[Congressional Record Volume 162, Number 78 (Tuesday, May 17, 2016)]
[Senate]
[Pages S2897-S2899]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 3994. Mr. JOHNSON submitted an amendment intended to be proposed
to amendment SA 3896 proposed by Ms. Collins (for herself, Mr. Kirk,
Mr. Reed, and Mr. Tester) to the bill H.R. 2577, making appropriations
for the Departments of Transportation, and Housing and Urban
Development, and related agencies for the fiscal year ending September
30, 2016, and for other purposes; which was ordered to lie on the
table; as follows:
At the appropriate place in division B, insert the
following:
TITLE __--WHISTLEBLOWER PROTECTIONS
SEC. __01. SHORT TITLE.
This title may be cited as the ``Dr. Chris Kirkpatrick
Whistleblower Protection Act of 2016''.
Subtitle A--Employees Generally
SEC. __11. DEFINITIONS.
In this subtitle--
(1) the terms ``agency'' and ``personnel action'' have the
meanings given such terms under section 2302 of title 5,
United States Code; and
(2) the term ``employee'' means an employee (as defined in
section 2105 of title 5, United States Code) of an agency.
SEC. __12. STAYS; PROBATIONARY EMPLOYEES.
(a) Request by Special Counsel.--Section 1214(b)(1) of
title 5, United States Code, is amended by adding at the end
the following:
``(E) If the Merit Systems Protections Board grants a stay
under this subsection, the head of the agency employing the
employee shall give priority to a request for a transfer
submitted by the employee.''.
(b) Individual Right of Action for Probationary
Employees.--Section 1221 of title 5, United States Code, is
amended by adding at the end the following:
``(k) If the Merit Systems Protection Board grants a stay
to an employee in probationary status under subsection (c),
the head of the agency employing the employee shall give
priority to a request for a transfer submitted by the
employee.''.
(c) Study Regarding Retaliation Against Probationary
Employees.--The Comptroller General of the United States
shall submit to the Committee on Homeland Security and
Governmental Affairs of the Senate
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and the Committee on Oversight and Government Reform of the
House of Representatives a report discussing retaliation
against employees in probationary status.
SEC. __13. ADEQUATE ACCESS OF SPECIAL COUNSEL TO INFORMATION.
Section 1212(b) of title 5, United States Code, is amended
by adding at the end the following:
``(5) The Special Counsel, in carrying out this subchapter,
is authorized to--
``(A) have access to all records, reports, audits, reviews,
documents, papers, recommendations, or other material
available to the applicable agency which relate to a matter
within the jurisdiction or authority of the Special Counsel;
and
``(B) request from any agency such information or
assistance as may be necessary for carrying out the duties
and responsibilities of the Special Counsel under this
subchapter.''.
SEC. __14. PROHIBITED PERSONNEL PRACTICES.
Section 2302(b) of title 5, United States Code, is
amended--
(1) in paragraph (12), by striking ``or'' at the end;
(2) in paragraph (13), by striking the period at the end
and inserting ``; or''; and
(3) by inserting after paragraph (13) the following:
``(14) access the medical record of another employee for
the purpose of retaliation for a disclosure or activity
protected under paragraph (8) or (9).''.
SEC. __15. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION
AGAINST WHISTLEBLOWERS.
(a) In General.--Subchapter II of chapter 75 of title 5,
United States Code, is amended by adding at the end the
following:
``Sec. 7515. Discipline of supervisors based on retaliation
against whistleblowers
``(a) Definitions.--In this section--
``(1) the term `agency' has the meaning given that term
under section 2302;
``(2) the term `prohibited personnel action' means taking
or failing to take an action in violation of paragraph (8),
(9), or (14) of section 2302(b) against an employee of an
agency; and
``(3) the term `supervisor' means a supervisor, as defined
under section 7103(a), who is employed by an agency, as
defined under paragraph (1) of this subsection.
``(b) Proposed Adverse Actions.--
``(1) In general.--In accordance with paragraph (2), the
head of an agency shall propose against a supervisor whom the
head of that agency, an administrative law judge, the Merit
Systems Protection Board, the Office of Special Counsel, an
adjudicating body provided under a union contract, a Federal
judge, or the Inspector General of the agency determines
committed a prohibited personnel action the following adverse
actions:
``(A) With respect to the first prohibited personnel
action, an adverse action that is not less than a 12-day
suspension.
``(B) With respect to the second prohibited personnel
action, removal.
``(2) Procedures.--
``(A) Notice.--A supervisor against whom an adverse action
under paragraph (1) is proposed is entitled to written
notice.
``(B) Answer and evidence.--
``(i) In general.--A supervisor who is notified under
subparagraph (A) that the supervisor is the subject of a
proposed adverse action under paragraph (1) is entitled to 14
days following such notification to answer and furnish
evidence in support of the answer.
``(ii) No evidence.--After the end of the 14-day period
described in clause (i), if a supervisor does not furnish
evidence as described in clause (i) or if the head of the
agency determines that such evidence is not sufficient to
reverse the proposed adverse action, the head of the agency
shall carry out the adverse action.
``(C) Scope of procedures.--Paragraphs (1) and (2) of
subsection (b) of section 7513, subsection (c) of such
section, paragraphs (1) and (2) of subsection (b) of section
7543, and subsection (c) of such section shall not apply with
respect to an adverse action carried out under this
subsection.
``(c) Limitation on Other Adverse Actions.--With respect to
a prohibited personnel action, if the head of the agency
carries out an adverse action against a supervisor under
another provision of law, the head of the agency may carry
out an additional adverse action under this section based on
the same prohibited personnel action.''.
(b) Technical and Conforming Amendment.--The table of
sections for subchapter II of chapter 75 of title 5, United
States Code, is amended by adding at the end the following:
``7515. Discipline of supervisors based on retaliation against
whistleblowers.''.
SEC. __16. SUICIDE BY EMPLOYEES.
(a) Referral.--The head of an agency shall refer to the
Office of Special Counsel, along with any information known
to the agency regarding the circumstances described in
paragraphs (2) and (3), any instance in which the head of the
agency has information indicating--
(1) an employee of the agency committed suicide;
(2) prior to the death of the employee, the employee made
any disclosure of information which reasonably evidences--
(A) any violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; and
(3) after a disclosure described in paragraph (2), a
personnel action was taken against the employee.
(b) Office of Special Counsel Review.--For any referral to
the Office of Special Counsel under subsection (a), the
Office of Special Counsel shall--
(1) examine whether any personnel action was taken because
of any disclosure of information described in subsection
(a)(2); and
(2) take any action the Office of Special Counsel
determines appropriate under subchapter II of chapter 12 of
title 5, United States Code.
SEC. __17. TRAINING FOR SUPERVISORS.
In consultation with the Office of Special Counsel and the
Inspector General of the agency (or senior ethics official of
the agency for an agency without an Inspector General), the
head of each agency shall provide training regarding how to
respond to complaints alleging a violation of whistleblower
protections (as defined in section 2307 of title 5, United
States Code, as added by this subtitle) available to
employees of the agency--
(1) to employees appointed to supervisory positions in the
agency who have not previously served as a supervisor; and
(2) on an annual basis, to all employees of the agency
serving in a supervisory position.
SEC. __18. INFORMATION ON WHISTLEBLOWER PROTECTIONS.
(a) Existing Provision.--
(1) In general.--Section 2302 of title 5, United States
Code, is amended--
(A) by striking subsection (c); and
(B) by redesignating subsections (d), (e), and (f) as
subsections (c), (d), and (e), respectively.
(2) Technical and conforming amendments.--
(A) Section 4505a(b)(2) of title 5, United States Code, is
amended by striking ``section 2302(d)'' and inserting
``section 2302(c)''.
(B) Section 5755(b)(2) of title 5, United States Code, is
amended by striking ``section 2302(d)'' and inserting
``section 2302(c)''.
(C) Section 110(b)(2) of the Whistleblower Protection
Enhancement Act of 2012 (5 U.S.C. 2302 note) is amended by
striking ``section 2303(f)(1) or (2)'' and inserting
``section 2303(e)(1) or (2)''.
(D) Section 704 of the Homeland Security Act of 2002 (6
U.S.C. 344) is amended by striking ``2302(c)'' each place it
appears and inserting ``2307''.
(E) Section 1217(d)(3) of the Panama Canal Act of 1979 (22
U.S.C. 3657(d)(3)) is amended by striking ``section 2302(d)''
and inserting ``section 2302(c)''.
(F) Section 1233(b) of the Panama Canal Act of 1979 (22
U.S.C. 3673(b)) is amended by striking ``section 2302(d)''
and inserting ``section 2302(c)''.
(b) Provision of Information.--Chapter 23 of title 5,
United States Code, is amended by adding at the end the
following:
``Sec. 2307. Information on whistleblower protections
``(a) Definitions.--In this section--
``(1) the term `agency' has the meaning given that term in
section 2302;
``(2) the term `new employee' means an individual--
``(A) appointed to a position as an employee of an agency
on or after the date of enactment of the Dr. Chris
Kirkpatrick Whistleblower Protection Act of 2016; and
``(B) who has not previously served as an employee; and
``(3) the term `whistleblower protections' means the
protections against and remedies for a prohibited personnel
practice described in paragraph (8), subparagraph (A)(i),
(B), (C), or (D) of paragraph (9), or paragraph (14) of
section 2302(b).
``(b) Responsibilities of Head of Agency.--The head of each
agency shall be responsible for the prevention of prohibited
personnel practices, for the compliance with and enforcement
of applicable civil service laws, rules, and regulations, and
other aspects of personnel management, and for ensuring (in
consultation with the Special Counsel and the Inspector
General of the agency) that employees of the agency are
informed of the rights and remedies available to them under
this chapter and chapter 12, including--
``(1) information regarding whistleblower protections
available to new employees during the probationary period;
``(2) the role of the Office of Special Counsel and the
Merit Systems Protection Board with regard to whistleblower
protections; and
``(3) how to make a lawful disclosure of information that
is specifically required by law or Executive order to be kept
classified in the interest of national defense or the conduct
of foreign affairs to the Special Counsel, the Inspector
General of an agency, Congress, or other agency employee
designated to receive such disclosures.
``(c) Timing.--The head of each agency shall ensure that
the information required to be provided under subsection (b)
is provided to each new employee of the agency not later than
6 months after the date the new employee is appointed.
``(d) Information Online.--The head of each agency shall
make available information regarding whistleblower
protections applicable to employees of the agency on the
public website of the agency, and on any online portal that
is made available only to employees of the agency if one
exists.
[[Page S2899]]
``(e) Delegees.--Any employee to whom the head of an agency
delegates authority for personnel management, or for any
aspect thereof, shall, within the limits of the scope of the
delegation, be responsible for the activities described in
subsection (b).''.
(c) Technical and Conforming Amendment.--The table of
sections for chapter 23 of title 5, United States Code, is
amended by adding at the end the following:
``2307. Information on whistleblower protections.''.
Subtitle B--Department of Veterans Affairs Employees
SEC. __21. PREVENTION OF UNAUTHORIZED ACCESS TO MEDICAL
RECORDS OF EMPLOYEES OF THE DEPARTMENT OF
VETERANS AFFAIRS.
(a) Development of Plan.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Veterans Affairs
shall--
(A) develop a plan to prevent access to the medical records
of employees of the Department of Veterans Affairs by
employees of the Department who are not authorized to access
such records;
(B) submit to the appropriate committees of Congress the
plan developed under subparagraph (A); and
(C) upon request, provide a briefing to the appropriate
committees of Congress with respect to the plan developed
under subparagraph (A).
(2) Elements.--The plan required under paragraph (1) shall
include the following:
(A) A detailed assessment of strategic goals of the
Department for the prevention of unauthorized access to the
medical records of employees of the Department.
(B) A list of circumstances in which an employee of the
Department who is not a health care provider or an assistant
to a health care provider would be authorized to access the
medical records of another employee of the Department.
(C) Steps that the Secretary will take to acquire new or
implement existing technology to prevent an employee of the
Department from accessing the medical records of another
employee of the Department without a specific need to access
such records.
(D) Steps the Secretary will take, including plans to issue
new regulations, as necessary, to ensure that an employee of
the Department may not access the medical records of another
employee of the Department for the purpose of retrieving
demographic information if that demographic information is
available to the employee in another location or through
another format.
(E) A proposed timetable for the implementation of such
plan.
(F) An estimate of the costs associated with implementing
such plan.
(b) Appropriate Committees of Congress Defined.--In this
section, the term ``appropriate committees of Congress''
means--
(1) the Committee on Homeland Security and Governmental
Affairs and the Committee on Veterans' Affairs of the Senate;
and
(2) the Committee on Oversight and Government Reform and
the Committee on Veterans' Affairs of the House of
Representatives.
SEC. __22. OUTREACH ON AVAILABILITY OF MENTAL HEALTH SERVICES
AVAILABLE TO EMPLOYEES OF THE DEPARTMENT OF
VETERANS AFFAIRS.
The Secretary of Veterans Affairs shall conduct a program
of outreach to employees of the Department of Veterans
Affairs to inform those employees of any mental health
services, including telemedicine options, that are available
to them.
SEC. __23. PROTOCOLS TO ADDRESS THREATS AGAINST EMPLOYEES OF
THE DEPARTMENT OF VETERANS AFFAIRS.
The Secretary of Veterans Affairs shall ensure protocols
are in effect to address threats from individuals receiving
health care from the Department of Veterans Affairs directed
towards employees of the Department who are providing such
health care.
SEC. __24. COMPTROLLER GENERAL OF THE UNITED STATES STUDY ON
ACCOUNTABILITY OF CHIEFS OF POLICE OF
DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTERS.
The Comptroller General of the United States shall conduct
a study to assess the reporting, staffing, accountability,
and chain of command structure of the Department of Veterans
Affairs police officers at medical centers of the Department.
______