On Friday June 23, President Trump signed into law the VA Accountability and Whistleblower Protection Act, which established a revised disciplinary system for VA employees who are accused of poor performance or misconduct and protects those who report them. The bill amends Title 38 of the U.S. Code, adding VA employees to the list of those that the VA Secretary can remove if necessary. The act speeds up the termination and suspension processes for civil servants. The VA also claims that the bill will shorten the process of hiring new administrators. Still unclear is what this bill means for VA health care providers.
VA employees are protected under both Title 5 and Title 38 of the U.S. code. Title 5 governs the employment of all federal civil servants. Title 38 specifically governs the employment of VA employees in certain health care fields. Both titles specify processes for termination, demotion, or suspension and an appeals process.
Critics, including VA Secretary David J. Shulkin, MD, have complained that the previous civil service protections were time consuming and made it difficult to penalize or remove problem employees. Supporters insist that Title 5 and Title 38 protected the rights of good employees and whistleblowers from unfair workplace retaliation.
Under the new law, the VA Secretary can more easily remove, demote, or suspend any employee who warrants a penalty, including executives and supervisors. Although many of the Title 5 and Title 38 protections still cover VA employees, there are several notable changes.
What’s changing for VA employees?
- Time line: The act shortens time between the initial report, employee notification, Secretary’s decision, and appeal request/decision.
- Standard of proof: Previously, the standard of proof for misconduct was “preponderance of evidence.” The new bill lowers this standard to “supported by substantial evidence.” Changing the standard of proof effectively means that the Secretary will need to present less evidence of wrongdoing/negligence for the employee to be removed, demoted, or suspended.
- Appeals: Employees may still appeal removal, demotion, or suspension decisions, but rather than going through the Disciplinary Appeals Board, the Merit Systems Protection Board will hear appeals. Appeals must be filed within 10 days of the Secretary’s final decision. Additionally, administrative judges are instructed to uphold the decision of the Secretary if the evidence meets the “substantial evidence” standard. Administrative judges are prohibited from reducing the penalty.
Although these changes are meant to increase the accountability of health care providers in the VA, there are several other legal implications for VA employees. Ultimately, the bill gives the VA Secretary more discretion. Whether this is a good or bad change is open to debate. Even though the bill easily passed in both the House of Representatives and the Senate, some lawmakers remain skeptical because the act increases the power of the Secretary and limits due process for VA employees. Under the new law, VA employees will have less time to prepare their defense and be held to a lower standard of proof, which will make it easier to remove VA employees from their jobs.
The Fifth Amendment of the U.S. Constitution guarantees that all Americans shall not be “deprived of life, liberty, or property, without due process of law.” Furthermore, due process rights increase when the limitations on ones’ rights are greater; this is why the burden of proof falls on the prosecution and why the standard of proof is “beyond a reasonable doubt” in criminal cases, because the rights that are at risk are liberty and, in some cases, life.
Due process is particularly important for civil servants because they are employed by the federal government. The rights to property are at risk of being limited if they are to be removed, demoted, or suspended from their jobs. The VA Accountability and Whistleblower Protection Act limits the due process of VA civil servants. However, it also is important to highlight that under this law, the VA Secretary has the right to remove, demote, or suspend any person who threatens the function and service of the VA or endangers veterans. In other words, while the VA employee’s due process may have decreased, it has increased for those whose lives depend on their service.