[Federal Register Volume 71, Number 10 (Tuesday, January 17, 2006)]
[Notices]
[Pages 2615-2616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-393]


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DEPARTMENT OF VETERANS AFFAIRS


VA Directive and Handbook 5021, Employee/Management Relations

AGENCY: Department of Veterans Affairs.

ACTION: Notice with request for comments.

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SUMMARY: Section 302 of the Veterans Health Care, Capital Asset and 
Business Improvement Act of 2003 (Pub. L. 108-170), dated December 6, 
2003, authorizes the Secretary of Veterans Affairs to appoint 
chiropractors as permanent full-time title 38 employees under 38 U.S.C. 
7401(1). Also appointed under this authority are physicians, dentists, 
podiatrists, optometrists, nurses, nurse anesthetists, physician 
assistants and expanded-function dental auxiliaries. Upon successful 
completion of probationary status as required by 38 U.S.C. 7403(b), 
these title 38 employees may file an appeal to a Disciplinary Appeals 
Board if they are subjected to major adverse action that is based in 
whole or in part on a question of professional conduct and competence.
    As part of its implementation of Public Law 108-170, the Department 
of Veterans Affairs proposes to revise its Directive and Handbook 5021, 
Employee/Management Relations, to clarify that chiropractors now have 
the same right to appeal major adverse actions to Disciplinary Appeal 
Boards and grieve certain actions as other title 38 employees. The 
revisions that are the subject of this notice will amend portions of 
the following regulations: VA Directive 5021, Appendix A, sections A.3, 
B.1.b.(1), B.2.b, B.2.c., B.4.a-d., and B.4.f. The revisions also would 
amend the following portions of VA Handbook 5021: Part 1, Chapter 3, 
section 3.a.; Part III, Chapter 1, section 1, third note to section 2., 
and sections 3.a., and 3.h.(5); and Part IV, Chapter 3 (title), 
sections 1.b.(1), 2.b. and 2.c. In some of these sections, the word 
``chiropractors'' has been added to a listing of occupations appointed 
under 38 U.S.C. 7401(1). In the other sections, Public Law 108-170 has 
been added to an existing list of statutory references. In all cases, 
the words or phrases that are proposed to be added to the regulations 
are shown in brackets. Only those sections of the existing regulations 
that contain proposed changes are included in this notice.

DATES: Comments must be received on or before February 16, 2006. The 
proposed effective date of these amendments is 30 days after 
publication of this notice.

ADDRESSES: Send written comments to: Director, Regulations Management 
(00REG1), Department of Veterans Affairs, 810 Vermont Avenue, NW., 
Washington, DC 20420.

FOR FURTHER INFORMATION CONTACT: Larry Ables, Director, Employee 
Relations and Performance Management Service, Department of Veterans 
Affairs, Office of Human Resources Management and Labor Relations 
(051), 810 Vermont Avenue, NW., Washington, DC 20420. Mr. Ables may be 
reached at (202) 273-9827.

SUPPLEMENTARY INFORMATION: Title 38 U.S.C. 7461(e) requires that 
``[w]henever the Secretary proposes to prescribe regulations [relating 
to Disciplinary and Grievance Procedures] under this subchapter, the 
Secretary shall publish the proposed regulations in the Federal 
Register for notice and comment not less than 30 days before the day on 
which they take effect.''

Proposed Revisions to VA Directive 5021, Employee/Management Relations

Appendix A. Disciplinary and Grievance Procedures

Section A. Disciplinary and Major Adverse Actions
    3. Definitions. Unless otherwise noted, the following definitions 
apply to this appendix only.
    a. [Admonishment. An official letter of censure to an employee for 
minor act(s) of misconduct or deficiency in competence. This letter 
normally remains in the employee's personnel folder for two years].
    b. [Discharge. The involuntary separation of an employee from 
employment based on conduct or performance].
    c. [Disciplinary Actions. These are adverse actions, other than 
major adverse actions, which include admonishment and reprimand based 
on conduct or performance].
    d. [Disciplinary Appeals Board. The three member board designated 
to hear an employee's appeal of a major adverse action which is based 
in whole or in part on a question of professional conduct or 
competence].
    e. [Grade. The established grades for the positions covered by this 
chapter will be as defined by 38 U.S.C. 7404, and the qualification 
standards issued pursuant to 38 U.S.C. 7402. (See part II of VA 
Handbook 5005, Staffing.)]
    f. [Major Adverse Actions. These are suspension, transfer, 
reduction in grade, reduction in basic pay, and discharge based on 
conduct or performance].
    g. [Mixed Case. This is a case that includes both (1) a major 
adverse action arising out of (or including) a question of professional 
conduct or competence, and (2) a major adverse action which does not 
arise out of a question of professional conduct or competence, or a 
disciplinary action].
    h. [Professional Conduct or Competence. A question of professional 
conduct or competence involves direct patient care and/or clinical 
competence. The term clinical competence includes issues of 
professional judgment].
    i. [Reduction in Basic Pay. The involuntary reduction, based on 
conduct or performance, of the annual rate of basic pay to which an 
employee is entitled under 38 U.S.C. 7404, including above minimum 
entrance rates and special salary rates authorized under 38 U.S.C. 
7455. This does not apply to reductions in pay other than basic pay, 
such as the loss of physician or dentist special pay or head nurse 
differential, other differentials, allowances or premium pay such as 
standby, on-call, shift, overtime, Sunday, holiday, night work, 
hazardous duty, and interim geographic adjustment].
    j. [Reduction in Grade. The involuntary assignment to a lower grade 
on the same pay schedule based on conduct or performance].
    k. [Reprimand. An official letter of censure to an employee for an 
act of misconduct or deficiency in competence. A reprimand is a more 
severe disciplinary action than an admonishment. This letter normally 
remains in the employee's personnel folder for three years].
    l. [Suspension. The involuntary placement of an employee, for 
disciplinary reasons, in a non-duty, non-pay status for a temporary 
period of time].
    m. [Transfer. The involuntary movement of an employee from one VA 
facility to another (under separate

[[Page 2616]]

managerial authority) based on conduct or performance and without a 
break in service].

    Authority: 38 U.S.C. 501(a), 7421.
Section B. Grievances
    1. Scope and Authority.
* * * * *
    b. Employee Coverage
    (1) This section applies to all physicians, dentists, podiatrists, 
optometrists, [chiropractors,] nurses, nurse anesthetists, physician 
assistants, and expanded-function dental auxiliaries who are not on 
time-limited appointments.
* * * * *
    2. References.
* * * * *
    b. [Section 302 of the Veterans Healthcare, Capital Asset and 
Business Improvement Act of 2003 (Pub. L. 108-170].
    [c.] 38 U.S.C. 501(a), 7421, [ ] 7461-7464.
* * * * *
    4. Definitions.
    a. [Bargaining Unit Employee. An employee included in an 
appropriate unit, pursuant to 5 U.S.C. 7112 and 7135, for which a labor 
organization has been accorded exclusive recognition].
    b. [Decision Official. An official designated to (1) receive and 
attempt to adjust formal grievances; (2) refer formal grievances for 
further review and inquiry; and (3) decide formal grievances based on 
the results of impartial reviews and recommendations].
    c. [Employee. Any physician, dentist, podiatrist, chiropractor, 
optometrist, nurse, nurse anesthetist, physician assistant, or 
expanded-function dental auxiliary covered in the scope of this 
section. Former employees of the VA are also included, but only in 
connection with a grievance over discharges or actions resulting in 
loss of pay or benefits (for example, a former employee charged with 8 
hours absence without leave (AWOL) who has requested that the 8 hours 
of pay be restored). Former employees must have filed a timely 
grievance in accordance with the provisions of this appendix in order 
to receive consideration].
    d. [Grievance. A request by an employee, or group of employees, for 
personal relief in a matter of concern or dissatisfaction relating to 
employment which is subject to the control of agency management. 
Matters not covered by the grievance procedure may be found in 
paragraph 14 of this section].
* * * * *
    f. [Personal Relief. A specific remedy directly benefiting the 
grievant, but may not include a request for disciplinary or other 
action affecting another employee].

    Authority: 38 U.S.C. 501(a), 7421, [ ] 7461-7464.

Proposed Revisions to VA Handbook 5021, Employee/Management Relations

Part I. Disciplinary and Adverse Actions Under Title 5

Chapter 3. Adverse Actions
    3. Employees Excluded
    a. Physicians, dentists, nurses, nurse anesthetists, expanded-
function dental auxiliaries, physician assistants, podiatrists, 
[chiropractors,] optometrists, and other health care professionals 
appointed under 38 U.S.C. 74 (see part II of this handbook).

Part III. Probationary Period Actions

Chapter 1. Title 38 Probationary Employees
    1. Scope. This chapter contains the policy and procedures needed 
for taking actions against title 38 employees serving on a probationary 
period under 38 United States Code (U.S.C.) 7403(b) in the Department 
of Veterans Affairs (VA). This includes employees appointed under 38 
U.S.C. 7401(1), i.e., physicians, dentists, podiatrists, 
[chiropractors,] optometrists, nurses, nurse anesthetists, physician 
assistants, and expanded-function dental auxiliaries. The Under 
Secretary for Health's designee refers to a designee in the VA Central 
Office. This chapter does not apply to employees appointed under 38 
U.S.C., chapter 3, 38 U.S.C. 7306, 38 U.S.C. 7401(3), 38 U.S.C. 7405 or 
38 U.S.C. 7406.
    2. Responsibilities.
* * * * *

     * * *


     * * *


     For podiatrists, [ ] optometrists, [and chiropractors,] the 
appropriate service chief is the authorizing official; however, the 
review will be conducted by the VA Central Office Professional 
Standards Board.

* * * * *
    3. Summary Board Reviews.
    a. Purpose. Summary reviews are limited to situations where summary 
separation from Federal service may be justified. Officials identified 
in paragraph 2a-2e [ ] are responsible for deciding whether to conduct 
a summary review of an employee's services. Supervisors may initiate 
requests for summary reviews at any time during the probationary 
period.
* * * * *
    h. Action on Board Recommendations.
* * * * *
    (5) Separations Requiring VHA Approval/Review. All field facility 
recommendations for separation during probation requiring VHA summary 
review or approval (e.g., actions related to facility directors and 
requests for summary reviews for podiatrists, [ ] optometrists, 
[chiropractors]) are to be sent through the appropriate Network (10N/
051). The material forwarded will include the Director's recommendation 
(where appropriate) and any other applicable comments; VA Form 10-2543, 
Board Action, (in duplicate); one copy of all related documents, 
including one copy of all Proficiency Reports prepared during the 
probationary period; and the employee's personnel folder.
* * * * *

Part IV. Probationary Period Actions

Chapter 3. Title 38 Grievances
    1. Scope and Authority.
* * * * *
    b. Employee Coverage.
    (1) This chapter applies to all permanent and probationary 
physicians, dentists, podiatrists, [chiropractors,] optometrists, 
nurses, nurse anesthetists, physician assistants, and expanded-function 
dental auxiliaries.
* * * * *
    2. References.
* * * * *
    b. [Section 302 of the Veterans Healthcare, Capital Asset and 
Business Improvement Act of 2003 (Pub. L. 108-170)].
    [c.] 38 U.S.C. 501(a), 512(a), 7421, [ ] 7461-7464.

    Dated: January 10, 2006.
R. James Nicholson,
Secretary of Veterans Affairs.
 [FR Doc. E6-393 Filed 1-13-06; 8:45 am]
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