II 114th CONGRESS 1st Session S. 2127 IN THE SENATE OF THE UNITED STATES October 1, 2015 Mr. Johnson (for himself and Ms. Ayotte ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL 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.

1. Short title; table of contents (a) Short title This Act may be cited as the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2015 . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—Employees generally Sec. 101. Definitions. Sec. 102. Whistleblower protections for probationary employees. Sec. 103. Adequate access of Special Counsel to information. Sec. 104. Removal or demotion of employees based on retaliation against whistleblowers. Sec. 105. Suicide by executive branch employees. Sec. 106. Access to medical files. Sec. 107. Training for supervisors. Sec. 108. Information on whistleblower protections. TITLE II—Department of Veterans Affairs employees Sec. 201. Protecting medical privacy of employees of the Department of Veterans Affairs. Sec. 202. Mental health services for employees of the Department of Veterans Affairs. Sec. 203. Protocols to address threats against employees of the Department of Veterans Affairs. Sec. 204. Comptroller General of the United States study on accountability of chiefs of police of Department of Veterans Affairs medical centers. I Employees generally 101. Definitions In this title— (1) the term Executive agency has the meaning given that term under section 105 of title 5, United States Code; and (2) the term executive branch employee means an employee of an Executive agency. 102. Whistleblower protections for probationary employees (a) In general Section 1214 of title 5, United States Code, is amended by adding at the end the following: (i) (1) In this subsection, the term covered probationary employee means an individual who— (A) is an employee in probationary status; and (B) has submitted to the Special Counsel an allegation of a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of section 2302(b) with respect to the individual. (2) Not later than 10 days after the date on which an agency terminates a covered probationary employee, the Special Counsel shall determine whether a substantial likelihood exists that— (A) the agency engaged in the prohibited personnel practice alleged by the covered probationary employee, as described in paragraph (1)(B); and (B) the termination of the covered probationary employee was related to that prohibited personnel practice. (3) (A) If the Special Counsel determines there is a substantial likelihood the circumstances described in paragraph (2) exist, the Special Counsel shall request and the Merit Systems Protection Board, without further proceedings, shall order a stay of the termination for 60 days for the Special Counsel to complete an investigation of the termination of the covered probationary employee. (B) If, before the end of the 60-day period described in subparagraph (A), the Special Counsel determines that additional investigation is warranted, the Special Counsel shall request and the Merit Systems Protection Board, without further proceedings, shall order a stay of the termination for such period as the Special Counsel determines appropriate, which may not exceed an additional period of 6 months. (4) (A) If the Special Counsel determines that the agency employing a covered probationary employee engaged in the prohibited personnel practice alleged by the covered probationary employee, as described in paragraph (1)(B), and the termination of the covered probationary employee was related to that prohibited personnel practice, the Special Counsel shall request and the Merit Systems Protection Board, without further proceedings, shall order the reinstatement of the covered probationary employee. (B) If the Special Counsel determines that the agency employing a covered probationary employee did not engage in the prohibited personnel practice alleged by the covered probationary employee, described in paragraph (1)(B), or that the termination of the covered probationary employee was not related to that prohibited personnel practice, the Special Counsel shall request and the Merit Systems Protection Board, without further proceedings, shall order the immediate enforcement of the termination. (C) An order reinstating a covered probationary employee may be appealed by the agency to the Merit Systems Protection Board under section 7701. (5) If a stay is granted to a covered probationary employee under paragraph (3) or a covered probationary employee is reinstated under this subsection, the head of the agency employing the covered probationary employee shall give priority to a request for a transfer submitted by the covered probationary employee. . (b) Individual right of action Section 1221 of title 5, United States Code, is amended by adding at the end the following: (k) (1) In this subsection, the term covered probationary employee has the meaning given that term under section 1214(i)(1). (2) In this section, the term employee includes a covered probationary employee who is terminated, including for purposes of seeking a stay under subsection (c). (3) If the Merit Systems Protection Board grants a stay to a covered probationary employee under subsection (c), the head of the agency employing the covered probationary employee shall give priority to a request for a transfer submitted by the covered probationary employee. . (c) Study regarding retaliation against probationary employees The Comptroller General of the United States shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report discussing retaliation against employees in probationary status relating to a disclosure by the employees of information described in section 2302(b)(8) of title 5, United States Code, by the employees. 103. Adequate access of Special Counsel to information Section 1212(b) of title 5, United States Code, is amended by adding at the end the following: (5) (A) The Special Counsel, in carrying out this subchapter, is authorized to— (i) 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 (ii) 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. (B) Upon request of the Special Counsel for information or assistance under subparagraph (A)(ii), the head of the agency involved shall, insofar as is practicable and not in contravention of any existing statutory restriction or regulation of the agency from which the information or assistance is requested, furnish to the Special Counsel such information or assistance. . 104. Removal or demotion of employees based on retaliation against whistleblowers (a) In general Subchapter II of chapter 75 of title 5, United States Code, is amended by adding at the end the following: 7515. Removal or demotion of employees based on retaliation against whistleblowers (a) Definition In this section, the term retaliation against a whistleblower means a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of section 2302(b). (b) Removal or demotion (1) In general The head of an agency may remove or demote an employee of the agency if the head of the agency determines that the employee retaliated against a whistleblower. (2) Imposition of action If the head of an agency removes or demotes an employee under this section, the head of the agency may— (A) remove the employee from the civil service; or (B) demote the employee by means of— (i) a reduction in grade for which the employee is qualified and that the head of the agency determines is appropriate; or (ii) a reduction in annual rate of pay that the head of the agency determines is appropriate. (c) Pay of certain demoted employees (1) In general Notwithstanding any other provision of law, any employee subject to a demotion under subsection (b)(2)(B)(i) shall, beginning on the date of the demotion, receive the annual rate of pay applicable to the applicable grade. (2) Appeal An employee demoted under subsection (b)(2)(B)(i) 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. (3) Failure to report An employee demoted under subsection (b)(2)(B)(i)— (A) may only receive pay if the employee reports for duty; and (B) if the employee does not report for duty, shall not receive pay or other benefits described in subsection (f)(5). (d) Notice to congress Not later than 30 days after removing or demoting an employee under subsection (b), the head of an agency shall submit to each committee of Congress with jurisdiction of the activities of the agency notice in writing of the removal or demotion and the reason for the removal or demotion. (e) Procedure (1) In general The procedures under section 7513(b) and chapter 43, shall not apply to a removal or demotion under this section. (2) Appeal (A) In general Subject to subparagraph (B) and subsection (f), any removal or demotion under subsection (b) may be appealed to the Merit Systems Protection Board under section 7701. (B) Time for making an appeal An appeal under subparagraph (A) of a removal or demotion may only be made if the appeal is made not later than 7 days after the date of the removal or demotion. (f) Expedited review by administrative law judge (1) In general Upon receipt of an appeal under subsection (e)(2)(A), the Merit Systems Protection Board shall refer the appeal to an administrative law judge under section 7701(b)(1), who shall expedite the appeal and issue a decision not later than 45 days after the date of the appeal. (2) Finality of decision Notwithstanding any other provision of law, including section 7703, the decision of an administrative law judge under paragraph (1) shall be final and shall not be subject to any further appeal. (3) Delay in decision If an administrative law judge cannot issue a decision before the end of the 45-day period described in paragraph (1)— (A) the removal or demotion is final; and (B) not later than 14 days after the end of the 45-day period, the Merit Systems Protection Board shall submit to each committee of Congress with jurisdiction of the activities of the applicable agency a report that explains the reasons why a decision was not issued during the period. (4) No stays The Merit Systems Protection Board or administrative law judge may not stay any removal or demotion under this section. (5) No pay or benefits during pending appeal During the period beginning on the date on which an employee appeals a removal from the civil service under subsection (e) and ending on the date that the administrative law judge issues a final decision on the appeal, the employee may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits. (6) Assistance by agency To the maximum extent practicable, the head of an agency 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. (g) Limitation on removal or demotion If an employee 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, the head of an agency may not remove or demote the employee under subsection (b) without the approval of the Special Counsel under section 1214(f). (h) Relation to other provisions of law (1) Additional authority The authority provided by this section is in addition to any authority provided under this chapter or chapter 43. (2) Not subject to other provisions The requirements under any other provision of this chapter shall not apply to any action under this section. . (b) Technical and conforming amendments (1) The table of sections for subchapter II of chapter 75 of title 5, United States Code, is amended by adding at the end the following: 7515. Removal or demotion of employees based on retaliation against whistleblowers. . (2) 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 7515. . 105. Suicide by executive branch employees (a) Referral The head of the Executive agency employing an executive branch employee who commits suicide shall refer the matter to the Inspector General of the Executive agency, or senior ethics official of the Executive agency for an Executive agency without an Inspector General, to determine whether the suicide of the executive branch employee was work-related. (b) Information to next of kin (1) In general Subject to paragraph (2), the head of the Executive agency employing an executive branch employee who commits suicide shall provide the personnel file of the Executive agency to the next of kin of the executive branch employee. (2) National security exception The head of an Executive agency may withhold information in a personnel file under paragraph (1) if the head determines the disclosure of the information would likely compromise national security. 106. Access to medical files (a) In general Except for an emergency situation, an executive branch employee may not access the medical record of another executive branch employee, unless the executive branch employee whose medical record will be accessed provides consent to the access. (b) Emergency situations The Director of the Office of Management and Budget shall promulgate regulations defining the term emergency situation for purposes of this section. 107. Training for supervisors The head of each Executive agency shall provide training regarding how to respond to complaints alleging a violation of whistleblower protections available to executive branch employee of the Executive agency to— (1) executive branch employees appointed to supervisory positions in the Executive agency who have not previously served as a supervisor; and (2) on an annual basis, to all executive branch employees of the Executive agency serving in a supervisory position. 108. Information on whistleblower protections (a) In general Chapter 23 of title 5, United States Code, is amended by adding at the end the following: 2307. Information on whistleblower protections (a) Definitions In this section— (1) the term new employee means an individual— (A) appointed to a position as an employee 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 (2) the term whistleblower protections means— (A) the protections against and remedies for a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of section 2302(b); and (B) similar protections for an employee under any other provision of law. (b) Information for new hires The head of each agency or other establishment in the Federal Government shall provide each new employee of the agency or establishment information regarding the whistleblower protections available to the new employee and the role of the Office of Special Counsel. (c) Information online The head of each agency or other establishment in the Federal Government shall make available information regarding whistleblower protections applicable to employees of the agency or other establishment on any online portal that is made available only to employees of the agency or other establishment. . (b) Technical and conforming amendment The table of sections for chapter 23 of title 5, United States Code, is amended by adding at the end the following: 2307. Information on whistleblower protections. . II Department of Veterans Affairs employees 201. Protecting medical privacy of employees of the Department of Veterans Affairs (a) In general Chapter 7 of title 38, United States Code, is amended by adding at the end the following new section: 714. Accessing of medical records of employees (a) Notice of access (1) Not later than five days after an employee of the Department accesses the medical record of another employee of the Department, the Secretary shall notify the such other employee of such access. (2) Notice under paragraph (1) shall include the following: (A) The name of the employee accessing the medical record. (B) The date and time the employee accessed the medical record. (C) The period during which the employee accessed the medical record. (D) A description of any modification of the medical record made by the employee. (b) Determination of prohibited access (1) If an employee of the Department receives notice under subsection (a) that a medical record of the employee was accessed by another employee of the Department and the employee believes that such access was conducted in violation of an applicable provision of Federal privacy law, the employee shall file a complaint with the Office of Accountability Review. (2) If the Office of Accountability Review receives a complaint from an employee with respect to a notice that the employee received under subsection (a) not more than 45 days after the notice was transmitted to the employee, the Office of Accountability Review shall, not later than 30 days after receiving such complaint— (A) determine whether the access identified in the notice was conducted in violation of an applicable provision of Federal privacy law; and (B) notify the employee of the determination. (c) Action in response to unauthorized access (1) If the Office of Accountability Review determines that an employee of the Department has accessed the medical record of another employee of the Department in violation of an applicable provision of Federal privacy law, the Secretary shall— (A) for the first such access, issue an order that, for the two-year period beginning on the date of the order, the employee is not eligible to receive any bonus or cash award from the Department, including— (i) an award under chapter 45 of title 5; (ii) an award under section 5384 of title 5; and (iii) a retention bonus under section 5754 of title 5; (B) for the second such access, suspend the employee for not less than 14 days; and (C) for the third such access, terminate the employee. (2) Any action under paragraph (1)— (A) shall be taken in accordance with chapter 75 of title 5; and (B) may be appealed to the Merit Systems Protection Board under section 7701 of title 5. (d) Applicable provision of Federal privacy law defined In this section, the term applicable provision of Federal privacy law includes the following: (1) The Federal regulations (concerning the privacy of individually identifiable health information) promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996. (2) Section 552a of title 5 (commonly known as the Privacy Act of 1974 ). . (b) Technical and conforming amendment The table of sections for chapter 7 of title 38, United States Code, is amended by adding at the end the following new item: 714. Accessing of medical records of employees. . 202. Mental health services for employees of the Department of Veterans Affairs (a) Outreach on availability of services The Secretary of Veterans Affairs shall conduct a program of outreach to employees of the Department of Veterans Affairs to inform them of the mental health services available to them. (b) Study on use of mental health professionals of the Department To provide services to employees (1) In general The Secretary of Veterans Affairs shall conduct a study to assess the feasibility of using mental health professionals who provide mental health services for the Department of Veterans Affairs to provide mental health services to employees of the Department. (2) Report Upon completion of the study required by paragraph (1), the Secretary shall submit to Congress a report on the findings of the Secretary with respect to the study. 203. Protocols to address threats against employees of the Department of Veterans Affairs The Secretary of Veterans Affairs shall develop protocols to address threats from individuals receiving health care from the Department of Veterans Affairs directed towards employees of the Department who are providing such health care. 204. Comptroller General of the United States study on accountability of chiefs of police of Department of Veterans Affairs medical centers The Comptroller General of the United States shall conduct a study to assess the reporting, accountability, and chain of command structure of the Department of Veterans Affairs police officers at medical centers of the Department.