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Legislation Would Give VA Health Care Workers MSPB Appeal Rights If They’re Fired

Lawmakers consider tweaking language to make sure 190,000 employees don’t receive an additional venue for appealing personnel decisions.

This story has been updated.

Legislation that would make it easier to demote or fire employees at the Veterans Affairs Department also would give thousands of workers new appeal rights to challenge those personnel decisions.

Some VA health care professionals, including physicians and registered nurses, would be able to appeal all adverse personnel actions against them to the Merit Systems Protection Board under legislation circulating on Capitol Hill that aims to more quickly get rid of employees engaged in misconduct or poor performance at the department.

Right now, those employees – covered by Title 38 of the U.S. Code – do not have the right to appeal adverse actions against them stemming from professional misconduct or incompetence to the MSPB, the independent agency that adjudicates appeals of “adverse personnel actions” from federal employees who’ve been fired, suspended, furloughed, demoted or had their pay cut. Those health care workers, however, currently can appeal such decisions to an internal VA disciplinary appeals board, and after that, to U.S. federal court.

There are roughly 190,000 health care workers at VA who fall under Title 38, which governs veterans’ benefits. The American Federation of Government Employees estimated that between 60,000 and 70,000 of those employees are considered “pure” Title 38, meaning they do not have the same standard MSPB appeal rights that Title 5 employees have. Hybrid Title 38 employees, including social workers, pharmacists and psychologists at the Veterans Health Administration, have the same rights to appeal adverse actions to MSPB as Title 5 employees have. The separate title and the two tracks within it emerged as a way to help the VA secretary fill certain jobs faster through the federal hiring process.

Republicans on the House Veterans’ Affairs Committee said legislation (H.R. 1994) the House passed in July does not create an additional layer of appeal rights for health care workers, but rather provides another disciplinary tool for the secretary. In other words, VA health care professionals as defined as pure Title 38 who were fired or demoted could pursue one or the other appeal track -- either through the internal department board or MSPB -- but not both, if H.R. 1994 is enacted, the committee said.

Still, the committee acknowledged that the “language could be misconstrued in some cases” potentially creating a duplicative appeals process. The panel is “considering a simple, conforming change to rectify this before enactment,” the committee said in a statement. Such an interpretation, which committee staff said would go against the bill’s clear intent, could arguably undermine the purpose of the effort to eliminate some of the red tape involved in the federal firing process at VA. (What some might view as red tape, others would call due process.)

H.R. 1994, which the House passed at the end of July, expands to the entire VA workforce the authority of the 2014 Veterans Access, Choice and Accountability Act, which made it easier to get rid of senior executives engaged in wrongdoing at the department. Under H.R. 1994, the employee could file an appeal to the MSPB within seven days of his or her removal. MSPB administrative judges would have to rule within 45 days of the appeal filing; otherwise, the department’s decision would stand. It’s a shorter version of the current due process procedure.

S. 1082, which the Senate Veterans’ Affairs Committee approved in July, is the companion bill to H.R. 1994.

“It is crucial that the Senate take up this measure right away to give the secretary the tools he needs to bring accountability to the Department of Veterans Affairs,” the House VA Committee said. “It seems that every week another headline or report comes out to highlight the fact that VA’s lack of accountability and retaliation against whistleblowers continues to erode the department’s ability to care for America’s veterans.”

President Obama has threatened to veto H.R. 1994 if it makes it through both chambers of Congress.

Another bill circulating, S. 1117, is narrower than S. 1082 and H.R. 1994, and would give the VA secretary more authority a la the 2014 Accountability Act to punish and fire department health care professionals for poor performance or misconduct. S. 1082, however, basically absorbs S. 1117, and the latter’s provisions were rolled into S.1082 during a July markup.

MSPB Chairman Susan Tsui Grundmann said the legislation, if enacted, “could have a drastic impact on MSPB’s operations,” partly because all three bills would extend some MSPB appeal rights to thousands of health care employees who don’t currently have them. The 45-day turnaround for judges would affect all other MSPB cases as well, Grundmann said. The MSPB’s time frame for issuing a final decision under S. 1117 would shrink to 21 days.

“Given that the legislation provides that the [VA] secretary's decision becomes final if MSPB does not issue a decision within 45 days, the agency would have no choice but to prioritize those appeals at the expense of other appeals filed by federal employees, including veterans and whistleblowers,” the MSPB chairman said in a statement to Government Executive. “If even a small fraction of the employees covered by the legislation are subjected to an adverse personnel action and appeal to MSPB, it would result in large increase to our already record high caseload as a result of the more than 32,000 furlough appeals filed by federal employees during fiscal year 2013.”

The furlough appeals Grundmann referred to were filed by federal employees whose agencies furloughed them because of sequestration in 2013. Those cases significantly increased the small agency’s workload.

Grundmann testified in June before the Senate VA Committee about S. 1082 and S. 1117, and the new adverse personnel appeals process for VA senior executives as mandated in the 2014 law.

“In our limited experience adjudicating appeals filed under Section 707 of the 2014 Act, MSPB has observed that these appeals tend to be high profile in nature, involve complicated issues, and generally include a variety of disciplinary charges by the federal agency and defenses by the employee,” Grundmann said. “An MSPB administrative judge could be required to address numerous discovery issues, hold a hearing, and issue a written decision, all within 21 days.”

Republican Sen. Marco Rubio of Florida is sponsoring S. 1082, and Ron Johnson, R-Wis., is behind S. 1117. Their offices did not respond to requests for comment on appeal rights for health care workers in the bills.

Correction: An earlier version of this story incorrectly stated that 190,000 Title 38 VA health care workers do not have the right to appeal adverse actions, such as firing, to the Merit Systems Protection Board. Some of those employees are considered “hybrids” under Title 38, and do have the same rights to appeal such decisions to MSPB as Title 5 employees.

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