VA Accountability First and Appeals Modernization Act of 2017
This bill authorizes the Department of Veterans Affairs (VA) to remove or demote a VA employee based on performance or misconduct. The VA may remove such individual from the civil service or demote the individual through a reduction in grade or annual pay rate.
A demoted individual shall not be placed on administrative leave or any other category of paid leave during the appeals period and can receive pay only if he or she reports for duty.
The bill: (1) establishes an expedited appeals process by the Merit Systems Protection Board, (2) amends the disability benefits appeals process, (3) prescribes restrictions on the VA's authority to remove or demote an employee, and (4) establishes whistleblower protections.
The VA shall reduce the federal annuity of an individual removed from the VA Senior Executive Service (SES) who is convicted of a felony that influenced his or her performance while employed in such position.
The VA may reduce the federal annuity of an individual who was convicted of such a felony and was subject to removal or transfer from the SES but who left the VA before final action was taken.
The VA may recoup an award, a bonus, or relocation expenses paid to a VA employee under specified circumstances.
The VA may suspend, reprimand or admonish an SES employee for misconduct or performance that does not merit removal. Appeals may be made to the Senior Executive Disciplinary Appeals Board (as provided for by this bill).
The bill amends the disability benefits appeals process.
The bill prohibits payment of an award or bonus to any SES employee during each of FY2017-FY2021.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 611 Introduced in House (IH)]
<DOC>
115th CONGRESS
1st Session
H. R. 611
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 23, 2017
Mr. Lamborn introduced the following bill; which was referred to the
Committee on Veterans' Affairs, and in addition to the Committee on
Oversight and Government Reform, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``VA Accountability
First and Appeals Modernization Act of 2017''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. References to title 38, United States Code.
Sec. 3. Removal or demotion of employees based on performance or
misconduct.
Sec. 4. Reduction of benefits for members of the Senior Executive
Service within the Department of Veterans
Affairs convicted of certain crimes.
Sec. 5. Authority to recoup bonuses or awards paid to employees of
Department of Veterans Affairs.
Sec. 6. Authority to recoup relocation expenses paid to or on behalf of
employees of Department of Veterans
Affairs.
Sec. 7. Expansion of personnel actions for senior executives based on
performance or misconduct and establishment
of Senior Executive Disciplinary Appeals
Board.
Sec. 8. Reform of rights and processes relating to appeals of decisions
regarding claims for benefits under laws
administered by Secretary of Veterans
Affairs.
Sec. 9. Limitation on awards and bonuses paid to senior executive
employees of Department of Veterans
Affairs.
SEC. 2. REFERENCES TO TITLE 38, UNITED STATES CODE.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to a section or other provision of title 38, United States
Code.
SEC. 3. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON PERFORMANCE OR
MISCONDUCT.
(a) In General.--Chapter 7 is amended--
(1) by redesignating section 715 as section 725; and
(2) by inserting after section 713 the following new
section 715:
``Sec. 715. Employees: removal or demotion based on performance or
misconduct
``(a) In General.--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. If the Secretary so removes or demotes such an individual,
the Secretary may--
``(1) remove the individual from the civil service (as
defined in section 2101 of title 5); or
``(2) demote the individual by means of--
``(A) a reduction in grade for which the individual
is qualified and that the Secretary determines is
appropriate; or
``(B) a reduction in annual rate of pay that the
Secretary determines is appropriate.
``(b) Pay of Certain Demoted Individuals.--(1) Notwithstanding any
other provision of law, any individual subject to a demotion by a
reduction in grade under subsection (a)(2)(A) shall, beginning on the
date of such demotion, receive the annual rate of pay applicable to
such grade.
``(2) An individual demoted as described in paragraph (1) 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 any pay, awards, bonuses, incentives, allowances,
differentials, student loan repayments, special payments, or benefits
from the Department.
``(c) Notice to Congress.--Not later than 30 days after removing or
demoting an individual under subsection (a), the Secretary shall submit
to the Committee on Veterans' Affairs of the Senate and the Committee
on Veterans' Affairs of the House of Representatives notice in writing
of such removal or demotion and the reason for such removal or
demotion.
``(d) Procedure.--(1) Subsection (b) of section 7513 of title 5
shall apply with respect to a removal or demotion under this section,
except that the period for notice and response, which includes the
advance notice period required by paragraph (1) of such subsection and
the response period required by paragraph (2) of such subsection, shall
not exceed a total of ten calendar days.
``(2) The procedures under chapter 43 of title 5 shall not apply to
a removal or demotion under this section.
``(3)(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 Merit Systems Protection Board.--(1) Upon
receipt of an appeal under subsection (d)(3)(A), the Merit Systems
Protection Board shall expedite any such appeal under such section and,
in any such case, shall issue a decision not later than 60 days after
the date of the appeal.
``(2) Notwithstanding section 7701(c)(1)(B) of title 5, the Merit
Systems Protection Board shall uphold the decision of the Secretary to
remove or demote an employee under subsection (a) if the decision is
supported by substantial evidence.
``(3) The decision of the Merit Systems Protection Board under
paragraph (1), and any final removal or demotion described in paragraph
(4), may be appealed to the United States Court of Appeals for the
Federal Circuit pursuant to section 7703 of title 5. Any decision by
such Court shall be in compliance with section 7462(f)(2) of this
title.
``(4) In any case in which the Merit Systems Protection Board
cannot issue a decision in accordance with the 60-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
Committee on Veterans' Affairs of the Senate and the Committee on
Veterans' Affairs of the House of Representatives a report that
explains the reasons why a decision was not issued in accordance with
such requirement.
``(5) The Merit Systems Protection Board may not stay any removal
or demotion under this section.
``(6) 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 Merit Systems Protection Board
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 from the
Department.
``(7) To the maximum extent practicable, the Secretary shall
provide to the Merit Systems Protection Board 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) In the case of an individual who has filed a whistleblower
complaint, as such term is defined in section 731 of this title, the
Secretary may not remove or demote such individual under subsection (a)
until a final decision with respect to the whistleblower complaint has
been made.
``(g) Termination of Investigations by Office of Special Counsel.--
Notwithstanding any other provision of law, the Special Counsel
(established by section 1211 of title 5) may terminate an investigation
of a prohibited personnel practice alleged by an employee or former
employee of the Department after the Special Counsel provides to the
employee or former employee a written statement of the reasons for the
termination of the investigation. Such statement may not be admissible
as evidence in any judicial or administrative proceeding without the
consent of such employee or former employee.
``(h) Relation to Other Authorities.--The authority provided by
this section is in addition to the authority provided by subchapter V
of chapter 74 of this title, subchapter II of chapter 75 of title 5,
chapter 43 of such title, and any other authority with respect to
disciplining an individual.
``(i) Definitions.--In this section:
``(1) The term `individual' means an individual occupying a
position at the Department but does not include--
``(A) an individual, as that term is defined in
section 713(g); or
``(B) a political appointee.
``(2) The term `grade' has the meaning given that 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 (or any successor regulation).''.
(b) Clerical and Conforming Amendments.--
(1) Clerical.--The table of sections at the beginning of
chapter 7 is amended--
(A) by striking the item relating to section 715
and inserting the following new item:
``715. Employees: removal or demotion based on performance or
misconduct.'';
and
(B) by inserting after the item relating to section
715 the following new item:
``725. Congressional testimony by employees: treatment as official
duty.''.
(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 715 of title
38.''.
SEC. 4. REDUCTION OF BENEFITS FOR MEMBERS OF THE SENIOR EXECUTIVE
SERVICE WITHIN THE DEPARTMENT OF VETERANS AFFAIRS
CONVICTED OF CERTAIN CRIMES.
(a) Reduction of Benefits.--
(1) In general.--Chapter 7 is further amended by inserting
after section 715, as added by section 3, the following new
section:
``Sec. 717. Senior executives: reduction of benefits of individuals
convicted of certain crimes
``(a) Reduction of Annuity for Removed Employee.--(1) The Secretary
shall order that the covered service of an individual removed from a
senior executive position for performance or misconduct under section
713 of this title, chapter 43 or subchapter V of chapter 75 of title 5,
or any other provision of law shall not be taken into account for
purposes of calculating an annuity with respect to such individual
under chapter 83 or chapter 84 of title 5, if--
``(A) the individual is convicted of a felony that
influenced the individual's performance while employed in the
senior executive position; and
``(B) before such order is made, the individual is
afforded--
``(i) notice of the order and an opportunity to
respond to the order; and
``(ii) consistent with paragraph (2), an
opportunity to appeal the order to another department
or agency of the Federal Government.
``(2) If a final decision on an appeal made under paragraph
(1)(B)(ii) is not made by the applicable department or agency of the
Federal Government within 30 days after receiving such appeal, the
order of the Secretary under paragraph (1) shall be final and not
subject to further appeal.
``(b) Reduction of Annuity for Retired Employee.--(1) The Secretary
may order that the covered service of an individual who is subject to a
removal or transfer action for performance or misconduct under section
713 of this title, chapter 43 or subchapter V of chapter 75 of title 5,
or any other provision of law but who leaves employment at the
Department prior to the issuance of a final decision with respect to
such action shall not be taken into account for purposes of calculating
an annuity with respect to such individual under chapter 83 or chapter
84 of title 5, if--
``(A) the individual is convicted of a felony that
influenced the individual's performance while employed in the
senior executive position; and
``(B) before such order is made, the individual is
afforded--
``(i) notice of the order and an opportunity to
respond to the order; and
``(ii) an opportunity for a hearing conducted by
another department or agency of the Federal Government.
``(2) The Secretary shall make such an order not later than seven
days after the date of the conclusion of a hearing described in
paragraph (1)(B) that determines that such order is lawful.
``(c) Administrative Requirements.--(1) Not later than 30 days
after the Secretary issues an order under subsection (a) or (b), the
Director of the Office of Personnel Management shall recalculate the
annuity of the individual.
``(2) A decision regarding whether the covered service of an
individual shall be taken into account for purposes of calculating an
annuity under subsection (a) or (b) is final and may not be reviewed by
any department or agency or any court.
``(d) Lump-Sum Annuity Credit.--Any individual with respect to whom
an annuity is reduced under subsection (a) or (b) shall be entitled to
be paid so much of such individual's lump-sum credit as is attributable
to the period of covered service.
``(e) Spouse or Children Exception.--The Secretary, in consultation
with the Director of the Office of Personnel Management, shall
prescribe regulations that may provide for the payment to the spouse or
children of any individual referred to in subsection (a) or (b) of any
amounts that (but for this subsection) would otherwise have been
nonpayable by reason of subsection (a) or (b). Any such regulations
shall be consistent with the requirements of sections 8332(o)(5) and
8411(l)(5) of title 5, as the case may be.
``(f) Definitions.--In this section:
``(1) The term `covered service' means, with respect to an
individual subject to a removal or transfer for performance or
misconduct under section 713 of this title, chapter 43 or
subchapter V of chapter 75 of title 5, or any other provision
of law, the period of service beginning on the date that the
Secretary determines under such applicable provision that the
individual engaged in activity that gave rise to such action
and ending on the date that the individual is removed or
transferred from the senior executive position or leaves
employment at the Department prior to the issuance of a final
decision with respect to such action, as the case may be.
``(2) The term `lump-sum credit' has the meaning given such
term in section 8331(8) or section 8401(19) of title 5, as the
case may be.
``(3) The term `senior executive position' has the meaning
given such term in section 713(g)(3) of this title.
``(4) The term `service' has the meaning given such term in
section 8331(12) or section 8401(26) of title 5, as the case
may be.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 7 is further amended by inserting after
the item relating to section 715, as added by section 3, the
following new item:
``717. Senior executives: reduction of benefits of individuals
convicted of certain crimes.''.
(b) Application.--Section 717 of title 38, United States Code, as
added by subsection (a)(1), shall apply to any action of removal or
transfer under section 713 of title 38, United States Code, commencing
on or after the date of the enactment of this Act.
SEC. 5. AUTHORITY TO RECOUP BONUSES OR AWARDS PAID TO EMPLOYEES OF
DEPARTMENT OF VETERANS AFFAIRS.
(a) In General.--Chapter 7 is further amended by inserting after
section 717, as added by section 4, the following new section:
``Sec. 719. Recoupment of bonuses or awards paid to employees of
Department
``(a) Recoupment.--Notwithstanding any other provision of law, the
Secretary may issue an order directing an employee of the Department to
repay the amount, or a portion of the amount, of any award or bonus
paid to the employee under title 5, including under chapter 45 or 53 of
such title, or this title if--
``(1) the Secretary determines such repayment appropriate
pursuant to regulations prescribed under subsection (c); and
``(2) before such repayment, the employee is afforded
notice and an opportunity for a hearing conducted by another
department or agency of the Federal Government.
``(b) Review.--(1) Upon the issuance of an order by the Secretary
under subsection (a), the employee shall be afforded--
``(A) notice of the order and an opportunity to respond to
the order; and
``(B) consistent with paragraph (2), an opportunity to
appeal the order to another department or agency of the Federal
Government.
``(2) If a final decision on an appeal made under paragraph (1)(B)
is not made by the applicable department or agency of the Federal
Government within 30 days after receiving such appeal, the order of the
Secretary under subsection (a) shall be final and not subject to
further appeal.
``(c) Regulations.--The Secretary shall prescribe regulations to
carry out this section.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 7 is further amended by inserting after the item relating to
section 717, as added by section 4, the following new item:
``719. Recoupment of bonuses or awards paid to employees of
Department.''.
(c) Effective Date.--Section 719 of title 38, United States Code,
as added by subsection (a), shall apply with respect to an award or
bonus paid by the Secretary of Veterans Affairs to an employee of the
Department of Veterans Affairs on or after the date of the enactment of
this Act.
(d) Construction.--Nothing in this section or the amendments made
by this section may be construed to modify the certification issued by
the Office of Personnel Management and the Office of Management and
Budget regarding the performance appraisal system of the Senior
Executive Service of the Department of Veterans Affairs.
SEC. 6. AUTHORITY TO RECOUP RELOCATION EXPENSES PAID TO OR ON BEHALF OF
EMPLOYEES OF DEPARTMENT OF VETERANS AFFAIRS.
(a) In General.--Chapter 7 is further amended by inserting after
section 719, as added by section 5, the following new section:
``Sec. 721. Recoupment of relocation expenses paid on behalf of
employees of Department
``(a) Recoupment.--(1) Notwithstanding any other provision of law,
the Secretary may direct an employee of the Department to repay the
amount, or a portion of the amount, paid to or on behalf of the
employee for relocation expenses under title 5, including any expenses
under section 5724 or 5724a of such title, or this title if--
``(A) the Secretary determines that--
``(i) the employee has committed an act of fraud,
waste, or malfeasance; and
``(ii) such repayment is appropriate pursuant to
regulations prescribed under subsection (c); and
``(B) before such repayment is ordered, the individual is
afforded--
``(i) notice of the determination of the Secretary
and an opportunity to respond to the determination; and
``(ii) consistent with paragraph (2), an
opportunity to appeal the determination to another
department or agency of the Federal Government.
``(2) If a final decision on an appeal made under paragraph
(1)(B)(ii) is not made by the applicable department or agency of the
Federal Government within 30 days after receiving such appeal, the
order of the Secretary under paragraph (1) shall be final and not
subject to further appeal.
``(b) Review.--A decision by the applicable department or agency of
the Federal Government regarding a repayment by an employee pursuant to
subsection (a)(1)(B)(ii) is final and may not be reviewed by any
department, agency, or court.
``(c) Regulations.--The Secretary shall prescribe regulations to
carry out this section.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 7 is further amended by inserting after the item relating to
section 719, as added by section 5, the following new item:
``721. Recoupment of relocation expenses paid to or on behalf of
employees of Department.''.
(c) Effective Date.--Section 721 of title 38, United States Code,
as added by subsection (a), shall apply with respect to an amount paid
by the Secretary of Veterans Affairs to or on behalf of an employee of
the Department of Veterans Affairs for relocation expenses on or after
the date of the enactment of this Act.
(d) Construction.--Nothing in this section or the amendments made
by this section may be construed to modify the certification issued by
the Office of Personnel Management and the Office of Management and
Budget regarding the performance appraisal system of the Senior
Executive Service of the Department of Veterans Affairs.
SEC. 7. EXPANSION OF PERSONNEL ACTIONS FOR SENIOR EXECUTIVES BASED ON
PERFORMANCE OR MISCONDUCT AND ESTABLISHMENT OF SENIOR
EXECUTIVE DISCIPLINARY APPEALS BOARD.
(a) Expansion of Covered Personnel Actions.--Subsection (a)(1) of
section 713 is amended, in the matter preceding subparagraph (A), by
inserting after ``such removal.'' the following: ``If the Secretary
determines that the performance or misconduct of such an individual
does not warrant removal from the senior executive service position,
the Secretary may suspend, reprimand, or admonish the individual.''.
(b) Removal of Appeal to Merit Systems Protection Board.--Section
713 is further amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``so removes''
and inserting ``removes''; and
(B) by adding at the end the following:
``(3) On the date that is five days before taking any personnel
action against a senior executive under paragraph (1), the Secretary
shall provide the individual with--
``(A) notice in writing of the proposed personnel action,
including the reasons for such action; and
``(B) an opportunity to respond to the proposed personnel
action within the five-day period.'';
(2) in subsection (b)(2)--
(A) by striking ``under this section'' and
inserting ``under section 723 of this title''; and
(B) by striking the second sentence;
(3) in subsection (c)--
(A) by striking ``30'' and inserting ``five''; and
(B) by striking ``and the reason for such removal
or transfer'' and inserting ``, the reason for such
removal or transfer, the name and position of the
individual, and all charging documents and evidence
pertaining to such removal or transfer'';
(4) by striking subsections (d) and (e) and inserting the
following:
``(d) Procedure.--(1) The procedures under title 5 shall not apply
to any personnel action under this section.
``(2) Subject to paragraph (3), a personnel action under this
section--
``(A) may be appealed to the Senior Executive Disciplinary
Appeals Board under section 723 of this title; and
``(B) may not be appealed to the Merit Systems Protection
Board under section 7701 of title 5.
``(3) An appeal under paragraph (2)(A) of a personnel action under
this section may only be made if such appeal is made not later than
seven days after the date of such action. If no such appeal is made,
the decision of the Secretary under this section shall be final.'';
(5) by redesignating subsections (f) and (g) as subsections
(e) and (f), respectively; and
(6) in subsection (f), as redesignated by paragraph (5), by
adding at the end the following:
``(4) The term `suspend' means the placing of an individual
in a temporary status without duties and pay for a period
greater than 14 days.''.
(c) Removal of Expedited Procedures.--Section 707 of the Veterans
Access, Choice, and Accountability Act of 2014 (Public Law 113-146; 38
U.S.C. 713 note) is amended--
(1) by striking subsection (b); and
(2) by redesignating subsections (c) and (d) as subsections
(b) and (c), respectively.
(d) Senior Executive Disciplinary Appeals Board.--Chapter 7 is
further amended by inserting after section 721, as added by section 6,
the following new section:
``Sec. 723. Senior Executive Disciplinary Appeals Board
``(a) In General.--The Secretary shall from time to time appoint a
board to hear appeals of any personnel action taken under section 713
of this title. Such board shall be known as the Senior Executive
Disciplinary Appeals Board (in this section referred to as the
`Board'). Each Board shall consist of three employees of the
Department. The Board shall have exclusive jurisdiction to review any
personnel action under section 713.
``(b) Review and Decision.--Upon an appeal of such a personnel
action, the Board shall--
``(1) review all evidence provided by the Secretary and the
appellant; and
``(2) issue a decision not later than 21 days after the
date of the appeal.
``(c) Hearing.--The Board shall afford an employee appealing a
personnel action an opportunity for an oral hearing. If such a hearing
is held, the appellant may be represented by counsel.
``(d) Standard of Review.--The Board shall uphold the decision of
the Secretary if--
``(1) there is substantial evidence supporting the
decision; and
``(2) the applicable personnel action is within the
tolerable bounds of reasonableness.
``(e) Reversal by Secretary.--If the Board issues a decision under
this section that reverses or otherwise mitigates the applicable
personnel action, the Secretary may reverse the decision of the Board.
Consistent with the requirements of subsection (g), the decision of the
Secretary under this subsection shall be final.
``(f) No Decision by Board.--In any case in which the Board cannot
issue a decision in accordance with the 21-day requirement under
subsection (b)(2), the personnel action is final.
``(g) Appeal of Decision.--A petition to review a final order or
final decision of the Secretary or the Board under this section shall
be filed in the United States Court of Appeals for the Federal Circuit.
Any decision by such Court shall be in compliance with section
7462(f)(2) of this title.
``(h) Prohibition on Receipt of Benefits.--During the period
beginning on the date on which an individual appeals a removal from the
civil service under section 713(d) of this title and ending on the date
that the Board or Secretary 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 from the Department.''.
(e) Technical and Clerical Amendments.--
(1) Technical amendment.--The section heading of section
713 is amended to read as follows: ``Senior executives:
personnel actions based on performance or misconduct''.
(2) Clerical amendments.--The table of sections at the
beginning of chapter 7 is further amended--
(A) by striking the item relating to section 713
and inserting the following new item:
``713. Senior executives: personnel actions based on performance or
misconduct.'';
and
(B) by inserting after the item relating to section
721 the following new item:
``723. Senior Executive Disciplinary Appeals Board.''.
(f) Rule of Construction.--Nothing in this section or section 723
of title 38, United States Code, as added by subsection (d), shall be
construed to apply to an appeal of a removal, transfer, or other
personnel action that was pending before the date of the enactment of
this Act.
SEC. 8. REFORM OF RIGHTS AND PROCESSES RELATING TO APPEALS OF DECISIONS
REGARDING CLAIMS FOR BENEFITS UNDER LAWS ADMINISTERED BY
SECRETARY OF VETERANS AFFAIRS.
(a) Definitions.--Section 101 is amended by adding at the end the
following new paragraphs:
``(34) The term `agency of original jurisdiction' means the
activity which entered the original determination with regard
to a claim for benefits under laws administered by the
Secretary.
``(35) The term `relevant evidence' means evidence that
tends to prove or disprove a matter in issue.''.
(b) Notice Regarding Claims.--Section 5103(a) is amended--
(1) in paragraph (1), in the first sentence, by striking
``The'' and inserting ``Except as provided in paragraph (3),
the'';
(2) in paragraph (2)(B)(i) by striking ``, a claim for
reopening a prior decision on a claim, or a claim for an
increase in benefits;'' and inserting ``or a supplemental
claim;''; and
(3) by adding at the end the following new paragraph:
``(3) The requirement to provide notice under paragraph (1) shall
not apply with respect to a supplemental claim that is filed within the
time frame set forth in subparagraphs (B) and (D) of section 5110(a)(2)
of this title.''.
(c) Modification of Rule Regarding Disallowed Claims.--Section
5103A(f) is amended--
(1) by striking ``reopen'' and inserting ``readjudicate'';
and
(2) by striking ``material'' and inserting ``relevant''.
(d) Modification of Duty To Assist Claimants.--
(1) Limitations on duty.--Section 5103A(a) is amended--
(A) in paragraph (1), by striking ``The'' and
inserting ``Except as otherwise provided in this
subsection, the''; and
(B) by adding at the end the following new
paragraphs:
``(4) The Secretary's duty to assist under paragraph (1) shall
apply only to a claim, or supplemental claim, for a benefit under a law
administered by the Secretary until the time that a claimant is
provided notice of the decision of the agency of original jurisdiction
with respect to such claim, or supplemental claim, under section 5104
of this title.
``(5) The Secretary's duty to assist under paragraph (1) shall not
apply to--
``(A) higher-level review by the agency of original
jurisdiction, pursuant to section 5104B of this title; or
``(B) to review on appeal by the Board of Veterans'
Appeals.''.
(2) Correction of errors from duty to assist.--Section
5103A is amended--
(A) by redesignating subsections (e) through (g) as
subsections (f) through (h), respectively; and
(B) by inserting after subsection (d) the following
new subsection:
``(e) Correction of Duty To Assist Errors.--(1) If, during review
of the agency of original jurisdiction decision under section 5104B of
this title, the higher-level reviewer identifies an error on the part
of the agency of original jurisdiction to satisfy its duties under this
section, and that error occurred prior to the agency of original
jurisdiction decision being reviewed, unless the claim can be granted
in full, the higher-level reviewer shall return the claim for
correction of such error and readjudication.
``(2)(A) If the Board, during review on appeal of a decision of the
agency of original jurisdiction, identifies an error on the part of the
agency of original jurisdiction to satisfy its duties under section
5103A of this title, and that error occurred prior to the decision of
the agency of original jurisdiction on appeal, unless the claim can be
granted in full, the Board shall remand the claim to the agency of
original jurisdiction for correction of such error and readjudication.
``(B) Remand for correction of an error under subparagraph (A) may
include directing the agency of original jurisdiction to obtain an
advisory medical opinion under section 5109 of this title.''.
(e) Decisions and Notices of Decisions.--Subsection (b) of section
5104 is amended to read as follows:
``(b) In any case where the Secretary denies a benefit sought, the
notice required by subsection (a) shall also include all of the
following:
``(1) Identification of the issues adjudicated.
``(2) A summary of the evidence considered by the
Secretary.
``(3) A summary of the applicable laws and regulations.
``(4) Identification of findings favorable to the claimant.
``(5) Identification of elements not satisfied leading to
the denial.
``(6) An explanation of how to obtain or access evidence
used in making the decision.
``(7) If applicable, identification of the criteria that
must be satisfied to grant service connection or the next
higher level of compensation.''.
(f) Binding Nature of Favorable Findings.--
(1) In general.--Chapter 51 is amended by inserting after
section 5104 the following new section:
``Sec. 5104A. Binding nature of favorable findings
``Any finding favorable to the claimant as described in section
5104(b)(4) of this title shall be binding on all subsequent
adjudicators within the Department, unless clear and convincing
evidence is shown to the contrary to rebut such favorable finding.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 51 is amended by inserting after the item
relating to section 5104 the following new item:
``5104A. Binding nature of favorable findings.''.
(g) Higher-Level Review by Agency of Original Jurisdiction.--
(1) In general.--Chapter 51, as amended by subsection (f),
is further amended by inserting after section 5104A, as added
by such subsection, the following new section:
``Sec. 5104B. Higher-level review by the agency of original
jurisdiction
``(a) In General.--A claimant may request a de novo review of the
decision of the agency of original jurisdiction by a higher-level
adjudicator within the agency of original jurisdiction.
``(b) Time and Manner of Request.--(1) A request for higher-level
review by the agency of original jurisdiction shall be--
``(A) in writing in such form as the Secretary may
prescribe; and
``(B) made within one year of the notice of the agency of
original jurisdiction's decision.
``(2) Such request may specifically indicate whether such review is
requested by a higher-level adjudicator at the same office within the
agency of original jurisdiction or by an adjudicator at a different
office of the agency of original jurisdiction.
``(c) Decision.--Notice of a higher-level review decision under
this section shall be provided in writing.
``(d) Evidentiary Record for Review.--The evidentiary record before
the higher-level reviewer shall be limited to the evidence of record in
the agency of original jurisdiction decision being reviewed.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 51, as amended by subsection (f), is
further amended by inserting after the item relating to section
5104A, as added by such subsection, the following new item:
``5104B. Higher-level review by the agency of original jurisdiction.''.
(h) Supplemental Claims.--
(1) In general.--Section 5108 is amended to read as
follows:
``Sec. 5108. Supplemental claims
``If new and relevant evidence is presented or secured with respect
to a supplemental claim, the Secretary shall readjudicate the claim
taking into consideration any evidence added to the record prior to the
former disposition of the claim.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 51 is amended by striking the item
relating to section 5108 and inserting the following new item:
``5108. Supplemental claims.''.
(i) Remand of Claim for Advisory Medical Opinion.--Section 5109 is
amended by adding at the end the following new subsection:
``(d) The Board of Veterans' Appeals may remand a claim to direct
the agency of original jurisdiction to obtain an advisory medical
opinion under this section to correct an error on the part of the
agency of original jurisdiction to satisfy its duties under section
5103A of this title when such error occurred prior to the decision of
the agency of original jurisdiction on appeal. The remand instructions
set forth by the Board shall include the questions to be posed to the
independent medical expert providing the advisory medical opinion.''.
(j) Effective Dates of Awards.--Section 5110 is amended--
(1) by amending subsection (a) to read as follows:
``(a)(1) Unless specifically provided otherwise in this chapter,
the effective date of an award based on an initial claim, or a
supplemental claim, of compensation, dependency and indemnity
compensation, or pension, shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of application
therefor.
``(2) For purposes of determining the effective date of an award
under this section, the date of application shall be considered the
date of the filing of the initial application for a benefit if the
claim is continuously pursued by filing any of the following, either
alone or in succession:
``(A) A request for higher-level review under section 5104B
of this title on or before the date that is one year after the
date on which the agency of original jurisdiction issues a
decision.
``(B) A supplemental claim under section 5108 of this title
on or before the date that is one year after the date on which
the agency of original jurisdiction issues a decision.
``(C) A notice of disagreement on or before the date that
is one year after the date on which the agency of original
jurisdiction issues a decision.
``(D) A supplemental claim under section 5108 of this title
on or before the date that is one year after the date on which
the Board of Veterans' Appeals issues a decision.
``(3) Except as otherwise provided in this section, for
supplemental claims received more than one year after the date on which
the agency of original jurisdiction issued a decision or the Board of
Veterans' Appeals issued a decision, the effective date shall be fixed
in accordance with the facts found, but shall not be earlier than the
date of receipt of the supplemental claim.''; and
(2) in subsection (i), in the first sentence--
(A) by striking ``reopened'' and inserting
``readjudicated'';
(B) by striking ``material'' and inserting
``relevant''; and
(C) by striking ``reopening'' and inserting
``readjudication''.
(k) Definition of Award or Increased Award for Purposes of
Provisions Relating to Commencement of Period of Payment.--Section
5111(d)(1) is amended by striking ``or reopened award'' and inserting
``award or award based on a supplemental claim''.
(l) Modification on Limitation on Fees Allowable for
Representation.--Section 5904(c) is amended, in paragraphs (1) and (2),
by striking ``notice of disagreement is filed'' both places it appears
and inserting ``claimant is provided notice of the agency of original
jurisdiction's initial decision under section 5104 of this title''.
(m) Modification of Board of Veterans' Appeals Referral
Requirements After Order for Reconsideration of Decisions.--Section
7103(b)(1) is amended by striking ``heard'' both places it appears and
inserting ``decided''.
(n) Conforming Amendment Relating to Readjudication by Board of
Veterans' Appeals.--Section 7104(b) is amended by striking ``reopened''
and inserting ``readjudicated''.
(o) Modification of Rights and Procedures for Appeals to Board of
Veterans' Appeals.--
(1) In general.--Section 7105 is amended--
(A) in subsection (a)--
(i) by striking the first sentence and
inserting ``Appellate review shall be initiated
by the filing of a notice of disagreement in
the form prescribed by the Secretary.''; and
(ii) by striking ``hearing and'';
(B) by amending subsection (b) to read as follows:
``(b)(1)(A) Except in the case of simultaneously contested claims,
notice of disagreement shall be filed within one year from the date of
the mailing of notice of the decision of the agency of original
jurisdiction pursuant to section 5104, 5104B, or 5108 of this title.
``(B) A notice of disagreement postmarked before the expiration of
the one-year period shall be accepted as timely filed.
``(C) A question as to timeliness or adequacy of the notice of
disagreement shall be decided by the Board.
``(2)(A) Notices of disagreement shall be in writing, shall set out
specific allegations of error of fact or law, and may be filed by the
claimant, the claimant's legal guardian, or such accredited
representative, attorney, or authorized agent as may be selected by the
claimant or legal guardian.
``(B) Not more than one recognized organization, attorney, or agent
may be recognized at any one time in the prosecution of a claim.
``(C) Notices of disagreement shall be filed with the Board.
``(3)(A) The notice of disagreement shall indicate whether the
claimant requests--
``(i) a hearing before the Board;
``(ii) an opportunity to submit additional evidence without
a hearing before the Board; or
``(iii) a review by the Board without a hearing or
submission of additional evidence.
``(B) If the claimant does not expressly request a hearing before
the Board in the notice of disagreement, no hearing before the Board
may be held.'';
(C) by amending subsection (c) to read as follows:
``(c) If no notice of disagreement is filed in accordance with this
chapter within the prescribed period, the action or decision of the
agency of original jurisdiction shall become final and the claim may
not thereafter be readjudicated or allowed, except as may otherwise be
provided by section 5104B or 5108 of this title or such regulations as
the Secretary may promulgate that are consistent with this title.'';
(D) by striking subsection (d) and inserting the
following new subsection (d):
``(d) The Board of Veterans' Appeals may dismiss any appeal which
fails to allege specific error of fact or law in the decision being
appealed.'';
(E) by striking subsection (e); and
(F) in the section heading, by striking ``notice of
disagreement and''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 71 is amended by striking the item
relating to section 7105 and inserting the following new item:
``7105. Filing of appeal.''.
(p) Modification of Procedures and Requirements for Simultaneously
Contested Claims.--Subsection (b) of section 7105A is amended to read
as follows:
``(b)(1) The substance of the notice of disagreement shall be
communicated to the other party or parties in interest and a period of
thirty days shall be allowed for filing a brief or argument in response
thereto.
``(2) Such notice shall be forwarded to the last known address of
record of the parties concerned, and such action shall constitute
sufficient evidence of notice.''.
(q) Repeal of Procedures for Administrative Appeals.--
(1) In general.--Chapter 71 is amended by striking section
7106.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 71 is amended by striking the item
relating to section 7106.
(r) Modifications Relating to Appeals: Dockets; Hearings.--Section
7107 is amended to read as follows:
``Sec. 7107. Appeals: dockets; hearings
``(a) Dockets.--(1) The Board shall maintain two separate dockets
as follows:
``(A) A non-hearing option docket shall be maintained for
cases in which no Board hearing is requested and no additional
evidence will be submitted.
``(B) A separate and distinct hearing option docket shall
be maintained for cases in which a Board hearing is requested
in the notice of disagreement or in which no Board hearing is
requested, but the appellant requests, in the notice of
disagreement, an opportunity to submit additional evidence.
``(2) Except as provided in subsection (b), each case before the
Board will be decided in regular order according to its respective
place on the Board's non-hearing option docket or the hearing option
docket.
``(b) Advancement on the Docket.--(1) A case on either the Board's
non-hearing option docket or hearing option docket may, for cause
shown, be advanced on motion for earlier consideration and
determination.
``(2) Any such motion shall set forth succinctly the grounds upon
which the motion is based.
``(3) Such a motion may be granted only--
``(A) if the case involves interpretation of law of general
application affecting other claims;
``(B) if the appellant is seriously ill or is under severe
financial hardship; or
``(C) for other sufficient cause shown.
``(c) Manner and Scheduling of Hearings for Cases on Board Hearing
Option Docket.--(1) For cases on the Board hearing option docket in
which a hearing is requested in the notice of disagreement, the Board
shall notify the appellant whether a Board hearing will be held--
``(A) at its principal location, or
``(B) by picture and voice transmission at a facility of
the Department where the Secretary has provided suitable
facilities and equipment to conduct such hearings.
``(2)(A) Upon notification of a Board hearing at the Board's
principal location as described in subparagraph (A) of paragraph (1),
the appellant may alternatively request a hearing as described in
subparagraph (B) of such paragraph. If so requested, the Board shall
grant such request.
``(B) Upon notification of a Board hearing by picture and voice
transmission as described in subparagraph (B) of paragraph (1), the
appellant may alternatively request a hearing as described in
subparagraph (A) of such paragraph. If so requested, the Board shall
grant such request.
``(d) Screening of Cases.--Nothing in this section shall be
construed to preclude the screening of cases for purposes of--
``(1) determining the adequacy of the record for decisional
purposes; or
``(2) the development, or attempted development, of a
record found to be inadequate for decisional purposes.''.
(s) Repeal of Authority for Independent Medical Opinions.--
(1) In general.--Chapter 71 is amended by striking section
7109.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 71 is amended by striking the item
relating to section 7109.
(3) Conforming amendment.--Section 5701(b)(1) is amended by
striking ``or 7109''.
(t) Modification of Standard for Review of Decisions on Grounds of
Clear and Unmistakable Error.--Section 7111(e) is amended by striking
``, without referral to any adjudicative or hearing official acting on
behalf of the Secretary''.
(u) Evidentiary Record Before Board of Veterans' Appeals.--
(1) In general.--Chapter 71 is amended by adding at the end
the following new section:
``Sec. 7113. Evidentiary record before the Board of Veterans' Appeals
``(a) Non-Hearing Option Docket.--For cases in which a hearing
before the Board of Veterans' Appeals is not requested in the notice of
disagreement, the evidentiary record before the Board shall be limited
to the evidence of record at the time of the decision of the agency of
original jurisdiction on appeal.
``(b) Hearing Option Docket.--(1)(A) Except as provided in
subparagraph (B), for cases on the hearing option docket in which a
hearing is requested in the notice of disagreement, the evidentiary
record before the Board shall be limited to the evidence of record at
the time of the decision of the agency of original jurisdiction on
appeal.
``(B) The evidentiary record before the Board for cases on the
hearing option docket in which a hearing is requested, shall include
each of the following, which the Board shall consider in the first
instance:
``(i) Evidence submitted by the appellant and his or her
representative, if any, at the Board hearing.
``(ii) Evidence submitted by the appellant and his or her
representative, if any, within 90 days following the Board
hearing.
``(2)(A) Except as provided in subparagraph (B), for cases on the
hearing option docket in which a hearing is not requested in the notice
of disagreement, the evidentiary record before the Board shall be
limited to the evidence considered by the agency of original
jurisdiction in the decision on appeal.
``(B) The evidentiary record before the Board for cases on the
hearing option docket in which a hearing is not requested, shall
include each of the following, which the Board shall consider in the
first instance:
``(i) Evidence submitted by the appellant and his or her
representative, if any, with the notice of disagreement.
``(ii) Evidence submitted by the appellant and his or her
representative, if any, within 90 days following receipt of the
notice of disagreement.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 71 is amended by inserting after the item
relating to section 7112 the following new item:
``7113. Evidentiary record before the Board of Veterans' Appeals.''.
SEC. 9. LIMITATION ON AWARDS AND BONUSES PAID TO SENIOR EXECUTIVE
EMPLOYEES OF DEPARTMENT OF VETERANS AFFAIRS.
Section 705 of the Veterans Access, Choice, and Accountability Act
of 2014 (Public Law 113-146; 38 U.S.C. 703 note) is amended--
(1) in subsection (a), by striking ``The Secretary'' and
inserting ``Except as provided in subsection (b), the
Secretary'';
(2) by redesignating subsection (b) as subsection (c); and
(3) by inserting after subsection (a) the following new
subsection (b):
``(b) Prohibition on Awards and Bonuses for Senior Executive
Employees.--During each of fiscal years 2017 through 2021, no award or
bonus may be paid to any employee of the Department of Veterans Affairs
who is employed in a Senior Executive Service position, as that term is
defined in section 3132(a)(2) of title 5.''.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Veterans' Affairs, and in addition to the Committee on Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Veterans' Affairs, and in addition to the Committee on Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Veterans' Affairs, and in addition to the Committee on Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Economic Opportunity.
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