[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
EXAMINING VA'S FAILURE TO ADDRESS PROVIDER QUALITY AND SAFETY CONCERNS
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HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
WEDNESDAY, NOVEMBER 29, 2017
__________
Serial No. 115-39
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
31-431 WASHINGTON : 2019
COMMITTEE ON VETERANS' AFFAIRS
DAVID P. ROE, Tennessee, Chairman
GUS M. BILIRAKIS, Florida, Vice- TIM WALZ, Minnesota, Ranking
Chairman Member
MIKE COFFMAN, Colorado MARK TAKANO, California
BRAD R. WENSTRUP, Ohio JULIA BROWNLEY, California
AMATA COLEMAN RADEWAGEN, American ANN M. KUSTER, New Hampshire
Samoa BETO O'ROURKE, Texas
MIKE BOST, Illinois KATHLEEN RICE, New York
BRUCE POLIQUIN, Maine J. LUIS CORREA, California
NEAL DUNN, Florida KILILI SABLAN, Northern Mariana
JODEY ARRINGTON, Texas Islands
JOHN RUTHERFORD, Florida ELIZABETH ESTY, Connecticut
CLAY HIGGINS, Louisiana SCOTT PETERS, California
JACK BERGMAN, Michigan
JIM BANKS, Indiana
JENNIFFER GONZALEZ-COLON, Puerto
Rico
Jon Towers, Staff Director
Ray Kelley, Democratic Staff Director
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
JACK BERGMAN, Michigan, Chairman
MIKE BOST, Illinois ANN MCLANE KUSTER, New Hampshire,
BRUCE POLIQUIN, Maine Ranking Member
NEAL DUNN, Florida KATHLEEN RICE, New York
JODEY ARRINGTON, Texas SCOTT PETERS, California
JENNIFER GONZALEZ-COLON, Puerto KILILI SABLAN, Northern Mariana
Rico Islands
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
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Wednesday, November 29, 2017
Page
Examining VA's Failure To Address Provider Quality And Safety
Concerns....................................................... 1
OPENING STATEMENTS
Honorable Jack Bergman, Chairman................................. 1
Honorable Ann Kuster, Ranking Member............................. 2
WITNESSES
Gerard R. Cox, M.D., M.H.A., Acting Deputy Under Secretary for
Health for Organizational Excellence, U.S. Department of
Veterans Affairs............................................... 4
Prepared Statement........................................... 39
Accompanied by:
Shereef M. Elnahal, M.D., M.B.A., Assistant Deputy Under
Secretary for Health, Quality, Safety, and Value, U.S.
Department of Veterans Affairs
Randall Williamson, Director, Health Care, U.S. Government
Accountability Office.......................................... 6
Prepared Statement........................................... 41
Humayun J. Chaudhry, D.O., M.S., M.A.C.P., M.A.C.O.I., President
and Chief Executive Officer, Federation of State Medical Boards 8
Prepared Statement........................................... 46
FOR THE RECORD
Kenneth (Jake) Myrick............................................ 51
VHA ISSUE BRIEF, VISN 1 - VA Maine HCS, Augusta, ME.............. 52
QUESTIONS FOR THE RECORD
Letter From Chairman Jack Bergman to VA.......................... 57
VHA Response to Chairman Jack Bergman Letter..................... 59
EXAMINING VA'S FAILURE TO ADDRESS PROVIDER QUALITY AND SAFETY CONCERNS
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Wednesday, November 29, 2017
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Disability Assistance
and Memorial Affairs,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10:03 a.m., in
Room 334, Cannon House Office Building, Hon. Jack Bergman,
[Chairman of the Subcommittee] presiding.
Present: Representatives Bergman, Bost, Poliquin, Dunn,
Arrington, Gonzalez-Colon, Kuster, and Peters.
Also Present: Representatives Roe, McMorris Rodgers, and
Takano.
OPENING STATEMENT OF JACK BERGMAN, CHAIRMAN
Mr. Bergman. I want to welcome everyone to today's hearing.
Before we begin, I would like to ask unanimous consent for
our colleagues Representative Cathy McMorris from Washington
and Representative Mark Takano from California to join us on
the dais this morning and participate in the hearing, should
they both be able to attend. I know that Ms. McMorris Rodgers
is probably finishing up a meeting and I am guessing Mr. Takano
is too.
So, without objection, so ordered.
Approximately 40,000 providers are privileged to deliver
care at VA's 170 medical centers for the roughly 9 million
veterans who receive medical care through the VA. Ensuring that
these clinicians deliver safe, quality care is a vital piece of
fulfilling VA's mission to provide our Nation's veterans with
the services they have earned. That same mission obligates VA
to hold providers who deliver substandard care accountable.
An important part of ensuring that accountability is the
accurate and timely documentation of problems and
communications with outside entities such as the National
Practitioner Data Bank and state licensing boards. Refusing or
failing to adhere to reporting requirements puts not just
veterans, but all patients across the country at risk of
receiving substandard health care. Today's hearing will explore
how VA fulfills its obligation to hold privileged providers
accountable by communicating with these entities and ensuring
the timeliness and accuracy of such communications.
This week, the Government Accountability Office released a
report requested by this Subcommittee that explores tremendous
deficiencies across VHA in this particular area. The report
found that among the sample sites VA officials at the local,
regional, and national level consistently failed to ensure that
the facilities were adhering to reporting standards and
requirements. This resulted in repeated failures to
appropriately report incompetent providers, who in turn were
free to continue giving care within VA or out in the community.
The burden of ensuring that these providers provide safe,
quality care to veterans naturally rests with the medical
center's administrators who are responsible for overseeing the
delivery of health care services. However, GAO found that the
sampled facilities frequently failed to maintain and provide
sufficient documentation when reviewing or reporting providers.
Moreover, some reviews and reports were initiated months or
even years after problems were identified. Even worse, GAO
found that facilities fail to report offending providers to the
National Practitioner Data Bank and appropriate state licensing
boards in almost all reviewed cases, leaving these providers
free to continue practicing unchecked, sometimes in another VA
or in the local community. These findings show a disappointing
lack of commitment to the veterans receiving care from the
agency and facilities charged with their well-being.
Further, GAO found that VISNs and VHA have failed to
provide the oversight needed to ensure that VA medical centers
are addressing these issues and reporting providers when
appropriate.
While it makes sense that medical center officials are
directly responsible for the integrity of the providers they
employ, the VISNs and VHAs should and do have an obligation to
exercise strong oversight over these competency and privileging
processes. Unfortunately, GAO found that VISNs failed to audit
facilities' provider reviews and did not consistently utilize
the standardized tool designed for these oversight activities.
Having any underperforming provider continue to deliver
care within the VA and to veterans is not only troubling, it is
absolutely unsatisfactory. However, according to GAO, VA
failures in reporting quality concerns allows subpar providers
to not only continue administering care, but also to continue
to be eligible for bonuses related to personal performance.
Unfortunately, this news is not new to the VA.
A 2013 GAO report highlighted that VHA lacks information
about how performance pay decisions were made and whether these
decisions actually reflect a provider's performance. Clearly,
VHA's oversight efforts continue to fall short. That these
issues have persisted unaddressed for four years after being
identified by an outside entity indicates a worrying lack of
urgency on VA's part.
I look forward to discussing potential solutions to these
persistent problems with today's witnesses.
Mr. Bergman. With that, I now yield to Ranking Member
Kuster for her opening remarks.
OPENING STATEMENT OF ANN KUSTER, RANKING MEMBER
Ms. Kuster. Thank you, Mr. Chairman, and thank you to our
witnesses and to all of you who are joining us today.
Reporting and documentation protects patients from harm and
in some cases will save lives. You may remember at the very
hearing that we held this Congress we discussed a case where a
technician at a New Hampshire hospital infected up to 50
patients with hepatitis C, because he was injecting himself
with fentanyl intended for patients. Before being arrested in
New Hampshire, he had been fired from medical facilities in
half a dozen states, including the Baltimore VA Medical Center.
The doctor who was fired from the Tomah VA Medical Center
in Wisconsin for over-prescribing opioids and retaliating
against employees was immediately hired by a VA Choice Program
provider and started treating veterans again.
A podiatrist who had been fired from the Togus VA Medical
Center in Maine for harming veterans by performing surgeries
below the clinically acceptable standard of care was hired by
private providers. This same podiatrist harmed other patients
after leaving the VA.
And GAO found in its report that a provider under contract
to provide care at a VA medical facility was fired for patient
abuse after 2 weeks on the job. The VA facility terminated the
contract, but did not report the provider to the National
Practitioner Data Bank or the appropriate state licensing
board.
In all of these cases, the VA should have reported these
providers to the National Practitioner Data Bank and to state
licensing boards. VA and medical facilities all across the
country are failing to protect patients by not reporting
providers who do not meet clinically accepted standards of
care. GAO found that providers who should have been reported
were able to continue practicing at the VA during professional
practice evaluations and reviews, and even after being fired
from VA or forced to resign.
I would like this hearing to examine what the VA can
immediately do to ensure incompetent and unprofessional
providers are reported, and whether legislation is needed to
ensure that this reporting happens and that patients are
protected.
Additionally, GAO's report raises two issues that we
continue to observe in our Subcommittee hearings: unclear and
confusing VA policies and lack of oversight from the VISNs. The
GAO found both unclear policies and lack of VISN oversight
contributed to VA's failure to report providers to state
licensing boards and National Practitioner Data Bank.
This week, Congresswoman Brownley and I asked the GAO to
study the role of VISNs and to help us determine whether VA
policy appropriately outlines the VISNs' oversight
responsibilities. We have heard countless times on this
Subcommittee that VISNs are not conducting appropriate
oversight. When the GAO completes its work, I would like our
Subcommittee to hold a hearing to determine what action should
be taken to ensure that VISNs are enforcing VA policies and
performing their oversight duties.
I also remain concerned about unclear VA policies and
directives. This is one issue that has contributed to VHA's
placement on the GAO high-risk list and confusion over VA
policies on reporting providers to state licensing boards and
the National Practitioner Data Bank was a major cause of VA's
failure to report.
VA employees should not have to read multiple policies and
outdated directives to figure out which policy should be
followed. Policies and directives should be clear, easy to
follow, and policies should be clearly communicated to medical
facilities. Employees who fail to follow policy should be held
accountable.
Finally, providers who are fired from VA for failing to
provide quality care to veterans should not be treating
patients as a Choice Program provider or receiving taxpayer
dollars.
Now, Senator Tammy Baldwin has a bill that has passed out
of the Senate called the Access Act. It would prevent fired or
suspended providers from treating veterans. It passed recently
in the Senate and I am hoping that our VA Committee will
quickly bring this bill to the floor and send it to the
President's desk, and I look forward to working with the chair
and Chairman Bergman to that effect.
Thank you, and I yield back.
Mr. Bergman. Thank you, Ranking Member Kuster.
I ask that all Members waive their opening remarks, as per
this Committee's custom.
With that, I invite the first and only panel to the witness
table. As I see, you are already comfortably seated. And I
think you know that you have to turn your mike on; other than
that, nothing else has change since the last time you were
here.
On our panel we have Dr. Gerard Cox, Acting Deputy--Acting
Deputy Under Secretary--you know, we need to shorten up some of
these titles--for Health for Organizational Excellence for the
Department of Veterans Affairs. He is accompanied by Dr.
Shereef Elnahal, VA's Assistant Deputy Under Secretary for
Health, Quality, Safety, and Value.
We also have Mr. Randy Williamson, Director of Health Care
Issues for the Government Accountability Office; and Dr. Hank
Chaudhry, President and CEO for the Federation of State Medical
Boards.
I ask the witnesses to please stand and raise your right
hand.
[Witnesses sworn.]
Mr. Bergman. Thank you. Please be seated.
Dr. Cox, you are recognized for 5 minutes.
STATEMENT OF GERARD R. COX
Dr. Cox. Thank you. Good morning, Chairman Bergman, Ranking
Member Kuster, and Members of the Subcommittee. Thank you for
the opportunity to discuss our medical centers' clinical
competency reviews, compliance with reporting to state
licensing boards and the National Practitioner Data Bank, and
the related GAO report.
I am accompanied today, as you noted, by Dr. Shereef
Elnahal, the Assistant Deputy Under Secretary for Health, for
Quality, Safety, and Value.
Prior to joining the Veterans Health Administration a
little less than 4 years ago, I served for more than 30 years
in uniform as a U.S. Navy Medical Officer. I am a proud veteran
of the 1990-'91 Gulf War and the ongoing conflict in
Afghanistan. I dealt firsthand with issues surrounding clinical
competency and adverse privileging actions as the Commander of
the Naval Hospital at Camp Lejeune, as the Second in Command of
the U.S. Naval Hospital in Okinawa, Japan, and as the Deputy to
the Medical Officer of the Marine Corps. During my last year on
Active duty, I served as the Assistant Inspector General of the
Navy for Medical Matters.
In my capacity at VHA, I am responsible for strengthening
our compliance, ethics, and oversight functions, and I assumed
broader responsibility as the Acting Deputy Under Secretary for
Health last month. Therefore, I know well how important the
issues we will address at today's hearing are to VA and to my
fellow veterans.
VA has an ethical and moral obligation to our veterans, our
agency, and our community to report certain providers to the
National Practitioner Data Bank and state licensing boards.
We are taking three major steps to improve clinical
competency and reporting: number one, we are improving our
oversight to ensure that no settlement agreement waives VA's
ability to report providers to the data bank or the licensing
boards. Second, we are reporting more clinical occupations to
the National Practitioner Data Bank instead of just physicians
and dentists. And, thirdly, we are improving the timeliness of
that reporting. We are also rewriting and updating our policies
in response to the GAO's report. We are constantly striving for
improvement in these areas to make sure our veterans receive
the highest quality of care, which they have earned and
deserve.
If the clinical practice of a privileged provider raises
concerns about the quality of care, VA conducts a review to
assess the provider's performance in that area. This is to
substantiate if there is a concern related to the provider's
clinical practice and to determine the appropriate next steps.
If that information that caused the trigger raises a concern of
imminent danger to patients, the provider may be removed from
patient care by the medical center director until that review
is complete.
If the review results in an adverse privileging action,
such as reduction or revocation of privileges to practice in
that facility, the medical center director is the final
authority on that decision, in accordance with the
accreditation standards of the Joint Commission, the entity
that accredits all VA hospitals, as well as many hospitals in
the private sector across the Nation.
Once the medical center director decides to take a final
privileging action, the clinician is afforded a fair hearing
opportunity. Clinicians who resign or retire while under
investigation must still go through a limited hearing process.
Although the National Practitioner Data Bank only requires
the health care industry to report physicians and dentists when
an adverse privileging action is taken, or when they resign or
relinquish privileges while under investigation, VA is
voluntarily expanding the range of clinical occupations that we
will report. We are doing this because we feel it is the right
thing to do for veterans. This means that we will report to the
National Practitioner Data Bank all privileged providers for
adverse privileging action, all privileged providers who resign
or relinquish privileges while under investigation, and any
licensed provider who was terminated from a VA facility for
substandard care, professional incompetence or professional
misconduct, thus excluding them from future participation in
the VA's community care programs.
In addition, at the direction of the Secretary, VA now
requires that any employment dispute settlement involving
payments of more than $5,000 must be approved by top VA
officials here in Washington rather than officials at the local
or regional level. We will expand this review process to
confirm the requirement to report the provider to the National
Practitioner Data Bank or state licensing boards. Any VA
employee who is found to have proposed withholding that
reporting will be subject to investigation and disciplined.
In addition to expanding the types of providers that can be
reported, VA will improve the timeliness of both the decision-
making on whether to report providers and the process of
reporting providers, shortening the timeframe of that process.
GAO recently released report made four recommendations and
VA has concurred with all of them. In response to these
recommendations, VA will rewrite policy to formalize guidance
on focused management review and will include timeline
expectations for those reviews. We will update the standardized
auditing tool to include monitoring of appropriate action taken
when clinical care concerns are identified, and to include
monitoring of timely reporting to the National Practitioner
Data Bank, specifically for privileging actions and resignation
while under investigation.
Mr. Chairman, as I have described, VA is taking three major
steps to improve clinical competency and reporting, reporting
more clinical occupations, improving he timeliness of
reporting, and enhancing oversight to ensure that no settlement
agreement waives VA's ability to report to the data bank and
the licensing boards of states.
I am proud of the health care our facilities provide to our
veterans and VA is committed to upholding that high level of
care.
Thank you for the opportunity to testify today and I look
forward to your questions.
[The prepared statement of Dr. Cox appears in the Appendix]
Mr. Bergman. Thank you, Dr. Cox.
Mr. Williamson, you are now recognized for 5 minutes.
STATEMENT OF RANDALL WILLIAMSON
Mr. Williamson. Good morning, Chairman Bergman and Ranking
Member Kuster.
VA medical centers are responsible for ensuring that their
providers deliver safe, high-quality care to veterans. If
concerns arise about the VA provider's clinical care, VAMCs are
required to undertake actions to review that provider's care
and determine whether an adverse privileging action should be
taken that restrict or curtail care the provider is allowed to
deliver.
VAMCs are required to report VA providers for whom adverse
actions have been taken to the National Practitioner Data Bank
and state medical licensing boards. At the behest of Chairman
Roe and this Subcommittee, GAO evaluated VA's processes for
reviewing providers' competency at five VAMCs across the
country and consistently found a variety of disturbing problems
with how these processes are being carried out.
Specifically, we found that after concerns were raised
about the providers, required reviews of their clinical care
was frequently not done or not conducted in a timely manner.
Moreover, where adverse actions were taken against providers,
VAMCs did not report providers to the data bank or to state
medical licensing board, as required, or did so in a timely
way.
We found that during the four-year period ending March,
2017, the five VAMCs we reviewed collectively required clinical
reviews of 148 providers after concerns were raised about their
care. For almost half these cases, VAMC officials could not
provide documentation that the reviews were actually conducted.
We also found that reviews were not always timely. We found 16
cases where reviews were delayed more than 3 months and in some
cases years after concerns were raised. For two providers,
reviews were initiated 3 and a half years after concern was
raised and then only after we requested documentation on those
cases.
The bottom line, VAMCs have been lax in conducting these
reviews and VHA has no policy governing how soon reviews should
occur after clinical care concerns have been raised. That needs
to change.
We also found that for providers who had adverse actions
taken against them, or who had resigned or retired during the
adverse-action process, VAMCs failed to report them to the data
bank and state medical license board, as VA policy requires.
From our sample of 148 providers, we found that VAMCs should
have reported 13 providers to the data bank and the state
medical licensing boards. They reported only one of the 13
providers to the data bank and none to the state licensing
boards.
VAMC staff told us they were oft confused about their
reporting responsibilities, even though VA policies are clear
in this regard. At one facility that accounted for six
unreported providers, VAMC staff that were responsible for
reporting were not even aware of those responsibilities, even
though those responsibilities were actually in the local
medical center policy.
VA's failure to report providers to the data bank or state
licensing boards makes it possible for providers to obtain
privileges at other VAMCs or non-VA health care entities that
serve veterans. For example, for two providers in our sample
whose services were terminated and whose adverse actions were
not reported, one subsequently held privileges at another VAMC
while the other belongs to a provider network that provides
care to veterans in the community.
Even in the one case where we found the VAMC had reported
the provider, it took 136 days from the time the appeals
process was completed to the actual report, far beyond the
current 15-day VA reporting requirement.
VA has no similar policy specifying how soon a provider
should be reported to the state licensing boards after the
adverse-action process is completed.
Generally speaking, the situations I have described were
allowed to happen largely because of poor oversight and
accountability from top to bottom in the VHA hierarchy. For
example, neither the VISN nor the VA central office officials
routinely perform any oversight to ensure that reviews are
conducted in a timely way. Moreover, VA policy does not require
that VISNs oversee reporting to the data bank or state
licensing boards; because of that, none of the VISNs we
reviewed did so.
While VA has agreed with our recommendations and promised
to make needed improvements, we believe that immediate,
decisive actions are needed to remedy the serious problems we
identified. Otherwise, VAMCs are potentially putting veterans
in harm's way by exposing them to substandard and unsafe care.
That concludes my opening remarks.
[The prepared statement of Mr. Williamson appears in the
Appendix]
Mr. Bergman. Thank you, Mr. Williamson.
Dr. Chaudhry, you are now recognized for 5 minutes.
STATEMENT OF HUMAYUN J. CHAUDHRY
Dr. Chaudhry. Thank you. Good morning, Chairman Bergman,
Ranking Member Kuster, and Members of the Committee. Thank you
for this opportunity to discuss the important role that state
medical boards play in the protection of the public and how
working together we may be able to better protect our veterans.
I am pleased to mention that I served 14 years in the Air
Force Reserves, trained to be a flight surgeon, and have more
than a passing familiarity with issues related to health care
needs of military personnel and veterans.
My organization, the Federation of State Medical Boards,
was founded in 1912 and represents all 70 of the state medical
and osteopathic regulatory boards in the United States and its
territories, including Puerto Rico, Guam, the Northern Mariana
Islands, the U.S. Virgin Islands, and the District of Columbia.
The mission of the FSMB is to support its member boards as
they fulfill their statutory mandate to protect the public's
health, safety, and welfare through the proper licensing,
disciplining, and regulation of physicians and other health
care professionals.
In addition to licensing physicians, state and territorial
medical boards are empowered to investigate complaints or
reports about physicians who may be incompetent or acting
unprofessionally; to discipline those who violate the law; to
work with local and Federal law enforcement where appropriate;
to conduct physician evaluations; and to facilitate
rehabilitation of physicians when appropriate. All of our
member boards engage in an ongoing cooperative effort to share
medical licensure and disciplinary information with one another
by regularly contributing data to the FSMB's Physician Data
Center, a comprehensive data repository that contains
information about more than 950,000 actively licensed
physicians in the U.S. including those who work for the VA.
The FSMB applauds the noble mission and dedication of the
VA and its many personnel in serving the Nation's 9 million
veterans and we believe strongly that veterans deserve the same
level of quality health care and regulatory oversight and
accountability that is available to the general public, if not
better.
We have read with great concern the October 11
investigative story in USA Today. While we are pleased that the
VA through FSMB's Physician Data Center has had access over a
number of years to comprehensive licensure and disciplinary
information about physicians who work for the VA, more needs to
be done to improve the sharing of information from the VA to
the state medical boards that would expediently and efficiently
identify unsafe providers operating within the VA system.
While the dearth of timely information sharing from the VA
is not unique to the VA - civilian hospitals, health systems,
medical directors, employers, and all physicians and health
care providers can and should do more and do a better job of
sharing concerns about incompetent or unprofessional doctors -
we know that the VA has had policy in place for more than a
decade specifically requiring such sharing.
In consultation with several state medical boards, we have
confirmed what has been reported by the GAO that the VA does
not always alert state boards in a timely fashion about
violations, disciplinary actions, or suspected violations of a
state's medical practice act. While the VHA handbook outlines
notification requirements, in practice, the state boards tell
us, many VA sites have not adhered to these standards.
While it is important to note that each state board's
relationship with their local VA facilities tends to vary and
some are better than others in terms of information sharing, we
have found it rare for a board to receive up-front or helpful
information from the VA in a timely manner. When information is
shared with a state medical board, we have learned it is often
well past the 100-day notification requirement designated by
the VA.
These gaps in communication between state medical boards
and the VA are of significant concern to the FSMB and we
sincerely hope that we can work with our boards, the VA, and
Congress to address this issue and overcome any perceived
impediments.
Providers who are unqualified or unsafe to practice
medicine in the VA should not be allowed to practice outside of
or elsewhere in the VA, nor should such providers be able to
conceal their disciplinary actions with secret settlement
arrangements. Proper notification of provider disciplinary
proceedings within the VA to the appropriate state medical
boards and the National Practitioner Data Bank will help ensure
that unsafe and dangerous physicians are identified and
prevented from also treating patients outside of the VA.
The FSMB commends Congress for recognizing these
deficiencies and for moving swiftly to rectify them with
legislative solutions. The FSMB has endorsed H.R. 4059,
introduced by Chairman Roe, House Republican Conference Chair
Cathy McMorris Rodgers, and Congressman Bruce Poliquin; as well
as S. 2107, introduced by Senators Dean Heller and Joe Manchin.
Chairman Bergman, thank you for the opportunity to testify
before the Committee today. I look forward to responding to any
questions you and the other Members of the Committee may have.
[The prepared statement of Dr. Chaudhry appears in the
Appendix]
Mr. Bergman. Thank you, Dr. Chaudhry.
The written statements of those who have just provided oral
testimony will be entered into the hearing record.
We will now proceed to questioning. And just know that when
Ms. McMorris Rodgers comes, we are going to recognize her
without objection, because she has a real tight schedule and if
everybody is okay with that, you know.
But anyway, so we will now proceed with the questioning,
and I would like to recognize Ranking Member Kuster for 5
minutes.
Ms. Kuster. Thank you, Mr. Chairman, and thank you to you
all for your testimony today.
I want to turn my attention to Mr. Williamson from the GAO,
and I just want to say for the record that Mr. Williamson is
coming up on his retirement after 50 years of public service--
50, 5-0.
Mr. Williamson. Thank you.
[Applause.]
Ms. Kuster. We thank you. On behalf of Americans
everywhere, thank you for your service to your country. We are
very grateful.
Mr. Williamson. Thank you.
Ms. Kuster. In your report, you recommended that the VHA
establish timeliness standards for reviewing providers after
concerns are raised about their clinical care, and I first want
to clarify and then ask what your recommendations are.
Between your testimony and Dr. Chaudhry, I heard 15 days to
report and then I heard 100 days to report. So these may be
reporting different things, but if you could just give us an
overview of what the current rules as you understand them are
and what your recommendations are for timeliness of reporting.
Mr. Williamson. Once a concern is raised, there is no time
period for when that review of the provider's care should
start, but once that process is started and it is completed,
let's say it is completed with an adverse action, then VA has
15 days by their own standard to report to the National
Practitioner Data Bank. For state licensing board reporting,
the process is different, and it is a lower bar, because the
state licensing board does their own investigation, VA doesn't
have to go through the rigor that they do with an adverse
action. So--and there is no reporting requirement at all there.
So what we are thinking is that, first of all, there should
be a time period or a requirement for how soon after the care
is questioned to when the actual review starts, and I see no
reason why that shouldn't be 30 to 60 days. We saw nothing in
our discussions with VAMC staff that would indicate there were
any problems with that.
Once reporting--and the 100 days, the 100-day requirement,
or it is not really a requirement, it is something that VA
officials suggest that the state licensing board process should
take, but that is not a requirement right now. So I think
basically 30 to 60 days to start the review for the state
licensing board, 100 days perhaps to do the review, and then it
should be immediately reported.
Ms. Kuster. All right, that is very helpful. Thank you.
And in your report you mention that VHA has established a
required timeframe for completing reports the National
Practitioner Data Bank--okay, this is what you have just
reviewed, but not to the state licensing boards. Would you
suggest to us that these timelines that you have recommended
should be by statute or should we be working with VHA? It
sounds from Dr. Cox that they are making some progress in this
regard. Do you have a preference that--
Mr. Williamson. Well, if VA established that in policy and
was specific enough along the lines I just talked about, that
would probably be sufficient. My question would be whether VA
is willing to do that.
Ms. Kuster. So then I will turn to Dr. Cox.
Can you clarify for this Committee whether new guidelines
with timeliness standards are underway or whether our Committee
should follow-up with statutory guidelines, so that after your
good works are done future people at the VA would comply?
Dr. Cox. Yes, thanks, Congresswoman. They are underway and
our new procedures are being written. In our response to the
GAO, which they accepted, in response to their recommendations
we committed to giving interim guidance to our field facilities
next month, in December. And then the process of writing the
formal policy and getting that approved and signed will take a
little bit longer, but it will be completed this year, this
fiscal year.
Ms. Kuster. And my time is shortly up, but can you just
briefly say the timelines that you are suggesting?
Dr. Cox. The timelines are, as Mr. Williamson said, a
recommendation for 100 days to complete the entire state
licensing board reporting process. The National Practitioner
Data Bank reports generally take much longer because, as was
suggested, they require a more thorough investigation and a
final decision about whether an adverse privileging action
should be taken. So that will be longer.
Ms. Kuster. My time is up, but hopefully one of my
colleagues will follow-up. Thank you.
I yield back.
Mr. Bergman. Thanks, Ranking Member Kuster.
Ms. McMorris Rodgers, thanks for joining us this morning.
You are recognized for 5 minutes. We know you have an extremely
tight schedule.
Mrs. McMorris Rodgers. Well, thank you, Chairman. I
appreciate the opportunity to join the Veterans Affairs'
Committee on this important issue.
I wanted to ask Dr. Cox, that you testified that the VA is
implementing new policies in light of concerns raised about the
VA's processes for reporting safety and quality concerns. I
remain worried that VHA's central office remains too
disconnected from the field to effectively enforce policies.
The question is, what specific actions will VHA take moving
forward to improve communication with and oversight of the
field offices in regards to reporting safety and quality
concerns?
Dr. Cox. Well, thank you. The key to your question is in
fact oversight and as Mr. Williamson has pointed out, as GAO
has pointed out to us before, as Representative Kuster
mentioned in her opening remarks, the VA has come under
criticism for not providing adequate oversight and
accountability of its facilities. And I share that concern;
that is one of the reasons that we are on the GAO high-risk
list.
So we need to do much better. I mean, I can't excuse the
fact that in the past that adequate oversight by VISNs and by
the central office has not been provided.
So among the steps that we are taking are developing a new
electronic auditing tool that we will be able to use and will
require the VISNs to use to monitor the timeliness and the
compliance with reporting requirements within the facilities in
their regions. And then we will be able to compile that
information at the national level beginning in 2018 and be able
to generate a report at the end of the year, so we will have a
much better handle on how things are going out there.
Mrs. McMorris Rodgers. So that is part of the solution, but
I think, as we know, reaching agreements to exchange refraining
from reporting a provider for their resignation or retirement
are against VHA policy and concerns persist that these
agreements are still taking place. So what will make oversight
of these policies change the outcome?
Dr. Cox. You are absolutely correct. Any agreement that
involves negotiating a decision not to report somebody who
should otherwise be reported is not only a violation of VA
policy, it is illegal and is unethical. And when we find that
any facility director or other leader in the field has engaged
in such a negotiation, we will provide appropriate
investigation and take disciplinary action as warranted.
Mrs. McMorris Rodgers. What are you doing with the current
cases that we have been made aware of?
Dr. Cox. Each of those cases has been provided to us. The
GAO was able to give us the names of the individual providers
who were not reported in a timely fashion and that they cited
in their report. And so we now have that information and have
begun the work of contacting each of the facilities that are in
question, determining why what happened did not happen, and
have already begun the process in all of those cases, nine out
of nine now, to conducting reporting both to the data bank and
to the state licensing boards.
Mrs. McMorris Rodgers. How long do you anticipate that
taking?
Dr. Cox. Well, four of those nine have already been made,
four of those nine reports have already been made. Those were
the simpler ones where the individual left VA's employment
while under investigation, so it is a fairly easy decision. In
the other five cases where there was an adverse privileging
action taken there is a little bit more process to make sure
that the individual has a chance to rebut the claims and so
forth, but once that process is over the reports will be made
very quickly.
Mrs. McMorris Rodgers. So can you just share with me what
will be the role of the VISNs in this implementation?
Dr. Cox. The VISNs need to do a better job of overseeing
these practices within their regions. My view is a longstanding
lack of clarity about the roles and responsibilities of VISN
officials vis-a-vis their facilities and also vis-a-vis the
central office.
So great discussion is going on now across VA and in the
parts of the organization that I work about clarifying those
roles and responsibilities. You may have heard that Secretary
Shulkin is committed to modernizing the VA and this is one of
the key elements of the VA modernization effort, to clarify the
decision-making authorities, the roles and responsibilities,
and then to hold people accountable for maintaining those
responsibilities.
Mrs. McMorris Rodgers. Well, I greatly appreciate your
attention to this issue. I appreciate so many that work at the
VA all across the country, but unfortunately we have also had
some incidences at the medical centers that I represent where
doctors were let go, but then it wasn't reported anywhere and
then they went into the private sector. So it is very important
that this accountability take place.
So, thank you, and thank you, Mr. Chairman, for giving me
the chance to join you today.
Mr. Bergman. Thanks for joining us.
I am now going to recognize Mr. Takano for 5 minutes. Thank
you for joining us.
Mr. Takano. Chairman Bergman, I want to thank you and
Ranking Member Kuster for letting me join the Subcommittee this
morning. I really appreciate what you have done.
Dr. Chaudhry, VA has a policy of requiring the reporting of
providers; do other hospitals and medical directors,
physicians, and health systems have policies requiring the
reporting of incompetent or unprofessional providers?
Dr. Chaudhry. Congressman, you are referring to outside the
VA system?
Mr. Takano. Outside the VA.
Dr. Chaudhry. There is a requirement understood, but not
always followed, by hospitals and others to--medical centers
and facilities to share information as well.
I made it a point in my remarks to mention that this issue
is not unique to the VA. The state medical boards can do more
for the Nation in protecting the public if they had access to
more timely information from all sorts of sources. And I agree
with Dr. Cox, it is an ethical matter ultimately for physicians
and others to do that as well.
Mr. Takano. So, but these policies vary from state to state
and I am trying to get a sense--the line of my question is to
try and get a sense of VA and non-VA providers and the
accountability that we expect and the reporting of these
incidents.
Do you have any data that could be used to compare the rate
at which VA providers are reported compared to the rate at
which private providers are reported to the state licensing
boards and the National Practitioner Data Bank?
Dr. Chaudhry. Yes, I can provide you--my staff can provide
you that information afterwards.
Mr. Takano. Okay. I would be very much interested in seeing
that.
What review mechanisms are afforded to providers before
they are licensed or practicing privileges are suspended or
revoked?
Dr. Chaudhry. Just as in the VA system, Congressman, there
is a due process that the state boards adhere to as part of
their medical practice acts. So any physician for whom there is
a complaint, there is a process to determine if it warrants
investigation, number one, and, if it does, there is ample
opportunity for the physician to be represented by counsel, if
necessary, and to be able to rebut or explain the
circumstances.
These processes are not new, they have been around for the
state boards for decades, and they ultimately serve the public
in the right way, we believe.
Mr. Takano. How could the VA makes it provider reviews and
professional performance evaluation processes more transparent
to veterans, state licensing boards, and to the public?
Dr. Chaudhry. Well, one of the things we have heard,
Congressman, is that the information that the state boards do
get sometimes has significant pieces of information that is
redacted for privacy purposes and sometimes even the names of
the providers. It is very difficult to do the right thing at
the state board level if information that is relevant to the
complaint and the individual is not made available.
So while we are talking about sharing of information, I
would hope that that information is actionable information.
Mr. Takano. Getting back to the question about the
comparative data, are there any generalizations you can just
sort of tell me? I mean, is the VA on par with the non-VA
providers in terms of its reporting practice or is the private
sector ahead? How do they compare? Or is it just too
complicated to explain in a short answer?
Dr. Chaudhry. I couldn't tell you that, but what I can tell
you is the VA has a benefit of being a centralized system, it
is a closed system, so that in theory, when something goes
wrong, it should be able to be traveled up and to be addressed
in the right way.
The Nation's hospitals are all under different management,
some are for-profits and non-profit, it becomes a little bit
more complicated, but there is a benefit to the VA to be able
to do this in the right way.
Mr. Takano. I am generally interested in the question as
to--I mean, the VA is certainly subject to the oversight of the
Congress, of this Subcommittee, and I think it is important for
the public to understand how transparent the private systems
are too. I kind of get the sense that they are less
transparent, because they don't report to Congress and they are
not subject to the kind of oversight that we can lend, and if
there is comparable kinds of oversight at the state level.
Dr. Chaudhry. I couldn't tell you if they are less
compliant or less forthcoming. What I can tell you is the FSMB
last year through our House of Delegates, which is made up of
all the state licensing boards, passed a resolution about the
duty to report, which speaks to what Dr. Cox was referring to,
the ethics of this. It is important for everyone, not just
providers, but members of the public, Members of Congress, and
others, that if they are aware of an issue, whether it is
individuals or an entity or a site that they need to speak up.
Mr. Takano. Dr. Cox, how will the VHA hold VISNs
accountable for performing routine oversight over medical
facilities and ensure reporting to state licensing boards and
National Practitioner Data Bank?
Dr. Cox. Well, as these policies are revised and the
requirements strengthened, we will be able to hold VISN
officials more accountable. I think the importance of
reinforcing our expectations of them has to come first and
then, as soon as those expectations are made clear, we will be
able to address it.
Mr. Takano. All right. Thank you very much. My time is up.
And I want to thank the Chairman and Ranking Member again
for allowing me to participate today. Thank you.
Mr. Bergman. Thanks, Mr. Takano.
Mr. Bost, you are recognized for 5 minutes.
Mr. Bost. Thank you, Mr. Chairman.
A lot of the questions that I had have been answered, but I
wanted--and I know we are moving forward with a different
policy, but, Dr. Cox, can you explain to me, because I would
like to know, how in the world anyone ever in the VA process
thought it was okay to make a deal to send somebody on to a
different location and/or just not report them, have them
leave? Whenever I have my constituents out there, all of a
sudden they go into the private sector or whatever and then we
have endangered them as well. How did that come about?
Dr. Cox. Well, Congressman, I agree, that is a very
troubling situation, and I can't explain how that comes about.
As you know, each of these negotiations is conducted on a case-
by-case basis and there are different facts that pertain.
I will point out that when we are talking about settlements
of employment disputes, that is separate from the credentialing
and privileging actions taken by medical staffs to police
themselves. So these are negotiations that occur because our VA
providers happen also to be Federal employees and subject to
all of the processes and responsibilities that go along with
that.
So those settlement agreements are generally undertaken by
people outside the medical staff, but that is certainly no
excuse. And as I said before, once we determine that any such
agreement has been made that is not only a violation of policy,
but illegal and unethical, then we will take action to
investigate those individuals.
Mr. Bost. Let me tell you a story and many of my colleagues
have heard this. Prior to being elected, I actually--because I
have a VA close to my home, I actually asked many people online
to give me any information. A very good friend of mine actually
responded back that actually we had a physician at the VA
hospital in Marion, he said that she did a great job of his
exam and everything like that; however, if she didn't have
religious beliefs where she couldn't look below the waist, they
would have found his hernia.
It took us almost 3 years to get rid of that physician, 3
years. Now, when she took her medical courses, she didn't have
that religious belief, okay? This was picked up afterwards.
Do we have things in place now that allow the
administrators of VA when a situation like this comes up that
they can actually remove them from their positions, so that
someone who can do their job adequately can be put in place, or
are we bound by certain rules that they are protected where you
can't let them go?
Dr. Cox. Congressman Bost, I am going to defer to my
colleague Dr. Elnahal to help me answer that question.
Dr. Elnahal. Congressman, I think it is a great question,
and in that particular case we do have a process within the VA
that allows us to evaluate the clinical behavior and practices
of physicians, that is called a focused professional practice
evaluation. So if there is a clinical concern raised or if
somebody notices that something was missed for a reason like
that, there is a process by which we evaluate through a peer
who also practices in that specialty and people who know how
to--the standard of care and the scope of practice to evaluate
that practice.
And in that situation, if that was caught in such an
evaluation, something would have been done about it. The
concern would have been raised to the chief of staff and
potentially a privileging action--
Mr. Bost. Has that policy been in place a long time?
Dr. Elnahal. We have been doing focused professional
practice evaluations for a very long time.
Mr. Bost. Okay.
Dr. Elnahal. Every time we on-board a new physician that is
done, just for our due diligence, and then it can also be done
if a clinical concern is raised.
Mr. Bost. More on a personal note before my time runs out,
specifically with Marion--and, Dr. Cox, you may have to look
this up and get back with me later on, but we actually--the OMI
did a report and found out that many of our radiologists were
either over or under-reading reports and it was then turned
over, and I just need to know if the review has been done on
that and has that problem been corrected.
Dr. Cox. The Office of the Medical Inspector, which I
oversee, has actually been to Marion twice in the last few
months, the first time for the radiology service evaluation
that you mentioned and the second time to look at broader
issues of patient safety and leadership and so forth.
So the findings of the review of the radiology department
have been--made complete recommendations for corrective action
and the facility has provided its corrective action plan to us,
which we are monitoring to completion.
Mr. Bost. Okay. Thank you very much.
I yield back.
Mr. Bergman. Mr. Poliquin, you are recognized for 5
minutes.
Mr. Poliquin. Thank you, Mr. Chairman, very much, I
appreciate it. Thank you all for being here.
Dr. Cox, first of all, thank you very much for your service
to our country, and everybody else on the panel, I really
appreciate it.
Dr. Cox, you are a physician?
Dr. Cox. Yes.
Mr. Poliquin. Okay. Is the standard of care at the VA the
same standard of care that you should receive or a patient
should receive at a non-VA hospital?
Dr. Cox. Absolutely.
Mr. Poliquin. Okay. You know, I am really troubled by what
I am hearing today and by some of the news reports that I will
get into in a little bit here. We hear from Dr. Chaudhry that
folks in the non-VA medical center community, whether it be a
for-profit or non-profit, seem to report on a more timely basis
when we have accusations or allegations or investigations about
malpractice, but they are not as forthcoming at the VA. Didn't
I hear you say that, Dr. Chaudhry?
Dr. Chaudhry. Part of the problem, Congressman, is that the
state medical boards are complaint-based, so that we don't know
what we don't know. So I couldn't make comparisons, but it is
an issue of reporting everywhere.
Mr. Poliquin. Okay. So let's take a look--Mr. Williamson,
you have been around for a long time.
Mr. Williamson. Yes.
Mr. Poliquin. Congratulations on your forthcoming
retirement, sir. You looked at five out of the 170, roughly,
medical centers in the VA during this study of yours and you
identified about 148 doctors and nurses, and what have you, and
practitioners that the concerns rose to the level of being
investigated and only one of those, one of those, if I am not
mistaken, was reported to the National Data Base, is that
correct, but not to the state--
Mr. Williamson. correct.
Mr. Poliquin [continued]. --at the state level? Okay. And
it took 4 and a half months to do this, roughly?
Mr. Williamson. It took what?
Mr. Poliquin. Four and a half months to do this, roughly,
about 136 days. Okay, do you find that unusual?
Mr. Williamson. Yes.
Mr. Poliquin. Okay. If you were to do the same evaluation
of five out of the thousands of hospitals in the non-VA space,
do you think you would find that sort of mismanagement?
Mr. Williamson. Probably, I don't know. But, you know, I
can tell you that if we looked--I am confident I could take my
audit team in almost any VA medical center and find similar to
things that we--
Mr. Poliquin. Okay, I am talking about if you were auditing
non-VA hospitals.
Mr. Williamson. Non-VA hospitals, I have no idea on that.
Mr. Poliquin. Okay. Here's one of the problems that I have,
fellas--folks. There is a terrific veteran from Maine, his name
is Jake Myrick. Jake was an infantryman in the Army for 15
years and discharged in 2003. In 2004, he goes up to Togus,
which is our only VA hospital in the State of Maine. The first
in the country, by the way, we are very proud of and, for the
most part, they do a good job. In 2004, he meets with a fellow
named Tom Franchini, Dr. Thomas Franchini, who is a foot
surgeon at Togus. He has having a lot of problems with his
foot. And, in 2005, Franchini operates on him and botches the
operation.
For the next 5 years, the pain is excruciating, it doesn't
fix the problem. They say, well, you need some orthotics or you
need some ankle braces. He stops running, stops biking, stops
coaching his kids in athletics because he just can't take the
pain. He is depressed, he is at home, he quits his job.
Now, during the ensuing 5 years while all this is
happening, from roughly 2005 to 2010, there are 87 other
veterans that are operated on by Mr. Franchini up at Togus, 87
other, all botched over this 5-year period. One of them, April
Wood, had multiple operations on a problem ankle that were
botched. The pain was so excruciating, the only way to relieve
it was to amputate her leg. Amputate her leg.
Now, in 2010, the folks up at Togus and confirmed by the
headquarters of the VA, wherever in the heck that is dealing
with this issue, recognizes, you know, absolutely there was a
problem here. In 2010, 5 years after. It took them 3 and a half
years to get back to those 88 folks who suffered under Mr.
Franchini to even notify them that, yes, he was a problem, and
it exceeded the statute of limitations.
You know what I think? I think we got a culture here at the
VA, no one wants to be responsible. You are not reporting on
time to make sure no other people are hurt. I think you all are
protecting your butts. what I think is happening.
This mismanagement is breathtaking. How do you fix it? I
don't know how to fix it. I've got a great idea, though, Mr.
Chairman, and I don't know if there is a way to do this, but I
am going to talk to David Shulkin about that this afternoon.
Maybe there is a way we can withhold funding from VA central to
some of the hospitals out in the field who don't report on time
what they should report so this doesn't happen in the future.
Maybe we can do something like that; I don't know if we can,
but I am going to find out.
Secondly--and thank you for the indulgence, Mr. Chairman--
H.R. 4059 I have cosponsored with Chairman Phil Roe and
Conference Chairman Cathy McMorris Rodgers, who was just here,
it requires the VA to do what they are supposed to do, why in
the heck do we have to write a new law to force the VA to abide
by their own rules? And we wonder why the American people are
losing confidence in Government?
These are people who fought for our country, these are
veterans. We have got a problem at the VA where people are
providing service to our veterans with botched operations, one
after another, and we are not reporting it on time and they go
out and they do it to someone else? Yeah, I am all for
withholding money from these folks that don't report this.
But it is a shame, Mr. Chairman, we have to pass
legislation to have the VA follow their own guidelines.
I yield back my time.
Mr. Bergman. Thank you.
Dr. Dunn, you are recognized for 5 minutes.
Mr. Dunn. Thank you very much, Mr. Chairman.
Gentlemen, when physicians usually come up here to testify,
it is usually a happy occasion for me. We get to--you know, I
think we--I am a surgeon myself, we view the world through the
same prism and so we are often, you know, able to agree on many
things. I think today we are faced with a problem, though, that
is a disturbing pattern of bureaucratic ineptitude and cover-
ups.
And I should note here at this point to Dr. Cox, I think
you are new to the VA, am I right, you are brand new?
Dr. Cox. Relatively new, yes, sir.
Mr. Dunn. Yeah, okay. So Deputy Under Secretary for
Organizational Excellence, as I understand?
Dr. Cox. Well, that is a role I assumed in an acting
capacity last month.
Mr. Dunn. Okay. So that is the role that I see, you know,
when you Google you under. So you are sort of the new sheriff
in town, supposed to come here and drain the swamp, is that
right?
Dr. Cox. I suppose you could characterize it that way.
[Laughter.]
Mr. Dunn. Well, that is the most charitable way I think I
can.
So, you know, we have some hard questions we have to face
and I am going to refer to a specific VA medical center that is
just outside my district in Florida. The Bay Pines VA Center
has indefinitely suspended thoracic surgeries after being
notified by the Joint Commission of issues within that
department with at least three veterans dying from
complications following surgery. So in August of this year, the
VA Office of Inspector General found deficiencies in the
process of evaluating the competency of the thoracic surgeons
at Bay Pines.
How did those problems within the thoracic surgery
department persist after the VA claimed to have corrected those
problems?
Dr. Cox. Congressman, I am going to have to admit I am not
familiar with this situation at Bay Pines specifically, but I
will certainly review the OIG report, and I would like to take
your question and get an answer back to you, if I may.
Mr. Dunn. We have a report that there is another entity
doing an external review; do you know anything about who that
entity is?
Dr. Cox. No, I am not sure.
Mr. Dunn. So you can't tell me whether or not that is
somebody from within the VA or outside the VA all together?
Dr. Cox. I can tell you that I am not familiar with any
internal investigation going on at Bay Pines.
Mr. Dunn. In your testimony, you said that the VA's
clinical reviews consist of providers from the same specialty
objectively reviewing patients that the provider had seen
previously. However, from Bay Pines we have an administrative
psychiatrist conducting an ongoing professional evaluation of a
thoracic surgeon. Can you tell me how that would happen or if
you think that that has any basis in occurring even?
Dr. Cox. I can tell you that that certainly wouldn't
represent a peer by my definition, a psychiatrist reviewing the
clinical care of a thoracic surgeon, and so I am not sure how
that would have happened. Now, you said administrative review--
Mr. Dunn. Yeah, that was disturbing for me as a surgeon to
see that, honestly. I think that that is clearly, you know,
below the standard of medical practice.
Are the professional evaluations, these focused
professional evaluations ongoing, are they standardized
throughout the VA system?
Dr. Cox. No. Focused professional performance evaluations
are conducted and customized at each facility, in fact within
each service to the particular needs of that specialty. So
these are--first of all, these are not unique to the VA. FPPEs
are part of the Joint Commission's accreditation standards for
monitoring clinical care and they are prospective in nature. So
these are put into place when a provider has an issue that is
not egregious, where there is no imminent threat to patient
safety, but where monitoring, closer monitoring was required to
ensure that they are practicing high-quality care.
So the particular criteria for that individual in that
specialty and the concern about their care goes into crafting
an FPPE that is addressing that situation.
Mr. Dunn. So I have been party to a number of these over
the years, I have been chief of surgery at several hospitals
over the years, and I can tell you that we would always have
specialists of the same specialty participating in those
ongoing reviews. And so I have some familiarity with that and I
found that appalling the way this one was carried out.
What do you do, what does the VA do when there is only one
provider of a specific specialty, a urologist, thoracic
surgeon, whatever, how does that center handle that problem?
Dr. Cox. And that is a great question because, as you know,
there are many smaller VA medical centers, some located in
rural areas where there is only a sole provider.
Mr. Dunn. And shortages throughout the system.
Dr. Cox. Indeed. So, ordinarily, if you need to have a peer
of the same specialty review the clinical practice of a sole
provider at a facility, then the VISN will arrange for another
member of that same specialty from another nearby medical
center to conduct the review.
Mr. Dunn. So our time is drawing short here. I just want to
say that I think you have a very hard job, I don't envy you
your job, but we will help you here on this Committee. We want
the VA to improve, we need it to improve; you know, failure is
not an option. You know, we are going to give you the help you
need to do this, but, you know, we have to have a better VA
medical system when we come out the other end of this.
Thank you very much, Mr. Chairman. I yield back.
Mr. Bergman. Thank you, Dr. Dunn.
Mr. Arrington, you are recognized for 5 minutes.
Mr. Arrington. Thank you, Mr. Chairman. Thank you,
panelists.
Just when I think I can't be more depressed about the VA's
lack of oversight and accountability and their fundamentally
flawed organizational management, then I have this hearing and
so I sink to new lows, because it is just shameful. This is why
I am for choice and competition and, quite frankly, we could do
well just to outsource the whole thing, because we have trapped
our veterans in this system, trapped them. They don't have any
way out.
My colleague Mr. Takano asked a really good question about
the difference between private performance, non-profit, and the
VA. The difference is, when they find out--and, Dr. Chaudhry,
you know this and you interact with all sorts of hospital
systems--when they find out at a private or non-profit hospital
that somebody has been sanctioned or disciplined and not
reported and continues to practice, they lose patients, which
means they lose revenue, which means they will be insolvent.
But the VA keeps getting paid, they get their paychecks
regardless of how they treat the veterans, because they have a
monopoly over them. It is a single-payer system and they are
trapped, and it is shameful.
Now, Mr. Cox, you said it is a moral and ethical obligation
to make sure there is an environment where the veterans, our
veterans are being cared for by the best of standards,
professionalism, competency, et cetera. I agree with that, but
clearly that doesn't exist. How long has it not existed, Mr.
Cox, that VA has fulfilled its moral and ethical obligation to
care for our veterans, how long has that existed?
Dr. Cox. Well, I would like to respond by saying that even
though our salaried physicians and other providers in the VA
are part of this closed system that you talked about, it is
still our obligation to ensure that the same quality standards
apply as we apply in the private sector, in the military health
system, and everywhere in America--
Mr. Arrington. But eight out of nine, this is the majority
of clinicians in the GAO report, eight out of nine were not
reported when they had problems, when they had adverse action
taken, eight out of nine. You are almost 100 percent at not
reporting. That is not an ethical--meeting your ethical or
moral obligation, so it is devoid of that right now.
You were the medical, what do you call it, the Medical
Inspector? Like the Inspector General, but for the VHA?
Dr. Cox. Yes.
Mr. Arrington. How many years were you in that role?
Dr. Cox. I was the interim Medical Inspector for a little
over 2 years.
Mr. Arrington. Two years. When did you first learn that
this was a problem, this lack of oversight and accountability
and just almost no management of this process of making sure we
had the good guys still practicing, the bad guys weren't, and
that we communicated with others to make sure the bad guys
didn't practice somewhere else and hurt other patients, how
long have we known about this?
Dr. Cox. Well, I became specifically aware of the issues
with reporting to the state licensing boards and the National
Practitioner Data Bank when the GAO did its audit.
Mr. Arrington. What about your own internal, though,
controls and knowing that this wasn't happening? Was it the GAO
report that revealed this to you or did you know this? Did you
ever conduct an investigation or some review or audit as the
Inspector General for the VHA?
Dr. Cox. No, this was not something that was the subject of
an internal investigation or audit. But that points out the
need for us to strengthen our internal audit capabilities and
we are in the process of doing that.
Mr. Arrington. Do you have family members, a spouse,
children?
Dr. Cox. I do.
Mr. Arrington. Would you allow your wife or your children
to go to a health care system knowing what you know about this
process and how flawed it is in this area?
Dr. Cox. I would feel confident with my family members
going to a health care system that has solid policies in place
and that enforces them.
Mr. Arrington. Well, but we are not enforcing them, right?
Correct?
Dr. Cox. That is correct.
Mr. Arrington. And we are not creating--we are not
fulfilling our moral and ethical obligation. So the question
is, in a situation like that, would you allow your family
member to go into a health care system like that?
Dr. Cox. I would want to feel confident that the health
care system not only--
Mr. Arrington. I don't mean to put words in your mouth, but
you wouldn't do it, okay? You wouldn't do it, because it is not
happening.
And, Chaudhry, you wouldn't do it. I don't even know your
family, I know you wouldn't do it. Nobody on this panel would
allow their family members to be trapped in a situation like
this when we are talking about their very lives at risk. These
are people that deserve the very best and we are giving them
the very worst in our efforts to make sure they are taken care
of.
Has anybody, Mr. Cox, been fired for these--or disciplined
for this problem as it has been revealed in the GAO report?
Dr. Cox. Well, as was mentioned before, we now know the
sites--
Mr. Arrington. Yep.
Dr. Cox [continued]. --and we now know the providers who
were uncovered in the GAO's audit, and so we are undertaking
appropriate review of their work, investigation of their
decision-making, and disciplinary action as necessary.
Mr. Arrington. Mr. Chairman, I am going to yield back
because out of respect for my colleagues' time. I would love to
have some follow-up questions, if there is time at the end of
this.
But I would ask that you all, the VA submit for the record
any disciplinary action that has occurred over the last several
years with respect to the medical center directors involving
this sort of practice of reviewing and reporting adverse
actions. So if you would please get that information to the
Chairman, I would like to see that.
Dr. Cox. We will be happy to.
Mr. Arrington. Okay.
Mr. Bergman. Thank you, Mr. Arrington. We are going to do a
second round here for anybody who has a second question.
So, Miss Gonzalez-Colon, you are recognized for 5 minutes.
Miss Gonzalez-Colon. Thank you, Mr. Chairman. And thank
you, Chairman Roe, for coming here and sitting here. So I am
between two Chairman's, I am happy today.
First of all, thank you for all the Members of the panel
for being here. Just a note that the five centers that were
evaluated, Puerto Rico and the territories were not part of
that study that was conducted by the GAO.
One of the issues that I do want to ask is regarding Dr.
Cox. I do understand the responsibility to report to the
medical--to the National Practitioner Data Bank is from the
medical director of the VA, correct?
Dr. Cox. The responsibility lies with the medical center
director, so the hospital director.
Miss Gonzalez-Colon. And in the absence of that medical
director, it should be on the staff, correct?
Dr. Cox. Well, there will always be somebody performing the
role of the medical center director, perhaps in an acting
capacity, of which we have many, but it is--according to the
accreditations--
Miss Gonzalez-Colon. The responsibility can be delegated to
somebody there?
Dr. Cox. Actually, the decision to report I believe cannot
be delegated beyond the--below the level of the medical center
director or the person performing those duties.
Now, there are certainly clinical experts, right, the chief
of staff, the executive committee of the medical staff, the
providers who advise the medical center director about when a
report may be necessary, but it is the director's
responsibility under the Joint Commission's accreditation
standards to do so.
Miss Gonzalez-Colon. But the problems and the report we
have here establish that the main issue we have got is the
misinformation, miscommunication, and even their own staff is
unaware of their responsibility to make these reports. And some
of the regulations said that they are not--maybe did not
understand the policy and regulations that comes with that
appointment. How are you facing that problem?
Dr. Cox. Yeah, it is very troubling that there are
apparently medical center directors and chiefs of staff who
don't understand the policy or perhaps don't even know to turn
to the central office where the policy originates to ask for
help.
I will tell you that there is lots of information made
available both by direct consultation and published on our
internal Web site, so that everybody knows where to look and
find it. And, fortunately, these instances are relatively rare,
all right? So a particular medical center director in the
course of his or her tenure may only face these kinds of
situations once or twice. Those that perform best are the ones
that seek help, that seek consultation with the program office
that oversees this where the true experts reside. And others
that don't seek consultation or who try to do it on their own
and may misinterpret what are sometimes confusing policies are
the ones that tend to make errors.
Miss Gonzalez-Colon. I do have a problem here and I do
share my colleagues' concerns with this situation in the VA.
And what is the consequence for those staff that are not
reporting or are not taking their duty as they should, they are
not properly carrying out that responsibility, what is the
consequence for them directly?
Dr. Cox. Well, fortunately, under the new Accountability
and Whistleblower Protection Act, the Secretary has wider
latitude--
Miss Gonzalez-Colon. But that is now. Before that it was
nothing?
Dr. Cox. I can't speak to any particular instance, but, no,
there wasn't nothing. I think, though, that the ability to hold
VA employees accountable is greater now and the Secretary
certainly has vowed to do that to uphold our highest standards.
Miss Gonzalez-Colon. What should we do in terms of
improving that communication, improving that knowledge to the
staffers in terms of their responsibility to notify those
elements, to even the state or the National Practitioner Data
Base?
Dr. Cox. I agree we do need to do a better job of
communicating these requirements and of educating those that we
put into leadership positions. As you know, we have many new
medical center directors and new chiefs of staff, some of them,
quite a few of them are acting. And so our pledge is to do more
outreach to inform them of these policies and to make available
help for them when they face this, again, fortunately, not
common situation.
Miss Gonzalez-Colon. You know that many of our VA medical
centers are understaffed and that is happening in Puerto Rico
too in our only medical VA center. How are you going to have
all those personnel be reeducated and know what they are going
to face in terms of reporting this in a properly timed manner?
Dr. Cox. That is a great question. I think the focus should
be on targeting the people in positions that really need to
know this.
Miss Gonzalez-Colon. Are you doing that right now?
Dr. Cox. Yes, yes. We are improving our education efforts,
as I said earlier, revising and strengthening our policies, and
those revised policies will be communicated and we will make
sure that everybody knows what they need to know.
Miss Gonzalez-Colon. Thank you.
Thank you, Mr. Chairman. I yield back.
Mr. Bergman. Thank you.
Dr. Roe, you are recognized for 5 minutes, sir.
Mr. Roe. Thank you, Mr. Chairman. And I apologize for being
late, I had another Committee I had to go to.
As a physician and veteran myself, I was really alarmed by
the GAO findings. And during my medical career, my colleagues
and I took great pride in meeting and exceeding quality
standards.
And for those of you all who haven't served on a medical
staff, what I am hearing here now is really--Dr. Cox, is a Ned
in the First Reader. I mean, this is something that every
hospital does. You apply for credentials to the hospital staff,
they vet your credentials very clearly, and then you are on the
staff and you start taking care of patients. And if there are
issues that come up, we have an executive committee or a
credentials committee that looks at those things and puts a
plan out. I mean, any hospital administrator in the world knows
that, any chief of staff knows that. I find it astonishing that
we have to educate somebody who is a medical center director
that that would be something they needed to know about.
Would you please, please answer that, because I found your
statement just amazing to me that you would have a medical
center director somewhere that wouldn't know something as
simple as that.
Dr. Cox. Well, Chairman Roe, thank you for the question. I
didn't mean to imply that medical center directors don't know
about the procedures for applying to medical staffs, being
granted privileges, the vetting that goes on at every VA
medical center, just as in every other hospital that hires
physicians. So, I mean, those are basic and ongoing processes.
What I meant to say is that for the less common, the much
less common situations where there are concerns about a
provider's clinical practice, where there is contemplation of a
need to perhaps report them to the data bank or to their state
licensing board, that those processes are less familiar. And so
we need to do a better job of making sure are familiar with
them.
Mr. Roe. Well, I would think that, and this surprised and
shocked me also when I read this, that in five medical
centers--this is on five medical centers, the VA has over 150--
that 148 providers were looked at and then when only one was
actually--do you know how many in the VA--and this is maybe a
question you couldn't answer today, but in the entire system
have been either reported to the state licensure boards or to
the national data bank?
Dr. Cox. Well, that is a question that I can't answer
completely. Regarding the National Practitioner Data Bank,
there are three circumstances when a provider--
Mr. Roe. No, I know those things, but my question--that is
not the question, I know those. The question is how many have
been, from the VA system have actually been reported, because
it looked like that--and my concern is this, look, our
hospitals at home, here is a VA and right next door is the
hospital that I practiced. What happens if VA doesn't do that
and someone then comes to our credentials committee, we don't
have this information and we put this doctor on the staff that
should not--this provider on the staff that shouldn't have been
put on there if we would have had that information? That is the
scary part. And that doesn't happen the other way around, that
information does go and every doctor that practices medicine
now is concerned about that, their name being in the data bank.
Dr. Cox. Well, you are absolutely right, that is the core
issue here to make sure that providers who are not competent or
safe to practice are reported properly.
Mr. Roe. And that didn't happen--
Dr. Cox. That didn't happen--
Mr. Roe [continued]. --in this report.
Dr. Cox [continued]. --in most of these cases.
Mr. Roe. And we don't know how pervasive it is because we
just did a small sample of the physicians in the VA system,
just five hospitals, medical centers.
Dr. Cox. correct.
Mr. Roe. Well, my commitment to ensuring VA providers
adhere to professional standards compelled me to introduce H.R.
4059, and Mrs. McMorris Rodgers may have already talked about
this, the Ethical Patient Care for Veterans Act of 2017, along
with Mr. Poliquin, and our bill would direct VA to ensure that
each of its physicians is informed of the duty to report any
impaired or incompetent provider unethical act that requires
reporting.
I would think that just should be policy; we shouldn't need
a law to do that, that should just be the policy of every VA
medical center and we should have some confidence, as Mr.
Arrington obviously does not, to carry that out. Would that be
reasonable?
Dr. Cox. It is entirely reasonable and it is already
policy, the problem is we are not enforcing--
Mr. Roe. Not implementing that policy.
Dr. Cox [continued]. --the policies the way that we need
to.
Mr. Roe. Dr. Chaudhry, for the benefit of all of us
gathered here today, would you explain the function of the
state licensing board and the importance of VA's communication
of privileging actions to state--to communicate those adverse
things to a state board?
Dr. Chaudhry. Thank you very much, Chairman Roe. The state
medical boards play an important function in this country in
looking out for the public. Their primary mission by statute at
the level of the state and the territory is to protect the
public by not only licensing appropriately qualified and
trained doctors, but also disciplining them when there is
reason to do so.
As I mentioned earlier this morning, we don't know what we
don't know. It is a complaint-based system and so it is
important for the state licensing boards to have the
information from facilities, from providers and others, so that
they can investigate and allow due process for the physician,
but follow through and do what is appropriate, whether it is a
letter of reprimand, a fine, a suspension, a limitation, or
ultimately a revocation of license, which they do as well.
Mr. Roe. And my time has expired, but just one last
statement. One of the reasons we have such confidence in our
medical system is because of our board system, it allows us to
make sure that patients understand when they come in that
they're going to get the highest quality of care and with no
information, you are absolutely right, you can't do your job;
am I correct?
Dr. Chaudhry. Yes, sir.
Mr. Roe. I am sorry, I exceeded my time. I yield back.
Mr. Bergman. Thank you, sir.
I will claim 5 minutes for my time as the Chairman.
Approximately one year ago, a veteran had his leg amputated
due to a blockage. This blockage was later determined after the
amputation to be caused by plastic packaging mistakenly left in
an artery by his VA doctor.
We met with the medical center and the VISN director
overseeing that facility recently and they informed us that
while the provider is no longer allowed to practice in that VA
facility, the doctor still practices in the community. The
medical center and the VISN director stated that they could not
report this provider's actions to the NPDB or relevant state
licensing board because he worked for a contractor and it was
the contractor's duty and responsibility to report that
provider.
Dr. Cox, or anyone who would like to respond, what
prohibits the VA from reporting a contract provider who
administers substandard care inside a VA facility?
Mr. Williamson. Nothing. The contract providers are
supposed to be reported just like anybody else.
Mr. Bergman. So you are telling us we were lied to, right?
Mr. Williamson. Yeah.
Mr. Bergman. Dr. Cox, GAO's report discusses the focused
professional practice evaluation, the FPPE that we talked about
earlier, this process which consists of a prospective review of
a provider's care over a specified period of time during which
the provider has the opportunity to demonstrate improvement in
specific areas of concern. Explain to me how VA can take
appropriate action against a provider when these reviews are
not properly documented or conducted in a timely manner?
Dr. Cox. Well, that is a very concerning question and the--
I think what GAO found is that in many cases there was no
documentation that the review had been done. It is not clear
whether that means that they hadn't been performed at all or
whether the review hadn't been saved in the provider's file as
it should have been.
So there is another gap there that we need to address and
are addressing with our strengthen and revised policy to make
sure that facilities understand what seems easily
understandable, that when you have paperwork that relates to
something as serious as a provider's clinical competence that
it needs to be maintained as part of a system of records, kept
in their file.
Mr. Williamson. We also found that not only was
documentation missing for almost half, but in 21 cases the
reviews weren't done at all. So it was a combination of both.
Mr. Bergman. Okay. So, Dr. Cox, you have been in the seat
for a very short period of time. Mr. Williamson, you have been
here for 40 years, you know, with the GAO. So in either case,
is it fair to ask either of you, is what we are talking about
here today new?
Mr. Williamson. Go ahead.
Dr. Cox. I would be willing to bet and it is only
speculation on my part that these things aren't new and that
problems exist in many health systems, including the VA, and
have existed for some time. So, periodically we need to
reinforce what the rules are, what our expectations are, and
that is the situation we find ourselves in.
Mr. Bergman. So how do you plan to do that?
Dr. Cox. Well, as we have talked about this morning--
Mr. Bergman. No, you as an individual, as a naval officer,
used to leadership roles, running a hospital, multiple
hospitals, command, how do you plan to instill that based upon
your position that you are in now?
Dr. Cox. Well, I am now in a position to require improved
oversight and strengthen our accountability measures. The
offices that provide the policy and that perform the medical
legal reviews belong to my part of the organization and to Dr.
Elnahal, so we are both in a position to make sure that our
strengthened policies and our approaches are carried out in a
more satisfactory manner.
Mr. Bergman. But you are the man at the top of the pyramid
right now, right?
Dr. Cox. I guess this part of the pyramid, yes, sir.
Mr. Bergman. Okay, but the rest of that pyramid that is
below you knows that there is a new sheriff in town?
Dr. Cox. They do.
Mr. Bergman. Okay. Well, I would suggest to you that if
they don't, they should get that word right away, because as
Dr. Dunn said, failure is not an option, and it comes from the
top on down.
And with that, I have just got a couple of seconds here, I
am going to yield back the remaining 10 seconds and we are
going to go to a second round for anyone else who would like to
ask a question.
So, having said that, Ranking Member Kuster, you are good,
right?
Ms. Kuster. I most certainly am.
Mr. Bergman. Okay. Mr. Poliquin, you are recognized for 5
minutes.
Mr. Poliquin. Thank you, Mr. Chairman, very much.
Mr. Chairman, I would like to submit for the record the
testimony from Jake Myrick, our terrific veteran of 15 years
who suffered under the care of Dr. Thomas Franchini up at the
Togus Medical Center in Maine.
Dr. Cox, I would like to ask you a couple questions, if I
can. When you have a situation as I described where a medical
center, in this case the Togus Medical Center in Augusta,
Maine, knew and confirmed in April of 2010 that in fact Dr.
Franchini had botched multiple surgeries on 87 of our veterans,
one which resulted in a leg amputation just to relieve the
pain. The VA knew about this, the local medical center knew
about this in 2010, they did not inform the patients who had
been harmed, these 88 patients, until 2013, 3 years later. The
statute of limitations is two years.
Now, first of all, I don't think anybody in America would
think that it is fair to deny these 88 men and women who served
our country in uniform the opportunity to file a claim against
the VA, against Dr. Franchini or whomever, they should have
their day in court.
So my question to you, Dr. Cox, and possibly to Mr.
Williamson, is do you have any evidence or any belief that the
VA waited until after the statute of limitations expired
deliberately to avoid liability? Mr. Cox?
Dr. Cox. Congressman, I know of no such evidence that would
suggest that anybody did anything deliberate of that sort.
Mr. Poliquin. Mr. Williamson?
Mr. Williamson. I can tell you that if the situation you
described is accurate, that should have been something that
would have been a subject of review and a process. I don't
understand it either.
Mr. Poliquin. Okay. I am thinking, Dr. Cox, what the heck--
not me, what you and the VA tells Jake Myrick. You can't give
him back the years that he lost with his family while he was
suffering depression, had to quit his job. What do you tell
April Wood, who as one leg now? You can't return that. Is there
a process whereby the statute of limitations language can be
excepted? Is there an appeal process, is there something that
not only these two warriors, but anybody else who has suffered
under this sort of quackery can still file a claim even though
the statute of limitations is expired, not because of any fault
of theirs, but because of the fault of the VA? Dr. Cox?
Dr. Cox. Well, first of all let me say, I am greatly
troubled by the stories that you are telling and that I have
read about regarding Mr. Myrick, Ms. Wood and the other
veterans that were harmed by Dr. Franchini.
Mr. Poliquin. Thomas Franchini. Make sure everybody knows
who he is.
Dr. Cox. And there is no question in my mind from what I
know of this case, which as you said is from several years ago,
that the medical center didn't do the job that they should have
done. They took far too long from the time of discovery around
2009, 2010 of Dr. Franchini's complications and problems of
surgery to conduct the review and to eventually, over two years
later, report him to the five states where he was licensed,
that is far too long a time and that is not acceptable.
Mr. Poliquin. Is there any way to adjust the law such that
there is a process whereby they can still file a claim even
though the statute of limitations has been exceeded?
Dr. Cox. Well, Congressman, I am not a legal expert--
Mr. Poliquin. Who could answer that question for me, Mr.
Cox?
Dr. Cox [continued]. --or an attorney, but I know--
Mr. Poliquin. Who could answer that question for me, Mr.
Cox?
Dr. Cox. I know that there is a U.S. District Court action
that is still open and the judge is considering that very
question and will hopefully rule soon. I believe--
Mr. Poliquin. But there is nothing that can be done within
the VA itself if I called Dr. Shulkin about this, no, it is in
the hands of the courts now, is that correct?
Dr. Cox. As I understand it, correct.
Mr. Poliquin. Okay. I yield back my time, Mr. Chairman.
Thank you very much.
Mr. Bergman. Thank you.
Dr. Dunn?
Mr. Dunn. I just want to very briefly point out that we
keep saying that this failure to report to the National
Practitioner Data Bank is illegal, it is in fact a crime to not
do that. So we have a number of criminals who are veteran's
center's directors at this point. I mean, that actually is a
Federal crime. You know, I certainly had to operate under that
law for 35 years.
I just wanted to underscore, you know, said it is illegal,
it is a crime, and I will bet the statute of limitations isn't
up on that.
I yield back.
Mr. Bergman. Mr. Arrington, you are recognized.
Mr. Arrington. Thank you, Mr. Chairman. Mr. Cox, I want to
follow-up on my line of questioning earlier about when did we
know, when were you guys aware, when was the VA aware, that
this area, this very important area, was without management
oversight accountability?
I mean, I don't expect perfection, and I don't think
anybody up here does, I don't think the taxpayers, this is a
large organization, and I certainly am not perfect, and my
organization, even a small one like my office, but I expect
consistent delivery on what we promise that we are going to do
for people, and in this case, excellent care for our veterans.
So my question, again, is, when was the first time you were
aware that in this very important area--and I don't think you
would dispute this is critical to the care of our veterans--
when did you know this sort of review and reporting was not
taking place?
Mr. Cox. Well, as I said before, we became aware of these
specific cases when the GAO conducted its audit. The--
Mr. Arrington. Did you do an audit prior to the GAO's
audit, an internal audit?
Mr. Cox. No, there was no internal audit done of this area.
The thinking within VA for a long time has been that reporting
is a responsibility at the local level and it is, indeed, the
medical center director that bears that responsibility. And
we--
Mr. Arrington. What responsibility does the secretary and
the central office have to make sure that these important
controls are in place to make sure that veterans don't get hurt
and they are not trapped in a health care system that is so
fundamentally broken that they have people that have had
adverse actions taken against them, have limited privileges
still practicing it?
At what point does Central want to understand that that, in
fact, is going on or not going on, and where to shore up where
the gaps are? I mean, you were the inspector general for the
VHA, why wouldn't that be a regular audit so that we know that
we were taking care of our veterans and not putting them at
risk?
Mr. Cox. Well, I can tell you I certainly am interested in
knowing that we are reporting providers appropriately, and now
that this has become--
Mr. Arrington. How could you care and not have an audit and
wait for the GAO to come in and reveal to the world now how
non-existent the oversight is in this area? I mean, that is the
problem. The message to me is, and I know that you do care as
an individual, but the VA system doesn't care, the system is
the enemy for me right now. The bureaucracy is the enemy to
this--to our most precious commodity, our most treasured asset,
our wounded warriors, and the system is the enemy. They don't
care, or they would have had controls in place, right? So I
know to every--
Mr. Cox. Right.
Mr. Arrington [continued]. --individual you would say that
you care, and I believe you as an individual, but the
organization doesn't. And--
Mr. Cox [continuied]. It does--
Mr. Arrington. Yes, sir.
Mr. Cox. I think as an organization, we have for too long
entrusted that people are doing the right thing and we haven't
checked. I mean, that is what oversight really is, right?
Checking to make sure that--
Mr. Arrington. But if it was your son, if it was your
spouse, you wouldn't tolerate that. Treat these people like
they are your children, treat them like they are your spouse,
and we won't need policies, we won't need hearings. Would you
agree with that?
Mr. Cox. I would.
Mr. Arrington. Okay. Dr. Chaudhry, you have seen a lot of
health care systems, no doubt, in your tenure in the current
role over these state licensing boards. With respect to the
private sector and this particular area of reviewing complaints
and then when there are findings reporting that out and taking
action against physicians who are incompetent, or acting
unprofessionally and unfit to practice, would you say,
comparatively speaking, to the folks that you have interacted
with on the outside of the VA, for profit or non-profit, that
the VA is above the average, the average, or below average, in
this area?
Dr. Chaudhry. Congressman, based upon the conversations
that I have had over the years, and I have been in my role nine
years, this is not a brand new issue, we never knew the extent
of it--
Mr. Arrington. Brand new issue for the VA or for life, in
like all health care systems?
Dr. Chaudhry. In terms of the VA--
Mr. Arrington. Okay.
Dr. Chaudhry [continued]. --system. So I have heard of
anecdotallies reports over the years, but my concern is, as
what the GAO report suggests, that it may be below.
Mr. Arrington. Okay. Mr. Elnahal, do you represent the
central office, the secretary's office, who do you represent
here today?
Mr. Elnahal. Congressman, I report to Dr. Cox says the head
of quality, safety, and value for the VHA.
Mr. Arrington. Okay. Well, I hope Central engages. I
believe in this secretary, I really do. I have heard enough
from him, engaged enough with him, and I know this President
cares about our veterans, and I know he won't tolerate this
sort of sub-par organizational management. And so I am hopeful.
But it is going to take a lot of time.
And we are going to stay on you, and I am going to stay on
you. And then I will help you any way that you tell me you need
help. If you need tools you don't have, resources, I know our
Chairman will do the same, and I know the Chairman of this
Subcommittee feels the same. But we are going to be--we are
going to stay on you until this thing is fixed, until you do
right by our veterans. With that, I yield back, Mr. Chairman.
Mr. Bergman. Thank you. Ms. Gonzalez-Colon, you are
recognized for five minutes.
Ms. Gonzalez-Colon. Thank you, Mr. Chairman. I want to
follow-up on my first round. And, Dr. Cox, I mean, what we are
talking about, having those directors and those staff being
capable and committed to submit that information through the
data bank and to the state license. And I asked directly, what
do they face if they are not doing their job? You told me
directly that the new law provide direct actions from the
secretary. Is there any other action?
Mr. Cox. I am sorry, I missed the last part of your
question.
Ms. Gonzalez-Colon. Is there any other action that can be--
that those employees can face after committing this crime?
Mr. Cox. So, no actions have been taken against the medical
center directors that were involved in the GAO's audit. We
only, in that last few days, became aware of what those centers
are. But that process of review and potential disciplinary
action is now underway.
Ms. Gonzalez-Colon. Okay. And we are talking--I mean, this
is vague. This is not just only our veterans, which I--it is
very disturbing, we are talking also about all patients in the
outside community that are receiving the same treatments from
the same providers that are actually treating badly our
veterans. So this is a very big problem. It is outside the VA,
it is (indiscernible) the whole community. And that is the
reason we have a database that is the reason we got a state
license, to prohibit this kind of conduct to happen.
One of the issues that I want to bring now, and to you.
You, in your testimony, you said that you expand the range of
the clinic or occupation that should be reported to the
national practitioner's database, including other medical
professionals aside from the physicians and dentists. How, if
you are expanding those, if we can't even comply with the
physicians and the dentists?
Mr. Cox. Well, the decision to expand the range of health
care professionals--
Ms. Gonzalez-Colon. And I do agree on that.
Mr. Cox. Yes, and I agree as well. That decision to expand
the range of professionals who will report stems from concerns
such as Representative Poliquin described it in Togus, Maine,
where the individual involved was a podiatrist not a medical
doctor, not a dentist. And so the requirements of the
Department of Health and Human Services to report adverse
privileging actions--
Ms. Gonzalez-Colon. But how to comply? If you can't do it
right now with the law, what the law provide, and you did this
in an administrative sort of way voluntarily, how will you
provide for that expansion when you can't do the one that is
required by law?
Mr. Cox. We certainly can pay greater attention to it
enforce our policies, conduct the oversight, conduct the
audits--
Ms. Gonzalez-Colon. You just said--
Mr. Cox [continued]. --to make sure that--
Ms. Gonzalez-Colon. --this is enforcement. I mean, we can
have all the policies, but if we can't enforce them, we will
have the same problem one again and again. Mr. Williamson, I
just want to know what are some of the reasons, if there are
any, that the vast majority of providers in your study were not
reported to the national practitioner's data bank when
required.
Mr. Williamson. There are a couple reasons that you have
mentioned already, some of them. A lot of the staff we talked
to didn't know what the responsibilities were that they had
responsibility for reporting. And even in the cases where they
did, they were confused about what circumstances--under what
circumstances they should report. For example, as Chairman
mentioned a while ago, there was a misconception among center
staff that they shouldn't report contract providers. That is
totally false.
Ms. Gonzalez-Colon. Is there guidelines?
Mr. Williamson. Yes, it is in their policy.
Ms. Gonzalez-Colon. It is in their policy. So it is a
written statement?
Mr. Williamson. Correct.
Ms. Gonzalez-Colon. And they are instructed to do so?
Mr. Williamson. They asked Central Office and Central
Office--somebody in Central Office told them they didn't have
to. But it is in the policy, so, you know.
Ms. Gonzalez-Colon. Just hearsay?
Mr. Williamson. Yeah. Also, one of the cases where VA
didn't report, or one of the medical centers didn't report six
people, the medical center director delegated it to the human
relations department. That was in the medical center--in the
local medical center policy, and when we talked to the human
relations department, they were not aware they had that
reporting responsibility. It is really outrageous that people
are not being told about the responsibilities and don't know
their job like they should.
Ms. Gonzalez-Colon. Thank you, Mr. Williamson. And just
to--last question to Mr. Cox. What is going to be happening to
the employees from the VA that are having tailored reports with
settlements to--reaching settlements that involves the impact
of faulty services? What is going to be happening with those
Federal employees? And with that, I yield back the balance of
my time.
Mr. Cox. So, very briefly. And as mentioned before, any
employee that is involved in negotiating an improper settlement
will be appropriately disciplined.
Mr. Bergman. Thank you. Mr. Peters, you are recognized for
five minutes, sir.
Mr. Peters. Thank you, Mr. Chairman. First, I want to just
apologize that the way things work around here is they schedule
both your hearings at once, so I was at a energy Subcommittee
hearing. And so I am going to ask--I have one question, and I
apologize, also, if you have already addressed it, but it is a
particular concern of mine, and maybe you will--if you answer
it a second time, you will like your second answer better.
I guess to the GAO, I guess the question would be, about
the IT system. I want to know if you have had a sense of how
the VA's antiquated IT system or the data tracking methods have
hindered efforts to provide good provider quality. And I am
asking this as a way to suggest or to help the VA get the right
kind of IT system that could help better care--achieve better
care and more efficient service delivery. And just ask you that
if you could respond to that, I appreciate it.
Mr. Williamson. Well, I have done--my teams have done a
wide variety of audits looking at Choice, looking at claims,
payments, and a number of other things, and IT is always at the
top of the list as far as a root cause for not having good
data, not being able to track things, and if you can't--if you
don't have good data, and you don't have a system for tracking,
oversight is pretty difficult, if not impossible. So, yes, IT
on a whole--on a broad kind of scale is probably one of the
biggest problems that VA faces.
Mr. Peters. Are you familiar with what the VA, today, is
doing to address that issue? And, do you offer any suggestions
for them?
Mr. Williamson. Excuse me?
Mr. Peters. Are you familiar with what the VA is, today,
doing to address IT? And do you have any suggestions on that?
Mr. Williamson. Somewhat. That is not my area. And I know
they are--have taken a number of actions in the past, some
failed attempts to come up with large data systems, right now
they are working on it. But I think we have issued a number of
reports recently that is talked about some shortcomings, and I
think Secretary Shulkin's decision to take an off-the-shelf IT
system to remedy the electronic records problem and its
operability with DoD, for example, is a good step.
Mr. Peters. That is my sense, too. I think Secretary
Shulkin has put the right emphasis on this, and we don't need
to reinvent the wheel here, probably wheel inventing is not our
strength, and so I am happy to see that. But just in the time I
have remaining, you have particular instances or examples for
how the failure of an IT system has affected provider care?
More specific examples?
Mr. Williamson. I am not sure I do. Although in this case,
in the case of the audit we are currently talking about, we
found that, as far as tracking reviews, the reviews done when
care concerns have been raised at the medical center level--
Mr. Peters. Right.
Mr. Williamson. --it is very fragmented, you couldn't walk
into a medical center and ask for a list of reviews underway
when care concerns have been raised. We had great difficulty
doing that when we identified our 148 cases. So there is no
electronic tracking of that. I mean, if you had an up-to-date
modern system, you would do that electronically, you would do
it in a central repository in the VA MCs such that if you
wanted a list at any time somebody could produce it for it.
Mr. Peters. Well, thank you for that. Thank you for the
work. We talk a lot about accountability in this Committee, we
are committed to it. Obviously, you can't achieve
accountability if you can't get a sense of whether we are
moving in the right direction, you can't keep up with things.
So, I appreciate that, look forward to working with the
Committee on that. I yield back.
Mr. Bergman. Thank you. Dr. Roe, you are recognized for
five minutes.
Mr. Roe. I thank you. I will respectfully disagree with Mr.
Willamson. Maybe it makes your job a little easier, but I can
assure you before there was ever one of these things anywhere
near me, we knew how to evaluate our staff, and we know how to
keep records, and we knew how to do this. Quality of care has
been an issue for years, long before there was a computer chip.
It will make it easier to trace, I admit. And, Mr. Peters, I
want to--I just got back from Fairchild Air Force Base, and I
think this implementation of the Cerner system is going to be a
little harder than it thought after visiting out there.
But I guess my question to Dr. Cox, or anyone at the VA, is
why would it take a GAO investigation to determine just simple,
basic medical staff functions like this? That is what still
baffles me is because I don't know why Mr. Williamson was ever
needed to go out. This is such a basic function of a medical
staff. Credentialing and quality of care in your facility. I
mean, that is the thing that I focused on for over 30 years
because if people lose confidence in your hospital, they will
quit coming there, and they will quit coming to you as a
physician if they find that out.
Mr. Cox. Well, Mr. Chairman, I agree that it is
indefensible, and I can only speculate. I just wanted to point
out that these decisions about reporting somebody to the data
bank, or potentially taking an action that will affect their
license, are never taken lightly, you know. As you know, these
are complex and serious matters. You are dealing with
professionals who have had years and years of professional
training; four years of college, four years of medical school,
three to seven years of residency training, maybe more in
certain specialties.
And so when the person who has the authority to make that
report also has a very serious responsibility, both to the
veterans and the rest of the community, but also to bear in
mind that that decision could, in fact, impact that provider's
livelihood. So that is not an excuse for anything, but it is to
point out that when I had to wrestle with these decisions, I
wanted to make sure we had all the facts, I wanted to make sure
that they were all collected properly, and that my decision was
based on sound evidence.
Mr. Roe. Look, I was going to say, I could not agree with
you more. I mean, I have been on the credentials committee, and
it is a weighty decision when you have a professional that is
there that is spent all these years. I totally get it, there is
two sides to this equation.
Mr. Cox. Yes, sir.
Mr. Roe. But at the end of the day, we still have, as
medical staff people, the patient's safety and quality of care
is upmost. And I agree with you, you have to do that. Well, one
of the things that is bothered me since I have gotten here is,
this bill that Ms. McMorris Rodgers, myself, and Mr. Poliquin
have. We make laws because people are not doing their job, and
their unnecessary. The bill that we have got it really ought to
be unnecessary because if the medical staff had done its job,
you wouldn't need to have a law that now complicates things
even further, I think.
So I would encourage you, and one of the things I would
encourage you to do when you go back, this is not only
embarrassing to a great organization like the VA, to the
medical profession, to me, it is embarrassing to me as a
physician that this went on. But if I were you, I would go back
and instruct every VISN director and every medical center
director to be sure that that policy was totally understood by
my medical staff and how it was carried out. And every hospital
has this system set up.
So I would make sure that that every 150 plus those medical
centers that checked that box and said we know how to do this,
and are doing this--and that is the other thing I want to know
is, how many providers have been reported to the national data
bank or to the state agencies? I want to get that number and
find out how many you have actually done, because it is a big
step, I realize that, to do that.
Mr. Cox. Well, I agree with you, Mr. Chairman. And that
number is not easy to come by now because we haven't been
tracking it centrally. We can track--and I can tell you the
number and be happy to provide it afterwards--those providers
that were subjects of a malpractice claim, right, there is a
paid claim or a settlement, we actually do very well with
compliance rates in the last three years of 95 to 98 percent in
reporting providers who are named in a malpractice case.
But what we have not been tracking, and what we can't
easily tell you at this moment is those individuals who were
named because of concerns about the quality of care locally
where there was an adverse privileging action but not a
malpractice claim.
Mr. Roe. This is what I don't want to see happen, I don't
want to see, whew, that is not my problem anymore, and then now
it is somebody else's problem, because I have dealt with that.
And, you know, once you get someone on a medical staff, as you
just pointed out Dr. Cox, it is very hard to then dismiss that
person from the staff, so you are better off doing your due
diligence to start with. And Dr. Chaudhry, he's out there as a
state licensor, if he doesn't have that information, he makes a
bad decision. So I think it is bad decision, bad decision. And
we need to--we have to do, we don't need to, we have to do
better. I yield back.
Mr. Bergman. Thank you. Dr. Cox, VA has the option to
provide orders from its providers, disciplinary boards, to the
FSMB when they take action to preclude or limit a provider's
ability to practice within the VA. According to Dr. Chaudhry's
testimony from 2007 to present, VA has not sent any such
reports to the FSMB. Why not?
Mr. Cox. I am afraid I am not sure what the situation has
been regarding FSMB. You know, regarding the individual state
licensing boards, as the GAO pointed out and as we have been
discussing, there is no question that we have not been making
reports with the frequency that they should have been made.
Mr. Bergman. Okay. Dr. Chaudhry, in your testimony you
state that many of your constituents, boards have found VA does
not report providers in a timely fashion, and that the VA is
often unable to adhere to reporting standards outlined in its
own guidance. Why do you believe the VA is unable to adhere to
its own guidance and standards?
Dr. Chaudhry. So I think that question is best answered by
the VA, but, as Dr. Cox has indicated, I think it is a local
issue, is the best that I can interpret, so all these
discussions are helpful in terms of moving forward. If I can
make a quick comment, Mr. Chairman, about the FSMB. We have a
database of all physicians wherever they are licensed.
Increasingly, physicians are licensed in more than one
jurisdiction.
The value of the VA sharing that with the FSMB's database
is we can share that with all the state boards where that
physician who works in the VA is also licensed. So that is it
is shared not just for the licensing entity where that
physician is licensed but also additional licenses, so that
everyone has information. And we have a data sharing agreement
with the VA which encourages the VA to do that, and I would be
interested in strengthening that recommendation as well.
Mr. Bergman. Okay. Mr. Williamson, as you know, it is
against the VHA policy to enter into an agreement with a
provider stipulating that the VA will not report the provider
to the NPDB or state licensing board in return for their
resignation, retirement, et cetera. Did you find any evidence
of these types of agreements in your review?
Mr. Williamson. No, we did not. And we looked--we didn't
look at the settlement process, per se, we came across two
settlements that were in our sample of 148. And as you know, VA
policy prohibits the not, you know, they must report even
though the settled agreement is reached on some other
(indiscernible). That is non-negotiable.
Mr. Bergman. Okay. Thank you. Ranking Member Kuster, do you
have any?
Ms. Kuster. I have nothing else.
Mr. Bergman. Okay. Well, I did a quick back-of-the-napkin
math here, Mr. Williamson. You and I must be similar in age,
and so my congratulations to you on the length of your career.
Now, how is your health?
Mr. Williamson. What is that?
Mr. Bergman. How is your health?
Mr. Williamson. It is good. That is why I am retiring.
Mr. Bergman. Okay. So, the point is, I look forward to
hearing of your relaxing, recharging your batteries, because
given the longevity tables for someone in good health, you have
at least one more career in front of you. I would suggest do
something different than you have been doing for the last 40
years, it will rejuvenate you.
Mr. Williamson. That is why my wife tells me, too.
Mr. Bergman. I mean, 50 years. I apologize, 50 years. I was
doing my math in the Marine Corps and applied it to yours.
Maybe 40 years in the Marine Corps seems like 50 years
somewhere else. Congratulations to you--
Mr. Williamson. Thank you.
Mr. Bergman [continued]. --and job well done. Thank you,
witnesses, for being with us today and sharing your testimony.
The panel is now excused.
Today's discussion has illustrated the importance of proper
management, of competency, and privileging processes, and the
consequences of failed oversight. Healthcare organizations are
responsible for validating the competency of their medical
staffs through a credentialing and privileging process. These
processes are important, essential, and closely tied to
reimbursement, accreditation standards, and state and Federal
laws. At VA facilities, these processes influence the quality
of a facility's workforce which, at VA, determines the quality
of the care that veterans receive.
The fact that VA is taking three months to, in some cases,
years to review quality concerns is entirely unacceptable. But
perhaps more outrageous are the cases where VA uses taxpayer
dollars to settle cases with clinicians who have provided sub-
standard care to veterans essentially to just make them go
away. That is not what my fellow veterans and our constituents
deserve.
Ensuring underperforming providers are held accountable is
a burden shouldered by the entirety of the American health care
system. But as the country's largest integrated health system,
VA has a particular responsibility to hold themselves to the
highest standards for managing quality and safety concerns.
The testimony presented today highlighted the lack of
urgency and the VA's disregard for the domino effect a
dysfunctional privileging and reporting process has on its
patient population allowing the same concerns to persist year
after year. Each of us gathered here today would agree that our
Nation's veterans have earned high quality health care.
We would also agree that the VA's ability to deliver
quality care in a timely manner depends largely on its actions
it takes to review and report potentially questionable actions
of the providers it privileges. Therefore, we will continue to
track VA's progress closely in addressing the concerns brought
forth today, both from the GAO and offered during today's
discussion.
Now, I heard early on in the testimony today a phrase--
there is a difference between incompetency and unprofessional
behavior, and I would agree with you whole heartedly. I would
suggest to you that leadership and culture will go a long way
towards taking care of unprofessional behavior.
Incompetency is just that, and it is a leader's
responsibility, and organization's responsibility at all
levels, to self-report and to ensure that if a provider, or
anyone, is deemed incompetent after given ample opportunity to
bring their performance up to standards that they be dealt with
immediately and not continued to be led down a path that you
know, as a leader, they cannot attain that level of competency.
You--I am going to call you Captain Cox here for a minute
rather than Dr. Cox or, you know, Acting Assistant Deputy
Secretary Cox--you know as a leader of a hospital, you had
those--that staff, whether they be the nurses, the doctors, the
PAs, the nurse practitioner, whoever was under your command,
you knew as the leader at the top of that pyramid in that
hospital, you didn't call D.C., you didn't call someone else,
you took leadership action because as a captain, as a
commissioned officer in the United States Navy, it was your
responsibility to hold yourself accountable and, therefore,
hold others accountable.
You are the new kid on the block here. You have an
opportunity to show what it means to be a true leader to the
entire Department of Veterans Affairs as it relates to
physicians and providers. Don't miss the opportunity to be a
leader. By the way, you may think that you heard a motion from
our Committee Members here, that was not a motion that was
passion. Passion for the veterans, passion for providing the
best medical services possible, and taking no excuses for lack
of performance.
And you also heard in several cases that this Committee
should not have to create new laws to get the VA to enforce the
current laws and policies. They exist, use them. This
Committee, as a whole--the Subcommittee as a whole, the
Committee as a whole, is so committed to giving the VA every
tool necessary, you have to use the tools. If you don't, there
will be consequences.
Again, I thank you for being here this morning. I ask
unanimous consent that all Members have 5 legislative days to
revise and extend their remarks and to include extraneous
material. Without objection, so ordered.
Again, I would like to once again thank our witnesses and
the audience members for joining us here today. This hearing is
now adjourned.
[Whereupon, at 11:59 a.m., the Committee and Subcommittee
were adjourned.]
A P P E N D I X
----------
Prepared Statement of Dr. Gerard R. Cox
Good morning, Chairman Bergman, Ranking Member Kuster, and Members
of the Subcommittee. Thank you for the opportunity to discuss our
medical centers' clinical competency reviews, compliance with reporting
to State Licensing Boards (SLBs) and the National Practitioner Data
Bank (NPDB), and the related Government Accountability Office (GAO)
report. I am accompanied today by Dr. Shereef M. Elnahal, Assistant
Deputy Under Secretary for Health, Quality, Safety, and Value.
Introduction
VA has an ethical and moral obligation to our Veterans, agency, and
community to report certain providers to the National Practitioner Data
Bank and State Licensing Boards. We are taking three major steps to
improve clinical competency and reporting: improving oversight to
ensure that no settlement agreement waives VA's ability to report
providers to NPDB or SLBs; reporting more clinical occupations to the
NPDB, instead of just physicians and dentists; and improving the
timeliness of reporting. We are also rewriting and updating policies in
response to the GAO's report. We are constantly striving for
improvement in these areas to make sure our Veterans receive the
highest quality of care, which they have earned and deserve.
Reliability of Medical Centers' Clinical Competency Reviews
If a privileged provider delivers care that triggers concern (from
sources including Quality Assurance reviews, patient complaints,
coworker concerns, or outcome reviews), VA conducts a review to assess
the provider's performance in the area of concern. The purpose of this
review is for fact-finding to substantiate if there is a concern
related to the provider's clinical practice and to determine any
appropriate next steps, while ensuring patient safety throughout the
process. Care providers of the same specialty provide an objective
review of randomly selected patients that the provider has seen
previously. Reviewers are often from other VA medical centers to ensure
objectivity of the review. If the information that caused the trigger
raises a concern of imminent danger for patients, the provider may be
removed from patient care by the Director until the review is complete.
The clinical service chief and the executive committee of the medical
staff analyze the results of the review. Then, one of three outcomes
occur: (1) The concern is not substantiated and no action is taken; (2)
There is no egregious finding but the service chief will closely
monitor the provider through a Focused Professional Practice Evaluation
(FPPE) for Cause to ensure improvement in a noted area; or (3) Take a
``privileging action'' such as reduction or revocation of privileges to
practice in the facility. If a privileging action is recommended, the
Medical Center Director reviews and is the final authority on that
decision. These reviews are filed in the provider's profile with their
ongoing professional evaluation documents.
If the Medical Center Director takes a final privileging action,
the clinician is afforded a fair hearing opportunity. There, a panel
determines if privileging action was due to substandard care,
professional misconduct, or professional incompetence. If the panel
determines the privileging action was ``for cause,'' the Director is
responsible for ensuring the privileging action is entered into the
NPDB reporting database. Clinicians who resign or retire while the
investigation is ongoing must still go through a limited hearing
process.
VA's Compliance with Reporting clinicians to SLBs and NPDB
VA currently reports providers to the NPDB in the following three
circumstances:
1. Physicians and dentists, when a privileging action (as described
above) has been taken due to substandard care, professional misconduct,
or professional incompetence.
2. Physicians and dentists, when they resign or relinquish
privileges while under investigation.
3. Any licensed provider (other types of clinicians that are
licensed to see patients independently, such as psychologists or
podiatrists, in addition to physicians and dentists) that is named
during the review process for tort claims paid by the agency for any
issue with clinical care that they provided.
NPDB only requires the health care industry to report physicians
and dentists for adverse privileging actions and resignation while
under investigation. VA is voluntarily expanding the range of clinical
occupations that we will report. We are doing this because we feel it
is the right thing to do for Veterans. Specifically, we will report:
1. All privileged providers to the NPDB for privileging actions
resulting from substandard care, professional misconduct, or
professional incompetence;
2. All privileged providers to the NPDB for resignation or
relinquishing of privileges while under investigation for substandard
care, professional misconduct, or professional incompetence.
3. Licensed providers who were terminated from a VA facility for
substandard care, professional misconduct, or professional incompetence
to the NPDB, thus excluding them from future participation in VA's
Community Care programs.
It has always been against VA policy for any management official to
negotiate or settle employee grievances such that an explicit decision
is reached to not report a provider to NPDB or SLBs when their actions
should be reported. VA will improve our management controls to the
greatest extent possible to enforce this. At the direction of the
Secretary, VA has already begun to require that all employment dispute
settlements involving payments of more than $5,000 be approved by top
VA officials in Washington, rather than officials at the regional
level. We will expand this review process by including confirmation
that there is no negotiation of reporting the provider to NPDB or SLBs
if they meet the requirements for reporting. Any VA employee who enters
into a settlement agreement waiving VA's ability to report to NPDB or
SLBs will be subject to discipline.
In addition to expanding the types of providers that can be
reported, VA will improve the timeliness of both the decision-making on
whether to report providers and the process of reporting providers to
the SLBs, shortening the timeframe of the entire reporting process.
If a clinician is identified as being involved in care resulting in
a paid or settled tort claim, they are may submit a written statement
about that care. That care and the involvement of all respective
licensed practitioners (defined above) are reviewed through the Office
of Medical Legal Affairs' (OMLA) paid tort claim review process. The
OMLA Review Panel identifies any licensed practitioner who provided
substandard care, professional misconduct, or professional incompetence
in that care. OMLA notifies the VA facility of the involved providers
who must be reported to NPDB. The Medical Center Director is
responsible for reporting the named providers to the NPDB within 30
days of the notification from OMLA. Below are statistics on the reports
filed with NPDB since FY 2015:
----------------------------------------------------------------------------------------------------------------
Still within
FY Number Number NPDB Reports NPDB Reports 30 days of Overdue
Reversed required Filed notification
----------------------------------------------------------------------------------------------------------------
2015 260 33 227 223 (98%) 4
2016 254 17 237 230 (97%) 2 5
----------------------------------------------------------------------------------------------------------------
For the time period of October 1, 2016 through June 30, 2017, 236
NPDB reports were required. Of these, 200 reports (82%) have been
filed, with the majority of the outstanding reports still within their
30 days for sending of the filed report to OMLA.
GAO Report
GAO's recently-released report, VA Health Care: Improved Policies
and Oversight Needed for Reviewing and Reporting Providers for Quality
and Safety Concerns, made four recommendations and VA concurred with
each of them.
In response to the first recommendation, VA's Office of Quality,
Safety, and Value (QSV) will rewrite VA policy to formalize guidance on
focused management reviews and incorporate existing documents relating
to the process of addressing clinical care concerns. This is in
progress, with a target completion date of September 2018.
For the second recommendation, QSV will rewrite policy to include
timeline expectations for the above-mentioned review. The Assistant
Deputy Under Secretary for Clinical Operation will issue interim
guidance by December 2017, with a target completion date of September
2018.
To respond to GAO's third recommendation, QSV will update the
standardized auditing tool to include monitoring of appropriate action
taken when clinical care concerns are identified. This update will
include a reporting structure to facilitate aggregation of reports to
identify trends. This response is in progress, with a target completion
date of October 2018.
In response to the fourth recommendation, QSV will update the
standardized auditing tool to include monitoring of timely reports to
the NPDB, specifically for privileging actions and resignation while
under investigation. The tool will also include monitoring of timely
reporting of substantial evidence of a failure to meet the generally
accepted standard of care. This update will include a reporting
structure to facilitate aggregation of reports to identify trends. This
response is in progress, with a target completion date of October 2018.
Conclusion
Mr. Chairman, VA is taking three major steps to improve clinical
competency and reporting: reporting more clinical occupations to the
NPDB; improving the timeliness of reporting; and enhancing oversight to
ensure that no settlement agreement waive VA's ability to report NDPB
and SLBs. We are also rewriting and updating our related policies in
response to the GAO's report. I am proud of the health care our
facilities provide to our Veterans and we look forward to upholding
that high level of care. Thank you for the opportunity to testify
before this subcommittee, I look forward to your questions.
Prepared Statement of Randall B. Williamson
VA HEALTH CARE
Improved Oversight Needed for Reviewing and Reporting Providers for
Quality and Safety Concerns
Chairman Bergman, Ranking Member Kuster, and Members of the
Subcommittee:
I am pleased to be here today to discuss our recent report on
provider quality and safety concerns at the Department of Veterans
Affairs (VA). VA's \1\ Veterans Health Administration (VHA) operates
one of the largest health care systems in the nation, and nearly 40,000
providers hold privileges at its 170 VA medical centers. \2\ Like other
health care facilities, VA medical centers are responsible for ensuring
that their providers deliver safe care to patients. As part of this
responsibility, VA medical centers are required to investigate and, if
warranted, address any concerns that may arise about the clinical care
their providers deliver. Concerns about a provider's clinical care can
be raised for many reasons, ranging from providers not adequately
documenting information about a patient's visit to practicing in a
manner that is unsafe or inconsistent with industry standards of care.
If VA medical centers fail to properly review and address concerns that
have been raised about their providers, they may be exposing veterans
to unsafe care.
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\1\ GAO, VA Health Care: Improved Policies and Oversight Needed for
Reviewing and Reporting Providers for Quality and Safety Concerns, GAO
18 63 (Washington, D.C.: Nov. 15, 2017).
\2\ Privileges are the specific set of clinical services that a
provider is approved to perform independently at a medical facility,
based on an assessment of the provider's professional performance,
judgement, clinical competence, and skills. For the purposes of this
testimony, we use the term ``provider'' to refer to physicians and
dentists.
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Depending on the nature of the concern and the findings from their
review, VA medical center officials may take adverse privileging
actions against providers that either limit the care the providers are
allowed to deliver at the facility or prevent the providers from
delivering care altogether. VA medical center officials are required to
report the providers against whom they take adverse privileging actions
to the National Practitioner Data Bank (NPDB). The NPDB is used by
other VA medical centers, non-VA hospitals, and other health care
entities to obtain information on a provider's history of substandard
care and misconduct. \3\ VA medical center officials are also required
to report providers to state licensing boards when there are serious
concerns about the providers' clinical care. State licensing boards can
then investigate and determine if the providers' conduct or ability to
deliver care warrants action against the providers' medical license.
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\3\ The NPDB is an electronic repository administered by the U.S.
Department of Health and Human Services that collects and releases
information on providers who either have been disciplined by a state
licensing board, professional society, or health care entity, such as a
hospital, or have been named in a medical malpractice settlement or
judgment. Industry standards call for health care entities to query the
NPDB and verify with the appropriate state licensing board that a
provider's medical licenses are current and in good standing before
appointing a provider to its medical staff and when renewing the
provider's clinical privileges.
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My testimony today summarizes the findings from the report, which
analyzed the implementation and oversight of VHA processes for
reviewing and reporting providers after quality and safety concerns
have been raised at selected VA medical centers. Accordingly, this
testimony addresses:
1. VA medical centers' reviews of providers' clinical care after
concerns are raised and VHA's oversight of these reviews, and
2. VA medical centers' reporting of providers to the NPDB and state
licensing boards and VHA's oversight of these processes.
To conduct our work, we reviewed VHA policies and guidance related
to reviewing and reporting clinical care concerns about providers and
interviewed relevant VHA officials. We also visited a nongeneralizable
selection of five VA medical centers, selected based on the complexity
of the medical services they offer veterans and to achieve variation in
geography. At each VA medical center we reviewed documentation and
interviewed medical center staff to 1) identify providers whose
clinical care was reviewed after a concern was raised about that care
and 2) determine whether the VA medical center took an adverse
privileging action against any of these identified providers. In
addition, we evaluated the extent to which each medical center adhered
to applicable VHA policies from October 2013 through the time we
completed our site visits in March 2017. We also interviewed officials
from the five Veterans Integrated Service Networks (networks) that
oversee the five selected medical centers. We compared VHA and the
networks' oversight of the VA medical centers' reviewing and reporting
of providers to VHA's related policy requirements and to federal
standards for internal control related to monitoring. \4\ Further
details on our scope and methodology are included in our report. \5\
The work this statement is based on was performed in accordance with
generally accepted government auditing standards.
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\4\ GAO, Standards for Internal Control in the Federal Government,
GAO 14 704G (Washington, D.C.: Sept. 10, 2014) and Standards for
Internal Control in the Federal Government, GAO/AIMD 00 21.3.1
(Washington, D.C.: Nov. 1, 1999). Internal control is a process
effected by an entity's management, oversight body, and other personnel
that provides reasonable assurance that the objectives of an entity
will be achieved.
\5\ See GAO 18 63.
Selected VA Medical Centers' Reviews of Providers' Clinical Care Were
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Not Always Documented or Timely
We found that from October 2013 through March 2017, the five
selected VA medical centers required reviews of a total of 148
providers' clinical care after concerns were raised about their care,
but officials at these medical centers could not provide documentation
to show that almost half of these reviews were conducted. We found that
all five VA medical centers lacked at least some documentation of the
reviews they told us they conducted, and in some cases, we found that
the required reviews were not conducted at all. Specifically, across
the five VA medical centers, we found the following:
The medical centers lacked documentation showing that one
type of review-Vfocused professional practice evaluations (FPPE) for
cause-had been conducted for 26 providers after concerns had been
raised about their care. FPPEs for cause are reviews of providers' care
over a specified period of time, during which the provider continues to
see patients and has the opportunity to demonstrate improvement.
Documentation of these reviews is explicitly required under VHA policy.
Additionally, VA medical center officials confirmed that FPPEs for
cause that were required for another 21 providers were never conducted.
The medical centers lacked documentation showing that
retrospective reviews-which assess the care previously delivered by a
provider during a specific period of time- had been conducted for 8
providers after concerns had been raised about their clinical care.
One medical center lacked documentation showing that
reviews had been conducted for another 12 providers after concerns had
been raised about their care. In the absence of any documentation, we
were unable to identify the types of reviews, if any, that were
conducted for these 12 providers.
We also found that the five selected VA medical centers did not
always conduct reviews of providers' clinical care in a timely manner.
Specifically, of the 148 providers, the VA medical centers did not
initiate reviews of 16 providers for 3 months, and in some cases, for
multiple years, after concerns had been raised about the providers'
care. In a few of these cases, additional concerns about the providers'
clinical care were raised before the reviews began.
We found that two factors were largely responsible for the
inadequate documentation and untimely reviews of providers' clinical
care we identified at the selected VA medical centers.
First, VHA policy does not require VA medical centers to
document all types of reviews of providers' clinical care, including
retrospective reviews, and VHA has not established a timeliness
requirement for initiating reviews of providers' clinical care.
Second, VHA's oversight of the reviews of providers'
clinical care is inadequate. Under VHA policy, networks are responsible
for overseeing the credentialing and privileging processes at their
respective VA medical centers. While reviews of providers' clinical
care after concerns are raised are a component of credentialing and
privileging, we found that none of the network officials we spoke with
described any routine oversight of such reviews. \6\ This may be in
part because the standardized tool that VHA requires the networks to
use during their routine audits does not direct network officials to
ensure that all reviews of providers' clinical care have been conducted
and documented. Further, some of the VISN officials we interviewed told
us they were not using the standardized audit tool as required.
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\6\ When asked about their routine audits, network officials we
interviewed generally described selecting a sample of providers from
different specialties to review their compliance with VHA requirements
related to credentialing and privileging. For example, network
officials may check that medical centers have appropriately verified
their providers' medical licensure. Some officials said they may also
look at documentation of a VA medical center's review of a provider's
clinical care after a concern had been raised if any of the providers
in their sample happened to have documentation of such concerns in
their files.
Without adequate documentation and timely completion of reviews of
providers' clinical care, VA medical center officials lack the
information they need to make decisions about providers' privileges,
including whether or not to take adverse privileging actions against
providers. Furthermore, because of its inadequate oversight, VHA lacks
reasonable assurance that VA medical center officials are reviewing all
providers about whom clinical care concerns have been raised and are
taking adverse privileging actions against the providers when
appropriate. To address these shortcomings, we recommended that VHA 1)
require documentation of all reviews of providers' clinical care after
concerns have been raised, 2) establish a timeliness requirement for
initiating such reviews, and 3) strengthen its oversight by requiring
networks to oversee VA medical centers to ensure that such reviews are
documented and initiated in a timely manner. VA concurred with these
recommendations and described plans for VHA to revise existing policy
and update the standardized audit tool used by the networks to include
more comprehensive oversight of VA medical centers' reviews of
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providers' clinical care after concerns have been raised.
Selected VA Medical Centers Did Not Report All Providers to the NPDB or
to State Licensing Boards as Required
We found that from October 2013 through March 2017, the five VA
medical centers we reviewed had only reported one of nine providers
required to be reported to the NPDB under VHA policy. These nine
providers either had adverse privileging actions taken against them or
resigned or retired while under investigation before an adverse
privileging action could be taken. None of these nine providers were
reported to state licensing boards as required by VHA policy.
The VA medical centers documented that these nine providers had
significant clinical deficiencies that sometimes resulted in adverse
outcomes for veterans. For example, the documentation shows that one
provider's surgical incompetence resulted in numerous repeat surgeries
for veterans. Another provider's opportunity to improve through an FPPE
for cause had to be halted and the provider was removed from providing
care after only a week due to concerns that continuing the review would
potentially harm patients.
In addition to these nine providers, one VA medical center
terminated the services of four contract providers based on
deficiencies in the providers' clinical performance, but the facility
did not follow any of the required steps for reporting providers to the
NPDB or relevant state licensing boards. This is concerning, given that
the VA medical center documented that one of these providers was
terminated for cause related to patient abuse after only 2 weeks of
work at the facility.
Two of the five VA medical centers we reviewed each reported one
provider to the state licensing boards for failing to meet generally
accepted standards of clinical practice to the point that it raised
concerns for the safety of veterans. \7\ However, we found that the
medical centers' reporting to the state licensing board took over 500
days to complete in both cases, which was significantly longer than the
100 days suggested in VHA policy.
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\7\ These two providers were not among the nine providers who had
an adverse privileging action taken against them, resigned or retired
while under investigation but before an adverse privileging action
could be taken. They were also not among the four contractors whose
services were terminated.
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Across the five VA medical centers, we found that providers were
not reported to the NPDB and state licensing boards as required for two
reasons.
First, VA medical center officials were generally not
familiar with or misinterpreted VHA policies related to NPDB and state
licensing board reporting. For example, at one VA medical center, we
found that officials failed to report six providers to the NPDB because
they were unaware that they had been delegated responsibility for NPDB
reporting. \8\ Officials at two other VA medical centers incorrectly
told us that VHA cannot report contract providers to the NDPB. At
another VA medical facility, officials did not report a provider to the
NPDB or to any of the state licensing boards where the provider held a
medical license because medical center officials learned that one state
licensing board had already found out about the issue independently.
Therefore, VA officials did not believe that they needed to report the
provider. This misinterpretation of VHA policy meant that the NPDB and
the state licensing boards in other states where the provider held
licenses were not alerted to concerns about the provider's clinical
practice.
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\8\ As a result of our audit work, in August 2017, officials at
this VA medical center reported three of these six providers to the
NPDB.
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Second, VHA policy does not require the networks to
oversee whether VA medical centers are reporting providers to the NPDB
or state licensing boards when warranted. We found, for example, that
network officials were unaware of situations in which VA medical center
officials failed to report providers to the NPDB. We concluded that VHA
lacks reasonable assurance that all providers who should be reported to
these entities are reported.
VHA's failure to report providers to the NPDB and state licensing
boards as required facilitates providers who provide substandard care
at one facility obtaining privileges at another VA medical center or at
hospitals outside of VA's health care system. We found several cases of
this occurring among the providers who were not reported to the NPDB or
state licensing boards by the five VA medical centers we reviewed. For
example, we found that two of the four contract providers whose
contracts were terminated for clinical deficiencies remained eligible
to provide care to veterans outside of that VA medical center. At the
time of our review, one of these providers held privileges at another
VA medical center, and another participated in the network of providers
that can provide care for veterans in the community. We also found that
a provider who was not reported as required to the NPDB during the
period we reviewed had their privileges revoked 2 years later by a non-
VA hospital in the same city for the same reason the provider was under
investigation at the VA medical center. Officials at this VA medical
center did not report this provider following a settlement agreement
under which the provider agreed to resign. A committee within the VA
medical center had recommended that the provider's privileges be
revoked prior to the agreement. There was no documentation of the
reasons why this provider was not reported to the NPDB under VHA
policy.
To improve VA medical centers' reporting of providers to the NPDB
and state licensing boards and VHA oversight of these processes, we
recommended that VHA require its networks to establish a process for
overseeing VA medical centers to ensure they are reporting to the NPDB
and to state licensing boards and to ensure that this reporting is
timely. VA concurred with this recommendation and told us that it plans
to include oversight of timely reporting to the NPDB and state
licensing boards as part of the standard audit tool used by the
networks.
Chairman Bergman, Ranking Member Kuster, and Members of the
Subcommittee, this concludes my statement. I would be pleased to
respond to any questions that you may have at this time.
GAO Contact and Staff Acknowledgments
If you or your staff members have any questions concerning this
testimony, please contact me at (202) 512-7114 ([email protected]).
Contact points for our Office of Congressional Relations and Public
Affairs may be found on the last page of this statement. Other
individuals who made key contributions to this testimony include Marcia
A. Mann (Assistant Director), Kaitlin M. McConnell (Analyst-in-Charge),
Summar C. Corley, Krister Friday, and Jacquelyn Hamilton.
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Prepared Statement of Humayun J. Chaudhry, DO, MACP
Good morning, Chairman Bergman, Ranking Member Kuster, and Members
of the Committee. Thank you for this opportunity to discuss the
important role that state medical boards play in the protection of the
public and how, working together, we may be able to better protect our
veterans and their families. I served 14 years in the U.S. Air Force
Reserves as a flight surgeon and have more than a passing familiarity
with issues related to the health care needs of military personnel and
veterans. My statement today focuses on the Federation of State Medical
Boards (FSMB) and how we, along with our 70 state medical and
osteopathic member boards of the United States and its territories, are
responsible for attesting that physicians, and in most states physician
assistants, meet the qualifications necessary to safely practice
medicine. I will then share some concerns raised by our member boards
from several states and urge that the U.S. Department of Veterans
Affairs improve its information sharing processes, especially in terms
of alerting state licensing boards, in a timely fashion, of violations
by a clinician in the treatment of a patient, or of the disciplinary
actions taken by the VA against a clinician. Finally, I will address
some legislative solutions introduced in the U.S. House of
Representatives and U.S. Senate that will significantly help state
medical boards protect patients, both within and outside of the VA
system.
About the FSMB
The Federation of State Medical Boards (FSMB) represents the 70
state medical and osteopathic licensing and regulatory boards--commonly
referred to as state medical boards--within the United States, its
territories and the District of Columbia. The FSMB supports its member
boards as they fulfill their statutory mandate of protecting the
public's health, safety and welfare through the proper licensing,
disciplining, and regulation of physicians and, in most jurisdictions,
other health care professionals. The FSMB serves as the voice for our
nation's state medical boards, supporting them through education,
assessment, research and advocacy while providing services and
initiatives that promote patient safety, quality health care and
regulatory best practices.
About State Medical Boards
To protect the public from the unprofessional, improper and
incompetent practice of medicine, each of the 50 states, the District
of Columbia and the U.S. territories have enacted laws and regulations
that govern the practice of medicine and outline the responsibility of
state medical boards to regulate that practice. This guidance is
commonly outlined in a state statute, usually called a Medical Practice
Act. Seventy state and territorial medical boards in the United States
are currently authorized to regulate physicians.
All state medical boards issue licenses for the general practice of
medicine. State licenses are undifferentiated, meaning physicians in
the United States are not licensed based upon their particular medical
or surgical specialty or practice focus, and certification in a medical
specialty is not absolutely required in order to obtain a license to
practice medicine. In many states, other health care professionals,
such as physician assistants, are also licensed and regulated by
medical boards in addition to physicians.
In addition to licensing physicians and other health care
providers, state medical boards investigate complaints, discipline
those who violate the law, conduct physician evaluations and facilitate
the rehabilitation of physicians when appropriate. State medical boards
also adopt policies and guidelines related to the practice of medicine
that are designed to improve the overall quality of health care in the
state.
The ongoing duty of a state medical board goes far beyond the
licensing and re-registration of physicians. Boards also have the
responsibility of determining when a physician's professional conduct
or ability to practice medicine warrants modification, suspension or
revocation of a license to practice medicine. Boards review and
investigate complaints and/or reports received from patients,
hospitals, other state medical boards, health professionals, government
agencies and professional liability carriers about physicians who may
be incompetent or acting unprofessionally, and take appropriate action
against a physician's license if the person is found to have violated
the law. State laws require that boards assure fairness and due process
to any physician under investigation.
Medical boards devote much time and attention to overseeing the
practice of medicine by physicians. When a board receives a complaint
about a physician, the board has the power to investigate, hold
hearings and impose discipline, including restriction of practice,
suspension, probation or revocation of a physician's license, public
reprimands and fines.
While the overwhelming majority of patient-physician interactions
that occur each day in the United States are conducted in an
appropriate and professional manner, state medical boards recognize
that issues such as physician negligence, incompetence, substance
abuse, fraud and sexual misconduct exist. These issues are taken very
seriously by state medical boards, which in recent years have advocated
for strengthened reporting requirements to ensure individuals or
organizations who are aware of, or witness, inappropriate behavior come
forward to report the problem. Physicians, hospitals, law enforcement
agencies and consumers all can help reduce future issues by reporting
inappropriate behavior.
To help address the issue of under-reporting, the Federation of
State Medical Boards House of Delegates unanimously adopted new policy
in 2016 that urges physicians, hospitals and health organizations,
insurers and the public to be proactive in reporting instances of
unprofessional behavior to medical boards whenever it is suspected.
Consumers must feel safe and secure in any medical interaction, and
they should always speak up if they suspect inappropriate behavior.
How State Medical Boards Share Information about Disciplined Physicians
All of the state medical boards engage in an ongoing, cooperative
effort to share licensure and disciplinary information with one another
by regularly contributing data to the FSMB's Physician Data Center
(PDC) - a comprehensive data repository that contains information about
the more than 950,000 actively licensed physicians in the United
States, as well as board disciplinary actions dating back to the early
1960s.
State medical boards use the Physician Data Center in several ways.
Boards query the Data Center when new physician applicants apply for
medical licensure in a state to identify any prior disciplinary
actions. The Data Center also proactively alerts boards if an applicant
has been disciplined in another jurisdiction via its Disciplinary Alert
Service within 24 hours after a disciplinary action has been reported
to the Data Center. This valuable service helps prevent disciplined
doctors from practicing undetected across state lines.
VA and FSMB Data Sharing Agreement
The VA currently utilizes two related services provided through the
FSMB's Physician Data Center (PDC), and enjoys a positive working
relationship with both the department's IT and operational leadership
at the FSMB.
The first service, a disciplinary alert service, utilizes a file of
VA health practitioners to cross-reference against any sanctions
provided by state medical boards and other PDC reporting entities. In
the event an order is received by the PDC against any of the
individuals contained in the VA practitioner file, an alert is sent to
the VA notifying them of the action taken against their practitioner by
another regulatory agency. The VA currently has 58,175 names (as of 11/
15/2017) in their monitoring file. This file and this service is based
on VA needs and may fluctuate based on the number of practitioners
within the monitoring program.
In 2017, there were 219 disciplinary alerts sent to the VA under
this arrangement, which we believe has been ultimately helpful to the
VA in protecting veterans and their families.
The second service, FSMB's PDC Query Service, is a transactional
query performed at the request of each of the VA's medical
credentialing centers (142 including 1 in Puerto Rico) for the purpose
of obtaining full PDC Profile Reports about individual health care
practitioners. This PDC Profile Report is a comprehensive document
identifying any previously recorded disciplinary actions taken by PDC
reporting agencies in addition to a medical licensure history and a
listing of currently active licenses held by the physician.
In 2016, the VA queried 10,233 practitioners and in 2017 thus far,
they have queried 8,345.
--------------------------------------------------------------------------------------------------------------------------------------------------------
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VA Numbers
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Total Physicians 58,175
being monitored for
VA Office of Safety
and Risk Awareness:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calendar Year 2017 YTD 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of alerts 219 199 188 215 166 200 192 174 242 190 194
sent to VA from
monitoring:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calendar Year 2017 YTD 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Queries by VA 8,345 10,233 11,378 11,635 10,811 12,426 12,780 14,471 16,873 23,963 9,213
Offices:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calendar Year 2017 YTD 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
Board orders sent to 0 0 0 0 0 0 0 0 0 0 0
FSMB by VA
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Table of historical utilization for the FSMB/VA data sharing agreement.
Note: The VA and DOD are currently in the process of combining credentialing process workflows that is requiring extensive rework of their internal
operations. The FSMB is assisting with testing the technical connections to its PDC program.
The VA and State Medical Boards - Notification, Communication, and
Reporting
The FSMB applauds the noble mission and dedication of the VA in
serving the nation's veterans, and we believe strongly that veterans
and their dependents deserve the same level of quality care and
appropriate regulatory oversight and accountability that is available
to the general public.
The FSMB read with concern the October 11, 2017 USA Today
investigative story, VA conceals shoddy care and health workers'
mistakes. The goal of improving communication between the VA and state
medical boards continues to be one of the utmost importance to the FSMB
and our membership. While we are very pleased that the VA, through our
Physician Data Center, has had access to comprehensive licensure and
disciplinary information about physicians who work for the VA, I am
afraid there is room for improvement with regard to the sharing of
detailed information from the VA to the state medical boards that would
expediently and efficiently identify unsafe providers operating within
the VA system. The dearth of timely information sharing with state
medical boards is certainly not unique to the VA - hospitals, health
systems, medical directors and physicians themselves should do a better
job of sharing concerns about incompetent or unprofessional doctors -
we note that the VA has specific policy in place requiring such
sharing.
According to a Government Accountability Office (GAO) report issued
this month, VA Health Care: Improved Policies and Oversight Needed for
Reviewing and Reporting Providers for Quality and Safety Concerns,
``VHA policy requires VAMC (VA Medical Center) directors to report
providers-both current and former employees-when there are serious
concerns about the providers' clinical care to any SLB (state licensing
board) where the providers hold an active medical license.
Specifically, VHA policy requires VAMCs to report providers who so
substantially failed to meet generally accepted standards of clinical
practice as to raise reasonable concern for the safety of patients.
According to VHA policy and guidance, the SLB reporting process should
be initiated as soon as it appears that a provider's behavior or
clinical practice fails to meet accepted standards. VAMC officials are
directed not to wait to report to SLBs until adverse privileging
actions are taken because an SLB conducts its own investigation of the
provider to determine whether licensure action is warranted. This
reporting process comprises five stages as established in VHA policy,
and VHA policy states that the process should be completed in 100
days.''
In this report, the GAO ``found that from October 2013 through
March 2017, the five selected Department of Veterans Affairs (VA)
medical centers (VAMCs) did not report most of the providers who should
have been reported to the National Practitioner Data Bank (NPDB) or
state licensing boards (SLB) in accordance with VHA policy. GAO found
that:
selected VAMCs did not report to the NPDB eight of nine
providers who had adverse privileging actions taken against them or who
resigned during an investigation related to professional competence or
conduct, as required by VHA policy, and
none of these nine providers had been reported to SLBs.''
In consultation with several state medical boards over the past few
years, we have found confirmation of our concerns that the VA often
does not always alert state medical boards in a timely fashion of
violations, disciplinary actions, or suspected violations of the
state's Medical Practice Act. While the VHA Handbook speaks to certain
notification requirements, in practice we have determined that the VA
is often unable to adhere to these standards. It is important to note
that each state's VA facilities and their relationships with their
state medical boards vary but there are enough concerns, too often in
too many states, to warrant a comprehensive solution.
One state medical board shared with us that ``When we are alerted
and attempt to investigate, we find it extremely difficult to gain any
information from them (the VA) even if we follow their exact procedure
to gain such information. Material received is so heavily redacted it
is of little usefulness.''
From several recent conversations with executive directors of state
medical boards, it appears to be rare for a state medical board to
receive ``up front'' information from the VA, and often this is well
past the 100-day notification requirement. If any information is
received, from what we have heard, it is often a vague notification
which may or may not even have the name of the health care provider.
Occasionally a state medical board may receive information through
informal channels, but there typically is not a formal proactive
information exchange as called for in VA policy. In some instances, a
state medical board will send a request letter, and the VA facility
will then provide what appears to be a portion of the disciplinary file
on the provider. In one state, the board only receives a copy of the
final hospital disciplinary action without any of the details. Another
state board said that it usually learns of improper medical care at a
VA facility only after a patient complaint has been filed with it.
Such identified gaps in communication between state medical boards
and the VA is of significant concern to the FSMB, and we sincerely hope
that we can all work together - the state medical boards, the VA, and
Congress - to address this issue and overcome any perceived
impediments. Improved sharing with state medical boards of detailed
disciplinary information that expediently identifies unsafe providers
will significantly help the boards protect patients, both within and
outside of the VA system. Providers who have been deemed unqualified or
unsafe to practice by the VA should not be allowed to practice outside
of the VA, nor be able to conceal their disciplinary actions with
discreet settlement arrangements. Proper notification of provider
disciplinary proceedings from the VA to the appropriate state medical
board(s) and the National Practitioner Data Bank (NPDB) will help
ensure that unsafe and dangerous physicians are not allowed to treat
patients outside of the VA.
Federal Legislative and Regulatory Solutions
The FSMB commends the U.S. House of Representatives and the U.S.
Senate for recognizing deficiencies in information sharing and moving
swiftly to rectify them with legislative solutions.
The FSMB would like to take this opportunity to formally endorse
H.R. 4059, The Ethical Patient Care for Veterans Act of 2017,
introduced by House Committee on Veterans' Affairs Chairman Phil Roe,
M.D. (R-TN-1), House Republican Conference Chair Cathy McMorris Rodgers
(R-WA-5) and Congressman Bruce Poliquin (R-ME-2). This important
legislation directs the Department of Veterans Affairs to ensure that
each VA physician is informed of the duty to report any covered
activity committed by another physician that the physician witnesses,
or otherwise directly discovers, to the applicable state licensing
authority within five days.
This month, the FSMB also endorsed S. 2107, Department of Veterans
Affairs Provider Accountability Act, introduced by Senators Dean Heller
(R-NV) and Joe Manchin (D-WV), which would require the Under Secretary
of Health to report major adverse personnel actions involving health
care employees to the National Practitioner Data Bank and to applicable
state licensing boards.
In recent years, the FSMB has also endorsed S. 1641, The Jason
Simcakoski Memorial Opioid Act and then The Comprehensive Addiction and
Recovery Act of 2016 (Public Law No: 114-198), specifically Sections
941 and 942.
Section 941 ensures that as part of the hiring process for each
health care provider considered for a position at the Department of
Veterans Affairs, the Secretary of Veterans Affairs shall require from
the medical board of each State in which the health care provider has
or had a medical license:
(1) information on any violation of the requirements of the medical
license of the health care provider during the 20-year period preceding
the consideration of the health care provider by the Department; and
(2) information on whether the health care provider has entered
into any settlement agreement for a disciplinary charge relating to the
practice of medicine by the health care provider.
Section 942 further requires that, with respect to each health care
provider of the Department of Veterans Affairs who has violated a
requirement of the medical license of the health care provider, the
Secretary of Veterans Affairs shall provide to the medical board of
each State in which the health care provider is licensed detailed
information with respect to such violation, regardless of whether such
board has formally requested such information.
Legislative approaches such as these, and others, will play a vital
role in protecting the public, and providing state licensing boards
with timely information that can be utilized to fulfill their
regulatory duties.
The FSMB also offers its support for the four recommendations
provided in the GAO report, including:
The Under Secretary for Health should specify in VHA
policy that reviews of providers' clinical care after concerns have
been raised should be documented, including retrospective and
comprehensive reviews. (Recommendation 1)
The Under Secretary for Health should specify in VHA
policy a timeliness requirement for initiating reviews of providers'
clinical care after a concern has been raised. (Recommendation 2)
The Under Secretary for Health should require VISN
officials to oversee VAMC reviews of providers' clinical care after
concerns have been raised, including retrospective and comprehensive
reviews, and ensure that VISN officials are conducting such oversight
with the required standardized audit tool. This oversight should
include reviewing documentation in order to ensure that these reviews
are documented appropriately and conducted in a timely manner.
(Recommendation 3)
The Under Secretary for Health should require VISN
officials to establish a process for overseeing VAMCs to ensure that
they are reporting providers to the NPDB and SLBs, and are reporting in
a timely manner. (Recommendation 4)
The FSMB is pleased to learn that, in terms of Recommendation 4
specifically, that the ``VHA will update the standardized audit tool
used by the Veterans Integrated Service Networks (VISNs) so that it
directs them to oversee reviews of providers' clinical care after
concerns have been raised and to ensure timely reporting to the NPDB
and SLBs. According to VA, the revised tool will also facilitate
aggregate reporting by VISNs to identify trends and issues. VA
estimates that it will complete these actions by October 2018.''
Conclusion
Mr. Chairman, thank you for the opportunity to testify before the
Committee today. The Federation of State Medical Boards (FSMB) welcomes
the opportunity to work with the Committee on this important issue, and
commends the Committee for its bipartisan leadership. I look forward to
responding to any questions you and Members of the Committee may have.
Statements For The Record
Kenneth (Jake) Myrick Statement
Dear Chairman Roe, Ranking Member Walz, and members of the House
Veterans' Affairs Committee,
My name is Kenneth Myrick and I very much appreciate the
opportunity to submit this statement to the House Veterans Affairs'
Committee. Thank you for holding this important hearing and letting me
share my story with you. I hope it will lead to legislation that will
prevent what happened to me and the 87 other Maine veterans from ever
happening to any other veterans ever again. I would like to thank
Congressman Bruce Poliquin for his work on this. This issue must be
addressed and that is why I reached out to him about this. Maine
veterans are fortunate to have him fighting for us in Congress.
Veterans like myself serve in the United States military out of a
sense of duty and honor to our country that we love. When we return
home from the battlefield, we place our trust and faith in the VA to
help take care of our service connected injuries and ailments.
Regretfully, this trust and faith have been shattered for myself and
the 87 other Maine veterans who received substandard care from Dr.
Thomas Franchini at Togus Medical Center in Augusta, Maine.
I would like to share my story with you. I enlisted in the United
States Army in 1998 and was medically discharged in November 2003 after
undergoing a high tibia osteotomy (HTO) to correct knee problems
suffered while on active duty.
In 2004, I began to notice an increased pain, discomfort and
instability with my left ankle. I was referred to Dr. Thomas Franchini,
a foot surgeon at Togus from my VA primary care physician. After a
thorough examination, Dr. Franchini determined that my left ankle had
undergone structural changes in order to compensate for my left knee
alteration and was also a contributing factor to my ongoing knee pain.
He recommended that I have corrective surgery, which I did shortly
after. Dr. Franchini performed the surgery in 2005.
Between 2005 and 2010, I continued to experience severe ankle pain,
discomfort and instability. I continued seeing Dr. Franchini for this
problem. During this time, he recommended orthotics, ankle braces, x-
rays, and ultimately diagnoses the problem as a bone spur and
recommended another surgery.
During this time, I also began experiencing severe pain in my left
knee, left hip, and lower back. There were days when I could not get
out of bed due to the pain. I had to leave my job as a corrections
officer because I could not keep up with the physical requirements for
the job. I could not teach my son football, basketball or any other
sports because of the pain they would cause. I had to stop running and
biking. I missed out on hunting trips with my son and brother because I
could not carry my gear and pack through the weeks. I could not take my
little girl to the playground. My quality of life became so limiting,
and I became severely depressed.
In February of 2013, I received a phone call from Togus asking if I
would participate in a reevaluation of my left ankle surgery. I agreed
and was seen by Dr. Sang at Togus shortly thereafter.
Following the evaluation, I met with Togus Director Ryan Lilly, at
his request, to discuss the outcome of the evaluation and care provided
by Dr. Franchini. I met with Director Lilly on March 25, 2013. During
this meeting, Director Lilly and his staff told me that the care I
received from Dr. Franchini failed to meet the standard of care
required, thus resulting in failed ankle reconstruction and the direct
cause of my continuous pain and discomfort I had been experiencing for
several years. It was also explained that the surgery is what led to
the deterioration of my left knee, hip, and lower back. During this
meeting, Director Lilly apologized and gave me two legal forms should I
want to bring action against the VA- a 1151 claim form and a tort claim
form.
As I would later learn, both of those forms would be useless to me
because of the two-year statute of limitations for filing medical
malpractice suits in the State of Maine. I also learned that the VA
knew in 2010 about the substandard care I received by Dr. Franchini but
chose to withhold that information from me for three years. I also have
learned that the VA did this with the other 87 Maine veterans as well.
I am attaching an internal VA memo that clearly shows that the VA knew
about this in 2010 and did not tell me.
I lost with my family-with my children-- because of the substandard
care I received and because it was concealed from me. I can never get
that back and it will haunt me for the rest of my life.
I have had several surgeries to repair the physical pain caused by
Dr. Franchini. The pain will never fully go away-I will never be able
to run again or lead a physically active life-but I have learned to
live with it.
As a father, I will always carry the emotional pain with me and the
time I missed out on with my children. It tears me apart to think that
this all could have been prevented if Dr. Franchini had been held to
the proper standard as a VA physician and if I had known about the
botched surgeries rather than having them hid from me for years.
Thank you for your time. I hope you will do something to address
this.
Sincerely,
Kenneth (Jake) Myrick
VHA ISSUE BRIEF
VISN 1 - VA Maine HCS, Augusta, ME
Issue Title: Concern Regarding Staff Podiatrist with the potential for
leading to Institutional Disclosure
Date of Report: April 16, 2010, updated April 12, 2012, updated April
16, 2012
Brief Statement of Issue and Status: On December 10, 2009, the Chief of
Staff received a written communication from a staff Comp and Pen
Examiner raising concerns regarding the clinical care provided by a
Staff Podiatrist. These concerns were based upon the statements of
several veterans during Comp and Pen exams who complained of ``poor
outcomes'' following surgical interventions for ankle instability
and who states that they were ``refusing to see this podiatrist
again.'' The Comp and Pen Examiner states that a review of these
Veterans' records appeared to indicate that surgical intervention
was occurring following minimal evaluation. The Chief of Staff
communicated this concern to the Chief of Surgery in late December
2009 and requested that a focused review of the provider's ankle
and foot surgeries be undertaken.
Actions, Progress, and Resolution Date:
1. On March 29, 2010, the Chief of Surgery informed the Chief of
Staff that he was nearing completion of a review of a random selection
of 25 surgical cases, and that there appeared to be ``significant
documentation and quality of care issues in a number of these cases,''
The final report of this review was provided to the Chief of Staff on
April 13, 2010.
2. The Executive Leadership Team and Risk Manager were informed of
this situation on March 29, 2010. The Director informed the Chief
Medical Officer of the situation on this same date.
3. On March 29, 2010, the Chief of Staff requested the Podiatrist
be asked to voluntarily suspend performance of all surgical procedures
during a period of a more extensive review of the initial cases and
other cases.
4. The Podiatrist agreed to this upon return from leave on April 1,
2010. A written statement to this effect was signed by the provider on
April 16, 2010.
5. On March 29, 2010, the Chief of Staff, Chief of Surgery and Risk
Manager met with the Chief of Podiatry and decided to request case
reviews by the Chief of Orthopedic Surgery at the VA Boston Healthcare
System and by a podiatrist recommended by the Director, Podiatric
Services, VHA Services. This review is underway.
6. On April 15, 2010, the Chief of Orthopedics from VA Boston HCS
completed a review of randomly selected charts that confirmed the
preliminary findings of our Chief of Surgery including:
Very poor documentation of clinical assessment or
justification for surgical intervention
Surgical intervention that appeared to be unjustified by
the nature or severity of the clinical problem
Cases in which it appeared that an improper or inadequate
procedure was performed for the clinical problem
A written report of findings will be provided in the very near
future.
7. On April 15, 2010, the Chief of Staff consulted with Regional
Counsel to update him on the status of the focused reviews. It was
agreed that all these reviews would be presented to the Professional
Standard Board on April 27, 2010, for action. Consideration of formal
reduction or revocation of clinical privileges will occur at that time,
when all reviews have been completed.
8. At this time it is considered to be likely that a significant
number of Veterans treated by the podiatrist will require re-evaluation
and treatment by a foot and ankle specialist. It is also considered
likely that institutional disclosure of unnecessary or inappropriate
surgical interventions will be required.
Indicate if Applicable: place an ``X'' next to the response
reflecting the facilities action
Institutional Disclosure --X-- Yes; --NO; --N/A
(Final decision to disclose will be based on a case by case review)
Clinical Disclosure--Yes; ----NO; --N/A
Updated April 12, 2012;
9. On April 27, 2010, the Professional Standards Board reviewed the
results of the focused reviews and made the decision to summarily
suspend the podiatrist's privileges pending a comprehensive review of
the allegations. The provider was placed on administrative leave during
this process.
10. On April 28, 2010, the podiatrist received a letter letting him
know his privileges had been summarily suspended and he was being
placed on administrative leave pending completion of comprehension
review.
11. On May 26, 2010, the Chief of Staff received the case review
summary conducted by Podiatrist from VAMC, Palo Alto, California
12. On June 17, 2010, the podiatrist was notified of the proposed
removal and revocation of clinical privileges in accordance with
personnel management guidance on such matters.
13. On September 1, 2010, an Alert Notice was sent to the
Physicians State Licensing Boards (SLB) Maine and New York notifying
them of an issue of clinical competence with an unnamed provider.
However, Rhode Island was not notified at that time. (additional
information on this process reference in #31 and #34)
14. On September 28, 2010, letter received from NY SLB stating no
further action to be taken on their part.
15. During the period from June 17 to November 1, 2010, the
facility responded to several inquiries from the provider's legal
counsel including providing de-identified case specific information in
support of the allegations.
16. On November 8, 2010, the podiatrist resigned.
17. On November 19, 2010, podiatrist received an advisement notice
that further review of this situation was in progress and could result
in reports to applicable licensing boards.
18. On November 29, 2010, the Chief of Surgery was asked to begin
institutional disclosure in a face-to-face discussion with each Veteran
for the cases identified in the process of revocation of clinical
privileges on this provider (the initial 25+ cases).
19. On December 9, 2010, the Chief of Surgery was provided a list
of all the surgical cases performed by this podiatrist from the period
of 2004 to 2010, to assist in a systematic review process.
20. On January 6, 2011, a letter was received from podiatrist's
attorney suggesting defamatory comments were being made against him to
outside hospitals in New York where he was attempting to obtain
privileges. In fact, requests for previous employment history and
assessment of standing related to privileges were responded to by the
Chief of Staff factually, expressing provider had his privileges
suspended pending investigation of substandard care. Medical Staff
Coordinator was informed that all requests of this nature were to come
to the Chief of Staff.
21. On January 20, 2011, the Chief of Surgery provided the Chief of
Staff a more detailed summary of six cases from the original 25 that
were the most egregious and were to be used in the report to the State
Licensing Board. After review by the Chief of Staff, this summary was
provided to HRM ER/LR Specialist to be utilized in the preparation of
the appropriate notification to the Maine State Board of Licensure.
22. On February 22, 2011, a request was received from the
podiatrist's attorney request copies of any reports to their hospitals,
to state licensing boards and to NPDB. To this point, no formal reports
to licensing boards or NPDB naming this provider had been submitted.
23. On September 23, 2011, Chief of Staff was informed by the Chief
of Surgery that he had started the more formal review of all the
surgical cases performed by this provider, including a sampling of non-
operated patients (clinic visits only). He was asked to strictly focus
on the surgical cases at this point.
24. On October 3, 2011, an Intent to Report notice was mailed to
the podiatrist.
25. On October 12, 2011, reply received from the podiatrist
requesting additional response time and a copy of the evidence file.
26. On October 26, 2011, the Chief of Surgery communicated with the
Chief of Staff his desire to step down as Chief on January 1, 2012,
pending his retirement to be effective February 29, 2012, and focus his
attention on completing the review of cases. This did not occur as the
Associate Chief, a general surgeon was unable to relinquish more of his
clinical duties to take on the Acting Chief responsibilities.
27. As of March 13, 2012, The Chief of Surgery (Orthopedics
specialty) continues his review of the surgical cases performed by the
podiatrist spanning the years of 2004-2010. To date, all of the cases
from 2009-2010 have been reviews; a total of 103 cases. Of the 103,
approximately 30 of them are problematic, with 6 of the 30 being the
most egregious. The review of 2008 cases is underway at this time.
There are a total of 589 cases that will be reviewed.
28. At this time it is considered to be likely that a significant
number of Veterans treated by the podiatrist will require re-evaluation
and treatment by a foot and ankle specialist. It is also considered
likely that institutional disclosure of unnecessary of inappropriate
surgical interventions will be required. If the current review outcomes
are maintained, approximately 30% of the 589, namely 175+ cases may
require institutional disclosure under the following charges:
a. Repeated surgical cases in which non-operative alternatives were
not employed resulting in inadequate informed consent for surgery and
probably unnecessary surgical procedures.
b. Repeated surgical cases in which pre-operative evaluation was
either missing, inadequate, or contradicted by studies performed; again
making it probably that unnecessary surgery was performed.
c. Repeated surgical cases in which post-operative follow-up case
was inadequate.
d. Repeated examples of inadequate surgical procedures leading to
poor outcomes, and no evidence of patient disclosures when indicated.
29. On March 20, 2012, Chief of Surgery provided to the Acting
Director and Chief of Staff a summary of this methodology used to
conduct the review of surgical cases.
30. On March 21, 2012, the HRM ER/LR Specialist verified that Maine
SLB received a copy of our September 1, 2010, Alert Notice.
31. On March 22, 2012, the HRM ER/LR Specialist received
verification via e-mail that Rhode Island did not receive a copy of the
September 1, 2010, Alert Notice.
32. On March 23, 2012, VA Maine HCS Acting Director, Chief of
Staff, HR Employee Relations/Labor Relations Specialist, Medical Staff
Coordinator, Risk Manager, and Staff Assistant to the Director held a
conference call with Director of Credentialing, VA Central Office, to
discuss our intent to submit Adverse Action Information to the National
Practitioner Data Bank on this Podiatrist, at which time the Acting
Director and Medical Staff Coordinator were informed that VHA Handbook
1100.17, page 2 states the VA is only required to report adverse
actions regarding physicians and dentists. The Handbook states the
Agency has a MOU on file with the NRDB that releases VA Hospitals from
the requirement to report adverse actions regarding other health care
providers.
33. On March 26, 2012, the HRM ER/LR Specialist received the
request from Maine SLB requesting follow-up information regarding
September 1, 2010, Alert Notice.
34. On March 28, 2012, the HM ER/LR Specialist contacted the Maine
SLB explaining that the Alert Notice previously sent to them should
have gone to the Board of Podiatric Medicine, not Physician Licensing
Board. This has been corrected for all States involved (Maine, Rhode
Island and New York) and new Alert Notices sent on March 29, 2012.
35. On March 20, 2012, meeting to brief Acting Medical Center
Director on Practice issues related to this podiatrist and actions to
date, included COS, Risk Manager, Regional Counsel, and HR ER/LR
Specialist. Acting Medical Center Director concerned over delays in
reviews and disclosures. We called Network Office - spoke with Chief
Medical Officer to brief him on situation.
36. On March 21, 2012, Acting Director met with involved staff
regarding out failure to report to NPDB. Met with HR Specialist
regarding out error in sending Advisement Notices to the Physician
State Licensing Boards.
37. On March 22, 2012, briefed VISN 1 Chief Medical Officer on the
status of this situation. Met with COS and HR to discuss further errors
in State Licensing Board notification. Met with Chief of Surgery and
Chief of Staff to discuss findings of case reviews
38. On March 23, 2012, met with involved staff regarding current
status of NPDB and SLBs reporting process. Held a conference call with
National Director of Credentialing to discuss NPDB and SLB reporting
process
39. On March 28, 2012, met with Chief of Surgery to review findings
of additional year of surgical cases reviewed.
40. On March 29, 2012, additional error found in original SLB
notifications - Advisement Notices redone and sent to appropriate
Boards of Podiatric Medicine in three involved states.
41. On March 30, 2012, met with Patient A for disclosure and
apology - current unassociated medical condition is terminal; COS and
Regional Counsel involved in institutional disclosure meeting.
42. On April 2, 2012, Joint Commission arrived unannounced and
onsite for five days. No findings regarding medical staff credentialing
and privileging cited by Joint Commission.
43. On April 5, 2012, met with Regional Counsel, New England and
Local Regional Counsel to discuss case specifics.
44. On April 9, 2012, met with involved staff regarding letter
received from podiatrist's attorney to determine level of response
needed.
45. On April 10, 2012, spoke with VISN 1 Chief Medical Officer
indicating the plan to contact National Director of Risk Management for
Guidance. Held conference call with National Director of Risk
Management for guidance. Held conference call with National Director of
Risk Management seeking new guidance on disclosure process. Held
conference call with Acting Chief Medical Officer, VACO Operations and
Management and provided case specific information. They provided
instructions Regarding next steps.
46. Action Plan as of April 12, 2012; in the discussion with the
Acting Chief Medical Officer, Operations and Management in VA Central
Office on April 10, 2012, the plan as
Of this date is as follows:
summaries of all record reviews completed to date will be
scanned and e-mailed to her attention no later than April 18, 2012
a tentative date of April 20, 2012, has been set for the
Subject Matter Expert Panel (SME) to convene
the facility will await further guidance from the Acting
Chief Medical Officer, Operations and Management
for any activities regarding State Licensing Board
reporting, the facility will seek guidance from the Director,
Credentialing and Privileging, VA Central Office before taking any
action.
47. In early March 2012, prior to this issue surfacing, VISN 1
revised their process for ensuring follow up of issue briefs with open
items which should receive follow up. Whenever an open item for which
follow up is expected, a task is created in our VISN Tasking system
with the due date based on expected follow up. The task is then
assigned to appropriate party for action. If response is not received
by the due date, VISN staff now follows up with responsible party to
ensure needed action is taken.
48. VISN 1 is in the process of reviewing all issue brief from the
past three years to Ensure all expected follow up actions have in fact
taken place.
Updated - April 16, 2012:
What date was the Staff Podiatrist hired at Togus VAMC and on what
date did he perform his first surgical Procedure?
Response: April 18, 2004; first surgical procedure performed on May
21, 2004
Did the Staff Podiatrist work at any other VAMC in the past?
Response: His employment history does not indicate he has worked at
another VA Medical Center.
Is 589 the total number of surgical procedures performed by the
Podiatrist between 2004-2010?
Response: Yes
To date, how many of the surgical procedures performed by the
Podiatrist have been reviewed for indications and outcomes?
Response: 173
What is the current plan to review the remaining patient records
and when is this anticipated to be completed?
Response: The Orthopedist (former Chief of Surgery) who has been
doing this review will return on Tuesday, April 17, 2012. He will be
working for us two days per week on a fee basis (retired on 3/31/2012)
with primary focus to be the completion of these case reviews. He is a
foot and ankle specialist. It is difficult to judge the time frame for
completion at this point. We will have a conversation with him upon his
arrival on April 17 to get a better sense of time to completion.
Has a master list been created (contact, date of procedure, whether
seen in follow-up) of all Veterans who have received a surgical
procedure?
Response: We have been working with a master list and will be
adding to it the contact information and dates of follow-up.
Please confirm that only 1 institutional disclosure has been
provided to date.
Response: On March 30, 2012, one institutional disclosure was
completed and has
Been documented in the Veteran's medical record.
Please confirm that the Chief of Surgery engaged in this review has
retired and'
No longer active at Togus VA.
Response: The Chief of Surgery did retire; however, as noted in #5
above, he will be returning on a fee appointment April 17, 2012, to
continue the case reviews.
As of today, who is actively engaged in reviewing the remaining
cases?
Response: Please refer to #5 above.
``The Handbook states the Agency has a MOU on file with the NPDB
that releases VA Hospitals from the requirement to report adverse
actions regarding other health care providers.''
Question: Does this preclude VA from reporting such adverse
actions? If not precluded, is the decision local? Or would it require
national policy?
Response: Please see response provided by Kate Enchelmayer -
In accordance with VHA policy and VA regulation for reporting to
the NPDB. VA only reports adverse actions on physicians and dentists.
This is national policy and regulation. The reason for this is that the
Health Care Quality Improvement Act which established the NPDB requires
the reporting of adverse actions on physicians and dentists and allows
that the adverse actions on other health care providers MAY be
reported. The HQIA requires the Secretary of HHS to enter into an MOU
with VA (and other Federal health care entities) for participation in
VA. Back in 1990 when the MOU was being negotiated and the
implementing Regulations were written (and subsequently revised) VA
elected to follow the HCQI in requiring reporting of adverse actions on
physicians and dentists only.
Since it is discretionary throughout the industry, VA did not want
to require the reporting of adverse actions on other health care
providers. Additionally, a national reporting standard had to be
established which follows the required reporting requirements of the
statute. It is not reasonable to allow discretion across the Agency
since one facility might report all adverse actions, and another would
only report those that are required.
Questions For The Record
Letter From Chairman Jack Bergman to VA
Secretary
U.S. Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
Dear Secretary Shulkin,
Please provide written responses to the attached questions for the
record regarding the Subcommittee on Oversight and Investigations
hearing entitled, ``Exan1ining VA's Failure to Address Provider Quality
and Safety Concerns'' that took place on November 29, 2017. In
responding to these questions for the record, please answer each
question in order using single- spaced formatting. Please also restate
each question in its entirety before each answer. Please provide your
responses by the close of business on Friday, January 12, 2018 .
Answers to these questions for the record should be sent to Ms. Hillary
Dickinson at Hillary.Dickinson @mail.house.gov and to Ms. Grace Rodden
at [email protected], copying Ms. Alissa Strawcutter at
[email protected].
If you have any questions, please do not hesitate to have your
staff contact Mr. Jon Hodnette, Majority Staff Director, Subcommittee
on Oversight and Investigations, at 202-225-3569.
Sincerely,
Jack Bergman
Chairman
Subcommittee on Oversight and InvestigationsCJB/hd
Cc: Ann McLane Kuster, Ranking Member
Attachments
Questions from Chairman Jack Bergman
1.VA stated that nledical center directors are ultimately
responsible for ensuring that clinicians who receive adverse
privileging actions are reported to the National Practitioner Data Bank
(NPDB). The Government Accountability Office (GAO) found that, in the
facilities it reviewed, the majority of clinicians who should have been
reported (eigl1t out of nine) were in fact not reported. Wl1at
accountability is being taken against the directors o'f these
facilities for failing to report these eight providers?
2.VA testimony stated that tl1e Department is ``improving oversight
to ensure that no settlement agreement waives VA's ability to report
providers to NPDB or [state licensing boards].'' However, these
agreements have always been against VA policy. Therefore, what
accountability mea'iures, to date, has VA take11against employees for
flouting this longstanding policy?
3.What steps will VA take to prevent veterans from receiving care
via Choice or another non-VA care program from poorly performing
providers who left VA and are now working in the community?
4.A recent VA Office of Medical Inspector report about the Marion,
Illinois VA found that radiologists were both over- and under-reading
reports. Has the facility conducted any clinical reviews to determine
if adverse privileging actions 11eed to be taken -against the providers
in question?
5.Dr. Cox testified that nothing prohibits VA from reporting a
contract provider to the NPDB and state licensing boards (SLBs) wl1en
that provider administers substandard care inside of a VA facility.
However, Committee staff was told that VA was unable to report the
doctor who conducted the amputation in Mempl1is I referred to at the
hearing. As such, please explain what is precluding VA from reporting
the contract doctor at issue, and if the answer is nothing, please
explain why that doctor has not been reported.
6.Given VA's failures to properly docurne11t and report quality and
safety concerns, what steps is VA taking to address the deficiencies in
reviewing and reporting providers when evaluating providers for
performance pay?
7.VA has the option to provide orders from its provider
disciplinary boards to the Federation of State Medical Boards when VA
takes action to preclude or limit a provider's ability to practice
within one of its facilities. But according to the FSMB 's testimony,
from 2007 to present, VA has not sent any such reports to the FSMB. Why
has VA chosen to not forward these orders to the FSMB for at least the
last 10 years?
8.The Bay Pines VAMC has indefinitely suspended thoracic surgeries
after being notified by the Joint Commission of issues within tl1at
department and at least three veterans died from complications
following surgery. Notably, in August 2017, tl1e VA Office of Inspector
General (OIG) found deficiencies in the process for evaluating the
competenc)' of thoracic surgeons at Bay Pines. How then did problems
within the thoracic surgery department persist after VA claimed to
ha,'e corrected the evaluation deficiencies identified by the OIG? Is
any kind of formal review being conducted? If so, by whom?
9.The same OIG report from Bay Pines higl1lighted how an
administrative psychiatrist conducted a thoracic surgeon's Ongoing
Professional Practice Evaluation (OPPE). How is an administrative
psychiatrist competent to review the-work of a thoracic surgeon?
10.GAO found that medical center staff did not always know the
relevant policies regarding reporting problem pro,,iders. Tl1erefore,
what steps will VA take to impro,,e medical center staff education?
11.Does VA's duty to report SLBs differ from tl1e duty borne by
11011-government hospitals? If so, what are the differences in when a
report must be made?
12.VA 's testimony highlighted the hearing process following an
adverse privileging action of a provider. In that process, are
providers (or their attorneys) allowed discovery to access relevant
documentation to assist in their defense?
13. In the event that a veteran patient who suffered harm as a
result of a VA provider's incompetence is not notified of the
provider's mistake until after any relevant statutes of limitation or
repose have expired, what allowances are made in law or in VA policy to
allow that veteran to pursue a claim for compensation?
14.In regards to the podiatrist from Tagus discussed during the
hearing:
a.Have each of this provider's cases been reviewed?
b.Have all of the affected veterans been contacted?
c.How long did this' process take?
d.Are any of the affected veterans within the timeframe to pursue a
claim for compensation?
15.What position or program office at the local VAMC is responsible
for reporting to SLBs and the NPDB? Is this standardized across the
system?
VA RESPONSE
Chairman Bergman
1. VA stated that medical center directors are ultimately
responsible for ensuring that clinicians who receive adverse
privileging actions are reported to the National Practitioner Data Bank
(NPDB). The Government Accountability Office (GAO) found that, in the
facilities it reviewed, the majority of clinicians who should have been
reported (eight out of nine) were in fact not reported. What
accountability is being taken against the directors of these facilities
for failing to report these eight providers?
Department of Veterans Affairs (VA) Response: The Deputy Under
Secretary for Health for Operations and Management (DUSHOM) is
reviewing the pertinent information provided by (GAO) and will, in
coordination with the Office of Accountability and Whistleblower
Protection and the Office of General Counsel, determine appropriate
action(s), if any, for the facility directors that failed to report.
2. VA testimony stated that the Department is ``improving oversight
to ensure that no settlement agreement waives VA's ability to report
providers to NPDB or [state licensing boards].'' However, these
agreements have always been against VA policy. Therefore, what
accountability measures, to date, has VA taken against employees for
flouting this longstanding policy?
VA Response: To strengthen oversight of settlement agreements,
Veterans Health Administration (VHA) issued specific guidance to
settlement officials. All proposed settlement agreements over $5,000
now require pre-clearance from the following: Medical Center Director,
Veterans Integrated Services Network (VISN) Director, the Deputy Under
Secretary Health Operations and Management (DUSHOM), and the Principal
Deputy Under Secretary for Health.
Additionally, the Office of the DUSHOM has issued enhanced guidance
to all VHA leadership of the requirements for reporting providers to
the National Practitioner Data Bank. The DUSHOM is reviewing specific
site information contained in the GAO report, and will determine
appropriate action, if any, for employees that are non-compliant with
the NPDB policy.
3. What steps will VA take to prevent veterans from receiving care
via Choice or another non-VA care program from poorly performing
providers who left VA and are now working in the community?
VA Response: VA has controls in place to help ensure high quality
providers serve our Veterans under the Choice program. Providers are
excluded from the Choice network if they are on the U.S. Department of
Health and Human Services List of Excluded Individuals/Entities. This
list provides information to the health care industry, patients, and
the public regarding individuals and entities currently excluded from
participation in Medicare, Medicaid, and all other federal health care
programs. VA also requires that providers have current and unrestricted
clinical licenses for the field in which they practice. Further, VA
conducts random monthly and annual sampling audits to ensure that the
Third Party Administrators are properly excluding poorly performing
providers. However, VA cannot prevent Veterans from choosing to see
such a provider if a veteran chooses to use other health insurance for
their care.
4. A recent VA Office of Medical Inspector report about the Marion,
Illinois VA found that radiologists were both over- and under-reading
reports. Has the facility conducted any clinical reviews to determine
if adverse privileging actions need to be taken-against the providers
in question?
VA Response: Marion VA Medical Center (VAMC) has conducted clinical
reviews of radiologic care. Based on recommendations made by both the
Office of the Medical Inspector and the VHA National Radiology Program
Office, a radiologist outside of the Marion VAMC is currently
conducting a retrospective Focused Professional Practice Evolution
(FPPE) review of 100 cases. The cases read by each radiologist at
Marion are specific to each exam technique (i.e. plain radiography,
computed tomography, magnetic resonance imaging, etc.). Until the
reviews are finalized, adverse privileging actions would be premature.
Additionally, Marion VAMC has developed an Imaging Quality
Improvement Committee which tracks metrics such as critical results,
complication rates, and patient safety. Marion VAMC has also requested
that the VHA National Radiology Program office conduct a follow-up
visit.
5. Dr. Cox testified that nothing prohibits VA from reporting a
contract provider to the NPDB and state licensing boards (SLBs) when
that provider administers substandard care inside of a VA facility.
However, Committee staff was told that VA was unable to report the
doctor who conducted the amputation in Memphis I referred to at the
hearing. As such, please explain what is precluding VA from reporting
the contract doctor at issue, and if the answer is nothing, please
explain why that doctor has not been reported.
VA Response: VA conducted peer review of the amputation performed
by the surgeon in question. Upon completion of the peer review the
facility Chief of Staff or Chief of Surgery would have met with the
surgeon to discuss the results. Peer review is the process by which one
or more physicians examines the work of a peer and determines whether
the physician under review has met accepted standards of care in
rendering medical services. Peer review is a quality improvement
process and is not intended to be punitive. The Joint Commission on
Accreditation requires hospitals to conduct peer review to retain
accreditation.
Under Veterans Health Administration Handbook 1100.18, Reporting
and Responding to State Licensing Boards (SLB), Paragraph 2.a., ``VA
has broad authority to report to SLBs those employed or separated
health care professionals whose behavior or clinical practice so
substantially failed to meet generally accepted standards of clinical
practice as to raise reasonable concern for the safety of patients.''
In this instance, VA did not find that it was required to report this
provider to the SLB under this standard.
6. Given VA's failures to properly document and report quality and
safety concerns, what steps is VA taking to address the deficiencies in
reviewing and reporting providers when evaluating providers for
performance pay?
VA Response: The purpose of physician performance pay is to improve
the overall quality of care and health outcomes by achieving specific
goals and objectives related to the clinical, academic and research
missions of the Department of Veterans Affairs. Each VHA physician and
dentist is assigned specific goals and objectives each year by his or
her clinical supervisor. These are generally developed locally and the
amount of performance pay that a physician or dentist receives may vary
based on the degree of execution and individual achievement of
specified goals and objectives. When evaluating performance pay,
supervisors and managers must document to what extent a performance or
conduct related disciplinary/adverse action impacted the individual's
ability to achieve his or her established goals and objectives and what
effect, if any, the action had on the performance pay decision.
7. VA has the option to provide orders from its provider
disciplinary boards to the Federation of State Medical Boards (FSMB)
when VA takes action to preclude or limit a provider's ability to
practice within one of its facilities. But according to the FSMB's
testimony, from 2007 to present, VA has not sent any such reports to
the FSMB. Why has VA chosen to not forward these orders to the FSMB for
at least the last 10 years?
VA Response: It is important to distinguish adverse privileging
actions that a VA medical facility may take versus actions to restrict
or revoke a provider's medical license. Only a state licensing board
can determine whether to restrict or revoke a provider's medical
license. When a VAMC takes a final privileging action, the action is
reported to the NPDB with a copy of the report notifying the respective
state licensing board(s). The state boards determine whether or not
they want to open their own investigation and then, based upon that
investigation, take a licensing action. If a licensing board takes an
action on a physician's license, that information is then reported to
the Federation of State Medical Boards.
8. The Bay Pines VAMC has indefinitely suspended thoracic surgeries
after being notified by the Joint Commission of issues within that
department and at least three veterans died from complications
following surgery. Notably, in August 2017, the VA Office of Inspector
General (OIG) found deficiencies in the process for evaluating the
competency of thoracic surgeons at Bay Pines. How then did problems
within the thoracic surgery department persist after VA claimed to have
corrected the evaluation deficiencies identified by the OIG? Is any
kind of formal review being conducted? If so, by whom?
VA Response: The thoracic surgery program has been thoroughly
reviewed by both internal and external entities. The thoracic surgeon
at Bay Pines has been found to be competent with quality indicators
within targets. During visits in November and December 2016, the Office
of Inspector General did not find any quality of care concerns related
to the thoracic surgeon's performance, but did make recommendations
that a similarly trained provider should evaluate the thoracic
surgeon's competency. This recommendation was implemented immediately,
with a similarly trained thoracic surgeon from another VAMC reviewing
the care provided.
After receiving a subsequent complaint from The Joint Commission,
facility leadership decided to place a moratorium on thoracic surgery
procedures pending an additional review. The VISN 8 Chief Surgical
Consultant conducted an on-site review on December 5, 2017, and
provided recommendations which the facility is currently implementing.
As for The Joint Commission complaint, none of the allegations of
complications related to thoracic surgery care were substantiated.
9. The same OIG report from Bay Pines highlighted how an
administrative psychiatrist conducted a thoracic surgeon's Ongoing
Professional Practice Evaluation (OPPE). How is an administrative
psychiatrist competent to review the work of a thoracic surgeon?
VA Response: Prior to August 2016, it was the practice of VHA
facilities for clinical service chiefs to submit Ongoing Professional
Practice Evaluations (OPPE) to the Chief of Staff during the re-
privileging process, once service level peers had finished their
evaluation. In the case of Bay Pines, the referenced administrative
psychiatrist is the Facility Chief of Staff who supervises the Chief of
Surgery, who in this case was the thoracic surgeon.
In August 2016, the DUSHOM issued a memorandum which required that
only providers with similar training and privileges conduct FPPE and
OPPE. In December 2016, the facility arranged for a thoracic surgeon
from another VAMC to directly observe the Bay Pines thoracic surgeon's
operative skills and there were no concerns raised regarding his
surgical technique. The facility is currently in compliance with the
August 2016, DUSHOM memorandum.
10. GAO found that medical center staff did not always know the
relevant policies regarding reporting problem providers. Therefore,
what steps will VA take to improve medical center staff education?
VA Response: Tremendous effort is underway to provide education on
the reporting process. Since the time of the testimony, training has
been provided during the national call for Medical Center Directors and
a special call was held for Chiefs of Staff. Additionally, training and
discussion has been held on the national call for credentialing staff.
The State Licensing Board (SLB) reporting policy is being revised. Once
it is published, there will be extensive training on the new policy and
reporting process including national webinars, reference material, and
guidance on conducting adverse privileging actions.
11. Does VA's duty to report SLBs differ from the duty borne by
non-government hospitals? If so, what are the differences in when a
report must be made?
VA Response: VA follows the reporting procedures outlined in VHA
Handbook 1100.18, ``Responding and Reporting to State Licensing
Boards.'' VA has broad authority to report to SLBs those employed or
separated health care professionals whose behavior or clinical practice
so substantially failed to meet generally-accepted standards of
clinical practice as to raise reasonable concern for the safety of
patients.
Private facilities have their own review and reporting policies and
processes. VA is not an authority on those practices. However, the
Federation of State Medical Boards (FSMB) House of Delegates
unanimously adopted new policy in 2016 that urges physicians, hospitals
and health organizations, insurers and the public to be proactive in
reporting instances of unprofessional behavior to medical boards
whenever it is suspected. Additionally, FSMB has noted that
collaboration between public and private entities including VA, the
Centers for Medicare and Medicaid Services, and the NPDB could enhance
public safety by engaging more proactively with each other. VHA has a
representative on the FSMB and is well positioned to work in this
collaborative environment.
12. VA's testimony highlighted the hearing process following an
adverse privileging action of a provider. In that process, are
providers (or their attorneys) allowed discovery to access relevant
documentation to assist in their defense?
VA Response: Yes. A fair hearing process is afforded to the
privileged provider which is an evidentiary review process. The
provider may have a representative for the fair hearing, which is
typically an attorney.
13. In the event that a veteran patient who suffered harm as a
result of a VA provider's incompetence is not notified of the
provider's mistake until after any relevant statutes of limitation or
repose have expired, what allowances are made in law or in VA policy to
allow that veteran to pursue a claim for compensation?
VA Response: Such a Veteran could file a claim for VA disability
compensation under the provisions of 38 United States Code (U.S.C.)
Sec. 1151. Statutes of limitations and repose are not applicable to
1151 claims.
14. In regards to the podiatrist from Togus discussed during the
hearing:
a. Have each of this provider's cases been reviewed?
VA Response: The concerns identified with this provider were
concerns of surgical quality. Thus, his patients were segregated for
the purpose of review into patients that received surgery and those
that did not receive surgery. In total, 431 patients were identified
that received surgery from Dr. Franchini. Each of these surgical cases
was reviewed. Additionally, during the process, it was decided to
expand the review to include a limited number of outpatients and wound
care patients. In total, 37 outpatients and 12 wound care patients were
also reviewed, for a total of 480 patients. All patients within these
three groups were reviewed at least once and most at least twice
(initial Togus review and external review) to determine if any
experienced possible or probable harm from their treatment.
b. Have all of the affected veterans been contacted?
VA Response: In accordance with the VA's Institutional Disclosure
process, the preliminary reviews served to determine which of the 480
patients who received care from Dr. Franchini were to be contacted
about this matter. A total of 270 of the 480 identified patients that
were determined from the review, discussed above, to have experienced
potential or probable harm, were reviewed for institutional disclosure.
Efforts were made to contact these 270 patients to determine if they
wished to receive a new evaluation. All patients were contacted with
the exception of 28 patients who are deceased and 10 patients who were
unable to be contacted due to undeliverable letters, no address on
file, or were unable to be reached by phone.
c. How long did this' process take?
VA Response: The initial facility level review of 25 cases took
from (approximately) December 2009 to April 2010. The larger facility
level review of all surgical cases took from April 2010 to May 2012. It
was later determined to expand the review to include a subset of
outpatients and wound care patients. Multiple external reviews of all
of these identified cases and coordination with the National Clinical
Review Board (CRB) process was conducted from May 2012 to January 2013.
The large scale disclosure portion of the process was completed in
January 2013 (via mail). Independent exams of affected patients were
substantially completed from January through April 2013, though several
patients waited months or even years more, at their own request, before
receiving an exam.
d. Are any of the affected veterans within the timeframe to pursue
a claim for compensation?
VA Response: The ``affected'' Veterans have the ability to pursue
two types of claims. First, they can file a claim for VA disability
compensation under the provisions of 38 U.S.C. Sec. 1151, as mentioned
above. This process has no time limits, so any veteran treated by Dr.
Franchini still could pursue a Sec. 1151 claim at this point. Such a
claim would be considered a ``claim for compensation'' separate from
the tort claim process described below.
Second, affected veterans can seek compensation through the tort
claim process, set forth under the Federal Tort Claims Act (``FTCA'').
The tort claim process involves, potentially, multiple steps and
implicates two separate time-periods in which a claim must be filed,
both of which must be met.
With regard to the steps involved, under the FTCA, a Veteran
seeking compensation for a tort, such as medical malpractice, would be
required to file an administrative claim with the Department of
Veterans Affairs, via a federal Standard Form 95. If the claim is
denied or the Veteran believed that he or she deserved greater
compensation than that offered, he or she then could file suit, within
certain temporal limitations, in the United States District Court. A
Veteran may not file suit in federal court unless and until his or her
administrative claim has been exhausted.
With regard to the ``timeframe to pursue a claim for
compensation,'' there are two limitations periods implicated by any
affected Veterans' claims against Dr. Franchini, and each veteran must
file his or her claim within both periods in order to avoid being time-
barred. The first time period is Maine's statute of repose, 24 Maine
Revised Statutes Annotated Sec. 2902, which bars any claims filed more
than three years from the date of the alleged negligent act (with a
narrow exception for instances of fraudulent concealment - an issue
that is currently pending with the United States District Court in the
six current lawsuits filed in the District of Maine). Because Maine's
statute of repose is not subject to equitable tolling (which otherwise
would toll application of the period until each Veteran discovered or
should have discovered the alleged injury), the trigger for each
Veteran's three-year period is the date of allegedly negligent care by
Dr. Franchini. It does not appear that any affected Veterans who filed
administrative claims did so within three years of Dr. Franchini's
allegedly negligent care. Therefore, barring a finding of fraudulent
concealment, none of Dr. Franchini's patients at the VA, including
those who currently are in active litigation against the United States,
appear to be within the timeframe to pursue a tort claim against the
United States.
The second time-period for pursuing a claim is the FTCA's two-year
statute of limitations, which does have an equitable tolling element,
requiring submission of an administrative tort claim form within two
years of when the patient knew or reasonably should have known about
the alleged negligence. Because the issue of when a patient knows or
should know about his or her injury is one of fact, that question can
be answered only on a case-by-case basis. With regard to the six
Veterans who are in active litigation against the United States, the
United States Attorney's Office for the District of Maine, which is
defending the United States in those suits, has not fully evaluated
whether any of those six plaintiffs met the FTCA's two-year statute of
limitations. In the event that the Court finds that any of the six
plaintiffs' claims are not barred by the Maine statute of repose, the
parties will turn to the issue of whether the surviving claims are
barred by the FTCA statute of limitations. At this point, however, it
is premature to draw any conclusions in that regard.
Other than the six cases that are currently in litigation, there is
one claim that has been denied based upon the two-year statute of
limitations in which litigation may yet be filed.
15. What position or program office at the local VAMC is
responsible for reporting to SLBs and the NPDB? Is this standardized
across the system?
VA Response: The SLB reporting process is standardized through VHA
policy. The Director is responsible for assigning an individual to be
responsible for the SLB reporting at the facility. VHA does not
prescribe what position is to be assigned the duty. Directors use their
discretion based upon the resources, experience, and knowledge among
their staff.
NPDB reporting is also standardized through VHA policy. An
individual with administrative access to the NPDB reporting system,
usually a credentialing staff member, is responsible for the data
entry.