Senate VA bill directs agency to rethink how it fires poor-performing employees

Senate Veterans Affairs Committee leaders are moving ahead with their own proposal to remove VA employees accused of misconduct — after department leaders panned a recent House bill with the same goal.

The bipartisan Senate bill, however, takes a different approach by strengthening existing tools, and calling VA leaders to make better use of the authorities they already have to fire, demote or suspend poor-performing employees.

The 2023 Leadership, Engagement, Accountability, and Development (LEAD) Act directs the VA to standardize the way it builds a case against employees who face allegations of misconduct or poor performance, and to train the entire VA workforce on the ins and outs of the process.

Committee Chairman Jon Tester (D-Mont.) introduced the legislation last week, along with Ranking Member Jerry Moran (R-Kan.) and Sen. Mike Rounds (R-S.D.).

“Bad actors at VA will not be tolerated — period,” Tester said. “Our bipartisan bill will overhaul VA’s oversight tools to root out and prevent misconduct at the department, ensuring we have the very best leaders and employees serving the men and women who risked their lives for this country.”

Moran said the LEAD Act would help the VA keep its workforce accountable for providing care and benefits to veterans, while “attracting the best and brightest to VA’s workforce.”

When bad actors and poor performing employees are appropriately held accountable and the right oversight mechanisms are in place, veterans and hardworking VA employees — who make up the vast majority of the workforce — will all benefit,” Moran said.

The LEAD Act also calls on the VA to keep its medical facilities staffed up when employees under investigation are pulled away from their frontline medical positions.

“While VA has the ability and authority to remove bad actors today, there can be delays and reductions in penalties largely due to inconsistent processes and paperwork shortcomings,” senators wrote in a summary of the bill.

Rounds said the bill ensures that VA employees providing care to veterans are “held to a high standard,” and would improve the VA’s ability to hold bad actors accountable, protect whistleblowers and increase patient safety at VA facilities.

“I am pleased to join Chairman Tester and Ranking Member Moran in introducing this bipartisan legislation to make certain that the VA has the tools it needs to conduct proper oversight and retain employees who are dedicated to providing quality care and services to our veterans,” Rounds said.

Congressional staffers, in an exclusive briefing on the bill’s details, told Federal News Network that a standardized process and better training will ensure the VA gets a full record of an employee’s alleged misconduct before proceeding with adverse personnel decisions.

The LEAD Act would require the VA to develop a “unified system with clear standards and training” for proposing and processing disciplinary actions, while protecting the due process and whistleblower rights of employees.

“We want VA to educate all of their employees, not just the ones who may be conducting the adverse actions — like managers and supervisors — but also the rank-and-file employees, so that they know what that process looks like,” a congressional staffer told Federal News Network. “What are their appeal rights? What are resources available to them during that process?”

Staffers said the LEAD Act would create “a repeatable process that’s consistent, timely and ultimately results in the people who have documented misconduct not being in the department — and that [decision] sticking.”

“A lot of times when there are issues with an accountability process, it has to do with paperwork issues, or a misunderstanding on process,” a congressional staffer said.

These procedural inconsistencies, staffers said, often give VA employees grounds to successfully appeal an adverse personnel decision and keep their jobs.

“These are legal matters, so it has to be documented. It has to go through and have these various checks, so that when it gets to legal counsel within VA … or later on, in some sort of legal dispute, where somebody hires a lawyer to say that they were maybe removed inappropriately — that it withstands that process,” a congressional staffer said.

The bill would require the VA to provide Congress with an annual report on the number of employees the department has fired, demoted or suspended.

The VA would also have to document the seniority level of each employee, and what legal authority the department used to carry out the adverse personnel action.

Rondy Waye, VA’s executive director of human capital programs, recently told lawmakers that the VA has taken about 39,000 actions against VA employees since fiscal 2016 — nearly 5,000 a year, on average.

Congressional staffers said the LEAD Act focuses on the VA recruiting and retaining a high-performing workforce, while taking steps to keep employee morale high.

“Part of that is when there are employees engaged in misconduct [and] poor performance, that they’re removed. The desired outcome is that person being removed,” the congressional staffer said.

The senators said the bill builds on recommendations from dozens of reports from the Government Accountability Office and VA’s inspector general, as well as years of congressional oversight and hearings.

The LEAD Act would also require the VA to create a group of VA medical staff dedicated to temporarily cover for each “shortage occupation or high-turnover occupation” within the VA medical system.

A congressional staffer said this mobile temporary staffing program would deploy VA clinical employees to temporarily staff up VA medical facilities, much like how VA deploys travel nurses or temporarily details VA medical workers in emergency response scenarios.

“This will be VA’s own workforce, so VA employees who are basically available and willing to travel to different VA facilities [where] there’s a situation where a permanent employee is absent or on leave for an extended period of time,” the staffer said.

The LEAD Act prohibits the VA from using the mobile temporary staffing program to permanently fill vacant positions.

‘Lost time, lost money, lost effectiveness’

The LEAD Act in the Senate takes a different approach from the Restore VA Accountability Act that the House VA Committee advanced last week.

The House bill would give VA the ability to fast-track the removal of VA employees once again — but through legal authorities blocked by several recent judicial rulings.

Top Republicans on the House VA Committee introduced their bill after the VA announced it is no longer using authorities in the 2017 VA Accountability and Whistleblower Protection Act to expedite the removal of its employees.

VA leaders say the 2017 law didn’t help them fire poor performers, and that federal judges and the Merit Systems Protection Board blocked many of the legislation’s provisions from covering a majority of its workforce.

“To be honest … [it] wasn’t really helping us necessarily manage our workforce, as much as it was getting us in front of federal judges and in front of administrative bodies,” VA Secretary Denis McDonough told reporters in March. “So we just want to make sure that we’re exercising the authorities that we do have.”

The VA announced last Friday it will pay out “hundreds of millions of dollars” in a settlement agreement with the American Federation of Government Employees over its attempts to fire employees under the 2017 law.

The settlement comes years after AFGE filed a grievance against the department in 2018. The union says the agency’s implementation of the 2017 VA Accountability and Whistleblower Protection Act violated their collective bargaining agreement.

The agreement will let thousands of former VA employees who were terminated for minor offenses under the 2017 VA Accountability and Whistleblower Protection Act choose between either getting reinstated at VA or receiving compensation.

Congressional staffers pointed to VA’s settlement with AFGE, as well as its protracted legal battles, as evidence that the 2017 legislation has backfired.

“The courts hit VA pretty hard on a sequence of rulings. What has the result been? Lost time, lost money, lost effectiveness, and not always having sustained accountability,” a congressional staffer said.

The Court of Appeals for the Federal Circuit and the MSPB, in separate rulings, blocked the VA from using the 2017 law to fast-track how it fires most VA employees.

The LEAD Act would also require the VA to report to Congress on the lessons learned from implementing the 2017 VA Accountability and Whistleblower Protection Act.

Routine VA facility visits, stronger VHA oversight

The LEAD Act also centralizes VA oversight offices across the department, and holds regional VA leaders accountable for visiting local facilities within their purview.

The bill would require the VA to create a Transparency, Engagement, Accountability and Management (TEAM) office to consolidate several oversight functions at VHA.

Staffers said the bill aims to break down siloes within VHA and across the department,” as well as providing more proactive oversight at VHA.

The TEAM office will focus in part on making sure VA facilities implement recommendations outlined in reports from GAO and the VA inspector general. The TEAM office will also examine trends in those oversight reports, to determine when the VA needs to make departmentwide policy changes.

“There are so many offices that cover different pieces of that idea, but they’re not all necessarily working together or sharing resources. This is intended to consolidate those offices,” a congressional staffer said.

The bill would also direct Veterans Integrated Services Networks (VISN) directors to conduct routine in-person oversight visits of medical facilities they oversee.

Congressional staffers said senators included the provision in response to dozens of IG investigations that found local and regional leaders have not been visiting facilities under their management.

“We’re trying to instill that proactive engagement, which some people are doing, but we’re not seeing it consistently,” a congressional staffer said.

The bill would also permanently codify the VHA’s Office of the Medical Inspector (OMI) into law.

Among its duties, OMI independently investigates health care issues, such as allegations of improper sterilization of medical equipment.

A recent GAO report found nearly all of OMI’s completed cases between fiscal 2017 and 2022 resulted led to recommendations.

A congressional staffer said the LEAD Act would ensure OMI has the tools it needs for effective oversight — including an electronic tracking database to track all of its outstanding recommendations.

These changes, they added, would help OMI track systemic issues, rather than offer “reactive” responses to incidents that have already happened.

“What this bill is directing VA to do is to take the incidents that occur, make sure they’re fixed at that facility, but then take a step back and say, have had direct VA and OMI to spread that news across the department, so that it’s not repeated elsewhere — and to track these things, to track the closure of recommendations,” a staffer said.

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