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 Com-
mittee on Veterans’ Affairs, and in addition to the Committee on Over-
sight and Government Reform, for a period to be subsequently deter-
mined 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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Veterans Health and 
Accountability Act’’. 
SEC. 2. EXPANSION OF VETERANS CHOICE PROGRAM. 
(a) REMOVAL OF GEOGRAPHIC AND WAIT-TIME RE-
QUIREMENTS.—Subsection (b) of section 101 of the Vet-
erans Access, Choice, and Accountability Act of 2014 (38 
U.S.C. 1701 note) is amended to read as follows: 
‘‘(b) ELIGIBLE VETERANS.—A veteran is an eligible 
veteran for purposes of this section if the veteran is en-
rolled in the patient enrollment system of the Department 
of Veterans Affairs established and operated under section 
1705 of title 38, United States Code, including any such 
veteran who has not received hospital care or medical serv-
ices from the Department and has contacted the Depart-
ment seeking an initial appointment from the Department 
for the receipt of such care or services.’’. 
(b) CHOICE OF PROVIDER.—Such section is amend-
ed— 
(1) in subsection (a)— 
(A) by striking paragraph (2); and 
(B) by redesignating paragraph (3) as 
paragraph (2); and 
(2) by striking subsection (c) and inserting the 
following new subsection (c): 
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‘‘(c) CHOICE OF PROVIDER.—An eligible veteran who 
receives hospital care or medical services under this sec-
tion may select a provider of such care or services from 
among the entities specified in paragraph (1)(B) that are 
accessible to the veteran.’’. 
(c) CONFORMING AMENDMENTS.—Such section is 
further amended— 
(1) in subsection (f)(1), by striking ‘‘subsection 
(b)(1)’’ and inserting ‘‘subsection (b)’’; 
(2) in subsection (g)— 
(A) in paragraph (1), by striking ‘‘sub-
section (b)(1)(B)’’ and inserting ‘‘subsection 
(b)’’; and 
(B) in paragraph (3), by striking ‘‘under 
subparagraph (B), (C), or (D) of subsection 
(b)(2)’’; and 
(3) in subsection (q)(2)(A)— 
(A) by striking ‘‘, disaggregated by—’’ and 
inserting a period; and 
(B) by striking clauses (i) through (iv). 
(d) INCREASED TRANSPARENCY.—The Secretary of 
Veterans Affairs shall annually testify before each of the 
Committee on Veterans’ Affairs of the House of Rep-
resentatives and the Committee on Veterans’ Affairs of 
the Senate on the health care furnished to veterans by 
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the Department of Veterans Affairs. Such testimony shall 
include a full progress report on the Veterans Choice Pro-
gram established by section 101 of the Veterans Access, 
Choice, and Accountability Act of 2014 (38 U.S.C. 1701 
note), including the number of veterans participating in 
such program. 
SEC. 3. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON 
PERFORMANCE OR MISCONDUCT. 
(a) IN GENERAL.—Chapter 7 of title 38, United 
States Code, is amended by adding at the end the fol-
lowing new section: 
‘‘§ 715. Employees: removal or demotion based on 
performance or misconduct 
‘‘(a) IN GENERAL.—The Secretary may remove or 
demote an individual who is an employee of the Depart-
ment if the Secretary determines the performance or mis-
conduct of the individual warrants such removal or demo-
tion. If the Secretary so removes or demotes such an indi-
vidual, the Secretary may— 
‘‘(1) remove the individual from the civil service 
(as defined in section 2101 of title 5); or 
‘‘(2) demote the individual by means of— 
‘‘(A) a reduction in grade for which the in-
dividual is qualified and that the Secretary de-
termines is appropriate; or 
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‘‘(B) a reduction in annual rate of pay 
that the Secretary determines is appropriate. 
‘‘(b) PAY OF CERTAIN DEMOTED INDIVIDUALS.—(1) 
Notwithstanding any other provision of law, any individual 
subject to a demotion under subsection (a)(2)(A) shall, be-
ginning on the date of such demotion, receive the annual 
rate of pay applicable to such grade. 
‘‘(2) An individual so demoted may not be placed on 
administrative leave or any other category of paid leave 
during the period during which an appeal (if any) under 
this section is ongoing, and may only receive pay if the 
individual reports for duty. If an individual so demoted 
does not report for duty, such individual shall not receive 
pay or other benefits pursuant to subsection (e)(5). 
‘‘(c) NOTICE TO CONGRESS.—Not later than 30 days 
after removing or demoting an individual under subsection 
(a), the Secretary shall submit to the Committees on Vet-
erans’ Affairs of the Senate and the House of Representa-
tives notice in writing of such removal or demotion and 
the reason for such removal or demotion. 
‘‘(d) PROCEDURE.—(1) The procedures under section 
7513(b) of title 5 and chapter 43 of such title shall not 
apply to a removal or demotion under this section. 
‘‘(2)(A) Subject to subparagraph (B) and subsection 
(e), any removal or demotion under subsection (a) may 
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be appealed to the Merit Systems Protection Board under 
section 7701 of title 5. 
‘‘(B) An appeal under subparagraph (A) of a removal 
or demotion may only be made if such appeal is made not 
later than seven days after the date of such removal or 
demotion. 
‘‘(e) EXPEDITED
REVIEW
BY
ADMINISTRATIVE 
JUDGE.—(1) Upon receipt of an appeal under subsection 
(d)(2)(A), the Merit Systems Protection Board shall refer 
such appeal to an administrative judge pursuant to section 
7701(b)(1) of title 5. The administrative judge shall expe-
dite any such appeal under such section and, in any such 
case, shall issue a decision not later than 45 days after 
the date of the appeal. 
‘‘(2) Notwithstanding any other provision of law, in-
cluding section 7703 of title 5, the decision of an adminis-
trative judge under paragraph (1) shall be final and shall 
not be subject to any further appeal. 
‘‘(3) In any case in which the administrative judge 
cannot issue a decision in accordance with the 45-day re-
quirement under paragraph (1), the removal or demotion 
is final. In such a case, the Merit Systems Protection 
Board shall, within 14 days after the date that such re-
moval or demotion is final, submit to Congress and the 
Committees on Veterans’ Affairs of the Senate and the 
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House of Representatives a report that explains the rea-
sons why a decision was not issued in accordance with 
such requirement. 
‘‘(4) The Merit Systems Protection Board or admin-
istrative judge may not stay any removal or demotion 
under this section. 
‘‘(5) During the period beginning on the date on 
which an individual appeals a removal from the civil serv-
ice under subsection (d) and ending on the date that the 
administrative judge issues a final decision on such appeal, 
such individual may not receive any pay, awards, bonuses, 
incentives, allowances, differentials, student loan repay-
ments, special payments, or benefits. 
‘‘(6) To the maximum extent practicable, the Sec-
retary shall provide to the Merit Systems Protection 
Board, and to any administrative judge to whom an appeal 
under this section is referred, such information and assist-
ance as may be necessary to ensure an appeal under this 
subsection is expedited. 
‘‘(f) WHISTLEBLOWER PROTECTION.—(1) In the 
case of an individual seeking corrective action (or on be-
half of whom corrective action is sought) from the Office 
of Special Counsel based on an alleged prohibited per-
sonnel practice described in section 2302(b) of title 5, the 
Secretary may not remove or demote such individual 
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under subsection (a) without the approval of the Special 
Counsel under section 1214(f) of title 5. 
‘‘(2) In the case of an individual who has filed a whis-
tleblower complaint, as such term is defined in section 731 
of this title, the Secretary may not remove or demote such 
individual under subsection (a) until the central whistle-
blower office under section 732(h) of this title has made 
a final decision with respect to the whistleblower com-
plaint. 
‘‘(g) TERMINATION OF INVESTIGATIONS BY OFFICE 
OF SPECIAL COUNSEL.—Notwithstanding any other provi-
sion of law, the Special Counsel (established by section 
1211 of title 5) may terminate an investigation of a pro-
hibited personnel practice alleged by an employee or 
former employee of the Department after the Special 
Counsel provides to the employee or former employee a 
written statement of the reasons for the termination of 
the investigation. Such statement may not be admissible 
as evidence in any judicial or administrative proceeding 
without the consent of such employee or former employee. 
‘‘(h) RELATION TO TITLE 5.—The authority provided 
by this section is in addition to the authority provided by 
subchapter II of chapter 75 of title 5 and chapter 43 of 
such title. 
‘‘(i) DEFINITIONS.—In this section: 
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‘‘(1) The term ‘individual’ means an individual 
occupying a position at the Department but does not 
include— 
‘‘(A) an individual, as that term is defined 
in section 713(g)(1); or 
‘‘(B) a political appointee. 
‘‘(2) The term ‘grade’ has the meaning given 
such term in section 7511(a) of title 5. 
‘‘(3) The term ‘misconduct’ includes neglect of 
duty, malfeasance, or failure to accept a directed re-
assignment or to accompany a position in a transfer 
of function. 
‘‘(4) The term ‘political appointee’ means an in-
dividual who is— 
‘‘(A) employed in a position described 
under sections 5312 through 5316 of title 5 
(relating to the Executive Schedule); 
‘‘(B) a limited term appointee, limited 
emergency appointee, or noncareer appointee in 
the Senior Executive Service, as defined under 
paragraphs (5), (6), and (7), respectively, of 
section 3132(a) of title 5; or 
‘‘(C) employed in a position of a confiden-
tial or policy-determining character under 
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schedule C of subpart C of part 213 of title 5 
of the Code of Federal Regulations.’’. 
(b) CLERICAL AND CONFORMING AMENDMENTS.— 
(1) CLERICAL.—The table of sections at the be-
ginning of such chapter is amended by adding at the 
end the following new item: 
‘‘715. Employees: removal or demotion based on performance or misconduct.’’. 
(2) CONFORMING.—Section 4303(f) of title 5, 
United States Code, is amended— 
(A) by striking ‘‘or’’ at the end of para-
graph (2); 
(B) by striking the period at the end of 
paragraph (3) and inserting ‘‘, or’’; and 
(C) by adding at the end the following: 
‘‘(4) any removal or demotion under section 
715 of title 38.’’. 
SEC. 4. REQUIRED PROBATIONARY PERIOD FOR NEW EM-
PLOYEES OF DEPARTMENT OF VETERANS AF-
FAIRS. 
(a) PROBATIONARY PERIOD.— 
(1) IN GENERAL.—Chapter 7 of title 38, United 
States Code, as amended by section 2, is further 
amended by adding at the end the following new sec-
tion: 
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‘‘§ 717. Probationary period for employees 
‘‘(a) IN GENERAL.—Notwithstanding sections 3321 
and 3393(d) of title 5, the appointment of a covered em-
ployee shall become final only after such employee has 
served a probationary period of 18 months. The Secretary 
may extend a probationary period under this subsection 
at the discretion of the Secretary. 
‘‘(b) COVERED EMPLOYEE.—In this section, the term 
‘covered employee’— 
‘‘(1) means any individual— 
‘‘(A) appointed to a permanent position 
within the competitive service at the Depart-
ment; or 
‘‘(B) appointed as a career appointee (as 
that term is defined in section 3132(a)(4) of 
title 5) within the Senior Executive Service at 
the Department; and 
‘‘(2) does not include any individual with a pro-
bationary period prescribed by section 7403 of this 
title. 
‘‘(c) PERMANENT HIRES.—Upon the expiration of a 
covered employee’s probationary period under subsection 
(a), the supervisor of the employee shall determine wheth-
er the appointment becomes final based on regulations 
prescribed for such purpose by the Secretary.’’. 
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(2) CLERICAL
AND
CONFORMING
AMEND-
MENTS.— 
(A) CLERICAL.—The table of sections at 
the beginning of such chapter, as amended by 
section 2, is further amended by adding at the 
end the following new item: 
‘‘717. Probationary period for employees.’’. 
(B) CONFORMING.—Title 5, United States 
Code, is amended— 
(i) in section 3321(c)— 
(I) by striking ‘‘Service or’’ and 
inserting ‘‘Service,’’; and 
(II) by inserting at the end be-
fore the period the following: ‘‘, or 
any individual covered by section 717 
of title 38’’; and 
(ii) in section 3393(d), by adding at 
the end after the period the following: 
‘‘The preceding sentence shall not apply to 
any individual covered by section 717 of 
title 38.’’. 
(b) APPLICATION.—Section 717 of title 38, United 
States Code, as added by subsection (a)(1), shall apply 
to any covered employee (as that term is defined in sub-
section (b) of such section 717, as so added) appointed 
after the date of the enactment of this Act. 
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SEC. 5. TREATMENT OF WHISTLEBLOWER COMPLAINTS IN 
DEPARTMENT OF VETERANS AFFAIRS. 
(a) IN GENERAL.—Chapter 7 of title 38, United 
States Code, is further amended by adding at the end the 
following new subchapter: 
‘‘SUBCHAPTER II—WHISTLEBLOWER 
COMPLAINTS 
‘‘§ 731. Whistleblower complaint defined 
‘‘In this subchapter, the term ‘whistleblower com-
plaint’ means a complaint by an employee of the Depart-
ment disclosing, or assisting another employee to disclose, 
a potential violation of any law, rule, or regulation, or 
gross mismanagement, gross waste of funds, abuse of au-
thority, or substantial and specific danger to public health 
and safety. 
‘‘§ 732. Treatment of whistleblower complaints 
‘‘(a) FILING.—(1) In addition to any other method 
established by law in which an employee may file a whistle-
blower complaint, an employee of the Department may file 
a whistleblower complaint in accordance with subsection 
(g) with a supervisor of the employee. 
‘‘(2) Except as provided by subsection (d)(1), in mak-
ing a whistleblower complaint under paragraph (1), an 
employee shall file the initial complaint with the imme-
diate supervisor of the employee. 
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‘‘(b) NOTIFICATION.—(1) Not later than four busi-
ness days after the date on which a supervisor receives 
a whistleblower complaint by an employee under this sec-
tion, the supervisor shall notify, in writing, the employee 
of whether the supervisor determines that there is a rea-
sonable likelihood that the complaint discloses a violation 
of any law, rule, or regulation, or gross mismanagement, 
gross waste of funds, abuse of authority, or substantial 
and specific danger to public health and safety. The super-
visor shall retain written documentation regarding the 
whistleblower complaint and shall submit to the next-level 
supervisor and the central whistleblower office described 
in subsection (h) a written report on the complaint. 
‘‘(2) On a monthly basis, the supervisor shall submit 
to the appropriate director or other official who is superior 
to the supervisor a written report that includes the num-
ber of whistleblower complaints received by the supervisor 
under this section during the month covered by the report, 
the disposition of such complaints, and any actions taken 
because of such complaints pursuant to subsection (c). In 
the case in which such a director or official carries out 
this paragraph, the director or official shall submit such 
monthly report to the supervisor of the director or official 
and to the central whistleblower office described in sub-
section (h). 
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‘‘(c) POSITIVE DETERMINATION.—If a supervisor 
makes a positive determination under subsection (b)(1) re-
garding a whistleblower complaint of an employee, the su-
pervisor shall include in the notification to the employee 
under such subsection the specific actions that the super-
visor will take to address the complaint. 
‘‘(d) FILING COMPLAINT WITH NEXT-LEVEL SUPER-
VISORS.—(1) If any circumstance described in paragraph 
(3) is met, an employee may file a whistleblower complaint 
in accordance with subsection (g) with the next-level su-
pervisor who shall treat such complaint in accordance with 
this section. 
‘‘(2) An employee may file a whistleblower complaint 
with the Secretary if the employee has filed the whistle-
blower complaint to each level of supervisors between the 
employee and the Secretary in accordance with paragraph 
(1). 
‘‘(3) A circumstance described in this paragraph are 
any of the following circumstances: 
‘‘(A) A supervisor does not make a timely de-
termination under subsection (b)(1) regarding a 
whistleblower complaint. 
‘‘(B) The employee who made a whistleblower 
complaint determines that the supervisor did not 
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adequately address the complaint pursuant to sub-
section (c). 
‘‘(C) The immediate supervisor of the employee 
is the basis of the whistleblower complaint. 
‘‘(e) TRANSFER OF EMPLOYEE WHO FILES WHIS-
TLEBLOWER COMPLAINT.—If a supervisor makes a posi-
tive determination under subsection (b)(1) regarding a 
whistleblower complaint filed by an employee, the Sec-
retary shall— 
‘‘(1) inform the employee of the ability to vol-
unteer for a transfer in accordance with section 
3352 of title 5; and 
‘‘(2) give preference to the employee for such a 
transfer in accordance with such section. 
‘‘(f) PROHIBITION ON EXEMPTION.—The Secretary 
may not exempt any employee of the Department from 
being covered by this section. 
‘‘(g) WHISTLEBLOWER COMPLAINT FORM.—(1) A 
whistleblower complaint filed by an employee under sub-
section (a) or (d) shall consist of the form described in 
paragraph (2) and any supporting materials or docu-
mentation the employee determines necessary. 
‘‘(2) The form described in this paragraph is a form 
developed by the Secretary, in consultation with the Spe-
cial Counsel, that includes the following: 
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‘‘(A) An explanation of the purpose of the whis-
tleblower complaint form. 
‘‘(B) Instructions for filing a whistleblower 
complaint as described in this section. 
‘‘(C) An explanation that filing a whistleblower 
complaint under this section does not preclude the 
employee from any other method established by law 
in which an employee may file a whistleblower com-
plaint. 
‘‘(D) A statement directing the employee to in-
formation accessible on the Internet website of the 
Department as described in section 735(c). 
‘‘(E) Fields for the employee to provide— 
‘‘(i) the date that the form is submitted; 
‘‘(ii) the name of the employee; 
‘‘(iii) the contact information of the em-
ployee; 
‘‘(iv) a summary of the whistleblower com-
plaint (including the option to append sup-
porting documents pursuant to paragraph (1)); 
and 
‘‘(v) proposed solutions to complaint. 
‘‘(F) Any other information or fields that the 
Secretary determines appropriate. 
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‘‘(3) The Secretary, in consultation with the Special 
Counsel, shall develop the form described in paragraph (2) 
by not later than 60 days after the date of the enactment 
of this section. 
‘‘(h) CENTRAL WHISTLEBLOWER OFFICE.—(1) The 
Secretary shall ensure that the central whistleblower of-
fice— 
‘‘(A) is not an element of the Office of the Gen-
eral Counsel; 
‘‘(B) is not headed by an official who reports to 
the General Counsel; 
‘‘(C) does not provide, or receive from, the Gen-
eral Counsel any information regarding a whistle-
blower complaint except pursuant to an action re-
garding the complaint before an administrative body 
or court; and 
‘‘(D) does not provide advice to the General 
Counsel. 
‘‘(2) The central whistleblower office shall be respon-
sible for investigating all whistleblower complaints of the 
Department, regardless of whether such complaints are 
made by or against an employee who is not a member of 
the Senior Executive Service. 
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