Congressional Record, Volume 162 Issue 138 (Tuesday, September 13, 2016)

[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

[[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''.

{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.

____________________