Ladies and gentlemen, this fight with the VA is so unreal. Im sure weve all seen the recent news reports and the response from the VA. Although, I am grateful that some media outlets have begun to report the story, im upset because they arent quite telling the whole truth. Recent reports say this is connected to the disability claims backlog. Although, one could say the records may correlate this is a backlog in and of itself. The backlog I BLEW the whistle on appears to be a long standing pratice THROUGHOUT the VA. This is significant as it prevents us as veterans from receiving TIMELY healthcare NOT disability claims. As the Main Stream Media refuses to air my face or voice I will continue to launch a social and paper response to the allegations and stories. Recently, many more of our Congressional Representatives are stepping forward and asking questions. I ask that you LIKE SHARE and repost this open letter everywhere. Most importantly, please post this on your Congressional Reps Facebook page. Thank you, our fight for justice and equality continues... To the Office of Special Counsel (OSC): In light of recent Media coverage, Congressional Inquiries and additional evidence this complaint, previously known as OSC Case No. DI-13-2270 is being resubmitted. On April 30, 2013 via USPS Mail the Office of Special Counsel sent a letter stating “You allege that on November 24, 2008, Dr. ----, Acting Chief, IRS, improperly instructed you to help purge a ten-year back log. You asserted that after you refused to comply, Dr. ---- had another employee purge the backlog. During our telephone conversation on April 24, 2013, you stated that you reported this matter to the Office of Inspector General (OIG). You provided our office with a memorandum dated November 25, 2009, which outlined its findings. In that memorandum, the OIG confirmed that the backlog went back ten years and that all imaging services across the country were instructed to mass purge all outstanding imaging orders for studies older than six months, where the procedure was no longer needed. All patient imaging requests found to still be valid were scheduled. Approval was granted for this process by the MEC (Medical Executive Committee), and in collaboration with the Service Chiefs and/or Careline Directors within the healthcare system.” The OSC continued saying “It is the general policy of OSC not to transmit an allegation of wrongdoing to the head of the agency involved, where the agency’s OIG or its delegate, is currently investigating or has investigated, the same allegations. Consequently, this office will take no further action concerning this allegation. Although you believe that the OIG investigation was a “cover up,” without additional corroborating information we are unable to find with a substantial likelihood that wrongdoing has occurred. Based on the above, we will not take any action concerning your allegation. In addition, you disclosed that on May 27, 2009, Dr. ---- instructed you to allow a backlog of scheduling appointments to continue for four months. You believe that agency rules require a response to patients within thirty days. You were unable to provide our office with a copy of the applicable rule or additional details concerning the alleged violation. As a result, the information we have received is insufficient for us to determine with a substantial likelihood that there has been gross mismanagement, an abuse of authority, or a substantial and specific danger to public health and safety. Therefore, we cannot take further action regarding your disclosure.” On June 21, 2013 in a letter sent to OSC I outlined the following: According to the Whistleblower Protection Enhancement Act of 2012, the new law expands protection if the “whistleblower disclosure”: 1. Was made to the supervisor 2. Was made to a person who participated in the activity that is the subject of the whistleblowing 3. Was information previously known 4. Without regard to the disclosures motive 5. Even if it was not made in writing 6. If disclosure was made in while “off duty” 7. Without regard to the passage of time between the wrongdoing and whistleblowing 8. During the normal course of duties Additionally, the WPEA states protected disclosure: 1. Does not need to be accurate to be protected 2. Is protected if the employee reasonably believes that the information is true 3. Does not have to go through the chain of command 4. Whistleblowers personal motivation does not negate reasonable belief 5. Employee or applicant is protected if the employer mistakenly believes the employee is the whistleblower With regards to my protected disclosure alleging Fraud, Waste and Abuse the agency had actual and/or constructive knowledge of the protected disclosure. As such, the OSC failed in enforcing provisions of the WPEA, namely, confidential complainants who allow their name to be used are entitled to whistleblower protection from Reprisal/Retaliatory actions. On May 22, 2009 the Office of Inspector General (OIG) sent a letter stating “The Whistleblower Protection Act of 1989 established the Office of Special Counsel (OSC) as a separate entity to examine allegations of prohibited personnel practices, including alleged reprisal for Whistleblowing. We are enclosing a copy of a Reprisal for Whistleblowing fact sheet for your information. If you believe a personnel action has been taken against you because of any whistleblowing, you may contact OSC at (800) 872-9855 or you may write to them.” In addition to that statement the OIG was given permission to use my name and employment situation in connection with the complaint I filed with the IG Hotline on March 27, 2009.” Again, the OSC has failed in properly enforcing provisions of the WPEA, namely, confidential complaints who allow their name to be used [are] entitled to whistleblower protection from Reprisal/Retaliatory actions. The OSC has failed to properly apply the “significant motivating factor” test in determining if the agency improperly destroyed medical records. In your letter to me dated 4/30/13, postmarked 5/1/13 and received on or around 5/10/13 you state “although you believe that the OIG investigation was a “cover up,” without additional corroborating information we are unable to find with a substantial likelihood that wrongdoing has occurred. Based on the above, we will not take any action concerning your allegation.” OSC’s failure to properly adjudicate my complaint is not in line with the WPEA of 2012. As the complainant I only need to raise the allegation with some reasonable expectation that the information is true. In my initial complaint, significant evidence was submitted to satisfy the requirements for the “significant motivating factor” test. However, in an effort to respond to your notice dated 4/30/13 and our ongoing communications the following information is provided: Briefly, in statement, on 3/24/09 I submitted a complaint to the OIG Veterans Affairs in response to my allegations from a System Redesign meeting held on 11/28/08. As a result of that protected disclosure management officials showed willful intent to purge, delete and destroy records relating to the agency backlog. Management officials had full knowledge of the disclosure and the identity of the complaint. Additionally, on the same day as my disclosure to the OIG management detailed and reassigned a newly hired employee to the Imaging MRI section with the intent and sole purpose of allowing this employee to delete all said records in dispute. In testimony relating to my EEOC complaint, the newly hired employee gave the following testimony: In EEOC Case No. 200P-0691-2009102570 dated 10/30/09, Telephonic Affidavit of ----, Page #22, Line #9 thru #25, Ms. ---- states: 1. And you were detailed to imaging? 2. Well, I was just – it’s the same department, Radiology is the same department and MRI is within it, so I was just moved to 507. 3. And where were you previously? 4. In building 500. 5. And what were you doing there? 6. Basically the same thing: checking in patients, scheduling. 7. And that was for the main Radiology Department? 8. That’s correct. 9. Did either Dr. ---- or ---- say to you Page #23, Line #1 thru #10, she continues stating: 1. Or say anything to you as to why they were sending you over to MRI? 2. Yes, to help them out. 3. “Help them out” how? 4. Help them out catch up to the scheduling. Because they had a lot of backlog. 5. And how were you going to help them with the backlog? 6. I was going to have to take care of all the backlog. In my initial complaint I stated that another employee named ---- clearly stated “not that I know of nobody wants to even take the chance of fear of losing there job or something.” Additionally, my refusal to participate in deleting any backlog is in keeping with my allegations. Upon Ms. ---- immediate arrival to the MRI section she was given the sole task of deleting the backlog. Ms. ---- own testimony corroborates my allegations. Between the periods of 3/24/09 and 6/5/09 Ms. ---- followed unlawful orders given by Dr. ---- to delete and destroy all backlog records. In a retaliatory move management restricted my clinic access and detailed me to Primary and Ambulatory Care clinic in response to my OIG disclosure. My assertion that the agency’s response is a cover up is valid and true. Management had already begun the purge prior to my detail on 6/5/09. However, in a letter to the OIG dated 5/12/09 I submitted proof that the agency had begun deleting records prior to their response dated 11/25/09. In response to the OIG’s request I provided the names of well over 900 veterans that were affected by the agency’s actions. The agency’s motive for the detail was retaliatory and meant to prevent the complainant from further disclosure. From the period of 6/4/09 to the date of the agency response was a mere cover up or a means of distraction to manufacture a response. In summary: 1. System Redesign meeting held on 11/08 2. My ongoing refusal to delete records 11/08 3. Fraud Waste and Abuse complaint to OIG on 3/24/0909 4. ---- detailed to MRI section on 3/24/09 5. Records are destroyed from 3/09 to 6/09 6. Complainant detailed to PACC on 6/5/09 7. Proof of deleted records provided to OIG on 6/21/09 8. Agencys response to OIG on 11/25/09 It is clear that the agencys response was manufactured after my initial disclosure as evinced by Ms. ---- own testimony. Additionally, according to the WPEA the claimant/complainant only need raise the allegation if the employee believes that the information is true. As such the burden of proof now shifts to the agency to disprove the allegations. In testimony relating to my EEO complaint ----, Chief Technologists for Imaging Service gave the following testimony. In EEO Case No. 200P-0691-2009102570, dated 10/30/09, Telephonic Affidavit of ----------, Page #35, Line #17 thru #23, Mr. ---- states: 1. What sort of problems? 2. Meeting our 30 day turnaround time for getting patient exams completed. But we have that in other areas as well. 3. And why is that a problem? 4. It’s a mandate from Central Office to try to improve our service for our veterans. Additionally, on Page #36, Line 1-3 he continues stating: 1. And why is it a problem being met? 2. We have such a large volume of requests for MRI’s, we don’t have the – we only have two scanners. Therefore, Mr. ---- own testimony corroborates my allegations of not meeting our 30 day exam completion date. Again, the WPEA only states complainant need only raise the allegations with a reasonable belief of truth. The WPEA does not state nor require that the complainant provide the applicable rule or additional details concerning the alleged violation. Only that the allegation is raised. As such it is now the responsibility of OSC to apply the “significant motivating factor” test and the agency bares the burden of proof to disprove the allegation. However, in this instance the agency has already substantiated the allegation thru testimony from Mr. ----. I allege and re-allege that the allegations set forth are true and factual. In support of my allegations and the OSC request for “additional corroborating evidence” I offer the following additional evidence below: On the morning of November 24, 2008 during a 60 minute System Redesign team meeting I was surprised to hear so much discussion about how we could “play the system” and very little discussion about how to improve our care and services. The Chief Technologist for Imaging Services, GS-12 named ---- stated “our accessibility for CT and MRI hasn’t changed during 2nd or 3rd qtr for this year vs. last year. We haven’t changed our accessibility at all. Even with the addition of another scanner our numbers have stayed the same.” He continued stating “were still booking the old patients, were still playing catch up with the backlog.” He suggested “we should try booking the newer patients first, it isn’t good health care but it plays the system because after 30 days they drop off the radar anyway.” As our discussion continued Mr. ---- stated “when we have down time we should take the list (referring to the backlog list) and just start purging.” The Chief of Imaging Services, GS-15 named Dr. ---- stated “we need to get started on the backlog by scheduling patients within 25 days. Were just getting farther and farther behind, well never turn our numbers around.” This additional evidence as provided in connection with the evidence already submitted is clear and concise as to the motive to purge, delete and destroy medical exam request in connection to our veterans healthcare. To recap the previous evidence recently submitted, System Redesign members made the following statements. In response to a question I asked concerning our backlog and procedures for handling the backlog Dr. ---- stated “anything a year old should be cancelled. Cancelled, because they wouldn’t let us get in there and do a mass purge so it’s just a matter of getting in and cancelling them ourselves.” She continued stating “my backlog should start at like April 2007 not anything earlier than that. Not just MRI but we need to cancel any orders before April 2007.” In response to a statement made by the coordinator of the SR Team meeting Dr. ---- stated “a lot of our patients have had there study done somewhere else, have had there surgery, have gotten better or just died while waiting for services.” Dr ---- continued stating “the mass purge thing is not going to happen is that right?” posing her question to ----, Information System Manager. The Information System Manager for Imaging Services named ---- responded to Dr. ------ question of the mass purge stating “not that I know of nobody wants to even take the chance of fear of losing there job or something.” As a result of not following unlawful orders I have been constructively discharged and continue to face years of discriminatory and retaliatory abuse. In closing the information provided thru initial contact to the OIG, OSC and corroborating testimony from EEOC Case No. 200P-0691-2009-102570 is sufficient for OSC to determine with a substantial likelihood that there has been gross mismanagement, and abuse of authority, or a substantial and specific danger to public health and safety. Therefore, OSC should take further action regarding this disclosure. Oliver B. Mitchell III washingtonexaminer/house-gop-wants-probe-of-veterans-affairs-purging-of-medical-records/article/2545004
Posted on: Sun, 09 Mar 2014 05:33:45 +0000
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