Senators Unveil Massive Bill That Would Change How VA Manages Its Workforce

Senators on Thursday unveiled a sweeping legislative package that would affect how the Veterans Affairs Department hires, fires, pays and manages its workforce of more than 300,000 employees.

The nearly 400-page omnibus bill, known as the Veterans First Act, would move senior health care executives into Title 38, allowing the VA secretary more flexibility in setting pay and disciplining those accused of poor performance or misconduct. The legislation also would expedite firing for all department employees by reducing the amount of time an employee has to respond to proposed disciplinary actions.

Government Executive on Wednesday first reported on the bill’s employee accountability provisions, which alone are 68 pages.

“The numerous scandals at the VA and the outrageous examples of employee mismanagement and misconduct have got to stop,” said Senate Veterans’ Affairs Committee Chairman Johnny Isakson, R-Ga., who led negotiations over the package, during a Thursday press conference. “Our bill will begin to change the culture of corruption at the VA by giving the VA the tools it needs to hold bad actors accountable.”

But that’s what the 2014 Veterans’ Access, Choice, and Accountability Act pledged to do, and it hasn’t quite lived up to its promise in that regard, as a reporter during Thursday’s press conference pointed out. That law aimed to make it easier to fire VA senior executives involved in wrongdoing by reducing the amount of time involved in the notification and appeals processes. However, since the beginning of the year, the Merit Systems Protection Board has overturned three of the department’s decisions – based on the 2014 law -- to demote and fire three separate senior executives.

Isakson on Thursday said that “everybody working in the VA is subject to being held accountable” and, referring to the Choice Act, added that lawmakers were “perfecting the process to see that what they promised in 2014 is the reality in 2016.”

The legislation, which also includes expansions and enhancements for veterans’ health, benefits, and education, would move certain senior executives -- senior medical directors within the Veterans Health Administration and directors of the Veterans Integrated Service Network -- out of Title 5 into Title 38. (Title 38 houses physicians, dentists and other medical professionals.) That change would mean those employees could earn more money, but also could be fired more easily. They could receive compensation, determined by the VA secretary, up to the president’s annual salary (currently $400,000), and would be subject to a new performance management system for determining bonuses and job ratings. The secretary would review the minimum and maximum market rates for basic pay for senior health care executives at least once every two years.

Senior executives affected by the Veterans First Act also would lose their current Title 5 rights to appeal disciplinary actions against them, such as removal, to the independent Merit Systems Protection Board. Instead, their appeals would be handled internally at the VA, and the secretary would have the final say over the type of punishment meted out, including firing, suspension and demotion. The entire grievance process would have to take less than 21 days, and employees subject to the most serious penalties could appeal the internal board’s decision to outside judicial review.

Unlike the 2014 Choice law, the Veterans First Act includes accountability measures aimed at the entire VA workforce – not just senior executives. Right now, agencies, including VA, have to give employees at least 30 days’ notice of a punishment, such as removal or suspension. An employee has a “reasonable” amount of time and not less than 7 days to respond and defend themselves. The Veterans First Act would change the notification period to at least 10 days for employees the department wants to fire; employees would have 10 business days to respond to the charges, and not more than 10 business days to appeal to the MSPB after removal.

In the draft bill, any reprimands or admonishments would have become part of an employee’s permanent personnel file, unless or until, the secretary decides to remove them. But that changed in the final bill: Reprimands and admonishments would automatically disappear after five years if they were still in an employee's file. Additionally, supervisors would be required to determine at the end of an employee’s probationary period – typically one year – whether that employee demonstrated success and “should continue past the probationary period.” If they don't weigh in within a certain time frame, the employee automatically graduates from probation. That provision also is different from what was in the draft version, which more strongly tied a supervisor's assessment to the length of the probationary period. Supervisors’ annual performance plans would take into account how well they addressed poor performance and misconduct among employees, and make them accountable for morale and engagement.

Federal employee advocates oppose many of the accountability measures in the omnibus package, arguing that they violate workers’ due process rights.

“The inclusion of potentially unconstitutional disciplinary provisions within a bill that, at its core, is aimed at improving veteran services and benefits is just another reminder that there are some in Congress who, in their constant quest for media attention and re-election, overreach beyond their congressional jurisdiction,” said Jason Briefel, interim president of the Senior Executives Association. “At this point, SEA is dismayed that our persistent attempts to provide constructive feedback have been rebuffed and ignored. We share the committee’s concern and agree that we must ensure our veterans are receiving the best care, but in order to do so we must look to common sense business practices and those do not include creating a toxic and hostile environment for VA employees.”

The American Federation of Government Employees urged senators in an April 18 letter to oppose the omnibus legislation “in its current form” because of the employee accountability provisions, calling it “a frontal assault” on federal employees’ due process rights. Cox also warned that if the bill advances and “succeeds in gutting civil rights and civil service protections for the DVA workforce, it is clear that this approach will be taken governmentwide.”

But it was clear from Thursday’s press conference that the package was bipartisan, with Republicans and Democrats praising the accountability measures in the bill. Senate Veterans’ Affairs Committee Ranking Member Richard Blumenthal, D-Conn., said that the “culture of VA badly needs this new breath of accountability,” saying it will be “vital to deter and discipline members of the Veterans Administration staff who fail to deliver services our vets need and deserve.”

House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., on Thursday called news of the deal “a positive development” saying that if the legislation passes the Senate he “looks forward to immediately engaging in conference committee negotiations in order to move a VA reform package to the president’s desk.” Isakson has said he wants to get legislation to President Obama before Memorial Day.

Other accountability provisions in the Senate bill would:

• Reduce the retirement benefits of senior executives who are convicted of certain crimes.
• Prohibit employees with disciplinary appeals before the MSPB from collecting any pay until the board issues a final decision.
• Create a new Office of Accountability and Whistleblower Protection with an assistant secretary overseeing it.
• Incorporate the protection of whistleblowers into supervisors’ performance evaluations.
• Require the VA to train all department employees at least once every two years on whistleblower disclosure processes, rights and retaliation prevention.
• Require annual performance plans for the department’s political appointees that make those officials accountable for recruiting and retaining employees, training and engaging the workforce, and getting rid of poor performers.
• Direct the VA to have an outside party review senior executive management training.
• Direct the VA to collect data and report on how well it’s managing its workforce, including metrics on employee morale, disciplinary actions against employees, promotions and retirements.
• Prohibit bonuses to any employees – senior executive or otherwise – who have disciplinary actions pending against them.
• Limit how much the VA can pay in awards and bonuses to employees to a total of $360 million in fiscal 2016, and $300 million for each year between fiscal 2017 and 2021.
• Allow the secretary to recoup bonuses paid to an employee during any year in which the employee is punished, unless the adverse action was “found to be made in error.”
• Limit to 14 business days within a calendar year the amount of time that an employee can remain on paid administrative leave.
• Require the VA to conduct a series of internal audits related to management.

The VA in a statement said it appreciated the Senate’s “initial legislative action” on some of its priorities and that there “is much to support” in the omnibus.

“However, the bill does not include much-needed legislation to reform the outdated and inefficient appeals process, or establish a comprehensive approach for consolidation of community care in order to streamline the complex approval process for veterans, employees, and providers,” the statement said. “The omnibus is currently being fully reviewed by the department, and we look forward to continuing to work with the committee to take action on items that were not included.”