Category: Daily News

The VA Accountability and Whistleblower Protection Act of 2017 is a law that was passed by the United States Congress to improve accountability and whistleblower protection within the Department of Veterans Affairs.

Prior to passage of this act,it was whistleblowers who helped expose the nationwide scandal over long waits for care. Beginning in 2014, VA medical facilities across the country were found to have covered up delays in providing care, making waits as long as four months appear much shorter.

The law created a new Office of Accountability and Whistleblower Protection (OAWP) within the VA, which is responsible for investigating allegations of misconduct and retaliation against whistleblowers. The law also expanded the definition of protected disclosures to include allegations of gross mismanagement, gross waste of funds, and abuse of authority.

Following passage of the Act, members of Congress asked the Office of the Inspector General to determine the success or failure of the VA in implementing this Act. The OIG reported in October 2019 that implementation was not successful.  For example it said that “A critical purpose of the Act was to facilitate holding Covered Executives accountable for misconduct and poor performance. However, as of May 22, 2019, the Inspector General determined that VA had removed only one Covered Executive from federal service pursuant to the authority provided by the Act.”

And it does not seem that things have gotten much better since the 2019 OIG report. Earlier this year Rep. Jay Obernolte (R-Calif.) issued a press release stating that the VA informed him that “it will no longer use the tools provided by the bipartisan VA Accountability and Whistleblower Protection Act, which was signed into law in 2017″ citing that this was “because the Biden administration paused the use of the law.”

His consternation at the time of this press release was his request for “answers on a situation at the Loma Linda VA Medical Center (VAMC) where a supervisory employee continues to be employed by the medical center despite creating a hostile work environment, ultimately reducing accountability, impacting employee morale, and hindering the good delivery of services to veterans.”

Also last April 2023, U.S. Senators Marco Rubio (R-FL) and Steve Daines (R-MT) sent a letter bashing U.S. Department of Veterans Affairs Secretary Denis McDonough for announcing the VA will ignore important provisions of the VA Accountability and Whistleblower Protection Act that require the agency to hold bad employees accountable.

The Government Executive website confirmed the VA decision to discontinue use of the Act starting April 3. It claims the reason was that the “Federal Labor Relations Authority found VA violated its collective bargaining agreement with the American Federation of Government Employees when it eliminated ‘performance improvement plans’ from the pre-disciplinary process. The decision required VA to reinstate all employees fired without first being provided such a plan, a process McDonough told members of Congress on Thursday is currently under negotiation.”

And the situation at Loma Linda VA is discussed in detail by a news story published on June 18 by Military.com. According to it’s report, several VA Loma Linda Healthcare System whistleblowers have come forward with new allegations of retaliation, harassment and hostile working conditions amid a widening investigation by the House Veterans Affairs Committee.

Last Friday, committee member Jay Obernolte, met behind closed doors with VA Loma Linda’s interim director Bryan Arnette, and other officials to discuss the whistleblower complaints and map out needed changes.

“Sometimes in federal government – we can create a workplace environment that is tolerant of people that don’t follow the rules,” Obernolte said during a press briefing following the meetings without offering specific details about what was discussed. “We want to make sure that doesn’t occur.”

Separately, staff members from the House Veterans Affairs Subcommittee on Oversight and Investigations met with whistleblowers at an undisclosed location to review their complaints that suggest systematic failures by the federal government to address problems at VA Loma Linda. Obernolte declined to disclose the specific nature of the confidential whistleblower allegations

Obernolte’s visit follows a Southern California News Group report in May that revealed a 2021 federal investigation found that a VA Loma Linda manager frequently used racial slurs, required workers to buy him food and drive him to and from work, and then punished those who refused his demands with bad assignments.However, instead of being terminated for creating a hostile work environment, the manager – identified by multiple sources as grounds department supervisor Martin Robles – was inexplicably promoted.

“There were numerous instances where inappropriate language and racial slurs were used which appears to be a common practice,” a Veterans Administration investigative board said in a heavily redacted 61-page report obtained by the Southern California News Group. “Inappropriate and discriminatory hiring practices were found, which have contributed to the lack of trust, poor morale, and fractured culture.”

The Administrative Investigation Board (AIB) recommended Robles be removed from employment because of “overwhelming evidence to support that the supervisor was intimidating, exhibited bullying behavior, threatening behavior, and contributed to a hostile work environment,” said a source familiar with the probe. The AIB investigation, which began on Dec. 9, 2020, and concluded the week of Jan. 11, 2021, included 57 hours of testimony from 36 witnesses and 4,000 pages of exhibits.

Robles also was the focus of two other VA Loma Linda investigations in 2020 and 2022 that substantiated allegations he fostered a hostile work environment. Details of those two investigations were not immediately available.

The controversy involving Robles is the latest in a string of troubling incidents involving VA Loma Linda employees.

About a decade ago, a great number of former NFL players filed civil and industrial injury claims in California alleging that sport related head trauma and concussions while engaged in professional football resulted in the development of a Alzheimer’s like dementia decades later. At the time, this medical condition became known as CTE or Chronic Traumatic Encephalopathy.

Their claims were based, in part, on the work of Anne McKee M.D. who is a neuropathologist and expert in neurodegenerative disease at the New England Veterans Affairs Medical Centers and is professor of neurology and pathology at Boston University School of Medicine and director of Boston University CTE Center, which was established in 1996 and funded by the National Institutes of Health to advance research on Alzheimer’s disease and related dementias.

In her early work published in 2009, she reviewed 48 cases of neuropathologically verified CTE recorded in the literature and document the detailed findings of CTE in 3 professional athletes, 1 football player and 2 boxers, and theorized that “Chronic traumatic encephalopathy is a neuropathologically distinct slowly progressive tauopathy with a clear environmental etiology.”

Het hypothesis received widespread media attention with the arrival of the movie “Concussion” a 2015 American biographical sports drama film. Will Smith starred as Dr. Bennet Omalu, a forensic pathologist who fights against the National Football League trying to suppress his research on chronic traumatic encephalopathy (CTE).

Over the years, much scientific debate ensued over her theory, and the relationship between a head trauma and the development of CTE many years later. And for over two decades, the Concussion in Sport Group (CISG) has held meetings and developed five international statements on concussion in sport.  CISG is an international multidisciplinary group of experts who work to improve the understanding and management of concussion in sport. It was founded in 2001 and has met every four years since then to produce consensus statements on the latest evidence about concussion in sport.

The CISG is made up of experts from a variety of disciplines, including neurology, neurosurgery, sports medicine, neuropsychology, and epidemiology. The group’s work is supported by the International Olympic Committee (IOC) and the World Health Organization (WHO).

The 4th Consensus Statement on Concussion in Sport published in the British Journal of Sports Medicine in 2013, reviewed the medical literature at the time and rejected the blanket conclusion that there is a definitive cause and effect connection between repetitive head trauma and CTE. It concluded that ‘the speculation that repeated concussion or subconcussive impacts cause CTE remains unproven,“

The sixth International Consensus Conference on Concussion in Sport was delayed because of the pandemic, and was rescheduled to meet in Amsterdam on 27 October 2022 through 29 October 2022. As a result of this newest Conference, the Consensus statement on concussion in sport: the 6th International Conference on Concussion in Sport – Amsterdam, October 2022 was published in the British Journal of Sports Medicine on June 14, 2023. It was compiled by 114 co-authors.

It first noted that “To avoid conceptual confusion between the pathology and a possible clinical condition, the postmortem neuropathology is referred to as CTE neuropathologic change (CTE-NC).” However “CTE-NC is not a clinical diagnosis. The first consensus criteria for traumatic encephalopathy syndrome (TES), a new clinical diagnosis, were published in 2021.

Using these new terms, CISG then wrote “These diagnostic criteria can be used to determine the extent to which CTE-NC identified after death was associated with this new clinical diagnosis during life. The prevalence of CTE-NC (a neuropathological entity) and TES (a clinical diagnosis) in former athletes, military veterans and people from the general population is not known. It is also not known whether (1) CTE-NC causes specific neurological or psychiatric problems, (2) the extent to which CTE-NC can be clearly identified within the presence of Alzheimer’s disease neuropathology or (3) whether CTE-NC is inevitably progressive.”

Critiques of the latest Consensus Conference were immediate. According to an article in Nature, “Their refusal to acknowledge a causal relationship between contact-sports participation and CTE [chronic traumatic encephalopathy] is a danger to the public,” said Chris Nowinski, a neuroscientist and chief executive of the Concussion Legacy Foundation in Middletown, Delaware, which supports athletes and veterans affected by concussions and CTE.

Yet Robert Cantu M.D. one of the co-authors of the consensus report and colleague of Ann McGee M.D. at the Boston University School of Medicine in Massachusetts said  “The CTE literature is almost exclusively case series studies” and he went on to say “And that literature did not meet the inclusion criteria for the systematic review.”

Liberty Mutual Insurance Company employed Joy Slagel from 1985 to June 30, 2016, most recently as Senior Case Manager in its Glendale claims department. For 30 years, she received consistently positive reviews from supervisors, colleagues and clients. A review of allegations and documentation in the litigation file between them revealed the following allegations.

In February 2015, Slagel went on disability leave due to stress and anxiety.

After returning in March 2015, Ariam Alemseghed, Regional Claims Manager, overseeing Liberty’s Glendale claims department, instructed Craig Ballard, Slagel’s immediate supervisor, to rate Slagel as “needs improvement” on her performance assessment. When Slagel asked Ballard why she received this rating, he told her he had not wanted to give it but Alemseghed instructed him to do so. When Slagel complained to Alemseghed about the rating, Alemseghed stated that because of her “tenure,” Slagel would be held to “higher expectations.”

On March 4, 2015, Slagel wrote to Glenn Shapiro, Liberty’s Vice President/Chief Claim Officer, complaining that Alemseghed mistreated her and several other long-term employees “in a manner that lacked dignity and respect,” and she feared retaliation because Alemseghed had a close relationship with Virginia Bennett, Liberty’s Human Resources Generalist. Slagel received no response.

In June 2015, Slagel told Human Resources (HR) Manager Michael Polk that 15 people had left in the last 12 months, and Alemseghed wanted long-term employees to leave so she could hire recent college graduates. Nothing was done.

In November 2015, Slagel received a Customer Service Award for her handling of claims for one of Liberty’s accounts. Alemseghed told her, “You just got lucky, it will never happen again.”

In January 2016, Leann Lo became Slagel’s Claims Manager. Shortly thereafter, Lo accused Slagel of speaking negatively about Liberty, and said, “I am warning you!” Lo and Alemseghed allegedly thereafter inundated Slagel with work and shunned and ostracized her.

A protracted dispute between Joy and her managers over the documentation of a social media check made during a claim review with an employer. Slagel complained to Bennett and Lo that she was being targeted because she was a 30-year employee whom Alemseghed wanted to replace.

On April 19, 2016, Slagel sought medical care for hypertension, coronary artery disease, hyperlipidemia, and panic attacks related to work-related stress and depression, and subsequently applied for short-term disability leave.

While Slagel was on leave, Bennett analyzed her failure to obtain a social media report for the employer in question, and noted that Slagel thought she was being set up because she was a 30-year employee. Bennett resolved Slagel’s complaint with no investigation because he believed she was a “negative influence in the Glendale office.”

After receiving authorization from attorney Gabriel Williams, Liberty’s Employee Relations Consultant, who could authorize terminating an employee, Lo terminated Slagel on June 30, 2016, the day she returned from leave. Slagel filed a complaint against Liberty, Alemseghed, and Lo, alleging 12 causes of action.

During discovery, Slagel attempted to depose Williams concerning his decision to approve Slagel’s termination. During the deposition Williams, an attorney, was unable to understand several basic questions, and according to the review by the Court of Appeal “Williams avoided the entire line of questioning pertaining to Slagel’s termination.” Other disputes between arose during plaintiffs discovery process concerning Polk’s depostion.

Defendants filed motions for summary judgment, arguing no triable existed as to whether they harbored a discriminatory motive for Slagel’s discharge. Slagel sought to continue the summary judgment hearing to complete discovery regarding Polk’s interviews, including the notes and an interview chart he had not produced, and also requested time to depose Latecia Flemming about her discussions with Polk. Slagel further requested time to depose Dan Karnovsky, who controlled some the investigatory reports and notes. The court denied these requests

The trial court found that Slagel submitted evidence of a discriminatory motive on the part of Alemseghed, but no triable issue existed as to whether Liberty’s reason for terminating Slagel was pretextual. The court found, Slagel “simply has not submitted evidence to show how Alemseghed’s age bias caused her termination when Alemseghed was not responsible for her termination, and when the proffered reason for Plaintiff’s termination, i.e., the social media report incident, actually did occur.” Accordingly, the court granted summary judgment in defendants’ favor and entered judgment. It awarded Liberty and Alemseghed jointly $26,917.61 in costs as prevailing parties, allocated to Slagel’s non-FEHA claims. The court awarded Lo $70,058.15 in attorney’s fees and $15,418.96 in costs as a result of Lo’s subsequent sanctions request.

The Court of Appeal reversed in the unpublished case of Slagel v. Liberty Mutual Insurance Company -B310132 (June 2023).

The Court of Appeal noted that “Here, triable issues exist as to whether Williams’s decision to approve Slagel’s termination was tainted by Alemseghed’s bias. Alemseghed influenced Bennett’s and Williams’s deliberations by portraying Slagel’s performance in the worst possible light. This influence may well have been decisive. Williams’s deliberations were brief, perhaps perfunctory, taking only about half an hour.”

“Williams testified in deposition that he could not remember having considered the issue. Having no personal knowledge of the facts, Williams, who was not conversant with the possible age animus that may have motivated Alemseghed’s recommendations (as filtered through Bennett), was apt to defer to Bennett’s and Alemseghed’s judgment. If Williams acted as the conduit of Alemseghed’s bias, his innocence would not spare Liberty from liability for Alemseghed’s procuring Slagel’s discharge because of her age.”

On summary judgment, inferences must be drawn in favor of the opposing party. Here, the trial court should have but failed to draw several inferences in Slagel’s favor. Therefore, summary judgment was improper.

The Court of Appeal also concluded that the court arguably found only that Slagel’s claims against Lo lacked evidentiary support, not that they would have been legally insufficient even if supported by evidence. “Because the trial court found only that a subset of Slagel’s allegations lacked legal and evidentiary support, and because some of her allegations against Lo actually did have evidentiary support, sanctions were improper.“

The judgment was reversed as to Slagel’s first through fifth and tenth and twelfth cause of action. The costs and sanctions awards were vacated. The judgment was otherwise affirmed.

The current congressional inquiry into pharmacy benefit managers (PBMs) is being led by the House Committee on Oversight and Accountability, chaired by James Comer (R-KY). The inquiry is focused on the role of PBMs in rising health care costs and their impact on patient care.

Comer issued a report in 2021 outlining how pharmacy benefit managers’ (PBMs) practices increase prescription drug prices, impact patient health, hurt competition, and distort the marketplace. The report, entitled “A View from Congress: The Role of Pharmacy Benefit Managers in Pharmaceutical Markets,” details findings from a forum held by Comer examining how PBM tactics contribute to the rising cost of prescription drugs for Americans. The report emphasizes the need for greater transparency to determine the extent of the damage PBM practices are having on patients and the marketplace and calls for further congressional review of legislative solutions to provide meaningful reform.

Key views from his report include:

– – PBMs use their market leverage to increase their profits, not reduce costs for consumers. PBMs control which medications are included on a given health plan’s formulary, or the list of drugs that plan agrees to cover. Drug manufacturers agree to discounts, or pay rebates, in order to get their products placed more favorably on formularies. But the savings from the discounts and rebates do not make their way down to the consumer; they go to the PBMs’ bottom line.
– – Drug manufacturers actually raise their prices due to PBMs. As PBMs demand larger and larger rebates or discounts, manufacturers offset these reductions by raising the “list” prices for their drugs. PBMs encourage this practice because they pocket the higher rebates received from higher priced drugs.
– – PBMs own their own pharmacies, which creates conflicts of interest, hurts competition, and distorts the market. Another key function of PBMs is to establish a network of pharmacies from which plan beneficiaries can get their prescriptions filled. However, the three largest PBMs – CVS Caremark, Express Scripts, and Optum Rx – own their own pharmacies. They also control 80 percent of the market. But they are not the only ones – smaller PBMs own their own pharmacies too.
– – PBMs “steer” patients to the pharmacies they control, making it difficult for independent pharmacies to survive. PBMs also reimburse unaffiliated pharmacies at low rates and charge a number of fees to independent pharmacies. These retroactive fees can be for just participating in the network, or they can be tied to performance metrics, such as pharmacy refill rates, error rates, or audit rates, which the PBM establishes. These retroactive fees add up – sometimes it costs a pharmacy more to fill a prescription than it is reimbursed. For specialty pharmacies, they accrue fees based on irrelevant metrics.
– – Rebates are not the only way PBMs drive up costs. A list price is like the sticker price on a car: few people actually pay that amount. Higher list prices still drive-up costs, even if that’s not the actual cost patients are paying. Insurance premiums and copayments are based on list prices. PBMs engage in a number of questionable practices, one of which is “spread pricing,” in which PBMs pay a pharmacy a lower amount than they report to a health plan sponsor. The PBM pockets the difference. Sometimes they get caught – PBMs have overcharged state Medicaid programs in Ohio, Kentucky, Illinois, and Arkansas more than $415 million once spread pricing schemes were discovered.

More recently, in March 2023, Chairman Comer sent letters to senior officials at the Office of Personnel Management (OPM), Centers for Medicare and Medicaid Services (CMS), and the Defense Health Agency (DHA) requesting documents and communications related to PBMs. The letters stated that the Committee is “examining the extent to which PBMs’ tactics impact healthcare programs administered by the federal government.”

And on May 23, 2023, the Committee held a hearing on the role of PBMs in rising health care costs. The hearing featured testimony from representatives from PBMs, insurers, pharmacies, and patient advocacy groups.

The Committee is continuing its investigation into PBMs. It is unclear when the Committee will release its findings or make recommendations for reform.

In addition to the congressional inquiry, the Federal Trade Commission (FTC) is also investigating pharmacy benefit managers (PBMs). The FTC’s inquiry is focused on whether PBMs are engaging in anti-competitive practices that are driving up the cost of prescription drugs.

The FTC issued compulsory orders to six of the largest PBMs in the United States: CVS Caremark, Express Scripts, OptumRx, Humana, Prime Therapeutics, and MedImpact Healthcare Systems. The compulsory orders require these companies to provide the FTC with information and documents about their business practices, including their contracts with drug manufacturers, pharmacies, and health plans.

And last month issued two additional orders to Zinc Health Services, LLC, and Ascent Health Services, LLC. Zinc and Ascent refer to themselves as group purchasing organizations or GPOs, sometimes also called rebate aggregators, which negotiate rebates with drug manufacturers on behalf of the PBMs and hold the contracts that govern those rebates.

Zinc was founded in 2020 and operates as the GPO for CVS Caremark. Ascent was founded in 2019 and operates as a GPO for Express Scripts, Prime Therapeutics, Envolve Pharmacy Solutions, and Humana Pharmacy Solutions.

The FTC is issuing the orders under Section 6(b) of the FTC Act, which authorizes the Commission to conduct studies without a specific law enforcement purpose. The companies will have 90 days from the date they receive the order to respond.

The FTC’s inquiry is a significant development in the effort to address the high cost of prescription drugs. The FTC has the power to take enforcement action against companies that engage in anti-competitive practices. If the FTC finds that PBMs are engaging in anti-competitive practices, it could take steps to lower the cost of prescription drugs for patients and health plans.

Stephanie Sharp and seven other plaintiffs in this action are former employees of apparel manufacturer S&S Activewear. Seven are women and one is a man.

Sharp alleges that S&S permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its 700,000-square-foot warehouse in Reno, Nevada. According to Sharp, the songs’ content denigrated women and used offensive terms “very offensive” lyrics that “glorifie[d] prostitution” extreme violence against women.

Blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape. Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict – let alone evade – the music’s reach.

In turn, the music allegedly served as a catalyst for abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos. Although the music was particularly demeaning toward women, who comprised roughly half of the warehouse’s workforce, some male employees also took offense.

Despite “almost daily” complaints, S&S management defended the music as motivational and stood by its playing for nearly two years, until litigation was filed.

Sharp eventually filed suit, alleging that the music and related conduct created a hostile work environment in violation of Title VII. The district court granted S&S’s motion to dismiss and denied leave to amend the music claim, reasoning that the music’s offensiveness to both men and women and audibility throughout the warehouse nullified any discriminatory potential. The court countenanced S&S’s argument that the fact that “both men and women were offended by the work environment” doomed Sharp’s Title VII claim.

The 9th Circuit (with presides over California and other western states) reversed in the published case Sharp et al. v. S&S Activewear, L.L.C., – No. 21-17138 (Jun. 7, 2023).

The trial court held that Sharp failed to state an actionable Title VII claim because there was no allegation “that any employee or group of employees were targeted, or that one individual or group was subjected to treatment that another group was not.” Because the music offended men and women alike, the district court reasoned, it could not be the basis of a sexual harassment claim.

However, the 9th Circuit noted that the offensive conduct must be “sufficiently severe or pervasive to alter the conditions of employment.” Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020). Notably, individual targeting is not required to establish a Title VII violation. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 687 (9th Cir. 2017). “It is enough,” it has held, “if such hostile conduct pollutes the victim’s workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.” Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994).

And context matters. “Workplace conduct is to be viewed cumulatively and contextually, rather than in isolation.” This approach makes common sense in order to screen out one-off, isolated events and yet benchmark conduct in the context of a specific workplace. Objectionable conduct is not “automatically discrimination because of sex merely because the words used have sexual content or connotations.”

“Applying these core principles, we conclude that the district court erred in rejecting Sharp’s hostile work environment claim as incurable and legally deficient. More than offhand foul comments, the music at S&S allegedly infused the workplace with sexually demeaning and violent language, which may support a Title VII claim even if it offended men as well as women.”

“Although we have not before addressed the specific issue of music-as-harassment, this court and our sister circuits have recognized Title VII redress for other auditory offenses in the workplace and for derogatory conduct to which all employees are exposed. The EEOC, which filed an amicus curiae brief on behalf of Sharp, endorses this position. Emphasizing this appeal’s impact on the future ‘ability of the EEOC and private parties to enforce Title VII,’ the agency agrees that ‘exposing employees to misogynistic and sexually graphic music can be discrimination because of sex, even where the employer exposes both women and men to the material and even though both women and men find the material offensive.’ ”