Panel Discusses Bill Rescinding VA Employee Bonuses

This story has been updated.

Lawmakers on Wednesday considered bipartisan legislation that would rescind bonuses paid in the last few years to any Veteran Affairs Department employees involved in manipulating data related to patient wait times.

The Senate Veterans’ Affairs Committee discussed that bill, along with several others related to enhancing service and benefits to veterans and their family members, during a late afternoon hearing.

S. 627, introduced by Sen. Kelly Ayotte, R-N.H., in early March is similar to one she sponsored in July 2014, at the height of the controversy over excessive wait times for veterans and data manipulation at the Phoenix, Ariz., VA facility. The bill, whose Democratic co-sponsors include Sen. Claire McCaskill of Missouri, would authorize the VA secretary to require employees who received bonuses in fiscal years 2011 through 2014 to repay the awards if the employees “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.” Bonuses given to supervisors of those employees also would be rescinded if they “reasonably should have known” about the data manipulation. The legislation directs the VA inspector general with identifying those employees.

Under the bill, affected employees would be entitled to a hearing and could appeal the agency’s final decision to the Merit Systems Protection Board.

The Senior Executives Association questioned Congress’ focus on clawing back bonuses, instead of tackling the performance review process in the department and investigating whether employees are being held properly accountable for their work.

“This legislation does nothing to address the real question about how bonus allocations are determined in the first place at the VA, nor does it amend that process if Congress feels there are problems with that process,” said SEA President Carol Bonosaro in a May 13 letter to Senate Veterans’ Affairs Committee Chairman Johnny Isakson, R-Ga., and Ranking Member Richard Blumenthal, D-Conn. “If the committee is concerned that employees responsible for purported EWL [electronic wait list] manipulation are not being punished, the committee should work to determine why rather than adding another form of punishment to a system which is perceived as not working to begin with.”

Most federal agencies are not making meaningful distinctions in performance ratings and bonuses for senior executives, according to a recent report from the Government Accountability Office. The result is a system where nearly everyone is considered outstanding, and truly exceptional senior executives are treated similarly to their above-average peers when it comes to performance ratings and awards, GAO concluded. 

Bonosaro also said S. 627 would create more bureaucracy within the department, diverting the VA’s resources to recouping bonuses when it should be focusing on more important things. She took issue too with the bill’s standard for determining whose bonus to rescind. “The vague standard set by the legislation regarding supervisors or supervisors of supervisors, at any level, who ‘reasonably should have known’ about a purposeful omission of the name on a EWL is deeply concerning and fails to recognize appropriate expectations for line of sight in a large complex organization.”

The panel plans to mark up S. 627 in June, along with other benefits legislation affecting the department, Isakson said. The chairman left the hearing early on Wednesday to meet with VA Secretary Bob McDonald.

Renée Szybala, VA assistant general counsel, said during the hearing that the department supports the goals of S.627 – namely giving VA more tools to hold employees accountable – but feared the legislation as written now was constitutionally “questionable, debatable and attackable.”

Isakson said he wanted VA to be more proactive about coming up with proposals to fix some of these problems, instead of saying “somebody or something won’t let me do it.” The Georgia senator also said he wasn’t afraid of going to the courts, if such changes like rescinding employee bonuses came under attack.

“I think it’s about time agencies in government that are having problems with employees complying with the rules of the department, or in fact doing their job, had regulations that had accountability in it,” Isakson said, while apologizing for “lecturing” to Szybala. “Let’s let the courts strike them down, rather than just saying we can’t do it.”

Szybala said the department would work with the panel on tweaking the bill. “The problem with this bill is that it goes back too far in the past. We like it for now and the future, and we can work with you to try and get a bill that does it that way, that avoids the pitfalls we see here.”

On the other side of the Capitol, there are several House bills circulating that would either ban bonuses for VA employees or give the VA secretary the authority to rescind them.

The House in early March passed legislation (H.R. 280) that would give the secretary of the Veterans Affairs Department authority to order employees to repay bonuses. The language in that bill is much broader than in S. 627, which specifically targets VA employees identified as being involved in manipulating electronic wait lists.

H.R. 280 would require notifying affected employees before they had to repay the money, and would give them an opportunity for a hearing conducted by the secretary. It would allow employees to request a hearing by a third party after the secretary’s decision. The legislation also includes a provision directing the secretary to publish regulations describing the bonus rescission process so that employees know their rights under the bill.

Before he resigned in May 2014, then-VA Secretary Eric Shinseki announced no Senior Executive Service members at the Veterans Health Administration would receive a bonus in 2014. Shinseki took back a bonus given to Sharon Helman, the former VA senior executive at the center of the scandal over patient wait times. In February 2015, Judge Alan R. Caramella ruled that the department has to repay part of the $9,000 bonus it recouped from Helman last year until he makes a final decision on the matter.

Several VA officials have expressed concern over their authority to rescind employee bonuses, which in part has prompted the raft of legislation on the topic.

Earlier this month, the House passed the fiscal 2016 Military Construction and Veterans Affairs Appropriations bill which contains an amendment prohibiting the department from using any funds in the legislation for senior executives’ performance awards. 

The Senate VA Committee on Wednesday also planned to discuss legislation related to recommendations on reforming military compensation, the 2015 cost-of-living adjustment for vets receiving disability compensation, and a bill that would revise the definition of spouse for the purposes of veterans’ benefits to include valid same-sex marriages.