[Congressional Record Volume 162, Number 138 (Tuesday, September 13, 2016)]
[House]
[Pages H5390-H5417]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     VA ACCOUNTABILITY FIRST AND APPEALS MODERNIZATION ACT OF 2016


                             General Leave

  Mr. MILLER of Florida. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and insert extraneous material into the Record on H.R. 
5620.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Florida?
  There was no objection.
  The SPEAKER pro tempore (Mr. Boustany). Pursuant to House Resolution 
859 and rule XVIII, the Chair declares the House in the Committee of 
the Whole House on the state of the Union for the consideration of the 
bill, H.R. 5620.
  The Chair appoints the gentleman from Illinois (Mr. Hultgren) to 
preside over the Committee of the Whole.

                              {time}  1716


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the state of the Union for the consideration of the bill 
(H.R. 5620) to amend title 38, United States Code, to provide for the 
removal or demotion of employees of the Department of Veterans Affairs 
based on performance or misconduct, and for other purposes, with Mr. 
Hultgren in the chair.
  The Clerk read the title of the bill.
  The CHAIR. Pursuant to the rule, the bill is considered read the 
first time.
  The gentleman from Florida (Mr. Miller) and the gentleman from 
California (Mr. Takano) each will control 30 minutes.
  The Chair recognizes the gentleman from Florida.
  Mr. MILLER of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, my bill, the VA Accountability First and Appeals 
Modernization Act of 2016, would do two very important things for our 
Nation's veterans. First, it would provide the Secretary of the 
Department of Veterans Affairs with more tools needed to enforce 
accountability at VA. Second, it would help modernize VA's current

[[Page H5391]]

appeals process, which is not just broken but is preventing VA from 
providing veterans with the benefits they deserve in a timely manner.
  I want to first take a moment to discuss the important and forward-
thinking accountability measures that are included in the bill before 
us today.
  H.R. 5620 would allow the VA Secretary to remove or demote any 
employee for poor performance or misconduct; would allow the recoupment 
of a bonus given inappropriately to an employee; reduce a senior 
executive's pension if they are found guilty of a felony that 
influenced their job performance; make modifications to the Secretary's 
authority to remove senior executives that was granted in the Choice 
Act; and recoup any location and moving expenses if the Secretary 
determines that the employee committed any acts of waste, fraud, or 
malfeasance.
  Furthermore, despite comments made by some of my colleagues on the 
other side of the aisle, my bill also contains language that increases 
protections. Let me say that again. It increases protections of 
whistleblowers. These new whistleblower protections would stipulate 
that any employee cannot be removed under this new authority if they 
have an open claim at the Office of Special Counsel.
  To add even more protections for those who blow the whistle at VA, my 
bill would also set up a new process to be used in addition to any 
other process that is currently allowed by law. This will protect 
whistleblowers from retaliation and removal while they bring issues to 
light up through their chain of command.
  These protections are unprecedented and strengthen existing 
whistleblower protections. In fact, 16 whistleblower groups signed a 
letter of support for the whistleblower provisions of this particular 
bill and stated that section 8 of my bill is `` . . . a major 
breakthrough in the struggle for VA whistleblowers to gain credible 
rights when defending the integrity of the agency mission and 
disclosing quality of care concerns. Further, section 8 of the bill 
would provide a system to hold employees accountable for their actions 
when they retaliate against those exposing waste, fraud, or abuse.''
  Mr. Chair, as I have always said, I agree with all of my colleagues 
that the vast majority of the employees at the Department of Veterans 
Affairs are hardworking public servants who are dedicated to providing 
quality health care and the benefits that our veterans have earned. But 
it is beyond comprehension that, with as much outright malfeasance as 
our committee has uncovered at the Department of Veterans Affairs and 
increased scrutiny that we have placed on the Department over the past 
5 years and their need to hold employees accountable, we still see far 
too many instances of VA employees not living up to the standards that 
America expects. It is even more incomprehensible that anyone would 
oppose this bill.
  For example, we have shown an employee showing up drunk to work to 
scrub in for a surgery on a veteran; an employee taking a recovering 
addict to a crack house and buying him drugs and the services of a 
prostitute; a VA employee participating in an armed robbery; and senior 
managers retaliating against whistleblowers, at which point VA then has 
to pay hundreds of thousands of dollars to the whistleblower in 
restitution.
  Not only are all of these acts egregious and not only are all of 
these instances factual, they really are just the tip of the iceberg. 
But what causes me to stand before you today is that in none of these 
instances did the VA hold these employees accountable in any reasonable 
timeframe, if they did at all. I blame many factors for this, but 
mainly I blame an antiquated system that has left VA managers unwilling 
to jump through the many hoops to do what is right.
  Mr. Chair, it is well past time that we not allow the current system 
to continue. It is certainly our duty to finally take action and enact 
meaningful change at VA that puts their veterans and their families 
first and foremost. Everything else should come second. That includes 
the power of the public sector unions. As I have said before, VA is not 
sacred. Our veterans are.
  Unfortunately, since the VA Committee began placing a greater focus 
on changing the civil service as it pertains to the VA, the unions have 
pushed back at every single turn, even telling committee staff that 
anything other than the status quo would never garner their support. 
Well, if the list of employees I mentioned before of who were not held 
accountable is not a clear example of how broken the status quo is, 
then I don't know what is.
  Mr. Chair, it is time that we put politics and the misguided rhetoric 
of opponents of change aside and, instead, align ourselves with our 
Nation's veterans and the organizations that represent them.
  Eighteen veterans service organizations support the bill that is 
before us today: The American Legion, The Veterans of Foreign Wars of 
the United States, Disabled American Veterans, Paralyzed Veterans of 
America, Student Veterans of America, AMVETS, Association of the United 
States Navy, the Military Order of Purple Heart, National Association 
for Uniformed Services, Iraq and Afghanistan Veterans of America, 
Concerned Veterans for America, the Fleet Reserve Association, Military 
Officers Association of America, Reserve Officers Association, The 
Enlisted Association of the National Guard of the United States, 
VetsFirst, Vietnam Veterans of America, and The United States Army 
Warrant Officers Association.

  That is 18 groups, Mr. Chairman. These groups represent millions of 
veterans and their families, not public employee unions who support the 
status quo that has led to the litany of problems at the Department of 
Veterans Affairs. The choice is clear. Each of us is now faced with 
either siding with the veterans of this country or corrupt union 
bosses.
  Everyone in government knows that the civil service laws that were 
once meant to promote the efficiency of government are now obsolete and 
make it almost impossible to remove a poor-performing employee.
  Even last year, VA Deputy Secretary Sloan Gibson sat before our 
committee and admitted it was too difficult to fire a substandard 
employee. Another former senior VA employee, then Acting Under 
Secretary for Benefits, stated at a committee hearing last year that 
``. . . With our GS employees, it's the rules, the regulations, the 
protections are such that it's almost impossible to do anything.''
  The Government Accountability Office studied the government's ability 
to hold low-performing employees accountable. They found that it took 6 
months to a year, on average, and sometimes significantly longer, to 
fire poor-performing government employees.
  When the Choice Act was signed into law in 2014, even President Obama 
said at the bill signing: ``If you engage in an unethical practice, if 
you cover up a serious problem, you should be fired. Period. It 
shouldn't be that difficult.''
  While I know the administration has changed its tone since the Choice 
Act was signed into law, since this legislation would now affect all VA 
employees, even unionized ones, I strongly believe we should maintain 
the same expectations for rank and file employees at VA as we do senior 
officials, regardless of your title or rank within the agency. It is a 
privilege to work at VA and to serve the veterans of this country. It 
is not a right.
  Last summer, the House passed the removal section for all VA 
employees in H.R. 1994. At the time, I received a lot of pushback from 
my colleagues on the minority side about the accountability language. I 
was told I was trying to make all VA employees at-will and completely 
destroy the civil service system.
  As I said then and I say now, that was not and is not my intention. 
But I believe that the current system is hampering VA from moving 
forward into an organization that is deserving of the veterans that it 
serves. In short, I want a civil service system at VA that serves and 
protects veterans, not bad employees.
  I continue to hear concerns that this bill will hurt the Department's 
ability to recruit and retain good employees and will hurt morale. I 
also know that, last night, the administration released a statement 
about its concerns with the accountability measures in this bill and 
that this language would impede rather than support VA's ability to

[[Page H5392]]

carry out its duties. I think these arguments are nothing more than 
scare tactics.
  Mr. Chairman, what is impeding VA from carrying out its duties is 
decades of tolerating poor performance and even criminal or unethical 
behavior. The antiquated civil service laws are binding the 
Department's hands and permitting the toxic behavior of a few to 
overcome the good work of a majority.
  If we do not at least try to give the Secretary the tools needed to 
hold VA employees accountable, then we are just as culpable for any 
future VA failures as the antiquated civil service laws that foster 
these failures now.
  That is why this legislation is not punitive, but it is necessary if 
we truly want to make the ability for the changes in this Congress. The 
American people and, most importantly, our veterans expect this to 
occur. The best way to improve morale is to make it easier to get rid 
of the roots of dysfunction that we currently see throughout the 
Department of Veterans Affairs.
  I have been told that VA can't fire its way to excellence, but 
neither can you tolerate malfeasance and expect excellence to become 
routine. Most Americans would be appalled with the complexity that is 
now baked into our civil service system. In the real world, if you 
don't do your job effectively or if you engage in unethical conduct, 
you get removed from the payroll. It is that simple.
  We only need to look at the news that broke last week regarding 5,300 
employees at the Wells Fargo Bank that were fired for creating hundreds 
of thousands of fake deposit accounts and cheating customers by 
charging them bogus fees.

                              {time}  1730

  That is how disciplinary actions are handled in the private sector. 
They were fired. And I believe it is something the public sector needs 
to learn from.
  Compare that to the fewer than 10 VA employees held accountable for 
the wait time manipulation at the center of the largest scandal in VA 
history, and it is no wonder why Americans are losing faith in their 
government.
  There is not a doubt in my mind that all of my colleagues here, all 
of them, care about our Nation's veterans, and we can show that by 
passing this bill before us today.
  I also want to touch on a provision in my bill that would improve the 
appeals process of disability claims at the VA. VA should process 
veterans' claims for disability benefits accurately, consistently, and 
in a timely fashion. However, if a veteran disagrees with the decision 
and decides to file an appeal, VA's appeals process should be thorough, 
it should be swift, and it should be fair.
  The truth is that VA's current appeals process is broken. It is a 
lengthy, complicated, and confusing process for our veterans and their 
families. The appeals reform section was drafted by the Department in 
collaboration with VSOs and other veterans advocates.
  The intent of the bill is to modernize their existing cumbersome 
appeals process and to ensure that veterans receive appeals decisions 
in a timely fashion.
  My bill, based entirely off committee member Dina Titus' bill, would 
allow the veteran to remove a traditional appeal with a hearing and 
opportunity to new evidence in support of their claim.
  Additionally, the bill would give veterans the option of choosing a 
faster process in which the veteran would not submit new evidence or 
have a hearing but would receive an expedited decision.
  Although there are many questions about how VA is going to implement 
this proposal, we don't have the luxury of time in these closing days, 
and the backlog of pending appeals is exploding. As of the first of 
January of this year, there were 375,000 appeals pending in VA, 
including at the Board of Veterans' Appeals. On the first of June of 
this year, there were almost 457,000 appeals pending, an increase of 
82,000 pending appeals in less than 18 months.
  Moreover, the Board of Veterans' Appeals estimates that the number of 
appeals certified to the Board will rise from 88,000 to almost 360,000 
in fiscal year 2017, a 400 percent increase in 1 year.
  It is obvious that Congress needs to act now. This bill offers the 
best chance to improve VA's appeals process and provide veterans with 
the best possible decision on their claim.
  Mr. Chairman, today we have a meaningful package that makes changes 
to VA's civil service system, while maintaining due process rights, as 
well as making progressive steps in changing the antiquated system that 
veterans are currently stuck in when appealing their disability claims.
  And finally, it is vital for our colleagues to keep in mind that H.R. 
5620 is truly a bipartisan bill. It combines two of the biggest 
legislative priorities proposed by both the Republicans and the 
Democrats. And as we near the end of this Congress, we have the 
opportunity to put politics aside to make real and lasting change to a 
broken system.
  Today, we can decide to stand with our veterans, or we can stand with 
the status quo and the unions that perpetuate the status quo which, I 
believe, has failed them and the American public for far, far too long.
  I hope you will join me and the 18 veterans service organizations who 
support this legislation. Do what is right for our veterans. Pass H.R. 
5620. Let's put accountability first so that transformative reforms can 
succeed.
  Mr. Chairman, I reserve the balance of my time.

         House of Representatives, Committee on Oversight and 
           Government Reform,
                                 Washington DC, September 8, 2016.
     Hon. Jeff Miller,
     Chairman, Committee on Veterans' Affairs,
     Washington, DC.
       Dear Mr. Chairman: I write concerning H.R. 5620, the VA 
     Accountability First and Appeals Modernization Act of 2016. 
     As you know, the Committee on Veterans' Affairs received an 
     original referral and the Committee on Oversight and 
     Government Reform a secondary referral when the bill was 
     introduced on July 5, 2016. I recognize and appreciate your 
     desire to bring this legislation before the House of 
     Representatives in an expeditious manner, and accordingly, 
     the Committee on Oversight and Government Reform will forego 
     action on the bill, as amended.
       The Committee takes this action with our mutual 
     understanding that by foregoing consideration of H.R. 5620 at 
     this time, we do not waive any jurisdiction over the subject 
     matter contained in this or similar legislation. Further, I 
     request your support for the appointment of conferees from 
     the Committee on Oversight and Government Reform during any 
     House-Senate conference convened on this or related 
     legislation.
       Finally, I would ask that a copy of our exchange of letters 
     on this matter be included in the Congressional Record during 
     floor consideration, to memorialize our understanding.
           Sincerely,
                                                   Jason Chaffetz,
     Chairman.
                                  ____



                                Congress of the United States,

                                 Washington DC, September 8, 2016.
     Hon. Jason Chaffetz,
     Chairman, House Committee on Oversight and Government Reform, 
         Washington, DC.
       Dear Chairman Chaffetz: In reference to your letter on 
     September 8, 2016, I write to confirm our mutual 
     understanding regarding H.R. 5620, as amended.
       I appreciate the House Committee on Oversight and 
     Government Reform's waiver of consideration of provisions 
     under its jurisdiction and its subject matter. I acknowledge 
     that the waiver was granted only to expedite floor 
     consideration of H.R. 5620, as amended, and does not in any 
     way waive or diminish the House Committee on Oversight and 
     Government Reform's jurisdictional interests over this 
     legislation or similar legislation. I will support a request 
     from the House Committee on Oversight and Government Reform 
     for appointment to any House-Senate conference on H.R. 5620, 
     as amended. Finally, I will also support your request to 
     include a copy of our exchange of letters on this matter in 
     the Congressional Record during floor consideration.
       Again, thank you for your assistance with these matters.
       With personal regards, I am
           Sincerely,
                                                      Jeff Miller,
                                                         Chairman.

  Mr. TAKANO. Mr. Chairman, I yield myself as much time as I may 
consume, and I rise in strong opposition to H.R. 5620.
  Now, there is no dispute whether Congress should take action to 
increase accountability at the VA. On both sides of the aisle, we 
recognize that VA employees have a patriotic duty to provide veterans 
the care they have earned, and there should be consequences when they 
fail to meet that standard.
  But we must also recognize that VA employees, nearly a third of whom 
are

[[Page H5393]]

veterans themselves, have constitutional rights. In several ways, H.R. 
5620 violates those rights and, therefore, will not achieve our shared 
goal of a more accountable VA workforce. In fact, passing this bill 
will move us further away from a strong accountability system that will 
improve the quality of service VA provides to veterans.
  This flaw in the legislation is not without precedent. The 
accountability provisions included in the 2014 Veterans Choice Act 
could not be enforced after the Attorney General determined they 
violated due process rights. And President Obama threatened to veto a 
previous version of the bill, H.R. 1994, for the very same reason.
  Now, unfortunately, the majority continues to treat the 
constitutional rights of VA employees as inconvenient obstacles to 
evade, instead of fundamental civil service protections to uphold.
  The strict time requirements H.R. 5620 puts on administrative bodies, 
such as the Office of Personnel Management and the U.S. Merit Systems 
Protection Board, to decide appeals cases would meaningfully impact the 
ability of every VA employee to get a fair and proper hearing.
  This bill improperly hands power to the VA Secretary with respect to 
setting standards for bonuses. According to the Non-Delegation 
Doctrine, Congress cannot shift its authority to agencies without 
providing an intelligent framework for carrying out that authority. As 
written, H.R. 5620 violates that doctrine.
  Finally, I believe the majority's effort to institute new 
whistleblower provisions would be overturned for the same reason that 
the U.S. Attorney General's Office said it would not defend an 
unconstitutional section of the Choice Act: it violates the 
Appointments clause in the Constitution by allowing lower-level 
employees to have the final decisionmaking authority to decide whether 
an employee will be fired.
  Now, these are more than minor legal concerns; they are reasons why 
VA employees who commit misconduct will not be held accountable when 
their terminations are challenged in court. We can pass H.R. 5620, but 
we will be right back here a year from now or 2 years from now when the 
law is deemed unconstitutional.
  Our Senate colleagues have a bipartisan bill that includes 
accountability provisions that could serve as a foundation for 
legislation in the House. We had an opportunity to advance language 
that both parties and both Chambers can agree to, and I am disappointed 
that we are not pursuing that path.
  I am also disappointed that this bill includes a moratorium on 
bonuses for VA's senior executives. Recruiting and retaining strong 
leadership at the VA is critical to its long-term success, and this 
provision will damage the Department's efforts to maintain a talented 
workforce that can address the underlying systematic issues that are 
causing poor performance.
  Now I am not alone in this assessment. The American Legion, the 
Military Officers Association of America, and others have expressed 
reservations about this punitive approach to the VA's senior 
executives.
  Finally, I am frustrated--I am particularly frustrated that the 
majority has attached to this bill a desperately needed bipartisan fix 
for the VA appeals process. The VA Appeals Modernization Act of 2016, 
introduced by my friend and colleague, Congresswoman Dina Titus, has 
unanimous support and would sail through the House and Senate on its 
own. It is nearly the product of 4 years of work, and both sides agree 
to it.
  Yet, you would attach it to a bill that we cannot agree to. It makes 
no sense that we are holding up this magnificent legislation that both 
sides worked on and that was the hard work of my friend and colleague 
from Nevada.
  This legislation would move the VA away from an inefficient and 
convoluted unified appeals process and replace it with differentiated 
lanes, which give veterans clear options after receiving an initial 
decision on a claim. In sum, it would allow veterans to have a clear 
answer and path forward on their appeal within 1 year from filing.
  By attaching it to this bipartisan accountability bill, the majority 
is preventing VA appeals reform from moving forward, denying veterans 
the streamlined appeals process they deserve.
  I strongly urge the majority to allow Congresswoman Titus' 
legislation to come to the floor as a stand-alone bill so we can 
accomplish a critical objective for the veterans community. Free the 
Titus bill. Let it come to the floor.
  Now, the chairman talks about accountability and improving the 
culture at the VA. I would like to remind my friend from Florida that 
last week we heard testimony from the co-chairs of the Commission on 
Care. This Commission was appointed in a bipartisan way by the 
President, by the Speaker, by the minority leader of this House, and by 
the majority and minority leaders of the Senate; and the co-chairs gave 
us a report on their recommendations.
  When asked about should there be an easier way to fire people, should 
there be a way to streamline the accountability process, to my 
surprise, they both answered ``no'' to a question posed by one of the 
Republican Members. They recommended that more investment and more time 
be devoted to leadership training within the VA.
  They both lead private sector health organizations, and they both 
stated how they are obligated to the due process concerns with their 
employees. They were shocked at the relative under-appreciation for the 
personnel function at the VA.

  They did not emphasize stripping away due process rights for workers. 
Instead, they strongly urged our committee to look at supporting the 
personnel function of the VA and improving leadership development and 
managerial skills of our managers.
  So I recommend that we take this legislation back to committee, back 
to regular order, instead of considering it on a rushed basis and 
suspending the rules.
  Mr. Chairman, all of us, Democrats and Republicans, believe in the 
need for stronger accountability for employees at the VA to ensure that 
our veterans get the care they deserve. Unfortunately, this legislation 
falls short of that goal. I urge my colleagues to vote ``no.''
  I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I would remind my good friend, 
the ranking member over on the minority side, that this bill has been 
sitting out there for 6 weeks, in time for 80 amendments to have been 
filed, so it definitely was not rushed.
  I remember back in high school the three branches of government, and 
the executive branch is supposed to enforce the laws that this body, 
Congress, writes. I don't believe it is the Attorney General's 
responsibility. She may wish she was a judge, but she is not. She is 
the Attorney General. She cannot deem something unconstitutional.
  Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Colorado 
(Mr. Lamborn).
  Mr. LAMBORN. Mr. Chairman, I appreciate the leadership of Chairman 
Jeff Miller, both in the committee and with this particular piece of 
legislation.
  Mr. Chairman, our veterans demand the strong accountability tools 
contained in H.R. 5620. Since the Phoenix wait-list scandals, very few 
individuals have been held accountable. Fewer still are those whose 
disciplinary actions have not been overturned by the Merit System 
Protection Board. This state of affairs is deplorable.
  This bill provides VA leadership with the tools to hold all VA 
employees accountable for their performance and misconduct, not just 
those members of the Senior Executive Service.
  This bill is long overdue. Veterans within my district are still 
experiencing poor service from the VA. VA employees have openly joked 
in front of our veterans about their immunity to any disciplinary 
actions for their poor performance.
  Mr. Chairman, our veterans have earned the privilege of interacting 
with VA employees who put the veteran first, not their own careers. I 
urge my colleagues to support this vital piece of legislation.

                              {time}  1745

  Mr. TAKANO. Mr. Chairman, I yield 5 minutes to the gentlewoman from 
Nevada (Ms. Titus).
  Ms. TITUS. Mr. Chairman, I thank the ranking member for yielding, and 
I

[[Page H5394]]

thank the chairman. Even though we may disagree on this piece of 
legislation, I believe he has been a fair chairman to work with all 
members of the committee.
  When I became a member of the Veterans' Affairs Committee and the 
ranking member of the Disability Assistance and Memorial Affairs 
Subcommittee back in 2013, much of the focus was on the disability 
claims backlog. It had ballooned, and it was causing some veterans to 
wait almost 2 years just for their initial claim decision.
  After that backlog was reduced, after considerable work by Congress 
and the administration, the problem shifted to the appeals process, 
where 450,000 veterans are currently waiting in an overburdened and 
overcomplicated system. The average claim takes more than 3 years to 
adjudicate, and claims that progress to the Board of Veterans Appeals 
can languish for more than 2,000 days. Both of these figures are also 
rising. So, if we miss this historic opportunity to reform the outdated 
and overcomplicated appeals system, the wait for our Nation's heroes 
will continue to lengthen. By 2027, we will be telling our veteran 
constituents that they will likely have to wait a decade for their 
appeal to be resolved. That is just unacceptable.
  It is important to keep in mind that the appeals process was first 
developed back in 1933, and it was last updated in the late 1980s; so, 
surely, true reform is long overdue. Accordingly, this has become a top 
priority for the VA and for veterans service organizations, and it 
should be a priority for Congress as well.
  Over the past months, the VA has been working closely with experts 
from the VSOs and other veterans advocacy groups to reform this broken 
system and replace it with a streamlined process designed to provide 
quicker outcomes for veterans while also preserving their due process 
rights.
  Before you in this bill is the result of that effort. The new plan 
creates three lanes from which veterans can choose to appeal their 
claim. The first is a high-level de novo review for veterans who want 
to have a fresh set of well-trained eyes review their claim. The second 
is a lane for veterans who wish to add additional information or 
evidence to their claim. The third is for veterans who choose to have a 
full review done by the board, either with new evidence or as an 
expedited review without new supporting documents.
  Veterans will be able to choose their own lane, depending on the 
specifics of their particular case. As part of this new system, the VA 
will provide more details to veterans when their initial claim 
decisions are delivered. This enhanced claims decision will better help 
veterans decide if they want to appeal and which lane will best suit 
their needs.
  I appreciate that so many veterans organizations, including Disabled 
American Veterans, The American Legion, Veterans of Foreign Wars, Iraq 
and Afghanistan Veterans of America, AMVETS, Paralyzed Veterans of 
America, and others have all endorsed this appeals reform legislation.
  It is unfortunate that my bill has been attached to controversial 
legislation regarding accountability at the VA. While we all agree that 
accountability for employees at the VA is critical for ensuring that 
our veterans receive the services and the care that they have earned 
and deserved, we should separate the two issues, pass appeals reform, 
and then work in a bipartisan manner on the accountability proceedings.
  Last summer, this House passed an accountability bill; so, rather 
than passing another one that is very similar and which we know the 
administration opposes and feels is unconstitutional, let's get the 
appeals reform process done instead of playing politics that could hurt 
our Nation's heroes.
  Mr. MILLER of Florida. Mr. Chairman, I would remind my good friend 
that the very same group that she says supported her appeals reform is 
the very same one that supports my accountability legislation.
  Mr. Chairman, I yield 1 minute to the gentleman from Florida (Mr. 
Bilirakis) from the State of Florida's District 12.
  Mr. BILIRAKIS. Mr. Chairman, I rise today in support of H.R. 5620, 
the VA Accountability First and Appeals Modernization Act, and I thank 
the chairman for filing the bill.
  H.R. 5620 provides additional resources and flexibility to the 
Secretary to remove employees for poor performance or misconduct. What 
is wrong with that?
  It further improves the protections of whistleblowers that continue 
to receive retaliation from simply wanting to do the right thing. I 
thank the chairman for putting that language in there.
  Additionally, this bill improves the veterans appeals process with 
reforms sought to decrease excessive wait times for those waiting on a 
disability rating. I thank Representative Titus for that language, as 
well.
  In my district, I still hear veterans waiting too long for a decision 
to be made, which could take additional years on average in the appeals 
process--much too long.
  Mr. Chairman, this process is broken and needs to be modernized right 
now. So again, with that, I urge my colleagues to support the bill.
  Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I wish to comment on the assertion that it is the 
Attorney General's and the President's responsibility to enforce the 
law, as it does say that and as it is reflected in the Constitution. 
However, the Attorney General of the United States also has the duty to 
make sure that the taxpayers' money is well used. I often hear on the 
other side of the aisle a concern about unnecessary litigation or 
litigation that goes beyond the bounds of what is reasonable.
  The Attorney General also has the obligation to take a look at the 
laws and to examine whether or not they would withstand constitutional 
muster. The American people do not demand of their Attorney General to 
litigate laws that are clearly unconstitutional. That would be a waste 
of money.

  In the case of an accountability law and an accountability bill that 
clearly have flawed tools, tools which would be deemed 
unconstitutional, it would result in the following: it would result in 
managers taking actions against employees, money being spent on lawyers 
to dismiss these employees or otherwise discipline them, but employees 
being able to get their day in court and find that the provisions under 
which they are being disciplined are unconstitutional being reinstated 
after a lot of expense.
  This is precisely why I would like to see this legislation go back to 
committee and for us to consult attorneys on both sides and not pass 
laws that are clearly going to not pass constitutional muster.
  Yes, 81 amendments were filed because there are many problems with 
this legislation. Only 22 were ruled in order. I think we should go 
back to the drawing board and take the Senate legislation, which has 
bipartisan support, as a starting point.
  As for the whistleblower protections, I have already stated my 
comments that these whistleblower protections in H.R. 5620 are also 
flawed. I believe that they would be ruled and deemed unconstitutional 
and, therefore, are also flawed.
  Mr. Chairman, passing this legislation does not pass constitutional 
muster. It won't solve our problem. We need a real fix to improving VA 
accountability, and H.R. 5620 is not the solution.
  Mr. Chairman, I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I would remind my good friend 
that the Attorney General did comment on one particular live case. As a 
matter of fact, Sharon Helman, the person at the very center of the 
wait time debacle in Phoenix, believe it or not, is suing to get her 
job back, and the Attorney General has taken exception with one minor 
part of the law that was passed in 2014, the Veterans Choice Act. We 
have actually fixed her questions as relate to the Appointments Clause 
in the piece of legislation, so that problem should have been resolved 
at this point.
  Mr. Chairman, I yield 2 minutes to the gentleman from the State of 
Tennessee (Mr. Roe). Dr. Roe is from the First Congressional District 
of Tennessee.
  Mr. ROE of Tennessee. Mr. Chairman, I rise today in support of H.R. 
5620, the VA Accountability First and Appeals

[[Page H5395]]

Modernization Act sponsored by my friend and colleague and VA Committee 
chair, Jeff Miller.
  This legislation would bring much-needed relief for veterans who are 
currently waiting months, and sometimes even years, for the disability 
benefit appeal to be adjudicated. It also grants the Secretary the 
expanded authority he needs to remove VA employees for poor performance 
or misconduct.
  Mr. Chairman, at the beginning of 2015, there were roughly 375,000 
pending appeals within the VA system. A mere 18 months later, in June 
of 2016, that number had exploded to 457,000, a 1.2 percent increase 
per month. With that in mind, it is clear that the VA appeals process 
is fundamentally broken.
  By its own admission, the Board of Veterans' Appeals annual report 
for fiscal year 2015 stated that the number of appeals certified to the 
Board from the regional offices will increase from 88,183 in 2016 to 
359,000 in 2017, an almost 400 percent increase in 12 months. We must 
work now, not later, to address this backlog before things get even 
more out of hand.
  By implementing the reforms included in this legislation, the VA will 
be operating under streamlined processes needed to draw down this 
backlog. This bill also gives veterans some amount of control over how 
they wish their appeal to be reviewed. Under H.R. 5620, a veteran will 
be given the option of having their appeal heard by the regional office 
or having it bumped directly to the Board of Veterans' Appeals for 
adjudication.
  By allowing veterans to waive or request a hearing and to limit or 
introduce new evidence in support of their claim, the veteran will have 
more control over who reviews their appeal, when it is reviewed, and 
what evidence is reviewed. Without this legislation, veterans will 
continue to be treated by VA as a mere case number, not as a veteran of 
the United States Armed Forces.
  The CHAIR. The time of the gentleman has expired.
  Mr. MILLER of Florida. Mr. Chairman, I yield the gentleman an 
additional 30 seconds.
  Mr. ROE of Tennessee. Also included in this legislation is an 
important management tool for the Secretary to better maintain order 
within its workforce by expanding the authority of the Secretary to 
discipline or fire senior executive employees granted under the 
Veterans Choice Act to all VA employees. In an effort to protect 
employees who speak out from suffering retaliation, this bill provides 
comprehensive whistleblower protections.
  These provisions are not meant to discourage or reduce morale for 
good, honest VA employees. In fact, it should accomplish just the 
opposite. The opponents of this provision are looking to protect the 
nurse who showed up drunk for surgery, the employees who purchased 
illegal drugs for veterans, or the managers who cooked the books on 
scheduling appointments and resulted in veterans dying. As someone who 
spent time working in a VA facility, I feel very strongly that the 
expedited removal of these types of employees improves the corrosive 
nature within the VA and makes the VA a safer, more respectful place to 
work.
  Veterans deserve the best care, and I would challenge anyone to 
explain to me how these bad employees contribute to delivering quality 
of care.
  Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I am concerned that the bill before us today will 
actually undermine whistleblower protections rather than strengthen 
them. The Office of Special Counsel echoes my concerns. Their statement 
regarding the bill reads: ``Section 8 of this act may undermine 
whistleblower protections and accountability by creating a new and 
unnecessary process for reporting concerns. Section 8 also creates an 
unreasonable expectation that supervisors will be able to evaluate an 
employee concern within 4 business days. This process is overly 
burdensome for employees and supervisors and may be entirely unworkable 
in many instances.''
  We should go back to the drawing board. Let's go through regular 
order back in committee and not do this under the suspended rules and 
try to fix things on the floor of the House.
  I continue the quote of the Special Counsel: ``This approach is not 
the best method for improving accountability or evaluating supervisory 
efforts to support and protect whistleblowers. OSC believes that 
reinforcing existing channels for reporting concerns would better 
protect the interests of VA whistleblowers.''
  Whistleblowers are essential for proper oversight. Accountability 
measures that undermine whistleblowers or deter them from coming 
forward will make it harder. Again, the whistleblower protections in 
this bill may actually undermine our ability to protect them.
  Mr. Chairman, I reserve the balance of my time.

                              {time}  1800

  Mr. MILLER of Florida. Mr. Chairman, I quote from a letter to Mrs. 
Kirkpatrick from the Office of Special Counsel:
  ``We appreciate the bipartisan support for stronger whistleblower 
protections for VA employees, as reflected in H.R. 5620.''
  Mr. Chairman, I yield 2 minutes to the gentleman from Kansas (Mr. 
Huelskamp), from the First District.
  Mr. HUELSKAMP. Mr. Chairman, I thank the chairman, and appreciate his 
strong, effective leadership in the Veterans' Affairs Committee.
  At a committee hearing last year, the VA publicly admitted to me it 
was too difficult to fire bad employees. The situation is so dire that 
dozens of blatantly negligent employees and convicted criminals 
continue to work at the VA with zero consequences for their behavior.
  I was a quick cosponsor of this bill when introduced by the chairman 
because it provides necessary solutions to a problem that has persisted 
far too long.
  This bill will expand the VA Secretary's removal authority to include 
all VA employees and speed up the process. It will put in place 
additional whistleblower protections and give the Secretary the 
authority and responsibility to rescind bonuses and expense payments 
for corrupt employees. And it reforms the current broken claims process 
by providing veterans more choices when it comes to appealing VA 
claims.
  It might not be talked about much around here, but inside Washington 
everyone knows there is almost no accountability in the Federal civil 
service. In fact, a recent nonpartisan GAO study found, on average, it 
takes 6 months to a year, and often longer, to remove a bad bureaucrat.
  In the VA, we have seen example after example of Federal employees 
more concerned with defending a couple of bad apples than caring for 
our veterans. It is not unreasonable to demand VA employees be held 
accountable for their performance, just like our veterans were during 
their military service and how millions of hardworking Americans must 
do in their jobs every single day.
  It is my hope this bill will begin a long-overdue cultural shift 
within the VA. Until that happens, we will continue to see headlines 
about employees dealing heroin to patients, operating on patients while 
drunk, keeping their job despite an armed robbery charge, and giving 
years of paid leave to bad doctors. We can all agree: our veterans 
deserve better, and the VA should be held accountable for this 
obligation.
  I urge my colleagues in the House to support passage of this very 
important bill.
  Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
  I include in the Record a letter from the Office of Special Counsel 
to Representative Kirkpatrick praising her for her amendment. I 
understand the majority also supports the Kirkpatrick amendment, so it 
is bipartisan support.

                               U.S. Office of Special Counsel,

                               Washington, DC, September 13, 2016.
     Re Pending Legislation to Protect VA Whistleblowers.

     Hon. Ann Kirkpatrick,
     Washington, DC.
       Dear Representative Kirkpatrick: The Office of Special 
     Counsel (OSC) has received thousands of whistleblower 
     retaliation complaints and disclosures from Department of 
     Veterans Affairs (VA) employees. Based on this experience, we 
     write to express our strong support for your amendment to 
     H.R. 5620, the VA Accountability First and Appeals 
     Modernization Act. Based on our review of the amendment, we 
     believe it will advance the interests of VA whistleblowers.
       Importantly, the amendment establishes the Office of 
     Accountability and Whistleblower Protection (OAWP). OSC's 
     ongoing

[[Page H5396]]

     work with VA whistleblowers will benefit from having a high-
     level point of contact with the statutory authority to 
     identify, correct, and prevent threats to patient care and to 
     discipline those responsible for creating them. The 
     establishment of similar offices at other agencies, including 
     the Federal Aviation Administration, has significantly 
     improved the whistleblower experience at those agencies. And 
     OAWP, with a Senate-confirmed leader, will have the authority 
     and a mandate to make a significant difference.
       For these and other reasons, we believe your amendment will 
     best advance the interests of VA whistleblowers and the 
     Veterans served by the Department. If you are in need of 
     additional information, please contact Adam Miles, Deputy 
     Special Counsel for Policy and Congressional Affairs, at 202-
     254-3607. We appreciate the bipartisan support for stronger 
     whistleblower protections for VA employees, as reflected in 
     H.R. 5620, and believe this amendment will greatly enhance 
     this effort.
           Sincerely,
                                                Carolyn N. Lerner.

  Mr. TAKANO. Mr. Chairman, I yield to the gentleman from Florida (Mr. 
Miller) to ask him a question.
  Was the quotation the gentleman read from this letter of the special 
counsel to Mrs. Kirkpatrick?
  Mr. MILLER of Florida. Will the gentleman yield?
  Mr. TAKANO. I yield to the gentleman.
  Mr. MILLER of Florida. I don't know what the letter is you are 
holding in your hand. I have one dated September 13.
  Mr. TAKANO. Yes, September 13. And it is regarding pending 
legislation to protect VA whistleblowers?
  Mr. MILLER of Florida. That is correct.
  Mr. TAKANO. The quotation was from that letter.
  I want to clarify that letter from the Office of Special Counsel was 
in support of Mrs. Kirkpatrick's amendment, not in support of the 
entire bill H.R. 5620, and I am pleased that the majority joins us in 
support of that amendment.
  My colleague, Chairman Miller, mentioned that we have already covered 
our concerns in the Choice Act, and President Obama lauded the Choice 
Act when signing it into law. I will remind the chairman that the 
court--not Congress and not the President or the VA--determine whether 
a law meets constitutional muster.
  I am concerned that the strict and arbitrary time limits in section 3 
of H.R. 5620 violate constitutional due process and notions of basic 
fairness.
  The lack of any clear standard of misbehavior by a VA employee that 
would trigger the Secretary's new firing authority also concerns me. 
Courts have allowed less notice if the behavior of a civil servant 
threatens the safety of others, but due process may not be limited 
simply to make it more convenient for Federal managers to get rid of 
employees they don't like.
  That is why my amendment would pass constitutional muster and achieve 
the chairman's stated policy outcome more effectively than section 3 of 
H.R. 5620. It would give the Secretary a brand new authority to 
immediately remove, without pay, any VA employee whose behavior 
threatens veterans.
  My amendment would address many of the egregious examples of terrible 
VA employees whose behavior has literally threatened veterans' lives, 
like the employee who took a veteran to a crack house. Under my 
alternative, that VA employee would be immediately suspended without 
pay and fired after a fair investigation.
  The problem with passing a bill that limits due process is that if it 
were to become law, a VA employee fired under this new authority would 
inevitably sue. By the time the case wound its way through the court 
system and potentially found to be an unconstitutional violation of due 
process, the VA would have to reinstate with back pay any employee 
fired under the authority.
  Instead, I would urge us to replace section 3 with my amendment 
language, or the Senate's language in the Veterans First Act, which 
contains more fairness and due process while still bringing 
accountability to the VA.
  In our criminal justice system, we are innocent until proven guilty. 
The same concept applies to due process for VA employees. They should 
get to tell their side of the story before losing their jobs for what 
could be a miscommunication, or worse, discrimination or retaliation on 
the part of their supervisor.
  H.R. 5620 is bad policy that sets the VA apart from all other Federal 
agencies and will make it harder for the VA to recruit exceptional 
medical providers and managers.
  H.R. 5620 would return us to the political spoils system that was so 
problematic before the advent of civil service protections.
  I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I agree wholeheartedly with Mr. 
Takano that it is the courts of the United States of America that would 
rule something unconstitutional and not the Attorney General of this 
country.
  Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from the Third 
District of Louisiana (Mr. Boustany).
  Mr. BOUSTANY. Mr. Chairman, I have long fought for the highest 
quality health care for our veterans and accountability, and I applaud 
Chairman Miller for bringing H.R. 5620 to the floor for a vote. It is 
long overdue.
  This will not only provide greater options for veterans going through 
the VA's broken appeals process, but it also makes vital reforms to the 
Department's employee performance policies.
  This is commonsense legislation. It will improve outcomes for 
veterans in my home State of Louisiana, where the VA has a long history 
of very poor performance.
  The bill's provisions will make it easier for the VA Secretary to 
fire, demote, and recoup bonuses from employees who don't do their job.
  Veterans in Louisiana have dealt with the VA's ineffective 
bureaucracy--and, in some cases, downright wrongdoing--for far too 
long. We desperately need more stringent accountability measures in 
place for the agency charged with caring for America's veterans.
  This has gone on far too long. Chairman Miller and I have fought with 
others for a very long time to do the very best for our veterans. 
Enough is enough. Enough is enough. It is time for a change. It is time 
for true accountability.
  I am proud to stand with Chairman Miller and others to support this 
legislation, and I urge all my colleagues to support it. It is urgently 
needed.
  Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
  I think it is important that we consider the impact our actions will 
have on the hardworking frontline VA employees, many of whom are 
veterans themselves and even whom my friend from Florida, Chairman 
Miller, says the vast majority of whom are very good employees.
  I include in the Record a letter from the American Federation of 
Government Employees.

                                            American Federation of


                                Government Employees, AFL-CIO,

                                Washington, DC, September 9, 2016.
     Re AFGE Opposition to H.R. 5620.

       Dear Representative: I am writing on behalf of nearly 
     700,000 federal employees represented by the American 
     Federation of Government Employees, AFL-CIO (AFGE), including 
     230,000 employees of the Department of Veterans Affairs (VA) 
     to urge you to oppose H.R. 5620, a bill introduced by 
     Representative Jeff Miller (R-FL) to provide for removal or 
     demotion of VA employees, and for other purposes. The drastic 
     reductions in due process rights for every frontline VA 
     employee proposed by this bill represents another familiar 
     attempt to weaken the VA by weakening its dedicated 
     workforce.
       Changes proposed by H.R. 5620, including reduced time to 
     respond to notices of proposed removals, reduced time to 
     appeal to the Merit System Protection Board (MSPB), the loss 
     of MSPB rights if that agency is backlogged, and unfair 
     processes for recouping bonuses and work expenses, will 
     decrease accountability by subjecting vocal employees who 
     speak up against mismanagement and patient harm to more 
     retaliation and harassment. The bill also would directly 
     undermine the Department's progress in filling vacancies and 
     recruiting and retaining a strong VA workforce.
       Shorter Notice of Proposed Removal: Under current law, VA 
     employees, like most government employees, are entitled to at 
     least thirty days' advance written notice before they are 
     terminated or demoted (See 5 U.S.C. 7513(b)(1)). H.R. 5620 
     would reduce that notice period by two-thirds to only ten 
     days. A ten-day period is completely inadequate for allowing 
     an employee to respond to a notice of proposed removal or 
     demotion, receive his or her evidence file, present an 
     effective answer with supporting evidence and secure 
     representation.
       Loss of Additional Rights for Petformance-Based Removals: 
     VA employees facing removal on poor performance would lose 
     additional due process rights under this bill, making it 
     nearly impossible to prepare an effective response. 
     Currently, management

[[Page H5397]]

     must inform employees of specific instances of unacceptable 
     performance and the critical elements for the position 
     involved. (See 5 CFR 1201.22(b)(1).) The bill eliminates both 
     these rights to essential information to prepare one's 
     answer.
       Reduced Time to File MSPB Appeal: Currently, employees 
     seeking MSPB review of the agency's decision have 30 calendar 
     days from effective date of the action or within 30 days of 
     receipt of agency decision, whichever is later to file an 
     MSPB appeal. H.R. 5620 would reduce that filing deadline by 
     more than 75 percent to only 7 days after the date of the 
     removal or demotion. This extremely tight filing deadline is 
     likely to have a disproportionate effect on lower wage 
     employees who cannot afford representation.
       Loss of All MSPB Appeal Rights if MSPB Fails to Meet 
     Shorter Timeframe: MSPB suffers from a chronic shortage of 
     staff and other resources. Like H.R. 1994, Representative 
     Miller's 2015 ``firing bill'' to eliminate the due process 
     rights of every front-line VA employee, this bill would take 
     away all MSPB appeal rights if a decision is not issued 
     within 60 days, and instead, the VA's final decision would 
     stand. AFGE is very concerned that this may violate 
     constitutional due process. In addition, this is an extremely 
     unrealistic time frame and employees will be the ones to 
     suffer as a result. Recent MSPB data indicates an average 
     processing time for initial Administrative Judge appeals of 
     93 days and average of 281 days for Board review.
       ``Safe Harbor'' for Whistleblower Claims Will Overburden 
     the Office of Special Counsel and Harm Whistleblowers: Like 
     H.R. 1994, this bill requires the Office of Special Counsel 
     (OSC) to review all agency decisions of employees who file 
     OSC whistleblower complaints. OSC is already facing a 
     significant increase in claims and does not currently review 
     agency decisions to remove or demote employees. This added 
     responsibility will increase the OSC's backlog and encourage 
     the filing of less meritorious whistleblower complaints. 
     Complainants with more meritorious matters will be adversely 
     affected by additional delays.
       Reductions in Senior Executive Retirement Annuities: AFGE 
     also urges you oppose this provision that would remove 
     covered service in calculating the annuities of VA senior 
     executives who have been convicted of certain crimes. Pension 
     recoupment is unnecessary and punitive, and would set an 
     extremely dangerous precedent throughout the federal 
     government for requiring forfeiture of earned compensation.
       Unfair Bonus Recoupment Process: H.R. 5620 provides the VA 
     Secretary with unfettered discretion to set the criteria for 
     recoupment of bonuses already paid to employees. In addition, 
     the bill is ambiguous about the appeals process that 
     employees could utilize to challenge an unfair bonus 
     recoupment decision.
       Unfair Process for Recoupment of Payments for Relocation 
     and Other Work Expenses: H.R. 5620 would give management 
     overly broad authority to recoup allegedly improper 
     reimbursements of work-related expenses. This overly broad 
     and possibly unconstitutional provision could lead to more 
     mismanagement and targeting of employees. VA already has 
     ample authority to recoup improper payments, and payments 
     made through misfeasance and malfeasance. In addition, the 
     Department already addressed abuse of relocation bonuses by 
     eliminating its Appraised Value Offer program. The lack of 
     appeal rights in the bill is likely to give rise to an 
     unconstitutional taking. This provision would further erode 
     the morale of the VA workforce and discourage employees from 
     relocating to hard-to-recruit locations to fill vacancies.
       Thank you for considering the views of AFGE. If you need 
     more information, please contact Marilyn Park of my staff.
           Sincerely yours,
                                                J. David Cox, Sr.,
                                               National President.

  Mr. TAKANO. The letter reads: ``The drastic reductions in due process 
rights for every frontline VA employee proposed by this bill represents 
another familiar attempt to weaken the VA by weakening its dedicated 
workforce.
  ``Changes proposed by H.R. 5620, including reduced time to respond to 
notices of proposed removals, reduced time to appeal to the Merit 
System Protection Board (MSPB), the loss of MSPB rights if that agency 
is backlogged, and unfair processes for recouping bonuses and work 
expenses, will decrease accountability by subjecting vocal employees 
who speak up against mismanagement and patient harm to more retaliation 
and harassment. The bill also would directly undermine the Department's 
progress in filling vacancies and recruiting and retaining a strong VA 
workforce.''
  I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  I include in the Record the letters from five veterans service 
organizations in support of this legislation, H.R. 5620.

                                          The American Legion,

                                                    July 12, 2016.
     Hon. Jeff Miller,
     Chairman, Committee on Veterans' Affairs,
     House of Representatives, Washington, DC.
       Chairman Miller: On behalf of the more than 2 million 
     members of The American Legion, I express qualified support 
     for H.R. 5620, the VA Accountability First and Appeals 
     Modernization Act of 2016. The bill would bring additional 
     accountability measures to the Department of Veterans Affairs 
     while strengthening protections for whistleblowers. 
     Additionally, the bill would reform the department's 
     disability benefits appeals process--a top priority for VA 
     leaders and many veterans service organizations.
       Veterans deserve a first rate agency to provide for their 
     needs, and the VA is an excellent agency that is 
     unfortunately marred from time to time by bad actors that the 
     complicated system of discipline makes difficult to remove. 
     Legislation to improve that process and make it easier to 
     deal with these few, problem employees would help restore 
     trust in what is otherwise an excellent system. However, we 
     cannot support the prohibition on VA senior executives from 
     receiving awards or bonuses over the next five years. This 
     overly punitive form of collective punishment is unfair and 
     counterproductive to efforts to rebuild a leadership cadre 
     after the extensive turnover experienced since the 2014 wait 
     time scandal.
       We wholeheartedly support the appeals modernization 
     provisions in this legislation. They represent a combined 
     team effort between VA, Congress, and the Veteran Service 
     Organizations to produce highly needed reforms to the complex 
     disability claims appeals system and The American Legion is 
     proud of the work accomplished here.
       The American Legion thanks you for the leadership you have 
     shown to bring improvement and more accountability to VA. We 
     are committed to working with you and your House and Senate 
     colleagues to shepherd a veterans benefits legislative 
     package before this session ends that we can all be proud of.
           Sincerely,
                                                     Dale Barnett,
     National Commander.
                                  ____



                                                          DAV,

                                                    July 14, 2016.
     Hon. Jeff Miller,
     Chairman, House Committee on Veterans' Affairs, Washington, 
         DC.
       Dear Chairman Miller: On behalf of DAV and our 1.3 million 
     members, all of whom were injured or made ill during wartime 
     service, I write to offer our support for H.R. 5620, the ``VA 
     Accountability First and Appeals Modernization Act of 2016.'' 
     This legislation could significantly improve the ability of 
     veterans to receive more timely and accurate decisions on 
     their claims and appeals for earned benefits.
       As you know, the number of appeals awaiting decisions has 
     risen dramatically--to almost 450,000--and the average time 
     for an appeal decision is between three and five years, a 
     delay that is simply unacceptable. To address this challenge, 
     VA convened a workgroup in March consisting of DAV, other 
     stakeholders and VA officials in order to seek common ground 
     on a new framework for appeals. After months of intensive 
     efforts, the workgroup reached consensus on a new framework 
     for the appeals process that could offer veterans quicker 
     decisions, while protecting their rights and prerogatives.
       H.R. 5620, which contains the new appeals framework, would 
     make fundamental changes to the appeals process by creating 
     multiple options to appeal or reconsider claims' decisions, 
     either formally to the Board or informally within the 
     Veterans Benefits Administration. The central feature of the 
     legislation would provide veterans three options, or 
     ``lanes,'' to appeal unfavorable claims decisions; and if 
     they were not satisfied with their decisions, they could 
     continue to pursue one of the other two options. As long as a 
     veteran continuously pursues a new appeals option within one 
     year of the last decision, they would be able to preserve 
     their earliest effective date. This legislation also allows 
     veterans to present new evidence and have a hearing before 
     the Board or VBA if they so desire.
       If faithfully implemented as designed by the workgroup, and 
     if fully funded by Congress and VA in the years ahead, H.R. 
     5620 would make a marked improvement in the ability of 
     veterans to get timely and accurate decisions on appeals of 
     their claims. We urge the House to swiftly approve this 
     legislation and then work with the Senate to reach agreement 
     on final legislation that can be sent to the President to 
     sign this year.
           Respectfully,
                                               Garry J. Augustine,
     Executive Director, Washington Headquarters.
                                  ____



                                     Veterans of Foreign Wars,

                                                September 6, 2016.
     Hon. Jeff Miller,
     Chairman, House Veterans' Affairs Committee,
     Washington, DC.
       Dear Chairman Miller: On behalf of the men and women of the 
     Veterans of Foreign Wars of the United States (VFW) and our 
     Auxiliaries, we are pleased to offer our support for H.R. 
     5620, the VA Accountability First and Appeals Modernization 
     Act of 2016.
       Your legislation would allow the Secretary of the 
     Department of Veterans Affairs (VA) to expeditiously remove 
     or demote any VA employee based on poor performance or 
     misconduct. For far too long, under performing employees have 
     been allowed to continue working at VA, simply because the 
     processes for removal are so protracted. The VFW believes 
     that employees should have some

[[Page H5398]]

     layer of protection, but that true accountability must be 
     enforced for those who willfully fail to meet the standard. 
     This is critical to ensuring that VA consistently provides 
     the highest quality services, as well as continuing to 
     restore veterans' faith in the Department.
       Additionally, your legislation works to address concerns 
     related to the appeal of a veteran's disability compensation 
     claim. Today, there are more than 450,000 appeals awaiting 
     the years-long process to a final decision by the Board of 
     Veterans' Appeals. While the VFW insists that the right of 
     the veteran to appeal must be continued and protected, common 
     sense changes like those included in this legislation will 
     help to eliminate backlogs, reduce the amount of time that 
     veterans wait for their earned benefits, and still ensure 
     that veterans receive the assistance needed when completing 
     such appeals.
       The VFW commends your leadership on this issue and your 
     commitment to meaningful VA reforms. We look forward to 
     working with you to ensure the passage of this important 
     legislation.
           Sincerely,
                                                Raymond C. Kelley,
     Director, VFW National Legislative Service.
                                  ____



                                Paralyzed Veterans of America,

                                                    July 11, 2016.
     Hon. Jeff Miller,
     Chairman, House Committee on Veterans' Affairs, Washington, 
         DC.
       Dear Chairman Miller: On behalf of Paralyzed Veterans of 
     America (PVA), I would like to offer our support for H.R. 
     5620, the ``VA Accountability First and Appeals Modernization 
     Act.'' This important legislation focuses on two important 
     issues that must be addressed within the Department of 
     Veterans Affairs (VA)--accountability at all levels and 
     reform of the veterans' claims appeals process.
       As you are aware, PVA has supported efforts to ensure 
     proper accountability at all levels of the Department of 
     Veterans Affairs (VA). Unfortunately, in recent years there 
     have been numerous accounts of bad actors in VA senior 
     management (and frankly lower level management) who have 
     failed to fulfill the responsibility of their positions and 
     in some cases arguably violated the law. The focus on 
     accountability in this proposal strikes a reasonable balance 
     to ensure VA leadership has the ability to manage personnel 
     while affording due process protections to VA employees.
       Additionally, while work remains to ensure appropriate 
     implementation, this legislation advances critically needed 
     appeals reform. PVA, and our partners in the veterans' 
     service organization community, has been directly engaged 
     with VA to affect meaningful appeals reform. This legislation 
     reflects much of that work. However, we must emphasize that 
     VA needs a definitive plan to address implementation, 
     specifically a plan to deal with the current inventory of 
     appeals.
       Mr. Chairman, we applaud your commitment to strong 
     accountability and meaningful appeals reform at the VA. We 
     hope that the Committee will consider and approve this 
     important legislation expeditiously.
           Respectfully,

                                         Sherman Gillums, Jr.,

                                               Executive Director,
     Paralyzed Veterans of America
                                  ____

                                                 Military Officers


                                       Association of America,

                                                  August 16, 2016.
     Hon. Jeff Miller,
     Chairman, Committee on Veterans' Affairs,
     House of Representatives, Washington, DC.
       Dear Chairman Miller: On behalf of MOAA's more than 390,000 
     members, I am writing to express our appreciation for your 
     continuing efforts to improve accountability across the 
     Department of Veterans Affairs (VA) and modernize the 
     disability claims system through sponsorship of H.R. 5620, 
     the VA Accountability First and Appeals Modernization Act of 
     2016.
       This bill builds upon your earlier legislation, H.R. 1994, 
     the VA Accountability Act of 2015, by further strengthening 
     protections for whistleblowers, providing for removal or 
     demotion of employees based on performance or misconduct, and 
     reforming the disability benefits appeals process.
       MOAA appreciates your commitment to providing the Secretary 
     of Veterans Affairs the additional authority to remove 
     employees for sub-standard performance and misconduct. 
     However, we do have some concerns about setting a long-term 
     prohibition on Senior Executive Service employee bonuses for 
     the period 2017 to 2021, mentioned in Section 10. MOAA 
     anticipates VA employees, who are striving to solve these 
     very difficult problems, should have the ability to be 
     rewarded for making progress. MOAA would prefer to see 
     conditions placed on receipt of bonuses rather than implement 
     a blanket prohibition.
       MOAA believes the result of change should be outcome-
     driven. That is, accountability mechanisms should be placed 
     on achieving a desired outcome versus prescribing each step 
     taken to reach that outcome. We support the restructuring of 
     the VA claims adjudication process and the goal of providing 
     veterans with more expeditious claim resolution. That said, 
     we are concerned the proposed bill appears to eliminate the 
     VA's duty to assist veterans with their claims during the 
     appeal process. MOAA believes continuing the VA's duty to 
     assist veterans during the appeal will be important to fair 
     resolution of the claim.
       In closing, MOAA urges the House and Senate Committees on 
     Veterans' Affairs to work together to reach agreement on how 
     best to move forward on H.R. 5620 and S. 2921, the Veterans 
     First Act, incorporating the necessary elements of 
     accountability and appeals in order to achieve meaningful and 
     substantive reform before Congress adjourns this year.
       We deeply appreciate your support of our nation's 
     servicemembers, veterans and their families. MOAA looks 
     forward to continuing cooperation with you in helping to 
     resolve these important issues.
           Sincerely,
                              Lt. Gen. Dana T. Atkins, USAF (Ret),
                                                President and CEO.

  Mr. MILLER of Florida. I reserve the balance of my time.
  Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, for all of the foregoing arguments that were made 
today, I urge all of my colleagues to vote ``no'' on H.R. 5620.
  I yield back the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  I urge all Members to support H.R. 5620, and I yield back the balance 
of my time.
  The Acting CHAIR (Mr. Mooney of West Virginia). All time for general 
debate has expired.
  Pursuant to the rule, the bill shall be considered for amendment 
under the 5-minute rule. The bill shall be considered as read.
  The text of the bill is as follows:

                               H.R. 5620

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``VA 
     Accountability First and Appeals Modernization Act of 2016''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. References to title 38, United States Code.
Sec. 3. Removal or demotion of employees based on performance or 
              misconduct.
Sec. 4. Reduction of benefits for members of the Senior Executive 
              Service within the Department of Veterans Affairs 
              convicted of certain crimes.
Sec. 5. Authority to recoup bonuses or awards paid to employees of 
              Department of Veterans Affairs.
Sec. 6. Authority to recoup relocation expenses paid to or on behalf of 
              employees of Department of Veterans Affairs.
Sec. 7. Senior executives: personnel actions based on performance or 
              misconduct.
Sec. 8. Treatment of whistleblower complaints in Department of Veterans 
              Affairs.
Sec. 9. Appeals reform.
Sec. 10. Limitation on awards and bonuses paid to senior executive 
              employees of Department of Veterans Affairs.

     SEC. 2. REFERENCES TO TITLE 38, UNITED STATES CODE.

       Except as otherwise expressly provided, whenever in this 
     Act an amendment or repeal is expressed in terms of an 
     amendment to, or repeal of, a section or other provision, the 
     reference shall be considered to be made to a section or 
     other provision of title 38, United States Code.

     SEC. 3. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON PERFORMANCE 
                   OR MISCONDUCT.

       (a) In General.--Chapter 7 is amended by adding at the end 
     the following new section:

     ``Sec. 715. Employees: removal or demotion based on 
       performance or misconduct

       ``(a) In General.--The Secretary may remove or demote an 
     individual who is an employee of the Department if the 
     Secretary determines the performance or misconduct of the 
     individual warrants such removal or demotion. If the 
     Secretary so removes or demotes such an individual, the 
     Secretary may--
       ``(1) remove the individual from the civil service (as 
     defined in section 2101 of title 5); or
       ``(2) demote the individual by means of--
       ``(A) a reduction in grade for which the individual is 
     qualified and that the Secretary determines is appropriate; 
     or
       ``(B) a reduction in annual rate of pay that the Secretary 
     determines is appropriate.
       ``(b) Pay of Certain Demoted Individuals.--(1) 
     Notwithstanding any other provision of law, any individual 
     subject to a demotion under subsection (a)(2)(A) shall, 
     beginning on the date of such demotion, receive the annual 
     rate of pay applicable to such grade.
       ``(2) An individual so demoted may not be placed on 
     administrative leave or any other category of paid leave 
     during the period during which an appeal (if any) under this 
     section is ongoing, and may only receive pay if the 
     individual reports for duty. If an individual so demoted does 
     not report for duty,

[[Page H5399]]

     such individual shall not receive pay or other benefits 
     pursuant to subsection (e)(5).
       ``(c) Notice to Congress.--Not later than 30 days after 
     removing or demoting an individual under subsection (a), the 
     Secretary shall submit to the Committees on Veterans' Affairs 
     of the Senate and House of Representatives notice in writing 
     of such removal or demotion and the reason for such removal 
     or demotion.
       ``(d) Procedure.--(1) Subsection (b) of section 7513 of 
     title 5 shall apply with respect to a removal or a demotion 
     under this section, except that the period for notice and 
     response, which includes the advance notice period required 
     by paragraph (1) of such subsection and the response period 
     required by paragraph (2) of such subsection, shall not 
     exceed a total of ten calendar days.
       ``(2) The procedures under chapter 43 of title 5 shall not 
     apply to a removal or demotion under this section.
       ``(3)(A) Subject to subparagraph (B) and subsection (e), 
     any removal or demotion under subsection (a) may be appealed 
     to the Merit Systems Protection Board under section 7701 of 
     title 5.
       ``(B) An appeal under subparagraph (A) of a removal or 
     demotion may only be made if such appeal is made not later 
     than seven days after the date of such removal or demotion.
       ``(e) Expedited Review by MSPB.--(1) Upon receipt of an 
     appeal under subsection (d)(3)(A), the Merit Systems 
     Protection Board shall expedite any such appeal under such 
     section and, in any such case, shall issue a decision not 
     later than 60 days after the date of the appeal.
       ``(2) Notwithstanding section 7701(c)(1)(B) of title 5, the 
     Merit Systems Protection Board shall uphold the decision of 
     the Secretary to remove or demote an employee under 
     subsection (a) if the decision is supported by substantial 
     evidence.
       ``(3) The decision of the Merit Systems Protection Board 
     under paragraph (1), and any final removal or demotion 
     described in paragraph (4), may be appealed to the United 
     States Court of Appeals for the Federal Circuit pursuant to 
     section 7703 of title 5. Any decision by such Court shall be 
     in compliance with section 7462(f)(2) of this title.
       ``(4) In any case in which the Merit Systems Protection 
     Board cannot issue a decision in accordance with the 60-day 
     requirement under paragraph (1), the removal or demotion is 
     final. In such a case, the Merit Systems Protection Board 
     shall, within 14 days after the date that such removal or 
     demotion is final, submit to Congress and the Committees on 
     Veterans' Affairs of the Senate and House of Representatives 
     a report that explains the reasons why a decision was not 
     issued in accordance with such requirement.
       ``(5) The Merit Systems Protection Board may not stay any 
     removal or demotion under this section.
       ``(6) During the period beginning on the date on which an 
     individual appeals a removal from the civil service under 
     subsection (d) and ending on the date that the Merit Systems 
     Protection Board issues a final decision on such appeal, such 
     individual may not receive any pay, awards, bonuses, 
     incentives, allowances, differentials, student loan 
     repayments, special payments, or benefits.
       ``(7) To the maximum extent practicable, the Secretary 
     shall provide to the Merit Systems Protection Board such 
     information and assistance as may be necessary to ensure an 
     appeal under this subsection is expedited.
       ``(f) Whistleblower Protection.--(1) In the case of an 
     individual seeking corrective action (or on behalf of whom 
     corrective action is sought) from the Office of Special 
     Counsel based on an alleged prohibited personnel practice 
     described in section 2302(b) of title 5, the Secretary may 
     not remove or demote such individual under subsection (a) 
     without the approval of the Special Counsel under section 
     1214(f) of title 5.
       ``(2) In the case of an individual who has filed a 
     whistleblower complaint, as such term is defined in section 
     741 of this title, the Secretary may not remove or demote 
     such individual under subsection (a) until a final decision 
     with respect to the whistleblower complaint has been made.
       ``(g) Termination of Investigations by Office of Special 
     Counsel.--Notwithstanding any other provision of law, the 
     Special Counsel (established by section 1211 of title 5) may 
     terminate an investigation of a prohibited personnel practice 
     alleged by an employee or former employee of the Department 
     after the Special Counsel provides to the employee or former 
     employee a written statement of the reasons for the 
     termination of the investigation. Such statement may not be 
     admissible as evidence in any judicial or administrative 
     proceeding without the consent of such employee or former 
     employee.
       ``(h) Relation to Other Authorities.--The authority 
     provided by this section is in addition to the authority 
     provided by subchapter V of chapter 74 of this title, 
     subchapter II of chapter 75 of title 5, chapter 43 of such 
     title, and any other authority with respect to disciplining 
     an individual.
       ``(i) Definitions.--In this section:
       ``(1) The term `individual' means an individual occupying a 
     position at the Department but does not include--
       ``(A) an individual, as that term is defined in section 
     713(g)(1); or
       ``(B) a political appointee.
       ``(2) The term `grade' has the meaning given such term in 
     section 7511(a) of title 5.
       ``(3) The term `misconduct' includes neglect of duty, 
     malfeasance, or failure to accept a directed reassignment or 
     to accompany a position in a transfer of function.
       ``(4) The term `political appointee' means an individual 
     who is--
       ``(A) employed in a position described under sections 5312 
     through 5316 of title 5 (relating to the Executive Schedule);
       ``(B) a limited term appointee, limited emergency 
     appointee, or noncareer appointee in the Senior Executive 
     Service, as defined under paragraphs (5), (6), and (7), 
     respectively, of section 3132(a) of title 5; or
       ``(C) employed in a position of a confidential or policy-
     determining character under schedule C of subpart C of part 
     213 of title 5 of the Code of Federal Regulations.''.
       (b) Clerical and Conforming Amendments.--
       (1) Clerical.--The table of sections at the beginning of 
     chapter 7 is amended by inserting after the item relating to 
     section 713 the following new item:

``715. Employees: removal or demotion based on performance or 
              misconduct.''.
       (2) Conforming.--Section 4303(f) of title 5, United States 
     Code, is amended--
       (A) by striking ``or'' at the end of paragraph (2);
       (B) by striking the period at the end of paragraph (3) and 
     inserting ``, or''; and
       (C) by adding at the end the following:
       ``(4) any removal or demotion under section 715 of title 
     38.''.

     SEC. 4. REDUCTION OF BENEFITS FOR MEMBERS OF THE SENIOR 
                   EXECUTIVE SERVICE WITHIN THE DEPARTMENT OF 
                   VETERANS AFFAIRS CONVICTED OF CERTAIN CRIMES.

       (a) Reduction of Benefits.--
       (1) In general.--Chapter 7 is further amended by inserting 
     after section 715, as added by section 3, the following new 
     section:

     ``Sec. 717. Senior executives: reduction of benefits of 
       individuals convicted of certain crimes

       ``(a) Reduction of Annuity for Removed Employee.--(1) The 
     Secretary shall order that the covered service of an 
     individual removed from a senior executive position for 
     performance or misconduct under section 713 of this title, 
     chapter 43 or subchapter V of chapter 75 of title 5, or any 
     other provision of law shall not be taken into account for 
     purposes of calculating an annuity with respect to such 
     individual under chapter 83 or chapter 84 of title 5, if--
       ``(A) the individual is convicted of a felony that 
     influenced the individual's performance while employed in the 
     senior executive position; and
       ``(B) before such order is made, the individual is 
     afforded--
       ``(i) notice of the order and an opportunity to respond to 
     the order; and
       ``(ii) consistent with paragraph (2), an opportunity to 
     appeal the order to another department or agency of the 
     Federal Government.
       ``(2) If a final decision on an appeal made under paragraph 
     (1)(B)(ii) is not made by the applicable department or agency 
     of the Federal Government within 30 days after receiving such 
     appeal, the order of the Secretary under paragraph (1) shall 
     be final and not subject to further appeal.
       ``(b) Reduction of Annuity for Retired Employee.--(1) The 
     Secretary may order that the covered service of an individual 
     who is subject to a removal or transfer action for 
     performance or misconduct under section 713 of this title, 
     chapter 43 or subchapter V of chapter 75 of title 5, or any 
     other provision of law but who leaves employment at the 
     Department prior to the issuance of a final decision with 
     respect to such action shall not be taken into account for 
     purposes of calculating an annuity with respect to such 
     individual under chapter 83 or chapter 84 of title 5, if--
       ``(A) the individual is convicted of a felony that 
     influenced the individual's performance while employed in the 
     senior executive position; and
       ``(B) before such order is made, the individual is afforded 
     notice and an opportunity for a hearing conducted by another 
     department or agency of the Federal Government.
       ``(2) The Secretary shall make such an order not later than 
     seven days after the date of the conclusion of a hearing 
     referred to in paragraph (1)(B) that determines that such 
     order is lawful.
       ``(c) Administrative Requirements.--(1) Not later than 30 
     days after the Secretary issues an order under subsection (a) 
     or (b), the Director of the Office of Personnel Management 
     shall recalculate the annuity of the individual.
       ``(2) A decision regarding whether the covered service of 
     an individual shall be taken into account for purposes of 
     calculating an annuity under subsection (a) or (b) is final 
     and may not be reviewed by any department or agency or any 
     court.
       ``(d) Lump-Sum Annuity Credit.--Any individual with respect 
     to whom an annuity is reduced under subsection (a) or (b) 
     shall be entitled to be paid so much of such individual's 
     lump-sum credit as is attributable to the period of covered 
     service.
       ``(e) Spouse or Children Exception.--The Secretary, in 
     consultation with the Office of Personnel Management, shall 
     prescribe regulations that may provide for the payment to the 
     spouse or children of any individual referred to in 
     subsection (a) or (b) of any amounts which (but for this 
     subsection)

[[Page H5400]]

     would otherwise have been nonpayable by reason of such 
     subsections. Any such regulations shall be consistent with 
     the requirements of section 8332(o)(5) and 8411(l)(5) of 
     title 5, as the case may be.
       ``(f) Definitions.--In this section:
       ``(1) The term `covered service' means, with respect to an 
     individual subject to a removal or transfer for performance 
     or misconduct under section 713 of this title, chapter 43 or 
     subchapter V of chapter 75 of title 5, or any other provision 
     of law, the period of service beginning on the date that the 
     Secretary determines under such applicable provision that the 
     individual engaged in activity that gave rise to such action 
     and ending on the date that the individual is removed or 
     transferred from the senior executive position or leaves 
     employment at the Department prior to the issuance of a final 
     decision with respect to such action, as the case may be.
       ``(2) The term `lump-sum credit' has the meaning given such 
     term in section 8331(8) or section 8401(19) of title 5, as 
     the case may be.
       ``(3) The term `senior executive position' has the meaning 
     given such term in section 713(g)(3) of this title.
       ``(4) The term `service' has the meaning given such term in 
     section 8331(12) or section 8401(26) of title 5, as the case 
     may be.''.
       (2) Clerical amendment.--The table of sections at the 
     beginning of chapter 7 of such title is amended by inserting 
     after the item relating to section 715, as added by section 
     3, the following new item:

``717. Senior executives: reduction of benefits of individuals 
              convicted of certain crimes.''.
       (b) Application.--Section 717 of title 38, United States 
     Code, as added by subsection (a)(1), shall apply to any 
     action of removal or transfer under section 713 of title 38, 
     United States Code, commencing on or after the date of the 
     enactment of this Act.

     SEC. 5. AUTHORITY TO RECOUP BONUSES OR AWARDS PAID TO 
                   EMPLOYEES OF DEPARTMENT OF VETERANS AFFAIRS.

       (a) In General.--Chapter 7 is further amended by inserting 
     after section 717, as added by section 4, the following new 
     section:

     ``Sec. 719. Recoupment of bonuses or awards paid to employees 
       of Department

       ``(a) Recoupment.--Notwithstanding any other provision of 
     law, the Secretary may issue an order directing an employee 
     of the Department to repay the amount, or a portion of the 
     amount, of any award or bonus paid to the employee under 
     title 5, including under chapters 45 or 53 of such title, or 
     this title if--
       ``(1) the Secretary determines such repayment appropriate 
     pursuant to regulations prescribed under subsection (c); and
       ``(2) before such repayment, the employee is afforded 
     notice and an opportunity for a hearing conducted by another 
     department or agency of the Federal Government.
       ``(b) Review.--(1) Upon the issuance of an order by the 
     Secretary under subsection (a), the employee shall be 
     afforded--
       ``(A) notice of the order and an opportunity to respond to 
     the order; and
       ``(B) consistent with paragraph (2), an opportunity to 
     appeal the order to another department or agency of the 
     Federal Government.
       ``(2) If a final decision on an appeal made under paragraph 
     (1)(B) is not made by the applicable department or agency of 
     the Federal Government within 30 days after receiving such 
     appeal, the order of the Secretary under subsection (a) shall 
     be final and not subject to further appeal.
       ``(c) Regulations.--The Secretary shall prescribe 
     regulations to carry out this section.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of such chapter, as amended by section 4, is 
     amended by inserting after the item relating to section 717 
     the following new item:

``719. Recoupment of bonuses or awards paid to employees of 
              Department.''.
       (c) Effective Date.--Section 719 of title 38, United States 
     Code, as added by subsection (a), shall apply with respect to 
     an award or bonus paid by the Secretary of Veterans Affairs 
     to an employee of the Department of Veterans Affairs on or 
     after the date of the enactment of this Act.
       (d) Construction.--Nothing in this Act or the amendments 
     made by this Act may be construed to modify the certification 
     issued by the Office of Personnel Management and the Office 
     of Management and Budget regarding the performance appraisal 
     system of the Senior Executive Service of the Department of 
     Veterans Affairs.

     SEC. 6. AUTHORITY TO RECOUP RELOCATION EXPENSES PAID TO OR ON 
                   BEHALF OF EMPLOYEES OF DEPARTMENT OF VETERANS 
                   AFFAIRS.

       (a) In General.--Chapter 7 is further amended by adding at 
     the end the following new section:

     ``Sec. 721. Recoupment of relocation expenses paid on behalf 
       of employees of Department

       ``(a) Recoupment.--(1) Notwithstanding any other provision 
     of law, the Secretary may direct an employee of the 
     Department to repay the amount, or a portion of the amount, 
     paid to or on behalf of the employee under title 5 for 
     relocation expenses, including any expenses under section 
     5724 or 5724a of such title, or this title if--
       ``(A) the Secretary determines that--
       ``(i) the employee has committed an act of fraud, waste, or 
     malfeasance; and
       ``(ii) such repayment is appropriate pursuant to 
     regulations prescribed under subsection (c); and
       ``(B) before such repayment is ordered, the individual is 
     afforded--
       ``(i) notice of the determination of the Secretary and an 
     opportunity to respond to the determination; and
       ``(ii) consistent with paragraph (2), an opportunity to 
     appeal the determination to another department or agency of 
     the Federal Government.
       ``(2) If a final decision on an appeal made under paragraph 
     (1)(B)(ii) is not made by the applicable department or agency 
     of the Federal Government within 30 days after receiving such 
     appeal, the order of the Secretary under paragraph (1) shall 
     be final and not subject to further appeal.
       ``(b) Review.--A decision regarding a repayment by an 
     employee pursuant to subsection (a)(1)(B)(ii) is final and 
     may not be reviewed by any department, agency, or court.
       ``(c) Regulations.--The Secretary shall prescribe 
     regulations to carry out this section.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of such chapter is further amended by adding at the 
     end the following new item:

``721. Recoupment of relocation expenses paid to or on behalf of 
              employees of Department.''.
       (c) Effective Date.--Section 721 of title 38, United States 
     Code, as added by subsection (a), shall apply with respect to 
     an amount paid by the Secretary of Veterans Affairs to or on 
     behalf of an employee of the Department of Veterans Affairs 
     for relocation expenses on or after the date of the enactment 
     of this Act.
       (d) Construction.--Nothing in this section or the 
     amendments made by this section may be construed to modify 
     the certification issued by the Office of Personnel 
     Management and the Office of Management and Budget regarding 
     the performance appraisal system of the Senior Executive 
     Service of the Department of Veterans Affairs.

     SEC. 7. SENIOR EXECUTIVES: PERSONNEL ACTIONS BASED ON 
                   PERFORMANCE OR MISCONDUCT.

       (a) Expansion of Covered Personnel Actions.--Section 713 is 
     amended in subsection (a)(1) by inserting after ``such 
     removal.'' the following: ``If the Secretary determines that 
     the performance or misconduct of such an individual does not 
     merit removal from the senior executive service position, the 
     Secretary may suspend, reprimand, or admonish the 
     individual.''.
       (b) Removal of Appeal to Merit Systems Protection Board.--
     Section 713 is further amended--
       (1) in subsection (a)--
       (A) in paragraph (1), by striking ``so removes'' and 
     inserting ``removes''; and
       (B) by adding at the end the following:
       ``(3) On the date that is 5 days before taking any 
     personnel action against a senior executive under paragraph 
     (1), the Secretary shall provide the individual with--
       ``(A) notice in writing of the proposed personnel action, 
     including the reasons for such action; and
       ``(B) an opportunity to respond to the proposed personnel 
     action within the 5-day period.'';
       (2) in subsection (b)(2)--
       (A) by striking ``under this section'' and inserting 
     ``under section 723''; and
       (B) by striking the second sentence;
       (3) in subsection (c)--
       (A) by striking ``30'' and inserting ``5''; and
       (B) by striking ``and the reason for such removal or 
     transfer'' and inserting ``, the reason for such removal or 
     transfer, the name and position of the employee, and all 
     charging documents and evidence pertaining to such removal or 
     transfer'';
       (4) by striking subsections (d) and (e) and inserting the 
     following:
       ``(d) Procedure.--(1) The procedures under title 5 shall 
     not apply to any personnel action under this section.
       ``(2) A personnel action under this section--
       ``(A) may be appealed to the Senior Executive Disciplinary 
     Appeals Board under section 723; and
       ``(B) may not be appealed to the Merit Systems Protection 
     Board under section 7701 of title 5.'';
       (5) by redesignating subsections (f) and (g) as subsections 
     (e) and (f), respectively; and
       (6) in subsection (f), as redesignated by paragraph (5), by 
     adding at the end the following:
       ``(4) The term `suspend' means the placing of an individual 
     in a temporary status without duties and pay for a period 
     greater than 14 days.''.
       (c) Removal of Expedited Procedures.--Section 707 of the 
     Veterans Access, Choice, and Accountability Act of 2014 (38 
     U.S.C. 713 note) is amended by--
       (1) striking subsection (b); and
       (2) redesignating subsections (c) and (d) as subsections 
     (b) and (c), respectively.
       (d) Senior Executive Disciplinary Appeals Board.--Chapter 7 
     is further amended by inserting after section 721, as added 
     by section 6, the following new section:

     ``Sec. 723. Senior Executive Disciplinary Appeals Board

       ``(a) The Secretary shall from time to time appoint a board 
     to hear appeals of any personnel action taken under section 
     713. Such board shall be known as the Senior Executive 
     Disciplinary Appeals Board (hereinafter referred to as the 
     `Board'). Each Board shall

[[Page H5401]]

     consist of 3 employees of the Department. The Board shall 
     have exclusive jurisdiction to review any personnel action 
     under section 713.
       ``(b) Upon an appeal of such a personnel action, the Senior 
     Executive Disciplinary Appeals Board shall--
       ``(1) review all evidence provided by the Secretary and the 
     appellant; and
       ``(2) issue a decision not later than 21 days after the 
     date of the appeal.
       ``(c) The Board shall afford an employee appealing a 
     personnel action an opportunity for an oral hearing. If such 
     a hearing is held, the appellant may be represented by 
     counsel.
       ``(d) The Board shall uphold the decision of the Secretary 
     if--
       ``(1) there is substantial evidence supporting the 
     decision; and
       ``(2) the applicable personnel action is within the 
     tolerable bounds of reasonableness.
       ``(e) If the Board issues a decision under this section 
     that reverses or otherwise mitigates the applicable personnel 
     action, the Secretary may reverse the decision of the Board. 
     Consistent with the requirements of subsection (g), the 
     decision of the Secretary under this subsection shall be 
     final.
       ``(f) In any case in which the Board cannot issue a 
     decision in accordance with the 21-day requirement under 
     subsection (b)(2), the personnel action is final.
       ``(g) A petition to review a final order or final decision 
     of the Secretary or the Board under this section shall be 
     filed in the United States Court of Appeals for the Federal 
     Circuit. Any decision by such Court shall be in compliance 
     with section 7462(f)(2) of this title.
       ``(h) During the period beginning on the date on which an 
     individual appeals a removal from the civil service under 
     section 713(d) and ending on the date that the Board or 
     Secretary issues a final decision on such appeal, such 
     individual may not receive any pay, awards, bonuses, 
     incentives, allowances, differentials, student loan 
     repayments, special payments, or benefits.''.
       (e) Technical and Clerical Amendments.--
       (1) Technical amendment.--The section heading of section 
     713 is amended to read as follows: Senior executives: 
     personnel actions based on performance or misconduct.
       (2) Clerical amendments.--The table of contents for such 
     chapter is further amended--
       (A) by striking the item relating to section 713 and 
     inserting the following:

``713. Senior executives: personnel actions based on performance or 
              misconduct.'';
     and
       (B) by adding at the end the following:

``723. Senior Executive Disciplinary Appeals Board.''.
       (f) Rule of Construction.--Nothing in this section or 
     section 731 of title 38, United States Code, (as added by 
     subsection (c)) shall be construed to apply to an appeal of a 
     removal, transfer, or other personnel action that was pending 
     before the date of the enactment of this Act.

     SEC. 8. TREATMENT OF WHISTLEBLOWER COMPLAINTS IN DEPARTMENT 
                   OF VETERANS AFFAIRS.

       (a) In General.--Chapter 7 is further amended by adding at 
     the end the following new subchapter:

               ``SUBCHAPTER II--WHISTLEBLOWER COMPLAINTS

     ``Sec. 741. Whistleblower complaint defined

       ``In this subchapter, the term `whistleblower complaint' 
     means a complaint by an employee of the Department 
     disclosing, or assisting another employee to disclose, a 
     potential violation of any law, rule, or regulation, or gross 
     mismanagement, gross waste of funds, abuse of authority, or 
     substantial and specific danger to public health and safety.

     ``Sec. 742. Treatment of whistleblower complaints

       ``(a) Filing.--(1) In addition to any other method 
     established by law in which an employee may file a 
     whistleblower complaint, an employee of the Department may 
     file a whistleblower complaint in accordance with subsection 
     (g) with a supervisor of the employee.
       ``(2) Except as provided by subsection (d)(1), in making a 
     whistleblower complaint under paragraph (1), an employee 
     shall file the initial complaint with the immediate 
     supervisor of the employee.
       ``(b) Notification.--(1) Not later than four business days 
     after the date on which a supervisor receives a whistleblower 
     complaint by an employee under this section, the supervisor 
     shall notify, in writing, the employee of whether the 
     supervisor determines that there is a reasonable likelihood 
     that the complaint discloses a violation of any law, rule, or 
     regulation, or gross mismanagement, gross waste of funds, 
     abuse of authority, or substantial and specific danger to 
     public health and safety. The supervisor shall retain written 
     documentation regarding the whistleblower complaint and shall 
     submit to the next-level supervisor a written report on the 
     complaint.
       ``(2) On a monthly basis, the supervisor shall submit to 
     the appropriate director or other official who is superior to 
     the supervisor a written report that includes the number of 
     whistleblower complaints received by the supervisor under 
     this section during the month covered by the report, the 
     disposition of such complaints, and any actions taken because 
     of such complaints pursuant to subsection (c). In the case in 
     which such a director or official carries out this paragraph, 
     the director or official shall submit such monthly report to 
     the supervisor of the director or official.
       ``(c) Positive Determination.--If a supervisor makes a 
     positive determination under subsection (b)(1) regarding a 
     whistleblower complaint of an employee, the supervisor shall 
     include in the notification to the employee under such 
     subsection the specific actions that the supervisor will take 
     to address the complaint.
       ``(d) Filing Complaint With Next-Level Supervisors.--(1) If 
     any circumstance described in paragraph (3) is met, an 
     employee may file a whistleblower complaint in accordance 
     with subsection (g) with the next-level supervisor who shall 
     treat such complaint in accordance with this section.
       ``(2) An employee may file a whistleblower complaint with 
     the Secretary if the employee has filed the whistleblower 
     complaint to each level of supervisors between the employee 
     and the Secretary in accordance with paragraph (1).
       ``(3) A circumstance described in this paragraph are any of 
     the following circumstances:
       ``(A) A supervisor does not make a timely determination 
     under subsection (b)(1) regarding a whistleblower complaint.
       ``(B) The employee who made a whistleblower complaint 
     determines that the supervisor did not adequately address the 
     complaint pursuant to subsection (c).
       ``(C) The immediate supervisor of the employee is the basis 
     of the whistleblower complaint.
       ``(e) Transfer of Employee Who Files Whistleblower 
     Complaint.--If a supervisor makes a positive determination 
     under subsection (b)(1) regarding a whistleblower complaint 
     filed by an employee, the Secretary shall--
       ``(1) inform the employee of the ability to volunteer for a 
     transfer in accordance with section 3352 of title 5; and
       ``(2) give preference to the employee for such a transfer 
     in accordance with such section.
       ``(f) Prohibition on Exemption.--The Secretary may not 
     exempt any employee of the Department from being covered by 
     this section.
       ``(g) Whistleblower Complaint Form.--(1) A whistleblower 
     complaint filed by an employee under subsection (a) or (d) 
     shall consist of the form described in paragraph (2) and any 
     supporting materials or documentation the employee determines 
     necessary.
       ``(2) The form described in this paragraph is a form 
     developed by the Secretary, in consultation with the Special 
     Counsel, that includes the following:
       ``(A) An explanation of the purpose of the whistleblower 
     complaint form.
       ``(B) Instructions for filing a whistleblower complaint as 
     described in this section.
       ``(C) An explanation that filing a whistleblower complaint 
     under this section does not preclude the employee from any 
     other method established by law in which an employee may file 
     a whistleblower complaint.
       ``(D) A statement directing the employee to information 
     accessible on the Internet website of the Department as 
     described in section 745(c).
       ``(E) Fields for the employee to provide--
       ``(i) the date that the form is submitted;
       ``(ii) the name of the employee;
       ``(iii) the contact information of the employee;
       ``(iv) a summary of the whistleblower complaint (including 
     the option to append supporting documents pursuant to 
     paragraph (1)); and
       ``(v) proposed solutions to complaint.
       ``(F) Any other information or fields that the Secretary 
     determines appropriate.
       ``(3) The Secretary, in consultation with the Special 
     Counsel, shall develop the form described in paragraph (2) by 
     not later than 60 days after the date of the enactment of 
     this section.

     ``Sec. 743. Adverse actions against supervisory employees who 
       commit prohibited personnel actions relating to 
       whistleblower complaints

       ``(a) In General.--(1) In accordance with paragraph (2), 
     the Secretary shall carry out the following adverse actions 
     against supervisory employees whom the Secretary, an 
     administrative judge, the Merit Systems Protection Board, the 
     Office of Special Counsel, an adjudicating body provided 
     under a union contract, a Federal judge, or the Inspector 
     General of the Department determines committed a prohibited 
     personnel action described in subsection (c):
       ``(A) With respect to the first offense, an adverse action 
     that is not less than a 14-day suspension and not more than 
     removal.
       ``(B) With respect to the second offense, removal.
       ``(2)(A) Except as provided by subparagraph (B), and 
     notwithstanding subsections (b) and (c) of section 7513 and 
     section 7543 of title 5, the provisions of subsections (d) 
     and (e) of section 713 of this title shall apply with respect 
     to an adverse action carried out under paragraph (1).
       ``(B) An employee who is notified of being the subject of a 
     proposed adverse action under paragraph (1) may not be given 
     more than five days following such notification to provide 
     evidence to dispute such proposed adverse action. If the 
     employee does not provide any such evidence, or if the 
     Secretary

[[Page H5402]]

     determines that such evidence is not sufficient to reverse 
     the determination to propose the adverse action, the 
     Secretary shall carry out the adverse action following such 
     five-day period.
       ``(b) Limitation on Other Adverse Actions.--With respect to 
     a prohibited personnel action described in subsection (c), if 
     the Secretary carries out an adverse action against a 
     supervisory employee, the Secretary may carry out an 
     additional adverse action under this section based on the 
     same prohibited personnel action if the total severity of the 
     adverse actions do not exceed the level specified in 
     subsection (a).
       ``(c) Prohibited Personnel Action Described.--A prohibited 
     personnel action described in this subsection is any of the 
     following actions:
       ``(1) Taking or failing to take a personnel action in 
     violation of section 2302 of title 5 against an employee 
     relating to the employee--
       ``(A) filing a whistleblower complaint in accordance with 
     section 742 of this title;
       ``(B) filing a whistleblower complaint with the Inspector 
     General of the Department, the Special Counsel, or Congress;
       ``(C) providing information or participating as a witness 
     in an investigation of a whistleblower complaint in 
     accordance with section 742 or with the Inspector General of 
     the Department, the Special Counsel, or Congress;
       ``(D) participating in an audit or investigation by the 
     Comptroller General of the United States;
       ``(E) refusing to perform an action that is unlawful or 
     prohibited by the Department; or
       ``(F) engaging in communications that are related to the 
     duties of the position or are otherwise protected.
       ``(2) Preventing or restricting an employee from making an 
     action described in any of subparagraphs (A) through (F) of 
     paragraph (1).
       ``(3) Conducting a peer review or opening a retaliatory 
     investigation relating to an activity of an employee that is 
     protected by section 2302 of title 5.
       ``(4) Requesting a contractor to carry out an action that 
     is prohibited by section 4705(b) or section 4712(a)(1) of 
     title 41, as the case may be.

     ``Sec. 744. Evaluation criteria of supervisors and treatment 
       of bonuses

       ``(a) Evaluation Criteria.--(1) In evaluating the 
     performance of supervisors of the Department, the Secretary 
     shall include the criteria described in paragraph (2).
       ``(2) The criteria described in this subsection are the 
     following:
       ``(A) Whether the supervisor treats whistleblower 
     complaints in accordance with section 742.
       ``(B) Whether the appropriate deciding official, 
     performance review board, or performance review committee 
     determines that the supervisor was found to have committed a 
     prohibited personnel action described in section 743(b) by an 
     administrative judge, the Merit Systems Protection Board, the 
     Office of Special Counsel, an adjudicating body provided 
     under a union contract, a Federal judge, or, in the case of a 
     settlement of a whistleblower complaint (regardless of 
     whether any fault was assigned under such settlement), the 
     Secretary.
       ``(b) Bonuses.--(1) The Secretary may not pay to a 
     supervisor described in subsection (a)(2)(B) an award or 
     bonus under this title or title 5, including under chapter 45 
     or 53 of such title, during the one-year period beginning on 
     the date on which the determination was made under such 
     subsection.
       ``(2) Notwithstanding any other provision of law, the 
     Secretary shall issue an order directing a supervisor 
     described in subsection (a)(2)(B) to repay the amount of any 
     award or bonus paid under this title or title 5, including 
     under chapter 45 or 53 of such title, if--
       ``(A) such award or bonus was paid for performance during a 
     period in which the supervisor committed a prohibited 
     personnel action as determined pursuant to such subsection 
     (a)(2)(B);
       ``(B) the Secretary determines such repayment appropriate 
     pursuant to regulations prescribed by the Secretary to carry 
     out this section; and
       ``(C) before such order is made, the supervisor is 
     afforded--
       ``(i) notice of the order and an opportunity to respond to 
     the order; and
       ``(ii) an opportunity to appeal the order to another 
     department or agency of the Federal Government, except that 
     any such department or agency shall issue a final decision 
     with respect to such appeal not later than the date that is 
     30 days after the date the department or agency received such 
     appeal.

     ``Sec. 745. Training regarding whistleblower complaints

       ``(a) Training.--The Secretary, in coordination with the 
     Whistleblower Protection Ombudsman designated under section 
     3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. 
     App.), shall annually provide to each employee of the 
     Department training regarding whistleblower complaints, 
     including--
       ``(1) an explanation of each method established by law in 
     which an employee may file a whistleblower complaint;
       ``(2) an explanation of prohibited personnel actions 
     described by section 743(c) of this title;
       ``(3) with respect to supervisors, how to treat 
     whistleblower complaints in accordance with section 742 of 
     this title;
       ``(4) the right of the employee to petition Congress 
     regarding a whistleblower complaint in accordance with 
     section 7211 of title 5;
       ``(5) an explanation that the employee may not be 
     prosecuted or reprised against for disclosing information to 
     Congress in instances where such disclosure is permitted by 
     law, including under sections 5701, 5705, and 7742 of this 
     title, under section 552a of title 5 (commonly referred to as 
     the Privacy Act), under chapter 93 of title 18, and pursuant 
     to regulations promulgated under section 264(c) of the Health 
     Insurance Portability and Accountability Act of 1996 (Public 
     Law 104-191);
       ``(6) an explanation of the language that is required to be 
     included in all nondisclosure policies, forms, and agreements 
     pursuant to section 115(a)(1) of the Whistleblower Protection 
     Enhancement Act of 2012 (5 U.S.C. 2302 note); and
       ``(7) the right of contractors to be protected from 
     reprisal for the disclosure of certain information under 
     section 4705 or 4712 of title 41.
       ``(b) Certification.--The Secretary shall annually provide 
     training on merit system protection in a manner that the 
     Special Counsel certifies as being satisfactory.
       ``(c) Publication.--(1) The Secretary shall publish on the 
     Internet website of the Department, and display prominently 
     at each facility of the Department, the rights of an employee 
     to file a whistleblower complaint, including the information 
     described in paragraphs (1) through (7) of subsection (a).
       ``(2) The Secretary shall publish on the Internet website 
     of the Department, the whistleblower complaint form described 
     in section 742(g)(2).

     ``Sec. 746. Notice to Congress

       ``Not later than 30 days after the date on which the 
     Secretary receives from the Special Counsel information 
     relating to a whistleblower complaint pursuant to section 
     1213 of title 5, the Secretary shall notify the Committees on 
     Veterans' Affairs of the House of Representatives and the 
     Senate, the Committee on Oversight and Government Reform of 
     the House of Representatives, and the Committee on Homeland 
     Security and Governmental Affairs of the Senate of such 
     information, including the determination made by the Special 
     Counsel.''.
       (b) Conforming and Clerical Amendments.--
       (1) Conforming amendment.--Such chapter is further amended 
     by inserting before section 701 the following:

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

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

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

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

                ``subchapter ii--whistleblower complaints

``741. Whistleblower complaint defined.
``742. Treatment of whistleblower complaints.
``743. Adverse actions against supervisory employees who commit 
              prohibited personnel actions relating to whistleblower 
              complaints.
``744. Evaluation criteria of supervisors and treatment of bonuses.
``745. Training regarding whistleblower complaints.
``746. Notice to Congress.''.

     SEC. 9. APPEALS REFORM.

       (a) Definitions.--Section 101 of title 38, United States 
     Code, is amended by adding at the end the following new 
     paragraphs:
       ``(34) The term `Agency of Original Jurisdiction' means the 
     activity which entered the original determination with regard 
     to a claim for benefits under this title.
       ``(35) The term `relevant evidence' means evidence that 
     tends to prove or disprove a matter in issue.''.
       (b) Notice to Claimants of Required Information and 
     Evidence.--Section 5103 of title 38, United States Code, is 
     amended--
       (1) in subsection (a)(2)(B)(i) by striking ``, a claim for 
     reopening a prior decision on a claim, or a claim for an 
     increase in benefits;'' and inserting ``or a supplemental 
     claim;''; and
       (2) in subsection (b) by adding at the end the following 
     new paragraph:
       ``(6) Nothing in this section shall require notice to be 
     sent for a supplemental claim that is filed within the 
     timeframe set forth in subsections (a)(2)(B) and (a)(2)(D) of 
     section 5110 of this title.''.
       (c) Rule With Respect to Disallowed Claims.--Section 
     5103A(f) of title 38, United States Code, is amended to read 
     as follows:
       ``(f) Rule With Respect to Disallowed Claims.--Nothing in 
     this section shall be construed to require the Secretary to 
     readjudicate a claim that has been disallowed except when new 
     and relevant evidence is presented or secured, as described 
     in section 5108 of this title.''.
       (d) Other Matters.--Chapter 51 of title 38, United States 
     Code, is amended by inserting after section 5103A the 
     following new sections:

     ``Sec. 5103B. Applicability of duty to assist

       ``(a) Time Frame.--The Secretary's duty to assist under 
     section 5103A of this title shall

[[Page H5403]]

     apply only to a claim, or supplemental claim, for a benefit 
     under a law administered by the Secretary until the time that 
     a claimant is provided notice of the decision of the agency 
     of original jurisdiction decision with respect to such claim, 
     or supplemental claim, under section 5104 of this title.
       ``(b) Non-Applicability to Certain Reviews and Appeals.--
     The Secretary's duty to assist under section 5103A of this 
     title shall not apply to higher-level review by the agency of 
     original jurisdiction, pursuant to section 5104B of this 
     title, or to review on appeal by the Board of Veterans' 
     Appeals.
       ``(c) Correction of Duty To Assist Errors.--(1) If, during 
     review of the decision of the agency of original jurisdiction 
     under section 5104B of this title, the higher-level reviewer 
     identifies an error on the part of the agency of original 
     jurisdiction to satisfy its duties under section 5103A of 
     this title, and that error occurred prior to the decision of 
     the agency of original jurisdiction being reviewed, the 
     higher-level reviewer shall return the claim for correction 
     of such error and readjudication unless the claim can be 
     granted in full.
       ``(2) If the Board, during review on appeal of a decision 
     of the agency of original jurisdiction decision, identifies 
     an error on the part of the agency of original jurisdiction 
     to satisfy its duties under section 5103A of this title, and 
     that error occurred prior to the decision of the agency of 
     original jurisdiction on appeal, the Board shall remand the 
     claim to the agency of original jurisdiction for correction 
     of such error and readjudication unless the claim can be 
     granted in full. Remand for correction of such error may 
     include directing the agency of original jurisdiction to 
     obtain an advisory medical opinion under section 5109 of this 
     title.

     ``Sec. 5104A. Binding nature of favorable findings

       ``Any finding favorable to the claimant as described in 
     section 5104(b)(4) of this title shall be binding on all 
     subsequent adjudicators within the department, unless clear 
     and convincing evidence is shown to the contrary to rebut 
     such favorable finding.

     ``Sec. 5104B. Higher-level review by the agency of original 
       jurisdiction

       ``(a) In General.--The claimant may request a review of the 
     decision of the agency of original jurisdiction by a higher-
     level adjudicator within the jurisdiction of the agency of 
     original jurisdiction.
       ``(b) Time and Manner of Request.--A request for higher-
     level review by the agency of original jurisdiction must be 
     in writing in the form prescribed by the Secretary and made 
     within one year of the notice of the decision of the agency 
     of original jurisdiction. Such request may specifically 
     indicate whether such review is requested by a higher-level 
     adjudicator at the same office within the agency of original 
     jurisdiction or by an adjudicator at a different office of 
     the agency of original jurisdiction.
       ``(c) Decision.--Notice of a higher-level review decision 
     under this section shall be provided in writing.
       ``(d) Evidentiary Record for Review.--The evidentiary 
     record before the higher-level reviewer shall be limited to 
     the evidence of record in the decision of the agency of 
     original jurisdiction being reviewed.
       ``(e) De Novo Review.--Higher-level review under this 
     section shall be de novo.''.
       (e) Notice of Decisions.--Section 5104(b) of title 38, 
     United States Code, is amended to read as follows:
       ``(b) In any case where the Secretary denies a benefit 
     sought, the notice required by subsection (a) shall also 
     include--
       ``(1) identification of the issues adjudicated;
       ``(2) a summary of the evidence considered by the 
     Secretary;
       ``(3) a summary of the applicable laws and regulations;
       ``(4) identification of findings favorable to the claimant;
       ``(5) identification of elements not satisfied leading to 
     the denial;
       ``(6) an explanation of how to obtain or access evidence 
     used in making the decision; and
       ``(7) if applicable, identification of the criteria that 
     must be satisfied to grant service connection or the next 
     higher level of compensation.''.
       (f) Supplemental Claims.--Section 5108 of title 38, United 
     States Code, is amended to read as follows:

     ``Sec. 5108. Supplemental claims

       ``If new and relevant evidence is presented or secured with 
     respect to a supplemental claim, the Secretary shall 
     readjudicate the claim taking into consideration any evidence 
     added to the record prior to the former disposition of the 
     claim.''.
       (g) Remands for Medical Opinions.--Section 5109 of title 
     38, United States Code, is amended by adding at the end the 
     following new subsection:
       ``(d) The Board of Veterans' Appeals may remand a claim to 
     direct the agency of original jurisdiction to obtain an 
     advisory medical opinion under this section to correct an 
     error on the part of the agency of original jurisdiction to 
     satisfy its duties under section 5103A of this title when 
     such error occurred prior to the decision of the agency of 
     original jurisdiction on appeal. The Board's remand 
     instructions shall include the questions to be posed to the 
     independent medical expert providing the advisory medical 
     opinion.''.
       (h) Effective Dates of Awards.--Section 5110 of title 38, 
     United States Code, is amended--
       (1) by striking subsection (a) and inserting the following 
     new subsection (a):
       ``(a)(1) Unless specifically provided otherwise in this 
     chapter, the effective date of an award based on an initial 
     claim, or a supplemental claim, of compensation, dependency 
     and indemnity compensation, or pension, shall be fixed in 
     accordance with the facts found, but shall not be earlier 
     than the date of receipt of application therefor.
       ``(2) For purposes of applying the effective date rules in 
     this section, the date of application shall be considered the 
     date of the filing of the initial application for a benefit 
     provided that the claim is continuously pursued by filing any 
     of the following either alone or in succession:
       ``(A) A request for higher-level review under section 5104B 
     of this title within one year of an agency of original 
     jurisdiction decision.
       ``(B) A supplemental claim under section 5108 of this title 
     within one year of an agency of original jurisdiction 
     decision.
       ``(C) A notice of disagreement within one year of an agency 
     of original jurisdiction decision.
       ``(D) A supplemental claim under section 5108 of this title 
     within one year of a decision of the Board of Veterans' 
     Appeals.
       ``(3) Except as otherwise provided in this section, for 
     supplemental claims received more than one year after an 
     agency of original jurisdiction decision or a decision by the 
     Board of Veterans' Appeals, the effective date shall be fixed 
     in accordance with the facts found, but shall not be earlier 
     than the date of receipt of the supplemental claim.''; and
       (2) in subsection (i) by--
       (A) striking ``reopened'' and inserting ``readjudicated'';
       (B) striking ``material'' and inserting ``relevant''; and
       (C) striking ``reopening'' and inserting 
     ``readjudication''.
       (i) Definition of Award or Increased Reward.--Section 
     5111(d)(1) of title 38, United States Code, is amended by 
     striking ``or reopened award;'' and inserting ``award or 
     award based on a supplemental claim;''.
       (j) Recognition of Agents and Attorneys Generally.--Section 
     5904 of title 38, United States Code, is amended--
       (1) in subsection (c)(1) by striking ``notice of 
     disagreement is filed'' and inserting ``claimant is provided 
     notice of the initial decision of the agency of original 
     jurisdiction under section 5104 of this title''; and
       (2) in subsection (c)(2) by striking ``notice of 
     disagreement is filed'' and inserting ``claimant is provided 
     notice of the initial decision of the agency of original 
     jurisdiction under section 5104 of this title''.
       (k) Correction of Obvious Errors.--Section 7103 of title 
     38, United States Code, is amended--
       (1) in subsection (b)(1)(A) by striking ``heard'' and 
     inserting ``decided''; and
       (2) in subsection (b)(1)(B) by striking ``heard'' and 
     inserting ``decided''.
       (l) Jurisdiction of Board.--Section 7104(b) of title 38, 
     United States Code, is amended by striking ``reopened'' and 
     inserting ``readjudicated''.
       (m) Filing of Appeal.--Section 7105 of title 38, United 
     States Code, is amended--
       (1) in subsection (a)--
       (A) by striking the first sentence and inserting 
     ``Appellate review will be initiated by the filing of a 
     notice of disagreement in the form prescribed by the 
     Secretary.''; and
       (B) by striking ``hearing and'';
       (2) by amending subsection (b) to read as follows:
       ``(b)(1) Except in the case of simultaneously contested 
     claims, notice of disagreement shall be filed within one year 
     from the date of the mailing of notice of the decision of the 
     agency of original jurisdiction under section 5104, 5104B, or 
     5108 of this title. A notice of disagreement postmarked 
     before the expiration of the one-year period will be accepted 
     as timely filed. A question as to timeliness or adequacy of 
     the notice of disagreement shall be decided by the Board.
       ``(2) Notices of disagreement must be in writing, must set 
     out specific allegations of error of fact or law, and may be 
     filed by the claimant, the claimant's legal guardian, or such 
     accredited representative, attorney, or authorized agent as 
     may be selected by the claimant or legal guardian. Not more 
     than one recognized organization, attorney, or agent will be 
     recognized at any one time in the prosecution of a claim. 
     Notices of disagreement must be filed with the Board.
       ``(3) The notice of disagreement shall indicate whether the 
     claimant requests a hearing before the Board, requests an 
     opportunity to submit additional evidence without a Board 
     hearing, or requests review by the Board without a hearing or 
     submission of additional evidence. If the claimant does not 
     expressly request a Board hearing in the notice of 
     disagreement, no Board hearing will be held.'';
       (3) by amending subsection (c) to read as follows:
       ``(c) If no notice of disagreement is filed in accordance 
     with this chapter within the prescribed period, the action or 
     decision of the agency of original jurisdiction shall become 
     final and the claim will not thereafter be readjudicated or 
     allowed, except as may otherwise be provided by section 5104B 
     or 5108 of this title or regulations not inconsistent with 
     this title.'';
       (4) by striking subsections (d)(1) through (d)(5);
       (5) by adding a new subsection (d) to read as follows:

[[Page H5404]]

       ``(d) The Board of Veterans' Appeals may dismiss any appeal 
     which fails to allege specific error of fact or law in the 
     decision being appealed.''; and
       (6) by striking subsection (e).
       (n) Simultaneously Contested Claims.--Subsection (b) of 
     section 7105A of title 38, United States Code, is amended to 
     read as follows:
       ``(b) The substance of the notice of disagreement shall be 
     communicated to the other party or parties in interest and a 
     period of 30 days shall be allowed for filing a brief or 
     argument in response thereto. Such notice shall be forwarded 
     to the last known address of record of the parties concerned, 
     and such action shall constitute sufficient evidence of 
     notice.''.
       (o) Administrative Appeals.--Strike section 7106 of title 
     38, United States Code.
       (p) Dockets and Hearings.--Section 7107 of title 38, United 
     States Code, is amended--
       (1) by amending subsection (a) to read as follows:
       ``(a) The Board shall maintain two separate dockets. A non-
     hearing option docket shall be maintained for cases in which 
     no Board hearing is requested and no additional evidence will 
     be submitted. A separate and distinct hearing option docket 
     shall be maintained for cases in which a Board hearing is 
     requested in the notice of disagreement or in which no Board 
     hearing is requested, but the appellant requests, in the 
     notice of disagreement, an opportunity to submit additional 
     evidence. Except as provided in subsection (b), each case 
     before the Board will be decided in regular order according 
     to its respective place on the Board's non-hearing option 
     docket or the hearing option docket.'';
       (2) by amending subsection (b) to read as follows:
       ``(b) A case on either the Board's non-hearing option 
     docket or hearing option docket, may, for cause shown, be 
     advanced on motion for earlier consideration and 
     determination. Any such motion shall set forth succinctly the 
     grounds upon which the motion is based. Such a motion may be 
     granted only--
       ``(1) if the case involves interpretation of law of general 
     application affecting other claims;
       ``(2) if the appellant is seriously ill or is under severe 
     financial hardship; or
       ``(3) for other sufficient cause shown.'';
       (3) by amending subsection (c) to read as follows:
       ``(c)(1) For cases on the Board hearing option docket in 
     which a hearing is requested in the notice of disagreement, 
     the Board shall notify the appellant whether a Board hearing 
     will be held--
       ``(A) at its principal location, or
       ``(B) by picture and voice transmission at a facility of 
     the Department where the Secretary has provided suitable 
     facilities and equipment to conduct such hearings.
       ``(2)(A) Upon notification of a Board hearing at the 
     Board's principal location as described in subsection 
     (c)(1)(A) of this section, the appellant may alternatively 
     request a hearing as described in subsection (c)(1)(B) of 
     this section. If so requested, the Board shall grant such 
     request.
       ``(B) Upon notification of a Board hearing by picture and 
     voice transmission as described in subsection (c)(1)(B) of 
     this section, the appellant may alternatively request a 
     hearing as described in subsection (c)(1)(A) of this section. 
     If so requested, the Board shall grant such request.''; and
       (4) by striking subsections (d) and (e) and redesignating 
     subsection (f) as subsection (d).
       (q) Independent Medical Opinions.--Strike section 7109 of 
     title 38, United States Code.
       (r) Revision of Decisions on Grounds of Clear and 
     Unmistakable Error.--Section 7111(e) of title 38, United 
     States Code, is amended by striking ``merits, without 
     referral to any adjudicative or hearing official acting on 
     behalf of the Secretary.'' and inserting ``merits.''.
       (s) Evidentiary Record.--Chapter 71 of title 38, United 
     States Code, is amended by adding the following new section:

     ``Sec. 7113. Evidentiary record before the board

       ``(a) Non-Hearing Option Docket.--For cases in which a 
     Board hearing is not requested in the notice of disagreement, 
     the evidentiary record before the Board shall be limited to 
     the evidence of record at the time of the agency of original 
     jurisdiction decision on appeal.
       ``(b) Hearing Option Docket.--(1) Except as provided in 
     paragraph (2), for cases on the hearing option docket in 
     which a hearing is requested in the notice of disagreement, 
     the evidentiary record before the Board shall be limited to 
     the evidence of record at the time of the agency of original 
     jurisdiction decision on appeal.
       ``(2) The evidentiary record before the Board for cases on 
     the hearing option docket in which a hearing is requested, 
     shall include each of the following, which the Board shall 
     consider in the first instance--
       ``(A) evidence submitted by the appellant and his or her 
     representative, if any, at the Board hearing; and
       ``(B) evidence submitted by the appellant and his or her 
     representative, if any, within 90 days following the Board 
     hearing.
       ``(3)(A) Except as provided in subparagraph (B) of this 
     paragraph, for cases on the hearing option docket in which a 
     hearing is not requested in the notice of disagreement, the 
     evidentiary record before the Board shall be limited to the 
     evidence considered by the agency of original jurisdiction in 
     the decision on appeal.
       ``(B) The evidentiary record before the Board for cases on 
     the hearing option docket in which a hearing is not 
     requested, shall include each of the following, which the 
     Board shall consider in the first instance--
       ``(i) evidence submitted by the appellant and his or her 
     representative, if any, with the notice of disagreement; and
       ``(ii) evidence submitted by the appellant and his or her 
     representative, if any, within 90 days following receipt of 
     the notice of disagreement.''.
       (t) Conforming Amendment.--The heading of section 7105 is 
     amended by striking ``notice of disagreement and''.
       (u) Clerical Amendments.--
       (1) Chapter 51.--The table of sections at the beginning of 
     chapter 51 of title 38, United States Code, is amended--
       (A) by inserting after the item relating to section 5103A 
     the following new item:

``5103B. Applicability of duty to assist.'';
     and
       (B) by inserting after the item relating to section 5104 
     the following new items:

``5104A. Binding nature of favorable findings.
``5104B. Higher-level review by the agency of original jurisdiction.'';
     and
       (C) by striking the item relating to section 5108 and 
     inserting the following new item:

``5108. Supplemental claims.''.
       (2) Chapter 71.--The table of sections at the beginning of 
     chapter 71 of title 38, United States Code, is amended--
       (A) by striking the item relating to section 7105 and 
     inserting the following new item:

``7105. Filing of appeal.'';
       (B) by striking the item relating to section 7106;
       (C) by striking the item relating to section 7109; and
       (D) by adding at the end the following new item:

``7113. Evidentiary record before the Board.''.

     SEC. 10. LIMITATION ON AWARDS AND BONUSES PAID TO SENIOR 
                   EXECUTIVE EMPLOYEES OF DEPARTMENT OF VETERANS 
                   AFFAIRS.

       Section 705 of the Veterans Access, Choice, and 
     Accountability Act of 2014 (Public Law 113-146; 38 U.S.C. 703 
     note) is amended by striking the period at the end and 
     inserting the following: ``, except that during each of 
     fiscal years 2017 through 2021, no award or bonus may be paid 
     to any employee of the Department of Veterans Affairs who is 
     a member of the Senior Executive Service.''.

  The Acting CHAIR. No amendment to the bill shall be in order except 
those printed in House Report 114-742. Each such amendment may be 
offered only in the order printed in the report, by a Member designated 
in the report, shall be considered as read, shall be debatable for the 
time specified in the report, equally divided and controlled by the 
proponent and an opponent, shall not be subject to amendment, and shall 
not be subject to a demand for division of the question.


            Amendment No. 1 Offered by Mr. Miller of Florida

  The Acting CHAIR. It is now in order to consider amendment No. 1 
printed in House Report 114-742.
  Mr. MILLER of Florida. Mr. Chairman, I rise to offer an amendment.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 4, beginning on line 16, strike ``under section 7701 
     of title 5''.
       Page 11, strike lines 11 through 14 and insert the 
     following:
       ``(B) before such order is made, the individual is 
     afforded--
       ``(i) notice of the order and an opportunity to respond to 
     the order; and
       ``(ii) an opportunity to appeal the order to another 
     department or agency of the Federal Government.''.
       Page 14, strike lines 20 through 23 and insert the 
     following:
       ``(2) before such repayment, the employee is afforded--
       ``(A) notice of the order and an opportunity to respond to 
     the order; and
       ``(B) an opportunity to appeal the order to another 
     department or agency of the Federal Government.''.
       Page 20, line 8, insert ``consistent with paragraph (3),'' 
     before ``may''.
       Page 20, after line 11, insert the following:
       ``(3) An appeal of a personnel action pursuant to paragraph 
     (2)(A) must be filed with the Senior Executive Disciplinary 
     Appeals Board not later than the date that is seven days 
     after the date of such action. If such appeal is not made 
     within the seven-day period, the personnel action shall be 
     final and not subject to further appeal.''.
       Page 29, strike lines 13 through 18 and insert the 
     following:
       ``(2)(A) Except as provided by subparagraph (B), with 
     respect to a supervisory employee subject to an adverse 
     action under this section who is--
       ``(i) an individual as that term is defined in section 
     715(i)(1) of this title, the procedures under subsections (d) 
     and (e) of section 715 of this title shall apply; and
       ``(ii) an individual as that term is defined in section 
     713(g)(1) of this title, the procedures under section 713(d) 
     of this title shall apply.''.

[[Page H5405]]

       Page 29, line 21, strike ``five days'' and insert ``ten 
     days''.
       Page 30, line 2, strike ``five-day'' and insert ``ten-
     day''.
       Page 33, line 17, strike ``except that'' and all that 
     follows through the period on line 21 and insert ``except 
     that--''

       (I) any such department or agency shall issue a final 
     decision with respect to such appeal not later than the date 
     that is 30 days after the date the department or agency 
     received such appeal; and
       (II) if such a final decision is not made by the applicable 
     department or agency within 30 days after receiving such 
     appeal, the order of the Secretary shall be final and not 
     subject to further appeal.

       Page 34, line 19, strike ``7742'' and insert ``7332''.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from Florida (Mr. Miller) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Florida.
  Mr. MILLER of Florida. Mr. Chairman, specifically, this would provide 
technical, conforming, and clarifying language changes to the bill 
while not changing the substance of the bill. It would also align the 
pre-notice and due process language on three of the sections relating 
to bonus, pension, and relocation expenses. And it would also align the 
pre-notice requirements for whistleblower retaliators who are receiving 
an adverse action to the same amount of time as other disciplinary 
actions in the bill.
  This amendment is noncontroversial, it doesn't cost a penny, and it 
doesn't change any of the underlying policy.
  I urge adoption of the amendment.
  I reserve the balance of my time.
  Mr. TAKANO. Mr. Chair, I rise in opposition to the amendment.
  The Acting CHAIR. The gentleman from California is recognized for 5 
minutes.
  Mr. TAKANO. Mr. Chair, this amendment really changes nothing 
favorably, from our point of view, in H.R. 5620. It does not cure the 
fundamental flaws in the bill which relate to its possible 
unconstitutionality, and, therefore, I will oppose the amendment.
  I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I am very sorry that my good 
friend would oppose something as simple as a technical and conforming 
amendment, but I accept this opposition.
  I reserve the balance of my time.
  Mr. TAKANO. Mr. Chair, I have no further comments, and I yield back 
the balance of my time.
  Mr. MILLER of Florida. Mr. Chair, I urge adoption of my amendment, 
and I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from Florida (Mr. Miller).
  The amendment was agreed to.

                              {time}  1815


                  Amendment No. 2 Offered by Mr. Walz

  The Acting CHAIR. It is now in order to consider amendment No. 2 
printed in House Report 114-742.
  Mr. WALZ. Mr. Chair, I have an amendment at the desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 1, line 5, strike ``VA Accountability First and''.
       Page 2, beginning line 3, strike sections 2 through 8.
       Page 53, beginning line 14, strike section 10.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from Minnesota (Mr. Walz) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Minnesota.
  Mr. WALZ. Mr. Chairman, I have three amendments that are coming up. 
On this first one, I am going to yield time to my colleague, who is the 
author of the original bill.
  I just wanted to say, first of all, in appreciation to the chairman 
of the full committee, the bipartisan manner of approaching this is in 
the long tradition of the House Veterans' Affairs Committee. It is also 
in the long tradition of the chairman himself, welcoming ideas, trying 
to strike balances, having legitimate differences that are meant to be 
discussed--for that, I am grateful--and also for restoring regular 
order.
  Making our amendments in order to try to improve upon a bill is 
something that is a time-honored tradition here. Unfortunately, it has 
not been the norm. So the chairman's leadership on that issue is 
greatly appreciated.
  This amendment I want to be very clear about when the gentlewoman 
from Nevada (Ms. Titus) talks about it.
  The amendment does not disagree with the basic premise of the reform. 
There are legitimate differences amongst us here. We will work those 
out. But it is a harsh reality that we don't have a Senate companion on 
this. The chance that the White House is going to sign the reform piece 
into law is nonexistent. But there is a piece of this that is 
noncontroversial that is critically important, and that is the appeals 
process.
  The ranking member, under the leadership of Ms. Titus, has recognized 
this as an issue, brought about bipartisan solutions to it; and it can 
be passed and be signed by the President and be positively affecting 
veterans right away.
  That doesn't diminish the need for the reforms. It doesn't question 
the value of the things that are being brought forward. It is a 
political reality that we are better off to move on a piece we know can 
be signed into law than to wait for something that can't.
  Mr. Chair, I yield such time as she may consume to the gentlewoman 
from Nevada (Ms. Titus), the author of this legislation.
  Ms. TITUS. I thank my friend from Minnesota (Mr. Walz) for yielding 
to me and for helping me with this amendment.
  Mr. Chair, this is very simple. It would just remove all of the 
accountability provisions from the bill and give the House an 
opportunity to send a clean reform bill to the Senate.
  While we all agree that accountability for employees at the VA is 
critical, we should separate these two issues, pass appeals reform, and 
then work in a bipartisan manner on the accountability issues.
  Rather than send another accountability bill to the Senate, which is 
opposed by the administration, we should pass this amendment and send 
to the President a clean bill that can be signed right away and fix 
this deeply flawed, old, outdated appeals process.
  I am proud to have worked with various VSOs and the VA to develop the 
overhaul of appealing VA benefits claims. As I said earlier, the 
current system is broken, and every day it gets worse. More appeals are 
added to the backlog. It has ballooned to 450,000 claims. If we don't 
act now, veterans will soon have to wait a decade before their appeals 
can be adjudicated.
  Passing this amendment will allow us to address this growing problem 
now instead of subjecting our veterans not to good policy, but to bad 
politics.
  Mr. WALZ. Mr. Chair, I want to, again, thank the chairman.
  This is not an attempt to derail the reforms. It is an attempt to try 
to get something passed and done immediately. I certainly welcome the 
chairman's advice, guidance, suggestions on ways that we can make that 
happen in the most expedient manner.
  Mr. Chair, I yield back the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I rise in opposition to the 
amendment.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.
  Mr. MILLER of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Before I begin, let me say I believe that there is only one piece of 
legislation that has been filed at this point in the Senate that deals 
with--I know there are folks that have been talking about it--appeals 
reform, and that is Senator Rubio. Senator Rubio has the companion to 
this piece of legislation that has been filed in the Senate.
  As has already been stated, this removes every section from the 
underlying bill, except for the appeals modernization. It would strike 
out all the accountability provisions, many of which have already 
passed this House of Representatives.
  The underlying bill already includes revised accountability language 
that would make significant concessions towards the minority's position 
as it relates to due process. And I don't believe anybody on the 
minority side can say that this doesn't.
  I believe that any reform that passes this Congress is doomed to fail 
if we don't provide the Secretary of the Department of Veterans Affairs 
with the

[[Page H5406]]

authority he needs to swiftly and fairly discipline employees.
  If this amendment passes, the same antiquated and broken civil 
service system will remain in place.
  As I have already said, 18 VSOs believe the accountability provisions 
are critical to the success of reforming the Department of Veterans 
Affairs.
  From the VFW:

       For far too long, underperforming employees have been 
     allowed to continue working at VA simply because the 
     processes for removal are so protracted.
       The VFW believes that employees should have some layer of 
     protection, but that true accountability must be enforced for 
     those who willfully fail to meet the standard.
       This is critical to ensuring that VA consistently provides 
     the highest quality services, as continuing to restore 
     veterans' faith in the Department.

  From the American Legion:

       Veterans deserve a first-rate agency to provide for their 
     needs, and the VA is an excellent agency that is, 
     unfortunately, marred from time to time by bad actors that 
     the complicated system of discipline makes it difficult to 
     remove.
       Legislation to improve that process and make it easier to 
     deal with these few problem employees would help restore 
     trust.

  In short, our VSOs understand how critical both of the appeals and 
accountability provisions are, and we should listen to them.
  Mr. Chair, I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from Minnesota (Mr. Walz).
  The question was taken; and the Acting Chair announced that the noes 
appeared to have it.
  Mr. TAKANO. Mr. Chair, I demand a recorded vote.
  The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from Minnesota 
will be postponed.


                 Amendment No. 3 Offered by Mr. Takano

  The Acting CHAIR. It is now in order to consider amendment No. 3 
printed in House Report 114-742.
  Mr. TAKANO. Mr. Chair, I have an amendment at the desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Strike section 3 and insert the following:

     SEC. 3. SUSPENSION AND REMOVAL OF DEPARTMENT OF VETERANS 
                   AFFAIRS EMPLOYEES FOR PERFORMANCE OR MISCONDUCT 
                   THAT IS A THREAT TO PUBLIC HEALTH OR SAFETY.

       (a) In General.--Chapter 7 of title 38, United States Code, 
     is amended by adding after section 713 the following new 
     section:

     ``Sec. 715. Employees: suspension and removal for performance 
       or misconduct that is a threat to public health or safety

       ``(a) Suspension and Removal.--Subject to subsections (b) 
     and (c), the Secretary may--
       ``(1) suspend without pay an employee of the Department of 
     Veterans Affairs if the Secretary determines the performance 
     or misconduct of the employee is a threat to public health or 
     safety, including the health and safety of veterans; and
       ``(2) remove an employee suspended under paragraph (1) 
     when, after such investigation and review as the Secretary 
     considers necessary, the Secretary determines that removal is 
     necessary in the interests of public health or safety.
       ``(b) Procedure.--An employee suspended under subsection 
     (a)(1) is entitled, after suspension and before removal, to--
       ``(1) within 30 days after suspension, a written statement 
     of the specific charges against the employee, which may be 
     amended within 30 days thereafter;
       ``(2) an opportunity within 30 days thereafter, plus an 
     additional 30 days if the charges are amended, to answer the 
     charges and submit affidavits;
       ``(3) a hearing, at the request of the employee, by a 
     Department authority duly constituted for this purpose;
       ``(4) a review of the case by the Secretary, before a 
     decision adverse to the employee is made final; and
       ``(5) written statement of the decision of the Secretary.
       ``(c) Relation to Other Disciplinary Rules.--The authority 
     provided under this section shall be in addition to the 
     authority provided under section 713 and title 5 with respect 
     to disciplinary actions for performance or misconduct.
       ``(d) Back Pay for Whistleblowers.--If any employee of the 
     Department of Veterans Affairs is subject to a suspension or 
     removal under this section and such suspension or removal is 
     determined by an appropriate authority under applicable law, 
     rule, regulation, or collective bargaining agreement to be a 
     prohibited personnel practice described under section 
     2302(b)(8) or (9) of title 5, such employee shall receive 
     back pay equal to the total amount of basic pay that such 
     employee would have received during the period that the 
     suspension and removal (as the case may be) was in effect, 
     less any amounts earned by the employee through other 
     employment during that period.
       ``(e) Definitions.--In this section, the term `employee' 
     means any individual occupying a position within the 
     Department of Veterans Affairs under a permanent or 
     indefinite appointment and who is not serving a probationary 
     or trial period.''.
       (b) Clerical and Conforming Amendments.--
       (1) Clerical.--The table of sections at the beginning of 
     such chapter is amended by adding after the item relating to 
     section 713 the following new item:

``715. Employees: suspension and removal for performance or misconduct 
              that is a threat to public health or safety.''.

       (2) Conforming.--Section 4303(f) of title 5, United States 
     Code, is amended--
       (A) by striking ``or'' at the end of paragraph (2);
       (B) by striking the period at the end of paragraph (3) and 
     inserting ``, or''; and
       (C) by adding at the end the following:
       ``(4) any suspension or removal under section 715 of title 
     38.''.
       (c) Report on Suspensions and Removals.--Not later than one 
     year after the date of the enactment of this Act, the 
     Inspector General of the Department of Veterans Affairs shall 
     submit to the Committees on Veterans' Affairs of the House of 
     Representatives and the Senate a report on suspensions and 
     removals of employees of the Department made under section 
     715 of title 38, United States Code, as added by subsection 
     (a). Such report shall include, with respect to the period 
     covered by the report, the following:
       (1) The number of employees who were suspended under such 
     section.
       (2) The number of employees who were removed under such 
     section.
       (3) A description of the threats to public health or safety 
     that caused such suspensions and removals.
       (4) The number of such suspensions or removals, or proposed 
     suspensions or removals, that were of employees who filed a 
     complaint regarding--
       (A) an alleged prohibited personnel practice committed by 
     an officer or employee of the Department and described in 
     section 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D) of 
     title 5, United States Code; or
       (B) the safety of a patient at a medical facility of the 
     Department.
       (5) Of the number of suspensions and removals listed under 
     paragraph (4), the number that the Inspector General 
     considers to be retaliation for whistleblowing.
       (6) The number of such suspensions or removals that were of 
     an employee who was the subject of a complaint made to the 
     Department regarding the health or safety of a patient at a 
     medical facility of the Department.
       (7) Any recommendations by the Inspector General, based on 
     the information described in paragraphs (1) through (6), to 
     improve the authority to make such suspensions and removals.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from California (Mr. Takano) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from California.
  Mr. TAKANO. Mr. Chair, I rise in support of my amendment, which would 
ensure that any VA employee whose performance or misconduct threatens 
public health or safety, including the health and safety of veterans, 
be immediately suspended without pay.
  Specifically, it replaces section 3 of H.R. 5620 with a new provision 
allowing the Secretary to take lawful and abrupt action in extreme 
cases in which immediate action is warranted.
  My amendment would also give the Secretary the authority to remove a 
suspended employee, after a thorough investigation and review, if the 
Secretary determines removal is in the interest of public health and 
safety.
  Both parties share the desire to protect veterans from mistreatment 
or harm, especially when they are seeking medical care at a VA 
hospital, but the current language in this bill will not accomplish 
that goal.
  The process for removing dangerous employees in H.R. 5620 is 
unconstitutional, and any action it authorized against underperforming 
VA employees would not hold up in court. Instead of achieving the 
majority's stated outcome of removing VA employees whose misconduct 
harms veterans, this bill would produce expensive legal costs, and it 
would fail to hold bad employees accountable.
  My amendment is specifically designed to make sure the Secretary has 
the authority to immediately suspend any VA employee whose behavior 
threatens the health and safety of veterans and that the suspended 
employee receives no pay while the investigation is carried out.

[[Page H5407]]

  I urge my colleagues to support the amendment.
  Mr. Chair, I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I rise in opposition to the 
amendment.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.
  Mr. MILLER of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  I appreciate the ranking member's attempt to insert what he thinks is 
the appropriate balance of due process and accountability, but this 
confusing language fails to achieve a balance. What it actually does is 
it strikes the entire accountability section and inserts an entirely 
new process for the discipline of non-SES employees.
  It would be convoluted, at best, and seemingly stricter than current 
law, but the most troubling change that this amendment would make would 
be to change the standard to discipline VA employees from performance 
or misconduct.
  The amendment would change it to a direct threat to public health or 
safety, which it would be nearly unobtainable, if not an immeasurable 
bar to reach.
  It would also, more than likely, not apply to some of the employees 
who have been associated with VA's most egregious scandals recently. It 
would not do anything for those who were involved in the bloated 
Denver, Colorado, hospital construction project which was over $1 
billion over budget, or the data manipulation at the Philadelphia 
regional office, or the $2.5 billion budget shortfall for fiscal year 
2015, or the cost overruns of the Orlando VA Medical Center, or the 
allegations of inappropriate use of government purchase cards to the 
tune of $6 billion, and many, many others. These are the types of 
employees that our constituents and our veterans expect to be held 
accountable, but this amendment would not cover disciplinary action 
against them.
  It would allow for employees to be on indefinite suspension for 
months, if not years, awaiting the Secretary's final decision, which is 
not fair to the veterans, the employee, the good-performing employees, 
or our taxpayers. VA is unable to backfill while the disciplinary 
actions are on appeal.
  In the end, the question is clear: Do we want to stand with the 
veterans and the taxpayers and provide the VA the appropriate tools to 
hold employees accountable, or do we want to give in to special 
interest groups and unions that support only the status quo?
  I would hope that for all Members, that is an easy question to 
answer.
  I urge all Members to oppose the Takano amendment and support the 
underlying bill.
  Mr. Chair, I reserve the balance of my time.
  Mr. TAKANO. Mr. Chair, I would like to say that we on this side of 
the aisle do stand with veterans, and we do stand for accountability, 
and we do stand with the taxpayers. And that is precisely why we must 
oppose the unconstitutional provisions in H.R. 5620 for removing 
dangerous employees.
  The current provisions we do believe are unconstitutional; and that 
is why, in the end, it will not protect veterans. Actually, it harms 
them more because these employees will be reinstated after the courts 
find the provisions that they were dismissed under--this bill, under 
this law, would be found unconstitutional, and they would be reinstated 
and a lot of taxpayer money would be wasted.
  Yes, we stand with the veteran. Yes, we stand for the taxpayer. Yes, 
we stand for accountability.
  I urge my colleagues to support my amendment, therefore, because we 
replace it with a constitutional alternative.
  Mr. Chair, I yield back the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I yield back the balance of my 
time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from California (Mr. Takano).
  The question was taken; and the Acting Chair announced that the noes 
appeared to have it.
  Mr. TAKANO. Mr. Chair, I demand a recorded vote.
  The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from California 
will be postponed.

                              {time}  1830


  Amendment No. 4 Offered by Ms. Michelle Lujan Grisham of New Mexico

  The Acting CHAIR. It is now in order to consider amendment No. 4 
printed in House Report 114-742.
  Ms. MICHELLE LUJAN GRISHAM of New Mexico. Mr. Chairman, I have an 
amendment at the desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 4, line 2, after ``Representatives'' insert the 
     following: ``and to each Member of Congress representing a 
     district in the State or territory where the facility where 
     the individual was employed immediately before being removed 
     or demoted is located''.
       Page 5, line 22, after ``Representatives'' insert the 
     following: ``and to each Member of Congress representing a 
     district in the State or territory where the facility where 
     the individual was employed immediately before being removed 
     or demoted is located''.
       Page 25, line 17, strike ``to the supervisor of the 
     director or official.'' and insert ``to--''
       ``(A) the supervisor of the director or official;
       ``(B) the Committees on Veterans' Affairs of the Senate and 
     House or Representatives; and
       ``(C) each Member of Congress representing a district in 
     the State or territory where the facility where the 
     supervisor is employed is located.''.
       Page 36, line 5, after ``Senate'' insert the following: 
     ``and each Member of Congress representing a district in the 
     State or territory where a facility relevant to the 
     whistleblower complaint is located''.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentlewoman 
from New Mexico (Ms. Michelle Lujan Grisham) and a Member opposed each 
will control 5 minutes.
  The Chair recognizes the gentlewoman from New Mexico.
  Ms. MICHELLE LUJAN GRISHAM of New Mexico. Mr. Chairman, as I am sure 
you have heard, my amendment, as many others, is simple. It ensures 
that, one, Members of Congress know when Veterans Administration 
employees are fired or demoted at VA facilities in their district for 
misconduct or poor performance; and, two, that Members are aware of 
whistleblowers' complaints from VA employees in their districts and how 
they are, in fact, being handled.
  Congress cannot solve the issues at the VA that it does not know 
about. Even though I have met with and listened to countless VA 
employees, veterans, and family members since I was elected to 
Congress, my office not only continues to hear about the same problems 
that have gone unaddressed, but also about new issues all the time. In 
fact, I have more constituent casework regarding issues at the VA than 
any other Federal agency, and there are likely many more veterans and 
VA employees who are dealing with serious issues that I may never hear 
about.
  Lastly, I share frustrations with Members on both sides of the aisle 
for the lack of followup about what the VA is doing to both investigate 
allegations about misconduct and hold responsible employees 
accountable.
  Members of Congress deserve to know about potential issues at VA 
health facilities in their communities and what the VA is doing to 
address them. My amendment would increase congressional oversight and 
transparency of the VA. It also helps to ensure that veterans receive 
the timely, quality care that they have earned.
  Mr. Chairman, I yield back the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I ask unanimous consent to claim 
the time in opposition, although I am not opposed to the amendment.
  The Acting CHAIR. Is there objection to the request of the gentleman 
from Florida?
  There was no objection.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.
  Mr. MILLER of Florida. Mr. Chair, I yield myself such time as I may 
consume.
  Mr. Chair, again, as has already been stated by the author of the 
amendment, this would require VA to notify the appropriate Member of 
Congress when the new accountability process is used or to remove or 
demote an employee who works for the VA at a facility in that Member's 
district.
  I think this is an excellent suggestion that would improve 
transparency,

[[Page H5408]]

something that is most needed at the Department of Veterans Affairs. It 
has my full support.
  I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentlewoman from New Mexico (Ms. Michelle Lujan Grisham).
  The amendment was agreed to.


                 Amendment No. 5 Offered by Ms. Kuster

  The Acting CHAIR. It is now in order to consider amendment No. 5 
printed in House Report 114-742.
  Ms. KUSTER. Mr. Chair, I rise to speak in favor of my amendment No. 
5, to improve the accountability provisions found within H.R. 5620.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Strike section 7 and insert the following:

     SEC. 7. IMPROVED AUTHORITIES OF SECRETARY OF VETERANS AFFAIRS 
                   TO IMPROVE ACCOUNTABILITY OF SENIOR EXECUTIVES.

       (a) Accountability of Senior Executives.--
       (1) In general.--Section 713 of title 38, United States 
     Code, is amended to read as follows:

     ``Sec. 713. Accountability of senior executives

       ``(a) Authority.--(1) The Secretary may, as provided in 
     this section, reprimand or suspend, involuntarily reassign, 
     demote, or remove a covered individual from a senior 
     executive position at the Department if the Secretary 
     determines that the misconduct or performance of the covered 
     individual warrants such action.
       ``(2) If the Secretary so removes such an individual, the 
     Secretary may remove the individual from the civil service 
     (as defined in section 2101 of title 5).
       ``(b) Rights and Procedures.--(1) A covered individual who 
     is the subject of an action under subsection (a) is entitled 
     to--
       ``(A) be represented by an attorney or other representative 
     of the covered individual's choice;
       ``(B) not fewer than 10 business days advance written 
     notice of the charges and evidence supporting the action and 
     an opportunity to respond, in a manner prescribed by the 
     Secretary, before a decision is made regarding the action; 
     and
       ``(C) grieve the action in accordance with an internal 
     grievance process that the Secretary, in consultation with 
     the Assistant Secretary for Accountability and Whistleblower 
     Protection, shall establish for purposes of this subsection.
       ``(2)(A) The Secretary shall ensure that the grievance 
     process established under paragraph (1)(C) takes fewer than 
     21 days.
       ``(B) The Secretary shall ensure that, under the process 
     established pursuant to paragraph (1)(C), grievances are 
     reviewed only by employees of the Department.
       ``(3) A decision or grievance decision under paragraph 
     (1)(C) shall be final and conclusive.
       ``(4) A covered individual adversely affected by a final 
     decision under paragraph (1)(C) may obtain judicial review of 
     the decision.
       ``(5) In any case in which judicial review is sought under 
     paragraph (4), the court shall review the record and may set 
     aside any Department action found to be--
       ``(A) arbitrary, capricious, an abuse of discretion, or 
     otherwise not in accordance with a provision of law;
       ``(B) obtained without procedures required by a provision 
     of law having been followed; or
       ``(C) unsupported by substantial evidence.
       ``(c) Relation to Other Provisions of Law.--(1) The 
     authority provided by subsection (a) is in addition to the 
     authority provided by section 3592 or subchapter V of chapter 
     75 of title 5.
       ``(2) Section 3592(b)(1) of title 5 and the procedures 
     under section 7543(b) of such title do not apply to an action 
     under subsection (a).
       ``(d) Definitions.--In this section:
       ``(1) The term `covered individual' means--
       ``(A) a career appointee (as that term is defined in 
     section 3132(a)(4) of title 5); or
       ``(B) any individual who occupies an administrative or 
     executive position and who was appointed under section 
     7306(a) or section 7401(1) of this title.
       ``(2) The term `misconduct' includes neglect of duty, 
     malfeasance, or failure to accept a directed reassignment or 
     to accompany a position in a transfer of function.
       ``(3) The term `senior executive position' means--
       ``(A) with respect to a career appointee (as that term is 
     defined in section 3132(a) of title 5), a Senior Executive 
     Service position (as such term is defined in such section); 
     and
       ``(B) with respect to a covered individual appointed under 
     section 7306(a) or section 7401(1) of this title, an 
     administrative or executive position.''.
       (2) Conforming amendment.--Section 7461(c)(1) of such title 
     is amended by inserting ``employees in senior executive 
     positions (as defined in section 713(d) of this title) and'' 
     before ``interns''.
       (b) Performance Management.--
       (1) In general.--The Secretary of Veterans Affairs shall 
     establish a performance management system for employees in 
     senior executive positions, as defined in section 713(d) of 
     title 38, United States Code, as amended by subsection (a), 
     that ensures performance ratings and awards given to such 
     employees--
       (A) meaningfully differentiate extraordinary from 
     satisfactory contributions; and
       (B) substantively reflect organizational achievements over 
     which the employee has responsibility and control.
       (2) Regulations.--The Secretary shall prescribe regulations 
     to carry out paragraph (1).

  The Acting CHAIR. Pursuant to House Resolution 859, the gentlewoman 
from New Hampshire (Ms. Kuster) and a Member opposed each will control 
5 minutes.
  The Chair recognizes the gentlewoman from New Hampshire.
  Ms. KUSTER. Mr. Chair, I believe accountability of senior executives 
at the VA is of great importance.
  In recent years, administration of the Department of Veterans Affairs 
has come under intense public scrutiny. What Congress and the American 
people learned was that, while the vast majority of officials at the VA 
are selfless public servants who do their utmost to deliver quality 
health care to our veterans, there are some who hamper our ability as a 
country to care for our veterans.
  It is our duty to ensure that our veterans receive the best possible 
care and benefits they have earned through their service to our 
country. My amendment seeks to strengthen the legislation to ensure 
that we truly are improving accountability at the VA.
  This amendment is the result of a bipartisan process that gives the 
VA appropriate tools to keep senior executives accountable in a way 
that is fair and constitutional. My amendment utilizes bipartisan 
language developed in the Senate for the Veterans First Act, which was 
supported by veterans service organizations, including the American 
Legion.
  It is important to note that my amendment is not a significant 
departure from Chairman Miller's language found in section 7 of the 
bill. Indeed, it also eliminates the expedited appeals process passed 
in the 2014 Veterans Choice Act, and it establishes stricter standards 
that require the VA to take more immediate action against senior 
executives that the agency has found to be incompetent or otherwise 
negligent in their duties to deliver high-quality services to our 
Nation's veterans.
  However, there are some legal concerns about aspects of section 7 of 
the bill that could prevent it from passing future legal scrutiny. My 
amendment ensures our intention to enforce accountability is not 
derailed by constitutionality issues.
  Unfortunately, the bill would enable an ad hoc disciplinary appeals 
board to hear an appeal to an adverse action. This section also 
contains an arbitrary deadline for the decision, which would impact an 
employee's due process rights as afforded by the U.S. Constitution.
  My amendment would resolve this issue by making the VA Secretary 
responsible for ensuring the appeals process takes less than 21 days 
and by making the Secretary of the VA directly responsible. My 
amendment strengthens transparency of the process without compromising 
accountability.
  I am additionally concerned that this same section of the bill could 
be leveraged against whistleblowers of the Department who are critical 
to bring about change in an agency that serves millions of veterans. 
The ad hoc nature of the board could be used to pick officials that 
might have predispositions against a potential whistleblower.
  The requirement that this individual answer their notice of adverse 
action within 5 calendar days could be used strategically to make an 
honest and meritorious appeal harder to achieve. My amendment replaces 
the 5-calendar-day standard with a 10-business-day standard.
  The lack of transparency and accountability in the VA is truly 
worrisome, and I share Chairman Miller's concern that it is worrisome 
to the American public. I thank Mr. Miller and my committee colleagues 
for tackling this issue with forthrightness.
  My amendment seeks to improve the bill and ensures its efficacy in 
law. For those reasons, I urge my colleagues to vote in favor of the 
Kuster amendment.
  I yield back the balance of my time.
  Mr. MILLER of Florida. Mr. Chair, while I understand what the 
gentlewoman is trying to accomplish, I do have to rise in opposition.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.

[[Page H5409]]

  

  Mr. MILLER of Florida. Mr. Chair, first of all, I have to rise in 
opposition because it doesn't provide the appropriate level of 
accountability for SES employees. It largely mimics the same SES 
accountability language that is already in the bill, with just a few 
exceptions.
  The open-ended timeline defies the intent to quickly adjudicate these 
cases within a clear and concrete timeline to benefit both the VA and 
the employee, and that is what we are trying to get at.
  The pre-decision due process that would be required would actually 
exceed the current practice of 5 days that the VA enacted after passage 
of the Choice Act. And I remind my good friend that the Choice Act 
passed both Chambers with a huge bipartisan majority.
  When the President signed the bill, he said: ``Now, finally, we're 
giving the VA Secretary more authority to hold people accountable. 
We've got to give Bob the authority so that he can move quickly to 
remove senior executives who fail to meet the standards of conduct and 
competence that the American people demand. If you engage in an 
unethical practice, if you cover up a serious problem, you should be 
fired. Period. It shouldn't be that difficult.''
  We should be trying to improve the culture at VA by increasing 
accountability, not by weakening it.
  I urge all Members to oppose this amendment.
  I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentlewoman from New Hampshire (Ms. Kuster).
  The question was taken; and the Acting Chair announced that the noes 
appeared to have it.
  Ms. KUSTER. Mr. Chair, I demand a recorded vote.
  The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentlewoman from New 
Hampshire will be postponed.


                 Amendment No. 6 Offered by Mr. Takano

  The Acting CHAIR. It is now in order to consider amendment No. 6 
printed in House Report 114-742.
  Mr. TAKANO. Mr. Chair, as the designee of the gentlewoman from 
Arizona (Mrs. Kirkpatrick), I offer amendment No. 6.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Strike section 8 and insert the following:

     SEC. 8. OFFICE OF ACCOUNTABILITY AND WHISTLEBLOWER 
                   PROTECTION.

       (a) In General.--Chapter 3 of title 38, United States Code, 
     is amended by adding at the end the following new section:

     ``Sec. 323. Office of Accountability and Whistleblower 
       Protection

       ``(a) Establishment.--There is established in the 
     Department an office to be known as the Office of 
     Accountability and Whistleblower Protection (in this section 
     referred to as the `Office').
       ``(b) Head of Office.--(1) The head of the Office shall be 
     responsible for the functions of the Office and shall be 
     appointed by the President pursuant to section 308(a) of this 
     title.
       ``(2) The head of the Office shall be known as the 
     `Assistant Secretary for Accountability and Whistleblower 
     Protection'.
       ``(3) The Assistant Secretary shall report directly to the 
     Secretary on all matters relating to the Office.
       ``(4) Notwithstanding section 308(b) of this title, the 
     Secretary may only assign to the Assistant Secretary 
     responsibilities relating to the functions of the Office set 
     forth in subsection (c).
       ``(c) Functions.--(1) The functions of the Office are as 
     follows:
       ``(A) Advising the Secretary on all matters of the 
     Department relating to accountability, including 
     accountability of employees of the Department, retaliation 
     against whistleblowers, and such matters as the Secretary 
     considers similar and affect public trust in the Department.
       ``(B) Issuing reports and providing recommendations related 
     to the duties described in subparagraph (A).
       ``(C) Receiving whistleblower disclosures.
       ``(D) Referring whistleblower disclosures received under 
     subparagraph (C) for investigation to the Office of the 
     Medical Inspector, the Office of Inspector General, or other 
     investigative entity, as appropriate, if the Assistant 
     Secretary has reason to believe the whistleblower disclosure 
     is evidence of a violation of a provision of law, 
     mismanagement, gross waste of funds, abuse of authority, or a 
     substantial and specific danger to public health and safety.
       ``(E) Receiving and referring disclosures from the Special 
     Counsel for investigation to the Medical Inspector of the 
     Department, the Inspector General of the Department, or such 
     other person with investigatory authority, as the Assistant 
     Secretary considers appropriate.
       ``(F) Recording, tracking, reviewing, and confirming 
     implementation of recommendations from audits and 
     investigations carried out by the Inspector General of the 
     Department, the Medical Inspector of the Department, the 
     Special Counsel, and the Comptroller General of the United 
     States, including the imposition of disciplinary actions and 
     other corrective actions contained in such recommendations.
       ``(G) Analyzing data from the Office and the Office of 
     Inspector General telephone hotlines, other whistleblower 
     disclosures, disaggregated by facility and area of health 
     care if appropriate, and relevant audits and investigations 
     to identify trends and issue reports to the Secretary based 
     on analysis conducted under this subparagraph.
       ``(H) Receiving, reviewing, and investigating allegations 
     of misconduct, retaliation, or poor performance involving--
       ``(i) an individual in a senior executive position (as 
     defined in section 713(d) of this title) in the Department;
       ``(ii) an individual employed in a confidential, policy-
     making, policy-determining, or policy-advocating position in 
     the Department; or
       ``(iii) a supervisory employee, if the allegation involves 
     retaliation against an employee for making a whistleblower 
     disclosure.
       ``(I) Making such recommendations to the Secretary for 
     disciplinary action as the Assistant Secretary considers 
     appropriate after substantiating any allegation of misconduct 
     or poor performance pursuant to an investigation carried out 
     as described in subparagraph (F) or (H).
       ``(2) In carrying out the functions of the Office, the 
     Assistant Secretary shall ensure that the Office maintains a 
     toll-free telephone number and Internet website to receive 
     anonymous whistleblower disclosures.
       ``(3) In any case in which the Assistant Secretary receives 
     a whistleblower disclosure from an employee of the Department 
     under paragraph (1)(C), the Assistant Secretary may not 
     disclose the identity of the employee without the consent of 
     the employee, except in accordance with the provisions of 
     section 552a of title 5, or as required by any other 
     applicable provision of Federal law.
       ``(d) Staff and Resources.--The Secretary shall ensure that 
     the Assistant Secretary has such staff, resources, and access 
     to information as may be necessary to carry out the functions 
     of the Office.
       ``(e) Relation to Office of General Counsel.--The Office 
     shall not be established as an element of the Office of the 
     General Counsel and the Assistant Secretary may not report to 
     the General Counsel.
       ``(f) Reports.--(1)(A) Not later than June 30 of each 
     calendar year, beginning with June 30, 2017, the Assistant 
     Secretary shall submit to the Committee on Veterans' Affairs 
     of the Senate and the Committee on Veterans' Affairs of the 
     House of Representatives a report on the activities of the 
     Office during the calendar year in which the report is 
     submitted.
       ``(B) Each report submitted under subparagraph (A) shall 
     include, for the period covered by the report, the following:
       ``(i) A full and substantive analysis of the activities of 
     the Office, including such statistical information as the 
     Assistant Secretary considers appropriate.
       ``(ii) Identification of any issues reported to the 
     Secretary under subsection (c)(1)(G), including such data as 
     the Assistant Secretary considers relevant to such issues and 
     any trends the Assistant Secretary may have identified with 
     respect to such issues.
       ``(iii) Identification of such concerns as the Assistant 
     Secretary may have regarding the size, staffing, and 
     resources of the Office and such recommendations as the 
     Assistant Secretary may have for legislative or 
     administrative action to address such concerns.
       ``(iv) Such recommendations as the Assistant Secretary may 
     have for legislative or administrative action to improve--
       ``(I) the process by which concerns are reported to the 
     Office; and
       ``(II) the protection of whistleblowers within the 
     Department.
       ``(v) Such other matters as the Assistant Secretary 
     considers appropriate regarding the functions of the Office 
     or other matters relating to the Office.
       ``(2) If the Secretary receives a recommendation for 
     disciplinary action under subsection (c)(1)(I) and does not 
     take or initiate the recommended disciplinary action before 
     the date that is 60 days after the date on which the 
     Secretary received the recommendation, the Secretary shall 
     submit to the Committee on Veterans' Affairs of the Senate 
     and the Committee on Veterans' Affairs of the House of 
     Representatives a detailed justification for not taking or 
     initiating such disciplinary action.
       ``(g) Definitions.--In this section:
       ``(1) The term `supervisory employee' means an employee of 
     the Department who is a supervisor as defined in section 
     7103(a) of title 5.
       ``(2) The term `whistleblower' means one who makes a 
     whistleblower disclosure.
       ``(3) The term `whistleblower disclosure' means any 
     disclosure of information by an employee of the Department or 
     individual applying to become an employee of the Department 
     which the employee or individual reasonably believes 
     evidences--
       ``(A) a violation of a provision of law; or

[[Page H5410]]

       ``(B) gross mismanagement, a gross waste of funds, an abuse 
     of authority, or a substantial and specific danger to public 
     health or safety.''.
       (b) Conforming Amendment.--Section 308(b) of such title is 
     amended by adding at the end the following new paragraph:
       ``(12) The functions set forth in section 323(c) of this 
     title.''.
       (c) Clerical Amendment.--The table of sections at the 
     beginning of chapter 3 of such title is amended by adding at 
     the end the following new item:

``323. Office of Accountability and Whistleblower Protection.''.

     SEC. 9. PROTECTION OF WHISTLEBLOWERS IN DEPARTMENT OF 
                   VETERANS AFFAIRS.

       (a) In General.--Chapter 7 of title 38, United States Code, 
     is further amended by adding at the end the following new 
     sections:

     ``Sec. 725. Protection of whistleblowers as criteria in 
       evaluation of supervisors

       ``(a) Development and Use of Criteria Required.--The 
     Secretary, in consultation with the Assistant Secretary of 
     Accountability and Whistleblower Protection, shall develop 
     criteria that--
       ``(1) the Secretary shall use as a critical element in any 
     evaluation of the performance of a supervisory employee; and
       ``(2) promotes the protection of whistleblowers.
       ``(b) Principles for Protection of Whistleblowers.--The 
     criteria required by subsection (a) shall include principles 
     for the protection of whistleblowers, such as the degree to 
     which supervisory employees respond constructively when 
     employees of the Department report concerns, take responsible 
     action to resolve such concerns, and foster an environment in 
     which employees of the Department feel comfortable reporting 
     concerns to supervisory employees or to the appropriate 
     authorities.
       ``(c) Supervisory Employee and Whistleblower Defined.--In 
     this section, the terms `supervisory employee' and 
     `whistleblower' have the meanings given such terms in section 
     323 of this title.

     ``Sec. 727. Training regarding whistleblower disclosures

       ``(a) Training.--Not less frequently than once every two 
     years, the Secretary, in coordination with the Whistleblower 
     Protection Ombudsman designated under section 3(d)(1)(C) of 
     the Inspector General Act of 1978 (5 U.S.C. App.), shall 
     provide to each employee of the Department training regarding 
     whistleblower disclosures, including--
       ``(1) an explanation of each method established by law in 
     which an employee may file a whistleblower disclosure;
       ``(2) the right of the employee to petition Congress 
     regarding a whistleblower disclosure in accordance with 
     section 7211 of title 5;
       ``(3) an explanation that the employee may not be 
     prosecuted or reprised against for disclosing information to 
     Congress, the Inspector General, or another investigatory 
     agency in instances where such disclosure is permitted by 
     law, including under sections 5701, 5705, and 7732 of this 
     title, under section 552a of title 5 (commonly referred to as 
     the Privacy Act), under chapter 93 of title 18, and pursuant 
     to regulations promulgated under section 264(c) of the Health 
     Insurance Portability and Accountability Act of 1996 (Public 
     Law 104-191);
       ``(4) an explanation of the language that is required to be 
     included in all nondisclosure policies, forms, and agreements 
     pursuant to section 115(a)(1) of the Whistleblower Protection 
     Enhancement Act of 2012 (5 U.S.C. 2302 note); and
       ``(5) the right of contractors to be protected from 
     reprisal for the disclosure of certain information under 
     section 4705 or 4712 of title 41.
       ``(b) Manner Training Is Provided.--The Secretary shall 
     ensure, to the maximum extent practicable, that training 
     provided under subsection (a) is provided in person.
       ``(c) Certification.--Not less frequently than once every 
     two years, the Secretary shall provide training on merit 
     system protection in a manner that the Special Counsel 
     certifies as being satisfactory.
       ``(d) Publication.--The Secretary shall publish on the 
     Internet website of the Department, and display prominently 
     at each facility of the Department, the rights of an employee 
     to make a whistleblower disclosure, including the information 
     described in paragraphs (1) through (5) of subsection (a).
       ``(e) Whistleblower Disclosure Defined.--In this section, 
     the term `whistleblower disclosure' has the meaning given 
     such term in section 323 of this title.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of such chapter is further amended by adding at the 
     end the following new items:

``725. Protection of whistleblowers as criteria in evaluation of 
              supervisors.
``727. Training regarding whistleblower disclosures.''.

     SEC. 10. TREATMENT OF CONGRESSIONAL TESTIMONY BY DEPARTMENT 
                   OF VETERANS AFFAIRS EMPLOYEES AS OFFICIAL DUTY.

       (a) In General.--Chapter 7 of title 38, United States Code, 
     is further amended by adding at the end the following new 
     section:

     ``Sec. 729. Congressional testimony by employees: treatment 
       as official duty

       ``(a) Congressional Testimony.--An employee of the 
     Department is performing official duty during the period with 
     respect to which the employee is testifying in an official 
     capacity in front of either chamber of Congress, a committee 
     of either chamber of Congress, or a joint or select committee 
     of Congress.
       ``(b) Travel Expenses.--The Secretary shall provide travel 
     expenses, including per diem in lieu of subsistence, in 
     accordance with applicable provisions under subchapter I of 
     chapter 57 of title 5, to any employee of the Department of 
     Veterans Affairs performing official duty described under 
     subsection (a).''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of such chapter, as amended by section 102, is 
     further amended by inserting after the item relating to 
     section 721 the following new item:

``Sec. 729. Congressional testimony by employees: treatment as official 
              duty.''.

     SEC. 11. REPORT ON METHODS USED TO INVESTIGATE EMPLOYEES OF 
                   DEPARTMENT OF VETERANS AFFAIRS.

       (a) Report Required.--Not later than 540 days after the 
     date of the enactment of this Act, the Assistant Secretary 
     for Accountability and Whistleblower Protection shall submit 
     to the Secretary, the Committee on Veterans' Affairs of the 
     Senate, and the Committee on Veterans' Affairs of the House 
     of Representatives a report on methods used to investigate 
     employees of the Department of Veterans Affairs and whether 
     such methods are used to retaliate against whistleblowers.
       (b) Contents.--The report required by subsection (a) shall 
     include the following:
       (1) An assessment of the use of administrative 
     investigation boards, peer review, searches of medical 
     records, and other methods for investigating employees of the 
     Department.
       (2) A determination of whether and to what degree the 
     methods described in paragraph (1) are being used to 
     retaliate against whistleblowers.
       (3) Recommendations for legislative or administrative 
     action to implement safeguards to prevent the retaliation 
     described in paragraph (2).
       (c) Whistleblower Defined.--In this section, the term 
     ``whistleblower'' has the meaning given such term in section 
     323 of title 38, United States Code, as added by section 8.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from California (Mr. Takano) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from California.


         Modification to Amendment No. 6 Offered by Mr. Takano

  Mr. TAKANO. Mr. Chairman, I ask unanimous consent that the amendment 
be modified in the form I have placed at the desk.
  The Acting CHAIR. The Clerk will report the modification.
  The Clerk read as follows:
  Modification to amendment No. 6 offered by Mr. Takano of California:

       Page 23, after line 17, insert the following:

     SEC. 8. OFFICE OF ACCOUNTABILITY AND WHISTLEBLOWER 
                   PROTECTION.

       (a) In General.--Chapter 3 of title 38, United States Code, 
     is amended by adding at the end the following new section:

     ``Sec. 323. Office of Accountability and Whistleblower 
       Protection

       ``(a) Establishment.--There is established in the 
     Department an office to be known as the Office of 
     Accountability and Whistleblower Protection (in this section 
     referred to as the `Office').
       ``(b) Head of Office.--(1) The head of the Office shall be 
     responsible for the functions of the Office and shall be 
     appointed by the President pursuant to section 308(a) of this 
     title.
       ``(2) The head of the Office shall be known as the 
     `Assistant Secretary for Accountability and Whistleblower 
     Protection'.
       ``(3) The Assistant Secretary shall report directly to the 
     Secretary on all matters relating to the Office.
       ``(4) Notwithstanding section 308(b) of this title, the 
     Secretary may only assign to the Assistant Secretary 
     responsibilities relating to the functions of the Office set 
     forth in subsection (c).
       ``(c) Functions.--(1) The functions of the Office are as 
     follows:
       ``(A) Advising the Secretary on all matters of the 
     Department relating to accountability, including 
     accountability of employees of the Department, retaliation 
     against whistleblowers, and such matters as the Secretary 
     considers similar and affect public trust in the Department.
       ``(B) Issuing reports and providing recommendations related 
     to the duties described in subparagraph (A).
       ``(C) Receiving whistleblower complaints.
       ``(D) Referring whistleblower complaints received under 
     subparagraph (C) for investigation to the Office of the 
     Medical Inspector, the Office of Inspector General, or other 
     investigative entity, as appropriate, if the Assistant 
     Secretary has reason to believe the whistleblower complaint 
     is evidence of a violation of a provision of law, 
     mismanagement, gross waste of funds, abuse of authority, or a 
     substantial and specific danger to public health and safety.

[[Page H5411]]

       ``(E) Receiving and referring complaints from the Special 
     Counsel for investigation to the Medical Inspector of the 
     Department, the Inspector General of the Department, or such 
     other person with investigatory authority, as the Assistant 
     Secretary considers appropriate.
       ``(F) Recording, tracking, reviewing, and confirming 
     implementation of recommendations from audits and 
     investigations carried out by the Inspector General of the 
     Department, the Medical Inspector of the Department, the 
     Special Counsel, and the Comptroller General of the United 
     States, including the imposition of disciplinary actions and 
     other corrective actions contained in such recommendations.
       ``(G) Analyzing data from the Office and the Office of 
     Inspector General telephone hotlines, other whistleblower 
     complaints, disaggregated by facility and area of health care 
     if appropriate, and relevant audits and investigations to 
     identify trends and issue reports to the Secretary based on 
     analysis conducted under this subparagraph.
       ``(H) Receiving, reviewing, and investigating allegations 
     of misconduct, retaliation, or poor performance involving--
       ``(i) an individual in a senior executive position (as 
     defined in section 713(d) of this title) in the Department;
       ``(ii) an individual employed in a confidential, policy-
     making, policy-determining, or policy-advocating position in 
     the Department; or
       ``(iii) a supervisory employee.
       ``(I) Making such recommendations to the Secretary for 
     disciplinary action as the Assistant Secretary considers 
     appropriate after substantiating any allegation of misconduct 
     or poor performance pursuant to an investigation carried out 
     as described in subparagraph (F) or (H).
       ``(2) In carrying out the functions of the Office, the 
     Assistant Secretary shall ensure that the Office maintains a 
     toll-free telephone number and Internet website to receive 
     anonymous whistleblower complaints.
       ``(3) In any case in which the Assistant Secretary receives 
     a whistleblower complaint from an employee of the Department 
     under paragraph (1)(C), the Assistant Secretary may not 
     disclose the identity of the employee without the consent of 
     the employee, except in accordance with the provisions of 
     section 552a of title 5, or as required by any other 
     applicable provision of Federal law.
       ``(d) Relation to Office of General Counsel.--The Office 
     shall not be established as an element of the Office of the 
     General Counsel and the Assistant Secretary may not report to 
     the General Counsel.
       ``(e) Reports.--(1)(A) Not later than June 30 of each 
     calendar year, beginning with June 30, 2017, the Assistant 
     Secretary shall submit to the Committee on Veterans' Affairs 
     of the Senate and the Committee on Veterans' Affairs of the 
     House of Representatives a report on the activities of the 
     Office during the calendar year in which the report is 
     submitted.
       ``(B) Each report submitted under subparagraph (A) shall 
     include, for the period covered by the report, the following:
       ``(i) A full and substantive analysis of the activities of 
     the Office, including such statistical information as the 
     Assistant Secretary considers appropriate.
       ``(ii) Identification of any issues reported to the 
     Secretary under subsection (c)(1)(G), including such data as 
     the Assistant Secretary considers relevant to such issues and 
     any trends the Assistant Secretary may have identified with 
     respect to such issues.
       ``(iii) Identification of such concerns as the Assistant 
     Secretary may have regarding the size, staffing, and 
     resources of the Office and such recommendations as the 
     Assistant Secretary may have for legislative or 
     administrative action to address such concerns.
       ``(iv) Such recommendations as the Assistant Secretary may 
     have for legislative or administrative action to improve--
       ``(I) the process by which concerns are reported to the 
     Office; and
       ``(II) the protection of whistleblowers within the 
     Department.
       ``(v) Such other matters as the Assistant Secretary 
     considers appropriate regarding the functions of the Office 
     or other matters relating to the Office.
       ``(2) If the Secretary receives a recommendation for 
     disciplinary action under subsection (c)(1)(I) and does not 
     take or initiate the recommended disciplinary action before 
     the date that is 60 days after the date on which the 
     Secretary received the recommendation, the Secretary shall 
     submit to the Committee on Veterans' Affairs of the Senate 
     and the Committee on Veterans' Affairs of the House of 
     Representatives a detailed justification for not taking or 
     initiating such disciplinary action.
       ``(f) Definitions.--In this section:
       ``(1) The term `supervisory employee' means an employee of 
     the Department who is a supervisor as defined in section 
     7103(a) of title 5.
       ``(2) The term `whistleblower' means one who makes a 
     whistleblower complaint.
       ``(3) The term `whistleblower complaint' means any 
     disclosure of information by an employee of the Department or 
     individual applying to become an employee of the Department 
     which the employee or individual reasonably believes 
     evidences--
       ``(A) a violation of a provision of law; or
       ``(B) gross mismanagement, a gross waste of funds, an abuse 
     of authority, or a substantial and specific danger to public 
     health or safety.''.
       (b) Conforming Amendment.--Section 308(b) of such title is 
     amended by adding at the end the following new paragraph:
       ``(12) The functions set forth in section 323(c) of this 
     title.''.
       (c) Clerical Amendment.--The table of sections at the 
     beginning of chapter 3 of such title is amended by adding at 
     the end the following new item:

``323. Office of Accountability and Whistleblower Protection.''.

  Mr. MILLER of Florida (during the reading). Mr. Chairman, I ask 
unanimous consent that the reading be dispensed with.
  The Acting CHAIR. Is there objection to the request of the gentleman 
from Florida?
  There was no objection.
  The Acting CHAIR. Without objection, the amendment is modified.
  There was no objection.
  Mr. TAKANO. Mr. Chairman, I express my full support of Representative 
Kirkpatrick's amendment to H.R. 5620. I would like to thank Chairman 
Miller for working with Representative Kirkpatrick to develop a 
bipartisan amendment we all can support.
  Whistleblowers are critical to uncovering and eliminating misconduct 
and wrongdoing at the Department of Veterans Affairs. Without them, 
serious issues like those discovered at the Phoenix VA facility may 
never have been brought to our attention. The courageous VA employees 
who chose to speak out deserve our respect and protection. We must 
create an environment in which whistleblowers expect appreciation, not 
retribution. Representative Kirkpatrick's amendment, which would create 
the VA Office of Accountability and Whistleblower Protection, will help 
us achieve that goal.
  Representative Kirkpatrick's amendment has been developed in 
consultation with the Office of Special Counsel and includes language 
from the Senate's bipartisan Veterans First Act. The amendment would 
create an independent VA Office of Accountability and Whistleblower 
Protection, which would report directly to the VA Secretary. The office 
would staff an anonymous hotline and refer whistleblower complaints to 
the appropriate office or entity for investigation and investigate 
allegations of misconduct, retaliation, or poor performance of senior 
executives and supervisors.
  Mr. Chairman, this amendment will create an environment in which 
whistleblowers are protected and misconduct is more quickly discovered 
and eliminated. I urge my colleagues to support Representative 
Kirkpatrick's amendment to H.R. 5620.
  I yield back the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I ask unanimous consent to claim 
the time in opposition, although I am not opposed to the amendment.
  The Acting CHAIR. Is there objection to the request of the gentleman 
from Florida?
  There was no objection.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.
  Mr. MILLER of Florida. Mr. Chairman, I appreciate the gentlewoman 
from Arizona (Mrs. Kirkpatrick) working with us to add the Office of 
Whistleblower Protection. It also does create an assistant secretary 
that would oversee this brand-new office.
  I appreciate Mrs. Kirkpatrick working with us on this amendment to 
better align it with the protections that are already in the bill. A 
portion of this amendment to create the new office already passed the 
House in H.R. 1994. This amendment now has my full support.
  I urge my colleagues to agree and support it.
  I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment, as modified, 
offered by the gentleman from California (Mr. Takano).
  The amendment, as modified, was agreed to.


                Amendment No. 7 Offered by Mr. Newhouse

  The Acting CHAIR. It is now in order to consider amendment No. 7 
printed in House Report 114-742.
  Mr. NEWHOUSE. Mr. Chair, I have an amendment at the desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Add at the end the following new section:

     SEC. 11. CLARIFICATION OF EMERGENCY HOSPITAL CARE FURNISHED 
                   BY THE SECRETARY OF VETERANS AFFAIRS TO CERTAIN 
                   VETERANS.

       (a) In General.--Chapter 17 of title 38, United States 
     Code, is amended by inserting

[[Page H5412]]

     after section 1730A the following new section:

     ``Sec. 1730B. Examination and treatment for emergency medical 
       conditions and women in labor

       ``(a) Medical Screening Examinations.--In carrying out this 
     chapter, if any enrolled veteran requests, or a request is 
     made on behalf of the veteran, for examination or treatment 
     for a medical condition, regardless of whether such condition 
     is service-connected, at a hospital emergency department of a 
     medical facility of the Department, the Secretary shall 
     ensure that the veteran is provided an appropriate medical 
     screening examination within the capability of the emergency 
     department, including ancillary services routinely available 
     to the emergency department, to determine whether an 
     emergency medical condition exists.
       ``(b) Necessary Stabilizing Treatment for Emergency Medical 
     Conditions and Labor.--(1) If an enrolled veteran comes to a 
     medical facility of the Department and the Secretary 
     determines that the veteran has an emergency medical 
     condition, the Secretary shall provide either--
       ``(A) such further medical examination and such treatment 
     as may be required to stabilize the medical condition; or
       ``(B) for the transfer of the veteran to another medical 
     facility of the Department or a non-Department facility in 
     accordance with subsection (c).
       ``(2) The Secretary is deemed to meet the requirement of 
     paragraph (1)(A) with respect to an enrolled veteran if the 
     Secretary offers the veteran the further medical examination 
     and treatment described in such paragraph and informs the 
     veteran (or an individual acting on behalf of the veteran) of 
     the risks and benefits to the veteran of such examination and 
     treatment, but the veteran (or individual) refuses to consent 
     to the examination and treatment. The Secretary shall take 
     all reasonable steps to secure the written informed consent 
     of such veteran (or individual) to refuse such examination 
     and treatment.
       ``(3) The Secretary is deemed to meet the requirement of 
     paragraph (1) with respect to an enrolled veteran if the 
     Secretary offers to transfer the individual to another 
     medical facility in accordance with subsection (c) of this 
     section and informs the veteran (or an individual acting on 
     behalf of the veteran) of the risks and benefits to the 
     veteran of such transfer, but the veteran (or individual) 
     refuses to consent to the transfer. The hospital shall take 
     all reasonable steps to secure the written informed consent 
     of such veteran (or individual) to refuse such transfer.
       ``(c) Restriction of Transfers Until Veteran Stabilized.--
     (1) If an enrolled veteran at a medical facility of the 
     Department has an emergency medical condition that has not 
     been stabilized, the Secretary may not transfer the veteran 
     to another medical facility of the Department or a non-
     Department facility unless--
       ``(A)(i) the veteran (or a legally responsible individual 
     acting on behalf of the veteran), after being informed of the 
     obligation of the Secretary under this section and of the 
     risk of transfer, requests in writing a transfer to another 
     medical facility;
       ``(ii) a physician has signed a certification (including a 
     summary of the risks and benefits) that, based upon the 
     information available at the time of transfer, the medical 
     benefits reasonably expected from the provision of 
     appropriate medical treatment at another medical facility 
     outweigh the increased risks to the veteran and, in the case 
     of labor, to the unborn child from effecting the transfer; or
       ``(iii) if a physician is not physically present in the 
     emergency department at the time a veteran is transferred, a 
     qualified medical person (as defined by the Secretary in 
     regulations) has signed a certification described in clause 
     (ii) after a physician, in consultation with the person, has 
     made the determination described in such clause, and 
     subsequently countersigns the certification; and
       ``(B) the transfer is an appropriate transfer as described 
     in paragraph (2).
       ``(2) An appropriate transfer to a medical facility is a 
     transfer--
       ``(A) in which the transferring medical facility provides 
     the medical treatment within the capacity of the facility 
     that minimizes the risks to the health of the enrolled 
     veteran and, in the case of a woman in labor, the health of 
     the unborn child;
       ``(B) in which the receiving facility--
       ``(i) has available space and qualified personnel for the 
     treatment of the veteran; and
       ``(ii) has agreed to accept transfer of the veteran and to 
     provide appropriate medical treatment;
       ``(C) in which the transferring facility sends to the 
     receiving facility all medical records (or copies thereof), 
     related to the emergency condition for which the veteran has 
     presented, available at the time of the transfer, including 
     records related to the emergency medical condition of the 
     veteran, observations of signs or symptoms, preliminary 
     diagnosis, treatment provided, results of any tests and the 
     informed written consent or certification (or copy thereof) 
     provided under paragraph (1)(A), and the name and address of 
     any on-call physician (described in subsection (d)(1)(C) of 
     this section) who has refused or failed to appear within a 
     reasonable time to provide necessary stabilizing treatment;
       ``(D) in which the transfer is effected through qualified 
     personnel and transportation equipment, as required including 
     the use of necessary and medically appropriate life support 
     measures during the transfer; and
       ``(E) that meets such other requirements as the Secretary 
     may find necessary in the interest of the health and safety 
     of veterans transferred.
       ``(d) Charges.--(1) Nothing in this section may be 
     construed to affect any charges that the Secretary may 
     collect from a veteran or third party.
       ``(2) The Secretary shall treat any care provided by a non-
     Department facility pursuant to this section as care 
     otherwise provided by a non-Department facility pursuant to 
     this chapter for purposes of paying such non-Department 
     facility for such care.
       ``(e) Nondiscrimination.--A medical facility of the 
     Department or a non-Department facility, as the case may be, 
     that has specialized capabilities or facilities (such as burn 
     units, shock-trauma units, neonatal intensive care units, or 
     (with respect to rural areas) regional referral centers as 
     identified by the Secretary in regulation) shall not refuse 
     to accept an appropriate transfer of an enrolled veteran who 
     requires such specialized capabilities or facilities if the 
     facility has the capacity to treat the veteran.
       ``(f) No Delay in Examination or Treatment.--A medical 
     facility of the Department or a non-Department facility, as 
     the case may be, may not delay provision of an appropriate 
     medical screening examination required under subsection (a) 
     or further medical examination and treatment required under 
     subsection (b) of this section in order to inquire about the 
     method of payment or insurance status of an enrolled veteran.
       ``(g) Whistleblower Protections.--The Secretary may not 
     take adverse action against an employee of the Department 
     because the employee refuses to authorize the transfer of an 
     enrolled veteran with an emergency medical condition that has 
     not been stabilized or because the employee reports a 
     violation of a requirement of this section.
       ``(h) Definitions.--In this section:
       ``(1) The term `emergency medical condition' means--
       ``(A) a medical condition manifesting itself by acute 
     symptoms of sufficient severity (including severe pain) such 
     that the absence of immediate medical attention could 
     reasonably be expected to result in--
       ``(i) placing the health of the enrolled veteran (or, with 
     respect to an enrolled veteran who is a pregnant woman, the 
     health of the woman or her unborn child) in serious jeopardy;
       ``(ii) serious impairment to bodily functions; or
       ``(iii) serious dysfunction of any bodily organ or part; or
       ``(B) with respect to an enrolled veteran who is a pregnant 
     woman having contractions--
       ``(i) that there is inadequate time to effect a safe 
     transfer to another hospital before delivery; or
       ``(ii) that transfer may pose a threat to the health or 
     safety of the woman or the unborn child.
       ``(2) The term `enrolled veteran' means a veteran who is 
     enrolled in the health care system established under section 
     1705(a) of this title.
       ``(3) The term `to stabilize' means, with respect to an 
     emergency medical condition described in paragraph (1)(A), to 
     provide such medical treatment of the condition as may be 
     necessary to assure, within reasonable medical probability, 
     that no material deterioration of the condition is likely to 
     result from or occur during the transfer of the enrolled 
     veteran from a facility, or, with respect to an emergency 
     medical condition described in paragraph (1)(B), to deliver 
     (including the placenta).
       ``(4) The term `stabilized' means, with respect to an 
     emergency medical condition described in paragraph (1)(A), 
     that no material deterioration of the condition is likely, 
     within reasonable medical probability, to result from or 
     occur during the transfer of the individual from a facility, 
     or, with respect to an emergency medical condition described 
     in paragraph (1)(B), that the woman has delivered (including 
     the placenta).
       ``(5) The term `transfer' means the movement (including the 
     discharge) of an enrolled veteran outside the facilities of a 
     medical facility of the Department at the direction of any 
     individual employed by (or affiliated or associated, directly 
     or indirectly, with) the Department, but does not include 
     such a movement of an individual who--
       ``(A) has been declared dead; or
       ``(B) leaves the facility without the permission of any 
     such person.''.
       (b) Clerical Amendment.--The table of sections of such 
     chapter is amended by inserting after the item relating to 
     section 1730A the following new item:

``1730B. Examination and treatment for emergency medical conditions and 
              women in labor.''.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from Washington (Mr. Newhouse) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Washington.

                              {time}  1845

  Mr. NEWHOUSE. Mr. Chairman, first of all, I include in the Record six 
letters from various veterans service organizations in support of H.R. 
5620, as amended.


[[Page H5413]]




                           Military Order of the Purple Heart,

                                   Springfield, VA, July 14, 2016.
     Hon. Jeff Miller,
     Chairman, House Committee on Veterans' Affairs, Washington, 
         DC.
       Dear Chairman Miller: On behalf of the Military Order of 
     the Purple Heart (MOPH), whose membership is comprised 
     entirely of combat wounded veterans, I am pleased to offer 
     our support for sections 1 through 8 and 10 of H.R. 5620, the 
     VA Accountability First and Appeals Modernization Act of 
     2016. If enacted, this legislation would establish reasonable 
     accountability measures for Department of Veterans Affairs 
     (VA) employees.
       The ability to reward good employees and hold poor 
     employees accountable is essential to any high-performing 
     organization. Unfortunately, events of the past two years 
     have made it clear to MOPH that VA lacks the necessary 
     authority to punish, remove, and recoup the performance 
     bonuses of employees who were found to have endangered 
     veterans, misused government funds, and otherwise 
     underperformed in their duties. While we understand that VA 
     cannot simply fire its way to success, we feel that 
     improvements to these authorities made by this legislation 
     are critical to allowing VA to function as it should, while 
     also maintaining veterans' trust in their VA. Furthermore, 
     these reforms would send the right message to the vast 
     majority of VA employees who do an exemplary job every day 
     that their good performance is truly appreciated. MOPH is 
     also pleased that this legislation contains robust 
     whistleblower protections, as no VA employee should ever fear 
     reprisal for identifying deficiencies that could endanger 
     veterans in any way.
       MOPH is still evaluating section 9, which makes substantive 
     changes to the VA appeals process, and takes no position on 
     this section at this time.
       MOPH thanks you for your leadership on this issue and your 
     commitment to veteran-centric VA reform. We look forward to 
     working with you to ensure the passage of this important 
     legislation.
           Respectfully,
                                                    Robert Puskar,
     National Commander.
                                  ____



                                    Fleet Reserve Association,

                                    Alexandria, VA, July 26, 2016.
     Hon. Jeff Miller,
     Chairman, House Veterans' Affairs Committee,
     House of Representatives, Washington, DC.
       Dear Chairman Miller: The Fleet Reserve Association (FRA) 
     supports the ``VA Accountability First and Appeals 
     Modernization Act'' (H.R. 5620) that would reform the VA's 
     disability benefits appeals process--a top priority for FRA. 
     The bill also strengthens protections for whistleblowers and 
     enforces accountability for unprofessional employees.
       The Association appreciates your strong leadership on this 
     issue and stands ready to provide assistance in advancing 
     this legislation. The FRA point of contact is John Davis, 
     Director of Legislative Programs.
           Sincerely,
                                                   Thomas J. Snee,
     National Executive Director.
                                  ____

         Enlisted Association of the National Guard of the United 
           States,
                                    Alexandria, VA, July 21, 2016.
     Hon. Jeff Miller,
     Chairman, Committee on Veterans' Affairs,
     House of Representatives, Washington, DC.
       Dear Chairman Miller: On behalf of the Enlisted Association 
     of the National Guard of the United States (EANGUS) which 
     represents the interests of over 400,000 enlisted men and 
     women of the Army and Air National Guard, we are pleased to 
     offer our full support for H.R. 5620, the VA Accountability 
     First and Appeals Modernization Act of 2016. This bill 
     combines much needed accountability measures for the 
     employees of the Department of Veterans Affairs (VA), with 
     long overdue reforms to the personal appeals process.
       We believe your legislation gives the VA the power it needs 
     to hold its employees accountable, while strengthening 
     protection for whistleblowers. This is crucial, as the events 
     of the past two years have made it clear to our organization 
     that the VA is unable to remove employees that are negligent, 
     underperforming, and don't serve in the best interest of 
     veterans. We also believe the robust protections for 
     whistleblowers contained in this legislation are critical. 
     Employees that do the right thing should not fear reprisals 
     for identifying deficiencies that could endanger veterans.
       EANGUS thanks you for your continued leadership on this 
     issue and your commitment to bring improvements and 
     accountability to the VA. We stand ready to work with you and 
     your staff to ensure the passage of this important piece of 
     legislation.
           Sincerely,

                                                 Frank Yoakum,

                                   Sgt. Maj., U.S. Army (retired),
     Executive Director.
                                  ____

     From: CVA--Press.
     Date: Thursday, July 7, 2016.
     To: CVA HQ.
     For Immediate Release: July 7, 2016.

    Concerned Veterans for America Announces Support for Miller VA 
                          Accountability Bill

       Arlington, VA.--Concerned Veterans for America (CVA) Vice 
     President for Legislative and Political Action Dan Caldwell 
     released the following statement today in support of House 
     Veterans' Affairs Committee Chairman Miller's introduction of 
     the `VA Accountability First and Appeals Modernization Act of 
     2016:'
       ``Concerned Veterans for America applauds Chairman Miller 
     for introducing H.R. 5620, the VA Accountability First and 
     Appeals Modernization Act of 2016: This legislation would go 
     a long way in addressing the lack of accountability plaguing 
     the VA and impeding the timely delivery of health care and 
     other benefits to eligible veterans. From providing 
     meaningful limits on how long VA employees can appeal 
     administrative actions, to giving the VA secretary the 
     authority to recoup bonuses and salary awarded to unethical 
     employees, this bill is full of the reforms that will rid the 
     department of its accountability crisis. Importantly, its 
     removal of the Merit Systems Protection Board (MSPB) from the 
     appeals process for senior executives is a critical component 
     to ensuring that top leaders are held accountable for their 
     actions and kept from negatively influencing veterans' care 
     in the future. We urge the VA committees of both houses of 
     Congress to move quickly on this legislation, and deliver the 
     reform veterans deserve.''
                                  ____

                                                Association of the


                                           United States Navy,

                                                  August 10, 2016.
     Hon. Jeff Miller,
     Cannon House Office Building,
     Washington, DC.
       Dear Congressman Miller: The Association for the United 
     States Navy strongly supports HR 5620, which combines VA 
     accountability provisions with appeals reform. The VA has had 
     a history of committing crimes without anything more than a 
     slap on the wrist, leaving it to veterans to suffer from 
     lesser care. With HR 5620, the accountability that veterans 
     have been looking for in order to require that the VA give 
     the proper care would finally occur. We at AUSN greatly 
     appreciate your introduction of this bill and look forward to 
     seeing it gain traction in the House and Senate.
       HR 5620 helps outline both accountability measures and 
     appeals reform together, which benefit veterans as well as VA 
     leadership give better care. Both sections 3 and 7 help hold 
     individuals, not just the entire organization or leadership, 
     accountable for their actions. The expedited system would 
     allow employees who had misbehaved to appeal within 10 days 
     and then have their appeal decided within 60 days, which is a 
     much quicker, cleaner version to the system we currently 
     have. This would help bring in better individuals rather than 
     new leadership every time there is a problem, and would allow 
     for expedited reprimand of the individuals by streamlining 
     the discipline process. The appeals reform section of the 
     bill is also impressive, giving veterans three different 
     avenues to go about their appeals process rather than just 
     one and consistently having the same problem. This bill is 
     one that really focuses on the individual rather than the 
     collective, which makes it beneficial for veterans to receive 
     the best quality care possible.
       It is crucial that accountability and appeal reform occurs 
     within the VA. The current system is too rigid for real 
     reform to occur, and by having initiatives that are 
     introduced in this bill, it would help make last change 
     within the VA and finally give veterans the care they deserve 
     for serving our country.
           Sincerely
     Michael Little.
                                  ____

                                                  August 31, 2016.
     Hon. Jeff Miller,
     Chairman, House Committee on Veterans' Affairs, House of 
         Representatives, Washington, DC.
       Dear Mr. Miller: AMVETS (American Veterans) is pleased to 
     support your bill, H.R. 5620, the VA Accountability First and 
     Appeals Modernization Act of 2016, which seeks to provide for 
     the removal or demotion of employees of the Department of 
     Veterans Affairs (VA) based on performance or misconduct, and 
     to reform the Veterans Benefits Administration (VBA) appeals 
     process.
       The intent of this bill is in line with two of our National 
     Resolutions, which dictate our legislative priorities, that 
     our members voted on and passed at the AMVETS 72nd National 
     Convention in Reno, Nevada in August. The first Resolution is 
     related to the need for, and importance of, improved VA 
     accountability. It states, in part, that until each and every 
     VA employee can be held accountable for their actions, or 
     lack thereof, the VA system will remain broken, 
     unsatisfactory, and unsafe. The second Resolution is related 
     to fixing the VBA claims processing and appeals systems. It 
     states, in part, that AMVETS continues to monitor the 
     progress of the veteran claims processing system, and working 
     as a stakeholder, seeks to address the shortcomings. For 
     these reasons we stand ready to help you gain passage of H.R. 
     5620.
       AMVETS appreciates your leadership in introducing this 
     important legislation and in striving to improve the lives of 
     all veterans.
           Sincerely,
                                               Joseph R. Chenelly,
                                               Executive Director.

  Mr. NEWHOUSE. Mr. Chairman, I believe one of the Federal Government's 
most important functions is to support those who have sacrificed so 
much in the defense of our Nation. Whenever

[[Page H5414]]

our government fails to meet this responsibility, swift action must be 
taken.
  We have heard far too many distressing stories in recent years about 
the Department of Veterans Affairs failing to provide our veterans the 
care they deserve. My amendment seeks to address one of these problems 
by adding the text of H.R. 3216, the Veterans Emergency Treatment Act, 
to this bill. This language is supported by the Veterans of Foreign 
Wars, the American Legion, and the Disabled American Veterans.
  In short, my amendment would ensure that every enrolled veteran who 
arrives at an emergency department of a VA medical facility and 
indicates an emergency condition exists is assessed and treated in an 
effort to prevent further injury or death. This is accomplished by 
applying the statutory requirements of the Emergency Medical Treatment 
and Labor Act, or EMTALA, to emergency care furnished by the VA to 
enrolled veterans.
  Mr. Chairman, my attention was drawn to this issue by one of my own 
constituents. In February of 2015, a 64-year-old Army veteran arrived 
at the Seattle VA emergency room in severe pain with a broken foot that 
had swollen to the size of a football. No longer able to walk, he 
requested emergency room staff assist him in traveling the 10 feet from 
his car to the ER entrance. Hospital personnel promptly hung up on him 
after instructing him he would need to call 911 to assist him at his 
own expense. He was eventually helped into the emergency room by a 
Seattle fire captain as well as three firefighters.
  Another notable incident occurred in New Mexico in 2014, when a 
veteran collapsed in the cafeteria of a VA facility and ultimately died 
when the VA refused to transport him 500 yards across the campus to the 
emergency room.
  EMTALA is a Federal statute that supersedes State and local laws and 
grants every individual a Federal right to emergency care. It was 
enacted by Congress in 1986 and is designed to prevent hospitals from 
transferring, or dumping, uninsured or Medicaid patients to public 
hospitals. EMTALA requires a hospital to conduct a medical examination 
to determine if an emergency medical condition exists. If one does, 
then the hospital must either stabilize the patient or effectuate a 
proper transfer at the patient's request. Currently, the VA hospitals 
are considered to be nonparticipating hospitals and are therefore not 
obligated to fulfill the requirements instituted by EMTALA. This 
amendment will revise current law to remove the nonparticipating 
designation and require them to fulfill requirements of EMTALA, just as 
every other hospital does.
  Mr. Chairman, it is actually the Veterans Health Administration's 
stated policy that all transfers in and out of VA facilities of 
patients in the emergency department or urgent care units are 
accomplished in a manner that ensures maximum patient safety and is in 
compliance with the transfer provisions of EMTALA and its implementing 
regulations.
  However, unfortunately, this policy is not always followed, and 
occasionally locally designed transfer policies undermine efforts to 
provide emergency care to veterans. Additionally, in some of these 
instances there was clear confusion on the part of the VA facilities 
about their own transfer policies. This is why we must act now.
  Mr. Chairman, I urge the House to support and pass my amendment to 
H.R. 5620. It is time we ensure our veterans receive proper medical 
care during emergency medical situations, all without requiring 
additional spending.
  Mr. Chairman, I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I ask unanimous consent to claim 
the time in opposition, although I am not opposed.
  The Acting CHAIR. Is there objection to the request of the gentleman 
from Florida?
  There was no objection.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.
  Mr. MILLER of Florida. Mr. Chairman, as the sponsor has already said, 
it clarifies and strengthens VA's responsibility with regard to 
emergency care. It has been drafted very well in response to a recent, 
very tragic incident where a veteran died in a VA parking lot in very 
close proximity to a VA emergency room. It is supported by numerous 
veterans service organizations.
  I am grateful to the gentleman from Washington (Mr. Newhouse), my 
good friend, and urge all of my colleagues to join me in supporting 
this amendment.
  Mr. Chairman, I yield back the balance of my time.
  Mr. NEWHOUSE. Mr. Chairman, I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from Washington (Mr. Newhouse).
  The amendment was agreed to.


               Amendment No. 8 Offered by Mr. Schweikert

  The Acting CHAIR. It is now in order to consider amendment No. 8 
printed in House Report 114-742.
  Mr. SCHWEIKERT. Mr. Chairman, I have an amendment at the desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Add at the end the following new section:

     SEC. 11. USE OF DISTRIBUTED LEDGER TECHNOLOGY TO SCHEDULE 
                   APPOINTMENTS.

       (a) Use of Distributed Ledger Technology.--
       (1) In general.--Beginning not later than one year after 
     the date of the enactment of this Act, the Secretary of 
     Veterans Affairs shall ensure that veterans seeking health 
     care appointments at medical facilities of the Department are 
     able to use an Internet website, a mobile application, or 
     other similar electronic method to use distributed ledger 
     technology to view such appointments and ascertain whether an 
     employee of the Department of Veterans Affairs has modified 
     such appointments.
       (2) Contracts.--The Secretary shall carry out paragraph (1) 
     by seeking to enter into one or more contracts with 
     appropriate entities to develop the appointment distributed 
     ledger technology system described in such paragraph.
       (3) Privacy and ownership of information.--Any information 
     relating to a veteran that is used or transmitted pursuant to 
     this section--
       (A) shall be treated in accordance with section 552a of 
     title 5, United States Code (commonly referred to as the 
     ``Privacy Act'') and other applicable laws and regulations 
     relating to the privacy of the veteran;
       (B) may only be used by an employee or contractor of the 
     Department of Veterans Affairs to carry out paragraph (1); 
     and
       (C) may not be disclosed to any person who is not the 
     veteran or such an employee or contractor unless the veteran 
     provides consent to such disclosure.
       (b) Report.--Not later than 180 days after the date on 
     which the Secretary commences subsection (a)(1), the 
     Secretary shall submit to Congress a report on the 
     implementation of this section.
       (c) Definitions.--In this section:
       (1) The term ``distributed ledger technology'' means 
     technology using a consensus of replicated, shared, and 
     synchronized digital data that is geographically spread 
     across multiple digital systems.
       (2) The term ``mobile application'' means a software 
     program that runs on the operating system of a mobile device.
       (3) The term ``mobile device'' means a smartphone, tablet 
     computer, or similar portable computing device that transmits 
     data over a wireless connection.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from Arizona (Mr. Schweikert) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Arizona.
  Mr. SCHWEIKERT. Mr. Chairman, to our friends on the other side, I 
will let you know, I am going to move to withdraw the amendment, but I 
do want to share a little bit of an explanation of why I am taking this 
approach.
  I am blessed to represent much of the Phoenix area, the epicenter of 
where the calendar, where the scheduling system was manipulated. For 
those of us who are in this body who have had the opportunity to sit 
across from a widow who cannot stop crying because she is telling you 
that, in everything she believes, the VA took the life of her husband 
by the delays, after the delays, after functionally being lied to and 
the delays.
  I accept in this body I may be bordering on being sort of a techno-
utopian, but I have a belief that there is technology out there that is 
already widely adopted in the rest of the world. I mean, there are 
countries that the entire nation's database system is run this way, 
something called a distributive ledger, a blockchain.
  The beauty of what we were trying to weave into this is the concept 
of, hey, they are already working on a scheduling software. If you 
enable it across the server network, no one can manipulate it. You 
can't sit there and slip in

[[Page H5415]]

and change the dates and the times without it being date-stamped. That 
is the beauty of a distributive ledger model, and you don't have to 
custom design the software to do this. Basically, you are already using 
the capital you have already spent on the series of servers you have, 
and then it distributes it across it.
  This is today's technology--in a world where we step up and say we 
are going to custom-design a software solution for scheduling, that is 
brilliant if it were still the 1990s; it is not--our ability to use a 
type of technology where the veteran can log in through secure 
passwords, see their own records, see their history, see their 
schedules, and know that it is bulletproof, that no one can manipulate 
it; and if there was a change, they can see when and who did it, and 
they get to participate in the scheduling of their own health care. 
This will work on apps. It will work on a home computer. It will work 
on the servers at the VA.
  I have to reach out and say thank you to the chairman and to his 
staff because I know some of this is new technology, and rolling it out 
in a very specific fashion is sort of disharmonious when you are moving 
forward with a reform bill of this nature, but I am hopeful that many 
of us are going to sell you the idea that there is little technological 
improvements that can be woven in and actually solve many of the 
structural problems, crises, concerns that all of us have had to face 
at the VA over the last few years.
  Mr. Chairman, I ask unanimous consent to withdraw the amendment 
enumerated as No. 8.
  The Acting CHAIR. Is there objection to the request of the gentleman 
from Arizona?
  There was no objection.
  The Acting CHAIR. The amendment is withdrawn.
  It is now in order to consider amendment No. 9 printed in House 
Report 114-742.
  It is now in order to consider amendment No. 10 printed in House 
Report 114-742.


                         Parliamentary Inquiry

  Mr. MILLER of Florida. Mr. Chair, parliamentary inquiry.
  The Acting CHAIR. The gentleman from Florida will state his 
parliamentary inquiry.
  Mr. MILLER of Florida. Will the Chair state the amendment number. I 
think you said amendment No. 10. Should it be No. 9?
  The Acting CHAIR. Amendment No. 9 was not offered.
  Mr. MILLER of Florida. I apologize, I was not informed.


                 Amendment No. 10 Offered by Mr. Takano

  Mr. TAKANO. Mr. Chair, as the designee of the gentlewoman from 
Florida (Ms. Frankel), I have an amendment at the desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 54, after line 2, insert the following:

     SEC. 11. SENSE OF CONGRESS REGARDING AMERICAN VETERANS 
                   DISABLED FOR LIFE.

       (a) Findings.--Congress finds the following:
       (1) There are at least 3,600,000 veterans currently living 
     with service-connected disabilities.
       (2) As a result of their service, many veterans are 
     permanently disabled throughout their lives and in many cases 
     must rely on the support of their families and friends when 
     these visible and invisible burdens become too much to bear 
     alone.
       (3) October 5, which is the anniversary of the dedication 
     of the American Veterans Disabled for Life Memorial, has been 
     recognized as an appropriate day on which to honor American 
     veterans disabled for life each year.
       (b) Sense of Congress.--Congress--
       (1) expresses its appreciation to the men and women left 
     permanently wounded, ill, or injured as a result of their 
     service in the Armed Forces;
       (2) supports the annual recognition of American veterans 
     disabled for life; and
       (3) encourages the American people to honor American 
     veterans disabled for life each year with appropriate 
     programs and activities.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from California (Mr. Takano) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from California.
  Mr. TAKANO. Mr. Chairman, I rise to offer the amendment on behalf of 
the gentlewoman from Florida (Ms. Frankel).
  Congresswoman Frankel's amendment would honor American veterans 
disabled for life and support annual recognition of our Nation's 
servicemen and -women left permanently wounded, ill, or injured as a 
result of their service. If passed, it would recognize October 5 as an 
appropriate day to honor disabled veterans each year. This date 
coincides with the anniversary of the dedication of the American 
Veterans Disabled for Life Memorial in Washington, D.C.
  The amendment is supported by the Disabled American Veterans and the 
Paralyzed Veterans of America. It was included in a House concurrent 
resolution that I was proud to cosponsor alongside Chairman Jeff 
Miller. It also passed the House as part of this Chamber's National 
Defense Authorization Act.
  America's 3.6 million disabled veterans have honored us with their 
service and selfless duty. It is now our turn to honor them, and 
passing this amendment is one way to do so. I urge my colleagues to 
support this amendment.
  Mr. Chairman, I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, I ask unanimous consent to claim 
the time in opposition, even though I do not oppose the amendment.
  The Acting CHAIR. Is there objection to the request of the gentleman 
from Florida?
  There was no objection.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.
  Mr. MILLER of Florida. Mr. Chairman, this is a very worthy cause that 
is due our respect, as we often forget the veterans that have been 
wounded, disabled for life in battle.
  I was proud to attend the dedication of the American Veterans 
Disabled for Life Memorial service just a couple of years ago right 
outside of this Capitol Building, and I want to thank Representative 
Frankel and urge all of my colleagues to join me in supporting this 
amendment.
  Mr. Chairman, I yield back the balance of my time.
  Mr. TAKANO. Mr. Chairman, I have no further speakers, and again, I 
urge my colleagues to support Representative Frankel's amendment.
  I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from California (Mr. Takano).
  The amendment was agreed to.


                 Amendment No. 11 Offered by Mr. Takano

  The Acting CHAIR. It is now in order to consider amendment No. 11 
printed in House Report 114-742.
  Mr. TAKANO. Mr. Chairman, as the designee of the gentleman from 
Arizona (Mr. Gallego), I offer amendment No. 11.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 54, after line 2, insert the following:

     SEC. 11. ESTABLISHMENT OF POSITIONS OF DIRECTORS OF VETERANS 
                   INTEGRATED SERVICE NETWORKS IN OFFICE OF UNDER 
                   SECRETARY FOR HEALTH OF DEPARTMENT OF VETERANS 
                   AFFAIRS AND MODIFICATION OF QUALIFICATIONS FOR 
                   MEDICAL DIRECTORS.

       Section 7306(a)(4) of title 38, United States Code, is 
     amended--
       (1) by inserting ``and Directors of Veterans Integrated 
     Service Networks'' after ``Such Medical Directors''; and
       (2) by striking ``, who shall be either a qualified doctor 
     of medicine or a qualified doctor of dental surgery or dental 
     medicine''.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from California (Mr. Takano) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from California.
  Mr. TAKANO. Mr. Chairman, I rise to offer the amendment on behalf of 
my colleague from Arizona (Mr. Gallego).
  Representative Gallego's amendment establishes the position of 
Director of Veterans Integrated Service Networks within the Office of 
the Under Secretary for Health in the VA.
  Leadership vacancies are prevalent across the VA, particularly in 
terms of network and facility directors, and this amendment will 
provide the VA with additional flexibility to recruit medical center 
directors and VISN directors.

                              {time}  1900

  Within the 21 VISNs, there are 151 medical centers, 985 outpatient 
clinics,

[[Page H5416]]

135 community living centers, 103 domiciliary rehabilitation treatment 
programs, 300 readjustment counseling centers, and 70 mobile vet 
centers. Network directors have oversight of healthcare delivery for as 
many as 10 VA medical centers and numerous community-based outpatient 
clinics, nursing homes, and domiciliary centers.
  Ensuring that the VA has all the tools necessary to fill and retain 
these leadership positions is critical to fulfilling the VHA's mission 
and providing quality, timely care to our veterans.
  This amendment is included in H.R. 4011, the Delivering Opportunities 
for Care and Services for Veterans Act, otherwise known as DOCS for 
Vets Act, which the VA Secretary recently included amongst his top 
legislative priorities for the remainder of this Congress. The language 
also passed unanimously in the Senate Veterans Affairs' Committee as 
part of the bipartisan Vets First Act.
  I urge my colleagues to support this amendment.
  Mr. Chair, I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chair, I ask unanimous consent to claim 
the time in opposition, even though I am not opposed.
  The Acting Chair. Is there objection to the request of the gentleman 
from Florida?
  There was no objection.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.
  Mr. MILLER of Florida. Mr. Chairman, this, in fact, would make it 
easier for VA to recruit and retain its VISN directors. It is a 
legislative proposal of the Department of Veterans Affairs included in 
the committee-drafted H.R. 5526, sponsored by Mr. Wenstrup.
  I am grateful to Representative Gallego. I urge all of my colleagues 
to join me in supporting this amendment.
  Mr. Chair, I yield back the balance of my time.
  Mr. TAKANO. Mr. Chairman, I urge my colleagues to support 
Representative Gallego's amendment.
  Mr. Chairman, I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from California (Mr. Takano).
  The amendment was agreed to.


                Amendment No. 12 Offered by Mr. Keating

  The Acting CHAIR. It is now in order to consider amendment No. 12 
printed in House Report 114-742.
  Mr. KEATING. Mr. Chairman, I have an amendment at the desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Add at the end the following new section:

     SEC. 11. CONTINUING EDUCATION REQUIREMENT FOR EMPLOYEES OF 
                   DEPARTMENT OF VETERANS AFFAIRS AUTHORIZED TO 
                   PRESCRIBE MEDICATION.

       (a) In General.--Subchapter I of chapter 74 of title 38, 
     United States Code, is amended by adding at the end the 
     following new section:

     ``Sec. 7413. Continuing education requirement for employees 
       authorized to prescribe medication

       ``(a) Requirement.--(1) Except as provided in paragraph 
     (2), the Secretary shall require each covered employee of the 
     Department to complete not less than one accredited course of 
     continuing education on pain management once every two years. 
     Such course shall include information on safe prescribing 
     practices and disposal of controlled substances, principles 
     of pain management, identification of potential substance use 
     disorders and addiction treatment.
       ``(2) Paragraph (1) shall not apply to a covered employee 
     if the covered employee is licensed or certified by a State 
     licensure or specialty board that requires the completion of 
     continuing education relative to pain management or substance 
     use disorder management.
       ``(b) Definitions.--In this section:
       ``(1) The term `covered employee' means any employee of the 
     Department authorized to prescribe any controlled substance, 
     including an employee hired under section 7405 of this title.
       ``(2) The term `controlled substance' has the meaning given 
     such term in section 102 of the Controlled Substances Act (21 
     U.S.C. 802).
       ``(c) Applicability.--The requirement under subsection (a) 
     shall apply with respect to a covered employee for any 24-
     month period during which the covered employee is employed by 
     the Department for at least 180 days.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of such chapter is amended by adding at the end of 
     the items relating to subchapter I of such chapter the 
     following new item:

``7413. Continuing education requirement for employees authorized to 
              prescribe medication.''.

       (c) Applicability.--Section 7413 of title 38, United States 
     Code, as added by subsection (a) shall apply with respect to 
     a 12-month period that begins on or after the date of the 
     enactment of this Act.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from Massachusetts (Mr. Keating) and a Member opposed each will control 
5 minutes.
  The Chair recognizes the gentleman from Massachusetts.
  Mr. KEATING. Mr. Chairman, I would like to thank Chairman Miller of 
Florida for his assistance with this amendment, as well as the 
gentleman from California (Mr. Takano).
  I rise to offer an amendment to H.R. 5620 that would direct 
healthcare providers with VA affiliation to take continuing education 
courses specific to pain management, opioids, and substance abuse.
  Nationally, about 30 percent of Americans have some type of chronic 
pain that they report. However, for veterans--and our elderly 
veterans--that number escalates dramatically, with 50 percent reporting 
chronic pain. And it is even more--almost double that--as 60 percent of 
veterans returning from the current conflict in the Middle East report 
some type of chronic pain that needs administration. In fact, this type 
of malady is the most common medical problem experienced by returning 
combat veterans in the entire last decade. So it is the number one 
reported problem that our veterans returning home from combat have to 
endure.
  According to VA data, over half a million veterans are receiving 
prescriptions for opioids. The number of veterans with opioid use 
disorders has grown 55 percent over the last 5 years alone. 
Additionally, the American Public Health Association found that 
veterans are twice as likely to overdose on prescription opioids as are 
members of the general population.
  Of course, pain management isn't just a stand-alone problem for our 
veterans. The injury leads to co-occurring mental health disorders like 
brain trauma or post-traumatic stress disorder. Approximately one out 
of every three veterans seeking treatment for substance use disorders 
also have brain trauma or PTSD.
  The amendment incorporates language that I have introduced earlier in 
the year, the Safe Prescribing for Veterans Act. It will help those who 
provide healthcare services to veterans learn the latest in pain 
management techniques, understand safe prescription practices, and spot 
the signs of potential substance use disorders.
  In our country, some of the States have moved ahead already with what 
this amendment does. There are 14 States in the country that require 
continuing education so that their physicians are schooled and kept up 
to speed with the most modern techniques in dealing with opioid abuse 
disorders. Even though there are 14, that number decreases in some of 
those States for the people administering these drugs, including nurse 
practitioners, physician assistants, dentists, and others. So this is a 
problem that some States are addressing, but we are not addressing as a 
country to help our veterans.
  In those States that have this, they have that requirement for 
continuing education as part of treating those people who are seeking 
treatment. But in the remaining States, even if they have some kind of 
recommendations, there is no guarantee. And for our veterans 
nationwide, there is no guarantee.
  So this is something, I think, that is essential and that we do the 
most we can do to help the veterans and the heroes that have served us 
so well as they come back dealing with some of the effects and 
aftereffects of their combat, to be able to help them and be there for 
them the way that they were there for us.
  This Congress has already acted, in terms of the appropriations 
process, for the implementation of the costs attendant to this kind of 
support. This bill will be a corollary bill that deals with 
guaranteeing that that occurs.
  In my own area, just to show you the conflicts of treatment and the 
diversity of treatment, the Commonwealth of Massachusetts is one of 
those 14 States that requires all medical personnel, all doctors, to 
able to have this continuing education requirement. That includes those 
doctors that serve the Veterans Administration.

[[Page H5417]]

  However, in my district in the southeast portion of Massachusetts, 
most of the veterans in my area go to Providence, Rhode Island, for 
their treatment, which does not have that guarantee. Just to show an 
example, they have recommendations of what to do, but they don't have 
that guarantee.
  So in my own State, one portion of the State and the veterans served 
mostly in that portion has that requirement to make sure that is the 
case. The other doesn't.
  I want to thank Mr. Rothfus of Pennsylvania for joining me as a 
cosponsor of this amendment. I want to thank my colleagues for this.
  Mr. Chair, I yield back the balance of my time.
  Mr. MILLER of Florida. Mr. Chair, I ask unanimous consent to claim 
the time in opposition, even though I am not opposed to the amendment.
  The Acting CHAIR. Is there objection to the request of the gentleman 
from Florida?
  There was no objection.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.
  Mr. MILLER of Florida. Mr. Chair, I do want to thank Mr. Keating for 
coming up with this outstanding amendment to our bill. It does require 
VA employees to receive continuing education and courses on pain 
management, safe prescribing practices, disposal of controlled 
substances, and addiction treatment. It is critical for VA providers to 
know the best practices for pain management and substance use disorder.
  I want to thank Mr. Keating for his words tonight, and Mr. Rothfus, 
and I my colleagues in supporting this amendment.
  Mr. Chair, I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from Massachusetts (Mr. Keating).
  The amendment was agreed to.


               Amendment No. 13 Offered by Mr. Lowenthal

  The Acting CHAIR. It is now in order to consider amendment No. 13 
printed in House Report 114-742.
  Mr. LOWENTHAL. Mr. Chairman, I have an amendment at the desk.
  The Acting CHAIR. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 54, add after line 2 the following:

     SECTION 11. REVIEW OF WHISTLEBLOWER COMPLAINTS.

       (a) In General.--Chapter 7 of title 38, United States Code, 
     is amended by inserting after section 711 the following new 
     section:

     ``Sec. 712. Review of whistleblower complaints

       ``(a) In General.--During each calendar quarter, the 
     Secretary shall review each covered whistleblower complaint 
     that is filed during the previous calendar quarter.
       ``(b) Delegation.--The Secretary may only delegate the 
     authority of the Secretary under subsection (a) to review a 
     covered whistleblower complaint, without further delegation, 
     to--
       ``(1) the Deputy Secretary of Veterans Affairs;
       ``(2) the Under Secretary for Health;
       ``(3) the Under Secretary for Benefits;
       ``(4) the Under Secretary for Memorial Affairs;
       ``(5) an Assistant Secretary of Veterans Affairs;
       ``(6) a Deputy Assistant Secretary of Veterans Affairs; or
       ``(7) a director of the Veterans Integrated Service 
     Network.
       ``(c) Covered Whistleblower Complaint Defined.--In this 
     section, the term `covered whistleblower complaint' means any 
     complaint filed with the Office of the Special Counsel under 
     subchapter II of chapter 12 of title 5 with respect to a 
     prohibited personnel practice committed by an officer or 
     employee of the Department of Veterans Affairs and described 
     in section 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D) 
     of such title.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of such chapter is amended by inserting after the 
     item relating to section 711 the following new item:

``712. Review of whistleblower complaints.''.

  The Acting CHAIR. Pursuant to House Resolution 859, the gentleman 
from California (Mr. Lowenthal) and a Member opposed each will control 
5 minutes.
  The Chair recognizes the gentleman from California.
  Mr. LOWENTHAL. Mr. Chair, I yield myself such time as I may consume.
  Mr. Chair, I am very pleased to have the opportunity to offer this 
simple, nonpartisan amendment today.
  Like many of my colleagues here, I am determined to do whatever I can 
to ensure the best possible care for our veterans. And I can tell you 
that I see all the time just how important the services are in my 
hometown at the Long Beach Veterans Administration to veterans in my 
district.
  It is absolutely essential our veterans receive the quality of care 
that they have earned and that we owe them. I believe everyone here 
agrees on that. The question is: How can we ensure that our veterans 
receive the best quality care?
  One straightforward, but important way is to make sure that 
whistleblowers are adequately protected.
  When problems emerge, as they certainly will in any complicated 
system such as health care, it is vital that the VA employees feel that 
they can bring forward complaints and they will be properly considered 
without fear of retaliation.
  VA employees are key potential partners in making sure the system is 
responsive, honest, and efficient. And if they have any doubts or 
concerns about their whistleblower protections, then we lose the 
insights, their expertise, and the inside view that they bring to the 
VA's day-to-day operations. That would be bad for the veterans and bad 
for our VA system.
  My simple amendment helps to guarantee whistleblower protections are 
acted upon by requiring the Secretary of Veterans Affairs or his or her 
designee to conduct a quarterly review of covered whistleblower 
complaints from the preceding quarter. This brings the necessary prompt 
attention and senior level VA oversight to whistleblower complaints.
  I believe this is nonpartisan, noncontroversial, and I hope that the 
majority goes along with my colleagues in the minority and will support 
it. I urge its adoption.
  Mr. Chair, I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chair, I ask unanimous consent to claim 
the time in opposition, even though I am not opposed to the amendment.
  The Acting CHAIR. Is there objection to the request of the gentleman 
from Florida?
  There was no objection.
  The Acting CHAIR. The gentleman is recognized for 5 minutes.
  Mr. MILLER of Florida. Mr. Chair, I want to thank Mr. Lowenthal for 
his very simple, nonpartisan amendment that has been provided tonight 
requiring political appointees at VA review whistleblower complaints at 
every level. I am grateful to him for bringing this forward. I urge all 
of my colleagues to support his amendment.
  Mr. Chair, I yield back the balance of my time.
  Mr. LOWENTHAL. Mr. Chair, I thank and appreciate the leader from the 
majority party.
  Mr. Chair, I yield back the balance of my time.
  The Acting CHAIR. The question is on the amendment offered by the 
gentleman from California (Mr. Lowenthal).
  The amendment was agreed to.
  Mr. MILLER of Florida. Mr. Chairman, I move that the Committee do now 
rise.
  The motion was agreed to.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Miller of Florida) having assumed the chair, Mr. Mooney of West 
Virginia, Acting Chair of the Committee of the Whole House on the state 
of the Union, reported that that Committee, having had under 
consideration the bill (H.R. 5620) to amend title 38, United States 
Code, to provide for the removal or demotion of employees of the 
Department of Veterans Affairs based on performance or misconduct, and 
for other purposes, had come to no resolution thereon.

                          ____________________