Lawmakers Want to Fast Track Hiring and Firing For Yet Another Troubled Federal Agency

Lawmakers want to make it easier for the Indian Health Service to fire problem employees, a response to the agency’s failure to fix long-standing management problems that have led to shoddy patient care and retaliation against whistleblowers.

The latest federal employee accountability bill circulating in Congress would expedite the disciplinary process for all IHS employees – from rank-and-file workers to senior executives – by reducing the length of time for notification and appeals for those fired or demoted because of poor performance or misconduct.

Under the bill, the agency would have to give employees at least 10 days of written notice of a proposed disciplinary action; the employee would have “an opportunity and reasonable time” to offer a defense, and seven days to appeal the agency’s final decision to the independent Merit Systems Protection Board. The MSPB in turn would have 21 days to issue a decision on the appeal. The abbreviated disciplinary process is similar to the one for senior executives at the Veterans Affairs Department under the 2014 Veterans Access, Choice and Accountability Act, and the proposals under the Veterans First Act, still pending in the Senate.

The bill would prohibit IHS employees transferred to a General Schedule job, or subject to a reduction in grade, from going on paid leave during the appeal process. They could only receive pay if they were working, or performing an alternate job during the disciplinary process. Additionally, employees appealing their removal would not receive bonuses or pay increases during that part of the grievance process under the 2016 Indian Health Service Accountability Act.

“Tribal leaders have written to the Department of Health and Human Services identifying underperforming supervisors and upper-level management personnel who deserve firing,” wrote Republican Sens. John Barrasso of Wyoming and John Thune of South Dakota, the bill’s sponsors, in a July 2 op-ed in the Wall Street Journal. “Our committee’s investigation found no sign that these employees were terminated. Instead poorly performing employees are transferred to other facilities, and in some cases, even given pay raises and promotions with no record of bad performance ending up in their work file.”

Senior executives could not receive pay increases or bonuses if the HHS secretary fails to submit a staffing plan, or a professional housing needs plan for the agency, both of which are required under the accountability legislation.

The bill also would require that any personnel actions taken against employees be included in their employment record.

The problems in IHS hospitals are not new, but they’ve reached crisis proportions, particularly in the Great Plains region (Iowa, Nebraska, North Dakota and South Dakota), according to lawmakers, tribal leaders and other stakeholders.

“We have heard accounts of nurses unable to administer basic drugs, broken emergency-resuscitation equipment, unsanitary medical facilities, and seriously ill children being misdiagnosed,” Barrasso and Thune wrote in the op-ed.

The bill, which is still in committee, also seeks to give the chronically understaffed agency more flexibility to hire employees faster and offer them better pay and benefits. S. 2953 would give the agency direct hiring authority for jobs, and allow expedited appointment of senior executives and other managers during emergency situations, higher pay for physicians and other health care professionals, and housing vouchers for certain new hires who agree to work at least a year at an IHS facility.

S. 2953 would also require consultation with tribes on several provisions, including hiring.

The IHS is trying to tackle its workforce management challenges by – among other things -- deploying health care workers in temporary positions at the most vulnerable hospitals, modernizing its hiring strategies, and working with the Peace Corps to recruit returning volunteers to underserved areas in the Great Plains, according to the joint testimony of Mary Wakefield, acting HHS deputy secretary, and Mary Smith, principal deputy director at IHS, during a June 17 congressional field hearing on the bill.

“While the administration has concerns about this bill, we look forward to working with the committee to improve it as it moves through the legislative process,” the two said in their written testimony before the Senate Indian Affairs Committee last month.

Wehnona Stabler, chief executive officer of the Omaha Tribe of Nebraska’s Carl T. Curtis Health and Education Center, said she and her tribe welcomed the expedited authority to fire or demote problem employees. “However, I submit that for the sake of transparency, Notice of the Personnel Action and of the results of employee appeals should also be submitted to the tribes within the respective IHS service area,” said Stabler, a former IHS employee, during the same June hearing.

Stabler noted that the legislation doesn’t include more money for IHS facilities in the Great Plains, though she believed it should. “For far too long, faced with federal shortfalls, IHS has leaned on the states and CMS [Centers for Medicare and Medicaid Services] to fund its operations.” Stabler added that “while I appreciate the intent of the Accountability Act, I believe Congress needs to be held accountable too.”

The Senior Executives Association is keeping an eye on the legislation. “There are provisions which concern us, and we hope to have those concerns addressed by the committee as this bill moves forward,” said SEA Interim President Jason Briefel on Tuesday.

The American Federation of Government Employees was more critical. "Attempts to undermine due process have no place in a 21st century civil service," said AFGE National President J. David Cox, in a statement. "Separating political decisions from personnel decisions is a vital firewall for ensuring the fairness and effectiveness of the government workforce. Due process is the cornerstone of a transparent, accountable government, and it must be upheld." 

Mike Danylak, press secretary for the majority on the Senate Indian Affairs Committee, said the panel wants to gather as much input as possible on the legislation from a variety of stakeholders. The committee hasn’t scheduled a markup yet on the legislation, but Danylak said that could happen in the fall.  

In additional to the hiring and firing provisions, the bill also expands protections for whistleblowers at the agency.

“The IHS employs many good people,” Barrasso and Thune wrote in the op-ed. “They work under difficult conditions to deliver care in some of the poorest and most remote areas of the U.S. Although its employees deserve support and assistance, the agency has lacked competent and accountable leadership for far too long.”