[Congressional Record Volume 163, Number 164 (Thursday, October 12, 2017)]
[House]
[Pages H7998-H8004]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
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DR. CHRIS KIRKPATRICK WHISTLEBLOWER PROTECTION ACT OF 2017
Mr. BLUM. Mr. Speaker, pursuant to House Resolution 562, I call up
the bill (S. 585) to provide greater whistleblower protections for
Federal employees, increased awareness of Federal whistleblower
protections, and increased accountability and required discipline for
Federal supervisors who retaliate against whistleblowers, and for other
purposes, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 562, the bill
is considered read.
The text of the bill is as follows:
S. 585
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 ``Dr. Chris
Kirkpatrick Whistleblower Protection Act of 2017''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--EMPLOYEES GENERALLY
Sec. 101. Definitions.
Sec. 102. Stays; probationary employees.
Sec. 103. Prohibited personnel practices.
Sec. 104. Discipline of supervisors based on retaliation against
whistleblowers.
Sec. 105. Suicide by employees.
Sec. 106. Training for supervisors.
Sec. 107. Information on whistleblower protections.
TITLE II--DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES
Sec. 201. Prevention of unauthorized access to medical records of
employees of the Department of Veterans Affairs.
Sec. 202. Outreach on availability of mental health services available
to employees of the Department of Veterans Affairs.
Sec. 203. Protocols to address threats against employees of the
Department of Veterans Affairs.
Sec. 204. Comptroller General of the United States study on
accountability of chiefs of police of Department of
Veterans Affairs medical centers.
TITLE I--EMPLOYEES GENERALLY
SEC. 101. DEFINITIONS.
In this title--
(1) the term ``agency''--
(A) except as provided in subparagraph (B), means an entity
that is an agency, as defined under section 2302 of title 5,
United States Code, without regard to whether one or more
portions of title 5 of the United States Code are
inapplicable to the entity; and
(B) does not include any entity that is an element of the
intelligence community, as defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 3003(4));
(2) the term ``employee'' means an employee (as defined in
section 2105 of title 5, United States Code) of an agency;
and
(3) the term ``personnel action'' has the meaning given
that term under section 2302 of title 5, United States Code.
SEC. 102. STAYS; PROBATIONARY EMPLOYEES.
(a) Request by Special Counsel.--Section 1214(b)(1) of
title 5, United States Code, is amended by adding at the end
the following:
``(E) If the Merit Systems Protection Board grants a stay
under this subsection, the head of the agency employing the
employee shall give priority to a request for a transfer
submitted by the employee.''.
(b) Probationary Employees.--Section 1221 of title 5,
United States Code, is amended by adding at the end the
following:
``(k) If the Merit Systems Protection Board grants a stay
to an employee in probationary status under subsection (c),
the head of the agency employing the employee shall give
priority to a request for a transfer submitted by the
employee.''.
(c) Study Regarding Retaliation Against Probationary
Employees.--The Comptroller General of the United States
shall submit to the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Government Reform of the House of
Representatives a report discussing retaliation against
employees in probationary status.
SEC. 103. PROHIBITED PERSONNEL PRACTICES.
Section 2302(b) of title 5, United States Code, is
amended--
(1) in paragraph (12), by striking ``or'' at the end;
(2) in paragraph (13), by striking the period at the end
and inserting ``; or''; and
(3) by inserting after paragraph (13) the following:
``(14) access the medical record of another employee or an
applicant for employment as a part of, or otherwise in
furtherance of, any conduct described in paragraphs (1)
through (13).''.
SEC. 104. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION
AGAINST WHISTLEBLOWERS.
(a) In General.--Subchapter II of chapter 75 of title 5,
United States Code, is amended by adding at the end the
following:
``Sec. 7515. Discipline of supervisors based on retaliation
against whistleblowers
``(a) Definitions.--In this section--
``(1) the term `agency'--
``(A) except as provided in subparagraph (B), means an
entity that is an agency, as defined under section 2302,
without regard to whether any other provision of this chapter
is applicable to the entity; and
``(B) does not include any entity that is an element of the
intelligence community, as defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 3003(4));
``(2) the term `prohibited personnel action' means taking
or failing to take an action in violation of paragraph (8),
(9), or (14) of section 2302(b) against an employee of an
agency; and
``(3) the term `supervisor' means an employee who would be
a supervisor, as defined under section 7103(a), if the entity
employing the employee was an agency.
``(b) Proposed Disciplinary Actions.--
``(1) In general.--If the head of the agency employing a
supervisor, an administrative law judge, the Merit Systems
Protection Board, the Special Counsel, a judge of the United
States, or the Inspector General of the agency employing a
supervisor determines that the supervisor has committed a
prohibited personnel action, the head of the agency employing
the supervisor, in accordance with the procedures required
under paragraph (2)--
``(A) for the first prohibited personnel action committed
by a supervisor--
``(i) shall propose suspending the supervisor for a period
of not less than 3 days; and
``(ii) may, in addition to a suspension described in clause
(i), propose any other action, including a reduction in grade
or pay, that the head of the agency determines appropriate;
and
``(B) for the second prohibited personnel action committed
by a supervisor, shall propose removing the supervisor.
``(2) Procedures.--
``(A) Notice.--A supervisor against whom an action is
proposed to be taken under paragraph (1) is entitled to
written notice--
``(i) stating the specific reasons for the proposed action;
and
``(ii) informing the supervisor of the right of the
supervisor to review the material which is relied on to
support the reasons for the proposed action.
``(B) Answer and evidence.--
``(i) In general.--A supervisor who is notified under
subparagraph (A) that the supervisor is the subject of a
proposed action under paragraph (1) is entitled to 14 days
following such notification to answer and furnish evidence in
support of the answer.
``(ii) No evidence furnished; insufficient evidence.--After
the end of the 14-day period described in clause (i), if a
supervisor does not furnish evidence as described in clause
(i) or if the head of the agency determines that such
evidence is not sufficient to reverse the proposed action,
the head of the agency shall carry out the action.
``(C) Scope of procedures.--An action carried out under
this section--
``(i) except as provided in clause (ii), shall be subject
to the same requirements and procedures (including regarding
appeals) as an action under section 7503, 7513, or 7543; and
``(ii) shall not be subject to--
``(I) paragraphs (1) and (2) of section 7503(b);
``(II) paragraphs (1) and (2) of subsection (b) and
subsection (c) of section 7513; or
``(III) paragraphs (1) and (2) of subsection (b) and
subsection (c) of section 7543.
``(3) Delegation.--
``(A) In general.--Except as provided in paragraph (B), the
head of an agency may delegate any authority or
responsibility under this subsection.
``(B) Nondelegability of determination regarding prohibited
personnel action.--If the head of an agency is responsible
for determining whether a supervisor has committed a
prohibited personnel action for purposes of paragraph (1),
the head of the agency may not delegate that
responsibility.''.
(b) Technical and Conforming Amendment.--The table of
sections for subchapter II of chapter 75 of title 5, United
States Code, is amended by adding at the end the following:
``7515. Discipline of supervisors based on retaliation against
whistleblowers.''.
SEC. 105. SUICIDE BY EMPLOYEES.
(a) Referral.--The head of an agency shall refer to the
Special Counsel, along with any information known to the
agency regarding the circumstances described in paragraphs
(2) and (3), any instance in which the head of the agency has
information indicating--
(1) an employee of the agency committed suicide;
(2) prior to the death of the employee, the employee made
any disclosure of information which reasonably evidences--
(A) any violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; and
(3) after a disclosure described in paragraph (2), a
personnel action was taken against the employee.
(b) Office of Special Counsel Review.--For any referral to
the Special Counsel under subsection (a), the Special Counsel
shall--
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(1) examine whether any personnel action was taken because
of any disclosure of information described in subsection
(a)(2); and
(2) take any action the Special Counsel determines
appropriate under subchapter II of chapter 12 of title 5,
United States Code.
SEC. 106. TRAINING FOR SUPERVISORS.
In consultation with the Special Counsel and the Inspector
General of the agency (or senior ethics official of the
agency for an agency without an Inspector General), the head
of each agency shall provide training regarding how to
respond to complaints alleging a violation of whistleblower
protections (as defined in section 2307 of title 5, United
States Code, as added by section 107) available to employees
of the agency--
(1) to employees appointed to supervisory positions in the
agency who have not previously served as a supervisor; and
(2) on an annual basis, to all employees of the agency
serving in a supervisory position.
SEC. 107. INFORMATION ON WHISTLEBLOWER PROTECTIONS.
(a) Existing Provision.--
(1) In general.--Section 2302 of title 5, United States
Code, is amended--
(A) by striking subsection (c); and
(B) by redesignating subsections (d), (e), and (f) as
subsections (c), (d), and (e), respectively.
(2) Technical and conforming amendments.--
(A) Section 4505a(b)(2) of title 5, United States Code, is
amended by striking ``section 2302(d)'' and inserting
``section 2302(c)''.
(B) Section 5755(b)(2) of title 5, United States Code, is
amended by striking ``section 2302(d)'' and inserting
``section 2302(c)''.
(C) Section 110(b)(2) of the Whistleblower Protection
Enhancement Act of 2012 (5 U.S.C. 2302 note) is amended by
striking ``section 2302(f)(1) or (2)'' and inserting
``section 2302(e)(1) or (2)''.
(D) Section 1217(d)(3) of the Panama Canal Act of 1979 (22
U.S.C. 3657(d)(3)) is amended by striking ``section 2302(d)''
and inserting ``section 2302(c)''.
(E) Section 1233(b) of the Panama Canal Act of 1979 (22
U.S.C. 3673(b)) is amended by striking ``section 2302(d)''
and inserting ``section 2302(c)''.
(b) Provision of Information.--Chapter 23 of title 5,
United States Code, is amended by adding at the end the
following:
``Sec. 2307. Information on whistleblower protections
``(a) Definitions.--In this section--
``(1) the term `agency'--
``(A) except as provided in subparagraph (B), has the
meaning given that term in section 2302; and
``(B) does not include any entity that is an element of the
intelligence community, as defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 3003(4));
``(2) the term `new employee' means an individual--
``(A) appointed to a position as an employee of an agency
on or after the date of enactment of the Dr. Chris
Kirkpatrick Whistleblower Protection Act of 2017; and
``(B) who has not previously served as an employee; and
``(3) the term `whistleblower protections' means the
protections against and remedies for a prohibited personnel
practice described in paragraph (8), subparagraph (A)(i),
(B), (C), or (D) of paragraph (9), or paragraph (14) of
section 2302(b).
``(b) Responsibilities of Head of Agency.--The head of each
agency shall be responsible for the prevention of prohibited
personnel practices, for the compliance with and enforcement
of applicable civil service laws, rules, and regulations, and
other aspects of personnel management, and for ensuring (in
consultation with the Special Counsel and the Inspector
General of the agency) that employees of the agency are
informed of the rights and remedies available to them under
this chapter and chapter 12, including--
``(1) information regarding whistleblower protections
available to new employees during the probationary period;
``(2) the role of the Office of Special Counsel and the
Merit Systems Protection Board with regard to whistleblower
protections; and
``(3) how to make a lawful disclosure of information that
is specifically required by law or Executive order to be kept
classified in the interest of national defense or the conduct
of foreign affairs to the Special Counsel, the Inspector
General of an agency, Congress, or other agency employee
designated to receive such disclosures.
``(c) Timing.--The head of each agency shall ensure that
the information required to be provided under subsection (b)
is provided to each new employee of the agency not later than
6 months after the date the new employee begins performing
service as an employee.
``(d) Information Online.--The head of each agency shall
make available information regarding whistleblower
protections applicable to employees of the agency on the
public website of the agency, and on any online portal that
is made available only to employees of the agency if one
exists.
``(e) Delegees.--Any employee to whom the head of an agency
delegates authority for personnel management, or for any
aspect thereof, shall, within the limits of the scope of the
delegation, be responsible for the activities described in
subsection (b).''.
(c) Technical and Conforming Amendment.--The table of
sections for chapter 23 of title 5, United States Code, is
amended by adding at the end the following:
``2307. Information on whistleblower protections.''.
TITLE II--DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES
SEC. 201. PREVENTION OF UNAUTHORIZED ACCESS TO MEDICAL
RECORDS OF EMPLOYEES OF THE DEPARTMENT OF
VETERANS AFFAIRS.
(a) Development of Plan.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Veterans Affairs
shall--
(A) develop a plan to prevent access to the medical records
of employees of the Department of Veterans Affairs by
employees of the Department who are not authorized to access
such records;
(B) submit to the appropriate committees of Congress the
plan developed under subparagraph (A); and
(C) upon request, provide a briefing to the appropriate
committees of Congress with respect to the plan developed
under subparagraph (A).
(2) Elements.--The plan required under paragraph (1) shall
include the following:
(A) A detailed assessment of strategic goals of the
Department for the prevention of unauthorized access to the
medical records of employees of the Department.
(B) A list of circumstances in which an employee of the
Department who is not a health care provider or an assistant
to a health care provider would be authorized to access the
medical records of another employee of the Department.
(C) Steps that the Secretary will take to acquire new or
implement existing technology to prevent an employee of the
Department from accessing the medical records of another
employee of the Department without a specific need to access
such records.
(D) Steps the Secretary will take, including plans to issue
new regulations, as necessary, to ensure that an employee of
the Department may not access the medical records of another
employee of the Department for the purpose of retrieving
demographic information if that demographic information is
available to the employee in another location or through
another format.
(E) A proposed timetable for the implementation of such
plan.
(F) An estimate of the costs associated with implementing
such plan.
(b) Appropriate Committees of Congress Defined.--In this
section, the term ``appropriate committees of Congress''
means--
(1) the Committee on Homeland Security and Governmental
Affairs and the Committee on Veterans' Affairs of the Senate;
and
(2) the Committee on Oversight and Government Reform and
the Committee on Veterans' Affairs of the House of
Representatives.
SEC. 202. OUTREACH ON AVAILABILITY OF MENTAL HEALTH SERVICES
AVAILABLE TO EMPLOYEES OF THE DEPARTMENT OF
VETERANS AFFAIRS.
The Secretary of Veterans Affairs shall conduct a program
of outreach to employees of the Department of Veterans
Affairs to inform those employees of any mental health
services, including telemedicine options, that are available
to them.
SEC. 203. PROTOCOLS TO ADDRESS THREATS AGAINST EMPLOYEES OF
THE DEPARTMENT OF VETERANS AFFAIRS.
The Secretary of Veterans Affairs shall ensure protocols
are in effect to address threats from individuals receiving
health care from the Department of Veterans Affairs directed
towards employees of the Department who are providing such
health care.
SEC. 204. COMPTROLLER GENERAL OF THE UNITED STATES STUDY ON
ACCOUNTABILITY OF CHIEFS OF POLICE OF
DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTERS.
The Comptroller General of the United States shall conduct
a study to assess the reporting, staffing, accountability,
and chain of command structure of the Department of Veterans
Affairs police officers at medical centers of the Department.
The SPEAKER pro tempore. The gentleman from Iowa (Mr. Blum) and the
gentleman from Maryland (Mr. Cummings) each will control 30 minutes.
The Chair recognizes the gentleman from Iowa.
General Leave
Mr. BLUM. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks and
include extraneous material on S. 585, currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Iowa?
There was no objection.
Mr. BLUM. Mr. Speaker, I yield myself such time as I may consume.
I rise today in support of S. 585, the Dr. Chris Kirkpatrick
Whistleblower Protection Act of 2017.
This bill addresses problems that were exposed in the tragic case of
whistleblower retaliation at the Department of Veterans Affairs.
Dr. Chris Kirkpatrick was a doctor employed on a probationary basis
by
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Veterans Affairs, who committed suicide hours after he was fired for
questioning overmedication of the veterans he cared for.
This bill would, for the first time, create minimum disciplinary
standards to require that managers who retaliate against whistleblowers
are punished. First offenders would receive at least 3 days of
suspension, and repeat offenders would face mandatory termination.
The Kirkpatrick Act also adds whistleblower protections to Federal
employees hired on a probationary basis, like Dr. Kirkpatrick. Agencies
will be required to grant priority to requests for transfer from
probationary period whistleblowers.
The bill would create a number of other whistleblower protections,
many of which are overdue. For example, accessing the medical file of a
whistleblower for the purpose of retaliation would be declared a
prohibited personnel action. The Department of Veterans Affairs would
also be required to devise a plan to prevent that sort of unauthorized
medical file access.
The bill also requires apparent suicides by whistleblowers to be
referred to the Office of Special Counsel for further investigation.
Agencies would be required to initiate training programs for
supervisors and information disclosures for employees regarding
whistleblower protection.
The Senate passed this bill by voice vote earlier this year, and
passage through the House would send the bill to the President's desk
for signature and enactment.
I urge my colleagues to support this bill to honor the memory of Dr.
Chris Kirkpatrick and to protect future whistleblowers.
Mr. Speaker, I reserve the balance of my time.
Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, as the ranking member of the Oversight and Government
Reform Committee, the committee with oversight jurisdiction over
Federal workers and agencies, I am one of the staunchest supporters of
whistleblower protections in the Congress. I strongly support enhancing
protections for the brave men and women who put their careers on the
line to speak out against waste, fraud, and abuse.
I fully support the intent of S. 585 to protect whistleblowers who
face investigations in retaliation for their disclosures. But I am
disappointed that the Republican leadership chose not to consider this
measure under regular order.
House Republicans rushed this legislation directly to the floor,
bypassing any consideration by the Oversight Committee or the Veterans'
Affairs Committee, which have jurisdiction over the bill. It is
especially disappointing that my committee was not given the
opportunity to address constitutional and privacy concerns raised by
the Trump administration's Office of Personnel Management about the
bill. That is what I said: the Trump administration's concerns about
it.
It is even more disheartening that the Rules Committee issued a
closed rule for this bill. They blocked all three germane amendments
that I submitted, including an amendment to fix the problems identified
by the OPM.
The measure before us today would change the procedures for
disciplining Federal supervisors who retaliate against employees who
blow the whistle. It would require agency heads to impose suspensions
of at least 3 days for a first offense, and termination for a second
offense whenever an agency head, administrative law judge, the Merit
Systems Protection Board, a Federal judge, or an inspector general
finds that a supervisor retaliated against an employee who blew the
whistle.
It also would reduce the length of the notice requirement for
proposed disciplinary action from 30 days to 14 days. It would
eliminate the option to hold a hearing if a supervisor contests a
proposed disciplinary action. It would change the current burden of
proof for demonstrating retaliation from a preponderance of the
evidence to require agency heads to impose disciplinary action in any
case in which a supervisor does not furnish evidence or if the head of
the agency determines that such evidence is not sufficient to reverse
the proposed action.
The bill also would require an agency head, when an employee may have
committed suicide, to refer any information to the Office of Special
Counsel indicating that the employee had blown the whistle and that the
agency took personnel action against the employee.
The OPM has questioned whether some of the provisions in the bill
would withstand constitutional scrutiny if challenged in court, and I
agree with the OPM on that issue.
For example, the OPM explained that the bill's requirement to propose
minimum penalties of 3 days' suspension for the first offense and
termination for second offenses could violate due process protections.
These protections require agencies to notify employees of factors they
will consider regarding proposed penalties for findings of wrongdoing
and to provide employees with meaningful opportunities to respond. The
United States Supreme Court and Federal Circuit Courts have ruled that
Federal employees are entitled to these protections. After all, they
are Americans.
But according to the OPM, the bill would eliminate agency
consideration of many of the 12 factors that were set force by the
Merit Systems Protection Board in Douglas v. Veterans Administration in
1981. The Board uses these so-called Douglas factors to assess the
reasonableness of penalties, and agency officials who propose or decide
adverse actions against employees must concurrently consider these
factors.
Concerns have also been raised that by reducing the current
requirement for 30 days' notice of adverse action to 14 days, lowering
the existing burden of proof, and eliminating the option for hearings,
the bill could be challenged on the basis that it does not give
supervisors sufficiently meaningful opportunities to respond to
accusations of retaliation.
In addition, although the intent of the bill is to enhance
protections for whistleblowers, there is some concern that it would be
misused to harm whistleblowers. For example, an agency head could
utilize the bill's abbreviated disciplinary processes in bad faith to
retaliate against supervisors who blow the whistle on high-level waste,
fraud, or abuse.
Lastly, the provision requiring agency heads to refer information to
the Office of Special Counsel regarding employees who may have
committed suicide raises important privacy questions. The bill does not
include any provision requiring agencies to obtain permission from
family members before sharing information about an employee's death. It
is unfortunate that the House has failed to take the opportunity to fix
these flaws in this measure.
The second amendment that I presented would have protected the
privacy interests of employees who commit suicide by requiring written
permission from their next of kin before agency heads disclose the
details about the death.
And another amendment that I submitted would have made corrections in
the underlying bill to ensure that managers who violate whistleblower
rights will be held accountable, while safeguarding due process rights.
Finally, the third amendment was the text of my bipartisan bill, H.R.
702, the Federal Employee Anti-Discrimination Act of 2017, which passed
the House by a voice vote under suspension of the rules earlier in this
Congress, and also passed the House by a vote of 403-0 in the last
Congress.
This amendment would have expanded the protections for employees who
suffer retaliation and discrimination. It also would have prohibited
the use of nondisclosure agreements to prevent employees from
disclosing waste, fraud, or abuse to Congress, to the Office of Special
Counsel, and inspector generals.
I expect the bill, as it now stands, to engender substantial
litigation that may have to be addressed by the courts. It would,
indeed, be unfortunate if that litigation resulted in overturning
disciplinary action against an employee who retaliated against a
whistleblower, when we could have acted today to address the
constitutional concerns.
As I said before the Rules Committee, sometimes I think we can get so
caught up in our partisan battles, that even when we come with good
suggestions as to how to make a piece of legislation better and more
effective and certainly come within the bounds
[[Page H8001]]
of the Constitution, we are blinded by what we see; and that is this
battle between Republicans and Democrats, Mr. Speaker, and we don't
come up, sometimes with the very best product.
But even with all that, because I am so concerned about
whistleblowers, I plan to vote for the bill.
Mr. Speaker, I reserve the balance of my time.
Mr. BLUM. Mr. Speaker, I reserve the balance of my time.
Mr. CUMMINGS. Mr. Speaker, I yield 3 minutes to the gentleman from
Wisconsin (Mr. Kind).
Mr. KIND. Mr. Speaker, I rise in strong support of the Dr. Chris
Kirkpatrick Whistleblower Protection Act, which will enhance
whistleblower protections for employees at the VA and lead to better
care for our Nation's veterans.
This bill is named in honor of Dr. Chris Kirkpatrick, a Wisconsinite,
who tragically took his own life after being fired from the Tomah VA
Medical Center in my congressional district in Tomah, Wisconsin.
Dr. Kirkpatrick was a clinical psychologist who specialized in
treating some of the toughest and most pressing issues our veterans
face today: PTSD, substance abuse, and chronic pain.
During his time at Tomah, Dr. Kirkpatrick noticed a disturbing trend
of overprescribing of opioids to patients.
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Dr. Kirkpatrick had the courage to blow the whistle to his superiors
about what he rightly saw as dangerous pain management practices at the
time. Sadly, the overprescribing issues that Dr. Kirkpatrick tried to
warn about continued to occur at Tomah VA.
In 2015, a Wisconsin veteran named Jason Simcakoski tragically lost
his life at the facility due to the dangerous pain management practices
at the Tomah VA. Last year, I worked with the Simcakoski family to pass
the bipartisan Jason Simcakoski PROMISE Act to improve pain management
practices at the VA so that no other veterans and their families have
to go through what the Simcakoski family had to.
Although Dr. Kirkpatrick is no longer with us today, his dedication
to serving veterans and his courage to stand up for what was right is
why we are here today. This act will ensure that no one is retaliated
against for coming forward with concerns about waste, fraud, abuse, and
malpractice at the VA. The bill offers a number of new protections for
whistleblowers and will help ensure that supervisors found guilty of
retaliation are held responsible for their actions.
Dr. Kirkpatrick was dedicated to improving lives and serving our
Nation's veterans. The bill before us today will honor the memory of
Dr. Kirkpatrick by helping to make sure no one has to go through what
he did.
Mr. Speaker, I encourage my colleagues to support this legislation.
Mr. BLUM. Mr. Speaker, I reserve the balance of my time.
Mr. CUMMINGS. Mr. Speaker, I yield 3 minutes to the gentleman from
Oregon (Mr. DeFazio), the ranking member of the Transportation and
Infrastructure Committee and one who has been a staunch supporter of
whistleblowers.
Mr. DeFAZIO. Mr. Speaker, I would agree with many of the gentleman's
concerns and comments regarding the lack of a real legislative process
here. The bill could be better. But nonetheless, like the ranking
member, I will be supporting the legislation despite those concerns
because it is absolutely urgent.
I have a totally dysfunctional management at the VA hospital in
Roseburg, Oregon. A number of years ago, a whistleblower came to me and
said that substandard care was being provided. We asked the Office of
Inspector General to look into it. They whitewashed it, and then it
came out in the Senate testimony that the Office of Special Counsel had
found that this doctor had been penalized as a whistleblower because he
was pointing to substandard care.
I asked for another investigation and ultimately found, yes, indeed,
substandard care was being provided by the head surgeon. He was
suspended from his duties but is still the head surgeon. Now he has run
another very accomplished doctor, under very dubious circumstances, out
of my Eugene clinic. This is a surgeon who served 29 years, honorably,
in the military, 10 years at my regional hospital with rave reviews,
and, after 30 days at my new VA clinic in Eugene, was dismissed in the
most unusual way with no allegations put forward.
Mr. Speaker, again, it seems that we are having issues here when the
quality is substandard that this one person is able to basically just
get rid of the folks who are raising concerns about the care of
veterans. Again, this shouldn't happen.
Mr. Speaker, I include in the record two letters regarding the
dismissed doctor.
October 17, 2017.
Dear Mr. DeFazio: I am a contracted physician in the
emergency department at the Roseburg VA. I have been working
at this facility since 2010. During that time I have truly
enjoyed providing care for the veterans. However, I have
significant concerns regarding the administration and
inefficiencies in healthcare, in the VA system.
Unfortunately, it seems that advancement of careers and the
fluffing of numbers supersede patient care.
Despite the build up of these concerns over the years, I
have recently became aware of an action that compels me to go
beyond the normal chain of command. One of the surgeons
working at the Eugene campus--still under the Roseburg
administration--was fired recently under very concerning
circumstances.
Dr. Scott Russi was working at the Eugene VA for less than
1 month when he was pushed out and fired. I know Dr. Russi
from the private sector. In addition to working at the
Roseburg VA, I have worked for the last ten years at Sacred
Heart RiverBend--a trauma, stroke, and cardiac center--and
one of the largest hospitals in the state. I worked alongside
Dr. Russi for many years at RiverBend and I found him to be
not only extremely competent and hardworking, but always very
professional. I was sad to see him leave RiverBend, but I was
encouraged that he would be working in the VA system as I
felt he would significantly improve the quality of care for
the veterans.
I find it very disheartening that a group of administrative
physicians, who rarely practice medicine, are able to strike
down such a promising figure simply because they seem to have
felt threatened by him. I know there are many people who are
upset by this firing and who have concerns about this system
in general. I have tried many times to discuss my concerns
with people in the administration and have been met with, at
best, excuses and, at worst, threats. It is clear to me as
somewhat of an outsider and observer (as I am not actually a
VA employee) that physicians who are dedicated to patient
care and most skilled are threatening to the administration.
These physicians are often ostracized and pushed out--and
when they can't be pushed out, false rumors are spread about
them. I have considered stepping away from the VA system due
to these continuing frustrations. It is disheartening to see
these veterans treated with such carelessness. However, I
feel that someone has to stay and actually care for them,
but, if I stay, I also want to try to make the system a
better place for them. For many, this is their only health
care.
I wish this was as exaggerated as it may sound, but
unfortunately this is only a small piece of a huge problem.
If you are interested in more details, I am more than happy
to discuss this further. In general, I keep my head down and
do what I think is best, but this presents itself as a moment
when speaking out is necessary and right.
Thank you,
Charlotte Ransom, MD.
____
Congressman DeFazio: I am writing to ask for your help. I
am a surgeon and a veteran having attended the Usafa and
graduating in 1984, completing medical school on Hpsp
scholarship and spending the next 29 years on active duty. I
deployed four times as a combat surgeon and once as a
hospital commander, my last deployment in 2012 was as the
Dccs of Craig Joint Theater Hospital, Bagram Ab, Afghanistan.
I retired in October of 2013 and settled in Oregon as a
trauma surgeon eventually becoming the Trauma Medical
Director at Riverbend. I was the on-call surgeon the tragic
day Ucc suffered the active shooter event. I recently left my
civilian practice to serve our Veterans, for reasons I think
you would understand; I have seen the care my comrades have
been given and found it wanting, and serving my Vets is
therapeutic for my Ptsd and the sorrow I carry for not being
able to save more soldiers. I am the new surgeon at the Va
Eugene Hcc and have been working there part-time since
January of this year and full time since 23 July. Today I was
handed a summary suspension of clinical privileges as a
surgeon by the parent Va, Roseburg and Dr. Dinesh Ranjan the
chief of surgery. I have been denied the opportunity to
defend my reputation, denied the opportunity to stand before
my peers, and denied any opportunity to see the allegations.
And tonight, I have spoken with two Va physicians (Dr. Lisa
Brandenburger and Dr. Philo Calhoun) whose lives were
dedicated to serving Veterans but were irreparably damaged by
Dr. Ranjan. I am now being targeted by Dr. Ranjan because he
recruited me with the promise of a salary of $385,000, I
signed a contract for that
[[Page H8002]]
amount but I am being paid $280,000. Because I expressed to
the Eugene Hcc administrator I felt I was misled about the
salary, Dr. Ranjan has gone after my clinical privileges, had
them summarily dismissed and placed me at risk of being
reported to the National Practitioner Data Bank (Npdb). I
have been suspended from patient contact for 30 days for an
investigation. If the investigation finds me deficient, I
will be reported to the Npdb. If the investigation extends
beyond 30 days, I will be reported to the Npdb. If I am fired
or quit my job, I will be reported to the Npdb. If I am
reported to the Npdb I will never work again as a surgeon.
I know it all sounds unbelievable, I think it is
unbelievable as I try and wrap my head around the events of
these last few days. I ask you not to send a congressional
inquiry to Mr. Paxton, as that would make my life worse. What
I thought would be my dream job, now has become a nightmare.
Respectfully,
Scott Russi.
Mr. DeFAZIO. Mr. Speaker, since this has come out, I have had dozens
of calls from nurses and doctors and other workers in the VA system in
my region--in Eugene, Springfield, and southern Oregon, down to
Roseburg, at those two facilities--because of this mismanagement. They
say that the care is not up to standards, just like this particular
physician was not providing modern care when he did colonoscopies.
We need--vitally need--this legislation and the strongest protection
for whistleblowers. This isn't about protecting bad managers. It is
about promoting qualified and keeping qualified employees, which we are
having a hard time doing in my area. It is about providing the best
care to our veterans, and that isn't going to happen if people can be
intimidated or just shown the door when they raise concerns.
Mr. BLUM. Mr. Speaker, I reserve the balance of my time.
Mr. CUMMINGS. Mr. Speaker, I yield 3 minutes to the gentlewoman from
New Hampshire (Ms. Kuster).
Ms. KUSTER of New Hampshire. Mr. Speaker, I thank Ranking Member
Cummings for yielding me time to speak about this important legislation
to protect whistleblowers.
Mr. Speaker, I share the concerns that were brought up yesterday in
the Rules Committee and today on the floor about the procedure for
bringing this bill to the floor without full House committee process.
However, I will support the bill because it is so important.
The Dr. Chris Kirkpatrick Whistleblower Protection Act will provide
protection for employees at the Department of Veterans Affairs who blow
the whistle on wrongdoing in the agency.
As the ranking member of the House Veterans' Affairs Subcommittee on
Oversight and Investigations, I know full well that whistleblowers are
vital to the VA to protect the health and well-being of the men and
women who have so bravely served our country. Although we have numerous
protections currently in place for whistleblowers, those who are
committed to silencing them still manage to find ways to retaliate,
which we saw with tragic consequences at the Phoenix VA Health Care
System and in Dr. Kirkpatrick's case.
In addition to serving on the House Veterans Affairs' Committee, my
role as the founder and co-chair of the Bipartisan Heroin Task Force
makes VA's retaliation against another VA doctor, Dr. Kirkpatrick, an
especially troublesome tragedy. When he tried to raise the alarm over
concerns that another VA doctor was overprescribing opioids that may
have led to patient deaths, he was aware that doing so could be harmful
to his own position at the Tomah VA Medical Center.
Dr. Kirkpatrick's action was laudable. Veterans have been acutely
impacted by the opioid epidemic, and his efforts to reduce prescription
rates for veterans is not only a good example for VA physicians, but
for all physicians in the U.S. today.
Title II of this bill puts in place a number of requirements for the
VA to protect VA employees from several retaliatory measures. It
requires the Secretary to put in place a plan to prevent unauthorized
access to medical records of VA employees, along with outreach to
ensure that VA employees are aware of mental health services available
to them.
These and other improvements in title II will not only help prevent
the type of retaliation that Dr. Kirkpatrick suffered, they will
improve care for veterans to also help make the VA a better place to
work.
Mr. Speaker, I am pleased to support this bill, and I urge my
colleagues to do the same.
Mr. BLUM. Mr. Speaker, I reserve the balance of my time.
Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
As I close, I take the opportunity to reiterate that I strongly
support the objectives of S. 585. If there is anything that we agree on
in the Oversight and Government Reform Committee, it is that we must
protect whistleblowers.
Many of the investigations that we have conducted have been as a
result of somebody who saw something and said something. Like Dr.
Kirkpatrick, I am sure, in most of those instances, it was very
difficult for them because they, on the one hand, wanted to improve a
situation or address a problem, but at the same time, they knew that it
was possible that they, themselves, might be harmed and their families
might be harmed. So they make a very, very difficult choice, a very
difficult choice.
I am horrified that Dr. Kirkpatrick was so agonized by the treatment
he endured at the Veterans Administration that he saw no options for
himself. In other words, Mr. Speaker, he saw no way out. I worry that
there are civil servants today who are enduring that same agony.
But we say to them that we will protect you with all we have got, and
that is why I appreciate Senator Johnson's work on S. 585, and I share
his commitment to protecting whistleblowers. For that reason, as I said
earlier, I will vote in favor of this legislation.
That said, I wish that the Republican leadership had taken the
opportunities that my amendments provided to improve this bill. These
issues of equal protection are nothing to play with because we begin to
chip away and chip away and chip away at employees' rights, and the
next you know, those rights begin to disappear. Those are the kind of
rights that are a part and the fabric of this thing we call a
democracy. I think we have to be very, very, very careful. It is going
to be interesting to see what the courts have to say about this
legislation.
My amendments would have addressed the constitutional concerns raised
by OPM--and I emphasize OPM. This was not the Obama OPM. This was the
Trump OPM.
My amendments would also have protected the privacy of employees who
take their own lives.
My amendments would have added to the underlying bill additional
protections for employees who suffer retaliation or discrimination,
protections that the House has already approved.
I believe this is a missed opportunity and it is sad. I truly hope
that future litigation does not undo the advances that this bill seeks
to make in the protections provided for the courageous men and women
willing to blow the whistle on wrongdoing. In this day and age, we need
the whistleblower more now than we have ever needed them.
Mr. Speaker, I urge the Members to support this bill to protect some
of the boldest, most courageous people in our Nation, the
whistleblowers.
Mr. Speaker, I yield back the balance of my time.
Mr. BLUM. Mr. Speaker, in closing, I urge adoption of the bill, and I
yield back the balance of my time.
Mr. ROE of Tennessee. Mr. Speaker, I rise today in support of S. 585
the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. As
Chairman of the Committee on Veterans' Affairs, protecting
whistleblowers at VA is of paramount concern to ensure that we provide
high quality healthcare and benefits to our nation's veterans.
This bill authored by Senator Johnson of Wisconsin was named in honor
of Dr. Christopher Kirkpatrick, a former VA doctor who served our
veterans at the Tomah, WI medical center. Many of us know that the
Tomah VA medical center has been a facility plagued with the
overprescribing of opioids to our veterans. Dr. Kirkpatrick was a brave
patriot who blew the whistle on these over prescriptions and the harm
that was being done to veterans, however, instead of commending him for
coming forward, VA fired him on trumped up charges, which ultimately
led to him taking his own life.
In my opinion, the corrosive culture within this facility and VA's
actions toward Dr. Kirkpatrick left a chilling effect not only in
Tomah, but across the Department. I believe that these actions made
whistleblowers feel questioned and worried that they would be punished
instead of being lauded and encouraged to come forward.
[[Page H8003]]
It is because of brave whistleblowers like Dr. Kirkpatrick that my
Committee has been able to expose issues and scandals across the VA. It
is because of whistleblowers that we were able to uncover the
manipulation of wait times at the Phoenix Medical Center; the
falsifying of records in the Philadelphia Regional Office; the fact
that a VA employee participated in an armed robbery in Puerto Rico and
stayed on the job following their arrest; and many more egregious
behaviors at the Department that put veterans in harm's way.
I have confidence that Secretary Shulkin is committed to protecting
whistleblowers, so that we never again lose another talented doctor,
like Dr. Kirkpatrick. The best way to help him in this mission is to
send a clear message to all VA employees, at every level in the
Department, and within every level of management, that there are stiff
penalties for those who retaliate against the men and women who are
brave enough to come forward and protect veterans.
S. 585 builds off of our work this Congress that started with the
passage of the bill I championed, the VA Accountability and
Whistleblower Protection Act of 2017, which provides the Secretary of
Veterans Affairs the tools he needs to hold poor employees accountable.
I am pleased that the bill before us today would make needed changes to
our outdated civil service laws for all Federal Government employees,
which have become so archaic and complex that they tend to put the
rights of retaliators above the rights of whistleblowers.
The bill before us would also provide needed reforms to information
regarding VA employees who die by suicide, additional penalties for
accessing a veteran's medical record, and other needed provisions to
ensure that we put the needs of whistleblowers and veterans first.
I appreciate Senator Johnson and Representative Duffy for their work
on this important bill and I encourage all of my colleagues to support
its passage.
Mr. DUFFY. Mr. Speaker, today, Congress will have an opportunity to
vote on legislation that will bolster protections for whistleblowing
patriots, while vastly improving care for veterans at the VA.
The Dr. Chris Kirkpatrick Whistleblower Protection Act is the product
of hundreds of hours of Congressional hearings, meetings with
stakeholders, and hard work by dozens of lawmakers here in Washington,
to make sure that the tragic abuse that Dr. Kirkpatrick faced will
never happen again.
As some of you may know, Dr. Chris Kirkpatrick was a clinical
psychologist at the VA in Tomah, WI. He was a veteran, a graduate of
Northwestern University, and a caring individual who dedicated his
career to providing innovative treatments for veterans suffering from
PTSD. Most notably, he created a yoga program to help vets at the VA in
Chicago. He was known to be very well-liked by the patients he served.
In 2009, Dr. Kirkpatrick expressed concerns that his patients were
being heavily overmedicated. It became so bad, he said, that he was
unable to properly do his job. He wanted to do what was right for
veterans, and as a veteran himself, he couldn't stand to see how
careless some of the VA staff were being with high levels of dangerous
medications.
Unfortunately, instead of looking into Dr. Kirkpatrick's claims, the
facility's chief of staff told him to mind his own business, and to
instead focus on his own work. Shortly thereafter, Dr. Kirkpatrick was
called to a disciplinary meeting and given a written reprimand.
This type of retaliation went on for months.
Then, in July, Dr. Kirkpatrick complained again that a dangerous
veteran had not been properly discharged, despite recommendations from
a treatment team. A week after making the complaint, Dr. Kirkpatrick
was fired from the VA.
He was devastated. He begged for an opportunity to stay, and
expressed concerns that he had been given too many complex cases, and
that the emotional toll was too high. Again, his concerns were ignored.
That night, Dr. Kirkpatrick wrote a note to his girlfriend in
Chicago, another to the kennel he wanted to take care of his dog, and
one final note for the mailman. It read: ``Please call 911--tell them
to go to red barn building.''
He had taken his own life. He was 38 years old.
Dr. Kirkpatrick's death was the product of a broken system--a system
that encourages retaliation against whistleblowers, while ignoring the
underlying causes of their concerns.
If Dr. Kirkpatrick's death wasn't tragic enough, a subsequent
investigation at the VA found that a patient had died from ``mixed drug
toxicity'', and that Dr. Kirkpatrick's concerns were completely
warranted.
Not only did whistleblower retaliation cost Dr. Kirkpatrick his life,
it cost the life of a patient as well.
That's why I urge you all to vote yes on the Dr. Chris Kirkpatrick
Whistleblower Protection Act.
A yes vote means that VA personnel will no longer be able to access a
whistleblower's medical records as means of discrediting them, which a
separate investigation found happens far too often.
A yes vote means that federal agencies have to notify the Office of
Special Counsel when a suicide takes place.
A yes means clear disciplinary actions for supervisors who retaliate
against whistleblowers, training for supervisors on how to properly
respond, and a requirement that employees are made aware of the mental
health services at their disposal.
A yes vote also means keeping upholding normal burdens of proof to
strengthen protections for employees. This legislation calls for the
Inspector General, Office of Special Counsel, or a Merit Systems
Protection Board Administrative Judge to ``determine'' that a
supervisor has committed a prohibited personnel action, meaning through
the normal preponderance of the evidence for any other disciplinary
action under Chapter 75 of title 5. This does not mean some arbitrary
process for some bureaucrat to create later on.
I want to be clear: this legislation strengthens protections for
patriots--for those who are trying to do the right thing. For those who
care about veterans and their safety. And for folks like Dr.
Kirkpatrick, so that no one ever has to go through what he went
through.
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to House Resolution 562, the previous question is ordered on
the bill.
The question is on the third reading of the bill.
The bill was ordered to be read a third time, and was read the third
time.
Motion to Recommit
Mr. O'HALLERAN. Mr. Speaker, I have a motion to recommit at the desk.
The SPEAKER pro tempore. Is the gentleman opposed to the bill?
Mr. O'HALLERAN. Mr. Speaker, I am opposed in its current form.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. O'Halleran moves to recommit the bill S. 585 to the
Committee on Oversight and Government Reform with
instructions to report the same back to the House forthwith
with the following amendment:
At the end of title I the bill, add the following new
section:
SEC. __. DISCLOSURE OF VIOLATIONS RELATING TO AIR
TRANSPORTATION.
This Act, and any amendments made by this Act, shall apply
to any employee who makes a protected disclosure of
information relating to a violation by the head of an agency,
or other political appointee, of any law, rule, or regulation
concerning travel, including the improper use of air
transportation.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Arizona is recognized for 5 minutes in support of his motion.
Mr. O'HALLERAN. Mr. Speaker, this is the final amendment to the bill,
which will not kill the bill or send it back to committee. If adopted,
the bill will immediately proceed to final passage, as amended.
Mr. Speaker, increasing accountability and transparency across our
government is a shared principle we can all agree on among this body.
Whether at the VA or other Federal agencies, the American people
deserve to know that Federal officials from the top down are being held
to the standards we expect of them.
We owe it to our veterans, to our seniors, and to the hardworking
American taxpayers to ensure that their tax dollars are utilized
appropriately and efficiently, as intended. Waste, fraud, and abuse,
have no place at our agencies, and those who help uncover it deserve
our admiration and our protection.
I am proud that we are coming together to increase protections for
whistleblowers of Federal agencies, a long overdue effort. But, Mr.
Speaker, in light of recent reports and events that have revealed a
disturbing pattern of improper use of tax dollars on air travel by
senior Federal officials, I believe we must go further.
The reports of Cabinet officials abusing the rules for air travel
that applied to them are not isolated. Not one, not two, not three, but
at least four Cabinet officials are facing scrutiny for irregular and
irresponsible use of agency resources for official and nonofficial air
travel. In light of Secretary Price's recent resignation, it is clear
that Congress must conduct greater oversight.
{time} 1345
That is why I am offering this final amendment on the underlying
bill.
[[Page H8004]]
My amendment simply extends whistleblower protections that are
created under the bill to Federal employees who disclose information
about travel, including improper use of aircraft.
Not only would this make clear to agencies that any violation of
laws, rules, or regulations concerning travel or government aircraft is
unacceptable, it will also ensure those who come forward to expose any
wrongdoing will have appropriate protection from retaliation.
Regardless of party, those who serve the American public must be held
to the highest ethical standards. Our ability to hold government
officials accountable to taxpayers is a hallmark of our democracy, and
we must work to uphold that principle. The resources invested to
agencies to fulfill their missions of serving Americans should not be
abused or frivolously flaunted for personal gain or convenience.
This is not about Republicans or Democrats. We must come together to
stand up for accountability and transparency. The moment we begin
treating disregard for the rules by our elected and appointed officials
as partisan politics, we risk ceding the very values that make our
democracy great and unique in the world.
Mr. Speaker, I urge my colleagues to join me in supporting my
commonsense amendment on behalf of American taxpayers, and I yield back
the balance of my time.
Mr. BLUM. Mr. Speaker, I claim the time in opposition to the motion
to recommit.
The SPEAKER pro tempore. The gentleman from Iowa is recognized for 5
minutes.
Mr. BLUM. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I oppose the motion to recommit.
This bill addresses critical flaws in how the Federal Government
addresses whistleblower retaliation.
The consequences for whistleblower retaliation are very real. There
is a chilling effect of whistleblower reports or unjust termination. In
some cases, like that of Dr. Kirkpatrick in the Department of Veterans
Affairs, the consequences are literally life and death.
We have the opportunity to send this bill to the President for a
signature today and fix this now. Why wait? And at what cost to Federal
employees, veterans, and taxpayers?
I support the gentleman from Maryland's effort to pass this provision
which I previously cosponsored myself, but let's not let one good bill
get in the way of another.
Mr. Speaker, I urge my colleagues to oppose the motion to recommit
and support the underlying bill, and I yield back the balance of my
time.
The SPEAKER pro tempore. Without objection, the previous question is
ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. O'HALLERAN. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________