H.R. 5620, VA Accountability First and Appeals Modernization Act of 2016

H.R. 5620

VA Accountability First and Appeals Modernization Act of 2016

Date
September 14, 2016 (114th Congress, 2nd Session)

Staff Contact
Jake Vreeburg

Floor Situation

On Wednesday, September 14, 2016, the House will complete consideration of H.R. 5620, the VA Accountability First and Appeals Modernization Act of 2016, under a structured rule. The bill was introduced on July 5, 2016, by Rep. Jeff Miller (R-FL) and was referred to the Committee on Veterans’ Affairs, in addition to the Committee on Oversight and Government Reform.

Bill Summary

H.R. 5620 would institute necessary reforms at the Department of Veterans Affairs (VA) by providing the Secretary increased flexibility to remove and VA employee for performance or misconduct, while also strengthening whistleblower protections, including restricting bonus awards for supervisors who retaliate against whistleblowers. The bill would also improve accountability provisions from the “Veterans Access, Choice, and Accountability Act of 2014” for VA Senior Executive Service (SES) employees, and would authorize the Secretary to reduce the pensions of SES employees who are convicted of a felony that influenced their job. H.R. 5620 would further strengthen accountability at VA by allowing the Secretary to recoup any bonuses or relocation expenses given to VA employees when the Secretary deems it necessary.

Specifically, the legislation would:

  • Authorize the VA Secretary to fire, or demote any VA employee (except SES and political employees) for performance or misconduct. An employee would be allowed advanced written notice of the decision with an opportunity to respond, both of which must be completed within a total of ten calendar days; an expedited appeal to the full Merit Systems Protection Board who must render a decision within 60 days or else the Secretary’s decision is final; and limited judicial review by a Federal Circuit court.
  • Authorize the Secretary to reduce a SES’ pension if they are convicted of a felony that influenced their job performance.
  • Provide the Secretary with the authority to recoup any bonus or award paid to any VA employee if the Secretary deems it appropriate to do so. Prior to any recoupment, the employee would be entitled to advance notice, an opportunity to respond to the order, and the opportunity for an appeal of the Secretary’s decision before another agency or department within the Federal government. Such appeal would have to be completed within 30 days of filing or the Secretary’s decision is final.
  • Provide the Secretary with the authority to recoup any relocation expenses paid to any VA employee if the Secretary determined that the employee committed an act of fraud, waste, or malfeasance. Prior to any recoupment, the employee would be entitled to advance notice, an opportunity to respond to the order, and the opportunity for an appeal of the Secretary’s decision before another agency or department within the Federal government. Such appeal would have to be completed within 30 days of filing or the Secretary’s decision is final.
  • Modify the “Veterans Access, Choice, and Accountability Act of 2014” for disciplinary actions for SES employees and provides the Secretary with the authority to remove, fire, demote, suspend, reprimand, or admonish an SES employee for misconduct or performance. The employee would be entitled to advanced written notice of the Secretary’s decision and an opportunity to respond, both of which must be completed within a total of 5 calendar days; an expedited appeal to a newly created Senior Executive Disciplinary Appeals Board, who must render a decision within 21 days or the Secretary’s decision is final and the Secretary has the final authority to overrule a decision of the Board; and limited judicial review of the Board’s or Secretary’s decision by a Federal circuit court.
  • Enhance protections for whistleblowers by: providing employees an additional method to report whistleblower complaints and provide supervisors with the opportunity to address problems at the lowest levels; holding supervisors accountable for retaliation against employees by mandating suspension, termination, and bonus prohibition and recoupment for supervisors found to have retaliated against employees; and requiring the VA to conduct annual training for employees on handling whistleblower complaints.
  • Reform the VA’s appeals process by giving veterans various options to pursue their appeal. Empowering the veteran to choose the best option for his/her appeal means that a veteran may elect for a faster process, in exchange for not submitting new evidence or having a hearing. However, those veterans who do want to submit more evidence or have a hearing may still do so.
  • Eliminate all bonuses for VA SES employees for fiscal years 2017-2021.

Background

The VA provides an array of benefits to veterans and to certain members of their families. These benefits include disability compensation and pensions, education benefits, survivor benefits, medical treatment, life insurance, vocational rehabilitation, and burial and memorial benefits. In order to apply for these benefits, in most circumstances, the claimant will send an application to his or her local VA Regional Office or apply online. Once a veteran has filed an application for benefits with the VA, the agency has a unique obligation to the claimant when adjudicating the claim—the VA has a “duty to assist” the claimant throughout the claim process.[1]

According to reports, in 2014, as many as 40 patients at the Phoenix VA Health Care System may have died while awaiting medical care. [2] Additionally, “more than 250,000 appointments were completed at the VA Medical Center in Phoenix between September and February [of 2014], and over 14,000 of those appointments, or 5.7 percent, faced delays of 31 days or longer.”[3] Subsequent investigations of VA medical facilities around the country revealed widespread issues of long wait times and gross employee misconduct.[4] The allegations of several whistleblowers, including Drs. Samuel Foote and Kathleen Mitchell from Phoenix, shed light on these issues and improper practices, which resulted in one of the largest scandals VA had ever endured. In response to this scandal, the VA Secretary, Eric Shinseki, resigned in May of 2014.[5]

In response to these concerns, Congress passed and the President signed the Veterans Access, Choice, and Accountability Act (VACAA) of 2014. The law made a number of changes to programs and policies within VA to increase access and reduce wait times for veterans who seek care at VA facilities, as well as measure to make it easier to discipline and remove SES employees.

Since the passage of the VACCA, according to the Committee, instances of mismanagement or misconduct by VA employees have continued. Some of these instances include: participation by a VA employee in an armed robbery; a VA nurse showing up to work intoxicated and participating in a veteran’s surgery while under the influence; the continued failures to manage several major construction projects, including the new hospital in Aurora, Colorado that is now many years and a billion dollars over budget; VA’s alleged $2.5 billion budget shortfall for FY 2015; allegations of illegal use of government purchase cards resulting in the waste of billions of dollars annually; and many other examples of poor performance or misconduct. The Committee believes that throughout all of these incidents, it has become clear that, under existing civil service rules, VA often fails to hold individuals appropriately accountable for their actions, and in the instances that they have tried to take disciplinary action against an employee, the process is so administratively complex and lengthy that such action rarely occurs in a swift and meaningful way.

A recent study done by the U.S. Government Accountability Office (GAO)[6] found that on average, it takes six months to a year, and often longer, to remove a permanent civil servant in the Federal Government.  The Committee believes that this problem is epitomized by an example from 2014 where a VA peer-support specialist took a veteran who was an inpatient at the substance abuse clinic of the Central Alabama Veterans Health Care System to an off-campus location. The employee then helped the veteran purchase illegal drugs and paid for the veteran to partake in other illicit behaviors.  It took VA over a year to even begin removal procedures for this employee. According to the Committee, another example of how the antiquated civil service laws drag out the removal process is how it took the Secretary two years to remove three of the primary individuals involved in the 2014 Phoenix patient wait time scandal.  Senior VA officials have also stated in testimony that the process for removing employees is too difficult and lengthy.  At a full Committee oversight hearing on May 13, 2015, entitled, “Assessing the Promise and Progress of the Choice Program,” VA Deputy Secretary Sloan Gibson admitted that is was too hard to fire bad employees at VA[7].

The Committee has also found that while ending whistleblower retaliation at VA is an apparent priority of the Secretary many VA employees have continued to report of retaliation towards whistleblowers from supervisors, senior managers, and other VA employees. This retaliation may discourage some employees from stepping forward and shedding light on problems within the VA.[8]

Additionally, this legislation would streamline VA’s outdated appeals process; protect veterans’ due process rights; allow veterans to retain the original effective date of their claims throughout the appeals process; and, provide faster appeals decisions for veterans.

VA’s current appeals process is broken and the backlog of appeals is exploding. As of January 1, 2015, there were 375,000 appeals pending in VA, including at the Board of Veterans’ Appeals. As of June 1, 2016, there were almost 457,000 appeals pending- an increase of 82,000 pending appeals in less than 18 months. Moreover, the Board of Veterans Appeals’ Annual Report for FY 2015 projects that the number of appeals certified to the Board will increase form 88,183 this year to 359,807 in FY 2017—an increased workload of almost 400 percent.

H.R. 5620 would reform VA’s appeals process by allowing veterans to waive a hearing and limit the introduction of new evidence. Additionally, veterans would be able to choose to have their appeals decided by the regional office, or appeal directly to the Board of Veterans’ Appeals. Veterans who choose to have their appeal sent to the Board of Veterans’ Appeals would also have the option of requesting a hearing and submitting new evidence. The bill would terminate VA’s “duty to assist” when VA issues the initial decision. The duty to assist is VA’s statutory obligation to help the veteran gather evidence in support of his or her claim. The bill would allow veterans to retain the original effective date of the claim by submitting new and relevant evidence every year.

H.R. 5620 includes multiple provisions of H.R. 1994, the VA Accountability Act of 2015. H.R. 1994 passed the House on July 29, 2015 by a vote of 256-170. The previous legislative digest can be found here. H.R. 5620 also includes modified text of H.R. 280, which passed the House by voice vote on March 2, 2015; H.R. 4138, which was reported out of Committee on May 18, 2016; and H.R. 5083, which was topic of a Full Committee legislative hearing on June, 23, 2016.

[1] See CRS Report, “Veterans’ Benefits: The Department of Veterans Affairs and the Duty to Assist Claimants,” September 26, 2014.
[2] http://www.cnn.com/2014/05/30/politics/va-hospitals-shinseki/
[3] http://www.washingtontimes.com/news/2015/apr/9/problems-remain-at-phoenix-va-hospital-after-scand/?page=all
[4] http://www.cnn.com/2014/04/23/health/veterans-dying-health-care-delays/
[5] http://www.cnn.com/2014/05/30/politics/va-hospitals-shinseki/
[6] See GAO Report, “Federal Workforce: Improved Supervision and Better Use of Probationary Periods Are Needed to Address Substandard Employee Performance,” February 6, 2015.
[7] http://veterans.house.gov/hearing/assessing-the-promise-and-progress-of-the-choice-program
[8] Id. at 22.

Cost

A Congressional Budget Office (CBO) estimate is not currently available.

Amendments

  1. Jeff Miller (R-FL) – (Manager’s Amendment) – This amendment makes technical and conforming changes to the bill and aligns the due process procedures for the recoupment provisions of the bill.
  2. Tim Walz (D-MN) – This amendment strikes section 2 through 8 and section 10.
  3. Mark Takano (D-CA) – This amendment replaces section 3 with a new provision allowing the Secretary to suspend without pay any VA employee whose performance or misconduct threatens public health or safety, including the health and safety of veterans; and may remove a suspended employee after such investigation and review as the Secretary considers necessary, if the Secretary determines removal is in the interests of public health and safety.
  4. Michelle Lujan Grisham (D-NM) – This amendment adds Members of Congress to the reporting requirements.
  5. Ann Kuster (D-NH) – This amendment replaced section 7 with S.2921 Section 113, which contains an improved process to expedite the removal or demotion of a member of the Senior Executive Service.
  6. Ann Kirkpatrick (D-AZ) – This amendment replaces section 8 with sections 101-104 from S. 2921 to create the VA Office of Accountability and Whistleblower Protection.
  7. Dan Newhouse (R-WA) – This amendment applies the statutory requirements of the Emergency Medical Treatment and Labor Act to emergency care furnished by the VA to enrolled veterans. Requires every enrolled veteran who arrives at the emergency department of a VA medical facility, and indicates an emergency condition exists, be assessed and treated in an effort to prevent further injury or death.
  8. Dave Schweikert (R-AZ) – This amendment requires the VA use distributive ledger technology when scheduling healthcare appointments to ensure transparency and accountability 1 year after enactment.
  9. Matt Cartwright (D-PA) – This amendment authorizes the Department of Veterans Affairs to appoint a psychiatrist who completes a residency at a Veterans Health Administration facility to a VHA health care position immediately after such residency, without regard to civil service or classification laws, if the psychiatrist meets the qualifications established in regulations prescribed for the position, and the position has been unfulfilled for at least 35 days.
  10. Lois Frankel (D-FL) – This amendment provides the sense of the Congress honoring American veterans disabled for life and encouraging Americans to do so each year.
  11. Ruben Gallego (D-AZ) – This amendment establishes positions of Directors of Veterans Integrated Service Networks in the VA’s Office of Undersecretary for Health.
  12. Bill Keating (D-MA) – This amendment directs healthcare providers with VA affiliation to take continuing education courses specific to pain management, opioids, and substance abuse.
  13. Alan Lowenthal (D-CA) – This amendment requires the Secretary of Veterans Affairs or a designee to review covered whistleblower complaints quarterly.
  14. Ben Ray Lujan (D-NM) – This amendment directs the VA to produce a report on the number of part-time active duty military physicians in VA health facilities, the hiring process for part-time active duty military physicians, the hiring process for part-time civilian physicians, and the steps the VA is taking to recruit active duty military physicians for part-time employment in VA health facilities.
  15. Sean Maloney (D-NY) – This amendment extends the Department of Veteran Affairs authority for the performance of medical disability evaluations by contract physicians by one year.
  16. Beto O’Rourke (D-TX) – This amendment provides the VA with the authority to offer physicians conditional job offers two years earlier and increases the VA’s recruiting outreach efforts to academic affiliate institutions.
  17. Beto O’Rourke (D-TX) – This amendment provides the VA with the authority to share a patient’s electronic health record with VA-community-based providers while maintaining HIPPA protections.
  18. Beto O’Rourke (D-TX) – This amendment directs the Secretary of Veterans Affairs to conduct annual surveys of veterans on experiences obtaining hospital care and medical services from medical facilities of the Department of Veterans Affairs.
  19. Tim Walz (D-MN) – This amendment enables any person who is entitled to retired pay for nonregular (reserve) service or who, but for age, would be so entitled to be honored as a veteran. A person shall not be entitled to any benefit by reason of such recognition.
  20. Tim Walz (D-MN) – This amendment allows the Secretary of the VA to furnish rehabilitative equipment to veterans entitled to prosthetic appliances, and modify non-rehabilitative equipment owned by the veterans to meet that purpose, if the veterans elects. Rehabilitative equipment includes recreational sports equipment that’s provides an adaption or accommodation for the veteran.
  21. Sean Duffy (R-WI) – This amendment allows the VA to also use hearing aid specialists, who are more available, and are qualified to fit, program, adjust, and repair hearing aids.
  22. Leonard Lance (R-NJ) – This amendment inserts the legislative text of H.R. 658 which requires a VA Regional Office carry out claim adjudications within 125 days with 98% accuracy. Regional Officers must submit a three step report every time it fails to meet its 125 day goal with explanation, reasoning and solutions for improvement. It will also contain a description of additional resources necessary for the office to reach its goals, from staffing to policy changes, and an action plan to enable the office to meet its goal.

Additional Information

For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 5-0190.