II 114th CONGRESS 1st Session S. 1856 IN THE SENATE OF THE UNITED STATES July 23, 2015 Mr. Blumenthal (for himself, Mrs. Murray , Mr. Sanders , Mr. Brown , Mr. Tester , and Ms. Hirono ) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs A BILL To amend title 38, United States Code, to provide for suspension and removal of employees of the Department of Veterans Affairs for performance or misconduct that is a threat to public health or safety and to improve accountability of employees of the Department, and for other purposes.

1. Short title This Act may be cited as the Department of Veterans Affairs Equitable Employee Accountability Act of 2015 . 2. Suspension and removal of Department of Veterans Affairs employees for performance or misconduct that is a threat to public health or safety (a) In general Chapter 7 of title 38, United States Code, is amended by adding at the end the following new section: 715. Employees: suspension and removal for performance or misconduct that is a threat to public health or safety (a) Suspension and removal Subject to the provisions of this section, the Secretary may— (1) suspend without pay an employee of the Department if the Secretary determines the performance or misconduct of the employee is a clear and direct threat to public health or safety; and (2) remove an employee suspended under paragraph (1) if, after such investigation and review as the Secretary considers necessary, the Secretary determines that removal is necessary in the interests of public health or safety. (b) Procedure An employee suspended under subsection (a)(1) is entitled, after suspension and before removal, to— (1) not later than 30 days after the date of the suspension, a written statement of the specific charges against the employee; (2) a reasonable opportunity, but not less than 7 business days, to answer the charges orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) at the request of the employee, and not later than 15 business days after such request, a formal review by a Department authority duly constituted for purposes of this section at which the employee may be represented by an attorney or other representative; (4) a review of the case by the Secretary before a decision adverse to the employee is made final; (5) as soon as practicable, a decision of the Secretary with respect to the charges against the employee; and (6) a written statement of the decision of the Secretary that includes the specific reasons for the decision. (c) Appeal An employee suspended or removed under subsection (a)— (1) is entitled to appeal to the Merit Systems Protection Board under section 7701 of title 5; and (2) may obtain judicial review of a final order or decision of the Merit Systems Protection Board under section 7703 of such title. (d) Relation to other disciplinary rules The authority provided under this section shall be in addition to the authority provided under section 713 and subchapter V of chapter 74 of this title and title 5 with respect to disciplinary actions for performance or misconduct. (e) Back pay (1) In general If an employee of the Department is subject to a suspension or removal under this section and the Secretary makes a determination described in paragraph (2) with respect to such suspension or removal, the employee shall receive back pay equal to the total amount of pay that such employee would have received during the period that the suspension or removal (as the case may be) was in effect, less any amounts earned by the employee through other employment during that period. (2) Determination described A determination described in this paragraph with respect to a suspension or removal is a determination that the suspension or removal— (A) is not warranted; or (B) is, under applicable law, rule, regulation, or collective bargaining agreement, a prohibited personnel practice described in section 2302(b) of title 5. (f) Employee defined In this section, the term employee means any individual occupying a position within the Department under a permanent or indefinite appointment and who is not serving a probationary or trial period. . (b) Clerical and conforming amendments (1) Clerical The table of sections at the beginning of chapter 7 of such title is amended by inserting after the item relating to section 713 the following new item: 715. Employees: suspension and removal for performance or misconduct that is a threat to public health or safety. . (2) Conforming Section 4303(f) of title 5, United States Code, is amended— (A) in paragraph (2), by striking or at the end; (B) in paragraph (3), by striking the period at the end and inserting , or ; and (C) by adding at the end the following: (4) any suspension or removal under section 715 of title 38. . (c) Report on suspensions and removals (1) In general Not later than one year after the date of the enactment of this Act, the Inspector General of the Department of Veterans Affairs shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report on suspensions and removals of employees of the Department of Veterans Affairs made under section 715 of title 38, United States Code, as added by subsection (a). (2) Elements The report required by paragraph (1) shall include the following: (A) The number of employees who were suspended under section 715 of title 38, United States Code, as added by subsection (a). (B) The number of employees who were removed under such section. (C) A description of the threats to public health or safety that caused such suspensions or removals. (D) The number of suspensions or removals, or proposed suspensions or removals, under such section that were of an employee who filed a complaint regarding— (i) an alleged prohibited personnel practice committed by an officer or employee of the Department; or (ii) the safety of a patient at a medical facility of the Department. (E) Of the number of suspensions or removals described in subparagraph (D), the number of such suspensions or removals that the Inspector General considers to be retaliation for whistleblowing. (F) The number of suspensions or removals under such section 715 that were of an employee who was the subject of a complaint made to the Department regarding the health or safety of a patient at a medical facility of the Department. (G) Any recommendations by the Inspector General, based on the information described in subparagraphs (A) through (F), to improve the authority of the Secretary of Veterans Affairs to make such suspensions or removals. 3. Accountability of leaders for managing the Department of Veterans Affairs (a) In general Chapter 7 of title 38, United States Code, is amended by inserting after section 709 the following new section: 709A. Annual performance plan for political appointees (a) In general The Secretary shall conduct an annual performance plan for each political appointee of the Department that is similar to the annual performance plan conducted for an employee of the Department who is 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. (b) Elements of plan Each annual performance plan conducted under subsection (a) with respect to a political appointee of the Department shall include an assessment of whether the appointee is meeting the following goals: (1) Recruiting, selecting, and retaining well-qualified individuals for employment at the Department. (2) Engaging and motivating employees. (3) Training and developing employees and preparing those employees for future leadership roles within the Department. (4) Holding each employee of the Department that is a manager accountable for addressing issues relating to performance, in particular issues relating to the performance of employees that report to the manager. . (b) Clerical amendment The table of sections at the beginning of chapter 7 of such title is amended by inserting after the item relating to section 709 the following new item: 709A. Annual performance plan for political appointees. . 4. Accountability of managers for hiring well-qualified people (a) In general With respect to any employee of the Department of Veterans Affairs that is required to serve a probationary period at a position in the Department, the Secretary of Veterans Affairs shall require the manager of such employee to determine, not later than 30 days before the end of the probationary period, whether the employee has demonstrated successful performance and should continue past the probationary period before allowing the employee to continue at that position after the end of the probationary period. (b) Supervisors With respect to any employee of the Department that is serving a probationary period at a supervisory position in the Department, successful performance under subsection (a) shall include demonstrating management competencies in addition to the technical skills required for such position. (c) Performance plan Each annual performance plan conducted for a manager of an employee serving a probationary period shall hold the manager accountable for— (1) providing regular feedback to such employee during such period before making a determination under subsection (a) regarding the probationary status of such employee; and (2) making a timely determination under subsection (a) regarding the probationary status of such employee. 5. Accountability of managers for addressing performance of employees The Secretary of Veterans Affairs shall ensure that, as a part of the annual performance plan of an employee of the Department of Veterans Affairs that is a manager, the manager is evaluated on the following: (1) Taking action to address poor performance and misconduct among the employees that report to the manager. (2) Taking steps to improve or sustain high levels of employee engagement. 6. Improvement of training for managers The Secretary of Veterans Affairs shall provide to each employee of the Department of Veterans Affairs that is a manager periodic training on the following: (1) The rights of whistleblowers and how to address a report by an employee of a hostile work environment, reprisal, or harassment. (2) How to effectively motivate, manage, and reward the employees that report to the manager. (3) How to effectively manage employees who are performing at an unacceptable level and access assistance from the human resources office of the Department and the Office of the General Counsel of the Department with respect to those employees. 7. Promotional opportunities for technical experts The Secretary of Veterans Affairs shall develop a promotional track for employees of the Department of Veterans Affairs that the Secretary determines are technical experts to allow such employees to advance in their career without being required to transition to management positions. 8. Expansion of definition of personnel action to include performance evaluations of employees of the Department of Veterans Affairs Section 2302(a)(2)(A)(viii) of title 5, United States Code, is amended by inserting or under title 38 after chapter 43 of this title . 9. Written opinion on certain employment restrictions after terminating employment with the Department of Veterans Affairs (a) 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 section: 717. Written opinion on certain employment restrictions after terminating employment with the Department (a) In general Before terminating employment with the Department, any official of the Department who has participated personally and substantially in an acquisition by the Department that exceeds $1,000,000 or held a key position at the Department relating to acquisition shall obtain a written opinion from an appropriate ethics counselor at the Department regarding any restrictions on activities that the official may undertake on behalf of a covered contractor during the two-year period beginning on the date on which the official terminates such employment. (b) Covered contractor defined In this section, the term covered contractor means a contractor carrying out a contract entered into with the Department, including pursuant to a subcontract. . (b) Clerical amendment The table of sections at the beginning of chapter 7 of such title, as amended by section 2, is further amended by inserting after the item relating to section 715 the following new item: 717. Written opinion on certain employment restrictions after leaving the Department. . 10. Requirement for contractors of the Department employing certain recently separated Department employees (a) In general Subchapter II of chapter 81 of title 38, United States Code, is amended by adding at the end the following new section: 8129. Requirement for contractors employing certain recently separated Department employees (a) In general A covered contractor may not knowingly provide compensation to an individual described in subsection (b) during the two-year period beginning on the date on which the individual terminates employment with the Department unless the covered contractor determines that the individual— (1) has obtained the written opinion required under section 717(a) of this title; or (2) has requested such written opinion not later than 30 days before receiving compensation from the covered contractor. (b) Individual described An individual described in this subsection is any official of the Department who has participated personally and substantially in an acquisition by the Department that exceeds $1,000,000 or held a key position at the Department relating to acquisition. (c) Covered contractor defined In this section, the term covered contractor means a contractor carrying out a contract entered into with the Department, including pursuant to a subcontract. . (b) Application The requirement under section 8129(a) of title 38, United States Code, as added by subsection (a), shall apply with respect to any entity that enters into a contract with the Department on or after the date of the enactment of this Act. (c) Clerical amendment The table of sections at the beginning of chapter 81 of such title is amended by inserting after the item relating to section 8128 the following new item: 8129. Requirement for contractors employing certain recently separated Department employees. . 11. Limitation on administrative leave for employees of the Department of Veterans Affairs (a) In general Chapter 7 of title 38, United States Code, as amended by section 9, is further amended by adding at the end the following new section: 719. Administrative leave limitation and report (a) Limitation applicable to employees within the Department (1) The Secretary may not place any covered individual on administrative leave for more than a total of 14 business days during any 365-day period. (2) The Secretary may waive the limitation under paragraph (1) and extend the period of administrative leave of a covered individual if the Secretary submits to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a detailed explanation of the reasons the covered individual was placed on administrative leave and the reasons for the extension of such leave. Such explanation shall include the name of the covered individual, the location where the covered individual is employed, and the job title of the covered individual. (3) In this subsection, the term covered individual means an employee of the Department— (A) who is subject to an investigation for purposes of determining whether such individual should be subject to any disciplinary action under this title or title 5; or (B) against whom any disciplinary action is proposed or initiated under this title or title 5. (b) Report on administrative leave (1) Not later than 30 days after the end of each fiscal year, the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report listing the name of each employee of the Department (if any) who has been placed on administrative leave for a period longer than 7 business days during such fiscal year. (2) Each report submitted under paragraph (1) shall include, with respect to each employee listed in such report, the position occupied by the employee, the number of business days of such leave, and the reason that such employee was placed on such leave. (3) In submitting each report under paragraph (1), the Secretary shall take such measures to protect the privacy of the employees listed in the report as the Secretary considers appropriate. (c) Administrative leave defined In this section, the term administrative leave — (1) means leave without loss of or reduction in pay, leave to which an employee of the Department is otherwise entitled, or credit for time or service; and (2) includes any type of paid non-duty status. . (b) Application (1) Administrative leave limitation Subsection (a) of section 719 of title 38, United States Code (as added by subsection (a)), shall apply to any period of administrative leave (as defined in such section) commencing on or after the date of the enactment of this Act. (2) Report The report under section 719(b) of such title (as added by subsection (a)) shall apply beginning in the first quarter that ends after the date that is 180 days after the date of the enactment of this Act. (c) Clerical amendment The table of sections at the beginning of chapter 7 of such title, as amended by section 9, is further amended by adding at the end the following new item: 719. Administrative leave limitation and report. . 12. Improvement of medical oversight within the Department of Veterans Affairs (a) In general Subchapter II of chapter 73 of title 38, United States Code, is amended by inserting after section 7324 the following new section: 7324A. Periodic reports on programs, operations, and other functions of the Veterans Health Administration (a) Report on programs and operations Not later than 60 days after the date of the enactment of the Department of Veterans Affairs Equitable Employee Accountability Act of 2015 , and periodically thereafter, the Office of the Medical Inspector of the Veterans Health Administration shall submit to the Secretary, the Under Secretary for Health, the Committee on Veterans’ Affairs of the Senate, and the Committee on Veterans’ Affairs of the House of Representatives a report on any problems or deficiencies encountered by the Department in carrying out the programs and operations of the Veterans Health Administration, including any recommendations for corrective action. (b) Submittal of other reports The Office of the Medical Inspector shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives each report prepared by the Office in carrying out the functions of the Office not later than 30 days after completing such report. (c) Protection of privacy The Office of the Medical Inspector shall, in carrying out the requirements of this section, protect any medical or other personally identifiable information obtained by the Office from disclosure or misuse in accordance with all laws on privacy applicable to such information. . (b) Clerical amendment The table of sections at the beginning of chapter 73 of such title is amended by inserting after the item relating to section 7324 the following new item: Sec. 7324A. Periodic reports on programs, operations, and other functions of the Veterans Health Administration. . 13. Comptroller General report on performance and accountability of employees of Department of Veterans Affairs Not later than 15 months after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report on the following: (1) The implementation by the Department of Veterans Affairs of section 713 of title 38, United States Code, including the following: (A) An assessment of the impact of the implementation of section 713 of title 38, United States Code, on the performance and accountability of employees of the Department. (B) An assessment of the impact of the implementation of such section on recruitment and retention of employees of the Department, particularly employees within the Senior Executive Service. (2) An assessment of the policies of the Department for dealing with issues relating to the performance of employees of the Department, including recommendations on addressing performance and misconduct issues in an expedited manner.