The Special Counsel

The President

U.S. OFFICE OF SPECIAL COUNSEL 1730 M Street, N.W . • Suite 300 Washington, D.C. 20036·4505

June 8, 2017

The White House Washington, D.C. 20500

Re: OSC File No. DI-14-4835

Dear Mr. President:

Pursuant to my duties as Special Counsel, I am forwarding a Department of Veterans Affairs' (VA) report based on disclosures of wrongdoing at the Department of Veterans Affairs (VA) Southern Arizona VA Health Care System (SA V ARCS), Ocotillo Primary Care Clinic (Ocotillo Clinic), Tucson, Arizona. The whistle blower, Diane Suter, who consented to the release of her name, is a registered nurse and former employee of the facility. She alleged that SAV ARCS management directed staff to zero outpatient wait times and failed to adhere to agency scheduling directives, that Ocotillo Clinic physicians received bonuses based on wait times, and that she was excluded from a meeting with the hospital director on the issues related to wait times. I have reviewed the agency report and, in accordance with 5 U.S.C. §1213(e), provide the following summary of the report, whistleblower's comments, and my findings. 1

The allegations were referred to former Secretary Robert McDonald for investigation pursuant to 5 U.S.C. §1213 (c) and (d). Secretary McDonald delegated the authority to review and sign the agency report to former Chief of Staff Robert D. Snyder. The VA Office of Inspector General (OIG) conducted the investigation. On November 30, 2016, Mr. Snyder submitted two reports to the Office of Special Counsel (OSC). The whistleblower provided com,ments on the agency reports.

The agency substantiated the allegations that the Ocotillo Clinic staff improperly zeroed out patient wait times. The VA OIG reviewed scheduling data from December·2013 through August 2014 and found that, for 76 percent of the appointments, the patient's desired

1 The Office of Special Counsel (OSC) is authorized by law to receive disclosures of information from federal employees alleging violations oflaw, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. 5 U.S.C. § l213(a) and (b). OSC does not have the authority to investigate a whistleblower's disclosure; rather, ifthe Special Counsel determines that there is a substantial likelihood that one of the aforementioned conditions exists, she is required to advise the appropriate agency head of her determination, and the agency head is required to conduct an investigation of the allegations and submit a written report. 5 U.S.C. § 1213(c). Upon receipt, the Special Counsel reviews the agency report to determine whether it contains all of the information required by statute and that the findings of the head of the agency appear to be reasonable. 5 U.S.C. § 1213(e)(2). The Special Counsel will determine that the agency' s investigative findings and conclusions appear reasonable if they are credible, consistent, and. complete based upon the facts in the disclosure, the agency report, and the comments offered by the whistleblower under 5 U.S.C. § 1213(e)(l).

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date was the same as the scheduled date. Interviews with nurses and a nursing supervisor assigned to the clinic established that the Business Service Line staff incorrectly trained them on scheduling procedures. Investigators also reviewed training materials from early 2014 and determined that these materials taught scheduling procedures that were contrary to VA policy. The report notes that these training materials were updated in fiscal year (FY) 2016 to reflect the correct VA scheduling policy.

The agency also partially substantiated that facility management based physician bonuses on wait time data. The report explains that wait time data was a factor in physician bonuses for FY 2013, but not in FY 2014, and that in FY 2015 and 2016 wait time data was excluded from the calculation of performance pay. In the case of the FY 2013 bonuses, the investigation determined that wait times were only a limited factor in the bonus calculation­approximately 11 percent-and that VA policy did not prohibit the inclusion of wait time data in performance pay at the time.

During her interview, Mrs. Suter also alleged that Ocotillo Clinic nurses received quarterly bonuses for ~anipulating the scheduling records to meet time performance goals. The investigation found that five of the seven nurses received annual cash bonuses, but did not find evidence of quarterly bonuses or bonus criteria tied to wait time performance. Nor <lid the investigation substantiate the allegation that facility officials exCluded Mrs. Suter from a meeting with the former SA V AHCS Director in May 20 i4. The report states that Mrs. Suter provided investigators with a list of those employees approved to attend the meeting that her supervisor allegedly sent. Investigators interviewed the former Chief of Primary Care, a nursing supervisor, and seven nurses who Mrs. Suter alleged were permitted to attend the meeting. The report states that three of the nurses were on the list, but that all seven nurses attended the meeting. Further, 'none of the' nurs~s admitted to being aware that Mrs. Su~er had voiced concerns about scheduling practices to agency officials.

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Finally, the investigation did not substantiate that the failure to adhere to agency scheduling directiv~s endangered patient health. Mrs. Suter did not provide examples of individual cases where a defayed appointment may have endangered the health of a veteran. From the review of Ocotillo Clip.ic appointments, inves,tigators identified .13 patients, with a total of 15 appointments, and wait times in excess of 3Q days who passed away prior to their scheduled appointment. Based on a review of the patients' mecjical records, the. agency determined thatthese 15 appointments were part of routine follow-up, and were not requests for immediate medical care. Instead, th~ deaths of these patients were found to be related to the complex chr~hic diseases from which they suffered. :

In response to the investigative t'indings, the VA'OIG r~commended that the VA Desert Pacific Healthcare Network (VISN 22) Director review the training records of all SA V AHCS schedulers to ensure that their training complies with agency scheduling policy, and that schedulers adhere to agency scheduliilg policies and procedures. The OIG also recommended that the 'Director convene an Administrative Investigative Board (AIB) to determine who directed the Business Service Line officials to create and use non-compliant training materials. The VISN 22 Director conc.urred with the recommendations.

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An update from the VA on May 25, 2017 confirmed that it is implementing these recommendations. VHA has released an updated scheduling policy, VHADirective 1230, Outpatient Scheduling Processes and Procedures, and issued it to all scheduling personnel. Schedulers completed a local webinar on the new directive and certified that they had read and understood the new policy. In addition, the Office of Veteran Access to Care released standardized training for employees who schedule outpatient appointments, and these employees were directed to complete the training by March 31, 2017. The Group Practice Data Analytics tracks and conducts scheduler training.

The facility also implemented standardized scheduler training for new employees. SA V AHCS leadership continues to conduct rounds, which include a discussion of scheduling processes emphasizing scheduling integrity. Additionally, the Group Practice Manager (GPM) conducts rounds with schedulers to highlight the importance of scheduling and data accuracy. The GPM and data analytics staff monitor the scheduling trigger tool that helps to identify compliance with VHA scheduling policy. Finally, the AIB has been convened, and a determination regarding any disciplinary actions will be made after review of the AIB report's findings.

In her comments, Mrs. Suter noted that she does not find the former Chief of Primary Care and the nursing supervisor to be credible witnesses. She maintained that the nursing supervisor, who she believes was her last supervisor, showed her how to schedule appointments in a manner that was contrary to VA policy. Mrs. Suter also stated that, while she received an e-mail telling her to plan to attend the "meeting with the former director, her name did not appear on a list of schedulers approved to attend. She noted that her supervisor asked her to cover the office while other employees attended the meeting and that she should have been able to attend as well.

I have reviewed the original disclosure, agency report, and the whistleblower's comments. I have determined that the report meets all statutory requirements and the findings appear reasonable. I thank Mrs. Suter for reporting these allegations tci OSC. As require4 by 5 U.S.C. § l213 (e)(3), I have sent copies of this letter, the agency report, and whistleblower's comments to the Chairmen and Ranking Members of the Senate and House Committees on Veterans' Affairs. I have also filed a copy of these documents in our public file, which is available at www.osc.1wv. OSC has now closed this file.

Respectfully,

Carolyn N. Lerner

Enclosures