Whistleblower protection bill sent to President as complaints of retaliation grow

By James LaPorta  |  Oct. 13, 2017 at 5:00 PM
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Oct. 13 (UPI) -- In a rare occurrence amid the polarized Congressional body, a bill aimed at strengthening protection for government whistleblowers passed with overwhelming bipartisan support Thursday as retaliation cases continue to be problematic across the federal government.

Senate bill 585, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, which was introduced by Sen. Ron Johnson, R-Wis., passed the House on a 420-0 vote, with 232 Republicans and 188 Democrats voting in favor of the legislation. Thirteen members did not vote.

The bill seeks to provide additional protections to federal employees who are unfairly retaliated against for disclosing waste, fraud, and abuse across the branches of government.

The bill also aims to increase awareness of federal whistleblower protections, and to increase accountability and discipline of agency supervisors who are found to have retaliated against whistleblowers -- specifically, managers at the Department of Veterans Affairs.

"This new whistleblower law, passed with widespread bipartisan support, is a welcome step in the right direction," said Brad Moss, an attorney with the law offices of Mark Zaid in Washington, D.C., who represents members of the U.S. intelligence community in litigation involving claims of whistleblower retaliation.

"After a lengthy hiatus, Congress and the Executive Branch have over the past decade finally begun enacting incremental reforms to improve the whistleblower process that had failed so many in the past. This new law is yet another piece of that complicated puzzle, and the creation of a process for truly penalizing those who retaliate against whistleblowers is long overdue," Moss told UPI by email.

In 2009, Kirkpatrick, 38, was a clinical psychologist at the Tomah Veterans Affairs Medical Center in Wisconsin. The newly-minted VA doctor had started working at the Tomah VA in August 2008. To his patients, he was simply known as "Dr. K."

Kirkpatrick was trained in treating veterans with post-traumatic stress disorder, substance abuse and chronic pain, and had completed an internship with the VA in Chicago, but in early 2009, he complained to his superiors that a number of his patients were "too drugged" to treat properly. In April of the same year, Kirkpatrick was called to a disciplinary meeting and given a written reprimand for questioning the current medication practices, according to background from the Senate bill.

Three months later, after condemning the VA's proverbial conveyer belt of over-medicating military veterans, one of Kirkpatrick's patients threaten to harm the doctor and his dog. The doctor reported the incident and a treatment team decided the veteran should be discharged -- but that did not occur. Instead, Kirkpatrick was summoned to another disciplinary meeting where he was drummed out of the VA, along with his concerns of medical malfeasance.

A New England Journal of Medicine special report documented the psychological toll whistleblowers face when they lose their job. The mounting stress can be overwhelming, such as it was with Kirkpatrick.

On July 14, 2009, the ousted doctor would leave a note for the mailman, according to USA Today. The message read: "Please call 911-tell them to go to the red barn building." Officers would find the doctor's body -- he had shot himself in the head.

The bill provides the Office of Special Counsel with access to information from federal agencies to allow the Occupational Safety and Health Administration, or OSHA, to conduct thorough investigations while protecting the individual whistleblower. OSHA has federal jurisdiction under the Secretary of Labor to investigate claims of retaliation by employees under the whistleblower protection program.

"This new legislation unfortunately doesn't address larger, systemic issues that continue to plague the whistleblower process," Moss told UPI. "For example, it doesn't address the exclusion of much of the Intelligence Community from access to due process beyond the agency administrative processes, leaving individuals' careers subject to the whims of officials with an otherwise-legitimate interest in minimizing damage to the agency."

"Hopefully Congress will use the Kirkpatrick Law as a springboard to pursue greater and more substantive reforms going forward," Moss added.

Recent statistics from the U.S. Department of Labor paint an unflattering picture for VA employees who lodge retaliation claims, with more than 30 percent of all federal employee whistleblower cases coming from the VA. In 2016, over 1,100 retaliation cases were filed by VA employees with the U.S. Office of Special Counsel.

A VA Inspector General's investigation was launched under the request of Johnson and Sen. Tammy Baldwin, D-Wis., after the unexpected death of U.S. Marine Corps veteran Jason Simcakoski, a psychiatric patient at the Tomah VA Medical Center.

The IG's report, released in Aug. 2015, found rampant use of opiates in the VA facility known to patients there as "Candy Land," and that Simcakoski died from "mixed drug toxicity," vindicating Kirkpatrick's concerns about the medication practices at Tomah before his suicide.

The IG report additionally found that Tomah veterans were two and half times more likely to get high doses of opiates than the national average.

The Kirkpatrick bill provides the Office of Special Counsel with access to information from federal agencies to allow OSHA to conduct thorough investigations while protecting the individual whistleblower. OSHA has federal jurisdiction under the Secretary of Labor to investigate claims of retaliation fielded by employees under the whistleblower protection program.

Federal employees and managers will be trained under the new bill as to the rights of the employer, the whistleblower filing the complaint, and current federal protection laws. It also holds VA employees accountable for improperly accessing the medical records of their fellow VA employees

The Government Accountability Office will now provide two reports to Congress on retaliation against employees on probationary status, access management and staffing levels of police officers at VA medical centers.

The U.S. Office of Special Counsel is investigating 110 retaliation claims from whistleblowers in 38 states and Washington, D.C. The Kirkpatrick bill now moves to the final stage of its legislative arc -- the President's Resolute desk.

Although the White House has not yet commented on the bill, Elizabeth Hempowicz, policy counsel at the Project on Government Oversight told Bloomberg she "would be surprised if [the president] didn't support" the bill, especially after it passed through Congress so swiftly.

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