Senior executives at the Department of Veterans Affairs overseeing health care programs could appeal disciplinary actions against them only through internal department channels, under a formal proposal the department has sent to Congress.
While other VA executives still could bring appeals to the Merit Systems Protection Board, that adjudicatory agency would have to give more deference to the department’s decisions, under the proposal.
The proposed bill, first reported by the Government Executive site, is the latest in a series arising from the scandal over appointment scheduling and patient care at VA—and is less sweeping than an earlier “discussion draft” from the department.
A law enacted two years ago in the immediate wake of those disclosures limited the appeal rights for VA’s Senior Executive Service members, the layer between political appointees and mid-level managers. Compared with federal employees in general, they have a shorter notice period and less time to file an appeal. Also, the discipline stands if the hearing officer does not issue a decision overturning it within 21 days, and there is no right of further appeal to the three-member merit board and then into federal court.
Despite those limits, the MSPB—which functions like an internal government court system—recently overturned the department in three highly publicized cases, one a proposed firing and two proposed demotions.
In reaching those decisions, the MSPB applied its general principles for judging whether disciplinary actions are reasonable in light of the circumstances, and noted that the 2014 law barred it from imposing a lesser penalty for VA executives as it can for other employees–leaving an all or nothing choice.
In a cover letter accompanying the latest proposal, the VA Secretary Robert McDonald did not specifically refer to those cases but said the department’s effort to improve service to veterans “is dependent upon the career VA leaders who provide executive level leadership for VA’s health care facilities and programs.
“The VA Secretary needs greater flexibility than current authorities afford him in terms of recruiting, compensating, appraising, and — where necessary – disciplining career health care executives to ensure that VA can operate as a values-based high performance organization rather than a compliance-focused underperforming bureaucracy,” he wrote.
Under the proposal, senior executives responsible for health-care programs—the majority of the roughly 360 senior executives at the department–would be put under a separate body of personnel laws called Title 38 that applies to VA physicians, dentists and other medical professionals. That would allow the department to pay salaries above the SES pay cap, currently $185,100, but also allow appeals of discipline only to internal agency review boards.
The earlier discussion draft would have applied those changes to all VA senior executives.
Meanwhile, other VA executives could continue to appeal to the MSPB but those appeals would be heard directly by the three-member merit board, rather than by a hearing officer. The board would have to issue a decision within 30 days and would have to “defer to agency actions that are supported by substantial evidence, lawful, and within the tolerable bounds of reasonableness,” according to a summary of the impact.
“Substantial evidence” in turn would be defined as what “a reasonable person might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” The measure also would allow the MSPB to reduce the penalty imposed by the department in certain circumstances.
Jason Briefel, acting president of the Senior Executives Association, said that the association is studying the bill. Compared to the earlier draft, “it is certainly an improvement, but we still have concerns,” he said.
However, Rep. Jeff Miller (R-Fla.), chair of the House Veterans’ Affairs Committee, criticized the proposal for not going far enough. It “enables VA leaders to say they are doing something about the department’s accountability crisis, but it ignores the root of the problem: VA’s inability to effectively, swiftly and fairly discipline all VA employees,” he said in a statement.
The proposal would apply to only about 1 percent of the department’s workforce and “would actually turn what is now a roughly month-long disciplinary process for VA health care senior executives into a process that could take up to 700 days,” he said.
The proposal comes as Congress is working to revamp and update the 2014 law, which addressed numerous issues beyond executive appeals rights.
Changes to legal rights for senior executives could set precedent for similar changes for those VA employees who are not already under Title 38. The House last year passed with bipartisan support a bill to extend many of the 2014 law’s provisions to them, although with longer time limits. The full Senate has not acted on a counterpart bill that passed its veterans committee, however.
The main sponsors, Miller and Sen. Marco Rubio (R-Fla.), last week urged the Senate panel to include those provisions in any larger bill it produces. In a letter, they said that “any piece of comprehensive veterans’ legislation that doesn’t provide the VA Secretary swift and comprehensive disciplinary authority for all VA employees misses the true mark on what ails the Department.”