H.R. 1259, VA Accountability First Act of 2017
On Thursday, March 16, 2017, the House will begin consideration of H.R. 1259, the VA Accountability First Act of 2017, under a structured rule. The bill was introduced on February 28, 2017, by Rep. Phil Roe (R-TN) and was referred to the Committee on Veterans’ Affairs, in addition to the Committee on Oversight and Government Reform. The Committee on Veterans’ Affairs ordered the bill reported on March 8, 2017. In the 114th Congress, the House passed similar language, H.R .1994, by a vote of 256-170 and H.R. 5620, by a vote of 310-116.
H.R. 1259 would institute necessary reforms at the Department of Veterans Affairs (VA) by providing the Secretary with the authority to expeditiously remove, demote, or suspend any VA employee, including Senior Executive Service (SES) employees, for performance or misconduct. . H.R. 1259 would also: provide improved protections for whistleblowers; allow the Secretary to reduce an employee’s federal pension if he or she is convicted of a felony that influenced his or her job at VA; recoup a bonus provided to an employee who engaged in misconduct or poor performance prior to receiving the bonus; and allow the Secretary to recoup any relocation expenses that were authorized for a VA employee only through the employee’s ill-gotten means, such as fraud waste, or malfeasance.
Specifically, the legislation would:
- Authorize the VA Secretary to fire, demote, or suspend for longer than 14 days any VA employee, but excluding title 38 employees and political employees, for performance or misconduct. An employee would be entitled to advanced written notice of the decision with an opportunity to respond and then the Secretary would be required to make a final decision after receiving the employee’s response, all of which must be completed within a total of fifteen business days; an expedited appeal to the administrative judge level at the Merit Systems Protection Board (MSPB) who must render a decision within 45 days; an appeal of the administrative judge’s decision to the full MSPB; and limited judicial review of the full MSPB’s decision by a Federal Circuit court.
- Authorize the Secretary to reduce an employee’s pension if they are convicted of a felony that influenced their job performance. Prior to any reduction, 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 the Director of the U.S. Office of Personnel Management. Such appeal would have to be completed within 30 days of filing.
- Provide the Secretary with the authority to recoup any bonus or award paid to any VA employee if the Secretary determines that the individual engaged in misconduct or poor performance prior to the payment of the award or bonus, and that the bonus or award would not have been issued to the employee had their misconduct or poor performance been known prior to the payment. 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.
- Provide the Secretary with the authority to recoup any relocation expenses paid to any VA employee if the Secretary determines that the employee committed an act of fraud, waste, or malfeasance that influenced the authorization of the relocation expenses. 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.
- Enhance protections for whistleblowers by aligning the current procedures in place for disciplining an employee who retaliates against a VA whistleblower with the procedures authorized by this bill and by specifically barring the VA Secretary from using this removal authority if the employee has an open whistleblower complaint/case with the Office of Special Counsel or a complaint/case set up by the new whistleblower process that passed as part of the ‘‘Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and Zika Response and Preparedness Act’’ (P.L. 114-223). .
- Authorize the Secretary to directly appoint individuals to the positions of Medical Center Director and Director of Veterans Integrated Service Network if they have a demonstrated ability in the medical profession, health care administration, or health care fiscal management.
- Change the current disciplinary process timelines for title 38 employees at the VA (physicians, dentists, podiatrists, chiropractors, optometrists, registered nurses, physician assistants, and expanded-function dental auxiliaries) to align with the disciplinary timelines for other VA employees.
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.
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; the 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, the 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,” former 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.
- Rep. Phil Roe (R-TN) – This manager’s amendment inserts "to or" after the word "paid" on page 20, line 15.
- Rep. Tim Walz (D-MN) – This amendment grants the VA Secretary improved authorities to hold VA senior executives and employees accountable, protects employees’ constitutionally guaranteed due process rights, and protects employees’ collective bargaining rights under federal law.
- Rep. Colleen Hanabusa (D-HI) – This amendment allows the Secretary to reduce a demoted individual’s pay grade by a minimum of a step, depending on the severity of the misconduct.
- Rep. Ann Kuster (D-NH) – This amendment includes as prohibited personnel practices as described in the whistleblower protection subsection of section 3 with those defined in 38 USC 733(c).
- Rep. Sean Duffy (R-WI) – This amendment directs the Secretary of Veteran Affairs to, at a minimum, suspend an individual who has been charged with the sexual assault of a patient at a Department of Veteran Affairs medical facility.
- Rep. Scott Taylor (R-VA) – This amendment requires the Veterans Administration to provide a semi-annual report to the House and Senate Committees on Veterans Affairs outlining all instances of Senior Executives who are detailed to a new position within the agency. The report will contain details on the purpose of the reassignment as well as the costs associated with the reassignment.
- Rep. Claudia Tenney (R-NY) – This amendment requires that bonuses awarded to senior-level executives within the Department of Veterans Affairs be reported to Congress on an annual basis.
- Rep. Ann Kuster (D-NH) – This amendment requires VA supervisors to develop performance plans for employees, to include steps taken to address poor performance. It would also improve training for supervisors.
- Rep. Mark Takano (D-CA) – This substitute amendment strikes and replaces the text with language that provides for the suspension and removal of VA employees for performance or misconduct that is a threat to public health and safety in place of the proposed removal process.
The Congressional Budget Office (CBO) estimates that $2 million in discretionary costs would be needed to implement this bill during the FY 2018-FY2022 window, subject to the availability of appropriated funds. Enacting this legislation would affect direct spending over the 2017-2022 period, therefore pay-as-you-go procedures apply. Further, CBO estimates that enacting the legislation would not increase net direct spending or on-budget deficits in one or more of the four consecutive 10-year periods beginning in 2028.
For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 2-1374.
 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.