.

Also on Jan. 25, the OSC urged the VA to remove an employee at the Bedford, Mass., VA Medical Center involved in a contract for snow removal and grounds-keeping materials that favored a family member. In this letter to Trump, Kerner asks the VA to terminate or bar a recently demoted employee from contact with her former division, and to discipline others involved.

“By allowing an employee who engaged in this conduct to remain with the agency, the VA demonstrates a shocking degree of indifference to government ethical standards, procurement regulations, and public integrity,” Kerner wrote.

As disclosed, first to the VA inspector general and later to the OSC, whistleblower Kevin Cornellier said that a father and daughter, the man previously employed by the Bedford facility and the woman still on staff there, steered contracts worth $1 million to a family business to supply rock salt, mulch, and crushed stone. Dennis Garneau, while still the facilities maintenance and grounds supervisor, helped win contracts for his son, the owner of the landscaping firm. Some of the materials, the whistleblower said, were never delivered.

Heather Garneau-Harvey was found to have misled federal agents during subsequent interviews, the letter said. The VA Office of Inspector General presented the case to the Justice Department for possible criminal prosecution, but prosecutors declined, according to the OSC.

Kerner protested the fact that Garneau-Harvey was not fired but reassigned to another division at the Bedford VA hospital and demoted from a GS-12 to a GS-11. Her father resigned from federal service.  

But according to VA, “the disciplinary action highlighted in this report is wholly inappropriate and isn’t anywhere close in proportion to the offense that necessitated it.” It promised to reinforce the need to better hold employees accountable.