The House voted 310-116 Wednesday to arm the Department of Veterans Affairs, exclusively among federal departments, with tougher employee “accountability” tools to punish misconduct and better protect whistleblowers.
It’s the latest political fallout from the patient wait time scandal of 2014 and multiple smaller investigations into misbehaving VA supervisors and staff that have become the primary focus of the House Veterans Affairs Committee under chairman Rep. Jeff Miller, R-Florida, who is to retire January.
The VA Accountability First and Appeals Modernization Act of 2016 (HR 5620), introduced by Miller in July, would provide new authorities for VA to withhold financial incentives or to demote or fire employees faster than current federal employee protection law allows.
The same bill would reform the VA claims appeal process so that veterans who file challenges to benefit claim decisions don’t have to wait years, as they do now, to get final determinations.
The Obama administration praised the bill’s provisions to restructure the claims appeals process, saying it has been failing veterans and taxpayers for years.
“Today, more than 450,000 appeals are pending at some point in the process, with veterans waiting an average of at least 3 years for a decision,” explained the Office of Management and Budget in a statement on HR 5620.
In the same document, however, OMB joined federal employee unions in complaining that the toughened “accountability” tools in the bill go too far and would unfairly weaken due process protections for the 330,000 federal workers serving veterans, a third of them being veterans themselves.
Essential rights and protections “available to the vast majority of other employees across the government” would be diminished at VA, undermining its need to attract and keep quality employees and thus hindering the department’s ability to serve veterans, OMB warned.
Rep. Mark Takano of California, the VA committee’s ranking Democrat, led an unsuccessful floor fight to soften the misconduct provisions, as the Republican majority defeated every substantive amendment. In the end, with Miller citing support from 18 prominent veteran groups, 69 Democrats joined the united Republican front to pass the bill convincingly.
It would shorten the process to fire, demote or hear the appeal of rank-and-file VA employees, from an average of more than a year to no more than 77 days. It also would end involvement of the Merit Systems Protection Board in such actions for VA senior executives; give the VA secretary authority to recoup bonuses and relocation expenses from employees who misbehave, or to reduce pensions of senior executives convicted of felonies that influenced their performance reports.
Additionally whistleblowers would get new protections from reprisals and the bill would mandate strict accountability to supervisors or colleagues who would reprise against them, the VA committee explained.
The Obama administration said it already “is strongly committed to strict accountability standard” for employees, and that the HR 5620 provisions are “focused primarily on firing or demoting employees without appropriate or meaningful procedural protections.”
It predicted a constitutional challenge, particularly over how the bill would compress time periods for employees to react to employer actions.
Like most federal civilians, VA workers now are entitled to 30 days’ advance written notice before being terminated or demoted. This would be cut to 10 days, a period “completely inadequate” to review evidence, secure legal representation and present supporting evidence, argued the American Federation of Government Employees AFL-CIO (AFGE).
Management also must inform employees now of specific instances of unacceptable performance and how critical elements of the job are impacted. Both requirements would end, limiting an employee’s ability to answer performance-based charges, AFGE said.
Employees have 30 days from date of a job action, or receipt of an agency decision, to appeal to the Merit Systems Protection Board (MSPB). At VA this would fall to seven days after date of removal or demotion. AFGE predicts a disproportionate effect on lower wage employees who can’t afford legal representation.
While the House debated HR 5620, VA Secretary Bob McDonald testified before the Senate Veterans Affairs Committee about the Commission on Care recommendations to reform the VA health care system, an opportunity the House committee failed to provide him last week, he noted.
McDonald pointedly blamed the Congress failing to act on top reform priorities for veterans including a package of new authorities to streamline VA community-based care programs that have languished since last October.
He also took a poke at Senate leaders for failing to bring to the floor for debate the Veterans First Act, 75 days and counting since it cleared the VA committee with needed reforms to the claims appeal process and steps to strengthen VA accountability without weakening employee protections. House Republicans this week used the Senate’s inaction to argue that passage of HR 5620 would at least show one chamber isn’t blocking key reform bills.
Congress is holding up critical legislation, McDonald told the Senate committee. Meanwhile the VA already has taken many steps to reform the department including more appropriate punishment of wrongdoers, he said.
“All told we’ve terminated over 3,755 employees in the past two years. And we’ve made sustainable accountability part of our ongoing leadership training,” McDonald said. “The Veterans First Act would help us hold people accountable, and we look forward to seeing it brought to the Senate floor.”
Sen. Johnny Isakson, R-Georgia, VA committee chairman, noted the criticism coming even from fellow Republicans that the stalled Veterans First Act “is not strong enough” on Merit System Protection Board changes, even though it would remove VA leadership from under the MSPB umbrella.
He said colleagues have blocked action on the bill by insisting that the VA Choice program “be fixed first. When they come up with the $51.4 billion we need to fix Choice first, I’m happy to do it. In the meantime, let’s expand the opportunity to make contract…provider agreements, and let’s work at the beginning of next year to fix the Choice program so it doesn’t sunset [on schedule next] August but instead is perpetuated around the country.”
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