MacIver News Service | Feb. 19, 2019
By M.D. Kittle
MADISON, Wis. — After months of delays and foot-dragging by the U.S. Department of Veterans Affairs, a government watchdog group is taking the VA and its “scandal-ridden” Tomah Medical Center to court.
The Washington D.C.-based Cause of Action Institute on Tuesday filed a lawsuit in federal court alleging the VA has failed to properly respond to a Freedom of Information Act request the organization filed more than a year ago.
Cause of Action requested the records following a MacIver News Service investigation last year into a climate-control malfunction at the Tomah VA Medical Center outpatient pharmacy that compromised veterans’ medications and cost taxpayers tens of thousands of dollars to replace.
“Our nation’s veterans deserve the utmost care and respect, and news reports of the Tomah VA Medical Center’s pharmacy center distributing potentially spoiled medicines are deeply concerning,” John Vecchione, president and CEO of the Cause of Action Institute, said in a statement. “Our veterans and taxpayers demand full transparency about existing and previous challenges concerning this facility and the services the Tomah VA provides to our veterans.”
As MacIver News first reported, the Tomah VA’s outpatient pharmacy experienced a high-heat temperature “fluctuation” on December 17, 2017, with temperatures spiking as high as 97 degrees for at least an hour. Emails obtained by MacIver through a FOIA request noted that temperatures greater than 86 degrees were recorded for “about 34 hours.”
Pharmaceutical drugs should not be exposed to temperatures higher than 86 degrees, pharmaceutical experts warn. Tomah officials acknowledged the same in emails following the incident.
MacIver News learned from internal sources that pharmacy directors OK’d the release of medications for about four hours, until administrators told them to stop distributing the drugs at around noon. Pharmacy employees were told to tell veterans that there was a “supply issue,” according to one source.
Tomah VA Public Affairs Officer Matthew Gowan in January 2018 acknowledged that the “outpatient pharmacy experienced a temperature fluctuation on December 17, 2017, and was fixed the same day,” and that outpatient pharmacy staff “reviewed stability recommendations of its medication inventory and reordered items as necessary.” He said patient care was not affected.
In response to its February 2018 Freedom of Information Act request, the Cause of Action Institute received 54 pages of heavily redacted internal documents from the western Wisconsin veterans hospital.
The medical center has been derisively dubbed “Candy Land” by some because of reported practices of overprescribing opioid painkillers. Among its victims, Jason Simcakoski, a 35-year-old Marine Corps veteran who died of a drug overdose in 2014 while in the Short Stay Mental Health Recovery Unit in the Tomah VA’s Community Living Center.
It took congressional investigations and investigative reporting to uncover what a Senate committee described as systemic failures at the VA and other federal agencies.
The VA told the institute it was withholding records and portions of documents for a variety of reasons, citing privacy statutes that prohibit federal agencies from disclosing certain information. VA officials claim they do not have to release information on policy discussions, and made blanket claims about so-called “non-responsive” materials, an exemption not covered in statute, according to Ryan Mulvey, an attorney with the Cause of Action Institute.
In August, the institute filed an appeal with the VA, arguing the agency had failed to follow FOIA statute. As of Tuesday, the VA had yet to respond to the appeal “despite numerous attempts to remind the agency of its statutory responsibility to respond in a timely manner.”
“We think that, particularly given the history of this particular medical center, that this information about the pharmacy disruption is important,” Mulvey told MacIver News Service.
He pointed to an Office of Inspector General report that noted improvements made at the troubled medical center.
“With the IG saying one thing, we’re really interested in holding the agency accountable when we’re talking about the health and safety of our veterans,” Mulvey said. “We want to make sure the agency isn’t getting away with anything here.”
A 359-page report from the Senate Homeland Security and Governmental Affairs Committee, chaired by U.S. Sen. Ron Johnson (R-Oshkosh), was particularly critical of the VA inspector general for failing to serve as watchdog, or even to listen to other watchdogs, as veterans languished in a failed health care system.
“Perhaps the greatest failure to identify and prevent the tragedies at the Tomah VAMC was the VA Office of Inspector General’s two-year health care inspection of the facility,” the report stated.
MacIver News Service experienced the same problems in obtaining records from the VA. The emails and other documents that were not blacked out did make clear that officials at the Tomah VA Medical Center provided incomplete answers at best to MacIver’s original questions. Whether the omissions were purposeful remains to be seen.
Records show the VA did have to pay an estimated $60,000 to “replace existing stock of medications in the main portion of our Outpatient Pharmacy,” according to an email following the incident from the hospital’s associate director, Staci M. Williams
“Additionally, we had staff putting in extra time on the (December) 18th to reorder and the 19th to restock shelves so there will be a small spike in our OT budget,” the email stated.
A Tomah VA issue brief noted concerns about the “temperature deviation.”
“The outpatient pharmacy experienced an extended temperature deviation over the preceding weekend (12-16-12-17). Outpatient pharmacy temperatures were higher than controlled room temperature for 26 hours which adversely affects the integrity of the medication stock,” the document stated. Again, further details of the report are blacked out.
After a series of requests from MacIver News Service about the status of the compromised medications, Williams, the VA hospital’s second in command, asked in an email, “No compromised medications went out, correct?” A VA official, whose name was redacted, replied, “CORRECT.”
A status update email to Williams on Jan. 5 stated that there was no “particular shortage adversely affected by this incident.” The official stated that a “majority” of prescriptions were filled within 24 hours after the incident was reported, with “some special orders” taking 48 hours to 72 hours.
But Tomah VA officials were clearly concerned about the integrity of the medicines, emails show. One official noted studies published on particular drugs, such as cholesterol-fighting Simvastatin and Lovastatin, and said one study would help “answer some questions about stability similar to Harvoni,” medication used to treat Hepatitis C.
One email from Williams, with the subject line “destructions of heat excursion medications,” included a three-word response: “Try to recoup.” The next couple of pages of records are blacked out.
In internal communications, officials said a temperature monitoring system used by the pharmacy was “NOT on the escalation notice to the Police.”
The monitoring system sends alerts to pharmacy officials, including the supervisor, secretary, pharmacists and key technicians, according to an email from an official to Williams and others. If no one responds, an alert is sent to the Police Department. Police and firefighters work together in responding to the alarm. But the outpatient and inpatient pharmacies and “IV room” were not on the monitoring escalation notification at the time of the incident, according to the official.
“(T)his is where the ball dropped on this issue,” the official wrote.
Sources have told MacIver News Service that the pharmacy’s climate-control system experienced problems before the temperature spikes and the alert failures of December 2017.
Mulvey, of the Cause of Action Institute, said the limited government law firm is hopeful the lawsuit gets the VA’s attention and that the FOIA conflict can be settled without further legal action. If not, he said it will be up to a federal judge to decide whether the VA violated open record laws.
“We’ve seen with sensitive, potentially embarrassing, records that the political higher ups want to drag their feet because they don’t want the information to get out and damage them in the press and in the public image,” Mulvey said. “We’re hoping the agency is going to do the right thing … if they don’t, we’re going to fight for those records.”