S.Amdt. 4498

SA 4498. Mr. RUBIO submitted an amendment intended to be proposed by
him to the bill S. 2943, to authorize appropriations for fiscal year
2017 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:

At the end of title X, add the following:

Subtitle J--Treatment of Employees of Department of Veterans Affairs
and Protection of Whistleblowers

SEC. 1097. REMOVAL OR DEMOTION OF EMPLOYEES OF THE DEPARTMENT
OF VETERANS AFFAIRS BASED ON PERFORMANCE OR
MISCONDUCT.

(a) In General.--Chapter 7 of title 38, United States Code,
is amended by adding at the end the following new section:

``Sec. 714. Employees: removal or demotion based on
performance or misconduct

``(a) In General.--(1) 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.
``(2) A determination under paragraph (1) that the
performance or misconduct of an individual warrants removal
or demotion may consist of a determination of any of the
following:
``(A) The individual neglected a duty of the position in
which the individual was employed.
``(B) The individual engaged in malfeasance.
``(C) The individual failed to accept a directed
reassignment or to accompany a position in a transfer of
function.
``(D) The individual violated a policy of the Department.
``(E) The individual violated a provision of law.
``(F) The individual engaged in insubordination.
``(G) The individual over prescribed medication.
``(H) The individual contributed to the purposeful omission
of the name of one or more veterans waiting for health care
from an electronic wait list for a medical facility of the
Department.
``(I) The individual was the supervisor of an employee of
the Department, or was a supervisor of the supervisor, at any
level, who contributed to a purposeful omission as described
in subparagraph (H) and knew, or reasonably should have
known, that the employee contributed to such purposeful
omission.
``(J) Such other performance or misconduct as the Secretary
determines warrants the removal or demotion of the individual
under paragraph (1).
``(3) If the Secretary removes or demotes an individual as
described in paragraph (1), the Secretary may--
``(A) remove the individual from the civil service (as
defined in section 2101 of title 5); or
``(B) demote the individual by means of--
``(i) a reduction in grade for which the individual is
qualified and that the Secretary determines is appropriate;
or
``(ii) 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 under subsection (a)(3)(B)(i) shall,
beginning on the date of such demotion, receive the annual
rate of pay applicable to such grade.
``(2) An individual so demoted 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 pay or
other benefits pursuant to subsection (e)(5).
``(c) Notice to Congress.--Not later than 30 days after
removing or demoting an individual under subsection (a), the
Secretary shall submit to the Committees on Veterans' Affairs
of the Senate and House of Representatives notice in writing
of such removal or demotion and the reason for such removal
or demotion.
``(d) Procedure.--(1) The procedures under section 7513(b)
of title 5 and chapter 43 of such title shall not apply to a
removal or demotion under this section.
``(2)(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 Administrative Law Judge.--(1)
Upon receipt of an appeal under subsection (d)(2)(A), the
Merit Systems Protection Board shall refer such appeal to an
administrative law judge pursuant to section 7701(b)(1) of
title 5. The administrative law judge shall expedite any such
appeal under such section and, in any such case, shall issue
a decision not later than 45 days after the date of the
appeal.
``(2) Notwithstanding any other provision of law, including
section 7703 of title 5, the decision of an administrative
judge under paragraph (1) shall be final and shall not be
subject to any further appeal.
``(3) In any case in which the administrative judge cannot
issue a decision in accordance with the 45-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 Committees on Veterans'
Affairs of the Senate and House of Representatives a report
that explains the reasons why a decision was not issued in
accordance with such requirement.
``(4) The Merit Systems Protection Board or administrative
judge may not stay any removal or demotion under this
section.
``(5) 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 administrative
judge 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.

[[Page S3566]]

``(6) To the maximum extent practicable, the Secretary
shall provide to the Merit Systems Protection Board, and to
any administrative law judge to whom an appeal under this
section is referred, such information and assistance as may
be necessary to ensure an appeal under this subsection is
expedited.
``(f) Relation to Other Provisions of Law.--(1) The
authority provided by this section is in addition to the
authority provided by subchapter V of chapter 75 of title 5
and chapter 43 of such title.
``(2) Subchapter V of chapter 74 of this title shall not
apply to any action under this section.
``(g) Definitions.--In this section:
``(1) The term `individual' means an individual occupying a
position at the Department of Veterans Affairs but does not
include--
``(A) an individual, as that term is defined in section
713(g)(1) of this title; or
``(B) a political appointee.
``(2) The term `grade' has the meaning given such 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) is 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) is 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.''.
(b) Clerical and Conforming Amendments.--
(1) Clerical.--The table of sections at the beginning of
chapter 7 of such title is amended by inserting after the
item relating to section 713 the following new item:

``714. Employees: removal or demotion based on performance or
misconduct.''.

(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 714 of title
38.''.

SEC. 1097A. REQUIRED PROBATIONARY PERIOD FOR NEW EMPLOYEES OF
THE DEPARTMENT OF VETERANS AFFAIRS.

(a) In General.--Chapter 7 of title 38, United States Code,
as amended by section 1097, is further amended by adding at
the end the following new section:

``Sec. 715. Probationary period for employees

``(a) In General.--Notwithstanding sections 3321 and
3393(d) of title 5, the appointment of a covered employee
shall become final only after such employee has served a
probationary period of 540 days. The Secretary may extend a
probationary period under this subsection at the discretion
of the Secretary.
``(b) Covered Employee.--In this section, the term `covered
employee'--
``(1) means any individual--
``(A) appointed to a permanent position within the
competitive service at the Department; or
``(B) appointed as a career appointee (as that term is
defined in section 3132(a)(4) of title 5) within the Senior
Executive Service at the Department; and
``(2) does not include any individual with a probationary
period prescribed by section 7403 of this title.
``(c) Permanent Hires.--Upon the expiration of a covered
employee's probationary period under subsection (a), the
supervisor of the employee shall determine whether the
appointment becomes final based on regulations prescribed for
such purpose by the Secretary.''.
(b) Application.--The amendment made by subsection (a)
shall apply to any covered employee (as that term is defined
in section 715 of title 38, United States Code, as added by
such subsection) appointed after the date of the enactment of
this Act.
(c) Clerical and Conforming Amendments.--
(1) Clerical.--The table of sections at the beginning of
chapter 7 of such title, as amended by section 1097, is
further amended by inserting after the item relating to
section 714 the following new item:

``715. Probationary period for employees.''.

(2) Conforming.--Title 5, United States Code, is amended--
(A) in section 3321(c), by--
(i) striking ``Service or'' and inserting ``Service,''; and
(ii) inserting at the end before the period the following:
``, or any individual covered by section 715 of title 38'';
and
(B) in section 3393(d), by adding at the end after the
period the following: ``The preceding sentence shall not
apply to any individual covered by section 715 of title
38.''.

SEC. 1097B. OFFICE OF ACCOUNTABILITY AND WHISTLEBLOWER
PROTECTION.

(a) In General.--Chapter 3 of title 38, United States Code,
is amended by adding at the end the following new section:

``Sec. 323. Office of Accountability and Whistleblower
Protection

``(a) Establishment.--There is established in the
Department an office to be known as the Office of
Accountability and Whistleblower Protection (in this section
referred to as the `Office').
``(b) Head of Office.--(1) The head of the Office shall be
responsible for the functions of the Office and shall be
appointed by the President pursuant to section 308(a) of this
title.
``(2) The head of the Office shall be known as the
`Assistant Secretary for Accountability and Whistleblower
Protection'.
``(3) The Assistant Secretary shall report directly to the
Secretary on all matters relating to the Office.
``(4) Notwithstanding section 308(b) of this title, the
Secretary may only assign to the Assistant Secretary
responsibilities relating to the functions of the Office set
forth in subsection (c).
``(c) Functions.--(1) The functions of the Office are as
follows:
``(A) Advising the Secretary on all matters of the
Department relating to accountability, including
accountability of employees of the Department, retaliation
against whistleblowers, and such matters as the Secretary
considers similar and affect public trust in the Department.
``(B) Issuing reports and providing recommendations related
to the duties described in subparagraph (A).
``(C) Receiving whistleblower disclosures.
``(D) Referring whistleblower disclosures received under
subparagraph (C) for investigation to the Office of the
Medical Inspector, the Office of Inspector General, or other
investigative entity, as appropriate, if the Assistant
Secretary has reason to believe the whistleblower disclosure
is evidence of a violation of a provision of law,
mismanagement, gross waste of funds, abuse of authority, or a
substantial and specific danger to public health and safety.
``(E) Receiving and referring disclosures from the Special
Counsel for investigation to the Medical Inspector of the
Department, the Inspector General of the Department, or such
other person with investigatory authority, as the Assistant
Secretary considers appropriate.
``(F) Recording, tracking, reviewing, and confirming
implementation of recommendations from audits and
investigations carried out by the Inspector General of the
Department, the Medical Inspector of the Department, the
Special Counsel, and the Comptroller General of the United
States, including the imposition of disciplinary actions and
other corrective actions contained in such recommendations.
``(G) Analyzing data from the Office and the Office of
Inspector General telephone hotlines, other whistleblower
disclosures, disaggregated by facility and area of health
care if appropriate, and relevant audits and investigations
to identify trends and issue reports to the Secretary based
on analysis conducted under this subparagraph.
``(H) Receiving, reviewing, and investigating allegations
of misconduct, retaliation, or poor performance involving--
``(i) an individual in a senior executive position (as
defined in section 713(d) of this title) in the Department;
``(ii) an individual employed in a confidential, policy-
making, policy-determining, or policy-advocating position in
the Department; or
``(iii) a supervisory employee, if the allegation involves
retaliation against an employee for making a whistleblower
disclosure.
``(I) Making such recommendations to the Secretary for
disciplinary action as the Assistant Secretary considers
appropriate after substantiating any allegation of misconduct
or poor performance pursuant to an investigation carried out
as described in subparagraph (F) or (H).
``(2) In carrying out the functions of the Office, the
Assistant Secretary shall ensure that the Office maintains a
toll-free telephone number and Internet website to receive
anonymous whistleblower disclosures.
``(3) In any case in which the Assistant Secretary receives
a whistleblower disclosure from an employee of the Department
under paragraph (1)(C), the Assistant Secretary may not
disclose the identity of the employee without the consent of
the employee, except in accordance with the provisions of
section 552a of title 5, or as required by any other
applicable provision of Federal law.
``(d) Staff and Resources.--The Secretary shall ensure that
the Assistant Secretary has such staff, resources, and access
to information as may be necessary to carry out the functions
of the Office.
``(e) Relation to Office of General Counsel.--The Office
shall not be established as an element of the Office of the
General Counsel and the Assistant Secretary may not report to
the General Counsel.
``(f) Reports.--(1)(A) Not later than June 30 of each
calendar year, beginning with June 30, 2017, the Assistant
Secretary shall submit to the Committee on Veterans' Affairs
of the Senate and the Committee on Veterans' Affairs of the
House of Representatives a report on the activities of the
Office during the calendar year in which the report is
submitted.
``(B) Each report submitted under subparagraph (A) shall
include, for the period covered by the report, the following:
``(i) A full and substantive analysis of the activities of
the Office, including such statistical information as the
Assistant Secretary considers appropriate.
``(ii) Identification of any issues reported to the
Secretary under subsection (c)(1)(G),

[[Page S3567]]

including such data as the Assistant Secretary considers
relevant to such issues and any trends the Assistant
Secretary may have identified with respect to such issues.
``(iii) Identification of such concerns as the Assistant
Secretary may have regarding the size, staffing, and
resources of the Office and such recommendations as the
Assistant Secretary may have for legislative or
administrative action to address such concerns.
``(iv) Such recommendations as the Assistant Secretary may
have for legislative or administrative action to improve--
``(I) the process by which concerns are reported to the
Office; and
``(II) the protection of whistleblowers within the
Department.
``(v) Such other matters as the Assistant Secretary
considers appropriate regarding the functions of the Office
or other matters relating to the Office.
``(2) If the Secretary receives a recommendation for
disciplinary action under subsection (c)(1)(I) and does not
take or initiate the recommended disciplinary action before
the date that is 60 days after the date on which the
Secretary received the recommendation, the Secretary shall
submit to the Committee on Veterans' Affairs of the Senate
and the Committee on Veterans' Affairs of the House of
Representatives a detailed justification for not taking or
initiating such disciplinary action.
``(g) Definitions.--In this section:
``(1) The term `supervisory employee' means an employee of
the Department who is a supervisor as defined in section
7103(a) of title 5.
``(2) The term `whistleblower' means one who makes a
whistleblower disclosure.
``(3) The term `whistleblower disclosure' means any
disclosure of information by an employee of the Department or
individual applying to become an employee of the Department
which the employee or individual reasonably believes
evidences--
``(A) a violation of a provision of law; or
``(B) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety.''.
(b) Conforming Amendment.--Section 308(b) of such title is
amended by adding at the end the following new paragraph:
``(12) The functions set forth in section 323(c) of this
title.''.
(c) Clerical Amendment.--The table of sections at the
beginning of chapter 3 of such title is amended by inserting
after the item relating to section 322 the following new
item:

``323. Office of Accountability and Whistleblower Protection.''.

SEC. 1097C. PROTECTION OF WHISTLEBLOWERS IN DEPARTMENT OF
VETERANS AFFAIRS.

(a) In General.--Chapter 7 of title 38, United States Code,
as amended by section 1097A, is further amended by adding at
the end the following new sections:

``Sec. 716. Protection of whistleblowers as criteria in
evaluation of supervisors

``(a) Development and Use of Criteria Required.--The
Secretary, in consultation with the Assistant Secretary of
Accountability and Whistleblower Protection, shall develop
criteria that--
``(1) the Secretary shall use as a critical element in any
evaluation of the performance of a supervisory employee; and
``(2) promotes the protection of whistleblowers.
``(b) Principles for Protection of Whistleblowers.--The
criteria required by subsection (a) shall include principles
for the protection of whistleblowers, such as the degree to
which supervisory employees respond constructively when
employees of the Department report concerns, take responsible
action to resolve such concerns, and foster an environment in
which employees of the Department feel comfortable reporting
concerns to supervisory employees or to the appropriate
authorities.
``(c) Supervisory Employee and Whistleblower Defined.--In
this section, the terms `supervisory employee' and
`whistleblower' have the meanings given such terms in section
323 of this title.

``Sec. 717. Training regarding whistleblower disclosures

``(a) Training.--Not less frequently than once every two
years, 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 disclosures, including--
``(1) an explanation of each method established by law in
which an employee may file a whistleblower disclosure;
``(2) the right of the employee to petition Congress
regarding a whistleblower disclosure in accordance with
section 7211 of title 5;
``(3) 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);
``(4) 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
``(5) 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, to the maximum extent practicable, that training
provided under subsection (a) is provided in person.
``(c) Certification.--Not less frequently than once every
two years, the Secretary shall provide training on merit
system protection in a manner that the Special Counsel
certifies as being satisfactory.
``(d) Publication.--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 make a whistleblower disclosure, including the information
described in paragraphs (1) through (5) of subsection (a).
``(e) Whistleblower Disclosure Defined.--In this section,
the term `whistleblower disclosure' has the meaning given
such term in section 323 of this title.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 7 of such title, as amended by section
1097A, is further amended by inserting after the item
relating to section 715 the following new items:

``716. Protection of whistleblowers as criteria in evaluation of
supervisors.
``717. Training regarding whistleblower disclosures.''.

SEC. 1097D. TREATMENT OF CONGRESSIONAL TESTIMONY BY
DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES AS
OFFICIAL DUTY.

(a) In General.--Chapter 7 of title 38, United States Code,
as amended by section 1097C, is further amended by adding at
the end the following new section:

``Sec. 718. 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 chapter 7 of such title, as amended by section
1097C, is further amended by inserting after the item
relating to section 717 the following new item:

``718. Congressional testimony by employees: treatment as official
duty.''.

SEC. 1097E. REPORT ON METHODS USED TO INVESTIGATE EMPLOYEES
OF DEPARTMENT OF VETERANS AFFAIRS.

(a) Report Required.--Not later than 540 days after the
date of the enactment of this Act, the Assistant Secretary
for Accountability and Whistleblower Protection shall submit
to the Secretary of Veterans Affairs, the Committee on
Veterans' Affairs of the Senate, and the Committee on
Veterans' Affairs of the House of Representatives a report on
methods used to investigate employees of the Department of
Veterans Affairs and whether such methods are used to
retaliate against whistleblowers.
(b) Contents.--The report required by subsection (a) shall
include the following:
(1) An assessment of the use of administrative
investigation boards, peer review, searches of medical
records, and other methods for investigating employees of the
Department.
(2) A determination of whether and to what degree the
methods described in paragraph (1) are being used to
retaliate against whistleblowers.
(3) Recommendations for legislative or administrative
action to implement safeguards to prevent the retaliation
described in paragraph (2).
(c) Whistleblower Defined.--In this section, the term
``whistleblower'' has the meaning given such term in section
323 of title 38, United States Code, as added by section
1097B.
______