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DeplRrnaeNT oF VereRerus Aprruns

Office of !nspector General


P.O. Box 50410
Washington DG 20091-041 0

ln Replv Referro:s3E/Ds
May 22, 2OOg

Mr. Oliver B. Mitchell, lll


P.O. Box 1912
Long Beach, CA 90801-1912

Dear Mr. Mitchell:

This concerns your correspondence dated May 12, 2OOg, to the Office of lnspector
General.

Based on the information you provided, we would like to ask the Veterans Health
Administration to conduct an inquiry into your allegations. However, it may become
apparent who made the allegations. lf you agree to the release of your identity, please
complete the enclosed form along with the names and social security number of the
patients who MRI orders were cancelled and fax it to 202-565-7936, Attention
Representative 86, or mail it in the envelope provided.

lf you have not responded to this request by June 22, 2OOg, we will consider this
matter closed and will take no further action.

The Whistleblower Protection Act of 1989 established the Office of Special Counsel
(OSC) as a separate entity to examine allegations of prohibited personnel practices,
including alleged reprisal for Whistleblowing. We are enclosing a copy of a Reprisal for
Whistleblowing fact sheet for your information. If you believe a perionnel action has
been taken against you because of any whistleblowing, you may contact OSC at (800)
872 -9855 or you mai- lvrite to them at:

U.S. Office of Special Counsel


1730 M Street, NW
Suite 300
Washington, DC 20036-4505

Sincerely,

tr-/"37fu
CHRISTINA A. LAVINE
Director, Hotline Division

Enclosures
COMPLAINTS OF
REPRISAL FOR WHISTLEBLOWING

lf you believe you have suffered reprisal for whistleblowing, there are certain facts you
should be able to establish. The purpose of this outline is to familiarize you with the
kinds of information you must present to successfully pursue your complaint. We'll start
with some definitions and then pose some specific question for your consideration.

DEFINITIONS

Reprisal is to take or fail to take or threaten to take or fail to take a personnel action
because an employee or applicant for employment engaged in whistleblowing.

Whistleblowing is any disclosure of information by an employee or applicant for


employment which the employee or applicant reasonably believes evidences a violation
cf law, ru!e, or regulation; or, gross mismanagement, a gross waste of funds, and abuse
of authority, or a substantial and specific danger to public health or safety, provided that
the disclosure of information is not specifically prohibited by law or the information is not
specifically required by Executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs.

A personnel action is an appointment; promotion; adverse action (including removal,


demotion, or suspension) or other disciplinary or corrective action; detail, transfer or
reassignment; reinstatement; restoration to duty; reemployment; performance evaluation;
a decision concerning pay, benefits, or awards, or concerning education or training if the
education or training may reasonably be expected to lead to another personnel action
described here; a decision to order psychiatric testing or examination; and any other
significant change in duties, responsibilities or working conditions.

QUESTIONS TO CONSIDER

1. Did you blow the whistle on something you believed to be wrong? lf so, what
information did you disclose? Did that information evidence violation of law, gross
waste of funds, etc? (See the definition of whistleblowing above.) To whom did
you give the information? When did yr61; disclose the infornnation?

2. Subsequent to the whistleblowing, did you experience personnel action(s) as


defined above? lf so, when? Who took the action(s)?

3. Did the management officials who took, withheld or threatened the personnel
action(s) know about the whistleblowing before the action(s)? What kind of
evidence do you have (witness, document, etc.) that the management official
knew about the whistleblowing?

Sometimes whistleblowers have a strong feeling that the manager must have
known, but no proof. lf you have no proof, and the manager denies any
knowledge of the whistleblowing, your belief that reprisal occurred will be very
hard to prove.
4. Did the management official consider the whistleblowing in any way as part of the
personnel action(s)? That is, was the whistleblowing a contributing factor to the
personnel action(s)?

The easiest way of showing the whistleblowing was a contributing factor is if the
personnel action occurred soon after the responsible management official learned
of the whistleblowing. Other ways to show this are to show the manager referred
to the whistleblowing in the personnel action; the documentation of the action in
some way refers to the whistleblowing; co-worker overheard the manager talking
about the personnel action as if the intent was revenge for the whistleblowing,
etc..

Although not intended to be a difficult test, showing that the whistleblowing was a
contributing factor in the action believed to be reprisal is the place that most
whistleblower complaints break down. if you have a firnrly held beiief with nothing
concrete to support that belief, then you will have a difficult time convincing others
that reprisal has occurred.

REPRISAL APPEALS

The U.S. Office of Special Counsel (OSC) was established to investigate allegations of
prohibited personnel practices, including reprisal for whistleblowing. lf you believe that
you have experienced reprisal for whistleblowing, you may contact OSC at 1730 M Street
NW, Suite 300, Washington, DC 20036. OSC also has a toll-free telephone number: 1-
800-872-9855.

The Department of Veterans Affairs, Office of lnspector General Hotline can also be
reached at Post Office Box 50410, Washington, DC 20091-0410 or at its toll-free
number: 1 -800-48 8-8244.
PERMISSION TO DISGLOSE IDENTITY

TO: Inspector General


Department of Veterans Affairs

I give permission to use my name and employment situation in connection with the
complaint I filed with the lG Hotline on j 200!. I understand this
authorization applies only to the specific lG Hotline complaint identified above and will
remain in effect unless withdrawn by me in writing.

OR

E I have already initiated a grievance, appeal, or EEO complaint regarding the matters I

raiseci, and do not wish to have my name and situation used as an example in the
systemic review.

OR

E t Oo not wish to pursue my concerns

SIGNATURE (FULL NAME):

FULL NAME (PRTNTED) :

DATE:

ATTIr,i: REP E6iDS (200e-1 5278i CONSENT FORM


Office of Health Data and lnformatics
VHA Privacy Office

Privacy Fact Sheet


Disclosures to VA Office of the Inspector General
There has been a great deal of discussion about VA Office of the lnspector General (OlG) officials coming to VHA health
care facilities and requesting protected health information (PH l). Some of the questions have been regarding whether we
can give OIG investigators PHl, how much we can disclose and whether their reguest must be in writing. This fact sheet
will discuss how facilities should respond to such reguests from the OlG. Please share with individuals you feel would
benefit frorn this fact sheet.

The VA CIG serues a number of funciiorrs relating to oversight anc! investigaiions within VA. The OIG Office of
lnvestigations conducts criminaland administrative investigations of wrongdoing in VA programs and operations. The
Office of Audit contributes to the improvement and management of VA programs and activities by conducting financial and
performance audits that address the economy, efficiency and effectiveness of VA operations. The Offlce of Healthcare
lnspections (OHl) conducts oversight, monitoring and evaluation of VHA quality assurance programs and the activities of
the VHA Office of the Medical lnspeclor. OHI reviews specialized VA treatment programs, patient care, quality assurance
issues and hotline allegations involving medical care issues to strengthen VA's health care programs.

Health Care Oversight vs. Law Enforcement

VHA Handbook 1605.1 , Privacy and Release of lnformation, provides authoritative guidance on disclosing information to
the OlG. ln evaluating a request (verbal or written) for information by the OlG, lt is necessary to flrst understand the
purpose of
,the request. Generally speaking there are two forms of activities (health care oversight and law enforcement)
where the OIG may be requesting information. Additionally, the OIG may be requesting two types of information:
protected health information (PHl) (e.9., medicalrecords)or non-protected health information (non-PHl)(e.g., official
personnel records, police and law enforcement records).

When the OIG requests information for the purposes of conducting health care oversight activities, VHA Handbook
Privacy_and-Release of lnformation, Paragraph 16(b) provides that VHA muslprovide any information, inctuding
L995,1,
f:H! 19!h.e V4 OIG for any official purpose authorized by law. This includes PHI for the purpose of health care oversiglit
[see HIPM Privacy Rule,45 CFR 164.512(k)]. OIG employees who are not employed in the OIG's Office of
lnyestigatio_ns, such as auditors, health care inspectors and OIG hotline employees always seek PHI for health oversight
purposes. Such requests for the purposes of health care oversight do not require a written request regardless of the type
of information being requested.

When OIG requests PHI for the purposes of conducting a criminal investigation, the investigation may consist of a health.
criminal investigation or a law enforcement criminal investigation. For law enforcement criminal investigationd,
9.y91s19nt
VHA Handbook '1605.1 , Privacy and Release of lnformation, Paragraph 21(g) provides that VHA wilt retease PHt in
response to a written request from the OlG. Under this circumstance, the request must meet the requirements of VHA
Handbook 1605.1, subparagraph 21(c). As indicated undersubparagraph 21(c)(1)(e)(3), the requestonty needsto be
signed by a VA official authorized to request the information. lf the OIG seeks PHI for health oversight ciiminal
investigations, a written request is not required. OIG investigators will advise VHA whether the PHlls needed for a heatth
oversight criminal investigation or a law enforcement criminal investigation.

For.non-PHlrecords, awritten requestis neverrequired regardless of the information being requested. VHA Medical
Centers should only be requiring a written request from the OIG for those disclosures made for law enforcement criminal
investigations purposes and which involve the disclosure of protected health information. All other requests for
information from the OIG do not require a written request.

1
Privacy Office at a glance...
VHA-specific: VHA personnel should contact the VHA Privacy Office at 215-823-4146 or 321-SO4-4574 or via
emailthrough the VHA Privacy lssues mail group. Website: http://vaww,vhaco.va.qov/privacy
VA-wide: Other VA employees should contact the VA privacy Service at d.
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