```

[Senate Report 114-262]
[From the U.S. Government Publishing Office]

                                                     Calendar No. 499

114th Congress    }                                       {     Report
                               SENATE                          
 2d Session       }                                       {     114-262
_______________________________________________________________________

                                     

                                                      

       DR. CHRIS KIRKPATRICK WHISTLEBLOWER PROTECTION ACT OF 2015

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2127

           TO PROVIDE APPROPRIATE PROTECTIONS TO PROBATIONARY
           FEDERAL EMPLOYEES, TO PROVIDE THE SPECIAL COUNSEL
            WITH ADEQUATE ACCESS TO INFORMATION, TO PROVIDE
 GREATER AWARENESS OF FEDERAL WHISTLEBLOWER PROTECTIONS, AND FOR OTHER 
                                PURPOSES

                  May 26, 2016.--Ordered to be printed
                  
                  
                             _________ 

                  U.S. GOVERNMENT PUBLISHING OFFICE
                  
                         WASHINGTON : 2016                        
                  
                  
                  
                  
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
       Patrick J. Bailey, Chief Counsel for Governmental Affairs
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
 Katherine C. Sybenga, Minority Chief Counsel for Governmental Affairs
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     
                     
                     
                     
                     
                                                       Calendar No. 499
                                                       
114th Congress     }                                      {    Report
                                 SENATE
                                                                 
 2d Session        }                                      {   114-262

======================================================================

 
       DR. CHRIS KIRKPATRICK WHISTLEBLOWER PROTECTION ACT OF 2015

                                _______
                                

                  May 26, 2016.--Ordered to be printed

                                _______
                                

Mr. Johnson,  from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 2127]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2127) to provide 
appropriate protections to probationary Federal employees, to 
provide the Special Counsel with adequate access to 
information, to provide greater awareness of Federal 
whistleblower protections, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and an amendment to the 
title and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History.............................................11
 IV. Section-by-Section Analysis.....................................11
  V. Evaluation of Regulatory Impact.................................13
 VI. Congressional Budget Office Cost Estimate.......................13
VII. Changes in Existing Law Made by the Bill, as Reported...........14

                         I. Purpose and Summary

    S. 2127, the Dr. Chris Kirkpatrick Whistleblower Protection 
Act of 2015, provides additional protections to Federal 
employees who are retaliated against for disclosing waste, 
fraud, or abuse in the Federal Government. Additionally, the 
bill directs the Department of Veterans Affairs (VA) to address 
agency-specific gaps in its protection of VA employees, 
including VA employees' privacy interest in their medical 
records and their personal safety.
    The legislation is named in honor of Dr. Chris Kirkpatrick, 
a whistleblower who questioned excessive prescription practices 
at the VA Medical Center in Tomah, Wisconsin (Tomah VAMC). Dr. 
Kirkpatrick took his own life after being fired from the Tomah 
VAMC.

              II. Background and the Need for Legislation

    This Committee has a history of working on a bipartisan 
basis to protect Federal whistleblowers that come forward to 
report waste, fraud and abuse, and seek the protections of the 
Whistleblower Protection Act. Frequently, this work has led to 
legislation to address gaps or weaknesses in current law.\1\ In 
2012, for example, the Committee unanimously reported out, 
Congress passed, and President Obama signed, the Whistleblower 
Protection Enhancement Act of 2012 (WPEA).\2\ The WPEA 
bolstered whistleblower rights by broadening the scope of what 
constitutes a ``disclosure'' of waste, fraud, and abuse by 
civilian government employees to any relevant entity, including 
Congress.\3\
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    \1\Blowing the Whistle on Retaliation: Accounts of Current and 
Former Federal Agency Whistleblowers: Hearing Before the S. Comm. on 
Homeland Sec. & Governmental Affairs, 114th Cong. (2015) (statement of 
Thomas M. Devine, Legal Director, Government Accountability Project) 
(``This committee long has played a leadership role in enacting 
legislation to protect whistleblowers.''), available at http://
www.hsgac.senate.gov/hearings/blowing-the-whistle-on-retaliation-
accounts-of-current-and-former-federal-agency-whistleblowers 
[hereinafter ``Blowing the Whistle''].
    \2\Pub. L. No. 112-199 (112th Cong.) (2012).
    \3\Id.
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    Despite the progress Congress and this Committee have made 
in the years since the Whistleblower Protection Act was first 
passed in 1989, whistleblowers too often face retaliation for 
disclosing waste, fraud and abuse. As the legal director for 
the Government Accountability Project put it in testimony 
before the Committee in June 2015: ``retaliation for 
challenging abuses of power always has and always will occur. . 
. . Further, the imperative is permanent to make a negative 
example out of every whistleblower's life, to scare others into 
silence.''\4\
---------------------------------------------------------------------------
    \4\Blowing the Whistle at 3 (statement of Thomas M. Devine, Legal 
Director, Government Accountability Project).
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    Accordingly, in the 114th Congress, this Committee has made 
it a priority to examine the root and contributing causes of 
whistleblower retaliation through investigations, hearings, and 
other oversight, and to identify ways in which gaps or 
weaknesses in current law can be addressed through legislation. 
In many ways, this bill is a product of that work.

Increased cases alleging retaliation against whistleblowers

    Created in 1989, the Office of Special Counsel (OSC) ``is 
an independent investigative and prosecutorial agency tasked 
with protecting the merit system and ensuring accountability 
and fairness for over 2.1 million civilian federal 
employees.''\5\ As part of this responsibility, OSC 
investigates and prosecutes allegations of prohibited personnel 
practices by agencies related to whistleblowers.\6\ In July 
2014, Special Counsel Carolyn Lerner stated that the number of 
cases OSC receives each year has increased 51 percent over the 
last five years and ``[m]ost of these complaints allege 
retaliation for whistleblowing or protected activity, such as 
cooperating with an OSC or Inspector General 
investigation.''\7\
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    \5\Examining the Administration's Treatment of Whistleblowers: 
Hearing Before the Oversight & Gov. Reform Comm. 1, 113th Cong. (2014) 
(statement of Carolyn Lerner, Special Counsel, Office of Special 
Counsel), available at https://oversight.house.gov/hearing/examining-
administrations-treatment-whistleblowers/.
    \6\Id.
    \7\VA Whistleblowers: Exposing Inadequate Service Provided to 
Veterans and Ensuring Appropriate Accountability: Hearing Before the 
House Comm. on Veterans' Affairs, 113th Cong. (2014) (statement of 
Carolyn Lerner, Special Counsel, Office of Special Counsel), available 
at http://veterans.house.gov/hearing/va-whistleblowers-exposing-
inadequate-service-provided-to-veterans-and-ensuring-appropriate.
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    Retaliation against whistleblowers has been particularly 
concerning in recent years at the VA. Special Counsel Lerner 
has publicly questioned the VA's handling of whistleblower 
complaints, stating that ``it is clear that the workplace 
culture in many VA facilities is hostile to whistleblowers and 
actively discourages them from coming forward with what is 
often critical information.''\8\ Indeed, OSC ``has seen a sharp 
increase in the number of whistleblower cases from VA 
employees.''\9\ VA cases averaged only 20 percent of all cases 
in 2009, 2010, and 2011.\10\ As of September 2015, the 
proportion of prohibited personnel practice complaints made to 
OSC by VA employees was approximately 35 percent of all the 
complaints received by OSC across the Federal Government.\11\ 
To put this number in context, 2014 was the first year on 
record that cases filed with OSC by VA employees surpassed 
those by Department of Defense (DoD) employees, despite the 
fact that the DoD has two times more civilian employees than 
the VA.\12\ The recent increase of whistleblower complaints 
coming from the VA has forced OSC to reallocate staff and 
resources and prioritize VA cases through an expedited review 
process.\13\
---------------------------------------------------------------------------
    \8\Id.
    \9\Improving VA Accountability: Examining First-Hand Accounts of 
Department of Veterans Affairs Whistleblowers: Hearing Before the Comm. 
on Homeland Security & Governmental Affairs 1, 114th Cong. (2015) 
(statement of Carolyn Lerner, Special Counsel, Office of Special 
Counsel), available at http://www.hsgac.senate.gov/hearings/improving-
va-accountability-examining-first-hand-accounts-of-department-of-
veterans-affairs-whistleblowers [hereinafter ``Improving VA 
Accountability''].
    \10\Addressing Continued Whistleblower Retaliation Within VA: 
Hearing Before Comm. on Veterans' Affairs, Subcomm. On Oversight & 
Investigations 1, 114th Cong. (2015) (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel), available at http://
veterans.house.gov/hearing/addressing-continued-whistleblower-
retaliation-within-va [hereinafter ``Addressing Continued Whistleblower 
Retaliation Within VA''].
    \11\Improving VA Accountability at 2 (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel).
    \12\Id. at 1.
    \13\Id. at 2.
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    The most troubling sign of the VA's treatment of 
whistleblowers comes from the way it has reacted to damaging 
information in some situations by first questioning the 
individual who made the disclosure.\14\ According to Special 
Counsel Lerner, there are two problems with this approach: the 
VA problems are glossed over, and the VA employees fear that 
``their own actions will come under intense scrutiny'' if they 
speak up.\15\
---------------------------------------------------------------------------
    \14\Id. at 6-7; Addressing Continued Whistleblower Retaliation 
Within VA 7 (statement of Carolyn Lerner, Special Counsel, Office of 
Special Counsel).
    \15\Id.
---------------------------------------------------------------------------
    In a September 2015 Committee hearing titled Improving VA 
Accountability: Examining First-Hand Accounts of Department of 
Veterans Affairs Whistleblowers, the Committee invited several 
VA whistleblowers to come in and tell their stories to 
``illustrate the wide variety of challenges and hardships 
whistleblowers face when they come forward to report 
wrongdoing.''\16\ The hearing followed a March 2015 Committee 
hearing revealing the tragic events at the Tomah VAMC, where 
two separate whistleblowers Dr. Noelle Johnson and Ryan Honl 
testified about how they blew the whistle on over-medication at 
the facility, and how their warnings were received by the VA 
with punishment, rather than reform.\17\
---------------------------------------------------------------------------
    \16\Improving VA Accountability at 1 (opening statement of Senator 
Ron Johnson).
    \17\Tomah VAMC: Examining Quality, Access, and a Culture of 
Overreliance on High-Risk Medications: Joint Field Hearing Before the 
Comm. of Homeland Security & Governmental Affairs and the H. Comm. on 
Veterans' Affairs, 114th Cong. (2015), available at http://
www.hsgac.senate.gov/hearings/joint-field-hearing-tomah-vamc-examining-
quality-access-and-a-culture-of-overreliance-on-high-risk-medications 
[hereinafter, Tomah VAMC Hearing].
---------------------------------------------------------------------------
    One of the individuals who testified at the September 2015 
hearing was Sean Kirkpatrick on behalf of his deceased brother, 
Dr. Chris Kirkpatrick. Dr. Kirkpatrick was a clinical 
psychologist at the Tomah VAMC who came forward to his union 
representative about his concerns that the Tomah VAMC was 
overprescribing medication.\18\ A preliminary majority staff 
report issued on June 25, 2015, found that in 2009--and perhaps 
as far back as 2004--employees at the Tomah VAMC ``referred to 
the facility as `Candy Land' and to one doctor in particular, 
Dr. David Houlihan, as the `Candy Man.'''\19\ Employees at the 
facility reported that patients used these terms because Dr. 
Houlihan prescribed large quantities of narcotics.\20\ So 
large, in fact, that some ``Tomah VAMC providers and registered 
pharmacists refused to prescribe or fill large quantities of 
narcotic prescriptions''' for Dr. Houlihan's patients.\21\ In 
the spring of 2009, the local union grew concerned about a 
possible connection between Dr. Houlihan's proclivity to give 
out such large quantities of narcotics and the fact that 
several of his patients had ``unexplained deaths at this 
Medical Center.''\22\
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    \18\Improving VA Accountability at 1-2 (statement of Sean 
Kirkpatrick).
    \19\Tragedy at Tomah: Initial Findings, an Interim Report of the 
Majority Staff of the Comm. on Homeland Security & Governmental 
Affairs, United States Senate 13-14 (June 25, 2015), available at 
https://www.hsgac.senate.gov/library?PageNum_rs=7 [hereinafter ``Tomah 
Report''].
    \20\Id. at 14-17.
    \21\Id. at 15.
    \22\Id.
---------------------------------------------------------------------------
    According to documents obtained by the Committee, around 
the same time of rising concerns with Dr. Houlihan's 
prescribing methods, Dr. Kirkpatrick reported to his 
supervisors and his union representative that he believed some 
of his patients were overmedicated.\23\ At the Committee's 
hearing on September 22, 2015, Dr. Kirkpatrick's brother 
provided further information. He testified that Dr. Kirkpatrick 
also complained that he was ``very afraid of Dr. Houlihan'' and 
was facing an ``ethical dilemma'' because he had discussed with 
a physician assistant the fact that he had concerns about 
medication being prescribed, and that the physician assistant 
had accused him of inappropriate behavior.\24\ Sean Kirkpatrick 
testified that shortly thereafter, Dr. Kirkpatrick received a 
written counseling admonishing him for ```educating' patients 
about what medications they are on'' and advising him to 
``focus on his own work.''\25\ On July 14, 2009, the Tomah VAMC 
terminated Dr. Kirkpatrick for ``performance issues.''\26\ 
Tragically, Dr. Kirkpatrick took his own life later that 
evening.\27\ The VA never investigated Dr. Kirkpatrick's 
suicide.\28\
---------------------------------------------------------------------------
    \23\Id. at 20 (referring to the Juneau County Sheriffs Department 
CAD Operations Report at 23, 34-39, and 41-44).
    \24\Improving VA Accountability at 2 (statement of Sean 
Kirkpatrick).
    \25\Id.
    \26\Letter from Wayne Davis, Manager, Great Lakes Human Resources 
Management Service, to Chris Kirkpatrick (July 14, 2009) (on file with 
Comm.).
    \27\Tomah Report at 20.
    \28\Letter from Sloan Gibson, Deputy Sec'y, U.S. Dep't of Veterans 
Affairs, to Sen. Ron Johnson, Chairman, S. Comm. on Homeland Security & 
Governmental Affairs (May 29, 2015) (on file with Comm.).
---------------------------------------------------------------------------
    In his testimony before the Committee, Sean Kirkpatrick 
detailed the retaliation he believes his brother experienced in 
the wake of his questioning veteran care at the Tomah VAMC. 
Sean Kirkpatrick also explained the emotional stress that Dr. 
Kirkpatrick had been under at the facility due to ``taking on 
so many cases'' without additional help, receiving threats of 
violence from one of his patients, and feeling as if he had no 
outlet to discuss the emotional stresses of treating veterans 
with Post Traumatic Stress Disorder.\29\ Sean Kirkpatrick 
suggested nine recommendations for Congress to consider to 
reform the way that whistleblowers, and in particular, VA 
employees, are treated.\30\ Many of those recommendations are 
addressed in this legislation and discussed in further detail 
below.
---------------------------------------------------------------------------
    \29\Tomah Report at 3-4.
    \30\Id. at 6-7.
---------------------------------------------------------------------------
    While retaliation at the VA has captured the public's 
attention most recently, retaliation against whistleblowers is 
not confined to any one agency. To better understand these 
issues across the Federal Government, the Committee held a 
hearing in June 2015, titled Blowing the Whistle on 
Retaliation: Accounts of Current and Former Federal Agency 
Whistleblowers.\31\ Witnesses at the hearing were employees 
from the United States Army, Homeland Security Investigations, 
the Social Security Administration, and the United States 
Customs and Border Protection who testified that they made a 
disclosure and believed they experienced retaliation from the 
agencies in response, including loss of their job, suspension 
of pay, and termination proceedings against them.\32\
---------------------------------------------------------------------------
    \31\Blowing the Whistle on Retaliation: Accounts of Current and 
Former Federal Agency Whistleblowers: Hearing Before the S. Comm. on 
Homeland Sec. & Governmental Affairs, 114th Cong. (2015), available at 
http://www.hsgac.senate.gov/hearings/blowing-the-whistle-on-
retaliation-accounts-of-current-and-former-federal-agency-
whistleblowers [hereinafter ``Blowing the Whistle on Retaliation''].
    \32\Id.
---------------------------------------------------------------------------

Probationary period employees

    Some Federal employees serving initial appointments or 
being promoted to management in the civil service are required 
to serve a period of probation, or temporary appointment, 
typically for one year.\33\ This time period allows the agency 
to evaluate the employee before the appointment becomes 
final.\34\ If the agency decides not to finalize the 
appointment, the individual has limited appeal rights and the 
agency does not have to go through the same formal procedures 
to terminate the employee as it would if the employee's 
appointment was finalized, when dismissing an employee becomes 
``more difficult and time consuming.''\35\
---------------------------------------------------------------------------
    \33\Gov't accountability Office, GAO-15-191, Federal Workforce: 
Improved Supervision and Better Use of Probationary Periods are Needed 
to Address Substandard Employee Performance 10 (2015).
    \34\Id.
    \35\Id. at 11.
---------------------------------------------------------------------------
    While probationary periods serve a very important function 
in the civil service, they have the potential to be used as a 
tool by managers to retaliate against whistleblowers, since 
during this time an employee may feel less free to speak up 
about abuses. Accordingly, the Committee believes it is useful 
to have an independent review of claims of retaliation against 
employees serving in a probationary status to ensure such abuse 
is not occurring.
    Probationary period employees should feel safe to make a 
protected disclosure to their agency or OSC, despite the fact 
that they are just starting out in Federal service. One way to 
encourage employees to speak up is to ensure that, if they are 
retaliated against for a disclosure, they have the right to 
request, a transfer to another position while their 
investigation is underway and the agency should prioritize that 
request. Getting an employee out of their immediate management 
structure while their demotion, termination, or other personnel 
action is stayed can give the employee the time and peace of 
mind to fight the action.

OSC access to information

    OSC has multiple tools it can use to obtain relief for 
Federal employees alleging they are being retaliated against 
for blowing the whistle: it can seek a stay from the MSPB to 
halt any proposed adverse personnel action;\36\ it can engage 
in alternative dispute resolution with the agency on behalf of 
the employee to obtain a favorable settlement;\37\ and it can 
file a complaint with the MSPB to ask that it order an agency 
to take corrective action.\38\
---------------------------------------------------------------------------
    \36\Examining the Administration's Treatment of Whistleblowers: 
Hearing Before the H. Oversight & Gov't Reform Committee, 4, 113th 
Cong. (2014) (statement of Carolyn Lerner, Special Counsel, Office of 
Special Counsel), https://oversight.house.gov/hearing/examining-
administrations-treatment-whistleblowers/ [hereinafter Examining the 
Administration's Treatment of Whistleblowers].
    \37\Id. at 5.
    \38\Id. at 3.
---------------------------------------------------------------------------
    To provide an effective investigation into a Federal 
employee's whistleblower claim, however, OSC needs access to 
information that is solely in the agency's possession. 
Currently, agencies are directed to comply with requests for 
documents from OSC by regulation, not statute.\39\ In most 
cases, agencies comply. However, OSC has testified that it has 
had difficulty obtaining timely and complete documents from the 
VA,\40\ and that sometimes agencies deny information on the 
basis that it is privileged.\41\ The Committee agrees with 
OSC's assessment that it would benefit from having a clear, 
direct statutory authority to obtain all agency information, 
including agency communication, relevant to its investigation. 
A similar authority already exists for inspectors general and 
the Government Accountability Office (GAO).\42\
---------------------------------------------------------------------------
    \39\5 C.F.R. Sec. 5.4.
    \40\Examining the Administration's Treatment of Whistleblowers at 7 
(statement of Carolyn Lerner, Special Counsel, Office of Special 
Counsel).
    \41\Merit Systems Protection Board, Office of Government Ethics, 
and Office of Special Counsel Reauthorization: Hearing Before the H. 
Oversight & Gov't Reform Comm., 8, 114th Cong. (2015) (statement of 
Carolyn Lerner, Special Counsel, Office of Special Counsel), available 
at https://oversight.house.gov/hearing/merit-systems-protection-board-
office-of-government-ethics-and-office-of-special-counsel-
reauthorization/.
    \42\See 5 U.S.C. App. Sec. 6(a)(1); 31 U.S.C. Sec. 716.
---------------------------------------------------------------------------
    While it is important for OSC to have authority to obtain 
documents from other agencies, it is also important that OSC 
knows what to ask for. In the case of a Federal employee who 
commits suicide, OSC may not have the information it needs to 
even know if it should investigate.\43\ In Dr. Kirkpatrick's 
case, he had not filed a complaint with OSC about any 
disclosure he made to the agency, and therefore OSC did not 
know to inquire after his death about whether Dr. Kirkpatrick's 
termination was in retaliation for blowing the whistle. OSC 
agrees that situations such as these may warrant its 
investigation, but OSC would need information from the agency 
to know: (1) that an employee of the agency committed suicide; 
(2) that prior to the death of the employee, the employee made 
a protected disclosure of information; and that (3) after the 
disclosure, the agency took a personnel action against the 
employee.\44\ In these situations, S. 2127 would require the 
agency to refer the case to OSC, and OSC to examine whether the 
personnel action was taken as retaliation for making a 
disclosure, and take any appropriate action in response. As 
Sean Kirkpatrick testified, his family could not understand why 
the VA did not investigate Dr. Kirkpatrick's death;\45\ this 
authority would ensure that OSC can continue to ensure 
disclosures are investigated and those who retaliate against 
Federal whistleblowers are held accountable even in the event 
of a suicide.
---------------------------------------------------------------------------
    \43\Id.
    \44\Id.
    \45\Improving VA Accountability (statement of Sean Kirkpatrick).
---------------------------------------------------------------------------

Lack of accountability

    ``Every academic or government study has concluded that the 
primary motivating, or chilling factor for would-be 
whistleblowers is whether they can make a difference by bearing 
witness.''\46\ Unfortunately, in 2015 only sixty-one percent of 
Federal employees that responded to an Office of Personnel 
Management survey seeking Federal employee viewpoints on a 
variety of topics reported that they believed they could blow 
the whistle on a potential violation of any law, rule, or 
regulation without facing reprisal.\47\
---------------------------------------------------------------------------
    \46\Blowing the Whistle on Retaliation (statement of Thomas M. 
Devine, Legal Director, Government Accountability Project).
    \47\Office of Personnel Mgmt., Federal Employee Viewpoint Survey 
Results, Governmentwide Management Report 28 (2016) available at http:/
/www.fedview.opm.gov/2015FILES/2015_FEVS_Gwide_Final_Report.PDF.
---------------------------------------------------------------------------
    OSC has also raised concerns about the inconsistent use of 
discipline against those whose wrongdoing is exposed by 
whistleblowers at the VA. In testimony before this Committee, 
Special Counsel Lerner noted numerous examples of the VA 
failing to discipline officials found responsible for posing 
significant risks to public health and safety or engaging in 
other misconduct.\48\ Special Counsel Lerner added that this 
lack of discipline ``stand[s] in stark contrast to disciplinary 
actions taken against VA whistleblowers . . . for minor 
indiscretions or for activity directly related to the 
employee's whistleblowing.''\49\
---------------------------------------------------------------------------
    \48\Improving VA Accountability 5-6 (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel).
    \49\Id. at 6.
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    The Veterans Access, Choice and Accountability Act of 
2014,\50\ as amended by the Department of Veterans Affairs 
Expiring Authorities Act of 2014,\51\ commissioned an 
``independent assessment of 12 areas of VA's health care 
delivery systems and management processes.''\52\ The study 
found, in part, that the Veterans Health Administration (VHA) 
has been ``plagued by many problems: growing bureaucracy, 
leadership and staffing challenges, and unsustainable 
trajectory of capital costs.''\53\ In addition, the study found 
``a misalignment of accountability and authority exists within 
a broader VHA culture characterized by risk aversion and lack 
of trust.''\54\
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    \50\Pub. L. No. 113-146 (113th Cong.).
    \51\Pub. L. No. 113-175 (113th Cong.).
    \52\Independent Assessment of the Health Care Delivery Systems and 
Management Processes of the Department of Veterans Affairs, Volume I: 
Integrated Report iii (2015), available at http://www.va.gov/opa/
choiceact/documents/assessments/Integrated_Report.pdf.
    \53\Id. at xii.
    \54\Id. at xvi.
---------------------------------------------------------------------------
    This ``misalignment'' was all the more visible in the 
aftermath of the VA manipulated-wait-time scandal. According to 
a report from the New York Times in April 2015, the VA has 
removed at most only three employees were terminated for 
manipulating the wait time lists, while others linger on paid 
administrative leave or were transferred to other 
locations.\55\
---------------------------------------------------------------------------
    \55\ Dave Philipps, Few People Lost Jobs with V.A. in Scandal, N.Y. 
Times, Apr. 22, 2015, http://www.nytimes.com/2015/04/23/us/few-people-
lost-jobs-with-va-in-scandal.html.
---------------------------------------------------------------------------
    In addition to ensuring consistent discipline, it is 
crucial that employees know their rights and supervisors and 
managers have training on how to address protected disclosures 
and allegations of retaliation. Current law requires that 
agencies keep their workforce informed about the rights and 
remedies available to them to prevent prohibited personnel 
practices, including how to make a disclosure.\56\ To help 
agencies meet this obligation, OSC provides a certification 
program that walks the agency through simple steps such as 
placing informational posters at agency facilities, providing 
information to new hires, and training supervisors about 
prohibited personnel practices.\57\ The certification program 
is not statutorily required, but is mandated under the 
Administration's National Action Plan on Open Government.\58\
---------------------------------------------------------------------------
    \56\5 U.S.C. Sec. 2302(c).
    \57\Examining the Administration's Treatment of Whistleblowers: 
Hearing Before the Oversight & Gov. Reform Comm. 7, 113th Cong. (2014) 
(statement of Carolyn Lerner, Special Counsel, Office of Special 
Counsel), available at https://oversight.house.gov/hearing/examining-
administrations-treatment-whistleblowers/.
    \58\Id.
---------------------------------------------------------------------------
    To date, only 58 agencies or departments within agencies 
have completed the certification program, and 19 of them are 
Offices of Inspectors General.\59\ To ensure all agencies are 
providing this crucial information to their employees, S. 2127 
sets a deadline for agencies to provide their employees with 
the required information, and also provides more detail on what 
type of information the agency needs to include when it informs 
its employees of their general whistleblower rights: (1) 
information regarding whistleblower protections available to 
new employees during the probationary period; (2) information 
about the role of OSC and the MSPB in protecting 
whistleblowers; and (3) information about how to make a lawful 
disclosure that must be kept classified in the interest of 
national security. Additionally, S. 2127 requires that 
information about employee's whistleblower protections must be 
made publicly available through the agency's own website, and 
on the agency's internal online portal, if one exists.
---------------------------------------------------------------------------
    \59\Office of Special Counsel, Agencies that have completed the 
2302(c) certification program (last visited Apr. 12, 2016), https://
osc.gov/Resources/
Agencies%20that%20have%20completed%202302c%20certification%20program.pdf

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Other improvements needed at the VA

    The original Whistleblower Protection Act contained twelve 
prohibited personnel practices listed in statute that serve to 
protect Federal employees, including protection from hiring 
violations, discrimination, and retaliation against 
whistleblowers.\60\ In the years since the law was passed, 
however, changes in agency action have required Congress to 
further protect employees by supplementing the list. Through 
WPEA, Congress added a thirteenth prohibited personnel 
practice: prohibiting agencies from imposing non-disclosure 
agreements on Federal employees that do not explicitly permit 
whistleblowing.\61\
---------------------------------------------------------------------------
    \60\Pub. L. No. 101-12 (101st Cong.) (1989).
    \61\Pub. L. No. 112-199 (112th Cong.) (2012).
---------------------------------------------------------------------------
    Similarly, some agency employees are now skirting the law 
and retaliating against whistleblowers in other ``creative'' 
ways.\62\ One significant concern to this Committee is the 
abuse of accessing a whistleblower's medical records. Last 
year, Special Counsel Lerner testified that ``[i]n several 
cases, the medical records of whistleblowers have been accessed 
and information in those records has apparently been used to 
attempt to discredit the whistleblowers.''\63\ At the 
Committee's March 2015 field hearing in Tomah, Wisconsin, 
whistleblower and Army veteran Ryan Honl testified that Tomah 
VAMC employees accessed his medical records despite the fact 
that Mr. Honl had never received care at the Tomah VAMC.\64\ In 
addition, Brandon Coleman and Shea Wilkes, both veteran VA 
employees, testified at the Committee's September 2015 hearing 
that their medical records were improperly accessed by VA 
officials after they began raising concerns about patient care 
at the VA facilities where they worked.\65\
---------------------------------------------------------------------------
    \62\Blowing the Whistle on Retaliation (statement of Thomas M. 
Devine, Legal Director, Government Accountability Office).
    \63\Improving VA Accountability at 7 (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel).
    \64\Tomah VAMC Hearing at 2 (statement of Ryan Honl).
    \65\See generally, Improving VA Accountability (statements of 
Brandon Coleman, Ph.D. and Shea Wilkes).
---------------------------------------------------------------------------
    The VA may lack proper technological safeguards to ensure 
that employees' medical records are shielded from the view of 
other employees. According to OSC, non-medical personnel within 
the VA have at times accessed the medical files of their 
veteran coworkers.\66\ In discussions with OSC staff, OSC has 
reported that in some instances, VA employees have claimed that 
they accessed another employee's medical record simply to 
obtain their address for a valid work-related reason.\67\ There 
does not seem to be a valid reason for a VA employee to access 
the medical records of another employee unless they are 
treating the individual. It is the Committee's view that in all 
other circumstances, if the VA employee is in need of personal 
information, such as an address, he or she should obtain that 
information through the agency's personnel records system.
---------------------------------------------------------------------------
    \66\Comm. staff discussions with the Office of Special Counsel 
(Nov. 2015).
    \67\Id.
---------------------------------------------------------------------------
    In addition to improper access of medical records, the 
Committee has heard testimony of other employee concerns at the 
VA, including employee mental health and safety. As stated 
above, Dr. Chris Kirkpatrick was a clinical psychologist at the 
Tomah VAMC. Dr. Kirkpatrick's brother provided to the Committee 
information about Dr. Kirkpatrick's work at Tomah VAMC. 
According to Dr. Kirkpatrick's brother, Sean, in his job, Dr. 
Kirkpatrick treated veterans dealing with complex, sometimes 
combat-related mental illness including post-traumatic stress 
disorder (PTSD) and acute stress disorder (ASD).\68\ These 
veterans would recount their horrific experiences on the 
battlefield to Dr. Kirkpatrick and he would devise treatment 
methods to assist those veterans in their recovery.\69\ Sean 
Kirkpatrick testified that Dr. Kirkpatrick sometimes felt 
overwhelmed by his caseload and the stories he heard and 
believed that there should be some sort of support structure in 
place for VA professionals to seek mental health services of 
their own.\70\ This bill would require the VA to conduct 
outreach to its employees to make them more aware of any mental 
health services, including telemedicine options, that are 
available to them.
---------------------------------------------------------------------------
    \68\Improving VA Accountability (statement of Sean Kirkpatrick).
    \69\Id.
    \70\Id.
---------------------------------------------------------------------------
    Sean Kirkpatrick also testified that a veteran had 
threatened Dr. Kirkpatrick at the Tomah VAMC. According to Sean 
Kirkpatrick's testimony, Dr. Kirkpatrick reached out to his 
union stating that he was concerned for his safety after this 
veteran threatened to commit bodily harm to Dr. Kirkpatrick and 
his dog.\71\ In an April 20, 2015 letter, Chairman Johnson 
inquired about VA protocols for handling threats from patients 
to staff and what actions, if any, were taken regarding any 
patient that may have threatened Dr. Kirkpatrick.\72\ In 
response, the VA stated to Chairman Johnson that the VA Police 
Service addresses patient threats and that the Tomah VAMC has a 
``Flags Committee to consider risk factors and recommendations 
on flagging patients consistent with VHA Directive 2010-053, 
Patient Record Flags.''\73\ Specifically regarding the alleged 
threat against Dr. Kirkpatrick, the VA stated that Tomah VAMC 
was ``not aware of an investigation into threats being made 
against Dr. Kirkpatrick by a patient. A review of Dr. 
Kirkpatrick's records identified one Veteran as possibly being 
the Veteran who may have threatened Dr. Kirkpatrick. However 
the Tomah VAMC is not aware of any action taken against this 
patient regarding threats against Dr. Kirkpatrick.''\74\ This 
bill would require the VA to ensure protocols are in place to 
address threats from VA patients against VA employees.
---------------------------------------------------------------------------
    \71\Id.
    \72\Letter from Ron Johnson, Chairman S. Comm. on Homeland Security 
and Governmental Affairs, to Robert McDonald, Secretary, Dep't. of 
Veterans Affairs, Apr. 20, 2015.
    \73\Letter from Sloan D. Gibson, Deputy Secretary, Dep't of 
Veterans Affairs, to Ron Johnson, Chairman, S. Comm. on Homeland 
Security and Governmental Affairs, May 29, 2015.
    \74\Id.
---------------------------------------------------------------------------
    The Committee's investigation of the Tomah VAMC has 
discovered other areas for improvement within the VA. In 
particular, the investigation has identified potential problems 
with the reporting structure of the VA Police Department of the 
Tomah VAMC. Sean Kirkpatrick testified that the reporting 
structure of the Tomah VA Police Department may have led to 
potential conflicts of interest with hospital leadership and 
possibly inhibited the Tomah VA Police Department's law 
enforcement functions at the facility.\75\ There is potential 
that the chain of command structure for police departments at 
other VA facilities poses similar concerns about conflicts of 
interest with facility management. Accordingly, S. 2127 would 
require that GAO study the reporting, staffing, accountability, 
and chain of command structure of the VA police officers at 
their own medical centers.
---------------------------------------------------------------------------
    \75\Improving VA Accountability (statement of Sean Kirkpatrick).
---------------------------------------------------------------------------
    S. 2127 is a culmination of the work this Committee has 
done to examine the gaps and weaknesses in current 
whistleblower protection laws. The bill addresses a wide array 
of the most pressing problems at the VA and across the Federal 
Government relating to retaliation against whistleblowers, and 
directs the VA to put in place plans to limit its employees' 
unauthorized access to medical records.

                        III. Legislative History

    Chairman Ron Johnson (R-WI) introduced S. 2127, the Dr. 
Chris Kirkpatrick Whistleblower Protection Act of 2015, on 
October 1, 2015 with Senator Kelly Ayotte (R-NH). The bill was 
referred to the Committee on Homeland Security and Governmental 
Affairs. Senator Mark Kirk (R-IL) and Senator Joni Ernst (R-IA) 
joined as cosponsors on October 22, 2015 and December 9, 2015, 
respectively.
    The Committee considered S. 2127 at a business meeting on 
December 9, 2015. During the business meeting, a substitute 
amendment and an amendment to change the title of the bill were 
offered by Chairman Johnson and accepted by unanimous consent. 
The bill, as amended, was ordered reported favorably by a roll 
call vote of 9 yeas to 0 nays. Senators Johnson, Portman, 
Lankford, Ayotte, Ernst, Carper, Tester, Baldwin, and Booker 
voted in the affirmative. Senators McCain, Paul, Enzi, Sasse, 
McCaskill, Heitkamp, and Peters were recorded for the record 
only as voting yea by proxy.

        IV. Section-by-Section Analysis of the Bill, As Reported

                      TITLE I--EMPLOYEES GENERALLY

Section 101. Definitions

    This section includes definitions of the term ``executive 
agency'' and ``executive branch employee.''

Sec. 102. Stays; probationary employees

    Subsections (a) and (b) ensure that if MSPB grants a stay 
to an employee under Section 1214 or 1221 of title 5, United 
States Code, the employee can request from their employing 
agency a transfer, and that request shall receive priority. 
Subsection (c) requires GAO to study Federal agency retaliation 
against probationary period employees.

Sec. 103. Adequate access of Special Counsel to information

    This section authorizes OSC to have access to all documents 
or other materials from an applicable agency that relate to its 
authority, and to request such information or assistance from 
an agency as may be necessary to carry out its statutory 
responsibilities.

Sec. 104. Prohibited personnel practices

    This section makes accessing an employee's medical record 
in retaliation of an employee engaging in a protected activity 
a prohibited personnel practice.

Sec. 105. Discipline of supervisors based on retaliation against 
        whistleblowers

    This section requires the head of each agency to propose 
prescribed adverse actions against supervisory employees who 
the head of the agency, an administrative judge, the Merit 
Systems Protection Board, the OSC, an adjudicating body 
provided under a union contract, a Federal judge, or the 
inspector general has determined has committed a prohibited 
personnel action against a whistleblower or accessed a medical 
record in retaliation for the employee engaging in a protected 
activity as described in Section 2302(b)(8), (9), and the new 
(14) of title 5, United States Code. The adverse actions that 
shall be proposed are: for the first offense, not less than a 
12-day suspension; and for a second offense, removal. Employees 
against whom these adverse actions are proposed would have 
notice and opportunity to respond and retain due process rights 
to appeal the decision to the Merit System Protections Board.

Sec. 106. Suicide by employees

    Subsections (a) and (b) ensure that OSC has the information 
it needs to investigate prohibited personnel practices if an 
employee commits suicide. Currently, OSC would know if a 
deceased Federal employee had filed a complaint with OSC, but 
not necessarily if they had made disclosures to the agency. 
These provisions require the agency to share information with 
the OSC about a Federal employee who committed suicide if that 
employee had, prior to his or her death, (1) made any protected 
disclosure, and (2) had a personnel action taken against him or 
her by the agency. In such circumstances, OSC is required to 
examine whether the personnel action was taken because of the 
disclosure and take appropriate action.

Sec. 107. Training for supervisors

    This section requires agencies to provide supervisors 
training on responding to complaints alleging a violation of 
whistleblower protections available to agency employees.

Sec. 108. Information on whistleblower protections

    This section requires agencies to keep their employees 
apprised of the rights and remedies available to them if the 
agency commits a prohibited personnel practice, including 
requiring agencies to post such information on their public and 
internal websites.

           TITLE II--DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES

Sec. 201. Protecting medical privacy of employees of the Department of 
        Veterans Affairs

    This section requires the VA to formulate a plan for 
protecting employees from having their medical records accessed 
without authorization. The plan must include how the agency 
will use technology to block computer access to records for 
those employees who have no need to access such information, 
and how it will stop VA employees from accessing medical files 
for demographic information where another non-medical database 
is available. The VA must provide the plan to the Senate 
Homeland Security and Governmental Affairs Committee, the House 
Oversight and Government Reform Committee and the veterans' 
affairs congressional committees in both the United States 
Senate and House of Representatives within 180 days of the bill 
becoming law, and provide a briefing if requested.

Sec. 202. Mental health services for employees of the Department of 
        Veterans Affairs

    This section requires the VA to conduct outreach to its 
employees to make them more aware 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

    This section requires the VA to ensure protocols are in 
place to address threats from VA patients against VA employees 
who are providing care.

Sec. 204. Comptroller General of the United States study on 
        accountability of chiefs of police of Department of Veterans 
        Affairs medical centers

    This section requires GAO to study the reporting, staffing, 
accountability, and chain of command structure of the VA police 
officers at their own medical centers.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                      May 17, 2016.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2127, the Dr. Chris 
Kirkpatrick Whistleblower Protection Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dwayne M. 
Wright.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 2127--Dr. Chris Kirkpatrick Whistleblower Protection Act of 2015

    S. 2127 would modify several personnel and administrative 
procedures at federal agencies--some of which would be specific 
to the Department of Veterans Affairs (VA)--and would require 
two reports. CBO estimates that implementing S. 2127 would cost 
$3 million over the 2017-2021 period; that spending would be 
subject to the availability of appropriated funds. Enacting S. 
2127 would not affect direct spending or revenues; therefore, 
pay-as-you-go procedures do not apply.
    S. 2127 would require the Government Accountability Office 
(GAO) to prepare two reports: one discussing retaliation 
against employees on probationary status and the other 
assessing management and staffing levels of police officers at 
VA medical centers. On the basis of costs for similar reports, 
CBO estimates that completing those reports would cost $2 
million over the 2017-2021 period.
    Additionally, S. 2127 contains several provisions that 
would modify personnel and administrative procedures at VA and 
other federal agencies. On the basis of information from VA and 
the Office of Special Counsel, CBO expects that each provision 
would have an insignificant budgetary effect because they would 
either largely codify current practice or affect few people. On 
that basis, CBO estimates that implementing the following 
requirements, in total, would cost $1 million over the 2017-
2021 period. Those provisions would:
           Add protections for probationary employees;
           Improve the ability of the Office of Special 
        Counsel to access certain types of information;
           Limit access to medical records of employees 
        and create a plan to prevent unauthorized access of 
        medical records by VA employees;
           Prescribe disciplinary actions to be taken 
        against supervisors who retaliate against employees 
        identified as whistleblowers;
           Require training for supervisors on 
        protections for whistleblowers;
           Provide information to employees and the 
        public about whistleblower protections;
           Increase outreach to employees about mental 
        health services at VA; and
           Ensure protocols are in place to address 
        threats to VA employees by patients of VA medical 
        centers.
    CBO estimates that enacting S. 2127 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    S. 2127 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Dwayne M. 
Wright. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *

PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

           *       *       *       *       *       *       *

 CHAPTER 12 MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, 
AND EMPLOYEE RIGHT OF ACTION

           *       *       *       *       *       *       *

Subchapter II--Office of Special Counsel

           *       *       *       *       *       *       *

SEC. 1212. POWERS AND FUNCTIONS OF THE OFFICE OF SPECIAL COUNSEL

    (a) * * *
    (b) * * *
          (1) * * *

           *       *       *       *       *       *       *

          (5) The Special Counsel, in carrying out this 
        subchapter, is authorized to--
                  (A) have access to all records, reports, 
                audits, reviews, documents, papers, 
                recommendations, or other material available to 
                the applicable agency which relate to a matter 
                within the jurisdiction or authority of the 
                Special Counsel; and
                  (B) request from any agency such information 
                or assistance as may be necessary for carrying 
                out the duties and responsibilities of the 
                Special Counsel under this subchapter.

           *       *       *       *       *       *       *

SEC. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; CORRECTIVE 
                    ACTION

    (a) * * *
    (b) * * *
          (1) * * *
                  (A) * * *

           *       *       *       *       *       *       *

                  (E) If the Merit Systems Protections 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.

           *       *       *       *       *       *       *

Subchapter III--Individual Right of Action in Certain Reprisal Cases

           *       *       *       *       *       *       *

SEC. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES

    (a) * * *

           *       *       *       *       *       *       *

    (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.

           *       *       *       *       *       *       *

PART III--EMPLOYEES

           *       *       *       *       *       *       *

Subpart A--General Provisions

           *       *       *       *       *       *       *

CHAPTER 23--MERIT SYSTEM PRINCIPLES

           *       *       *       *       *       *       *

Table of sections

Sec.
2301. Merit systems principles.
2302. Prohibited personnel practices.
2303. Prohibited personnel practices in the Federal Bureau of 
          Investigation.
2304. Prohibited personnel practices affecting the Transportation 
          Security Administration.
2305. Responsibilities of the Government Accountability Office.
2306. Coordination with certain other provisions of law.
2307. Information on whistleblower protections.

           *       *       *       *       *       *       *

SEC. 2302. PROHIBITED PERSONNEL PRACTICES

    (a) * * *
    (b) * * *
          (1) * * *

           *       *       *       *       *       *       *

          (12) take or fail to take any other personnel action 
        if the taking of or failure to take such action 
        violates any law, rule, or regulation implementing, or 
        directly concerning, the merit system principles 
        contained in section 2301 of this title; [or]
          (13) implement or enforce any nondisclosure policy, 
        form, or agreement, if such policy, form, or agreement 
        does not contain the following statement: ``These 
        provisions are consistent with and do not supersede, 
        conflict with, or otherwise alter the employee 
        obligations, rights, or liabilities created by existing 
        statute or Executive order relating to (1) classified 
        information, (2) communications to Congress, (3) the 
        reporting to an Inspector General of a violation of any 
        law, rule, or regulation, or mismanagement, a gross 
        waste of funds, an abuse of authority, or a substantial 
        and specific danger to public health or safety, or (4) 
        any other whistleblower protection. The definitions, 
        requirements, obligations, rights, sanctions, and 
        liabilities created by controlling Executive orders and 
        statutory provisions are incorporated into this 
        agreement and are controlling.''[.] or
    (14) access the medical record of another employee for the 
purpose of retaliation for a disclosure or activity protected 
under paragraph (8) or (9).
    [(c) 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 Office 
of Special Counsel) that agency employees are informed of the 
rights and remedies available to them under this chapter and 
chapter 12 of this title, including 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. Any individual to whom the head of an agency 
delegates authority for personnel management, or for any aspect 
thereof, shall be similarly responsible within the limits of 
the delegation.]
    [(d)] (c) This section shall not be construed to extinguish 
or lessen any effort to achieve equal employment opportunity 
through affirmative action or any right or remedy available to 
any employee or applicant for employment in the civil service 
under--
          (1) section 717 of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e-16), prohibiting discrimination on the 
        basis of race, color, religion, sex, or national 
        origin;
          (2) sections 12 and 15 of the Age Discrimination in 
        Employment Act of 1967 (29 U.S.C. 631, 633a), 
        prohibiting discrimination on the basis of age;
          (3) under section 6(d) of the Fair Labor Standards 
        Act of 1938 (29 U.S.C. 206(d)), prohibiting 
        discrimination on the basis of sex;
          (4) section 501 of the Rehabilitation Act of 1973 (29 
        U.S.C. 791), prohibiting discrimination on the basis of 
        handicapping condition; or
          (5) the provisions of any law, rule, or regulation 
        prohibiting discrimination on the basis of marital 
        status or political affiliation.
    [(e)] (d)
          (1) For the purpose of this section, the term 
        ``veterans'' preference requirement'' means any of the 
        following provisions of law:
                  (A) Sections 2108, 3305(b), 3309, 3310, 3311, 
                3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 
                3320, 3351, 3352, 3363, 3501, 3502(b), 3504, 
                and 4303(e) and (with respect to a preference 
                eligible referred to in section 7511(a)(1)(B)) 
                subchapter II of chapter 75 and section 7701.
                  (B) Sections 943(c)(2) and 1784(c) of title 
                10.
                  (C) Section 1308(b) of the Alaska National 
                Interest Lands Conservation Act.
                  (D) Section 301(c) of the Foreign Service Act 
                of 1980.
                  (E) Sections 106(f), 7281(e), and 7802(5) of 
                title 38.
                  (F) Section 1005(a) of title 39.
                  (G) Any other provision of law that the 
                Director of the Office of Personnel Management 
                designates in regulations as being a veterans' 
                preference requirement for the purposes of this 
                subsection.
                  (H) Any regulation prescribed under 
                subsection (b) or (c) of section 1302 and any 
                other regulation that implements a provision of 
                law referred to in any of the preceding 
                subparagraphs.
          (2) Notwithstanding any other provision of this 
        title, no authority to order corrective action shall be 
        available in connection with a prohibited personnel 
        practice described in subsection (b)(11). Nothing in 
        this paragraph shall be considered to affect any 
        authority under section 1215 (relating to disciplinary 
        action).
    [(f)] (e)
          (1) A disclosure shall not be excluded from 
        subsection (b)(8) because--
                  (A) the disclosure was made to a supervisor 
                or to a person who participated in an activity 
                that the employee or applicant reasonably 
                believed to be covered by subsection 
                (b)(8)(A)(i) and (ii);
                  (B) the disclosure revealed information that 
                had been previously disclosed;
                  (C) of the employee's or applicant's motive 
                for making the disclosure;
                  (D) the disclosure was not made in writing;
                  (E) the disclosure was made while the 
                employee was off duty; or
                  (F) of the amount of time which has passed 
                since the occurrence of the events described in 
                the disclosure.
          (2) If a disclosure is made during the normal course 
        of duties of an employee, the disclosure shall not be 
        excluded from subsection (b)(8) if any employee who has 
        authority to take, direct others to take, recommend, or 
        approve any personnel action with respect to the 
        employee making the disclosure, took, failed to take, 
        or threatened to take or fail to take a personnel 
        action with respect to that employee in reprisal for 
        the disclosure.

           *       *       *       *       *       *       *

SEC. 2307. INFORMATION ON WHISTLEBLOWER PROTECTIONS

    (a) Definitions.--In this section--
          (1) the term `agency' has the meaning given that term 
        in section 2302;
          (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 2015; 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 is appointed.
    (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).

SUBPART C--Employee Performance

           *       *       *       *       *       *       *

CHAPTER 45--INCENTIVE AWARDS

           *       *       *       *       *       *       *

Subchapter I--Awards for Superior Accomplishments

           *       *       *       *       *       *       *

SEC. 4505A. PERFORMANCE-BASED CASH AWARDS

    (a) * * *
    (b) * * *
          (1) * * *
    (2) The failure to pay a cash award under this section, or 
the amount of such an award, may not be appealed. The preceding 
sentence shall not be construed to extinguish or lessen any 
right or remedy under subchapter II of chapter 12, chapter 71, 
or any of the laws referred to in section [2302(d)] section 
2302(c).

           *       *       *       *       *       *       *

Subpart D--Pay and Allowances

           *       *       *       *       *       *       *

CHAPTER 57--TRAVEL, TRANSPORTATION, AND SUBSISTENCE

           *       *       *       *       *       *       *

Subchapter IV--Miscellaneous Provisions

           *       *       *       *       *       *       *

SEC. 5755. SUPERVISORY DIFFERENTIALS

    (a) * * *
    (b) * * *
          (1) * * *
          (2) A supervisory differential may not be considered 
        to be part of the basic pay of an employee, and the 
        reduction or elimination of a supervisory differential 
        may not be appealed. The preceding sentence shall not 
        be construed to extinguish or lessen any right or 
        remedy under subchapter II of chapter 12 or under any 
        of the laws referred to in section [2302(d)] section 
        2302(c).

           *       *       *       *       *       *       *

Subpart F--Labor-Management and Employee Relations

           *       *       *       *       *       *       *

CHAPTER 75 ADVERSE ACTIONS

           *       *       *       *       *       *       *

SEC. 7515. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION AGAINST 
                    WHISTLEBLOWERS

    (a) Definitions.--In this section--
          (1) the term `agency' has the meaning given that term 
        under section 2302;
          (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 a supervisor, as 
        defined under section 7103(a), who is employed by an 
        agency, as defined under paragraph (1) of this 
        subsection.
    (b) Proposed Adverse Actions.--
          (1) In General.--In accordance with paragraph (2), 
        the head of an agency shall propose against a 
        supervisor whom the head of that agency, an 
        administrative law judge, the Merit Systems Protection 
        Board, the Office of Special Counsel, an adjudicating 
        body provided under a union contract, a Federal judge, 
        or the Inspector General of the agency determines 
        committed a prohibited personnel action the following 
        adverse actions:
                  (A) With respect to the first prohibited 
                personnel action, an adverse action that is not 
                less than a 12-day suspension.
                  (B) With respect to the second prohibited 
                personnel action, removal.
          (2) Procedures.--
                  (A) Notice.--A supervisor against whom an 
                adverse action under paragraph (1) is proposed 
                is entitled to written notice.
                  (B) Answer and Evidence.--
                          (i) In general.--A supervisor who is 
                        notified under subparagraph (A) that 
                        the supervisor is the subject of a 
                        proposed adverse 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.--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 adverse action, 
                        the head of the agency shall carry out 
                        the adverse action.
                  (C) Scope of procedures.--Paragraphs (1) and 
                (2) of subsection (b) of section 7513, 
                subsection (c) of such section, paragraphs (1) 
                and (2) of subsection (b) of section 7543, and 
                subsection (c) of such section shall not apply 
                with respect to an adverse action carried out 
                under this subsection.
    (c) Limitation on Other Adverse Actions.--With respect to a 
prohibited personnel action, if the head of the agency carries 
out an adverse action against a supervisor under another 
provision of law, the head of the agency may carry out an 
additional adverse action under this section based on the same 
prohibited personnel action.

WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012

           *       *       *       *       *       *       *

SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR 
                    TECHNICAL INFORMATION.

    (a) * * *
    (b) Protected Disclosure.--
          (1) * * *
          (2) Disclosures not excluded.--A disclosure shall not 
        be excluded from paragraph (1) for any reason described 
        under [section 2302(f)(1) or (2)] section 2303(e)(1) or 
        (2) of title 5, United States Code.

           *       *       *       *       *       *       *

HOMELAND SECURITY ACT OF 2002

           *       *       *       *       *       *       *

SEC. 704. CHIEF HUMAN CAPITAL OFFICER

    The Chief Human Capital Officer shall report to the 
Secretary, or to another official of the Department, as the 
Secretary may direct and shall ensure that all employees of the 
Department are informed of their rights and remedies under 
chapters 12 and 23 of title 5 by
    (1) participating in the [2302(c)] 2307 Certification 
Program of the Office of Special Counsel;
    (2) achieving certification from the Office of Special 
Counsel of the Department's compliance with section [2302(c)] 
2307 of title 5; and
    (3) informing Congress of such certification not later than 
24 months after November 25, 2002.

           *       *       *       *       *       *       *

PANAMA CANAL ACT OF 1979

           *       *       *       *       *       *       *

SEC. 1217. RECRUITMENT AND RETENTION REMUNERATION

    (a) * * *
    (b) * * *
    (c) * * *
    (d) * * *
          (1) * * *
          (2) * * *
          (3) A decision by the Commission to exercise or to 
        not exercise the authority to pay a bonus under this 
        subsection shall not be subject to review under any 
        statutory procedure or any agency or negotiated 
        grievance procedure except under any of the laws 
        referred to in [section 2302(d)] section 2303(c) of 
        title 5.

           *       *       *       *       *       *       *

SEC. 1233. TRANSITION SEPARATION INCENTIVE PAYMENTS

    (a) * * *
    (b) A decision by the Commission to exercise or to not 
exercise the authority to pay a transition separation incentive 
under this section shall not be subject to review under any 
statutory procedure or any agency or negotiated grievance 
procedure except under any of the laws referred to in [section 
2302(d)] section 2302(d) of title 5.

           *       *       *       *       *       *       *
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