[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2291 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  1st Session
                                S. 2291

 To amend title 38, United States Code, to establish procedures within 
the Department of Veterans Affairs for the processing of whistleblower 
                  complaints, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 17, 2015

 Mr. Kirk (for himself, Mr. Blumenthal, Mr. Grassley, Mrs. Gillibrand, 
Mr. Johnson, Ms. Baldwin, and Mr. Rubio) introduced the following bill; 
which was read twice and referred to the Committee on Veterans' Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend title 38, United States Code, to establish procedures within 
the Department of Veterans Affairs for the processing of whistleblower 
                  complaints, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``VA Patient Protection Act of 2015''.

SEC. 2. TREATMENT OF WHISTLEBLOWER COMPLAINTS IN DEPARTMENT OF VETERANS 
              AFFAIRS.

    (a) Procedure and Administration.--
            (1) In general.--Chapter 7 of title 38, United States Code, 
        is amended by adding at the end the following new subchapter:

               ``SUBCHAPTER II--WHISTLEBLOWER COMPLAINTS

``Sec. 731. Whistleblower complaint defined
    ``In this subchapter, the term `whistleblower complaint' means a 
complaint by an employee of the Department disclosing, or assisting 
another employee to disclose, a potential violation of any law, rule, 
or regulation, or gross mismanagement, gross waste of funds, abuse of 
authority, or substantial and specific danger to public health and 
safety.
``Sec. 732. Treatment of whistleblower complaints
    ``(a) Filing.--(1) In addition to any other method established by 
law in which an employee may file a whistleblower complaint, an 
employee of the Department may file a whistleblower complaint in 
accordance with subsection (g) with a supervisor of the employee.
    ``(2) Except as provided by subsection (d)(1), in making a 
whistleblower complaint under paragraph (1), an employee shall file the 
initial complaint with the immediate supervisor of the employee.
    ``(b) Notification.--(1)(A) Not later than four business days after 
the date on which a supervisor receives a whistleblower complaint by an 
employee under this section, the supervisor shall notify, in writing, 
the employee of whether the supervisor determines that there is a 
reasonable likelihood that the complaint discloses a violation of any 
law, rule, or regulation, or gross mismanagement, gross waste of funds, 
abuse of authority, or substantial and specific danger to public health 
and safety.
    ``(B) The supervisor shall retain written documentation regarding 
the whistleblower complaint and shall submit to the next-level 
supervisor and the central whistleblower office described in subsection 
(h) a written report on the complaint.
    ``(2)(A) On a monthly basis, the supervisor shall submit to the 
appropriate director or other official who is superior to the 
supervisor a written report that includes the number of whistleblower 
complaints received by the supervisor under this section during the 
month covered by the report, the disposition of such complaints, and 
any actions taken because of such complaints pursuant to subsection 
(c).
    ``(B) In the case in which such a director or official carries out 
this paragraph, the director or official shall submit such monthly 
report to the supervisor of the director or official and to the central 
whistleblower office described in subsection (h).
    ``(c) Positive Determination.--If a supervisor makes a positive 
determination under subsection (b)(1) regarding a whistleblower 
complaint of an employee, the supervisor shall include in the 
notification to the employee under such subsection the specific actions 
that the supervisor will take to address the complaint.
    ``(d) Filing Complaint With Next-Level Supervisors.--(1) If any 
circumstance described in paragraph (3) is met, an employee may file a 
whistleblower complaint in accordance with subsection (g) with the 
next-level supervisor who shall treat such complaint in accordance with 
this section.
    ``(2) An employee may file a whistleblower complaint with the 
Secretary if the employee has filed the whistleblower complaint to each 
level of supervisors between the employee and the Secretary in 
accordance with paragraph (1).
    ``(3) A circumstance described in this paragraph is any of the 
following circumstances:
            ``(A) A supervisor does not make a timely determination 
        under subsection (b)(1) regarding a whistleblower complaint.
            ``(B) The employee who made a whistleblower complaint 
        determines that the supervisor did not adequately address the 
        complaint pursuant to subsection (c).
            ``(C) The immediate supervisor of the employee is the basis 
        of the whistleblower complaint.
    ``(e) Transfer of Employee Who Files Whistleblower Complaint.--If a 
supervisor makes a positive determination under subsection (b)(1) 
regarding a whistleblower complaint filed by an employee, the Secretary 
shall--
            ``(1) inform the employee of the ability to volunteer for a 
        transfer in accordance with section 3352 of title 5; and
            ``(2) give preference to the employee for such a transfer 
        in accordance with such section.
    ``(f) Prohibition on Exemption.--The Secretary may not exempt any 
employee of the Department from being covered by this section.
    ``(g) Whistleblower Complaint Form.--(1) A whistleblower complaint 
filed by an employee under subsection (a) or (d) shall consist of the 
form described in paragraph (2) and any supporting materials or 
documentation the employee determines necessary.
    ``(2) The form described in this paragraph is a form developed by 
the Secretary, in consultation with the Special Counsel, that includes 
the following:
            ``(A) An explanation of the purpose of the whistleblower 
        complaint form.
            ``(B) Instructions for filing a whistleblower complaint as 
        described in this section.
            ``(C) An explanation that filing a whistleblower complaint 
        under this section does not preclude the employee from any 
        other method established by law in which an employee may file a 
        whistleblower complaint.
            ``(D) A statement directing the employee to information 
        accessible on the Internet website of the Department as 
        described in section 735(d).
            ``(E) Fields for the employee to provide--
                    ``(i) the date that the form is submitted;
                    ``(ii) the name of the employee;
                    ``(iii) the contact information of the employee;
                    ``(iv) a summary of the whistleblower complaint 
                (including the option to append supporting documents 
                pursuant to paragraph (1)); and
                    ``(v) proposed solutions to the complaint.
            ``(F) Any other information or fields that the Secretary 
        determines appropriate.
    ``(3) The Secretary, in consultation with the Special Counsel, 
shall develop the form described in paragraph (2) by not later than 60 
days after the date of the enactment of this section.
    ``(h) Central Whistleblower Office.--(1) The Secretary shall ensure 
that the central whistleblower office--
            ``(A) is not an element of the Office of the General 
        Counsel;
            ``(B) is not headed by an official who reports to the 
        General Counsel;
            ``(C) does not provide, or receive from, the General 
        Counsel any information regarding a whistleblower complaint 
        except pursuant to an action regarding the complaint before an 
        administrative body or court; and
            ``(D) does not provide advice to the General Counsel.
    ``(2) The central whistleblower office shall be responsible for 
investigating all whistleblower complaints of the Department, 
regardless of whether such complaints are made by or against an 
employee who is not a member of the Senior Executive Service.
    ``(3) The Secretary shall ensure that the central whistleblower 
office maintains a toll-free hotline to anonymously receive 
whistleblower complaints.
    ``(4) The Secretary shall ensure that the central whistleblower 
office has such staff and resources as the Secretary considers 
necessary to carry out the functions of the central whistleblower 
office.
    ``(5) In this subsection, the term `central whistleblower office' 
means the Office of Accountability Review or a successor office that is 
established or designated by the Secretary to investigate whistleblower 
complaints filed under this section or any other method established by 
law.
``Sec. 733. Adverse actions against supervisory employees who commit 
              prohibited personnel actions relating to whistleblower 
              complaints
    ``(a) In General.--(1) In accordance with paragraph (2), the 
Secretary shall carry out the following adverse actions against 
supervisory employees (as defined in section 7103(a) of title 5) whom 
the Secretary, an administrative judge, the Merit Systems Protection 
Board, the Office of Special Counsel, an adjudicating body provided 
under a union contract, a Federal judge, or the Inspector General of 
the Department determines committed a prohibited personnel action 
described in subsection (c):
            ``(A) With respect to the first offense, an adverse action 
        that is not less than a 12-day suspension and not more than 
        removal.
            ``(B) With respect to the second offense, removal.
    ``(2)(A) An employee against whom an adverse action under paragraph 
(1) is proposed is entitled to written notice.
    ``(B)(i) An employee who is notified under subparagraph (A) of 
being the subject of a proposed adverse action under paragraph (1) is 
entitled to 14 days following such notification to answer and furnish 
evidence in support of the answer.
    ``(ii) If the employee does not furnish any such evidence as 
described in clause (i) or if the Secretary determines that such 
evidence is not sufficient to reverse the determination to propose the 
adverse action, the Secretary shall carry out the adverse action 
following such 14-day period.
    ``(C) Paragraphs (1) and (2) of subsection (b) of section 7513 of 
title 5, subsection (c) of such section, paragraphs (1) and (2) of 
subsection (b) of section 7543 of such title, and subsection (c) of 
such section shall not apply with respect to an adverse action carried 
out under paragraph (1).
    ``(b) Limitation on Other Adverse Actions.--With respect to a 
prohibited personnel action described in subsection (c), if the 
Secretary carries out an adverse action against a supervisory employee, 
the Secretary may carry out an additional adverse action under this 
section based on the same prohibited personnel action if the total 
severity of the adverse actions do not exceed the level specified in 
subsection (a).
    ``(c) Prohibited Personnel Action Described.--A prohibited 
personnel action described in this subsection is any of the following 
actions:
            ``(1) Taking or failing to take a personnel action in 
        violation of section 2302 of title 5 against an employee 
        relating to the employee--
                    ``(A) filing a whistleblower complaint in 
                accordance with section 732 of this title;
                    ``(B) filing a whistleblower complaint with the 
                Inspector General of the Department, the Special 
                Counsel, or Congress;
                    ``(C) providing information or participating as a 
                witness in an investigation of a whistleblower 
                complaint in accordance with section 732 or with the 
                Inspector General of the Department, the Special 
                Counsel, or Congress;
                    ``(D) participating in an audit or investigation by 
                the Comptroller General of the United States;
                    ``(E) refusing to perform an action that is 
                unlawful or prohibited by the Department; or
                    ``(F) engaging in communications that are related 
                to the duties of the position or are otherwise 
                protected.
            ``(2) Preventing or restricting an employee from making an 
        action described in any of subparagraphs (A) through (F) of 
        paragraph (1).
            ``(3) Conducting a negative peer review or opening a 
        retaliatory investigation because of an activity of an employee 
        that is protected by section 2302 of title 5.
            ``(4) Requesting a contractor to carry out an action that 
        is prohibited by section 4705(b) or section 4712(a)(1) of title 
        41, as the case may be.
``Sec. 734. Evaluation criteria of supervisors and treatment of bonuses
    ``(a) Evaluation Criteria.--(1) In evaluating the performance of 
supervisors of the Department, the Secretary shall include the criteria 
described in paragraph (2).
    ``(2) The criteria described in this subsection are the following:
            ``(A) Whether the supervisor treats whistleblower 
        complaints in accordance with section 732 of this title.
            ``(B) Whether the appropriate deciding official, 
        performance review board, or performance review committee 
        determines that the supervisor was found to have committed a 
        prohibited personnel action described in section 733(b) of this 
        title by an administrative judge, the Merit Systems Protection 
        Board, the Office of Special Counsel, an adjudicating body 
        provided under a union contract, a Federal judge, or, in the 
        case of a settlement of a whistleblower complaint (regardless 
        of whether any fault was assigned under such settlement), the 
        Secretary.
    ``(b) Bonuses.--(1) The Secretary may not pay to a supervisor 
described in subsection (a)(2)(B) an award or bonus under this title or 
title 5, including under chapter 45 or 53 of such title, during the 
one-year period beginning on the date on which the determination was 
made under such subsection.
    ``(2) Notwithstanding any other provision of law, the Secretary 
shall issue an order directing a supervisor described in subsection 
(a)(2)(B) to repay the amount of any award or bonus paid under this 
title or title 5, including under chapter 45 or 53 of such title, if--
            ``(A) such award or bonus was paid for performance during a 
        period in which the supervisor committed a prohibited personnel 
        action as determined pursuant to such subsection (a)(2)(B);
            ``(B) the Secretary determines such repayment appropriate 
        pursuant to regulations prescribed by the Secretary to carry 
        out this section; and
            ``(C) the supervisor is afforded notice and an opportunity 
        for a hearing before making such repayment.
``Sec. 735. Training regarding whistleblower complaints
    ``(a) Training.--Not less frequently than once each year, the 
Secretary, in coordination with the Whistleblower Protection Ombudsman 
designated under section 3(d)(1)(C) of the Inspector General Act of 
1978 (5 U.S.C. App.), shall provide to each employee of the Department 
training regarding whistleblower complaints, including--
            ``(1) an explanation of each method established by law in 
        which an employee may file a whistleblower complaint;
            ``(2) an explanation of prohibited personnel actions 
        described by section 733(c) of this title;
            ``(3) with respect to supervisors, how to treat 
        whistleblower complaints in accordance with section 732 of this 
        title;
            ``(4) the right of the employee to petition Congress 
        regarding a whistleblower complaint in accordance with section 
        7211 of title 5;
            ``(5) an explanation that the employee may not be 
        prosecuted or reprised against for disclosing information to 
        Congress, the Inspector General, or another investigatory 
        agency in instances where such disclosure is permitted by law, 
        including under sections 5701, 5705, and 7732 of this title, 
        under section 552a of title 5 (commonly referred to as the 
        Privacy Act), under chapter 93 of title 18, and pursuant to 
        regulations promulgated under section 264(c) of the Health 
        Insurance Portability and Accountability Act of 1996 (Public 
        Law 104-191);
            ``(6) an explanation of the language that is required to be 
        included in all nondisclosure policies, forms, and agreements 
        pursuant to section 115(a)(1) of the Whistleblower Protection 
        Enhancement Act of 2012 (5 U.S.C. 2302 note); and
            ``(7) the right of contractors to be protected from 
        reprisal for the disclosure of certain information under 
        section 4705 or 4712 of title 41.
    ``(b) Manner Training Is Provided.--The Secretary shall ensure that 
training provided under subsection (a) is provided in person.
    ``(c) Certification.--Not less frequently than once each year, the 
Secretary shall provide training on merit system protection in a manner 
that the Special Counsel certifies as being satisfactory.
    ``(d) Publication.--(1) The Secretary shall publish on the Internet 
website of the Department, and display prominently at each facility of 
the Department, the rights of an employee to file a whistleblower 
complaint, including the information described in paragraphs (1) 
through (7) of subsection (a).
    ``(2) The Secretary shall publish on the Internet website of the 
Department, the whistleblower complaint form described in section 
732(g)(2).
``Sec. 736. Reports to Congress
    ``(a) Annual Reports.--Not less frequently than once each year, the 
Secretary shall submit to the appropriate committees of Congress a 
report that includes--
            ``(1) with respect to whistleblower complaints filed under 
        section 732 of this title during the year covered by the 
        report--
                    ``(A) the number of such complaints filed;
                    ``(B) the disposition of such complaints; and
                    ``(C) the ways in which the Secretary addressed 
                such complaints in which a positive determination was 
                made by a supervisor under subsection (b)(1) of such 
                section;
            ``(2) the number of whistleblower complaints filed during 
        the year covered by the report that are not included under 
        paragraph (1), including--
                    ``(A) the method in which such complaints were 
                filed;
                    ``(B) the disposition of such complaints; and
                    ``(C) the ways in which the Secretary addressed 
                such complaints; and
            ``(3) with respect to disclosures made by a contractor 
        under section 4705 or 4712 of title 41--
                    ``(A) the number of complaints relating to such 
                disclosures that were investigated by the Inspector 
                General of the Department of Veterans Affairs during 
                the year covered by the report;
                    ``(B) the disposition of such complaints; and
                    ``(C) the ways in which the Secretary addressed 
                such complaints.
    ``(b) Notice of Office of Special Counsel Determinations.--Not 
later than 30 days after the date on which the Secretary receives from 
the Special Counsel information relating to a whistleblower complaint 
pursuant to section 1213 of title 5, the Secretary shall notify the 
appropriate committees of Congress of such information, including the 
determination made by the Special Counsel.
    ``(c) Appropriate Committees of Congress.--In this section, the 
term `appropriate committees of Congress' means--
            ``(1) the Committee on Veterans' Affairs and the Committee 
        on Homeland Security and Governmental Affairs of the Senate; 
        and
            ``(2) the Committee on Veterans' Affairs and the Committee 
        on Oversight and Government Reform of the House of 
        Representatives.''.
            (2) Conforming and clerical amendments.--
                    (A) Conforming amendment.--Such chapter is further 
                amended by inserting before section 701 the following:

              ``SUBCHAPTER I--GENERAL EMPLOYEE MATTERS''.

                    (B) Clerical amendments.--The table of sections at 
                the beginning of such chapter is amended--
                            (i) by inserting before the item relating 
                        to section 701 the following new item:

               ``subchapter i--general employee matters'';

                and
                            (ii) by adding at the end the following new 
                        items:

                ``subchapter ii--whistleblower complaints

``731. Whistleblower complaint defined.
``732. Treatment of whistleblower complaints.
``733. Adverse actions against supervisory employees who commit 
                            prohibited personnel actions relating to 
                            whistleblower complaints.
``734. Evaluation criteria of supervisors and treatment of bonuses.
``735. Training regarding whistleblower complaints.
``736. Reports to Congress.''.
    (b) Expansion of Definition of Personnel Action To Include 
Performance Evaluations of Employees of the Department of Veterans 
Affairs.--Section 2302(a)(2)(A)(viii) of title 5, United States Code, 
is amended by inserting ``or under title 38'' after ``chapter 43 of 
this title''.

SEC. 3. REQUIREMENT THAT THE INSPECTOR GENERAL OF THE DEPARTMENT OF 
              VETERANS AFFAIRS SUBMIT AND MAKE AVAILABLE TO THE PUBLIC 
              CERTAIN WORK PRODUCTS.

    Section 312 of title 38, United States Code, is amended by adding 
at the end the following new subsection:
    ``(c)(1) Whenever the Inspector General, in carrying out the duties 
and responsibilities established under the Inspector General Act of 
1978 (5 U.S.C. App.), issues a work product that makes a recommendation 
or otherwise suggests corrective action, the Inspector General shall--
            ``(A) submit the work product to--
                    ``(i) the Secretary;
                    ``(ii) the Committee on Veterans' Affairs, the 
                Committee on Homeland Security and Governmental 
                Affairs, and the Committee on Appropriations of the 
                Senate;
                    ``(iii) the Committee on Veterans' Affairs, the 
                Committee on Oversight and Government Reform, and the 
                Committee on Appropriations of the House of 
                Representatives;
                    ``(iv) if the work product was initiated upon 
                request by an individual or entity other than the 
                Inspector General, that individual or entity; and
                    ``(v) any Member of Congress upon request; and
            ``(B) not later than 3 days after the work product is 
        submitted in final form to the Secretary, post the work product 
        on the Internet website of the Inspector General.
    ``(2) Nothing in this subsection shall be construed to authorize 
the public disclosure of information that is specifically prohibited 
from disclosure by any other provision of law.''.

SEC. 4. TREATMENT OF CONGRESSIONAL TESTIMONY BY DEPARTMENT OF VETERANS 
              AFFAIRS EMPLOYEES AS OFFICIAL DUTY.

    (a) In General.--Subchapter I of chapter 7 of title 38, United 
States Code, as designated by section 2(a)(2)(A), is amended by adding 
at the end the following new section:
``Sec. 715. Congressional testimony by employees: treatment as official 
              duty
    ``(a) Congressional Testimony.--An employee of the Department is 
performing official duty during the period with respect to which the 
employee is testifying in an official capacity in front of either 
chamber of Congress, a committee of either chamber of Congress, or a 
joint or select committee of Congress.
    ``(b) Travel Expenses.--The Secretary shall provide travel 
expenses, including per diem in lieu of subsistence, in accordance with 
applicable provisions under subchapter I of chapter 57 of title 5, to 
any employee of the Department of Veterans Affairs performing official 
duty described under subsection (a).''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such chapter, as amended by section 2(a)(2)(B), is further amended by 
inserting after the item relating to section 713 the following new 
item:

``715. Congressional testimony by employees: treatment as official 
                            duty.''.
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