Editor’s note: This column originally appeared on watchdog.org
First the White House Office of Special Counsel started an investigation into the embattled VA. Now it’s the turn of Health and Human Services for evidence that VA officials repeatedly accessed whistleblower medical records in retaliation — violating HIPAA laws.
Whistleblower Brandon Coleman was notified Wednesday that the HHS’ Office of Civil Rights has been investigating since May 1 his complaint that the VA used his confidential medical records in a campaign to intimidate him.
The revelation of an inter-agency legal struggle comes two weeks after a Senate hearing in which Coleman and other whistleblowers blasted the VA for using their own medical records to smear them.
Since then, Sen. Ron Johnson (R-Wis.), chairman of the Homeland Security and Governmental Affairs Committee, has introduced a bill outlining penalties for illegal use of whistleblower medical records.
“The VA has proven time and time again they cannot be trusted to police themselves, in order to fix this mess we need accountability,” Coleman told Watchdog, adding that he hoped this latest investigation would change what he called a culture of retaliation at the VA. Many VA whistleblowers are veterans themselves and have used the mental health services to combat PTSD. The records are ripe for picking by unscrupulous VA officials, he added.
“On Jan. 20, 2015, I was pulled into a meeting with my section chief Dr. Carlos Carrera where he questioned my mental health,” said Coleman, a counselor with the Phoenix VA Health Care System, who had seen a psychiatrist after he was honorably discharged from the Marines in 1994. “I told him that in three years he never once questioned my mental health, but now that I’m a whistleblower he is worried about my mental health? The timing was highly suspect.”
Coleman complained about the VA after witnessing suicidal veterans turned away for treatment because of inadequate medical center staffing. He alleged that sometimes only a janitor was present at the center.
Earlier this year he was suspended and told he needed a police escort if he returned to the facility for treatment, insinuating that he had an unstable mindset, Coleman said.
The pattern of intimidation was similar for Shea Wilkes, a manager in the Mental Health Division at Overton Brooks VA Medical Center in Shreveport. He reported finding a secret wait list with 2,707 names including 38 who died waiting for appointments.
In addition to retaliatory comments by his bosses, Wilkes said he was placed under criminal investigation by the VA’s Inspector General – an agency that is supposed to ferret out wrongdoing and protect witnesses. Instead, the IG accused him of violating HIPAA rules by having the list in his possession even though it was ultimately used as evidence to prove his allegations. The investigation against him lasted a year and was dropped several months ago after the U.S. Office of Special Counsel (OSC) became involved. The OSC reports to the president and is charged with granting whistleblower designations and protecting these individuals.
“They try to use our medical records as a form of intimidation,” said Wilkes, who had been an Army reserve captain overseeing a medical battalion of 100 people in Afghanistan. “I had filed claims in the service and they called me in and said, ‘Your colleagues have a question about your stability and if you are fit to lead. They think you aren’t fit to lead.’”
Then his supervisors “asked me if I saw a certain provider at the VA, and I had. It’s a form of ‘Shut up, we know this,’” Wilkes said. Wilkes and Coleman formed a network of VA whistleblowers and have found at least 20 nationwide who reported similar anecdotes.
But if you look at the VA’s record of disciplining employees who violate HIPAA, it’s practically non-existent, the Sept. 22 hearing revealed.
The most startling moment that day occurred when Johnson yelled “That is a lie!” at the VA’s chief medical director Carolyn Clancy. She had claimed to be “working on” a system to limit access to medical records.
Neither VA Secretary Bob McDonald nor HHS responded to requests for comment.
It is not clear what penalties exist if the VA is found to have violated the Health Insurance Portability and Accountability Act (HIPAA), which was enacted in 1996 requiring, among other things, greater confidentiality by medical providers. A HIPAA web page shows numerous offenders who paid millions of dollars to settle cases of wrongdoing.
“They investigated me for a list that’s not supposed to exist, yet people go into our files all the time and use it against us? You have to be kidding,” Wilkes said. “The last month has been very satisfying that there is movement on this stuff. A lot of us have been fighting this for years. It’s a reward.”