Report finds that VA is not providing veterans with adequate access to organ transplants

It’s validation, years in the making, for Jamie McBride – who has been working tirelessly to right the wrongs of what he says is a deeply flawed VA transplant program.

On January 26, the U.S. Office of Special Council released the findings of a VA investigation – sparked by McBride, the Solid Organ Transplant Program Manager at Audie L. Murphy VA Hospital in San Antonio, and a VA whistleblower.

Among the OSC’s findings, the VA is not providing veterans adequate access to life-saving organ transplants – from living or deceased donors.

“This report substantiates our complaints regarding transplant in the VA, and encourages the President and both houses of Congress to create change in the current system,” said McBride.

FOX 7 Austin first alerted viewers to a problem within the VA’s transplant program in June of 2016, when we told the story of Charles Nelson - a service-connected disabled Leander Veteran, who was denied a living donor kidney transplant, through the VA’s Choice Program.

The Choice Program allows veterans, who live more than 40-miles from a VA hospital, to seek care at a participating facility of their choice.

The VA denied payment to a non-VA hospital - because Nelson’s donor, his son, wasn’t a veteran.

At that time, former Rep. Jeff Miller, then-chairman of the House Committee on Veterans Affairs – which wrote the Choice Act – told FOX 7 Austin, “"It seems as if VA has created a technicality that doesn't exist, as basic common sense dictates that in cases of transplants, the donor's medical care is an essential part of the procedure."

The Nelsons were forced to use Medicare, rather than subject themselves to the undue financial burden of traveling to an out of state VA transplant center, for the time-consuming procedure.

The VA points out, veterans and their caretakers are reimbursed for travel and hotel expenses.

But, the burden goes beyond that – not many families can afford the loss of income, which is not reimbursed, due to required time off from work.

“The VA responded to the Office of Special Counsel that they (veterans) do have access to Choice, if necessary,” said McBride. However, the OSC found that only one transplant had been done by Choice over about a year and a half period. And, I would say that is true, because we have no access to Choice whatsoever for our patients. So, basically, our patients are still suffering. They’re not able to go locally for transplant. They’re having to fly long distances. I am fighting for a number of veterans across the United States, right now, to get them private contracts – which the VA has allowed one. So, it’s still absolutely delays in the ability to seek transplant – and, ultimately, death for some of our veterans.”

In 2016, the OSC began its investigation into the VA’s transplant program and said it gave the VA ample time to respond to numerous concerns raised by McBride.

The OSC said the VA submitted an initial report to their office on Jan. 30, 2017 and a supplemental report on May 17, 2017.

On January 26, 2018, Special Counsel Henry J. Kerner sent a letter to President Trump detailing the results of the OSC investigation.

In conclusion, Kerner said, in part, “I have reviewed the original disclosure, the agency reports, and the whistleblower comments. I have determined that the reports meet the statutory requirements; however, the findings do not appear reasonable. OSC identified several discrepancies and deficiencies in the evidence and findings presented in the VA’s initial report, and provided the VA an opportunity to clarify and resolve those issues in its supplemental report. However, the VA did not address the conflicting information regarding the availability of transplant care in the community and the coverage of organ harvesting and donor care through the Choice Program. Nor did the VA address the full scope of the allegations, such as the VA’s low rate of living donor transplants and communication problems among multiple VA facilities. For some findings, the VA did not acknowledge the consequences and potential harm to veterans, such as the delay veterans experienced while appealing and seeking second opinions in cases where a VATC (VA Transplant Center) applied overly restrictive criteria, and for post-transplant patients who receive care from physicians who do not believe they are capable of providing proper care.”

McBride also notes the OSC identified other discrepancies and said, “The VA stated that they really can’t transplant at Medicare rates, which is not true. The majority of transplants, across the United States, take place at Medicare rates. “

Following FOX 7 Austin’s story on the Nelsons, two bills addressing organ donation and the Choice Program stalled in Congress.

Last fall, the House passed a more comprehensive bill, the “Veterans Increased Choice for Transplanted Organs and Recovery Act of 2017.”

That bill, which would greatly improve access for veterans, is now awaiting a vote in the Senate.

“Obviously, the VA has proven, unless you mandate it by law for them to do it – they will not act upon it,” said McBride.

Fox 7 sent an email to VA Secretary David Shulkin asking for his response to the OSC’s investigation.

The VA’s Deputy Press Secretary, Lydia B. Blaha, responded – dismissing the OSC’s findings, by saying, “We appreciate the Office of Special Counsel's concerns, but we feel OSC's assessment is ill informed due to a lack of understanding of the general standards and practices regarding organ transplants throughout the U.S. medical community.”

She went on to say, “If Congress – or anyone else – is interested in expanding access to transplants through the Choice Program, we recommend they look into changing the law.”

The OSC defended its position, stating, “The Special Counsel’s letter to the President outlined the allegations OSC referred for investigation, the VA’s findings, and OSC’s reasons for determining the findings were not reasonable. OSC’s determination was based on the VA’s decision not to fully address the scope of the allegations and the conflicting evidence presented, even after OSC raised its concerns and gave the VA an opportunity to provide supplemental information and clarification. As the Special Counsel’s letter and press release point out, the VA didn’t address many of the concerns raised by the whistleblower about patient harm due to the VA’s policies and practices, including delays in transplants or a veteran’s decision not to have a transplant at all because of the barriers presented. Delays in transplants or declining to have a transplant can have deadly consequences.”

McBride said the VA response to the OSC report, is another example of the administration continuing to give veterans and the public the run around.

“So, the American Society of Transplantation, which most of their VA transplant physicians are a member of, the OIG (Office of Inspector General), numerous prestigious universities who performed studies, and now the Office of Special Counsel are all misinformed?” said McBride. I firmly believe that leadership in the VA are unwilling to change in the face of overwhelming evidence. If they are unable to recognize what so many have said is a common sense change in practice, then Congress needs to not only mandate these changes but also determine who is obstructing care and why. Our President has made it easier to remove those from Federal employment who do not support Veterans, and in the face of overwhelming evidence it is becoming increasingly difficult to see anything other than a group that is determined to protect their programs versus meeting the moral and ethical obligations we have to each and every Veteran in our care.”