Former Phoenix VA director's firing overturned by federal appeals court
Dennis Wagner
Former Phoenix VA hospital director Sharon Helman, who was fired in 2015 amid a controversy over delayed care for veterans, got her termination at least temporarily overturned this week by a federal court.
Helman will now have a chance to appeal her dismissal to the U.S. Merit Systems Protection Board, despite a criminal conviction in a separate court case.
The Court of the Appeals for the Federal Circuit shot down a provision of the Veterans Access, Choice and Accountability Act, a measure adopted by Congress in part to expedite the removal of Department of Veterans Affairs executives based on misconduct or gross incompetence.
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The court ruled that, after an administrative judge upheld Helman's firing by the VA, she should have been allowed to appeal that ruling to the MSPB. However, based on the new law, board members refused to hear her case. Appellate justices agreed with Helman that the expedited procedure violated the Constitution's so-called "appointments clause" by placing too much power with an administrative judge.
The decision does not mean Helman has been automatically reinstated. Rather, the court remanded her case to the MSPB for review and "appropriate action."
Likewise, the court ruling does not overturn the entire Choice Act, but only those provisions ruled unlawful.
Criticism of ruling
It was not immediately clear whether the VA will appeal. In a news release, VA Secretary David Shulkin said Helman's removal remains in effect for now.
“Today’s ruling underscores yet again the need for swift congressional action to afford the secretary effective and defensible authority to take timely and meaningful action against VA employees whose conduct or performance undermines Veterans’ trust in VA care or services," Shulkin added.
U.S. Sen. Johnny Isakson, R-Ga., chairman of the Senate Committee on Veterans’ Affairs, said the court decision "highlights the urgency and great need for reforms to give Secretary Shulkin the tools necessary to fire bad actors at the VA."
In an administrative appeal, a judge rejected the lack-of-oversight allegation but upheld the other two charges. He also rejected Helman's claim that her due-process rights were violated.
After Helman's appeal to the MSPB was rejected, she filed suit in the Washington, D.C., court.
In the meantime, Helman pleaded guilty in U.S. District Court in Phoenix to accepting more than $50,000 in gifts from a medical-industry lobbyist and friend. She was sentenced to probation.
VA scandal history
The VA scandal broke in April 2014 when employees at the hospital in Phoenix reported that patients were dying in an overbooked appointment system. They also alleged hospital officials were producing false wait-time data, in part to collect performance bonuses.
Investigations by Congress, the VA Office of Inspector General and media outlets verified many of those allegations throughout the Veterans Health Administration's more than 150 hospitals.
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The three-year scandal led to replacement of VA Secretary Eric Shinseki, passage of the $16.3 billion Choice Act and what was touted as the largest overhaul of VA policies and practices in department history.
Just last week, the VA released a combined report on the Phoenix saga by FBI agents and criminal investigators with the Office of Inspector General. It found "no evidence that there was any intentional coordinated scheme by management to create a secret wait list, delay patient appointments or manipulate wait-time metrics."
However, the report later added: "Testimony from subordinates and supervisors alike clearly indicate that manipulation of wait times occurred."
The report was based on interviews with 190 employees, reviews of more than 1 million emails and analysis of thousands of other documents. It says 13 Phoenix scheduling employees acknowledged "they inappropriately altered (appointment) dates in order to reduce wait times" based on orders from supervisors. Yet each supervisor denied intentionally giving improper directions.
Prior to the VA controversy, Helman had created a Wildly Important Goals program, known as the WIG campaign. Her top priority was reducing delays for patient appointments. The report contains no indication that Helman was interviewed by investigators. Moreover, investigators were unable to retrieve email correspondence for Helman and two other top administrators from a key computer system.
The report verified previous findings that the Phoenix VA appointment data was inaccurate, and the scheduling system was broken due to policy confusion, inadequate training and flawed computer systems. They also confirmed that some appointment records were stuffed in drawers and shredded.
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