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                                                       Calendar No. 272

114th Congress }                                           { Report
                                 SENATE
 1st Session   }                                           { 114-163

======================================================================
 
                    DEPARTMENT OF VETERANS AFFAIRS 
                       ACCOUNTABILITY ACT OF 2015

                                _______
                                

                November 3, 2015.--Ordered to be printed

                                _______
                                

         Mr. Isakson, from the Committee on Veterans' Affairs,
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 1082]

    The Committee on Veterans' Affairs (hereinafter, ``the 
Committee''), to which was referred the bill (S. 1082) to amend 
title 38, United States Code (hereinafter, ``U.S.C.''), to 
provide for the removal or demotion of employees of the 
Department of Veterans Affairs based on performance or 
misconduct, and for other purposes, having considered the same, 
reports favorably thereon with amendments and recommends that 
the bill, as amended, do pass.

                              Introduction

    On April 23, 2015, Senator Marco Rubio introduced S. 1082, 
the proposed Department of Veterans Affairs Accountability Act 
of 2015, which would give the Secretary of the Department of 
Veterans Affairs (hereinafter, ``VA'' or ``Department'') the 
authority to remove or demote a VA employee if the Secretary 
determines the performance or misconduct of the individual 
warrants such removal or demotion. Senators Ayotte, Barrasso, 
Burr, Cassidy, Cornyn, Flake, Hatch, Johnson, Kirk, McCain, 
Moran, Tillis, Toomey, and Vitter were later added as 
cosponsors of the bill. The bill was referred to the Committee.
    On April 28, 2015, Senator Ron Johnson introduced S. 1117, 
the proposed Ensuring Veteran Safety Through Accountability Act 
of 2015, which would give the Secretary of the Department of 
Veterans Affairs the authority to remove VA health care 
professionals for performance or misconduct. Senators Cassidy, 
Collins, Crapo, Cruz, Daines, Flake, Inhofe, Lee, McCain, 
Perdue, Toomey, and Vitter are original cosponsors of the bill. 
Senators Ayotte, Cochran, Hatch, and Risch were later added as 
cosponsors of the bill. The bill was referred to the Committee.

                           Committee Hearing

    On June 24, 2015, the Committee held a hearing on pending 
legislation. Testimony on S. 1082 and S. 1117 was offered by: 
Dr. Rajiv Jain, Assistant Deputy Under Secretary for Health for 
Patient Care Services, Veterans Health Administration; Ian de 
Planque, Legislative Director, The American Legion; Peter B. 
Hegseth, CEO, Concerned Veterans of America; Adrian Atizado, 
Assistant National Legislative Director, Disabled American 
Veterans; Carl Blake, Associate Executive Director, Paralyzed 
Veterans of America; Max Stier, President and CEO, Partnership 
for Public Service; and John Rowan, National President, Vietnam 
Veterans of America.

                           Committee Meeting

    After carefully reviewing the testimony from the foregoing 
hearing, the Committee met in open session on July 22, 2015, to 
consider, among other legislation, an amended version of 
S. 1082, consisting of provisions from S. 1082 as introduced 
and S. 1117 and changes suggested during testimony noted above. 
The Committee voted, by voice vote, to report favorably S. 1082 
as amended.

                     Summary of S. 1082 as Reported

    S. 1082, as reported with amendments (hereinafter, ``the 
Committee bill''), consists of three sections, summarized 
below:

          Section 1 provides a short title.
          Section 2 of the bill adds a new section 714 to title 
        38, U.S.C., providing for removal or demotion based on 
        performance or misconduct.
          Section 3 of the bill amends the required 
        probationary period for new employees.

    Section 1 provides the short title, ``Department of 
Veterans Affairs Accountability Act of 2015.''
    Section 2 would provide the Secretary of VA the authority 
to remove or demote a VA employee (other than a senior 
executive or political appointee) if the Secretary determines 
the performance or misconduct of the individual warrants such 
removal or demotion. A determination of such performance or 
misconduct may consist of any of the following: Neglected a 
duty of the position in which the individual was employed; 
engaged in malfeasance; failed to accept a directed 
reassignment or to accompany a position in a transfer of 
function; violated a policy of the Department; violated a 
provision of the law; engaged in insubordination; over 
prescribed medication; contributed to the purposeful omission 
of the name of one or more veterans waiting for health care 
from an electronic wait list; or was the supervisor of an 
employee that contributed to the purposeful omission of the 
name on an electronic wait list.
    Also, section 2 would require the Secretary of VA to submit 
to the Committees on Veterans' Affairs of the Senate and House 
notice in writing of such removal or demotion and the reason, 
no later than 30 days after removing or demoting an individual 
under this authority. A removal or demotion may be appealed to 
the Merit Systems Protection Board (hereinafter, ``MSPB'') not 
later than 7 days after the date of the removal or demotion. 
Upon receipt of an appeal, the MSPB must refer the appeal to an 
administrative law judge. The administrative law judge must 
expedite the appeal and issue a decision not later than 45 days 
after the date of the appeal. Notwithstanding any other 
provision of law, the decision of an administrative judge will 
be final and not be subject to any further appeal. During the 
period beginning when an individual appeals a removal from the 
civil service and ending when the administrative judge issues a 
final decision, the individual may not receive any pay, awards, 
bonuses, incentives, allowances, differentials, student loan 
repayments, special payments, or benefits.
    Finally, in the case of an individual seeking corrective 
action from the Office of Special Counsel (hereinafter, 
``OSC'') based on an alleged prohibited personnel practice, the 
Secretary may not remove or demote such individual under this 
authority without the approval of the Special Counsel. Further, 
OSC is required to establish a mechanism to expedite cases for 
corrective action and establish a standard for approval of 
removal or demotion.
    Section 3 would amend the probationary period for new 
Department employees by adding a new section, ``Section 715. 
Probationary period for employees,'' to title 38, U.S.C. It 
would extend the probationary period for all new employees, 
excluding any individual prescribed by section 7403 of title 38 
(medical professionals) from 12 months to 18 months. The 
Secretary would have discretion to extend the probationary 
period beyond 18 months. Upon the expiration of this 
probationary period, the supervisor of the employee must 
determine whether the appointment becomes final based on 
regulations prescribed for such purpose by the Secretary.

                       Background and Discussion


Sec. 2. Removal or demotion of employees based on performance or 
        misconduct.

    Section 2 of the Committee bill, which is derived from 
S. 1082 as introduced and S. 1117, would allow for removal or 
demotion, for cause, of employees of the Department if the 
Secretary determines the performance or misconduct warrants 
such a removal or demotion by adding ``Section 714. Employees: 
removal or demotion based on performance or misconduct'' at the 
end of chapter 7 of title 38, U.S.C.
    Background. On August 7, 2014, in an effort to address the 
many scandals plaguing VA and hold those responsible 
accountable, the Veterans Access, Choice, and Accountability 
Act of 2014 (hereinafter, ``Choice Act'') was signed into law 
by President Obama, and gave the Secretary the authority to 
expedite the removal or demotion of Senior Executive Service 
(hereinafter, ``SES'') employees for performance or misconduct. 
Under the Choice Act, section 713 of title 38, U.S.C., an SES 
employee's appeal rights after they have been removed or 
demoted are limited. Specifically, the Secretary may remove an 
SES employee with no advance written notice to the individual 
and employees have 7 days to appeal the decision to the MSPB. 
The MSPB then is required to adjudicate the appeal within 21 
days. The Choice Act only applies to career appointees in the 
SES or individuals appointed under 38 U.S.C. 7306(a) or 7401(1) 
to an administrative or executive position. Under current law, 
section 7513 of title 5, U.S.C., other VA employees are 
entitled to at least 30 days advance written notice before 
removal or demotion, a reasonable time but not less than 7 days 
to reply, representation by an attorney, a written decision 
from VA, and an opportunity to appeal the decision to the MSPB. 
Since the passage of the Choice Act, VA has remained in the 
news for a wide range of poor performance and mismanagement 
issues.
    A Federal indictment, cost overruns, allegations of 
manipulation of disability claims data, alleged improper 
shredding of VA benefit applications, contract mismanagement, 
and many other examples of poor performance or misconduct 
continue to occur at VA, as reported by the VA Inspector 
General. Despite so many examples of situations that should 
result in disciplinary action, it has become clear that VA 
continues to be hesitant to take disciplinary action against an 
employee as a result of an unwieldy process that results in 
very few terminations. A recent study done by the U.S. 
Government Accountability Office (hereinafter, ``GAO'') found 
that, on average, it takes 6 months to 1 year, if not longer, 
to remove a permanent civil servant in the Federal 
government.\1\
---------------------------------------------------------------------------
    \1\U.S. Government Accountability Office, Federal Workforce: 
Improved Supervision and Better Use of Probationary Periods are Needed 
to Address Substandard Employee Performance http://www.gao.gov/assets/
670/668339.pdf.
---------------------------------------------------------------------------
    On June 24, 2015, at a Committee hearing to consider 
pending legislation, Chairman Isakson discussed the need for 
all VA employees to be held accountable and to provide the 
necessary tools to break down barriers that may have existed in 
the past. Chairman Isakson discussed the need to include 
language on removal or demotion for cause that was clearly 
defined. The Committee bill includes a list of provisions, 
based on this discussion, to define many of the infractions 
that could be used to hold employees accountable.
    These infractions include, but are not limited to: 
neglected a duty of the position in which the individual was 
employed; engaged in malfeasance; failed to accept a directed 
reassignment or to accompany a position in a transfer of 
function; violations of Department policy or provisions of law; 
insubordination; over prescription of medication; and waitlist 
manipulation or knowingly supervising waitlist manipulation. 
These specific inclusions were the result of testimony at the 
June 24, 2015, hearing from VA in response to questions from 
Chairman Isakson and honorary guest, Senator Ron Johnson. 
Additional input in the Committee bill was received from 
Senator Johnson's concurrent efforts in regard to S. 1117, the 
proposed Ensuring Veteran Safety Through Accountability Act of 
2015, which was introduced in response to allegations of 
misconduct, mismanagement, and abuse at the VA Medical Center 
in Tomah, Wisconsin.
    Senator Johnson, as Chairman of the Committee on Homeland 
Security and Governmental Affairs, launched an investigation 
into the allegations concerning the Tomah VA Medical Center in 
January 2015 and issued a subpoena on April 29, 2015, for 
documents and communications relating to work at the facility. 
During his statement for the record before this Committee on 
June 24, 2015, he revealed a few findings from his 
investigation which include:

     ``In November 2007, a veteran named Kraig 
Ferrington died from a lethal mixture of seven different drugs 
shortly after receiving treatment at Tomah.
     ``In July 2009, Dr. Chris Kirkpatrick was fired 
from Tomah after raising concerns about over-medication. 
Tragically, the same day he was terminated, Dr. Kirkpatrick 
committed suicide.
     ``On August 30, 2014, Jason Simcakoski died in the 
Tomah Mental Health Wing as a result of, quote, `mixed drug 
toxicity.' His autopsy revealed he had over a dozen different 
medications in his system.
     ``On January 12, 2015, Candace Delis brought her 
father, Thomas Baer, to the Tomah VA Urgent Care Center with 
stroke like symptoms. Mr. Baer waited over 2 hours for 
attention. His family believes he died of neglect. It is hard 
not to agree.''\2\
---------------------------------------------------------------------------
    \2\Testimony of the Honorable Ron Johnson, during a hearing 
entitled, ``Pending Health Care and Benefits Legislation,'' before the 
Senate Committee on Veterans' Affairs, June 24, 2015.

    Senator Johnson further stated, ``To date, no one at Tomah 
has been fired. The medical professionals who prescribed the 
lethal cocktail of drugs that killed Jason Simcakoski are still 
collecting a paycheck from the American taxpayer. The events in 
Tomah make it abundantly clear that there must be more 
accountability for VA medical professionals.''\3\ S. 1117 would 
increase accountability with VA health care professionals. The 
Committee bill incorporates the objective of S. 1117 and not 
only increases accountability among VA medical professionals 
but all VA employees.
---------------------------------------------------------------------------
    \3\Id.
---------------------------------------------------------------------------
    Senator Marco Rubio submitted the following statement for 
the record which outlined his views on the legislation:

          In the wake of reports detailing how very few people 
        have been held accountable for last year's scandal at 
        the Department of Veterans Affairs, on April 23, 2015, 
        I introduced the `Department of Veterans Affairs 
        Accountability Act of 2015,' which would give the VA 
        secretary new, expanded authorities to remove or demote 
        any VA employee based on poor performance or 
        misconduct.
          This legislation would expand on last year's VA 
        reform law by giving the VA secretary the authority to 
        terminate any employees for performance-related issues, 
        not just managers. It mirrors legislation (H.R. 1994) 
        filed in the U.S. House of Representatives by House 
        Veterans' Affairs Committee Chairman Jeff Miller.
          Last year, I was proud to lead the effort to give the 
        VA secretary the authority to fire senior executives 
        based on performance. A year later, it's clear 
        additional authorities are needed to deal with the full 
        scope of the problems at the VA. Once enacted into law, 
        this new legislation will leave the VA secretary with 
        no excuse but to hold people accountable for the 
        dysfunction and incompetence plaguing our VA system, 
        while protecting whistleblowers from retaliation. We 
        must show our veterans the respect they have earned by 
        removing any employees with terrible performance from 
        the system our veterans rely on.
          I also want to recognize that later this week the 
        Subcommittee of the House Committee on Oversight and 
        Government Reform will hold its own hearing on 
        reforming the VA. It will hear testimony from Florida 
        constituent and St. Johns County Assistant 
        Administrator Jerry Cameron about problems stemming 
        from the VA's selection and leasing process for new 
        facilities. It represents part of a larger national 
        problem regarding our VA facilities, which are 
        experiencing significant delays and cost overruns that 
        ultimately hurt both veterans and taxpayers.
          I strongly support S. 1082 and recommend the 
        committee favorably report the bill out as soon as 
        possible so that it receives a vote by the full U.S. 
        Senate. I also hope today's hearing will help shed 
        light on VA accountability reform and provide the 
        committee with a better understanding of how we can 
        best serve our veterans.\4\
---------------------------------------------------------------------------
    \4\Statement for the Record of the Honorable Marco Rubio, submitted 
for a hearing entitled, ``Pending Health Care and Benefits 
Legislation,'' before the Senate Committee on Veterans' Affairs, June 
24, 2015. http://www.veterans.senate.gov/imo/media/doc/
Senator%20Marco%20
Rubio%20FTR%206.24.15.pdf.

Based on the work of Chairman Isakson in conjunction with 
Senators Johnson and Rubio, the Committee print of S. 1082 made 
significant improvements to ensure additional safeguards are in 
place providing whistleblower protections. The Committee 
receives critical information from veterans and VA employees 
who communicate their concerns regarding problems at VA. 
Allegations continue to arise from these same VA employees who 
report retaliation within the VA. The Committee takes very 
seriously the charge to protect these whistleblowers and 
believes the culture of intimidation to cover up problems has 
harmed VA's ability to appropriately care for our veterans.
    The bill strictly prohibits the Secretary from removing or 
demoting anyone who has sought corrective action from the 
Office of Special Counsel based on what they believe is 
whistleblower retaliation. Additionally, the bill requires the 
Office of Special Counsel to establish a mechanism to expedite 
all cases in which the employee is under investigation or the 
Secretary has requested a personnel action take place. The 
legislation provides notice be given to the employee as well as 
reasons for the termination of the investigation in order for 
the Office of Special Counsel to close out the employee's 
whistleblower complaint.
    The Committee holds a critical responsibility of providing 
protections to whistleblowers in an effort to improve care for 
our Nation's veterans. Unfortunately, according to data 
provided by the Office of Special Counsel, VA employees have 
filed the largest number of complaints compared to any other 
executive branch agency. Secretary McDonald has testified on 
multiple occasions about changing the culture at VA, and the 
Committee believes the protections added to S. 1082 will help 
address the history of intimidation or retaliation to tamp down 
whistleblower complaints.
    Committee Bill. Section 2 of the Committee bill would amend 
chapter 7 of title 38, U.S.C., to add additional authority to 
the Secretary to remove or demote underperforming employees. 
Specifically, section 2 outlines types of misconduct that the 
Secretary may consider warrants removal or demotion and 
requires the Secretary to submit to the Committees on Veterans' 
Affairs of the Senate and House notice in writing of such 
removal or demotion and the reason, no later than 30 days after 
removing or demoting an individual under this authority. Under 
section 2, an employee may appeal their removal or demotion to 
the MSPB not later than 7 days after the notice date. During 
this appeal period, the individual may not receive any pay, 
awards, bonuses, incentives, allowances, differentials, student 
loan repayments, special payments, or benefits. In an effort to 
increase protections given to whistleblowers within VA, section 
2 prohibits the Secretary from removing or demoting an 
individual seeking corrective action from OSC based on an 
alleged prohibited personnel practice without approval of the 
Special Counsel. Further, OSC is required to establish a 
mechanism to expedite cases for corrective action and a 
standard for approval of removal or demotion.
    The Committee believes these additional tools will allow 
the Secretary to remove poor performing employees and increase 
productivity and morale at the Department of Veterans Affairs.

Sec. 3. Required probationary period for new employees of Department of 
        Veterans Affairs.

    Section 3 of the Committee bill, which is derived from 
S. 1082 as introduced, extends the current probationary period 
for VA employees from 12 months to 18 months by adding 
``Section 715. Probationary period for employees'' to chapter 7 
of title 38, U.S.C.
    Background. An effective, skilled, and high performing 
workforce is essential to the mission of all Federal agencies, 
particularly the Department of Veterans Affairs. A probationary 
period, as required by statute in section 3321(a)(1) of title 
5, U.S.C., serves as the last step before an individual is 
permanently hired by an agency in the competitive civil service 
and is designed as a screening process to ensure only highly 
qualified employees serve within the Federal government. During 
his testimony before this Committee on June 24, 2015, Max 
Stier, President and CEO of the Partnership for Public Service, 
stated, ``The probationary period serves as a continuation of 
the assessment process and gives the manager a chance to 
determine further an individual's fitness for the position; 
individuals who have not demonstrated the competencies needed 
to perform well can be removed more easily during this 
period.''\5\ An employee's appeal rights are limited during 
their probationary period and the agency does not have to 
follow formal procedures for removing an employee as is the 
case with permanent employees.
---------------------------------------------------------------------------
    \5\Testimony of Max Stier, President and CEO Partnership for Public 
Service, during a hearing entitled, ``Pending Health care and Benefits 
Legislation,'' before the Senate Committee on Veterans' Affairs, June 
24, 2015. http://www.veterans.senate.gov/imo/media/doc/ PPS%20Stier%20
Testimony%206.24.15.pdf.
---------------------------------------------------------------------------
    Unfortunately, there are widespread concerns that the 
probationary period is being underutilized and not fulfilling 
its intent across the Federal government. According to a 
February 2015 GAO report, ``supervisors are often not making 
performance-related decisions about an individual's future 
likelihood of success with the agency during the probationary 
period.''\6\ The report attributes this to an inadequate amount 
of time for the supervisor to fully observe the individual's 
ability to perform all parts of the job and the supervisor's 
lack of knowledge relating to the timeframe of the individual's 
probationary period. These issues put agencies at great risk of 
hiring poor performing individuals.
---------------------------------------------------------------------------
    \6\U.S. Government Accountability Office, Federal Workforce: 
Improved Supervision and Better Use of Probationary Periods are Needed 
to Address Substandard Employee Performance http://www.gao.gov/assets/
670/668339.pdf.
---------------------------------------------------------------------------
    Notably, the GAO report found that agencies that extended 
probationary periods beyond the Office of Personnel Management-
required year were able to enhance the quality of their 
workforce. In addition, training for VA employees processing 
veterans' claims is complex and often can require more than 12 
months. Therefore, the Committee believes that extending the 
probationary period from 12 months to 18 months as in the 
Committee bill would provide the additional needed time to 
accurately review an individual's capabilities and enhance the 
quality of the VA workforce. The amended probationary period in 
the Committee bill would not apply to health care 
professionals, including physicians, dentists, podiatrists, 
optometrists, nurses, physician assistants, expanded-function 
dental auxiliaries, and chiropractors, who are subject to a 
probationary period of 24 months as provided by section 7403 of 
title 38, U.S.C.
    Additionally, as the GAO report pointed out, Federal 
employees are achieving non-probationary status by default as a 
result of supervisors not knowing when an employee's 
probationary period ends. The Committee bill addresses this 
shortcoming by requiring an affirmative decision from the 
employee's supervisor before the employee's appointment within 
VA is permanent. It is essential that the supervisor make a 
conscious evaluation of the individual's capabilities and 
performance. In his testimony, Max Stier stated, ``As an 
employee's probationary period is coming to a close, we believe 
managers should be required to make an affirmative decision as 
to whether the individual has demonstrated successful 
performance and should continue on past the probationary 
period.''\7\ The Committee believes this is an important 
safeguard to ensuring only highly qualified individuals are 
made permanent employees. Further, this has the potential to 
help reduce the amount of employees that should be removed due 
to poor performance down the road.
---------------------------------------------------------------------------
    \7\Stier testimony.
---------------------------------------------------------------------------
    Committee Bill. Section 3 of the Committee bill would amend 
chapter 7 of title 38, U.S.C., to extend the probationary 
period for new VA employees from 12 months to 18 months. 
However, it would exclude health care professionals covered 
under section 7403 of title 38, U.S.C. Section 3 gives the 
Secretary the authority to extend the probationary period at 
the discretion of the Secretary. Under section 3 of the 
Committee bill, the supervisor of the employee in a 
probationary period is required to determine whether the 
appointment becomes final based on regulations prescribed for 
such purpose by the Secretary, upon the expiration of the 
probationary period.

                             Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate, the Committee, based on 
information supplied by the Congressional Budget Office 
(hereinafter, ``CBO''), estimates that enactment of S. 1082 as 
amended would, relative to current law, have an insignificant 
effect on spending. The cost estimate provided by CBO, setting 
forth a detailed breakdown of costs, follows:

                               Congressional Budget Office,
                                     Washington, DC, July 30, 2015.
Hon. Johnny Isakson,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1082, the Department 
of Veterans Affairs Accountability Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dwayne M. 
Wright.
            Sincerely,
                                                Keith Hall,
                                                          Director.

  Enclosure.

S. 1082--Department of Veterans Affairs Accountability Act of 2015

    S. 1082 would modify personnel processes of the Department 
of Veterans Affairs (VA). CBO estimates that implementing 
S. 1082 would have an insignificant effect on spending subject 
to appropriation.
    Section 2 would expedite the process for VA to remove or 
demote employees whose performance or misconduct warrants such 
an action. CBO expects that the demotion or removal of those 
employees would have no net budgetary effect because it would 
result in the promotion or hiring of other employees.
    Section 3 would require VA to implement an 18-month 
probationary period for all new employees. After that time VA 
could extend the probationary period, make an offer of 
permanent employment, or terminate the employment. VA currently 
employs a 12-month probationary period for new employees to the 
competitive service and career Senior Executive Service 
employees of the department. CBO estimates that implementing 
section 3 would have no net budgetary effect.
    Enacting S. 1082 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    S. 1082 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On July 20, 2015, CBO transmitted a cost estimate for 
H.R. 1994, the VA Accountability Act of 2015, as ordered 
reported by the House Committee on Veterans' Affairs on July 
15, 2015. Sections 2 and 3 of S. 1082 are similar to sections 2 
and 3 of H.R. 1994 and the estimated budgetary effects are the 
same.
    The CBO staff contact for this estimate is Dwayne M. 
Wright. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                      Regulatory Impact Statement

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee on Veterans' 
Affairs has made an evaluation of the regulatory impact that 
would be incurred in carrying out the Committee bill. The 
Committee finds that S. 1082 as reported would not entail any 
regulation of individuals or businesses or result in any impact 
on the personal privacy of any individuals and that the 
paperwork resulting from enactment would be minimal.

                 Tabulation of Votes Cast in Committee

    In compliance with paragraph 7(b) of rule XXVI of the 
Standing Rules of the Senate, the following is a tabulation of 
votes cast in person or by proxy by Members of the Committee on 
Veterans' Affairs at its July 22, 2015, meeting. On that date, 
the Committee voted by voice vote to order favorably reported 
with amendments S. 1082, a bill to amend title 38, United 
States Code, to provide for the removal or demotion of 
employees of the Department of Veterans Affairs based on 
performance or misconduct, and for other purposes.

                             Agency Report

    On June 24, 2015, Dr. Rajiv Jain, Assistant Deputy Under 
Secretary for Health for Patient Care Services, Veterans Health 
Administration, Department of Veterans Affairs, appeared before 
the Committee on Veterans' Affairs and submitted testimony on, 
among other things, S. 1082. In addition, on July 15, 2015, VA 
provided views on S. 1117. Excerpts from those statements are 
reprinted below:

   STATEMENT OF DR. RAJIV JAIN, ASSISTANT DEPUTY UNDER SECRETARY FOR 
HEALTH FOR PATIENT CARE SERVICES, VETERANS HEALTH ADMINISTRATION, U.S. 
                     DEPARTMENT OF VETERANS AFFAIRS

    Good morning Chairman Isakson, Ranking Member Blumenthal, 
and Members of the Committee. Thank you for inviting us here 
today to present our views on several bills that would affect 
VA benefits programs and services. Joining us today is 
Catherine Mitrano, Deputy Assistant Secretary for Resolution 
Management, and Jennifer Gray, Staff Attorney in VA's Office of 
General Counsel.
    We do not yet have cleared views on the Draft Biological 
Implant Tracking and Veteran Safety Act of 2015 or on S. 1117, 
the Ensuring Veteran Safety Through Accountability Act of 2015. 
Additionally, we do not have cleared views on sections 203, 
205, 208, and 209(b) of S. 469, sections 3 through 8 of 
S. 1085, section 2 of the draft bill referred to on the agenda 
as ``Discussion Draft'' or sections 101-106, 204, 205, 403 and 
501 of The Jason Simcakoski Memorial Opioid Safety Act. We will 
be glad to work with the Committee on prioritization of those 
views and cost estimates not included in our statement.

           *       *       *       *       *       *       *


                S. 1082--Department of Veterans Affairs 
                       Accountability Act of 2015

    Section 2 of S. 1082 would give the Secretary of Veterans 
Affairs the same authority for VA non-Senior Executive 
employees granted to him for VA Senior Executives under 38 
U.S.C. Sec. 713. Under section 2, the Secretary could remove a 
VA non-Senior Executive employee from the civil service or 
demote the employee, either through a reduction in grade or 
annual rate of pay. If the individual being removed or demoted 
is seeking corrective action from the Office of Special Counsel 
(OSC) the Secretary could not take an action under this section 
without approval from OSC. Individuals removed or demoted under 
section 2 could appeal that action to a Merit Systems 
Protection Board administrative judge (AJ), who would be 
required to issue a decision on the appeal within 45 days. 
Decisions issued by an AJ would be final and not subject to 
further appeal.
    Section 3 of this bill would require all new VA employees 
who are competitively appointed or appointed to the Senior 
Executive Service at VA to serve a probationary period of at 
least 18 months. The probationary period could be extended past 
18 months by the Secretary.
    S. 1082 is the latest in a series of legislative proposals 
targeting VA employees by providing extraordinary authority to 
sanction them, not available in other Federal agencies. Last 
summer, section 707 of the Veterans Access, Choice, and 
Accountability Act of 2014 added 38 U.S.C. Sec. 713, 
establishing an expedited removal authority that strictly 
limits VA Senior Executives' post termination appeal rights. 
While that provision gave the Secretary additional flexibility 
in terms of holding VA Senior Executives accountable for 
misconduct or poor performance, it constrained the Secretary's 
ability to retain gifted senior leaders by singling out VA 
Senior Executives for disparate treatment from their peers at 
other agencies.
    It is likely that S. 1082 would result in unintended 
consequences for VA, such as a loss of qualified and capable 
staff to other government agencies or the private sector. 
Section 2 of this bill, which is based on 38 U.S.C. Sec. 713, 
would apply to all VA employees regardless of their grade or 
position. VA's workforce consists of a diverse array of 
employees, including employees with advanced degrees in 
business, law, and medicine. Many of these employees accept 
lower pay to serve at VA, and a large number of these employees 
are Veterans. While VA's employees are motivated first and 
foremost by a desire to serve Veterans, another motivation to 
accept lower pay shared by many Federal employees is the job 
security afforded by protections such as appeal rights that 
attach at the end of a probationary period. Diminishing those 
appeal rights or expanding the probationary period will reduce 
the motivation to pursue public service at VA.
    Section 2 of the bill poses due process concerns, due to 
its failure to provide the employee with a chance to be heard 
prior to losing the benefits of employment and its failure to 
guarantee that an employee's case will be fairly judged before 
the sanction becomes final.
    Section 3 of this bill would also adversely impact 
recruitment at VA by extending the probationary period for 
employees from what is usually 12 months to 18 months and 
authorizing the Secretary of Veterans Affairs to extend the 
probationary period beyond that time at his discretion. In 
general, the probationary period serves as a way of examining 
whether an employee is suitable for his or her position. The 
12-month cap of probationary periods serves a dual role: it 
gives management a finite amount of time within which to gauge 
an employee's performance, and it gives the employee a 
reasonable period of time within which he or she would be made 
a permanent Federal employee. By expanding that time to 18 
months and allowing the Secretary to extend the probationary 
period past 18 months, section 3 of this bill may impact VA's 
ability to recruit employees. Like the diminishment of due 
process and appeal rights, the longer probationary period 
simply makes VA less competitive for the candidates seeking job 
security. In effect, S. 1082 would create a new class of 
employees in the government, a ``VA class.'' These ``VA class'' 
employees could be removed or demoted at the discretion of the 
Secretary, would receive fewer due process rights and 
abbreviated MSPB appeal rights in actions taken under section 2 
of the bill and would serve longer probationary periods than 
their peers at other government agencies. This will hinder VA 
efforts to make the ``VA class'' of employee the very finest 
employees to serve our Veterans and ensure that they timely 
receive the benefits and care to which they are entitled.
    By singling out VA employees, the legislation would 
dishearten a workforce dedicated to serving Veterans and hurt 
VA's efforts to recruit and retain high performing employees. 
VA will continue to work with the Committee and VSO's on how 
the Secretary can best hold employees accountable while 
preserving the ability to recruit and retain the highly skilled 
workforce VA needs to best serve Veterans.

           *       *       *       *       *       *       *





           *       *       *       *       *       *       *
June 24, 2015, Agenda

           *       *       *       *       *       *       *


               S. 1117, ENSURING VETERAN SAFETY THROUGH 
                       ACCOUNTABILITY ACT OF 2015

    S. 1117 would amend 38 U.S.C. 713 to allow the Secretary to 
remove individuals appointed under 38 U.S.C. 7401, which 
include health care and scientific professionals (e.g., 
physicians, dentists, nurses), if the Secretary determines the 
performance or misconduct of the individual warrants removal. 
Under S. 1117, actions taken under 38 U.S.C. 713 would not be 
subject to the provisions of 38 U.S.C. 7461(b) and 7462, or 5 
U.S.C. 7503, 7513, and 7543(b). The bill would also make 
conforming amendments to 38 U.S.C. 7461(b) and 7462.
    38 U.S.C. 713 was established last summer under section 707 
of the Veterans Access, Choice, and Accountability Act of 2014 
(Public Law 113-146). Under 38 U.S.C. 713, the Secretary may 
remove or, under certain circumstances, transfer an employee to 
a General Schedule position, if the Secretary determines that 
the performance or misconduct of the individual warrants such a 
removal or transfer. Individuals who are removed or transferred 
under 38 U.S.C. 713 have limited post-termination or transfer 
appeal rights.
    At present, 38 U.S.C. 713 only applies to VA Senior 
Executives: career appointees in the Senior Executive Service 
or individuals appointed under 38 U.S.C. 7306(a) or 7401(1) to 
an administrative or executive position. S. 1117 would expand 
the application of 38 U.S.C. 713 to allow the Secretary to 
remove other Title 38 employees, including practicing 
physicians, dentists, nurses, and other individuals, regardless 
of their grade or rank, while limiting the post-termination 
appeal rights for these employees.
    While 38 U.S.C. 713 gave the Secretary additional 
flexibility in terms of holding VA Senior Executives 
accountable for misconduct or poor performance, it constrained 
the Secretary's ability to retain gifted senior leaders by 
singling out VA Senior Executives for disparate treatment from 
their peers at other agencies. It is likely that S. 1117 would 
result in unintended consequences for VA, such as a loss of 
qualified and capable health care and scientific professionals 
to other government agencies or the private sector. Many of 
these employees accept lower pay to serve at VA, and a large 
number of these employees are Veterans. While VA's employees 
are motivated first and foremost by a desire to serve Veterans, 
another motivation to accept lower pay shared by many Federal 
employees is the job security afforded by protections such as 
appeal rights that attach at the end of a probationary period. 
Diminishing those appeal rights will reduce the motivation to 
pursue public service at VA.
    The bill also poses due process concerns, due to its 
failure to provide the employee with a chance to be heard prior 
to losing the benefits of employment and its failure to 
guarantee that an employee's case will be fairly judged before 
the sanction becomes final.
    By singling out VA employees, the legislation would 
dishearten a workforce dedicated to serving Veterans and hurt 
VA's efforts to recruit and retain high performing employees. 
VA will continue to work with the Committee and VSO's on how 
the Secretary can best hold employees accountable while 
preserving the ability to recruit and retain the highly skilled 
workforce VA needs to best serve Veterans.

           *       *       *       *       *       *       *


 MINORITY VIEWS OF HON. RICHARD BLUMENTHAL, RANKING MEMBER, HON. PATTY 
MURRAY, HON. BERNARD SANDERS, HON. SHERROD BROWN, HON. JON TESTER, AND 
 HON. MAZIE K. HIRONO ON S. 1082, AS REPORTED BY THE VETERANS' AFFAIRS 
                               COMMITTEE

    On July 22, 2015, the Senate Committee on Veterans' Affairs 
(hereinafter, ``Committee'') voted, by voice vote, to approve 
S. 1082, as amended, the Department of Veterans Affairs 
Accountability Act of 2015 (hereinafter, ``S. 1082''). We 
strongly believe that all Federal employees should be held 
accountable for their performance and conduct. S. 1082, 
however, fails to provide the Department of Veterans Affairs 
(hereinafter, ``VA'' or ``Department'') with the tools it needs 
to increase accountability and address underlying performance 
problems at VA. We also believe that there are serious 
questions about the constitutionality of section 2 of S. 1082.
    As summarized in the Minority Views, the constitutional 
defects with S. 1082 were raised during the Committee's 
June 24, 2015, hearing by Ranking Member Blumenthal and 
witnesses for the Department. In its Statement for the Record, 
the U.S. Merit Systems Protection Board (hereinafter, ``MSPB'') 
outlined these constitutional defects, articulated due process 
requirements, and noted that ``the requirements of the 
Constitution have shaped the rules under which Federal agencies 
may take adverse action against Federal employees.''\1\ MSPB 
also noted that the constitutionality of section 713 of title 
38, United States Code (hereinafter, ``U.S.C.''), which 
authorize the Secretary to expedite the removal or demotion of 
a Senior Executive Service employee, is currently the subject 
of litigation at the U.S. Court of Appeals for the Federal 
Circuit.\2\ Subsequently, during the Committee's meeting of 
July 22, 2015, Ranking Member Blumenthal filed and offered an 
amendment to S. 1082 that would have cured the constitutional 
concerns with the legislation along with other material 
weaknesses. In addition, the Blumenthal amendment would have 
addressed employee performance issues and the broader 
management challenges at VA. However, at the request of the 
Chairman, the Blumenthal amendment was subsequently withdrawn. 
We believe that as Members of the Senate, we have a 
responsibility to ensure that the legislation we pass comports 
with the Constitution.
---------------------------------------------------------------------------
    \1\Statement for the Record of Susan Tsui Grundmann, Chairman, 
MSPB, for a hearing, entitled ``Pending Health Care and Benefits 
Legislation,'' before the Senate Committee on Veterans' Affairs, 
June 24, 2015, available at http://www.veterans.senate.gov/imo/media/
doc/MSPB%20 Statement%20FTR%206.24.15.pdf
    \2\Id.
---------------------------------------------------------------------------
    On June 24, 2015, the Committee held a legislative hearing 
to consider certain benefits and health care legislation 
pending before the Committee, including S. 1082. The witnesses 
at this hearing included VA officials, leaders of veterans 
service organizations (hereinafter, ``VSOs''), and a nonprofit, 
nonpartisan organization whose goal is reforming our civil 
service system, the Partnership for Public Service 
(hereinafter, ``Partnership''). In its testimony, the 
Partnership suggested a number of reforms to address underlying 
performance problems and the barriers to hiring, managing, and 
retaining talent at VA.\3\ For instance, the Partnership 
suggested holding VA political leaders accountable for managing 
the Department by requiring that all political appointees have 
annual performance plans similar to the performance plans 
required for career employees. The Partnership also suggested 
holding managers accountable for managing employee performance, 
including poor performance or misconduct, and improving 
training for managers. According to the Partnership, the 
``biggest contributor to the performance problems at the VA is 
the quality of the management, rather than the quality of the 
system.''\4\ Another suggestion from the Partnership is the 
creation of a new promotion track at VA so that technical 
experts can advance in their careers without having to go into 
management positions for which they may be ill-suited. Finally, 
the Partnership mentioned that in their discussions with 
leaders across the Federal Government, the Partnership hears 
that ``many of the delays in dealing with performance and 
accountability happen at the agency level before action is even 
taken.'' To address this, the Partnership suggested a review of 
VA's internal processes for addressing performance issues. 
Rather than simply attempting to find ways to fire employees 
more quickly, we believe that these reforms should be the focus 
of the Committee's legislative efforts in trying to increase 
accountability and address underlying performance problems at 
VA. None of these reforms are included in S. 1082 as reported 
by the Committee.
---------------------------------------------------------------------------
    \3\Testimony of Max Stier, President and CEO of the Partnership for 
Public Service, during a hearing entitled, ``Pending Health Care and 
Benefits Legislation,'' before the Senate Committee on Veterans' 
Affairs, June 24, 2015, available at http://www.veterans.senate.gov/
imo/media/doc/PPS%20Stier%20Testimony%206.24.15.pdf
    \4\Id.
---------------------------------------------------------------------------
    Section 2 of S. 1082 would authorize the Secretary of 
Veterans Affairs (hereinafter, ``Secretary'') to remove or 
demote a VA employee if the Secretary determines the 
performance or misconduct warrants such removal or demotion. 
The conduct that would be covered under section 2 of S. 1082 
includes any ``performance or misconduct the Secretary 
determines warrants the removal or demotion'' of an employee, 
thus giving the Secretary total discretion to fire or demote 
employees. Besides turning all VA employees into ``at-will'' 
employees, section 2 of S. 1082 removes due process protections 
for all VA employees. Specifically, section 2 of S. 1082 
provides that the procedures listed in 5 U.S.C. Sec. 7513(b) 
(``Cause and Procedure'') and chapter 43 of title 5 
(``Performance Appraisal'') ``shall not apply to a removal or 
demotion'' referred in that section. Because S. 1082 eliminates 
every VA employee's right to notice and an opportunity to 
respond prior to the imposition of an adverse personnel action, 
its constitutionality is in question. As MSPB noted in its 
Statement for the Record for the Committee's June 24, 2015, 
hearing, according to the Supreme Court of the United States:

        * * * the Constitution requires that any system which 
        provides that a public employee may only be removed for 
        specified causes must also include an opportunity for 
        the employee--prior to his or her termination--to be 
        made aware of the charges the employer will make, 
        present a defense to those charges, and appeal the 
        removal decision to an impartial adjudicator.\5\
---------------------------------------------------------------------------
    \5\Tsui Grundmann

Section 2 of S. 1082 fails to meet this constitutional 
requirement. The importance of making sure a law is 
constitutional relates to enforcement. A law that is 
unconstitutional is unenforceable. Consequently, a law that is 
unenforceable is not effective in preventing the wrong that it 
was designed to correct as it creates an expectation that 
cannot be fulfilled, thus making an unenforceable law worse 
than no law at all.
    In addition to undermining pre-removal due process rights 
for all VA employees, section 2 of S. 1082 severely limits 
post-removal appeal rights, raising a second concern about the 
constitutionality of this section. Specifically, section 2 of 
S. 1082 provides that a VA employee who has been demoted or 
removed may appeal to the MSPB, which would be required to 
refer the appeal to an MSPB administrative judge for 
adjudication. An MSPB administrative judge would then be 
required to issue a decision ``no later than 45 days after the 
date of the appeal,'' and that decision would ``final'' and not 
subject to further review, either by the three-member Board or 
a Federal court. The justification for removing the three-
member Board at MSPB and the courts from the appeal process is 
not clear to us, especially since employees who are removed are 
no longer employed and therefore do not receive pay during the 
entire MSPB adjudication process. As drafted, section 2 of 
S. 1082 authorizes MSPB administrative judges--who are Federal 
employees employed under the General Schedule--to make a final 
decision on behalf of an agency which is in the executive 
branch of the Federal Government. We have serious concerns that 
this violates the Appointments Clause contained in Article II, 
Section 2, of the U.S. Constitution. In its Statement of 
Administration Policy (hereinafter, ``SAP'') on H.R. 1994, the 
House companion legislation of S. 1082, the White House also 
noted the Appointments Clause concerns.\6\
---------------------------------------------------------------------------
    \6\Statement of Administration Policy, H.R. 1994--VA Accountability 
Act of 2015, Executive Office of the President, Office of Management 
and Budget, July 28, 2015, available at https://www.whitehouse.gov/
sites/default/files/omb/legislative/sap/114/saphr1994r_20150728.pdf. 
The President's senior advisors have recommended that he veto H.R. 
1994.
---------------------------------------------------------------------------
    In addition to the constitutional concerns outlined herein, 
S. 1082 will have several damaging, unintended consequences--
all of which were articulated by some of the witnesses during 
the Committee's June 24, 2015, hearing.
    First, section 2 of S. 1082 would suppress whistleblowers. 
In its testimony for the Committee's June 24, 2015, hearing, 
the Partnership noted that S. 1082 ``will do more harm than 
good'' and that ``* * * as written, there are no protections 
for whistleblowers or employees who believe they have been 
fired for partisan or other discriminatory reasons.''\7\ In a 
letter to Members of the Committee, the American Federation of 
Government Employees also noted the lack of whistleblower 
protections in section 2 of S. 1082:
---------------------------------------------------------------------------
    \7\Stier.

        Under Section 2 of S. 1082, every whistleblower, along 
        with every other VA employee, would become at-will 
        employees. Without due process rights, no VA employee 
        who wishes to keep his or her job should ever again 
        become a whistleblower in the workplace or at the 
        Congressional witness table.\8\
---------------------------------------------------------------------------
    \8\Letter from the American Federation of Government Employees to 
Members of the Senate Committee on Veterans' Affairs, July 21, 2015.

The lack of whistleblower protections in section 2 of S. 1082 
is particularly troubling, for VA has a history of retaliation 
against whistleblowers\9\ and, according to the ``2014 Federal 
Employee Viewpoint Survey,'' which is conducted by the U.S. 
Office of Personnel Management, 44 percent of employees at VA 
do not believe they can disclose a suspected violation of law 
or regulation without fear of reprisal.\10\ Should S. 1082 as 
reported by the Committee be signed into law, we believe that 
this figure will increase.
---------------------------------------------------------------------------
    \9\See Eric Lichtblau, V.A. Punished Critics on Staff, Doctors 
Assert, N.Y. Times, June 15, 2014, available at http://www.nytimes.com/
2014/06/16/us/va-punished-critics-on-staff-doctors-assert 
.html?hpw&rref;=us&_r=0
    \10\The ``2014 Federal Employment Viewpoint Survey Results'' is 
available at http://www.fedview.opm.gov/2014FILES/
2014_Governmentwide_Management_Report.PDF
---------------------------------------------------------------------------
    Second, section 2 of S. 1082 will significantly impact VA's 
ability to recruit and retain talent. As VA noted in the 
Committee's June 24, 2015, hearing, ``S. 1082 is the latest in 
a series of legislative proposals targeting VA employees by 
providing extraordinary authority to sanction them, [which is] 
not available in other Federal agencies,'' and that by 
``singling out VA employees,'' S. 1082 will ``dishearten a 
workforce dedicated to serving veterans and hurt VA's efforts 
to recruit and retain high performing employees.''\11\ The 
Partnership, in its testimony for the Committee's June 24, 
2015, hearing, and the White House, in its SAP for the House 
companion legislation to S. 1082, also noted how S. 1082 will 
hinder VA from attracting and retaining qualified 
professionals. During the hearing, the Disabled American 
Veterans (hereinafter, ``DAV''), reminded the Committee that:
---------------------------------------------------------------------------
    \11\Statement of Dr. Rajiv Jain, Assistant Deputy Secretary for 
Health for Patient Care Services, Veterans Health Administration, VA, 
for a hearing, entitled ``Pending Health Care and Benefits 
Legislation,'' before the Senate Committee on Veterans' Affairs, 
June 24, 2015, available at http://www.veterans.senate.gov/imo/media/
doc/VHA%20Jain%20Testimony%206.24.15.pdf

        ``* * * it is vitally important to VA's long-term 
        future to create an environment in which the best and 
        the brightest professionals choose VA over other 
        Federal or private employers. While poor performance 
        and misconduct cannot be tolerated, VA employees must 
        be confident that fairness and due process govern how 
        they are selected, promoted, demoted, sanctioned, or 
        terminated.
          Without assurances of fairness and due process in the 
        workplace, talented doctors, nurses and other 
        professionals may not even entertain working in the VA, 
        especially since they must already be willing to accept 
        below-market salaries, pay and hiring freezes, 
        government shutdowns, and other challenges of working 
        in the Federal Government.''\12\
---------------------------------------------------------------------------
    \12\Testimony of Adrian M. Atizado, Assistant National Legislative 
Director, DAV, during a hearing entitled, ``Pending Health Care and 
Benefits Legislation,'' before the Senate Committee on Veterans' 
Affairs, June 24, 2015, available at http://www.veterans.senate.gov/
imo/media/doc/DAV%20Atizado%20Testimony%206.24.15.pdf

Section 3 of S. 1082 will also make conditions of employment at 
VA significantly less attractive than in other Federal agencies 
by extending the probationary period for employees from 12 
months to 18 months, and authorizing the Secretary to extend 
the probationary period beyond 18 months at the Secretary's 
discretion. As VA noted during the Committee's June 24, 2015, 
hearing, this provision--like the provisions that would 
diminish due process and appeal rights--``simply makes VA less 
competitive'' because VA employees ``would serve longer 
probationary periods than their peers at other government 
agencies.''\13\ Arguably, the longer probationary period in 
section 3 of S. 1082--which would only apply to VA and not the 
rest of the Federal Government--will negatively impact VA's 
ability to recruit talent.
---------------------------------------------------------------------------
    \13\Dr. Jain
---------------------------------------------------------------------------
    Third, section 2 of S. 1082 will have a ``dramatic impact'' 
on the workload of MSPB administrative judges.\14\ As noted 
above, section 2 of S. 1082 excludes the three-member MSPB 
board from playing any role in the appellate process. MSPB 
administrative judges would have all adjudicatory 
responsibility for claims arising under section 2 of S. 1082 
``not later than 45 days after the date of the appeal.'' 
Besides failing to pass constitutional muster, the timeframe to 
adjudicate appeals provided in section 2 of S. 1082 will, 
according to the MSPB, ``make proper adjudication extremely 
difficult for MSPB administrative judges.''\15\ The 
impracticality of the timeframe is clear once we consider the 
average case processing time for MSPB administrative judges for 
the last two fiscal years: during Fiscal Year (hereinafter, 
``FY'') 2013, MSPB administrative judges adjudicated 6,340 
appeals, with an average case processing time of 93 days per 
appeal; during FY 2014, MSPB administrative judges adjudicated 
16,354 appeals, with an average case processing time of 262 
days per appeal.\16\ We have concerns about the ability of MSPB 
to review cases within 45 days. It is not clear to us why 
section 2 of S. 1082 would dramatically shorten the time MSPB 
has to make a decision since individuals who are fired do not 
receive pay during the entire MSPB adjudication process.\17\
---------------------------------------------------------------------------
    \14\Tsui Grundmann
    \15\Id.
    \16\Id.
    \17\Id.
---------------------------------------------------------------------------
    Finally, section 2 of S. 1082 will negatively impact the 
whistleblower protection efforts of the U.S. Office of Special 
Counsel (hereinafter, ``OSC'') by tying OSC's limited resources 
to ``thousands of pre-emptive and otherwise non-meritorious 
complaints brought by VA workers.''\18\ As drafted, section 2 
of S. 1082 prohibits the Secretary from using the disciplinary 
authority if an employee has a complaint pending with OSC 
``without the approval of the Special Counsel.'' While the 
intent of this provision is to allow OSC to review a pending 
whistleblower complaint to ensure that the removal or demotion 
is not retaliatory, we are concerned that it will result in a 
massive increase of claims, some of them without merit, filed 
with OSC by VA employees. In its Statement for the Record for 
the Committee's June 24, 2015, hearing, the Special Counsel 
mentioned:
---------------------------------------------------------------------------
    \18\Statement for the Record, Carolyn N. Lerner, Special Counsel, 
OSC, for a hearing, entitled ``Pending Health Care and Benefits 
Legislation,'' before the Senate Committee on Veterans' Affairs, 
June 24, 2015, available at http://www.veterans.senate.gov/imo/media/
doc/OSC%20 Statement%20FTR%206.24.15.pdf

        With limited staff and resources, [section 2 of 
        S. 1082] will make it extraordinarily difficult for OSC 
        to manage our caseload effectively, and to separate the 
        meritorious whistleblower cases from those that are 
        filed primarily to stall an anticipated or feared 
        disciplinary action.\19\
---------------------------------------------------------------------------
    \19\Id.

This blow to OSC's whistleblower protection efforts is 
particularly troubling as, according to the Special Counsel, 
the ``percentage of OSC cases filed by VA employees is already 
overwhelming, and continues to climb.''\20\ In 2015, OSC 
estimates that nearly 40 percent of its incoming cases will be 
filed by VA employees.\21\
---------------------------------------------------------------------------
    \20\Id.
    \21\Id.

                        Changes in Existing Law

    In compliance with paragraph 12 of Rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman).

Title 5. Government Organization and Employees

           *       *       *       *       *       *       *


Part III. Employees

           *       *       *       *       *       *       *


Subpart B. Employment and Retention

           *       *       *       *       *       *       *


Chapter 33. Examination, Selection, and Placement

           *       *       *       *       *       *       *


Subchapter I. Examination, Certification, and Appointment

           *       *       *       *       *       *       *


SEC. 3321. COMPETITIVE SERVICE; PROBATIONARY PERIOD

           *       *       *       *       *       *       *


    (c) Subsections (a) and (b) of this section shall not apply 
with respect to appointments in the Senior Executive [Service 
or] Service, the Federal Bureau of Investigation and Drug 
Enforcement Administration Senior Executive Service, or any 
individual covered by section 715 of title 38.

           *       *       *       *       *       *       *


 Subchapter VIII. Appointment, Reassignment, Transfer, and Development 
in the Senior Executive Service

           *       *       *       *       *       *       *


SEC. 3393. CAREER APPOINTMENTS

           *       *       *       *       *       *       *


    (d) An individual's initial appointment as a career 
appointee shall become final only after the individual has 
served a 1-year probationary period as a career appointee. The 
preceding sentence shall not apply to any individual covered by 
section 715 of title 38.

           *       *       *       *       *       *       *


Subpart C. Employee Performance

           *       *       *       *       *       *       *


Chapter 43. Performance Appraisal

           *       *       *       *       *       *       *


Subchapter I. General Provisions

           *       *       *       *       *       *       *


SEC. 4303. ACTIONS BASED ON UNACCEPTABLE PERFORMANCE

           *       *       *       *       *       *       *


    (f) This section does not apply to--

           *       *       *       *       *       *       *

          (2) the reduction in grade or removal of an employee 
        in the competitive service who is serving a 
        probationary or trial period under an initial 
        appointment or who has not completed 1 year of current 
        continuous employment under other than a temporary 
        appointment limited to 1 year or less, [or]
          (3) the reduction in grade or removal of an employee 
        in the excepted service who has not completed 1 year of 
        current continuous employment in the same or similar 
        positions[.] , or
          (4) any removal or demotion under section 714 of 
        title 38.

           *       *       *       *       *       *       *


Title 38. Veterans' Benefits

           *       *       *       *       *       *       *


Part I. General Provisions

           *       *       *       *       *       *       *


                          Chapter 7. Employees

SEC.

701. Placement of employees in military installations.

           *       *       *       *       *       *       *

[712. Repealed.]
713. Senior executives: removal based on performance or 
            misconduct.
714. Employees: removal or demotion based on performance or 
            misconduct.
715. Probationary period for employees.

           *       *       *       *       *       *       *


SEC. 714. EMPLOYEES: REMOVAL OR DEMOTION BASED ON PERFORMANCE OR 
                    MISCONDUCT

    (a) In General.--(1) The Secretary may remove or demote an 
individual who is an employee of the Department if the 
Secretary determines the performance or misconduct of the 
individual warrants such removal or demotion.
    (2) A determination under paragraph (1) that the 
performance or misconduct of an individual warrants removal or 
demotion may consist of a determination of any of the 
following:
          (A) The individual neglected a duty of the position 
        in which the individual was employed.
          (B) The individual engaged in malfeasance.
          (C) The individual failed to accept a directed 
        reassignment or to accompany a position in a transfer 
        of function.
          (D) The individual violated a policy of the 
        Department.
          (E) The individual violated a provision of law.
          (F) The individual engaged in insubordination.
          (G) The individual over prescribed medication.
          (H) The individual contributed to the purposeful 
        omission of the name of one or more veterans waiting 
        for health care from an electronic wait list for a 
        medical facility of the Department.
          (I) The individual was the supervisor of an employee 
        of the Department, or was a supervisor of the 
        supervisor, at any level, who contributed to a 
        purposeful omission as described in subparagraph (H) 
        and knew, or reasonably should have known, that the 
        employee contributed to such purposeful omission.
          (J) Such other performance or misconduct as the 
        Secretary determines warrants the removal or demotion 
        of the individual under paragraph (1).
    (3) If the Secretary removes or demotes an individual as 
described in paragraph (1), the Secretary may--
          (A) remove the individual from the civil service (as 
        defined in section 2101 of title 5); or
          (B) demote the individual by means of--
                  (i) a reduction in grade for which the 
                individual is qualified and that the Secretary 
                determines is appropriate; or
                  (ii) a reduction in annual rate of pay that 
                the Secretary determines is appropriate.
    (b) Pay of Certain Demoted Individuals.--(1) 
Notwithstanding any other provision of law, any individual 
subject to a demotion under subsection (a)(3)(B)(i) shall, 
beginning on the date of such demotion, receive the annual rate 
of pay applicable to such grade.
    (2) An individual so demoted may not be placed on 
administrative leave or any other category of paid leave during 
the period during which an appeal (if any) under this section 
is ongoing, and may only receive pay if the individual reports 
for duty. If an individual so demoted does not report for duty, 
such individual shall not receive pay or other benefits 
pursuant to subsection (e)(5).
    (c) Notice to Congress.--Not later than 30 days after 
removing or demoting an individual under subsection (a), the 
Secretary shall submit to the Committees on Veterans' Affairs 
of the Senate and House of Representatives notice in writing of 
such removal or demotion and the reason for such removal or 
demotion.
    (d) Procedure.--(1) The procedures under section 7513(b) of 
title 5 and chapter 43 of such title shall not apply to a 
removal or demotion under this section.
    (2)(A) Subject to subparagraph (B) and subsection (e), any 
removal or demotion under subsection (a) may be appealed to the 
Merit Systems Protection Board under section 7701 of title 5.
    (B) An appeal under subparagraph (A) of a removal or 
demotion may only be made if such appeal is made not later than 
seven days after the date of such removal or demotion.
    (e) Expedited Review by Administrative Law Judge.--(1) Upon 
receipt of an appeal under subsection (d)(2)(A), the Merit 
Systems Protection Board shall refer such appeal to an 
administrative law judge pursuant to section 7701(b)(1) of 
title 5. The administrative law judge shall expedite any such 
appeal under such section and, in any such case, shall issue a 
decision not later than 45 days after the date of the appeal.
    (2) Notwithstanding any other provision of law, including 
section 7703 of title 5, the decision of an administrative 
judge under paragraph (1) shall be final and shall not be 
subject to any further appeal.
    (3) In any case in which the administrative judge cannot 
issue a decision in accordance with the 45-day requirement 
under paragraph (1), the removal or demotion is final. In such 
a case, the Merit Systems Protection Board shall, within 14 
days after the date that such removal or demotion is final, 
submit to Congress and the Committees on Veterans' Affairs of 
the Senate and House of Representatives a report that explains 
the reasons why a decision was not issued in accordance with 
such requirement.
    (4) The Merit Systems Protection Board or administrative 
judge may not stay any removal or demotion under this section.
    (5) During the period beginning on the date on which an 
individual appeals a removal from the civil service under 
subsection (d) and ending on the date that the administrative 
judge issues a final decision on such appeal, such individual 
may not receive any pay, awards, bonuses, incentives, 
allowances, differentials, student loan repayments, special 
payments, or benefits.
    (6) To the maximum extent practicable, the Secretary shall 
provide to the Merit Systems Protection Board, and to any 
administrative law judge to whom an appeal under this section 
is referred, such information and assistance as may be 
necessary to ensure an appeal under this subsection is 
expedited.
    (f) Whistleblower Protection.--(1) In the case of an 
individual seeking corrective action (or on behalf of whom 
corrective action is sought) from the Office of Special Counsel 
based on an alleged prohibited personnel practice described in 
section 2302(b) of title 5, the Secretary may not remove or 
demote such individual under subsection (a) without the 
approval of the Special Counsel under section 1214(f) of title 
5.
    (2) The Office of Special Counsel shall establish--
          (A) a mechanism to expedite cases for corrective 
        action under paragraph (1); and
          (B) a standard for the approval under paragraph (1) 
        of removal or demotion under subsection (a), which may 
        include a determination as to whether the removal or 
        demotion is a prohibited personnel action.
    (3)(A) Notwithstanding any other provision of law, the 
Special Counsel may terminate an investigation of a prohibited 
personnel practice alleged by an individual in connection with 
a removal or demotion of the individual under subsection (a) 
only after the Special Counsel provides to the individual a 
written statement of the reasons for the termination of the 
investigation.
    (B) The written statement provided to the individual under 
subparagraph (A) may not be admissible as evidence in any 
judicial or administrative proceeding without the consent of 
such individual.
    (g) Relation to Other Provisions of Law.--(1) The authority 
provided by this section is in addition to the authority 
provided by subchapter V of chapter 75 of title 5 and chapter 
43 of such title.
    (2) Subchapter V of chapter 74 of this title shall not 
apply to any action under this section.
    (h) Definitions.--In this section:
          (1) The term ``individual'' means an individual 
        occupying a position at the Department of Veterans 
        Affairs but does not include--
                  (A) an individual, as that term is defined in 
                section 713(g)(1); or
                  (B) a political appointee.
          (2) The term ``grade'' has the meaning given such 
        term in section 7511(a) of title 5.
          (3) The term ``misconduct'' includes neglect of duty, 
        malfeasance, or failure to accept a directed 
        reassignment or to accompany a position in a transfer 
        of function.
          (4) The term ``political appointee'' means an 
        individual who is--
                  (A) employed in a position described under 
                sections 5312 through 5316 of title 5, 
                (relating to the Executive Schedule);
                  (B) a limited term appointee, limited 
                emergency appointee, or noncareer appointee in 
                the Senior Executive Service, as defined under 
                paragraphs (5), (6), and (7), respectively, of 
                section 3132(a) of title 5; or
                  (C) employed in a position of a confidential 
                or policy-determining character under schedule 
                C of subpart C of part 213 of title 5 of the 
                Code of Federal Regulations.

SEC. 715. PROBATIONARY PERIOD FOR EMPLOYEES

    (a) In General.--Notwithstanding sections 3321 and 3393(d) 
of title 5, the appointment of a covered employee shall become 
final only after such employee has served a probationary period 
of 540 days. The Secretary may extend a probationary period 
under this subsection at the discretion of the Secretary.
    (b) Covered Employee.--In this section, the term ``covered 
employee''--
          (1) means any individual--
                  (A) appointed to a permanent position within 
                the competitive service at the Department; or
                  (B) appointed as a career appointee (as that 
                term is defined in section 3132(a)(4) of title 
                5) within the Senior Executive Service at the 
                Department; and
          (2) does not include any individual with a 
        probationary period prescribed by section 7403 of this 
        title.
    (c) Permanent Hires.--Upon the expiration of a covered 
employee's probationary period under subsection (a), the 
supervisor of the employee shall determine whether the 
appointment becomes final based on regulations prescribed for 
such purpose by the Secretary.
  

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