DHHS Reverses its Legal Position Petitioning FOR Whistleblower Protection for Dr. Fishbein

DHHS Reverses its Legal Position Petitioning FOR Federal Whistleblower Protection for Dr. Fishbein

Thu, 3 Feb 2005

The Washington Post reports: “Department of Health and Human Services filed a legal petition this week in support of an employee the department is trying to fire. HHS told the Merit Systems Protection Board that Jonathan M. Fishbein, a clinical research specialist who has been told he will lose his job at the National Institutes of Health, should be eligible for protection from any official retaliation under federal whistle-blower laws.”

This is a complete reversal of HHS position. Until now, HHS lawyers argued that Dr. Jonathan Fishbein, the research specialist who was hired by NIH to improve the ethical research practices, then fired when he reported that NIH-sponsored AIDS research in Africa failed to meet ethical / scientific standards, was not entitled to protection under the federal whistleblower protection law. Dr. Fishbein was hired under Title 42 – a provision that allowed NIH to hire upper level staff at higher salaries than civil service rates. A judge ruled in favor of DHHS, accepting the argument that Title 42 employees are not eligible for protection under the whistleblower law.

Well, DHHS lawyers changed their mind when jolted by the prospect of a revolt by some 1,400 NIH employees who, like Dr. Fishbein, were hired under Title 42.

NIH administrators can’t seem to get a handle on enforcing research ethics, enforcing conflicts of interest rules, or fairness in the treatment of employees.

Stephen Kohn, Dr. Fishbein’s lawyer said: “Before there was a lot of public attention on this, the NIH was very happy to have the MSPB throw the case out on jurisdiction [grounds]. Now they’ve changed their position, and in a way that is helpful to employees. What was really bad about them arguing that the Title 42s were not protected was that, if you were a Title 42, would you blow the whistle? It had a big, chilling effect and it created a big problem.”

In a press release from HonestDoctor.org, the NIH announcement that it will soon implement new ethics rules was ridiculed as “a frantic effort to appease Congress and slow the damage being done by recent revelations of misconduct.”

“NIH doesn’t need more rules,” said the HonestDoctor.org spokesman. “They already have some of the most comprehensive ethics rules in the medical research community. What they need is to faithfully enforce those they already have.”

AHRP urges people of conscience (whistleblowers) to come forward with information about medical ethics wrongdoing.

Contact: Vera Hassner Sharav
212-595-8974

http://www.washingtonpost.com/ac2/wp-dyn/A55392-2005Feb1?language=printer
HHS Backs Protection For Special Consultant
Whistle-Blower Law Should Apply, It Says
By Christopher Lee
Washington Post Staff Writer
Wednesday, February 2, 2005; Page A21

The Department of Health and Human Services filed a legal petition this week in support of an employee the department is trying to fire.

HHS told the Merit Systems Protection Board that Jonathan M. Fishbein, a clinical research specialist who has been told he will lose his job at the National Institutes of Health, should be eligible for protection from any official retaliation under federal whistle-blower laws.

“There is nothing in the record indicating that there was ever any Congressional intent to exclude Petitioner from the protections of the WPA [Whistleblower Protection Act],” William A. Biglow, an HHS attorney, wrote in the department’s six-page filing.

The petition is in response to a November ruling by an administrative law judge that Fishbein could not seek whistle-blower protection before the MSPB because the department had employed him as a “special consultant” outside regular civil service laws. Attorneys for Fishbein have appealed the ruling to the full board.

The MSPB is an independent agency whose mission is to ensure that federal hiring adheres to merit system principles and that federal employees are protected against abuse by managers.

Fishbein, a medical doctor trained at Johns Hopkins University who helps oversee AIDS research, was hired in 2003 under a special provision in federal law that allows HHS agencies to hire “without regard to the civil service laws.” The provision, known as Title 42 209(f), enables NIH to attract high-level scientists by paying them higher salaries than allowed under the standard government payroll system. The agency has used the provision to employ nearly 1,400 people, most of them permanent or long-term workers.

Fishbein said NIH is trying to fire him in retaliation for his refusal to overlook shortcomings in research practices, including not obtaining proper informed consent, in NIH-sponsored studies of the drug nevirapine on African research subjects. NIH officials have said the doctor, who is in a two-year probationary period, is being let go because of poor performance.

Raynard Kington, deputy director of NIH, said agency policy prevented him from discussing Fishbein’s case. But, he said it was never the agency’s intention to exclude Title 42 employees from whistle-blower protection.

“We believe that any cases that are brought forth by employees who wish whistle-blower protection should be judged on the merits of the individual cases,” Kington said in an interview.

Stephen M. Kohn, Fishbein’s attorney, called the filing a “major concession” by HHS. He said denying such whistle-blower protection would deter many skilled scientists from working for the government or exposing wrongdoing.

“Before there was a lot of public attention on this, the NIH was very happy to have the MSPB throw the case out on jurisdiction [grounds],” Kohn said in an interview. “Now they’ve changed their position, and in a way that is helpful to employees. What was really bad about them arguing that the Title 42s were not protected was that, if you were a Title 42, would you blow the whistle? It had a big, chilling effect and it created a big problem.”

© 2005 The Washington Post Company

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From: HonestDoctor.org
Sent: Wednesday, February 02, 2005 7:21 PM
To: HonestDoctor.org
Subject: DHHS REVERSES POSITION: SIDES WITH DR. JONATHAN FISHBEIN IN PETITION TO FEDERAL BOARD

HonestDoctor.org
Protecting the Rights of Patients and the Integrity of Scientific Research by Promoting Good Clinical Practice

FOR IMMEDIATE RELEASE

DHHS Reverses Position:

Sides With Dr. Jonathan Fishbein

In Petition To Federal Board

Washington, D.C., February 2, 2005. In a major victory for NIH whistleblowers, lawyers for the Department of Health and Human Services (DHHS) have done a complete about face and conceded to a government board that it does have jurisdiction to hear the case brought by Jonathan Fishbein, M.D.

In November, 2004, an administrative law judge representing the Merit Systems Protection Board (MSPB) ruled that because Dr. Fishbein was a Title 42 employee of the National Institutes of Health (NIH) he was exempt from the normal civil service rules and so lacked due process rights under the Whistleblower Protection Act (WPA). Until today, DHHS attorneys have strenuously argued this position.

“HHS has retreated from its hard line position that Dr. Fishbein was not entitled to the most basic due process rights afforded to civil service employees,” said a spokesman for HonestDoctor.org, the organization established to support Dr. Fishbein, a former Director in the National Institute of Allergy and Infectious Disease (NIAID), Division of AIDS (DAIDS).

By acknowledging that the MSPB does have jurisdiction over this case, the Department is effectively conceding that it was wrong to summarily terminate Dr. Fishbein’s employment without first allowing him access to the full range of administrative grievance procedures provide for in law. These protections are designed to safeguard federal employees from indiscriminate, arbitrary and retaliatory action by vindictive agency administrators.

“Perhaps now agency officials will not be so quick to kill the messenger while shielding researchers and senior managers suspected of wrongdoing,” declared the HonestDoctor.org spokesman. “It was Dr. Fishbein’s legal obligation to report the scientific and professional misconduct he observed at the agency. He should have been commended for his diligence and patriotism, not fired.”

Dr. Fishbein has appealed his summary dismissal from NIH to the Merit Systems Protection Board which last autumn ruled that it did not have jurisdiction over his case since as a Title 42 employee Dr. Fishbein was excluded from normal civil service protections.

Now, DHHS attorneys have answered his appeal with a petition to the Board that completely accepts Dr. Fishbein’s arguments and acknowledges that the Department’s efforts to exclude him from whistleblower protections were wrong.

“The DHHS must have concluded that it could not win this fight,” said the HonestDoctor.org spokesman. “There are over 1,600 Title 42 employees at NIH. No doubt Department officials realized they would have sparked a revolt at the Agency if they pressed the argument that some of its most senior employees had no civil service protections and, in fact, were to be treated like second class citizens in the institution.”

Dr. Fishbein’s case is being carefully watched by NIH employees, many of whom have stepped forward confidentially with information on misconduct at their respective Institutes. HonestDoctor.org is pleased to be of assistance in directing them to the appropriate organizations and government offices that can help them.

“A revolution is underway at NIH,” said the HonestDoctor.org spokesman. “It can’t be stopped. The more officials try to cover-up acts of scientific misconduct, violations of the Federal Acquisition Regulations (FARs), the improper exercise of authority of senior managers, the abuse of authority, waste of taxpayer dollars, violations of Agency policy on sexual harassment, the more they will harm the reputation and operation of the nation’s premier medical research institution. Reform can not come too soon.”

Yesterday the NIH announced that it will soon implement new ethics rules in a frantic effort to appease Congress and slow the damage being done by recent revelations of misconduct. “NIH doesn’t need more rules,” said the HonestDoctor.org spokesman. “They already have some of the most comprehensive ethics rules in the medical research community. What they need is to faithfully enforce those they already have. Unfortunately, the NIH leadership would like to deceive the public into believing that reform is at hand. Change will not come to NIH until the current leadership steps aside and allows a new generation of managers, untainted by recent scandal, to take over the running of the Agency.”

HonestDoctor.org is a confidential network of concerned medical and scientific professionals dedicated to assuring that clinical trials sponsored by the National Institutes of Health (NIH) are conducted in full compliance with all applicable statutes and regulations. Government sponsored clinical research must preserve the rights, safety, and well-being of human test subjects consistent with the principles of the Declaration of Helsinki and with the aim of producing clinical data with the highest degree of scientific integrity. HonestDoctor.org is working in full cooperation with the National Whistleblower Center.

FOR MORE INFORMATION, CONTACT:

Rand H. Fishbein, Ph.D., Executive Director; P.O. Box 59701, Potomac, Maryland 20859, USA

Tel: (301) 767-1691; Internet: http://www.honestdoctor.org/