VA Patient Protection Act of 2015
This bill establishes an additional method for filing whistle blower complaints in which a Department of Veterans Affairs (VA) employee may file such complaints with his or her immediate and next-level supervisors, and ultimately with the VA after having properly filed a complaint at each supervisory level.
If a supervisor makes a positive determination regarding such complaint the VA shall: (1) inform the employee of the ability to volunteer for a transfer, and (2) give preference to such transfer.
The VA may not exempt any employee from such whistle blower coverage.
The central whistle blower office shall be responsible for investigating all VA whistle blower complaints, regardless of whether such complaints are made by or against an employee who is not a Senior Executive Service member.
The VA shall carry out specified adverse actions against a supervisor who commits a prohibited personnel action relating to a whistle blower complaint.
A supervisor who commits a prohibited personnel action shall not be paid any award or bonus for a one-year period, and any award or bonus paid during that period shall be recouped.
VA employees shall receive annual whistle blower complaint training.
Congressional testimony by a VA employee in his or her official capacity shall be considered official duty, and the VA shall provide any such employee with travel expenses, including per diem in lieu of subsistence, during the period when the employee is so testifying.
[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2291 Introduced in Senate (IS)]
<DOC>
114th CONGRESS
1st Session
S. 2291
To amend title 38, United States Code, to establish procedures within
the Department of Veterans Affairs for the processing of whistleblower
complaints, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 17, 2015
Mr. Kirk (for himself, Mr. Blumenthal, Mr. Grassley, Mrs. Gillibrand,
Mr. Johnson, Ms. Baldwin, and Mr. Rubio) 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 establish procedures within
the Department of Veterans Affairs for the processing of whistleblower
complaints, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``VA Patient Protection Act of 2015''.
SEC. 2. TREATMENT OF WHISTLEBLOWER COMPLAINTS IN DEPARTMENT OF VETERANS
AFFAIRS.
(a) Procedure and Administration.--
(1) In general.--Chapter 7 of title 38, United States Code,
is amended by adding at the end the following new subchapter:
``SUBCHAPTER II--WHISTLEBLOWER COMPLAINTS
``Sec. 731. Whistleblower complaint defined
``In this subchapter, the term `whistleblower complaint' means a
complaint by an employee of the Department disclosing, or assisting
another employee to disclose, a potential violation of any law, rule,
or regulation, or gross mismanagement, gross waste of funds, abuse of
authority, or substantial and specific danger to public health and
safety.
``Sec. 732. Treatment of whistleblower complaints
``(a) Filing.--(1) In addition to any other method established by
law in which an employee may file a whistleblower complaint, an
employee of the Department may file a whistleblower complaint in
accordance with subsection (g) with a supervisor of the employee.
``(2) Except as provided by subsection (d)(1), in making a
whistleblower complaint under paragraph (1), an employee shall file the
initial complaint with the immediate supervisor of the employee.
``(b) Notification.--(1)(A) Not later than four business days after
the date on which a supervisor receives a whistleblower complaint by an
employee under this section, the supervisor shall notify, in writing,
the employee of whether the supervisor determines that there is a
reasonable likelihood that the complaint discloses a violation of any
law, rule, or regulation, or gross mismanagement, gross waste of funds,
abuse of authority, or substantial and specific danger to public health
and safety.
``(B) The supervisor shall retain written documentation regarding
the whistleblower complaint and shall submit to the next-level
supervisor and the central whistleblower office described in subsection
(h) a written report on the complaint.
``(2)(A) On a monthly basis, the supervisor shall submit to the
appropriate director or other official who is superior to the
supervisor a written report that includes the number of whistleblower
complaints received by the supervisor under this section during the
month covered by the report, the disposition of such complaints, and
any actions taken because of such complaints pursuant to subsection
(c).
``(B) In the case in which such a director or official carries out
this paragraph, the director or official shall submit such monthly
report to the supervisor of the director or official and to the central
whistleblower office described in subsection (h).
``(c) Positive Determination.--If a supervisor makes a positive
determination under subsection (b)(1) regarding a whistleblower
complaint of an employee, the supervisor shall include in the
notification to the employee under such subsection the specific actions
that the supervisor will take to address the complaint.
``(d) Filing Complaint With Next-Level Supervisors.--(1) If any
circumstance described in paragraph (3) is met, an employee may file a
whistleblower complaint in accordance with subsection (g) with the
next-level supervisor who shall treat such complaint in accordance with
this section.
``(2) An employee may file a whistleblower complaint with the
Secretary if the employee has filed the whistleblower complaint to each
level of supervisors between the employee and the Secretary in
accordance with paragraph (1).
``(3) A circumstance described in this paragraph is any of the
following circumstances:
``(A) A supervisor does not make a timely determination
under subsection (b)(1) regarding a whistleblower complaint.
``(B) The employee who made a whistleblower complaint
determines that the supervisor did not adequately address the
complaint pursuant to subsection (c).
``(C) The immediate supervisor of the employee is the basis
of the whistleblower complaint.
``(e) Transfer of Employee Who Files Whistleblower Complaint.--If a
supervisor makes a positive determination under subsection (b)(1)
regarding a whistleblower complaint filed by an employee, the Secretary
shall--
``(1) inform the employee of the ability to volunteer for a
transfer in accordance with section 3352 of title 5; and
``(2) give preference to the employee for such a transfer
in accordance with such section.
``(f) Prohibition on Exemption.--The Secretary may not exempt any
employee of the Department from being covered by this section.
``(g) Whistleblower Complaint Form.--(1) A whistleblower complaint
filed by an employee under subsection (a) or (d) shall consist of the
form described in paragraph (2) and any supporting materials or
documentation the employee determines necessary.
``(2) The form described in this paragraph is a form developed by
the Secretary, in consultation with the Special Counsel, that includes
the following:
``(A) An explanation of the purpose of the whistleblower
complaint form.
``(B) Instructions for filing a whistleblower complaint as
described in this section.
``(C) An explanation that filing a whistleblower complaint
under this section does not preclude the employee from any
other method established by law in which an employee may file a
whistleblower complaint.
``(D) A statement directing the employee to information
accessible on the Internet website of the Department as
described in section 735(d).
``(E) Fields for the employee to provide--
``(i) the date that the form is submitted;
``(ii) the name of the employee;
``(iii) the contact information of the employee;
``(iv) a summary of the whistleblower complaint
(including the option to append supporting documents
pursuant to paragraph (1)); and
``(v) proposed solutions to the complaint.
``(F) Any other information or fields that the Secretary
determines appropriate.
``(3) The Secretary, in consultation with the Special Counsel,
shall develop the form described in paragraph (2) by not later than 60
days after the date of the enactment of this section.
``(h) Central Whistleblower Office.--(1) The Secretary shall ensure
that the central whistleblower office--
``(A) is not an element of the Office of the General
Counsel;
``(B) is not headed by an official who reports to the
General Counsel;
``(C) does not provide, or receive from, the General
Counsel any information regarding a whistleblower complaint
except pursuant to an action regarding the complaint before an
administrative body or court; and
``(D) does not provide advice to the General Counsel.
``(2) The central whistleblower office shall be responsible for
investigating all whistleblower complaints of the Department,
regardless of whether such complaints are made by or against an
employee who is not a member of the Senior Executive Service.
``(3) The Secretary shall ensure that the central whistleblower
office maintains a toll-free hotline to anonymously receive
whistleblower complaints.
``(4) The Secretary shall ensure that the central whistleblower
office has such staff and resources as the Secretary considers
necessary to carry out the functions of the central whistleblower
office.
``(5) In this subsection, the term `central whistleblower office'
means the Office of Accountability Review or a successor office that is
established or designated by the Secretary to investigate whistleblower
complaints filed under this section or any other method established by
law.
``Sec. 733. Adverse actions against supervisory employees who commit
prohibited personnel actions relating to whistleblower
complaints
``(a) In General.--(1) In accordance with paragraph (2), the
Secretary shall carry out the following adverse actions against
supervisory employees (as defined in section 7103(a) of title 5) whom
the Secretary, an administrative judge, the Merit Systems Protection
Board, the Office of Special Counsel, an adjudicating body provided
under a union contract, a Federal judge, or the Inspector General of
the Department determines committed a prohibited personnel action
described in subsection (c):
``(A) With respect to the first offense, an adverse action
that is not less than a 12-day suspension and not more than
removal.
``(B) With respect to the second offense, removal.
``(2)(A) An employee against whom an adverse action under paragraph
(1) is proposed is entitled to written notice.
``(B)(i) An employee who is notified under subparagraph (A) of
being the subject of a proposed adverse action under paragraph (1) is
entitled to 14 days following such notification to answer and furnish
evidence in support of the answer.
``(ii) If the employee does not furnish any such evidence as
described in clause (i) or if the Secretary determines that such
evidence is not sufficient to reverse the determination to propose the
adverse action, the Secretary shall carry out the adverse action
following such 14-day period.
``(C) Paragraphs (1) and (2) of subsection (b) of section 7513 of
title 5, subsection (c) of such section, paragraphs (1) and (2) of
subsection (b) of section 7543 of such title, and subsection (c) of
such section shall not apply with respect to an adverse action carried
out under paragraph (1).
``(b) Limitation on Other Adverse Actions.--With respect to a
prohibited personnel action described in subsection (c), if the
Secretary carries out an adverse action against a supervisory employee,
the Secretary may carry out an additional adverse action under this
section based on the same prohibited personnel action if the total
severity of the adverse actions do not exceed the level specified in
subsection (a).
``(c) Prohibited Personnel Action Described.--A prohibited
personnel action described in this subsection is any of the following
actions:
``(1) Taking or failing to take a personnel action in
violation of section 2302 of title 5 against an employee
relating to the employee--
``(A) filing a whistleblower complaint in
accordance with section 732 of this title;
``(B) filing a whistleblower complaint with the
Inspector General of the Department, the Special
Counsel, or Congress;
``(C) providing information or participating as a
witness in an investigation of a whistleblower
complaint in accordance with section 732 or with the
Inspector General of the Department, the Special
Counsel, or Congress;
``(D) participating in an audit or investigation by
the Comptroller General of the United States;
``(E) refusing to perform an action that is
unlawful or prohibited by the Department; or
``(F) engaging in communications that are related
to the duties of the position or are otherwise
protected.
``(2) Preventing or restricting an employee from making an
action described in any of subparagraphs (A) through (F) of
paragraph (1).
``(3) Conducting a negative peer review or opening a
retaliatory investigation because of an activity of an employee
that is protected by section 2302 of title 5.
``(4) Requesting a contractor to carry out an action that
is prohibited by section 4705(b) or section 4712(a)(1) of title
41, as the case may be.
``Sec. 734. Evaluation criteria of supervisors and treatment of bonuses
``(a) Evaluation Criteria.--(1) In evaluating the performance of
supervisors of the Department, the Secretary shall include the criteria
described in paragraph (2).
``(2) The criteria described in this subsection are the following:
``(A) Whether the supervisor treats whistleblower
complaints in accordance with section 732 of this title.
``(B) Whether the appropriate deciding official,
performance review board, or performance review committee
determines that the supervisor was found to have committed a
prohibited personnel action described in section 733(b) of this
title by an administrative judge, the Merit Systems Protection
Board, the Office of Special Counsel, an adjudicating body
provided under a union contract, a Federal judge, or, in the
case of a settlement of a whistleblower complaint (regardless
of whether any fault was assigned under such settlement), the
Secretary.
``(b) Bonuses.--(1) The Secretary may not pay to a supervisor
described in subsection (a)(2)(B) an award or bonus under this title or
title 5, including under chapter 45 or 53 of such title, during the
one-year period beginning on the date on which the determination was
made under such subsection.
``(2) Notwithstanding any other provision of law, the Secretary
shall issue an order directing a supervisor described in subsection
(a)(2)(B) to repay the amount of any award or bonus paid under this
title or title 5, including under chapter 45 or 53 of such title, if--
``(A) such award or bonus was paid for performance during a
period in which the supervisor committed a prohibited personnel
action as determined pursuant to such subsection (a)(2)(B);
``(B) the Secretary determines such repayment appropriate
pursuant to regulations prescribed by the Secretary to carry
out this section; and
``(C) the supervisor is afforded notice and an opportunity
for a hearing before making such repayment.
``Sec. 735. Training regarding whistleblower complaints
``(a) Training.--Not less frequently than once each year, the
Secretary, in coordination with the Whistleblower Protection Ombudsman
designated under section 3(d)(1)(C) of the Inspector General Act of
1978 (5 U.S.C. App.), shall provide to each employee of the Department
training regarding whistleblower complaints, including--
``(1) an explanation of each method established by law in
which an employee may file a whistleblower complaint;
``(2) an explanation of prohibited personnel actions
described by section 733(c) of this title;
``(3) with respect to supervisors, how to treat
whistleblower complaints in accordance with section 732 of this
title;
``(4) the right of the employee to petition Congress
regarding a whistleblower complaint in accordance with section
7211 of title 5;
``(5) an explanation that the employee may not be
prosecuted or reprised against for disclosing information to
Congress, the Inspector General, or another investigatory
agency in instances where such disclosure is permitted by law,
including under sections 5701, 5705, and 7732 of this title,
under section 552a of title 5 (commonly referred to as the
Privacy Act), under chapter 93 of title 18, and pursuant to
regulations promulgated under section 264(c) of the Health
Insurance Portability and Accountability Act of 1996 (Public
Law 104-191);
``(6) an explanation of the language that is required to be
included in all nondisclosure policies, forms, and agreements
pursuant to section 115(a)(1) of the Whistleblower Protection
Enhancement Act of 2012 (5 U.S.C. 2302 note); and
``(7) the right of contractors to be protected from
reprisal for the disclosure of certain information under
section 4705 or 4712 of title 41.
``(b) Manner Training Is Provided.--The Secretary shall ensure that
training provided under subsection (a) is provided in person.
``(c) Certification.--Not less frequently than once each year, the
Secretary shall provide training on merit system protection in a manner
that the Special Counsel certifies as being satisfactory.
``(d) Publication.--(1) The Secretary shall publish on the Internet
website of the Department, and display prominently at each facility of
the Department, the rights of an employee to file a whistleblower
complaint, including the information described in paragraphs (1)
through (7) of subsection (a).
``(2) The Secretary shall publish on the Internet website of the
Department, the whistleblower complaint form described in section
732(g)(2).
``Sec. 736. Reports to Congress
``(a) Annual Reports.--Not less frequently than once each year, the
Secretary shall submit to the appropriate committees of Congress a
report that includes--
``(1) with respect to whistleblower complaints filed under
section 732 of this title during the year covered by the
report--
``(A) the number of such complaints filed;
``(B) the disposition of such complaints; and
``(C) the ways in which the Secretary addressed
such complaints in which a positive determination was
made by a supervisor under subsection (b)(1) of such
section;
``(2) the number of whistleblower complaints filed during
the year covered by the report that are not included under
paragraph (1), including--
``(A) the method in which such complaints were
filed;
``(B) the disposition of such complaints; and
``(C) the ways in which the Secretary addressed
such complaints; and
``(3) with respect to disclosures made by a contractor
under section 4705 or 4712 of title 41--
``(A) the number of complaints relating to such
disclosures that were investigated by the Inspector
General of the Department of Veterans Affairs during
the year covered by the report;
``(B) the disposition of such complaints; and
``(C) the ways in which the Secretary addressed
such complaints.
``(b) Notice of Office of Special Counsel Determinations.--Not
later than 30 days after the date on which the Secretary receives from
the Special Counsel information relating to a whistleblower complaint
pursuant to section 1213 of title 5, the Secretary shall notify the
appropriate committees of Congress of such information, including the
determination made by the Special Counsel.
``(c) Appropriate Committees of Congress.--In this section, the
term `appropriate committees of Congress' means--
``(1) the Committee on Veterans' Affairs and the Committee
on Homeland Security and Governmental Affairs of the Senate;
and
``(2) the Committee on Veterans' Affairs and the Committee
on Oversight and Government Reform of the House of
Representatives.''.
(2) Conforming and clerical amendments.--
(A) Conforming amendment.--Such chapter is further
amended by inserting before section 701 the following:
``SUBCHAPTER I--GENERAL EMPLOYEE MATTERS''.
(B) Clerical amendments.--The table of sections at
the beginning of such chapter is amended--
(i) by inserting before the item relating
to section 701 the following new item:
``subchapter i--general employee matters'';
and
(ii) by adding at the end the following new
items:
``subchapter ii--whistleblower complaints
``731. Whistleblower complaint defined.
``732. Treatment of whistleblower complaints.
``733. Adverse actions against supervisory employees who commit
prohibited personnel actions relating to
whistleblower complaints.
``734. Evaluation criteria of supervisors and treatment of bonuses.
``735. Training regarding whistleblower complaints.
``736. Reports to Congress.''.
(b) 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''.
SEC. 3. REQUIREMENT THAT THE INSPECTOR GENERAL OF THE DEPARTMENT OF
VETERANS AFFAIRS SUBMIT AND MAKE AVAILABLE TO THE PUBLIC
CERTAIN WORK PRODUCTS.
Section 312 of title 38, United States Code, is amended by adding
at the end the following new subsection:
``(c)(1) Whenever the Inspector General, in carrying out the duties
and responsibilities established under the Inspector General Act of
1978 (5 U.S.C. App.), issues a work product that makes a recommendation
or otherwise suggests corrective action, the Inspector General shall--
``(A) submit the work product to--
``(i) the Secretary;
``(ii) the Committee on Veterans' Affairs, the
Committee on Homeland Security and Governmental
Affairs, and the Committee on Appropriations of the
Senate;
``(iii) the Committee on Veterans' Affairs, the
Committee on Oversight and Government Reform, and the
Committee on Appropriations of the House of
Representatives;
``(iv) if the work product was initiated upon
request by an individual or entity other than the
Inspector General, that individual or entity; and
``(v) any Member of Congress upon request; and
``(B) not later than 3 days after the work product is
submitted in final form to the Secretary, post the work product
on the Internet website of the Inspector General.
``(2) Nothing in this subsection shall be construed to authorize
the public disclosure of information that is specifically prohibited
from disclosure by any other provision of law.''.
SEC. 4. TREATMENT OF CONGRESSIONAL TESTIMONY BY DEPARTMENT OF VETERANS
AFFAIRS EMPLOYEES AS OFFICIAL DUTY.
(a) In General.--Subchapter I of chapter 7 of title 38, United
States Code, as designated by section 2(a)(2)(A), is amended by adding
at the end the following new section:
``Sec. 715. Congressional testimony by employees: treatment as official
duty
``(a) Congressional Testimony.--An employee of the Department is
performing official duty during the period with respect to which the
employee is testifying in an official capacity in front of either
chamber of Congress, a committee of either chamber of Congress, or a
joint or select committee of Congress.
``(b) Travel Expenses.--The Secretary shall provide travel
expenses, including per diem in lieu of subsistence, in accordance with
applicable provisions under subchapter I of chapter 57 of title 5, to
any employee of the Department of Veterans Affairs performing official
duty described under subsection (a).''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter, as amended by section 2(a)(2)(B), is further amended by
inserting after the item relating to section 713 the following new
item:
``715. Congressional testimony by employees: treatment as official
duty.''.
<all>
Introduced in Senate
Read twice and referred to the Committee on Veterans' Affairs.
Committee on Veterans' Affairs. Hearings held. Hearings printed: S.Hrg. 114-252.
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