A staff shortage doesn’t mean you can hire just anyone

The last thing the Veterans Health Administration (VHA) needs is new employees who have a substance use disorder or or felons with access to VA pharmacies. But the agency lacks a consistent procedure for finding out about such people from the Drug Enforcement Administration. According to the Government Accountability Office (GAO), the VHA, in fact, hired thousands of people who might have drug-related convictions. For more,  the Federal Drive with Tom Temin talked with Seto Bagdoyan, GAO’s Director of Forensic Audits and Investigations.

Interview Transcript: 

Tom Temin So this is a strange one because the VA has been using hiring authorities and salary authorities that it has, and they’ve had record levels of hiring in the last year, and expect that to happen again this year. But what’s going on here with respect to their requirement, I think that they have to check with DEA on the background of certain employees.

Seto Bagdoyan Right. So the issue there is the employment waivers, basically if you have access to controlled substances as well as a felony conviction, among other things, you may need a employment waiver through DEA. But as we found in our reporting and in the recent testimony I gave, VA does not have a policy for determining whether a waiver is necessary. So essentially, as they did with the 50 people we identified from our projectable sample, they make those determinations on an ad hoc or arbitrary basis. So it really is a control weakness with potential dual risk, as I emphasized during my testimony, risk to the well-being of veterans as well as risk of diverting controlled substances. So that’s a serious matter.

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Tom Temin And you looked at the total population in VA, and I think there was something like 10,000 people, if I’m correct.

Seto Bagdoyan Yeah, we started with a universe of about 400,000. This was the January to June 2020 period for our analysis, and we identified about 12,600 people who had criminal histories with controlled substance convictions. And of those, about 1800 had felony convictions, at least one. So this is say a risk prone population. And of course, everybody deserves a chance to be employed once they’ve moved on from that history. But it is, as I mentioned, a serious risk if left unaddressed.

Tom Temin And just to be clear, is the VA statutorily required to get waivers from DEA or is there a policy that they’re not following?

Seto Bagdoyan That’s a great question. There isn’t a DEA requirement, believe it or not, even though the waiver issue has been in place since 1971, amended again in 1991. But there is no requirement for an agency to have such a policy. Of course, it is a prudent thing to do to have a road map to make those determinations. But with that mixed picture, VA basically decided they weren’t going to have a policy.

Tom Temin And who would make the decision? That is to say, if DEA doesn’t give a waiver, then that means VA could not hire that person.

Seto Bagdoyan That’s also a technical complication. I don’t have a good answer for you on that one. It would be kind of a on balance consideration. But of course, VA would have to ask for a waiver, and that did not occur as far as we can tell.

Tom Temin Right. And so therefore, it’s a possible range of types of convictions that could be here if someone had a small pot, a misdemeanor type of conviction, that’s one thing. If they were a drug dealer and distributor and really rose up high in the substance class, one type of conviction, that’s another matter. And so there’s some nuance here.

Seto Bagdoyan Yeah, the nuance says you have to have access if you’re an employee. And DEA defines access more broadly than VA does. VA is quite narrow, you have to have direct access to controlled substances and essentially be a prescriber, whereas DEA says, well, those are good, but near proximity or influence to controlled substances should also be considered.

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Tom Temin We’re speaking with Seto Bagdoyan. He is director of forensic audits and investigations at the Government Accountability Office. Yeah, because there’s also the subtlety of who within the VHA actually can have access. They’re locked their pharmacies and everything’s barcoded. You just can’t walk in and grab a shelf full of aspirin or anything. So there are people that may prescribe, but they may not be the same people that actually go in to the pharmacy and take things off the shelf and vice versa.

Seto Bagdoyan Yep. So with that in mind, actually an interesting statistic is that about 1400 or so of 20,000 reports of theft or loss of controlled substances were reported by VHA. So that’s about 7% of the total. These are, of course, reported. We don’t know what’s missed or unreported and so on. So the risk is there. We’re focusing on the risk, not that something bad is going to happen. But if it were to happen, consequences would follow.

Tom Temin Yeah, just finish that thought. 1400 out of 20,000 reports of theft were what?

Seto Bagdoyan From VA. These were reported to DEA for 2021. So the stats are pretty dated.

Tom Temin Right. But this is all of the theft of controlled substances anywhere. 7% of them are, well, VA is probably about 7% of health care.

Seto Bagdoyan Yeah, 400,000 employees they serve 9 million people through hundreds of facilities around the country. So the risk landscape has widened.

Tom Temin And what is VA’s response to what you found? Are they then in the process of instituting a policy of collaborating more with DEA?

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Seto Bagdoyan Yes. They actually reported at the hearing itself that there is a draft policy being finalized for waivers that should be in an interim form next month, January 2024. We initially had a deadline of March 2024, so at least they’ll have something in place that will provide them a roadmap to make these decisions and be far more attentive to it than to the waiver issue than they have been in the past.

Tom Temin It sounds like VHA would like to retain that discretion over who it hires based, I’m guessing, on the nature of the conviction that actually took place. Again, someone that had marijuana is unlikely to do wholesale theft of OxyContin, for example, where someone who had a different type of abuse might think that.

Seto Bagdoyan Discretion is key, obviously, and that’s a good thing. And totality of the adjudication taking multiple factors into consideration. But the risk is dangling there and it is a significant one. Arm to veterans or a diversion of controlled substances.

Tom Temin And what was Congress’ general reaction? It sounds like this would have maybe invoked something rarely a nonpartizan type of, geez, we got to nail this one down.

Seto Bagdoyan Yes, very good point. That did come out pretty loud and clear during the hearing itself. Everyone on the subcommittee Oversight and Investigations, House Veterans Affairs turned up and ask good questions from both sides of the aisle. And essentially the direction to VHA was get this done, get it right and move on. And we’re not even talking about the gaps in background investigations. And hundreds of people had not received background investigations, and VHA didn’t know about that until we brought it to their attention.

Tom Temin Yeah, they’ve got like a Whac-A-Mole situation there. I think an agency that big, there’s always something popping up. Would it be accurate to say that the danger here of loss or theft of pharmacy products is bad? It’s a financial loss. It’s a legal liability, perhaps, but it doesn’t sound like necessarily a patient danger type of issue unless something that someone needs is not there because it was stolen.

Seto Bagdoyan Yeah, Yeah, that’s a tough one for me to comment on. But anytime you’re dealing with dangerous controlled substances wandering off premises and ending up somewhere where they shouldn’t, that is a danger. Perhaps it’s not a danger to VA patients or staff for that matter. But as you said, if a medication is not available off the shelf to a veteran who needs it, then that is a care issue, which is the first part of the risk I mentioned earlier.

Tom Temin But in the meantime, you’ll keep an eye on VHA to make sure that April deadline for getting some type of process in place actually occurs.

Seto Bagdoyan Yes. So next month will see the interim policy that will make a determination on the extent to which it responds to a recommendation we’ve had in place since 2019. So by the time it comes out, it would have been about five years in the making.

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