[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.]  
      
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                    Prepared Statement of Witnesses

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                  Prepared Statement of Tracey Therit
                  
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