Letter Tester, Moran, Manchin, Boozman, Urge Reforms to Increase Oversight of VA Medical Facilities Nationwide

Press Release

Dear Secretary McDonough,
We write to discuss oversight failures at Department of Veterans Affairs (VA) medical
facilities. In particular, we are concerned with the failures at the Louis A. Johnson Veterans
Affairs Medical Center in Clarksburg, West Virginia (Clarksburg), and the Veterans Health Care
System of the Ozarks in Fayetteville, Arkansas (Fayetteville) that resulted in significant harm
and death of veterans in VA's care. In both instances, facility leadership created cultural
conditions that fostered mismanagement and a lack of accountability resulting in tragic
outcomes. The Department must work to prevent future similar incidents from occurring, and we
request more information about how VA intends to accomplish this objective.
Below are examples from the corresponding VA Office of the Inspector General (OIG)
reports relating to the Clarksburg and Fayetteville VA facilities. The reports detail specific
failures at these facilities that contributed to a nursing assistant committing several murders at
the Clarksburg facility and a doctor committing manslaughter and causing other patient harm by
being impaired on the job in Fayetteville. The OIG recommendations were made to help VA
provide top quality medical care to those who use their facilities. We are encouraged to learn VA
concurs with all of the OIG recommendations and expect VA to consider how these
recommendations could be implemented nationally to ensure nothing similar happens at other
VA facilities.
Homicides in Clarksburg, West Virginia
The May 2021 OIG report, Care and Oversight Deficiencies Related to Multiple
Homicides at the Louis A. Johnson VA Medical Center in Clarksburg, West Virginia, detailed
how, starting in July 2017, VA employee Reta Mays was able to murder patients in her care and
how her crimes went unnoticed at Clarksburg. The OIG illuminated consecutive and
compounding oversight issues that allowed Ms. Mays to inject her victims with deadly amounts
of insulin, causing them to die of hypoglycemic shock. Ultimately, she was convicted of killing
seven patients and the attempted murder of another patient over the course of her employment on
Ward 3A of the facility. The OIG concluded, "a combination of clinical and administrative
failures at the facility created the conditions that allowed Ms. Mays to committee these criminal
acts and for them to go undetected for so long." These failures began with her employment and
continued through the period in which she killed patients in Clarksburg. It is of serious concern
to us that these failures were not due to any single oversight mistake, but compounding oversight
shortfalls that allowed patients to be harmed and killed.
It appears the earliest failure to adhere to a policy that could have prevented what
happened on Ward 3A occurred during the hiring process. The OIG found Ms. Mays previously
worked as a corrections officer, and received complaints of excessive force during that time,
which should have been more thoroughly examined during her hiring process. The OIG
illustrated how the Office of Personnel Management (OPM) flagged initial employment
paperwork regarding past work history to contain "potentially actionable issue(s)… which may
be disqualifying under suitability/security considerations." This designation by OPM required
the VA adjudicator to conduct a more thorough investigation to determine the suitability of her
employment, but the OIG found no documented evidence of this follow-up investigation.
Instead, the adjudicator added Ms. Mays' file to the large amount of delinquent adjudication
work at the facility, and later marked the case as favorably adjudicated. This created a
circumstance in which Ms. Mays was never fully vetted prior to being hired and was not subject
to further vetting that would have otherwise been required. What will VA do to address this
serious lapse in procedures in workforce adjudication reviews? Has VA thoroughly vetted all
work conducted by the previous adjudicator at the Clarksburg facility to ensure there are no other
issues of concern? What steps is VA taking to review adjudication work at other facilities?
The OIG also found failures related to the mean in which Ms. Mays carried out the
murders. Veterans Health Administration (VHA) policy requires the use of certain medications,
including insulin, by staff and available stocks of medication rooms to be thoroughly
documented at medical facilities. This did not occur in Clarksburg. The OIG found medication
rooms were open to all nursing staff and medication carts were not properly secured.
Furthermore, an abnormally large amount of D50, a primary medication used in treating
hypoglycemic events, was used in Ward 3A. The OIG noted that this amount of D50 could have
raised red flags if proper protocols were being followed. The OIG report indicates VA concurs
with the OIG recommendation that the Clarksburg facility utilize the Veterans Health
Information Systems and Technology Architecture Automatic Replenishment System. However
it is difficult to imagine lax medication security is unique to Ward 3A of this facility. VA must
utilize the Veterans Health Information Systems and Technology Architecture Automatic
Replenishment System to track medication usage at all facilities, not just in Clarksburg. What is
VA doing to ensure that proper medication tracking is being conducted across all VA medical
facilities?
Another issue pointed out by the OIG was the lack of investigation into the hypoglycemic
events on the ward. It is of serious concern that such an investigation occurred only once during
the events detailed in the OIG's report. Of the hypoglycemic patients outlined in the OIG's
investigation to Ms. Mays' actions, several were documented in nondiabetic patients, so a sudden
and severe hypoglycemic event should have been cause for further concern. In addition,
information that would have proved helpful for treatment was not sent to an endocrinologist,
who could have helped provide guidance to medical staff and potentially identified the events as
they occurred. The OIG report indicates VA concurs with OIG's recommendation to implement
further oversight of patient outcomes across Veterans Integrated Service Network 5, but we
expect this to be implemented across VA. What will VA do to ensure that undesirable patient
outcome trends are being tracked and trends evaluated at all VA medical facilities?

Also of serious concern is that during the duration of Ms. Mays' employment, Clarksburg
was regularly being accredited by The Joint Commission (TJC). Given this facility was not
adhering to serious safety protocols, it is concerning that TJC did not uncover these problems.
Have VA and TJC discussed these issues and whether the accrediting body probed deeply
enough to uncover these problems? How can these shortcomings in TJC's review be mitigated
by VA moving forward so that serious concerns are brought to light and addressed sooner?
It is clear the lack of adherence to VHA policies on Ward 3A were not unique to the unit
as ten out of the fifteen recommendations by OIG were made to the entire medical facility.
Although the circumstances in which the murders in this facility took place were unique, we
expect the OIG's recommendations to be considered and applied at every facility to ensure that
nothing like what occurred in Clarksburg ever happens to veterans in VA's care again.
Medical Malfeasance in Fayetteville, Arkansas
The June 2021 OIG report, Pathology Oversight Failures at the Veterans Health Care
System of the Ozarks in Fayetteville, Arkansas, detailed how Dr. Robert Morris Levy abused his
position as Chief of Pathology and Laboratory (Path and Lab) Services at the Veterans Health
Care System of the Ozarks to cover-up his alcohol abuse and his many ethical and medical
errors. Some of these errors resulted in his manslaughter conviction in June of 2020. These
failures were compounded by oversight failures, particularly in the area of quality management,
and were further exacerbated by what the OIG described as "a culture in which staff did not
report serious concerns…because of a perception that others had reported or they were
concerned about reprisal." Simply put, the fail-safes put in place to protect patients from medical
malpractice were not followed. As a result, many patients received inadequate care from VA
facilities, which proved fatal in some cases, including when Dr. Levy misdiagnosed a patient
based on their lab results, and then revised his diagnosis, forging the approval of another
pathologist to concur. Both diagnoses were incorrect, and the patient died approximately a year
later without having had access to treatment options a correct diagnosis would have afforded
them.
A full review of Dr. Levy's work found that of approximately 34,000 diagnoses, nearly
3,000 were incorrect and 589 were major mistakes. During his tenure, Dr. Levy was regularly
under the influence of alcohol while at work and violated VA procedures in order to cover his
mistaken diagnoses and ethical misconduct. As the OIG notes, this situation was able to continue
over the course of many years due to deficiencies in the quality management system at the
facility, and because there was a culture at the facility that made staff feel unsafe to report issues
or have reports acted on.
One of the concerns outlined in the OIG report is the way in which the facility conducted
its peer review process for catching and correcting incorrect diagnoses. VA policy requires
certain pathology findings to receive a second review by a different pathologist, but the Staff
Pathologist who conducted these reviews worked directly under Dr. Levy at this facility.
VA policy also requires a randomly selected 10 percent of pathology findings to be reviewed to
identify possible errors. Inexplicably, these reviews were also conducted by the same Staff
Pathologist, removing the intended independent oversight. Having a subordinate of Dr. Levy
conduct the peer review process created a clear conflict of interest.
The OIG also found Dr. Levy had been forging documents to affirm his own erroneous
diagnoses. The OIG report indicates that VA concurs with OIG's recommendations for
improving the peer review system. Please provide more information on what VA will do to
ensure previous and future concurrences in pathology findings are independently validated in all
VA facilities.
Another oversight failure was at the pathology quality management committee level
within the Ozark facility. Dr. Levy was the Chairman of three different boards in charge of
quality control, and we were alarmed to learn that one of these committees reported zero major
discrepancies over the course of almost eight years. While we acknowledge the influence Dr.
Levy had as Chairman, we also note that he was not alone on these committees.
Recommendation 8 in the OIG report states that because other medical and administrative staff
did not "adequately perform their duties" VA should "determine whether administrative action is
warranted." Do you expect to complete this determination by the target date of October 2021, if
not sooner?
According to the OIG's findings, formal complaints of Dr. Levy being impaired on the
job arose as early as March 2014. Despite multiple red flags indicating alcohol abuse was
affecting his performance, he was allowed to maintain his position due to miscommunications
about VA's authority to test him for alcohol abuse. It was not until 2016 that Dr. Levy was tested
for alcohol, and this test proved what many around him had long suspected, that he was under
the influence while managing medical diagnostics with serious implications for veterans. VA
concurred with OIG's recommendation to consider the implementation of a mandatory alcohol
testing policy for VHA employees who "hold safety-sensitive positions" at VA facilities, with an
expected completion date of March 2022. We request a preliminary briefing on this effort 30
days from the date of this letter, a full briefing on expectations and testing of employees once
this policy is enacted, including how VA will define those who hold positions that would be
affected by such a policy, and to be made aware of any major obstacles VA faces in development
or implementation of such a policy.
Dr. Levy was allowed to return to all of his previous duties after attending an alcohol
treatment program, and soon after began using a substance to become intoxicated but that
couldn't be detected by routine testing. He showed signs of intoxication on the job once again,
but was allowed to continue working because he passed his mandatory alcohol screenings. We
would like to know why staff didn't conduct a more thorough test that could have detected this
substance, and what VA will do in the future to ensure that other staff who have been disciplined
for substance abuse cannot find other ways to avoid detection through conventional drug and
alcohol testing.
For quality health care to be achieved consistently it requires efforts from every level of
an organization. This includes senior leaders that are engaged, proactive, and promote a culture
of safety and adherence to protocol. The OIG also made recommendations to improve the culture
of the Ozark facility, which VA agreed to, however we have concerns that this issue is prevalent
throughout many facilities. It is our belief that if others had felt open to come forward sooner and
have their concerns acted on, that the actions of Dr. Levy could have come to light years earlier.
What is VA doing to ensure that the cultural issues, particularly the fear of retaliation by
subordinates for reporting the misconduct of their superiors, are being addressed at all other
facilities? Please provide us with the status and timeline of VA's efforts to implement the High
Reliability Organization framework at all of its facilities.
A culture of safety requires holistic accountability both in and of people in positions of
power. At the Ozark facility, staff did come forward with concerns about Dr. Levy's conduct,
and that these concerns were under-addressed by his supervisor. When employees speak out with
concerns, they should have confidence that management will act and thoroughly investigate
accusations of misconduct. How will VA act to ensure oversight and discipline of VA employees
in positions of power are not bottlenecked to one person, as demonstrated at the Ozark
facility? How is VA addressing this situation at the Ozark facility specifically?
Congress will continue to conduct thorough oversight and provide the Department
legislative assistance in order to meet our shared goal of providing top quality care for our
nation's veterans. Meeting this objective requires VA to follow procedure, promote
accountability, and cultivate management that inspires faith in VA employees and those they
serve. It is sacrosanct to VA's mission that veterans trust the medical treatment they receive is
high-quality and the people treating them meet all relevant ethical and professional standards
required by their field. VA must be proactive in identifying issues with staff as they arise,
monitor the quality of care at all levels, and continue to advance a culture of safety at all
facilities. We appreciate your prompt attention to these matters.