I 

114TH CONGRESS 

1ST SESSION H. R. 3909 

To amend the Veterans Access, Choice, and Accountability Act of 2014 

to expand the Veterans Choice Program, 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. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 3, 2015 

Mr. GUINTA introduced the following bill; which was referred to the Committee on Veterans’ Affairs, and in addition to the Committee on Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions 

as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Veterans Access, Choice, and Accountability 

Act of 2014 to expand the Veterans Choice Program, 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Veterans Health and 

3 Accountability Act’’. 

4 SEC. 2. EXPANSION OF VETERANS CHOICE PROGRAM. 

5 (a) REMOVAL OF GEOGRAPHIC AND WAIT-TIME RE6 QUIREMENTS.—Subsection (b) of section 101 of the Vet7 erans Access, Choice, and Accountability Act of 2014 (38 

8 U.S.C. 1701 note) is amended to read as follows: 

9 ‘‘(b) ELIGIBLE VETERANS.—A veteran is an eligible 

10 veteran for purposes of this section if the veteran is en11 rolled in the patient enrollment system of the Department 

12 of Veterans Affairs established and operated under section 

13 1705 of title 38, United States Code, including any such 

14 veteran who has not received hospital care or medical serv15 ices from the Department and has contacted the Depart16 ment seeking an initial appointment from the Department 

17 for the receipt of such care or services.’’. 

18 (b) CHOICE OF PROVIDER.—Such section is amend19 ed— 

20 (1) in subsection (a)— 

21 (A) by striking paragraph (2); and 

22 (B) by redesignating paragraph (3) as 

23 paragraph (2); and 

24 (2) by striking subsection (c) and inserting the 

25 following new subsection (c): 


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1 ‘‘(c) CHOICE OF PROVIDER.—An eligible veteran who 

2 receives hospital care or medical services under this sec3 tion may select a provider of such care or services from 

4 among the entities specified in paragraph (1)(B) that are 

5 accessible to the veteran.’’. 

6 (c) CONFORMING AMENDMENTS.—Such section is 

7 further amended— 

8 (1) in subsection (f)(1), by striking ‘‘subsection 

9 (b)(1)’’ and inserting ‘‘subsection (b)’’; 

10 (2) in subsection (g)— 

11 (A) in paragraph (1), by striking ‘‘sub12 section (b)(1)(B)’’ and inserting ‘‘subsection 

13 (b)’’; and 

14 (B) in paragraph (3), by striking ‘‘under 

15 subparagraph (B), (C), or (D) of subsection 

16 (b)(2)’’; and 

17 (3) in subsection (q)(2)(A)— 

18 (A) by striking ‘‘, disaggregated by—’’ and 

19 inserting a period; and 

20 (B) by striking clauses (i) through (iv). 

21 (d) INCREASED TRANSPARENCY.—The Secretary of 

22 Veterans Affairs shall annually testify before each of the 

23 Committee on Veterans’ Affairs of the House of Rep24 resentatives and the Committee on Veterans’ Affairs of 

25 the Senate on the health care furnished to veterans by 


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1 the Department of Veterans Affairs. Such testimony shall 

2 include a full progress report on the Veterans Choice Pro3 gram established by section 101 of the Veterans Access, 

4 Choice, and Accountability Act of 2014 (38 U.S.C. 1701 

5 note), including the number of veterans participating in 

6 such program. 

7 SEC. 3. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON 

8 PERFORMANCE OR MISCONDUCT. 

9 (a) IN GENERAL.—Chapter 7 of title 38, United 

10 States Code, is amended by adding at the end the fol11 lowing new section: 

12 ‘‘§ 715. Employees: removal or demotion based on 

13 performance or misconduct 

14 ‘‘(a) IN GENERAL.—The Secretary may remove or 

15 demote an individual who is an employee of the Depart16 ment if the Secretary determines the performance or mis17 conduct of the individual warrants such removal or demo18 tion. If the Secretary so removes or demotes such an indi19 vidual, the Secretary may— 

20 ‘‘(1) remove the individual from the civil service 

21 (as defined in section 2101 of title 5); or 

22 ‘‘(2) demote the individual by means of— 

23 ‘‘(A) a reduction in grade for which the in24 dividual is qualified and that the Secretary de25 termines is appropriate; or 


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1 ‘‘(B) a reduction in annual rate of pay 

2 that the Secretary determines is appropriate. 

3 ‘‘(b) PAY OF CERTAIN DEMOTED INDIVIDUALS.—(1) 

4 Notwithstanding any other provision of law, any individual 

5 subject to a demotion under subsection (a)(2)(A) shall, be6 ginning on the date of such demotion, receive the annual 

7 rate of pay applicable to such grade. 

8 ‘‘(2) An individual so demoted may not be placed on 

9 administrative leave or any other category of paid leave 

10 during the period during which an appeal (if any) under 

11 this section is ongoing, and may only receive pay if the 

12 individual reports for duty. If an individual so demoted 

13 does not report for duty, such individual shall not receive 

14 pay or other benefits pursuant to subsection (e)(5). 

15 ‘‘(c) NOTICE TO CONGRESS.—Not later than 30 days 

16 after removing or demoting an individual under subsection 

17 (a), the Secretary shall submit to the Committees on Vet18 erans’ Affairs of the Senate and the House of Representa19 tives notice in writing of such removal or demotion and 

20 the reason for such removal or demotion. 

21 ‘‘(d) PROCEDURE.—(1) The procedures under section 

22 7513(b) of title 5 and chapter 43 of such title shall not 

23 apply to a removal or demotion under this section. 

24 ‘‘(2)(A) Subject to subparagraph (B) and subsection 

25 (e), any removal or demotion under subsection (a) may 


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1 be appealed to the Merit Systems Protection Board under 

2 section 7701 of title 5. 

3 ‘‘(B) An appeal under subparagraph (A) of a removal 

4 or demotion may only be made if such appeal is made not 

5 later than seven days after the date of such removal or 

6 demotion. 

7 ‘‘(e) EXPEDITED REVIEW BY ADMINISTRATIVE

8 JUDGE.—(1) Upon receipt of an appeal under subsection 

9 (d)(2)(A), the Merit Systems Protection Board shall refer 

10 such appeal to an administrative judge pursuant to section 

11 7701(b)(1) of title 5. The administrative judge shall expe12 dite any such appeal under such section and, in any such 

13 case, shall issue a decision not later than 45 days after 

14 the date of the appeal. 

15 ‘‘(2) Notwithstanding any other provision of law, in16 cluding section 7703 of title 5, the decision of an adminis17 trative judge under paragraph (1) shall be final and shall 

18 not be subject to any further appeal. 

19 ‘‘(3) In any case in which the administrative judge 

20 cannot issue a decision in accordance with the 45-day re21 quirement under paragraph (1), the removal or demotion 

22 is final. In such a case, the Merit Systems Protection 

23 Board shall, within 14 days after the date that such re24 moval or demotion is final, submit to Congress and the 

25 Committees on Veterans’ Affairs of the Senate and the 


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1 House of Representatives a report that explains the rea2 sons why a decision was not issued in accordance with 

3 such requirement. 

4 ‘‘(4) The Merit Systems Protection Board or admin5 istrative judge may not stay any removal or demotion 

6 under this section. 

7 ‘‘(5) During the period beginning on the date on 

8 which an individual appeals a removal from the civil serv9 ice under subsection (d) and ending on the date that the 

10 administrative judge issues a final decision on such appeal, 

11 such individual may not receive any pay, awards, bonuses, 

12 incentives, allowances, differentials, student loan repay13 ments, special payments, or benefits. 

14 ‘‘(6) To the maximum extent practicable, the Sec15 retary shall provide to the Merit Systems Protection 

16 Board, and to any administrative judge to whom an appeal 

17 under this section is referred, such information and assist18 ance as may be necessary to ensure an appeal under this 

19 subsection is expedited. 

20 ‘‘(f) WHISTLEBLOWER PROTECTION.—(1) In the 

21 case of an individual seeking corrective action (or on be22 half of whom corrective action is sought) from the Office 

23 of Special Counsel based on an alleged prohibited per24 sonnel practice described in section 2302(b) of title 5, the 

25 Secretary may not remove or demote such individual 


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1 under subsection (a) without the approval of the Special 

2 Counsel under section 1214(f) of title 5. 

3 ‘‘(2) In the case of an individual who has filed a whis4 tleblower complaint, as such term is defined in section 731 

5 of this title, the Secretary may not remove or demote such 

6 individual under subsection (a) until the central whistle7 blower office under section 732(h) of this title has made 

8 a final decision with respect to the whistleblower com9 plaint. 

10 ‘‘(g) TERMINATION OF INVESTIGATIONS BY OFFICE

11 OF SPECIAL COUNSEL.—Notwithstanding any other provi12 sion of law, the Special Counsel (established by section 

13 1211 of title 5) may terminate an investigation of a pro14 hibited personnel practice alleged by an employee or 

15 former employee of the Department after the Special 

16 Counsel provides to the employee or former employee a 

17 written statement of the reasons for the termination of 

18 the investigation. Such statement may not be admissible 

19 as evidence in any judicial or administrative proceeding 

20 without the consent of such employee or former employee. 

21 ‘‘(h) RELATION TO TITLE 5.—The authority provided 

22 by this section is in addition to the authority provided by 

23 subchapter II of chapter 75 of title 5 and chapter 43 of 

24 such title. 

25 ‘‘(i) DEFINITIONS.—In this section: 


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1 ‘‘(1) The term ‘individual’ means an individual 

2 occupying a position at the Department but does not 

3 include— 

4 ‘‘(A) an individual, as that term is defined 

5 in section 713(g)(1); or 

6 ‘‘(B) a political appointee. 

7 ‘‘(2) The term ‘grade’ has the meaning given 

8 such term in section 7511(a) of title 5. 

9 ‘‘(3) The term ‘misconduct’ includes neglect of 

10 duty, malfeasance, or failure to accept a directed re11 assignment or to accompany a position in a transfer 

12 of function. 

13 ‘‘(4) The term ‘political appointee’ means an in14 dividual who is— 

15 ‘‘(A) employed in a position described 

16 under sections 5312 through 5316 of title 5 

17 (relating to the Executive Schedule); 

18 ‘‘(B) a limited term appointee, limited 

19 emergency appointee, or noncareer appointee in 

20 the Senior Executive Service, as defined under 

21 paragraphs (5), (6), and (7), respectively, of 

22 section 3132(a) of title 5; or 

23 ‘‘(C) employed in a position of a confiden24 tial or policy-determining character under 


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1 schedule C of subpart C of part 213 of title 5 

2 of the Code of Federal Regulations.’’. 

3 (b) CLERICAL AND CONFORMING AMENDMENTS.— 

4 (1) CLERICAL.—The table of sections at the be5 ginning of such chapter is amended by adding at the 

6 end the following new item: 

‘‘715. Employees: removal or demotion based on performance or misconduct.’’. 

7 (2) CONFORMING.—Section 4303(f) of title 5, 

8 United States Code, is amended— 

9 (A) by striking ‘‘or’’ at the end of para10 graph (2); 

11 (B) by striking the period at the end of 

12 paragraph (3) and inserting ‘‘, or’’; and 

13 (C) by adding at the end the following: 

14 ‘‘(4) any removal or demotion under section 

15 715 of title 38.’’. 

16 SEC. 4. REQUIRED PROBATIONARY PERIOD FOR NEW EM17 PLOYEES OF DEPARTMENT OF VETERANS AF18 FAIRS. 

19 (a) PROBATIONARY PERIOD.— 

20 (1) IN GENERAL.—Chapter 7 of title 38, United 

21 States Code, as amended by section 2, is further 

22 amended by adding at the end the following new sec23 tion: 


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1 ‘‘§ 717. Probationary period for employees 

2 ‘‘(a) IN GENERAL.—Notwithstanding sections 3321 

3 and 3393(d) of title 5, the appointment of a covered em4 ployee shall become final only after such employee has 

5 served a probationary period of 18 months. The Secretary 

6 may extend a probationary period under this subsection 

7 at the discretion of the Secretary. 

8 ‘‘(b) COVERED EMPLOYEE.—In this section, the term 

9 ‘covered employee’— 

10 ‘‘(1) means any individual— 

11 ‘‘(A) appointed to a permanent position 

12 within the competitive service at the Depart13 ment; or 

14 ‘‘(B) appointed as a career appointee (as 

15 that term is defined in section 3132(a)(4) of 

16 title 5) within the Senior Executive Service at 

17 the Department; and 

18 ‘‘(2) does not include any individual with a pro19 bationary period prescribed by section 7403 of this 

20 title. 

21 ‘‘(c) PERMANENT HIRES.—Upon the expiration of a 

22 covered employee’s probationary period under subsection 

23 (a), the supervisor of the employee shall determine wheth24 er the appointment becomes final based on regulations 

25 prescribed for such purpose by the Secretary.’’. 


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1 (2) CLERICAL AND CONFORMING AMEND2 MENTS.— 

3 (A) CLERICAL.—The table of sections at 

4 the beginning of such chapter, as amended by 

5 section 2, is further amended by adding at the 

6 end the following new item: 

‘‘717. Probationary period for employees.’’. 

7 (B) CONFORMING.—Title 5, United States 

8 Code, is amended— 

9 (i) in section 3321(c)— 

10 (I) by striking ‘‘Service or’’ and 

11 inserting ‘‘Service,’’; and 

12 (II) by inserting at the end be13 fore the period the following: ‘‘, or 

14 any individual covered by section 717 

15 of title 38’’; and 

16 (ii) in section 3393(d), by adding at 

17 the end after the period the following: 

18 ‘‘The preceding sentence shall not apply to 

19 any individual covered by section 717 of 

20 title 38.’’. 

21 (b) APPLICATION.—Section 717 of title 38, United 

22 States Code, as added by subsection (a)(1), shall apply 

23 to any covered employee (as that term is defined in sub24 section (b) of such section 717, as so added) appointed 

25 after the date of the enactment of this Act. 


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1 SEC. 5. TREATMENT OF WHISTLEBLOWER COMPLAINTS IN 

2 DEPARTMENT OF VETERANS AFFAIRS. 

3 (a) IN GENERAL.—Chapter 7 of title 38, United 

4 States Code, is further amended by adding at the end the 

5 following new subchapter: 

6 ‘‘SUBCHAPTER II—WHISTLEBLOWER 

7 COMPLAINTS 

8 ‘‘§ 731. Whistleblower complaint defined 

9 ‘‘In this subchapter, the term ‘whistleblower com10 plaint’ means a complaint by an employee of the Depart11 ment disclosing, or assisting another employee to disclose, 

12 a potential violation of any law, rule, or regulation, or 

13 gross mismanagement, gross waste of funds, abuse of au14 thority, or substantial and specific danger to public health 

15 and safety. 

16 ‘‘§ 732. Treatment of whistleblower complaints 

17 ‘‘(a) FILING.—(1) In addition to any other method 

18 established by law in which an employee may file a whistle19 blower complaint, an employee of the Department may file 

20 a whistleblower complaint in accordance with subsection 

21 (g) with a supervisor of the employee. 

22 ‘‘(2) Except as provided by subsection (d)(1), in mak23 ing a whistleblower complaint under paragraph (1), an 

24 employee shall file the initial complaint with the imme25 diate supervisor of the employee. 


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1 ‘‘(b) NOTIFICATION.—(1) Not later than four busi2 ness days after the date on which a supervisor receives 

3 a whistleblower complaint by an employee under this sec4 tion, the supervisor shall notify, in writing, the employee 

5 of whether the supervisor determines that there is a rea6 sonable likelihood that the complaint discloses a violation 

7 of any law, rule, or regulation, or gross mismanagement, 

8 gross waste of funds, abuse of authority, or substantial 

9 and specific danger to public health and safety. The super10 visor shall retain written documentation regarding the 

11 whistleblower complaint and shall submit to the next-level 

12 supervisor and the central whistleblower office described 

13 in subsection (h) a written report on the complaint. 

14 ‘‘(2) On a monthly basis, the supervisor shall submit 

15 to the appropriate director or other official who is superior 

16 to the supervisor a written report that includes the num17 ber of whistleblower complaints received by the supervisor 

18 under this section during the month covered by the report, 

19 the disposition of such complaints, and any actions taken 

20 because of such complaints pursuant to subsection (c). In 

21 the case in which such a director or official carries out 

22 this paragraph, the director or official shall submit such 

23 monthly report to the supervisor of the director or official 

24 and to the central whistleblower office described in sub25 section (h). 


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1 ‘‘(c) POSITIVE DETERMINATION.—If a supervisor 

2 makes a positive determination under subsection (b)(1) re3 garding a whistleblower complaint of an employee, the su4 pervisor shall include in the notification to the employee 

5 under such subsection the specific actions that the super6 visor will take to address the complaint. 

7 ‘‘(d) FILING COMPLAINT WITH NEXT-LEVEL SUPER8 VISORS.—(1) If any circumstance described in paragraph 

9 (3) is met, an employee may file a whistleblower complaint 

10 in accordance with subsection (g) with the next-level su11 pervisor who shall treat such complaint in accordance with 

12 this section. 

13 ‘‘(2) An employee may file a whistleblower complaint 

14 with the Secretary if the employee has filed the whistle15 blower complaint to each level of supervisors between the 

16 employee and the Secretary in accordance with paragraph 

17 (1). 

18 ‘‘(3) A circumstance described in this paragraph are 

19 any of the following circumstances: 

20 ‘‘(A) A supervisor does not make a timely de21 termination under subsection (b)(1) regarding a 

22 whistleblower complaint. 

23 ‘‘(B) The employee who made a whistleblower 

24 complaint determines that the supervisor did not 


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1 adequately address the complaint pursuant to sub2 section (c). 

3 ‘‘(C) The immediate supervisor of the employee 

4 is the basis of the whistleblower complaint. 

5 ‘‘(e) TRANSFER OF EMPLOYEE WHO FILES WHIS6 TLEBLOWER COMPLAINT.—If a supervisor makes a posi7 tive determination under subsection (b)(1) regarding a 

8 whistleblower complaint filed by an employee, the Sec9 retary shall— 

10 ‘‘(1) inform the employee of the ability to vol11 unteer for a transfer in accordance with section 

12 3352 of title 5; and 

13 ‘‘(2) give preference to the employee for such a 

14 transfer in accordance with such section. 

15 ‘‘(f) PROHIBITION ON EXEMPTION.—The Secretary 

16 may not exempt any employee of the Department from 

17 being covered by this section. 

18 ‘‘(g) WHISTLEBLOWER COMPLAINT FORM.—(1) A 

19 whistleblower complaint filed by an employee under sub20 section (a) or (d) shall consist of the form described in 

21 paragraph (2) and any supporting materials or docu22 mentation the employee determines necessary. 

23 ‘‘(2) The form described in this paragraph is a form 

24 developed by the Secretary, in consultation with the Spe25 cial Counsel, that includes the following: 


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1 ‘‘(A) An explanation of the purpose of the whis2 tleblower complaint form. 

3 ‘‘(B) Instructions for filing a whistleblower 

4 complaint as described in this section. 

5 ‘‘(C) An explanation that filing a whistleblower 

6 complaint under this section does not preclude the 

7 employee from any other method established by law 

8 in which an employee may file a whistleblower com9 plaint. 

10 ‘‘(D) A statement directing the employee to in11 formation accessible on the Internet website of the 

12 Department as described in section 735(c). 

13 ‘‘(E) Fields for the employee to provide— 

14 ‘‘(i) the date that the form is submitted; 

15 ‘‘(ii) the name of the employee; 

16 ‘‘(iii) the contact information of the em17 ployee; 

18 ‘‘(iv) a summary of the whistleblower com19 plaint (including the option to append sup20 porting documents pursuant to paragraph (1)); 

21 and 

22 ‘‘(v) proposed solutions to complaint. 

23 ‘‘(F) Any other information or fields that the 

24 Secretary determines appropriate. 


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1 ‘‘(3) The Secretary, in consultation with the Special 

2 Counsel, shall develop the form described in paragraph (2) 

3 by not later than 60 days after the date of the enactment 

4 of this section. 

5 ‘‘(h) CENTRAL WHISTLEBLOWER OFFICE.—(1) The 

6 Secretary shall ensure that the central whistleblower of7 fice— 

8 ‘‘(A) is not an element of the Office of the Gen9 eral Counsel; 

10 ‘‘(B) is not headed by an official who reports to 

11 the General Counsel; 

12 ‘‘(C) does not provide, or receive from, the Gen13 eral Counsel any information regarding a whistle14 blower complaint except pursuant to an action re15 garding the complaint before an administrative body 

16 or court; and 

17 ‘‘(D) does not provide advice to the General 

18 Counsel. 

19 ‘‘(2) The central whistleblower office shall be respon20 sible for investigating all whistleblower complaints of the 

21 Department, regardless of whether such complaints are 

22 made by or against an employee who is not a member of 

23 the Senior Executive Service. 


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1 ‘‘(3) The Secretary shall ensure that the central whis2 tleblower office maintains a toll-free hotline to anony3 mously receive whistleblower complaints. 

4 ‘‘(4) In this subsection, the term ‘central whistle5 blower office’ means the Office of Accountability Review 

6 or a successor office that is established or designated by 

7 the Secretary to investigate whistleblower complaints filed 

8 under this section or any other method established by law. 

9 ‘‘§ 733. Adverse actions against supervisory employ10 ees who commit prohibited personnel ac11 tions relating to whistleblower com12 plaints 

13 ‘‘(a) IN GENERAL.—(1) In accordance with para14 graph (2), the Secretary shall carry out the following ad15 verse actions against supervisory employees whom the Sec16 retary, an administrative judge, the Merit Systems Protec17 tion Board, the Office of Special Counsel, an adjudicating 

18 body provided under a union contract, a Federal judge, 

19 or the Inspector General of the Department determines 

20 committed a prohibited personnel action described in sub21 section (c): 

22 ‘‘(A) With respect to the first offense, an ad23 verse action that is not less than a 14-day suspen24 sion and not more than removal. 


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1 ‘‘(B) With respect to the second offense, re2 moval. 

3 ‘‘(2)(A) Except as provided by subparagraph (B), 

4 and notwithstanding subsections (b) and (c) of section 

5 7513 and section 7543 of title 5, the provisions of sub6 sections (d) and (e) of section 713 of this title shall apply 

7 with respect to an adverse action carried out under para8 graph (1). 

9 ‘‘(B) An employee who is notified of being the subject 

10 of a proposed adverse action under paragraph (1) may not 

11 be given more than five days following such notification 

12 to provide evidence to dispute such proposed adverse ac13 tion. If the employee does not provide any such evidence, 

14 or if the Secretary determines that such evidence is not 

15 sufficient to reverse the determination to propose the ad16 verse action, the Secretary shall carry out the adverse ac17 tion following such five-day period. 

18 ‘‘(b) LIMITATION ON OTHER ADVERSE ACTIONS.— 

19 With respect to a prohibited personnel action described in 

20 subsection (c), if the Secretary carries out an adverse ac21 tion against a supervisory employee, the Secretary may 

22 carry out an additional adverse action under this section 

23 based on the same prohibited personnel action if the total 

24 severity of the adverse actions do not exceed the level spec25 ified in subsection (a). 


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1 ‘‘(c) PROHIBITED PERSONNEL ACTION DE2 SCRIBED.—A prohibited personnel action described in this 

3 subsection is any of the following actions: 

4 ‘‘(1) Taking or failing to take a personnel ac5 tion in violation of section 2302 of title 5 against an 

6 employee relating to the employee— 

7 ‘‘(A) filing a whistleblower complaint in ac8 cordance with section 732 of this title; 

9 ‘‘(B) filing a whistleblower complaint with 

10 the Inspector General of the Department, the 

11 Special Counsel, or Congress; 

12 ‘‘(C) providing information or participating 

13 as a witness in an investigation of a whistle14 blower complaint in accordance with section 

15 732 or with the Inspector General of the De16 partment, the Special Counsel, or Congress; 

17 ‘‘(D) participating in an audit or investiga18 tion by the Comptroller General of the United 

19 States; 

20 ‘‘(E) refusing to perform an action that is 

21 unlawful or prohibited by the Department; or 

22 ‘‘(F) engaging in communications that are 

23 related to the duties of the position or are oth24 erwise protected. 


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1 ‘‘(2) Preventing or restricting an employee from 

2 making an action described in any of subparagraphs 

3 (A) through (F) of paragraph (1). 

4 ‘‘(3) Conducting a peer review or opening a re5 taliatory investigation relating to an activity of an 

6 employee that is protected by section 2302 of title 

7 5. 

8 ‘‘(4) Requesting a contractor to carry out an 

9 action that is prohibited by section 4705(b) or sec10 tion 4712(a)(1) of title 41, as the case may be. 

11 ‘‘§ 734. Evaluation criteria of supervisors and treat12 ment of bonuses 

13 ‘‘(a) EVALUATION CRITERIA.—(1) In evaluating the 

14 performance of supervisors of the Department, the Sec15 retary shall include the criteria described in paragraph 

16 (2). 

17 ‘‘(2) The criteria described in this subsection are the 

18 following: 

19 ‘‘(A) Whether the supervisor treats whistle20 blower complaints in accordance with section 732. 

21 ‘‘(B) Whether the appropriate deciding official, 

22 performance review board, or performance review 

23 committee determines that the supervisor was found 

24 to have committed a prohibited personnel action de25 scribed in section 733(b) by an administrative judge, 


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1 the Merit Systems Protection Board, the Office of 

2 Special Counsel, an adjudicating body provided 

3 under a union contract, a Federal judge, or, in the 

4 case of a settlement of a whistleblower complaint 

5 (regardless of whether any fault was assigned under 

6 such settlement), the Secretary. 

7 ‘‘(b) BONUSES.—(1) The Secretary may not pay to 

8 a supervisor described in subsection (a)(2)(B) an award 

9 or bonus under this title or title 5, including under chapter 

10 45 or 53 of such title, during the one-year period begin11 ning on the date on which the determination was made 

12 under such subsection. 

13 ‘‘(2) Notwithstanding any other provision of law, the 

14 Secretary shall issue an order directing a supervisor de15 scribed in subsection (a)(2)(B) to repay the amount of any 

16 award or bonus paid under this title or title 5, including 

17 under chapter 45 or 53 of such title, if— 

18 ‘‘(A) such award or bonus was paid for per19 formance during a period in which the supervisor 

20 committed a prohibited personnel action as deter21 mined pursuant to such subsection (a)(2)(B); 

22 ‘‘(B) the Secretary determines such repayment 

23 appropriate pursuant to regulations prescribed by 

24 the Secretary to carry out this section; and 


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1 ‘‘(C) the supervisor is afforded notice and an 

2 opportunity for a hearing before making such repay3 ment. 

4 ‘‘§ 735. Training regarding whistleblower complaints 

5 ‘‘(a) TRAINING.—The Secretary, in coordination with 

6 the Whistleblower Protection Ombudsman designated 

7 under section 3(d)(1)(C) of the Inspector General Act of 

8 1978 (5 U.S.C. App.), shall annually provide to each em9 ployee of the Department training regarding whistleblower 

10 complaints, including— 

11 ‘‘(1) an explanation of each method established 

12 by law in which an employee may file a whistle13 blower complaint; 

14 ‘‘(2) an explanation of prohibited personnel ac15 tions described by section 733(c) of this title; 

16 ‘‘(3) with respect to supervisors, how to treat 

17 whistleblower complaints in accordance with section 

18 732 of this title; 

19 ‘‘(4) the right of the employee to petition Con20 gress regarding a whistleblower complaint in accord21 ance with section 7211 of title 5; 

22 ‘‘(5) an explanation that the employee may not 

23 be prosecuted or reprised against for disclosing in24 formation to Congress in instances where such dis25 closure is permitted by law, including under sections 


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1 5701, 5705, and 7732 of this title, under section 

2 552a of title 5 (commonly referred to as the Privacy 

3 Act), under chapter 93 of title 18, and pursuant to 

4 regulations promulgated under section 264(c) of the 

5 Health Insurance Portability and Accountability Act 

6 of 1996 (Public Law 104–191); 

7 ‘‘(6) an explanation of the language that is re8 quired to be included in all nondisclosure policies, 

9 forms, and agreements pursuant to section 

10 115(a)(1) of the Whistleblower Protection Enhance11 ment Act of 2012 (5 U.S.C. 2302 note); and 

12 ‘‘(7) the right of contractors to be protected 

13 from reprisal for the disclosure of certain informa14 tion under section 4705 or 4712 of title 41. 

15 ‘‘(b) CERTIFICATION.—The Secretary shall annually 

16 provide training on merit system protection in a manner 

17 that the Special Counsel certifies as being satisfactory. 

18 ‘‘(c) PUBLICATION.—(1) The Secretary shall publish 

19 on the Internet website of the Department, and display 

20 prominently at each facility of the Department, the rights 

21 of an employee to file a whistleblower complaint, including 

22 the information described in paragraphs (1) through (7) 

23 of subsection (a). 


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1 ‘‘(2) The Secretary shall publish on the Internet 

2 website of the Department, the whistleblower complaint 

3 form described in section 732(g)(2). 

4 ‘‘§ 736. Reports to Congress 

5 ‘‘(a) ANNUAL REPORTS.—The Secretary shall annu6 ally submit to the Committees on Veterans’ Affairs of the 

7 House of Representatives and the Senate, the Committee 

8 on Oversight and Government Reform of the House of 

9 Representatives, and the Committee on Homeland Secu10 rity and Governmental Affairs of the Senate a report that 

11 includes— 

12 ‘‘(1) with respect to whistleblower complaints 

13 filed under section 732 during the year covered by 

14 the report— 

15 ‘‘(A) the number of such complaints filed; 

16 ‘‘(B) the disposition of such complaints; 

17 and 

18 ‘‘(C) the ways in which the Secretary ad19 dressed such complaints in which a positive de20 termination was made by a supervisor under 

21 subsection (b)(1) of such section; 

22 ‘‘(2) the number of whistleblower complaints 

23 filed during the year covered by the report that are 

24 not included under paragraph (1), including— 


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1 ‘‘(A) the method in which such complaints 

2 were filed; 

3 ‘‘(B) the disposition of such complaints; 

4 and 

5 ‘‘(C) the ways in which the Secretary ad6 dressed such complaints; and 

7 ‘‘(3) with respect to disclosures made by a con8 tractor under section 4705 or 4712 of title 41— 

9 ‘‘(A) the number of complaints relating to 

10 such disclosures that were investigated by the 

11 Inspector General of the Department of Vet12 erans Affairs during the year covered by the re13 port; 

14 ‘‘(B) the disposition of such complaints; 

15 and 

16 ‘‘(C) the ways in which the Secretary ad17 dressed such complaints. 

18 ‘‘(b) NOTICE OF OFFICE OF SPECIAL COUNSEL DE19 TERMINATIONS.—Not later than 30 days after the date 

20 on which the Secretary receives from the Special Counsel 

21 information relating to a whistleblower complaint pursu22 ant to section 1213 of title 5, the Secretary shall notify 

23 the Committees on Veterans’ Affairs of the House of Rep24 resentatives and the Senate, the Committee on Oversight 

25 and Government Reform of the House of Representatives, 


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1 and the Committee on Homeland Security and Govern2 mental Affairs of the Senate of such information, includ3 ing the determination made by the Special Counsel.’’. 

4 (b) CONFORMING AND CLERICAL AMENDMENTS.— 

5 (1) CONFORMING AMENDMENT.—Such chapter 

6 is further amended by inserting before section 701 

7 the following: 

8 ‘‘SUBCHAPTER I—GENERAL EMPLOYEE 

9 MATTERS’’. 

10 (2) CLERICAL AMENDMENTS.—The table of sec11 tions at the beginning of such chapter is amended— 

12 (A) by inserting before the item relating to 

13 section 701 the following new item: 

‘‘SUBCHAPTER I—GENERAL EMPLOYEE MATTERS’’; 

14 and 

15 (B) by adding at the end the following new 

16 items: 

‘‘SUBCHAPTER II—WHISTLEBLOWER COMPLAINTS

‘‘731. Whistleblower complaint defined. 

‘‘732. Treatment of whistleblower complaints. 

‘‘733. Adverse actions against supervisory employees who commit prohibited 

personnel actions relating to whistleblower complaints. 

‘‘734. Evaluation criteria of supervisors and treatment of bonuses. 

‘‘735. Training regarding whistleblower complaints. 

‘‘736. Reports to Congress.’’. 


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1 SEC. 6. REFORM OF PERFORMANCE APPRAISAL SYSTEM 

2 FOR SENIOR EXECUTIVE SERVICE EMPLOY3 EES OF THE DEPARTMENT OF VETERANS AF4 FAIRS. 

5 (a) PERFORMANCE APPRAISAL SYSTEM.— 

6 (1) IN GENERAL.—Chapter 7 of title 38, United 

7 States Code, is further amended by inserting after 

8 section 717, as added by section 3, the following new 

9 section: 

10 ‘‘§ 719. Senior executives: performance appraisal 

11 ‘‘(a) PERFORMANCE APPRAISAL SYSTEM.—(1) The 

12 performance appraisal system for individuals employed in 

13 senior executive positions in the Department required by 

14 section 4312 of title 5 shall provide, in addition to the 

15 requirements of such section, for five annual summary rat16 ings of levels of performance as follows: 

17 ‘‘(A) One outstanding level. 

18 ‘‘(B) One exceeds fully successful level. 

19 ‘‘(C) One fully successful level. 

20 ‘‘(D) One minimally satisfactory level. 

21 ‘‘(E) One unsatisfactory level. 

22 ‘‘(2) The following limitations apply to the rating of 

23 the performance of such individuals: 

24 ‘‘(A) For any year, not more than 10 percent 

25 of such individuals who receive a performance rating 


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1 during that year may receive the outstanding level 

2 under paragraph (1)(A). 

3 ‘‘(B) For any year, not more than 20 percent 

4 of such individuals who receive a performance rating 

5 during that year may receive the exceeds fully suc6 cessful level under paragraph (1)(B). 

7 ‘‘(3) In evaluating the performance of an individual 

8 under the performance appraisal system, the Secretary 

9 shall take into consideration— 

10 ‘‘(A) any complaint or report (including any 

11 pending or published report) submitted by the In12 spector General of the Department, the Comptroller 

13 General of the United States, the Equal Employ14 ment Opportunity Commission, or any other appro15 priate person or entity, related to any facility or pro16 gram managed by the individual, as determined by 

17 the Secretary; 

18 ‘‘(B) efforts made by the individual to maintain 

19 high levels of satisfaction and commitment among 

20 the employees supervised by the individual; and 

21 ‘‘(C) the criteria described in section 734(a)(2) 

22 of this title. 

23 ‘‘(b) CHANGE OF POSITION.—(1) At least once every 

24 five years, the Secretary shall reassign each individual em25 ployed in a senior executive position to a position at a difVerDate Sep 11 2014 00:36 Nov 05, 2015 Jkt 059200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\H3909.IH H3909

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1 ferent location that does not include the supervision of the 

2 same personnel or programs. The Secretary shall make 

3 such reassignments on a rolling basis based on the date 

4 on which an individual was originally assigned to a posi5 tion. 

6 ‘‘(2) The Secretary may waive the requirement under 

7 paragraph (1) for any such individual, if the Secretary 

8 submits to the Committees on Veterans’ Affairs of the 

9 Senate and the House of Representatives notice of the 

10 waiver and an explanation of the reasons for the waiver. 

11 ‘‘(c) REPORT.—Not later than March 1 of each year, 

12 the Secretary shall submit to the Committees on Veterans’ 

13 Affairs and Homeland Security and Governmental Affairs 

14 of the Senate and the Committees on Veterans’ Affairs 

15 and Oversight and Government Reform of the House of 

16 Representatives a report on the performance appraisal 

17 system of the Department under subsection (a). Each such 

18 report shall include, for the year preceding the year during 

19 which the report is submitted, each of the following: 

20 ‘‘(1) All documentation concerning each of the 

21 following for each individual employed in a senior 

22 executive position in the Department: 

23 ‘‘(A) The initial performance appraisal. 

24 ‘‘(B) The higher level review, if requested. 


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1 ‘‘(C) The recommendations of the perform2 ance review board. 

3 ‘‘(D) The final summary review. 

4 ‘‘(E) The number of initial performance 

5 ratings raised as a result of the recommenda6 tions of the performance review board. 

7 ‘‘(F) The number of initial performance 

8 ratings lowered as a result of the recommenda9 tions of the performance review board. 

10 ‘‘(G) Any adverse action taken against any 

11 such individual who receives a performance rat12 ing of less than fully successful. 

13 ‘‘(2) The review of the Inspector General of the 

14 Department of the information described in subpara15 graphs (A) through (D) of paragraph (1). 

16 ‘‘(3) A summary of the documentation provided 

17 under paragraph (1). 

18 ‘‘(d) DEFINITION OF SENIOR EXECUTIVE POSI19 TION.—In this section, the term ‘senior executive position’ 

20 has the meaning given that term in section 713(g)(3) of 

21 this title.’’. 

22 (2) CLERICAL AMENDMENT.—The table of sec23 tions at the beginning of such chapter, as amended 

24 by section 3, is further amended by inserting after 


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1 the item relating to section 717 the following new 

2 item: 

‘‘719. Senior executives: performance appraisal.’’. 

3 (3) CONFORMING AMENDMENT.—Section 

4 4312(b) of title 5, United States Code, is amend5 ed— 

6 (A) in paragraph (2), by striking ‘‘and’’ at 

7 the end; 

8 (B) in paragraph (3), by striking the pe9 riod at the end and inserting ‘‘; and’’; and 

10 (C) by adding at the end the following: 

11 ‘‘(4) that, in the case of the Department of Vet12 erans Affairs, the performance appraisal system 

13 meets the requirements of section 719 of title 38.’’. 

14 (b) REVIEW OF SES MANAGEMENT TRAINING.— 

15 (1) REVIEW.—Not later than 180 days after 

16 the date of the enactment of this Act, the Secretary 

17 of Veterans Affairs shall enter into a contract with 

18 a nongovernmental entity to review the management 

19 training program for individuals employed in senior 

20 executive positions (as such term is defined in sec21 tion 713(g)(3) of title 38, United States Code) of 

22 the Department of Veterans Affairs that is being 

23 provided as of the date of the enactment of this Act. 

24 Such review shall include a comparison of the train25 ing provided by the Department of Veterans Affairs 


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1 to the management training provided for senior ex2 ecutives of other Federal departments and agencies 

3 and to the management training provided to senior 

4 executives in the private sector. The contract shall 

5 provide that the nongovernmental entity must com6 plete and submit to the Secretary a report con7 taining the findings and conclusions of the review by 

8 not later than 180 days after the date on which the 

9 Secretary and the nongovernmental entity enter into 

10 the contract. 

11 (2) REPORT TO CONGRESS.—Not later than 60 

12 days after the date on which the Secretary receives 

13 the report under paragraph (1), the Secretary shall 

14 submit to the Committees on Veterans’ Affairs of 

15 the Senate and the House of Representatives the re16 port together with a plan for carrying out the rec17 ommendations contained in the report. 

18 SEC. 7. LIMITATION ON AWARDS AND BONUSES PAID TO 

19 EMPLOYEES OF DEPARTMENT OF VETERANS 

20 AFFAIRS. 

21 Section 705 of the Veterans Access, Choice, and Ac22 countability Act of 2014 (Public Law 113–146; 38 U.S.C. 

23 703 note) is amended to read as follows: 


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1 ‘‘SEC. 705. LIMITATION ON AWARDS AND BONUSES PAID TO 

2 EMPLOYEES OF DEPARTMENT OF VETERANS 

3 AFFAIRS. 

4 ‘‘The Secretary of Veterans Affairs shall ensure that 

5 the aggregate amount of awards and bonuses paid by the 

6 Secretary in a fiscal year under chapter 45 or 53 of title 

7 5, United States Code, or any other awards or bonuses 

8 authorized under such title or title 38, United States 

9 Code, does not exceed the following amounts: 

10 ‘‘(1) With respect to each of fiscal years 2016 

11 through 2018, $300,000,000. 

12 ‘‘(2) With respect to each of fiscal years 2019 

13 through 2024, $360,000,000.’’. 

Æ 


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