[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
ACCOUNTABILITY AT VA:
LEADERSHIP DECISIONS IMPACTING
ITS EMPLOYEES AND VETERANS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND
INVESTIGATIONS
OF THE
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, MARCH 9, 2023
__________
Serial No. 118-4
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
51-558 WASHINGTON : 2023
-----------------------------------------------------------------------------------
COMMITTEE ON VETERANS' AFFAIRS
MIKE BOST, Illinois, Chairman
AUMUA AMATA COLEMAN RADEWAGEN, MARK TAKANO, California, Ranking
American Samoa, Vice-Chairwoman Member
JACK BERGMAN, Michigan JULIA BROWNLEY, California
NANCY MACE, South Carolina MIKE LEVIN, California
MATTHEW M. ROSENDALE, SR., Montana CHRIS PAPPAS, New Hampshire
MARIANNETTE MILLER-MEEKS, Iowa FRANK J. MRVAN, Indiana
GREGORY F. MURPHY, North Carolina SHEILA CHERFILUS-MCCORMICK,
C. SCOTT FRANKLIN, Florida Florida
DERRICK VAN ORDEN, Wisconsin CHRISTOPHER R. DELUZIO,
MORGAN LUTTRELL, Texas Pennsylvania
JUAN CISCOMANI, Arizona MORGAN MCGARVEY, Kentucky
ELIJAH CRANE, Arizona DELIA C. RAMIREZ, Illinois
KEITH SELF, Texas GREG LANDSMAN, Ohio
JENNIFER A. KIGGANS, Virginia NIKKI BUDZINSKI, Illinois
Jon Clark, Staff Director
Matt Reel, Democratic Staff Director
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
JENNIFER A. KIGGANS, Virginia, Chairwoman
AUMUA AMATA COLEMAN RADEWAGEN, FRANK J. MRVAN, Indiana, Ranking
American Samoa Member
JACK BERGMAN, Michigan CHRIS PAPPAS, New Hampshire
MATTHEW M. ROSENDALE, SR., Montana SHEILA CHERFILUS-MCCORMICK,
Florida
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
----------
THURSDAY, MARCH 9, 2023
Page
OPENING STATEMENTS
The Honorable Jennifer A. Kiggans, Chairwoman.................... 1
The Honorable Frank J. Mrvan, Ranking Member..................... 2
WITNESS
Ms. Tracey Therit, Chief Human Capital Officer, Human Resources
and Administration/ Operations, Security and Preparedness,
Department of Veterans Affairs................................. 4
APPENDIX
Prepared Statement Of Witness
Ms. Tracey Therit Prepared Statement............................. 19
ACCOUNTABILITY AT VA:
LEADERSHIP DECISIONS IMPACTING
ITS EMPLOYEES AND VETERANS
----------
THURSDAY, MARCH 9, 2023
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Veterans' Affairs
Washington, D.C.
The subcommittee met, pursuant to notice, at 3:03 p.m., in
room 390, Cannon House Office Building, Hon. Jen Kiggans
[chairwoman of the subcommittee] presiding.
Present: Representatives Kiggans, Radewagen, Rosendale,
Mrvan, Pappas, and Cherfilus-McCormick.
OPENING STATEMENT OF JENNIFER A. KIGGANS, CHAIRWOMAN
Mrs. Kiggans. Good afternoon. Thank you for being here
today. Welcome to the Subcommittee on Oversight and
Investigations first hearing of the 118th Congress. I am
honored to be the chairwoman of the subcommittee. I look
forward to working with Ranking Member Mrvan, who is on his
way, and my colleagues to accomplish some real work for
veterans this year.
As a former Navy helicopter pilot and geriatric nurse
practitioner who has worked in the VA system, I can speak to
the importance of accountability. As a naval aviator, I was
accountable for the success of my mission and the safety and
well-being of my crew and passengers. As a nurse practitioner,
I was accountable for the success of my mission to provide my
patients high quality care. A culture of accountability allowed
me and my teams to succeed. When accountability fails, the team
falters. In the VA's case, good employees and veterans suffer.
The Department of Veterans Affairs is a truly massive
entity. It has over 400,000 employees, thousands of medical
centers, and clinics, and serves millions of veterans a year.
An organization of that size can only work if there is a high
level of accountability from the top to the bottom.
Unfortunately, VA has struggled with this. At the Miles City
Community Living Center in Montana, physical therapists and
nursing staff were found to have abused a patient on two
occasions. When the patient refused physical therapy, the
physical therapist and nurse forcibly lifted the veteran and
made the veteran walk without their walker. The veteran
suffered skin tears and bruising as a result. As a nurse
practitioner, this is appalling behavior.
What concerns me as much as the abuse is that the nurses
involved were also cited in incidents that happened in 2018 and
2020. Why were these employees allowed to continue working at
the VA and why did those nurses who witnessed this abuse not
raise concerns?
In Detroit, at the John D. Dingell VA Medical Center, a VA
Office of Medical Inspector Report found that quality assurance
and quality management process was manipulated so that senior
leadership colluded with the chief of surgery during
investigations. The chief of surgery was the subject of
multiple investigations, tort claims, and poor outcomes over 4
years, but remained in the position until September 2021.
Fellow employees did not raise concerns for fear of retaliation
by the chief of surgery.
At the Loma Linda VA Medical Center, a supervisory employee
was found to have created a hostile work environment following
dozens of complaints from VA whistleblowers. VA's 50-page
investigative report recommended the supervisor be immediately
removed. Despite this lengthy report and medical center
leadership taking all the right steps, overly burdensome legal
standards prevented the medical center from removing the
supervisor.
These examples demonstrate how a lack of accountability at
the leadership and supervisory level can harm veterans in the
VA's ability to recruit and retain top talent. That is why
Congress gave VA the authority to expeditiously remove
employees for poor performance and misconduct. That authority
often called Section 714, has been challenged in the legal
system. As a result, the VA has stopped using the authority for
most but not all employees.
I am concerned that exempting most of the VA workforce from
swift accountability will not produce a better product for
veterans. I hope to learn more today about what authorities VA
is using in lieu of Section 714 to quickly remove employees
like those I referenced.
I also hope to hear about how the VA is holding supervisors
and other senior leaders accountable. Too often recommendations
for discipline of supervisors are changed or flat out ignored
by the Department. VA's mission is too important to get wrong.
While the Department has made some improvements, we cannot
ignore the accountability of managers. Veterans deserve the
very best from every VA across this country and a highly
accountable workforce is how the VA will deliver that to
veterans.
With that, I now recognize Ranking Member Mrvan for his
opening comments.
OPENING STATEMENT OF FRANK J. MRVAN, RANKING MEMBER
Mr. Mrvan. Thank you, Chairwoman Kiggans. With more than
400,000 employees nationwide, and the second largest budget in
the Federal Government, VA has a tremendous amount of
responsibility. VA's chief responsibility, of course, is to
deliver on its sacred mission of caring for and honoring our
Nation's veterans, and their families, caregivers, and
survivors. More than 90 percent of VA's workforce is employed
by Veterans Health Administration (VHA). I have been fortunate
to hear from many veterans that they love the care that they
get from the VA, and I fully intend to do all I can to ensure
that veterans continue to feel that way.
Like any large organization, especially one that serves
millions of patients at more than 1,000 medical facilities
nationwide, VHA is not immune from incidences of employee
misconduct and sometimes serious lapses in patient safety or
quality of care. It is our committee's responsibility to hold
VA accountable for such failures. It is bad enough when
veterans suffer harm as a result of such failures but incidents
like these are also harmful to the VA's workforce.
Headline grabbing incidents tarnish VA's reputation, crush
employee morale, and compound VA's long-standing challenges
with workforce recruitment and retention. Lapses in patient
safety and serious employee misconduct are especially harmful
to VA's clinical workforce at a time when our entire healthcare
system is under strain from pandemic related employee burnout.
As we discussed at last week's full committee hearing,
strong, stable leadership is the foundation upon which
accountability is built. We also discussed the highly
decentralized nature of the VHA and the governance challenges
that have impeded its oversight and accountability. That is why
last week I introduced the VHA Leadership Transformation Act,
H.R. 1256. My legislation would depoliticize VHA by extending
the term of the VA's Undersecretary for Health to 5 years so
VHA and its 380,000 employees will not have to endure
leadership turnover with every change in Presidential
administration. My bill would also remove statutory
restrictions on the qualifications of senior executives at the
VHA headquarters and give VA greater flexibility to determine
the organizational structure of the Veterans Health
Administration.
Since coming to Congress just over 2 years ago, I have
enjoyed the bipartisan culture of this committee. Healthcare is
not partisan and veterans should be shielded from the chaos of
the political process when it comes to accessing the healthcare
they have earned and deserve. I hope my colleagues will support
my bill to bring much-needed leadership, stability, and
accountability to the VHA.
Secretary McDonough has made strengthening VA's workforce
his top priority. There will be discussions today that will
focus a lot of attention on what VA is doing to improve its
efficiency in firing employees. I get it. Every Federal agency
has its share of bad apples. Veterans need to feel assured that
we are handling bad actors appropriately. However, based on the
chair's invitation from this hearing, I believe we are also
here today to discuss challenges VA faces in recruiting and
retaining employees. I would like to give equal attention today
to the importance of holding VA accountable for improving its
efficiencies in hiring employees and retaining those who have
dedicated their careers to serving veterans.
This hearing comes at a time when VA finds itself in a
fierce competition with private sector employers desperate for
doctors, nurses, and other healthcare professionals. I am
hoping today's witness will be able to provide some insight
about steps the Department is taking to recruit and retain
employees nationwide, especially at the VHA. I will encourage
you at the outset to highlight areas where Congress can help VA
in this endeavor.
I hope this is the first of many productive subcommittee
hearings in this Congress. I look forward to working closely
with Chairwoman Kiggans to provide oversight and ensure that
the VA is doing its very best to deliver healthcare and
benefits to the veterans. With that, I yield back.
Mrs. Kiggans. Thank you Ranking Member Mrvan. We will now
turn to witness testimony. Testifying before us today we have
Mrs. Tracey Therit, the Chief Human Capital Officer for the
Department of Veterans Affairs. Welcome.
Mrs. Therit, please stand and raise your right hand.
[Witness sworn.]
Thank you. Let the record reflect that Mrs. Therit answered
in the affirmative.
Mrs. Therit, you are now recognized for 5 minutes to
provide your testimony.
STATEMENT OF TRACEY THERIT
Ms. Therit. Good afternoon, Chairman Kiggans, Ranking
Member Mrvan, and members of the subcommittee. Thank you for
inviting me here today to discuss VA's efforts to address
accountability within the Department.
The Department of Veterans Affairs Accountability and
Whistleblower Protection Act was enacted on June 23, 2017. The
Act amended Title 38 of the United States Code by adding
several new statutes that among other things, established the
Office of Accountability and Whistleblower Protection (OAWP)
and added protections for whistleblowers, provided the
Department of Veterans Affairs with additional authorities to
take disciplinary action against senior executives and other
covered employees based on poor performance and misconduct, and
provided VA with authority to recoup relocation expenses,
bonuses, and awards based on poor performance and misconduct.
The Act provided VA with additional authority to take
disciplinary action against senior executives pursuant to 38
U.S.C. Section 713. The authority set forth a streamlined
procedure for disciplining senior executives and outlined the
process by which senior executives can challenge such an
action. Upon enactment, VA quickly developed and implemented
policy to carry out actions in Section 713. Section 713 has and
continues to be used to address poor performance and misconduct
of VA senior executives.
Furthermore, the Act provided VA with additional authority
to take adverse actions against certain VA employees under 38
U.S.C. Section 714. This authority sets forth a streamlined
procedure for disciplining certain VA employees identified by
statute. Upon enactment, VA quickly developed and implemented
policy to carry out adverse actions under Section 714.
Since enactment of Section 714 and VA's implementation,
Federal Circuit Court decisions and administrative decisions
from the Federal Labor Relations Authority (FLRA) and the Merit
Systems Protection Board have limited the scope of that
authority. The FLRA ruled that the VA was required to bargain
impact and implementation of the law prior to utilizing it
against the American Federation of Government Employees (AFGE),
bargaining unit employees, which the VA failed to do.
The FLRA also upheld an arbitration award that found that
Section 714 did not supersede the collective bargaining
agreement requirement to provide performance improvement plans
prior to taking a performance action against AFGE bargaining
unit members.
VA is complying with the Federal Labor Relations Authority
and arbitration decisions. VA and AFGE reached a settlement on
the decisions related to performance improvement plans
involving approximately 400 employees. Impacted employees have
either elected not to be reinstated and received a cash
settlement or opted for reinstatement and are going through the
performance improvement plan process, if applicable.
Any reinstated employee who does not successfully complete
the performance improvement plan period, may be subject to
appropriate adverse actions under Title 5 procedures.
Following the FLRA decision cited above, VA engaged in
retroactive bargaining with AFGE and is currently in mediation
with AFGE concerning approximately 4,000 employees who received
an adverse action under Section 714 prior to the FLRA and
arbitration decisions.
In some instances, employees against whom the Department
took an adverse action under Section 714, filed appeals with
the Merit Systems Protection Board (MSPB) and the U.S. Court of
Appeals for the Federal Circuit resulting in decisions that
greatly limit VA's use of Section 714. Specifically, through a
number of separate decisions, the Federal Circuit Court ruled
that VA could not use Section 714 for performance or misconduct
that occurred prior to the enactment of the Act; the MSPB must
review VA's selection of penalty in both misconduct and poor
performance cases when reviewing an action taken under Section
714; VA must use the preponderance of the evidence standard of
proof when taking an adverse action under Section 714; VA must
consider all relevant Douglas factors when determining a
reasonable penalty; and the MSPB must consider the Douglas
factors when reviewing the penalty selected by VA.
Recently, MSPB, in an interlocutory appeal, held that VA
was prohibited from using Section 714 to remove, demote, or
suspend employees of the Veterans Health Administration who
were appointed in a hybrid Title 38 positions.
This decision effectively prevents VA from using Section
714 for actions taken against hybrid Title 38 employees. VA
received final decision from MSPB yesterday. VA and/or the
Office of Personnel Management has the ability to appeal the
decision to the MSPB. Further, Office of Personnel Management
and Department of Justice have the discretion to subsequently
appeal the MSPB decision to the Federal Circuit. VA is
communicating with both agencies regarding appeal options.
These decisions have significantly reduced the differences
between 714 and the pre-existing Title 5 disciplinary
authorities. Due to these decisions, on April 30 of 2021, VA
stopped using Section 714 to take action against AFGE
bargaining unit employees. On January 17, 2023, VA stopped
using Section 714 to take action against hybrid Title 38
employees. On April 3, 2023, VA will cease using Section 714 to
propose new adverse actions against VA employees.
The limitations set forth by the decisions highlighted
above will not prevent VA from taking appropriate
accountability actions when warranted by poor performance and
misconduct. For adverse actions that VA would have issued a
Section 714, VA is returning to use of the Title 5 disciplinary
authorities that pre-existed Section 714 and which are used
throughout the Federal Government.
VA can still demote, suspend, and remove employees when the
evidence supports that proposed action. A review of adverse
actions indicates that VA has consistently used all available
authorities to hold employees accountable. The VA has
demonstrated the ability to hold employees accountable without
having to use Section 714.
VA intends to use and not suspend the use of any other
authorities from the Accountability Act. VA continues to use
Section 713 concerning senior executives, 38 U.S.C. 731, and
723, concerning recoupment of relocation expenses, bonuses, and
awards, and statutory amendments to the time periods for
adverse actions against Title 38 employees will remain
applicable.
Under 38 U.S.C. 323(c)(1)(l), OAWP makes recommendations
for disciplinary action after substantiating any allegations of
misconduct or poor performance by a VA senior leader or
whistleblower retaliation by a VA supervisor. These
recommendations go directly to the appropriate VA official who
will serve as a proposing official if any potential
disciplinary action is recommended.
Under 38 U.S.C. 323(f)(2), the VA must provide a detailed
justification to the Senate and House Committees of Veterans'
Affairs if the recommended disciplinary action is not initiated
or taken within 60 days of receipt of the recommendation. VA
instituted a process to carry out this requirement which
requires the VA official who received the recommendation to
provide a detailed justification to OAWP if the recommended
action is not taken. VA then develops a report that is sent to
the committees that includes a summary and detailed description
of the VA official's rationale for not taking the recommended
disciplinary action.
Data provided to this subcommittee as part of VA's
testimony shows that implementation of OAWP recommendations
increased from 2021 to 2022. While each case in which OAWP
issued a recommendation and the responsive justification is
factually unique, a review of the justifications for calendar
year 2022 show that the most common rationales for not
initiating or taking a recommended action are that the
individual's performance between the investigated incident and
the recommendation was exceptional or outstanding, the
individual did not have any prior history of discipline, the
individual sought guidance from leadership, human resources, or
the Office of General Counsel prior to the investigated
incident, and the lengthy period of time between the
investigated incident and the recommendation. These rationales
are consistent with the management official's responsibility to
consider relevant factors such as Douglas factors, or other
mitigating factors, when proposing and deciding a disciplinary
action.
Due to the significant individual privacy interests in
these matters, if there are particular cases that the
subcommittee wishes to discuss, VA is willing privately to
brief members of staff. I am happy to respond to any questions
that you may have. Thank you.
[The Prepared Statement Of Tracey Therit Appears In The
Appendix]
Mrs. Kiggans. Thank you, Mrs. Therit. We will now move to
questions, and I yield myself 5 minutes. Thank you for your
testimony.
Though I have only been here a short time, I have heard
from multiple constituents and VA employees who are having a
hard time with supervisors at VA, especially healthcare
facilities. These employees are hardworking people who want to
serve our veterans. However, they are leaving the VA because
their supervisors are not held accountable. You described a
kind of a lengthy administrative process just listening to I am
sure there is a lot of paperwork involved and probably a lot of
online forms, and that, you know, in order to process these
complaints. What would you say to these employees who are kind
of at the end of their rope? They followed these right steps,
but then they feel like their complaints go unanswered. Why
should they stay at the VA when they do not feel valued? Then
how can we change that?
Ms. Therit. Chairwoman Kiggans, thank you for that
question. We are committed to making sure that we hold senior
leaders and supervisors accountable for their performance and
their misconduct. If an employee feels that their supervisor is
engaging in misconduct, that needs to be reported either to the
Office of Whistleblower Protection or to their supervisor's
chain of command. Those matters are taken seriously. They are
investigated either through fact findings and administrative
investigation boards or through the Office of Accountability
and Whistleblower Protection. While the process to investigate
and gather information on the allegations may be lengthy, as
soon as an action is proposed, the individual is given a period
of time to respond, the action is decided. We will make sure
that that individual knows that their organization and their
culture of that environment is protected.
We strive to be a high reliability organization, and
employees need to feel safe in bringing those issues forward
for attention, and we need to act swiftly, using the
authorities that we have, including our Title 5 authorities or
our full Title 38 authorities, to address those issues.
Mrs. Kiggans. What is the average length of time that
entire process takes place from the time an employee puts in a
complaint until the time it is resolved would you say?
Ms. Therit. The time to take a disciplinary action is from
the proposing action to the final action, 30 days under the
Title 5 procedures, and 15 days under the 713 procedures.
Mrs. Kiggans. Thank you. Then just to change gears. The VA,
like most healthcare systems, is having a hard time with
recruitment and retention. We talked a little bit about it
earlier. A lack of accountability at the leadership and
supervisory level drives away some good talent and exacerbates
that problem. Does the VA have the tools it needs to make sure
the Department and its staff are accountable and succeeding in
their mission? How can Congress just assist with recruiting
talented staff for you all?
Ms. Therit. Chairwoman Kiggans, we are grateful for the
authorities that we received in the Promise to Address
Comprehensive Toxics (PACT) Act. In the first quarter of fiscal
Year 2023, we are seeing tremendous growth in the Veterans
Health Administration and the Veterans Benefits Administration,
largely by use of those authorities, as well as the onboarding
surge events and the hiring events that are happening
throughout the country. We also welcome additional authorities,
and I know we will be having hearings this month regarding the
VA Careers Act and some other legislation that I know Ranking
Member Mrvan had mentioned in his opening statement as well.
Mrs. Kiggans. Then how about retention? I feel like these
employees are becoming frustrated sometimes with this process,
if they have submitted complaints, and they are either not
resolved or they put in multiple complaints. How can we do
better to retain the good staff that we do have? Are there any
retention, just processes that we are not thinking of that we
can do better with?
Ms. Therit. At the VA, we have reused our retention
incentive procedures to retain employees, and we are seeing
lower rates of attrition in fiscal year 2023 than we had seen
in past years. We also welcome the other authorities that we
have had to remain competitive with pay. I know there are lots
of competition, especially in the healthcare field, for
healthcare workers. We are looking at special salary rates and
improvements to salaries that were made under the enactment of
the Retention and Income Security Enhancement (RAISE) Act as
well.
The other thing that I would mention with respect to
retention is being able to develop our whole health, and our
engagement programs, the work environment, combating burnout,
really, lots of issues around flexibility and our work
schedules. There are lots of tools that we need to be applying
to ensure that employees feel valued, they feel respected, they
can bring forth issues, and those issues are addressed, and
they are working in a supportive work environment. I will also
add a key factor in all of that is making sure that we are
conducting in a lot of our facilities, what are called stay
interviews. There are opportunities to get feedback from
employees and address that feedback before somebody leaves
their department.
We have many tools in place. We welcome conversations with
you and other members of the committee on additional things
that we can do to make sure that our workforce is supported and
that we are able to both recruit and retain talent.
Mrs. Kiggans. Making sure that we have enough talent to
spread the work around so that one staff member is not
overburdened with too much, I think is important for healthcare
staff. Thank you so much. I yield to Ranking Member Mrvan.
Mr. Mrvan. Thank you, Chairwoman. Ms. Therit, a
longstanding issue and source of frustration for this
committee, one that predates my time in Congress, is the lack
of reliable data about the number of workforce vacancies that
exist in the VA. I am told for the last for at least 7 years,
maybe longer, VA has been in the process of developing staffing
models for each occupation and validating positions that show
up as vacancies in the IT systems.
Just yesterday, in accordance with the Mission Act
requirement, VA published data indicating that there were more
than 76,000 vacancies nationwide as of December 31. Is that a
true number of positions VA needs to fill right now? Just
briefly, yes, or no?
Ms. Therit. The 70,000 number of positions are not fully
funded positions. There are positions in our HR system that are
not encumbered, but they are not a reflection of our Full Time
Equivalents (FTEs) and the funding received for those FTEs.
Mr. Mrvan. Okay. What percentage of occupations across VA
currently have staffing models? How do you know if those
medical facilities and regional offices are staffed
appropriately?
Ms. Therit. Ranking Member Mrvan, I do not have the exact
number of staffing models that are in place. I can get that
information and provide it to you and your staff.
Mr. Mrvan. Okay. My colleagues and I hear all the time from
frontline employees about challenges they face with
understaffing which can contribute to lapses in patient safety
and drive-up employee burnout. With that, of the 76,000 that
you said are unfunded, is there a percentage that has it been
determined from the VA which are unfunded and which are
positions that need to be filled?
Ms. Therit. Ranking Member Mrvan, that report that is
issued on a quarterly basis does have a distribution of funded
versus unfunded full-time equivalent positions. I would be
happy to brief you or members of your staff on the report and
break it down into some specific areas that you would want to
discuss further and the efforts that we are doing to fill those
positions.
Mr. Mrvan. Just for my own knowledge base, what is the
purpose of keeping the unfunded positions in that data?
Ms. Therit. The human resources professionals that use the
system from which that data comes may at some time in the
future want to use one of those positions when they get funding
to fill it. Those positions remain in the system, but we have
looked at procedures to update that information and validate
that data. Again, we would be happy to share with your staff
any new procedures that we put in place to address those
issues.
Mr. Mrvan. When they transition from funded to unfunded,
what is the process in place to fund those unfunded positions?
Say that ten times.
Ms. Therit. At the local level, especially in our Veterans
Health Administration, where a lot of that data that is
published on a quarterly basis is broken down by facility and
by occupation, there are resource management boards. The
requests come to those resource management boards to make
funding determinations, and then they go into the system,
identify that position, and start the recruitment action. That
is the steps in the process that is taken specifically within
VHA.
Mr. Mrvan. My point in honing in on that is it would appear
that that is a tool to be able to identify where those
vacancies are and as in oversight investigations when that data
is released, you look at that number and you think those are
the positions that are needed. When in fact, it is
undeterminable what number you release because of the funded
and unfunded way that the data is released. That is why I am
kind of focusing on that, to make sure that there is a clear
path with that knowledge and that data.
Ms. Therit. Ranking Member Mrvan, I think that is a great
observation. I know in the VA Careers Act there is a provision
to improve our display and representation of that information.
We would welcome an opportunity to work on you to refine that
report and make it easier to understand as well as more
meaningful in terms of utilization.
Mr. Mrvan. Thank you. With that, I yield back.
Mrs. Kiggans. Thank you for your comments. At this time, we
are going to take a short recess just to allow for other
members to be able to participate. They have conflicts with
committees and we are not quite done and I am sure they have
other questions. At this time we will take a short recess.
[Recess.]
Mrs. Kiggans. The hearing is back in order and I would like
to recognize Mr. Pappas for 5 minutes.
Mr. Pappas. Thank you very much, Madam Chair, and thank
you, Ms. Therit, for bearing with us and all the
responsibilities that happen here. I want to thank you for your
testimony and draw attention to one issue.
The PACT Act obviously was a historic expansion in terms of
VA benefits and access for veterans who have been impacted by
toxic exposure. One of the provisions in the law, the Workforce
Investment and Expansion Act under Title 9, which will help
expand the VA's workforce by enhancing hiring practices and
incentives, was something that we authored. I think it is going
to ensure that VA can better recruit and retain healthcare
professionals.
There are provisions that will be particularly helpful, I
believe, for veterans in rural areas. Like many of the veterans
in my district, it established a national VA rural recruitment
and hiring plan to develop and implement best practices for
recruiting healthcare professionals to rural facilities. I am
wondering if you can provide any update on the implementation
of the Title 9 VA workforce provisions in the PACT Act?
Ms. Therit. Thank you for that question, Congressman
Pappas. We are well on our way to completing implementation of
about 70 percent of the provisions in Title 9 of the PACT Act.
We started with the ones that were easiest to implement by
issuing policy quickly on removing the restrictions related to
housekeeping aids, increasing the limits on recruitment,
relocation, and retention incentives, as well as student loan
repayments, and special contribution awards. We are now
implementing a lot of the additional pay authorities when it
comes to increasing the limits on special salary rates,
critical pay positions, as well as waiver of some of the pay
limits for work done in response to the toxic exposure claims.
In addition, the plan that you mentioned, the Rural
Recruitment Plan, is on track to be delivered to the committee.
I believe the timeframe is 18 months from enactment. There are
groups within the Veterans Health Administration coming
together to develop that plan, and we look forward to briefing
you on it when it is completed.
The other piece of information that I will share is in
order to do all of this incredible work with recruitment and
retention, we need to strengthen our human resources workforce,
and there are provisions within Title 9 that have allowed us to
do that. We have published the qualification standards. They
have been sent to your committee as well as the performance
metrics, and we look forward to delivering a plan later this
year on what we are doing to recruit and retain our human
resources professionals.
There is additional information that you would seek on how
we are implementing the Title 9 provisions of the PACT Act.
More than happy to brief you on those, but we are greatly
appreciative. We are seeing tremendous feedback both from our
employees and our labor partners in terms of those authorities
and what they mean for improving and strengthening the VA.
Mr. Pappas. Thanks for those comments, and I think that is
an important flag on what is needed on the human resources
side. We look forward to staying in touch on that.
One final question I have. The committee often hears about
concerns from frontline employees about locality pay surveys
for clinical staff. I actually heard about this from a
frontline clinical staff member of VA in my office earlier
today. Over the years, the number of these schedules per
facility has grown significantly with facilities setting pay
that is specific not just to an occupation and locality, but to
the occupation facility and specific unit within the facility.
These surveys are supposed to be triggered by turnover rates,
resignations due to dissatisfaction with pay, and other
criteria. There is concern that VA medical facilities are not
able to act quickly enough to update these scales. Even if
facilities do conduct market studies, they do not always
implement pay increases because they sometimes lack the budget
to do so. What is VA doing to address this and ensure that
salaries for clinical staff are keeping pace with changes in
local markets? I know that Congress recently passed the RAISE
Act, but we are hearing from rank-and-file nurses that salary
increases just have not trickled down to nonsupervisory nurses.
Ms. Therit. Thank you for that question, Congressman
Pappas. I am going to start with the RAISE Act. The RAISE Act
was targeted at increasing the pay limits for specific
occupations, physicians assistants, registered nurses. It did
not touch every healthcare position within the Department. For
those that it covered, we moved out quickly to make sure that
we first started by prioritizing those who were at the top of
the pay limit, those then within 10 percent of the cap, and
then the remaining positions.
It took policy changes, it took system changes, it took
training on the procedures, but we were able to move out
quickly on that. We do have additional authorities, which we
also think the delegations to the Secretary for some of the
authorities as opposed to having to go to the Office of
Personnel Management and wait for them to act on our request
will expedite our ability to implement some of these pay
authorities, especially the special salary rates that can be
used in addition to the locality pay tables for specific
occupations, as well as in specific geographic areas.
Where we are also seeking partnership with the Department
of Defense is on our blue-collar Federal wage system employees,
our wage grade employees. They have not been as impacted as our
GS and our healthcare workers in some of the legislation that
has been passed. The Federal pay system is incredibly
complicated. You have the Federal Salary Counsel where we
require action on their part to implement locality pay changes
and pay changes to the general schedule. Then you have the
FPRAC, the Federal Prevailing Rate Advisory Committee, that
handles the wage and salary information for the wage grade
employees.
We are represented on both of those committees and
councils. It is a long and arduous process. If there are more
things that we can do with you and others in your areas where
these pay impacting situations are occurring, we are happy to
work with you because we know a living wage and competitive pay
is incredibly important, especially in some of our geographic
locations where the cost of living is incredibly expensive. If
there is more that we can do to work with you, we are
representing and advocating for the VA workforce and trying to
take all the steps we can through authority that is delegated
to the Secretary, collaborating across government, and then
focusing specifically on some of those geographic locations and
occupations that are particularly challenging.
Mr. Pappas. Thank you for those comments. I yield back.
Mrs. Kiggans. Thank you, Mr. Pappas. The chair recognizes
Mr. Rosendale for 5 minutes.
Mr. Rosendale. Thank you, Madam Chair. Ms. Therit, the VA
Office of Inspector General's testimony last week before our
committee cited many examples of VA staff escaping
accountability. One egregious example was the repeated patient
abuse in my district committed by a physical therapist and
nurse at Miles City Community Living Center. This is deeply
disturbing to me. Did the VA hold these employees accountable?
Ms. Therit. Congressman Rosendale, thank you for that
question. The employees at the Miles City VA have been held
accountable. All of the recommendations from the Office of the
Inspector General have been implemented. The full Title 38
disciplinary procedures were followed. There is pending
litigation involving the individuals who were disciplined.
There are limitations in what I can share with you. If there is
additional information that you are seeking in terms of the
response that we took to discipline and hold employees at the
Miles City Community Living Center accountable, happy to meet
with you and discuss that privately.
Mr. Rosendale. Thank you very much. I would like to hear
the accounting of the employees and know exactly what actions
are being taken to take disciplinary action to hold them
accountable so we can get a private meeting set up so that I
can get an update on that.
Ms. Therit. Agree, Congressman Rosendale. I also am aware
of conversations that the Secretary and Undersecretary of
Health have had with you regarding the Montana VA. There is a
team onsite this week addressing those issues, the Office of
Accountability and Whistleblower Protection, the Office of the
Medical Inspector, and the Workforce Management and Accounting
Office. We take those allegations of what has occurred at the
Montana VA very seriously. We also used our Title 5 authorities
under Chapter 75 to move out quickly in addressing a
disciplinary issue at that location as well.
Mr. Rosendale. Unfortunately, I have had some more
information from the Helena facility as well, Fort Harrison. I
will be contacting the Secretary about that as well, that just
bounce on to the additional problems that we have already been
made aware of.
In reference to the Miles City facility, who was
responsible for the oversight of the Community Living Center
(CLC) from Fort Harrison?
Ms. Therit. The director of that facility was responsible.
Mr. Rosendale. Okay. Why were not they keeping an eye on
the CLC, which had multiple reports and issues in the last few
years?
Ms. Therit. Congressman Rosendale, I do not have those
details, and I will get them and provide them to you.
Mr. Rosendale. Okay. This hearing is titled Accountability
at the VA: Leadership Decisions Impacting its Employees and
Veterans. Part of the VA being accountable for veterans is
responding to congressional inquiries promptly. I sent a VA
letter with five of my key colleagues on January the 26, 2023
and have yet to receive a response. It has been over 40 days.
The letter talks about how the U.S. Department of Veterans
Affairs failed to protect employees', medical students', and
volunteers' personally identifiable information, including
medical history, specifically relating to their COVID-19
vaccination status. Approximately 500,000 employees', medical
students', and volunteers' vaccination status and reasons for
requested exemptions from the COVID-19 vaccine were sent to the
senior leadership of the Veterans Health Administration without
following proper protocols.
This negligence allowed employees' vaccination status to be
accessed through SharePoint with no password protection by
hundreds of individuals who may then have shared the data with
other folks. What about those who requested the exemption for
medical purposes? What are you going to do to protect people
who requested exemptions from being targeted by our
adversaries?
Ms. Therit. Congressman, I apologize that you have not
gotten a response to your letter. I know a response has been
drafted, and I will make sure that you receive that response in
a timely fashion.
With respect to the individuals who have requested
exemptions, if they have followed the exemption procedure, no
disciplinary action would be taken against those individuals.
Their rights to request an exemption for medical or religious
reasons would be protected.
Mr. Rosendale. I understand that, but what about our
adversaries who now possibly could have access to that
information that individuals have been requesting an exemption?
Ms. Therit. Congressman, if an individual's privacy rights
have been violated, there are steps that will be taken to
discipline individuals who violated those privacy rights.
Mr. Rosendale. We have 500,000 people's information that
has not been protected, Okay. This is the point that I am
getting at, 500,000 individuals' information was not protected.
We do not know who has it, but we know that they had requested
an exemption, whether it was for religious purposes or for
medical purposes, and that information is out now, and it is
not protected. You do not know who has access to it, and I do
not know who has access to it. What are we going to do about
the 500 individuals whose information has been released?
Ms. Therit. Congressman Rosendale, I will find out what
information has been taken, or the steps that have been taken
in response to that matter and provide it to you.
Mr. Rosendale. Thank you very much. Madam Chair, I yield
back.
Mrs. Kiggans. Thank you, Mr. Rosendale. The chair
recognizes Ms. Radewagen for 5 minutes.
Ms. Radewagen. Thank you, Madam Chair. Ms. Therit, is VA
adequately educating its employees on their rights as
whistleblowers? Is VA doing a good job at protecting
whistleblowers from retaliation?
Ms. Therit. Congressman Radewagen, thank you for that
question. Under the Accountability Act, we were required to
develop and deliver training to all of our employees, and that
training is happening. It is within our talent management
system so we have accountability to make sure that employees
are receiving that information. They are both being educated
and they are being able to use their rights appropriately.
We also have very specific requirements within the Act to
protect whistleblowers from retaliation. When those reports are
made, they are investigated by the Office of Whistleblower
Protection Accountability. We also make sure that in certain
instances when corrective action is being proposed that there
are opportunities to hold that action until a thorough and
proper investigation has taken place.
Ms. Radewagen. Now, Government Accountability Office (GAO)
has informed this committee that over the last 5 years, the
proportion of VA prohibited personnel practice cases, including
whistleblower retaliation allegations, has generally increased.
Ms. Therit, what do you make of this trend?
Ms. Therit. Congresswoman Radewagen, the opportunity to
understand what your rights are and exercise those rights is
important to our employees. When those issues are being brought
forward, we do take them seriously. There are specific
provisions within the Accountability Act that prescribe the
type of action that should be taken to discipline an individual
who is engaged in a prohibited personnel practice. We are
following those requirements.
Ms. Radewagen. How can VA give its employees the confidence
that they will not be retaliated against if they make the
difficult decision to blow the whistle?
Ms. Therit. Congresswoman Radewagen, we are making sure
that every employee who raises an issue is protected both by
the investigative authority that exists both at the Office of
Special Counsel as well as the Office of Accountability and
Whistleblower Protection, and that when individuals bring
forward those issues, they are addressed expeditiously.
Ms. Radewagen. Well, as you know, the Office of
Accountability and Whistleblower Protection is VA's internal
office charged with investigating allegations and making
disciplinary recommendations against supervisory employees for
wrongdoing or retaliation. In 2022, the most recent data
available, OAWP made 32 disciplinary recommendations, only 12
were fully implemented by VA. Why are not more of OAWP's
recommendations being fully implemented?
Ms. Therit. Congresswoman Radewagen, there is a requirement
to ensure that we are taking a legally defensible action that
can be sustained, that once the action is recommended, the
supervisor needs to apply the Douglas factors. We are looking
at any mitigating or aggravating factors before we take that
final action. That is a requirement to make sure that
individuals have due process before that final action is taken.
So, in those cases, there may be a difference between the
recommended action and the final action due to the application
of those Douglas factors being no prior history of disciplinary
action, the individual may have sought guidance from the Office
of General Counsel or Human Resources before the action was
taken. We are seeing increases in the recommendations being
adopted, making sure that we are following our Douglas factors,
making sure those legally defensible actions can be taken and
can be sustained.
Ms. Radewagen. Compared to the OAWP implementation numbers
we saw from 2021, it seems a higher percentage of OAWP
recommendations are being fully implemented. Do you see that
trend continuing in 2023?
Ms. Therit. Congresswoman Radewagen, I do see that trend
increasing. The Office of Accountability and Whistleblower
Protection is taking their investigations and processing them
faster. That reduces the time between the incident that has
been reported, the completion of the investigation, and the
opportunity to take disciplinary action in that matter, which
does support the opportunity to be legally defensible in taking
that action and making sure that it is sustained.
Ms. Radewagen. Thank you, Madam Chair, I yield back.
Mrs. Kiggans. Thank you, Ms. Radewagen, and thank you all
for being here today. Accountability at the VA is so important
because it is fundamental to veterans and their experience with
the Department. Accountability is how we improve care outcomes
and the delivery of benefits for all veterans day in and day
out. It is also how the VA retains its talented staff that
provide the high-quality care and veterans benefits to
veterans.
The VA must learn from its past failures and implement
lessons learned. And I look forward to working with Ranking
Member Mrvan and all of our colleagues on the subcommittee to
drive toward positive change. Again, thank you all for being
here. I ask unanimous consent that all members shall have 5
legislative days in which to revise and extend their remarks
and include any extraneous material hearing. Hearing no
objections, so ordered. This hearing is now adjourned.
[Whereupon, at 4:21 p.m., the subcommittee was adjourned.]
=======================================================================
A P P E N D I X
=======================================================================
Prepared Statement of Witnesses
----------
Prepared Statement of Tracey Therit
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]