Crucial language that the Department of Veterans Affairs inspector general could not “conclusively” prove that delays in care caused patient deaths at a Phoenix hospital was added to its final report after a draft version was sent to agency administrators for comment, the Washington Examiner has learned.
The single most compelling sentence in the inspector general’s 143-page final report on fraudulent scheduling practices at the Phoenix veterans’ hospital did not appear in the draft version, according to a staff analysis by the House Committee on Veterans’ Affairs.
It was inserted into the final version, the only one that was released to the public, after agency officials had a chance to comment and recommend revisions.
Even before the IG’s report on its Phoenix investigation was released Aug. 26, the agency issued a press release touting the bottom-line finding:
“While the case reviews in this report document poor quality of care, we are unable to conclusively assert that the absence of timely quality care caused the deaths of these veterans,” the final IG report stated in two places.
No such language appears in the draft version that was sent by the IG to agency officials for comment.
Key members of the House Committee on Veterans’ Affairs have questioned whether the agency pressured the IG to soften its already scathing conclusions that phony appointment logs were used to hide long delays in care at the Phoenix facility.
The House committee obtained the draft version of the report late Thursday, after the Examiner published a story that IG had been refusing its release.
The Examiner has not obtained a draft copy of the IG report, but the absence of the language in the draft version that deaths could not “conclusively” be tied to delays in care was confirmed by committee staffers.
Rep. Jeff Miller, R-Fla., chairman of the House veterans’ committee, announced Monday his committee will hold a hearing next week to sort out why the language exonerating VA for patient deaths was included in the final report, and how the IG reached that conclusion.
"Given that VA selectively leaked key information related to the Phoenix investigation before the inspector general released its report and the fact that there are significant differences between the final IG report and the draft version, which VA reviewed and commented on prior to publication, this matter deserves further study and review,” Miller said in a statement announcing the Sept. 18 hearing. “We will ensure that happens."
Richard Griffin, acting inspector general at VA, balked at any suggestion that agency administrators influenced the language in the final the final version of the report.
“I can assure you that minimal changes were made to the draft report following receipt of VA’s comments and that changes were made solely for the purposes of clarity, and in no way altered the substance of the report,” Griffin said in a letter to Miller on Thursday.
“In all instances, the OIG, and not the VA, dictated the final findings and recommendations.”
Griffin’s letter to Miller was publicly released as part of the IG’s response to the Examiner story.
Catherine Gromek, a spokeswoman for the IG, cited Griffin’s letter when asked Monday why the critical language on patient deaths was inserted into the final version.
Inspectors general are independent watchdogs within federal agencies. Draft inspection reports are normally sent to agency administrators for comment, which can lead to revisions between draft and final versions.
Allegations that patient waiting lists were being falsified to conceal delays in care were first raised in October 2013, when Dr. Sam Foote, a former doctor at the VA hospital in Phoenix, contacted the inspector general.
Foote told the Examiner last week that the IG did not seem to take his allegations seriously, so he went to Miller’s committee with his charges this past February.
Miller publicly disclosed the allegations in April, and directed the IG to conduct a thorough investigation. The final report, issued in August, confirmed earlier findings that falsification of patient wait times was “systemic” throughout the VA.
About a week before the final IG report was released, Rep. Mike Coffman, R-Colo., sent a letter to Griffin asking for a detailed explanation of what the IG did between October 2013, when Foote first reported his allegations, and April 2014, when Miller revealed them publicly.
Coffman also sought a draft copy of the IG’s report, questioned how the IG would determine whether delays caused patient deaths, and asked whether VA administrators influenced the findings.
Coffman is chairman of the House veterans’ subcommittee on oversight and investigations.
One issue Coffman pressed Griffin on was what standard would be used to determine whether unacceptable delays contributed to patient deaths. He urged investigators to judge whether delays “more likely than not” harmed patients, and not apply “unrealistic” standards requiring 100 percent certainty.
Coffman said Monday he still wants to know why the IG opted to use the “conclusively assert” language in weighing whether delays contributed to deaths.
“A lack of medical care is not an official cause of death,” Coffman said Monday. “So how did the OIG not realize the ambiguity of this statement?”
Initially Griffin refused Coffman’s request for the draft report, citing long-standing practice by inspectors general government wide.
After the Examiner questioned the IG’s office about the draft report Thursday, it was provided to the committee with the caveat that it could not be released publicly.
Griffin issued a scathing rebuttal late Friday to what he dubbed “media coverage of baseless allegations on independence and integrity over the IG’s report.”
“A report in today’s media questions the independence and integrity of the dedicated men and women who work in our organization,” Griffin said in a press statement accompanied by letters he sent to Miller and Coffman, as well as the Examiner story. “There is no basis in fact to support these allegations.”
Griffin said the VA inspector general “has never in its history received a request for a draft report for the purpose of comparing the draft and final versions” until the Phoenix draft was sought by Coffman.
As to Coffman’s concerns that the IG used too rigorous a standard in weighing harm to patients, Griffin said his job was not to determine legal culpability for the deaths.
“The OIG has no authority or responsibility to make determinations as to whether acts or omissions by VA constitute medical negligence under the laws of any state or to compensate veterans or their families if the veteran suffered an injury as the result of the provision of health care,” Griffin wrote in his letter to Coffman.
Louis Celli, legislative director for the American Legion, said the concern about the Phoenix hospital has always been that patients died or were harmed while waiting for care, not that the delays directly killed them.
“Whether or not there is conclusive evidence that delayed healthcare was the direct causal effect of a veteran immediately passing to their deaths, that was never what we were afraid of,” Celli said. “What we were afraid of was that delayed healthcare was causing additional harm and damage to veterans.”
The Legion has called for an independent investigation by a “non-VA authority” to determine whether delays contributed to patient deaths in Phoenix or other VA facilities.
The sentence in the IG report that it could not conclusively prove the delays caused deaths allowed VA officials to seize on that language and downplay more critical findings, which it did in a press release even before the final IG report was issued, Celli said.
“To try to hang your hat on ‘it doesn’t look like we’ve actually caused any deaths today,’ you’re avoiding the issue,” Celli said. “It’s smoke and mirrors.”
Brewster Rawls, an attorney who represents veterans in medical malpractice claims against the VA, said the IG’s conclusion that it could not conclusively prove delays caused deaths is unrealistic and beyond what the agency itself uses in internal reviews of medical care.
Delays rarely are the direct cause of death, said Rawls, a lawyer at Rawls, McNelis and Mitchell.
Typically the long waits for treatment lead to a lower quality of life and ultimately make successful treatment less likely, he said.
“All they are saying is there is no smoking gun here, that the patient was losing all of his blood and we didn’t treat him; and if we had treated him he would have survived,” Rawls said. “Did it affect the outcome for the patient? That’s the real question.
“If you have hundreds of patients where their care is getting delayed, it is nonsense to say that doesn’t adversely affect the care that they receive and that in some of those instances it is going to result in the premature death of a patient,” Rawls said. “It’s just nonsense to try and say that.”
Griffin is scheduled to testify in front of the Senate Committee on Veterans’ Affairs Tuesday. VA Secretary Robert McDonald is also scheduled to testify at the hearing, which begins at 10 a.m.