II 114th CONGRESS 2d Session S. 2554 IN THE SENATE OF THE UNITED STATES February 11, 2016 Mr. Inhofe 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 the removal or demotion of employees of the Department of Veterans Affairs based on performance or misconduct, and for other purposes.

1. Short title This Act may be cited as the Department of Veterans Affairs Accountability Act of 2016 . 2. 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 following new section: 714. Employees: removal or demotion based on performance or misconduct (a) In general (1) The Secretary may remove or demote an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the individual warrants such removal or demotion. (2) A determination under paragraph (1) that the performance or misconduct of an individual warrants removal or demotion may consist of a determination of any of the following: (A) The individual neglected a duty of the position in which the individual was employed. (B) The individual engaged in malfeasance. (C) The individual failed to accept a directed reassignment or to accompany a position in a transfer of function. (D) The individual violated a policy of the Department. (E) The individual violated a provision of law. (F) The individual engaged in insubordination. (G) The individual over prescribed medication. (H) The individual contributed to the purposeful omission of the name of one or more veterans waiting for health care from an electronic wait list for a medical facility of the Department. (I) The individual was the supervisor of an employee of the Department, or was a supervisor of the supervisor, at any level, who contributed to a purposeful omission as described in subparagraph (H) and knew, or reasonably should have known, that the employee contributed to such purposeful omission. (J) Such other performance or misconduct as the Secretary determines warrants the removal or demotion of the individual under paragraph (1). (3) If the Secretary removes or demotes an individual as described in paragraph (1), the Secretary may— (A) remove the individual from the civil service (as defined in section 2101 of title 5); or (B) demote the individual by means of— (i) a reduction in grade for which the individual is qualified and that the Secretary determines is appropriate; or (ii) a reduction in annual rate of pay that the Secretary determines is appropriate. (4) (A) The Secretary shall delegate authority under paragraph (1) to each director of a Veterans Integrated Service Network for the removal and demotion of employees of the department in such network. (B) The Secretary shall ensure that authority delegated under subparagraph (A) can be exercised without intervening action by the Secretary. (b) Pay of certain demoted individuals (1) Notwithstanding any other provision of law, any individual subject to a demotion under subsection (a)(3)(B)(i) shall, beginning 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 Veterans' Affairs of the Senate and the House of Representatives 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 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 law judge (1) Upon receipt of an appeal under subsection (d)(2)(A), the Merit Systems Protection Board shall refer such appeal to an administrative law judge pursuant to section 7701(b)(1) of title 5. The administrative law judge shall expedite 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, including section 7703 of title 5, the decision of an administrative 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 requirement 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 removal or demotion is final, submit to Congress and the Committees on Veterans' Affairs of the Senate and the House of Representatives a report that explains the reasons why a decision was not issued in accordance with such requirement. (4) The Merit Systems Protection Board or administrative 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 service 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 repayments, special payments, or benefits. (6) To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board, and to any administrative law judge to whom an appeal under this section is referred, such information and assistance 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 behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5, the Secretary may not remove or demote such individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5. (2) The Office of Special Counsel shall establish— (A) a mechanism to expedite cases for corrective action under paragraph (1); and (B) a standard for the approval under paragraph (1) of removal or demotion under subsection (a), which may include a determination as to whether the removal or demotion is a prohibited personnel action. (3) (A) Notwithstanding any other provision of law, the Special Counsel may terminate an investigation of a prohibited personnel practice alleged by an individual in connection with a removal or demotion of the individual under subsection (a) only after the Special Counsel provides to the individual a written statement of the reasons for the termination of the investigation. (B) The written statement provided to the individual under subparagraph (A) may not be admissible as evidence in any judicial or administrative proceeding without the consent of such individual. (g) Relation to other provisions of law (1) The authority provided by this section is in addition to the authority provided by subchapter V of chapter 75 of title 5 and chapter 43 of such title. (2) Subchapter V of chapter 74 of this title shall not apply to any action under this section. (h) Definitions In this section: (1) The term individual means an individual occupying a position at the Department of Veterans Affairs 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 reassignment or to accompany a position in a transfer of function. (4) The term political appointee means an individual 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 confidential or policy-determining character under 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 beginning of such chapter is amended by adding at the end the following new item: 714. 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 paragraph (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 714 of title 38. . 3. Authority to investigate medical centers (a) The Director of a Veterans Integrated Service Network of the Department may contract with an appropriate entity specializing in civilian accreditation or health care evaluation to investigate any medical center within such Network to assess and report deficiencies of the facilities at such medical center. 4. Comptroller General report on the implementation and execution of the Veterans Choice Program (a) Report Not later than March 1, 2017, the Comptroller General of the United States shall submit to the appropriate committees of Congress a report on the implementation and execution by the Department of Veterans Affairs of the Veterans Choice Program. (b) Elements The report required by subsection (a) shall include an assessment of the following: (1) The number of veterans enrolled in and receiving care through the Veterans Choice Program as of the date of submittal of the report, disaggregated by— (A) State; (B) Veterans Integrated Service Network of the Department; (C) medical center of the Department; and (D) clinic of the Department. (2) The ability of veterans to fully access the Veterans Choice Program so that they do not have to travel more than 40 miles to receive care at a medical facility of the Department. (3) The instances in which veterans have to travel more than 40 miles to receive care. (4) The instances in which veterans have been denied care through the Veterans Choice Program and an analysis of any systematic policies, including at the national, regional, or local level, that have led to such denials of care. (5) The impact of the Veterans Choice Program on reducing wait times for the receipt of care from the Department. (6) The effectiveness of the rules, regulations, and procedures used by the Department to carry out the Veterans Choice Program. (7) The difference in implementation of the Veterans Choice Program— (A) in each State; (B) at each Veterans Integrated Service Network of the Department; (C) at each medical center of the Department; and (D) at each clinic of the Department. (8) The processing of claims for reimbursement for services provided under the Veterans Choice Program, disaggregated by— (A) State; (B) Veterans Integrated Service Network of the Department; (C) medical center of the Department; and (D) clinic of the Department. (9) The satisfaction of veterans with the Veterans Choice Program, disaggregated by— (A) State; (B) Veterans Integrated Service Network of the Department; (C) medical center of the Department; and (D) clinic of the Department. (c) Definitions In this section: (1) Appropriate committees of congress The term appropriate committees of Congress means— (A) the Committee on Veterans’ Affairs, the Committee on Armed Services, and the Committee on Appropriations of the Senate; and (B) the Committee on Veterans’ Affairs, the Committee on Armed Services, and the Committee on Appropriations of the House of Representatives. (2) Veterans Choice Program The term Veterans Choice Program means hospital care and medical services furnished under section 101 of the Veterans Access, Choice, and Accountability Act of 2014 ( Public Law 113–146 ; 38 U.S.C. 1701 note).