CONGRESSWOMAN ELISE STEFANIK
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.
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:
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.
According to reports, in 2014, as many as 40 patients at the Phoenix VA Health Care System may have died while awaiting medical care.  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.” Subsequent investigations of VA medical facilities around the country revealed widespread issues of long wait times and gross employee misconduct. 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.
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) 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.
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.
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.
 See CRS Report, “Veterans’ Benefits: The Department of Veterans Affairs and the Duty to Assist Claimants,” September 26, 2014.
 See GAO Report, “Federal Workforce: Improved Supervision and Better Use of Probationary Periods Are Needed to Address Substandard Employee Performance,” February 6, 2015.
 Id. at 22.
A Congressional Budget Office (CBO) estimate is not currently available.
For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 5-0190.